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Localism Bill

Report (7th Day) (Continued)

8.28 pm

Schedule 12 : Neighbourhood planning: consequential amendments

Amendment 211

Moved by Baroness Hanham

211: Schedule 12, page 349, line 44, at end insert-

"21A(1) Section 333 (regulations and orders) is amended as follows.

(2) In subsection (3) (regulations to be subject to annulment) after "except regulations under section 88" insert "or paragraph 15(5) or 16 of Schedule 4B".

(3) After that subsection insert-

"(3A) No regulations may be made under paragraph 15(5) or 16 of Schedule 4B unless a draft of the instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament.""

Amendment 211 agreed.

Clause 111 : Retrospective planning permission

Amendment 211A

Moved by Lord Shutt of Greetland

211A: Clause 111, page 90, line 18, leave out "an" and insert "a pre-existing"

Lord Shutt of Greetland: This group covers all the government amendments on enforcement. Turning first to Clause 111 on retrospective planning applications, these amendments will, I think, allay the concerns raised by my noble friend Lord Avebury in Committee. He thought that the drafting of what is now Clause 111 was ambiguous in that it might be possible for a local planning authority to negate the purpose of this clause by both declining to determine a retrospective planning

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application and arguing that an enforcement appeal on ground (a) was also inadmissible. These amendments solve the problem. Amendment 211A specifies that the enforcement notice in question must be "pre-existing". Amendment 211B defines a "pre-existing enforcement notice" as one that was issued before the application-being the retrospective application-was received by the local planning authority. To paraphrase what my noble friend Lord Taylor of Holbeach said in Committee, our policy is that those people seeking planning permission after the event should have one, but only one, bite at the cherry.

I move on to Clause 115, on powers in relation to unauthorized advertisements. In Committee, the noble Lord, Lord Borrie, supported by my noble friend Lord Black of Brentwood, was concerned that the provision for serving a removal notice for an allegedly illegal advertisement hoarding was not subject to a right of appeal to a local magistrates' court, but only by means of a judicial review. Since that debate the Government have been convinced by the arguments made. We have therefore come forward with Amendments 213A, 213B, 213C and 214A. Amendment 213A says that removal notices should be subject to a right of appeal. Amendments 213B and 213C are minor drafting amendments for consistency of expression. Amendment 214A contains the right of appeal itself. The format of the right is very similar to those in new Sections 225C and 225H further on in Clause 115, but with some small differences to reflect that this right of appeal applies to notices requiring the removal of advertisement hoardings, rather than fly-posting or graffiti. I therefore hope that these amendments will meet the concerns of the noble Lords, together with their colleagues, the noble Lords, Lord Smith of Finsbury and Lord Rodgers of Quarry Bank. I therefore also urge the noble Lords not to press their Amendments 214 to 223, which have the same purpose as the government amendments, but do not quite work in the way intended. I beg to move.

8.30 pm

Lord Borrie: My Lords, all the non-government amendments in this grouping have been proposed by me and colleagues from different parts of the House: the noble Lords, Lord Black of Brentford and Lord Rodgers of Quarry Bank. We were concerned in Committee that advertisers ought to have a right of appeal to magistrates' courts against orders for removal of structures for the display of ads. They ought to have a right of appeal against orders made by planning authorities. There have in the past been such rights of appeal outside London and we were concerned that fairness suggests that that right should also exist within London and not just through the more expensive procedure of seeking a judicial review in the High Court. The amendments have, of course, been put down again at this stage, but one has learnt over the weeks-and it is now confirmed by the noble Lord, Lord Shutt of Greetland-that the Government have moved considerably on the matter. As it seems that the government amendments are satisfactory from the point of view that I have mentioned, I will at the appropriate moment not press the non-government amendments in this group.



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Lord Black of Brentwood: My Lords, I warmly welcome the government amendments. In talking to this group, I declare an interest as a director of the Advertising Standards Board of Finance. I first raised this issue at Second Reading with the health warning that it appeared to be a rather dry and technical issue. So it is, but it has been an important issue to a substantial industry. The outdoor advertising industry in the UK is worth well over £1 billion and accounts for 10 per cent of all display advertising, employing, directly or indirectly, about 15,000 people. It is also a very responsible industry and is fully committed to the codes of advertising practice enforced by the Advertising Standards Authority. Although the noble Lord, Lord Smith, may be able to tell us more, complaints about outdoor advertisements have, as I understand it, dropped by more than 30 per cent in the past year or so. It is absolutely right that we should do what we can to support the industry, and the Government's amendments-which will give the industry real local power over appeals against enforcement notices-do just that.

I add my thanks to the Minister and her colleagues for listening to the real concerns and for acting. These amendments give real force to the issues that we raised and I warmly welcome them.

Lord Smith of Finsbury: My Lords, I support the noble Lords, Lord Borrie and Lord Black, in welcoming the Government's amendment and I agree with them about withdrawing our alternative amendments.

As chairman of the Advertising Standards Authority I believe strongly in the enormous value of responsible advertising. The outdoor advertising industry is, overwhelmingly, hugely responsible. The amendment ensures that that responsibility and the freedom to advertise that goes along with it will remain firmly in place, and sensibly so. I welcome the Government's amendment. I thank them for listening and for producing a highly acceptable formula in their amendment.

Lord McKenzie of Luton: My Lords, we obviously support the Government's amendments on retrospective planning permission, particularly those in relation to unauthorised advertisements. I understand that my noble friend Lord Borrie and his colleagues will not press their amendments. The Government should be congratulated on listening to the arguments from across the House and the discussions that took place outside the Chamber. We have got a good outcome to this issue which we support. We thank the Government for listening.

Lord Shutt of Greetland: My Lords, I am grateful for those four splendid contributions.

Amendment 211A agreed.

Amendment 211B

Moved by Baroness Hanham

211B: Clause 111, page 90, line 20, at end insert-

"(2) For the purposes of the operation of this section in relation to any particular application for planning permission, a "pre-existing enforcement notice" is an enforcement notice issued before the application was received by the local planning authority."



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Amendment 211B agreed.

Amendment 212

Moved by Baroness Gardner of Parkes

212: Clause 111, page 90, line 20, at end insert-

"70D Requirement for consultation on retrospective application

A local planning authority must, on receipt of an application for retrospective planning permission, notify and consult on the application those who were notified and consulted on the original application, and must have regard to any responses to the further consultation."

Baroness Gardner of Parkes: My Lords, I should like to clarify that I am not speaking about what I would call a repeat amendment, where someone is coming back for another planning application; I am speaking purely about cases where someone has built premises in contravention of the planning permission they have been granted.

This has happened to me in both London and the country. I supported the application in the country, only to find that an extra metre and a half had been built on a wall, cutting off totally our view of the village green, which was a very pretty part of the place. When I rang the council to ask why nothing had happened about this, they said, "Oh, we gave him retrospective permission for it". The same happened in London, where I actually phoned the council during the construction and said that it was not being built according to plan. "Oh of course it is", they said. Eighteen months later the council came back and said, "You're quite right, it was not. However, we felt that as people had already moved into it, we should give them retrospective permission".

This is quite unfair to people who have a right of legitimate comment on the original planning application but have no idea when the council is considering a whitewash for something that should not be. That is the purpose of the amendment. I beg to move.

Lord Beecham: My Lords, I would have thought that this amendment is unnecessary. If an application for retrospective consent is a fresh application, it would, or should, be notified to those occupiers-not necessarily those who objected before, who might be living anywhere. However, surely it should be treated as an application de novo, and therefore the normal processes would apply. So those affected on a retrospective application would receive notice. I should think, unless the Minister disagrees, that the amendment is otiose.

Lord Shutt of Greetland: My Lords, I believe that the noble Lord is right on this. I thank my noble friend Lady Gardner of Parkes for bringing this forward. It is important that we get this absolutely clear. This word retrospective largely means that something happened for which there was no permission. Someone spots it and says, "Look here, you'd better put in a planning application". That's the position. In all instances where there is a change, there are requirements in place for local planning authorities to publicise and consult on those applications-that is, the retrospective ones. This is true when a new revised planning application is submitted, and where the holder of a planning permission wishes to delete or vary one or more of the conditions

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to which their existing planning permission is subject. The Government therefore believe that this amendment is a solution to a problem that does not exist. I hope that my noble friend will feel able to withdraw it.

Baroness Gardner of Parkes: I thank the Minister for that answer. I really find it surprising that I should have been unfortunate in two entirely different locations in this respect. But I accept what he says and beg leave to withdraw the amendment.

Amendment 212 withdrawn.

Clause 114 : Planning offences: time limits and penalties

Amendment 213

Moved by Baroness Gardner of Parkes

213: Clause 114, page 94, line 36, at end insert-

"( ) In section 171B (time limits), after subsection (4)(b) insert-

"(c) at any time taking enforcement action in accordance with an enforcement order which has not been complied with by the party that has breached planning control.""

Baroness Gardner of Parkes: My Lords, I am hoping that this one is equally unnecessary. I moved this amendment in Committee-or an amendment very like it-but when the government reply came, the Minister thought that I was asking about the right to take a new enforcement action well after six years, which is apparently the limit. That was not my point. My point concerns situations where enforcement action has been taken. Again, somewhere near me there is a property which is in foreign ownership; enforcement notices have been served; it has gone through the court process-everything-but nothing has happened for about 10 years now. They have absolutely failed to comply and cannot be contacted anywhere. That is really why I tabled the amendment. However, I hope that the Government will tell me that it is not necessary. I beg to move.

Lord Shutt of Greetland: I understand the concerns of my noble friend Lady Gardner of Parkes. Again, however, this amendment is not necessary. Section 171B deals with time limits for taking enforcement action-essentially, serving an enforcement notice. It does not deal with ensuring compliance with that notice. A valid enforcement notice-in other words, one that has not been appealed against, or has been upheld on appeal-remains in force indefinitely unless the local planning authority withdraws it. If the person on whom it has been served does not comply, they can be prosecuted. The maximum penalty is a £20,000 fine in the magistrates' courts, or an unlimited fine on indictment, and can be subject to a repeat prosecution if they still fail to comply. The penalty is a daily fine until compliance. The local planning authority can also do the works in default and recover its expenses from the landowner. So I believe that there is no need for the amendment, and I trust that my noble friend will feel able to withdraw it.



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Baroness Gardner of Parkes: Again I thank the Minister. I am delighted that he has given me that answer. To have it in writing means that I can go back to the local authority and try to persuade it again to pursue the matter. I beg leave to withdraw the amendment.

Amendment 213 withdrawn.

Clause 115 : Powers in relation to: unauthorised advertisements; defacement of premises

Amendments 213A to 213C

Moved by Baroness Hanham

213A: Clause 115, page 95, line 41, after "(5)" insert "and the right of appeal under section 225AA"

213B: Clause 115, page 96, line 3, leave out "made"

213C: Clause 115, page 96, line 30, leave out "within the period" and insert "by the time"

Amendments 213A to 213C agreed.

Amendment 214 not moved.

Amendment 214ZA not moved.

8.45 pm

Amendment 214A

Moved by Baroness Hanham

214A: Clause 115, page 97, line 28, at end insert-

"225AA Appeal against notice under section 225A

(1) A person on whom a removal notice has been served in accordance with section 225A(3) or (5)(b) may appeal to a magistrates' court on any of the following grounds-

(a) that the display structure concerned is not used for the display of advertisements in contravention of regulations under section 220;

(b) that there has been some informality, defect or error in, or in connection with, the notice;

(c) that the period between the date of the notice and the time specified in the notice is not reasonably sufficient for the removal of the display structure;

(d) that the notice should have been served on another person.

(2) For the purposes of subsection (3), a person is a "permitted appellant" in relation to a removal notice if-

(a) the removal notice has been fixed or exhibited in accordance with section 225A(5)(a);

(b) the person is an owner or occupier of the land on which the display structure concerned is situated; and

(c) no copy of the removal notice has been served on the person in accordance with section 225A(5)(b).

(3) A person who is a permitted appellant in relation to a removal notice may appeal to a magistrates' court on any of the following grounds-

(a) that the display structure concerned is not used for the display of advertisements in contravention of regulations under section 220;

(b) that there has been some informality, defect or error in, or in connection with, the notice;

(c) that the period between the date of the notice and the time specified in the notice is not reasonably sufficient for the removal of the display structure.



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(4) So far as an appeal under this section is based on the ground mentioned in subsection (1)(b) or (3)(b), the court must dismiss the appeal if it is satisfied that the informality, defect or error was not a material one.

(5) If an appeal under subsection (1) is based on the ground mentioned in subsection (1)(d), the appellant must serve a copy of the notice of appeal on each person who the appellant considers is a person on whom the removal notice should have been served in accordance with section 225A(3) or (5)(b).

(6) If-

(a) a removal notice is served on a person in accordance with section 225A(3) or (5)(b), and

(b) the local planning authority bring proceedings against the person for the recovery under section 225A(7) of any expenses,

it is not open to the person to raise in the proceedings any question which the person could have raised in an appeal under subsection (1).

(7) In this section "removal notice" and "display structure" have the same meaning as in section 225A."

Amendment 214A agreed.

Amendment 215 had been retabled as Amendment 214ZA.

Amendments 216 to 223 not moved.

Schedule 13 : Infrastructure Planning Commission: transfer of functions to Secretary of State

Amendment 223ZA

Moved by Lord Berkeley

223ZA: Schedule 13, page 359, line 25, at end insert-

"(3A) After subsection (2)(b) insert-

"(ba) in the case of an application for an order including provision authorising the compulsory acquisition of-

(i) statutory undertakers' land

(ii) local authority land,

(iii) National Trust land, or

(iv) land forming part of a common, open space or fuel or field garden allotment,

the effect of the compulsory acquisition of any such land"."

Lord Berkeley: My Lords, I shall speak to Amendment 223ZA and the other amendments in this group. I first apologise to the House for bringing these amendments forward comparatively late in the day. I will be as quick as I can although the amendments are fairly technical, with some pretty detailed arguments behind them.

The amendments stem from the issue of the change in responsibility for decision-making from the Infrastructure Planning Commission to the Secretary of State and provide that Parliament, in the form of the House of Commons only, approves the national policy statement series that is supposed to underpin the new regime. There have already been some minor changes to improve the process of planning major infrastructure projects and to streamline the whole process. I suspect that now that the Secretary of State will be the final decider-that is a political decision-rather than an official, many of the checks and balances that were in the original Act could possibly be dispensed with or reduced in scope to try and simplify the procedures.



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I know that these points have been made to officials quite frequently over the past few months and that the noble Lord, Lord Jenkin of Roding, moved similar amendments in Committee. When the noble Earl, Lord Attlee, responded to the noble Lord on 19 July, he said:

"I would like to consider the points he has raised in more detail and consult him and others between now and Report to see whether anything further can be done".-[Official Report, 19/7/11; col. 1319.]

I am not aware of any meetings that have taken place since then, which we probably all regret in retrospect. I will try to go through these various issues as quickly as I can and hope that we can all have a meeting with the Minister between now and Third Reading to see whether any of these particular issues can be resolved. The Government could then bring back some amendments at Third Reading.

To go through them quickly, starting in not quite the right order, Amendment 223ZD refers to Section 127 of the Planning Act, which requires a separate consent to be sought from the Secretary of State in some circumstances when it is proposed to acquire statutory undertakers' land compulsorily. Again, now that the decision has been transferred back to the Secretary of State, this is probably an element of gold-plating. I suggest it would be sufficient if the Secretary of State was required to take into account the views of the undertakers.

Amendment 223ZE refers to Sections 128 to 132 of the Planning Act, concerning the special parliamentary procedures which are available if there are objections from various organisations and authorities which end up having to go through a Joint Committee of Parliament, which could take quite a long time to resolve. The restoration of the Secretary of State's decision-making power could allow these provisions to be removed and for it to be left to the Secretary of State to decide whether to grant consent for an application that affects these types of special land holders. The SPP seems to be unnecessarily complex and gold plating.

Amendment 223ZF refers to Section 137 of the Planning Act, which requires a separate consent to be sought from a statutory undertaker or the relevant Secretary of State in some circumstances where the undertaker's apparatus is installed. Again, the same comments could apply to that. Amendment 223ZG refers to Section 138 of the Planning Act. It inserts an additional test and a consent from the relevant Secretary of State where the undertaker's rights to use land are being extinguished.

All these separate consents, which will often involve other Secretaries of State as well, fly in the face of one of the main purposes of the Planning Act regime, which was to create as far as possible a single consents regime. There are many examples I can quote but it is well known to your Lordships' House and Ministers. It seems that the Planning Act provisions set out in these texts go much further than the two key order-making procedures that the Act replaces-TWA and harbour orders. Taking them as precedent there is an argument for saying that there is a bit of gold plating in here.

It is interesting that on 13 October we heard the first IPC decision which was to allow Covanta's proposed energy from waste project in Bedfordshire. It was

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made within the statutory timescale of nine months. I am sure we are all happy to see the IPC sticking to its timetable. However, 43 of the 96 plots of land to be purchased are owned by statutory utilities or local authorities and they have made representations about the project. The Planning Act requires the project to be subject to the special parliamentary procedure which could add six to nine months to the programme, which for a big project is actually quite serious. There is an opportunity to put this right and to incorporate some of these amendments to simplify the process and accept that because we now have the Secretary of State making all the decisions he can take all these issues into account.

I will now mention one or two other items as briefly as possible. There are a large number of things that we really cannot go through at this time of night but there is one issue that refers to the construction of these big projects. It means that regulations made under Section 150 of the Planning Act still require the promoters to seek myriad other consents and regulators before they can start construction. The Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010 lists 42 separate agencies or authorities from which permissions have to be sought and a further 36 for Wales only, which I find quite interesting. Why is Wales so much more complicated? Again, it would be an enormous help to these projects if there could be just one consent which went through the IPC process.

I could spend a lot more time going through the detail of the technical issues. I hope that it might be possible for those of us who take an interest in this to have a meeting with Ministers before Third Reading to see whether we can encourage the Government to make some changes at that stage. I am sure that the noble Lord, Lord Jenkin of Roding, and perhaps other colleagues, would wish to participate fully in such a meeting. I beg to move.

Lord Jenkin of Roding: The noble Lord, Lord Berkeley, has masterfully reduced what could have been a very long speech into one that lasted less than 10 minutes. There has been some confusion about this whole matter. The group of amendments that I moved in Committee on 19 July contained a large number of separate and discrete subjects. The amendments that I moved were concerned primarily with ensuring a seamless transition from the existing IPC procedure to the NSIP procedure. I will not go into the details now but my noble friend Lord Attlee very kindly said that there should be discussions on this. Those who were advising me on this matter did have discussions with officials in the department. The result was that when we approached Report stage, when I asked them whether they had achieved what they were looking for, they said yes. Therefore, I have not retabled those amendments. However, as the noble Lord, Lord Berkeley, has rightly said, there were other amendments, a lot of which were aimed at the proposition that there should be a one-stop shop.

As I understand it-I am open to correction-for some reason the meeting with officials did not take place until last week. There was a misunderstanding about who was seeking to organise the meeting and

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make sure that proper discussions could take place. I think that the meeting took place on 13 October, with the result that the large number of amendments in the name of the noble Lord, Lord Berkeley, were tabled only on Friday and appeared with an asterisk in this morning's revised Marshalled List. I had not realised that they would appear on the Marshalled List. I have made inquiries and I have a great deal of information on this issue but most of them are the same as those we discussed on 19 July in Committee, although there are one or two additional ones to which no doubt attention will be drawn at some stage. Whether it was the fault of my noble friend on the Front Bench or of those who have been advising us, the fact of the matter is that there have not been the discussions that there should have been and that my noble friend offered when he wound up the debate on 19 July. Therefore, we are in a slight difficulty on this. I hope that the request of the noble Lord, Lord Berkeley, that serious meetings should be held before Third Reading so that we can, if necessary, retable the amendments, or some of them, at that stage and have them debated will be taken note of.

9 pm

I am getting a little alarmed about the number of issues which we are reserving for Third Reading. I am told by the Whips that we are likely to have only one day for that stage so we may find ourselves sitting even later then than we are likely to do tonight. However, I also have two new amendments in this group about which I would like to say a few words. This is a question of how and when a planning application can be referred to the NSIP procedure. There is a process in the Bill whereby the Secretary of State can call in an application and ask that the NSIP procedure should be applied but it also provides that anyone can make a qualifying request. It is astonishing that anyone can make a qualifying request. It has been put to me that that is a great deal too inclusive. Anybody could take a controversial project that that they did not like that was being put forward to the local authority and say, "Right, it should go to the planning inspectorate under the NSIP procedure". My first amendment restricts who can make a qualifying request to the prospective promoter and the relevant authority-the authority to whom the application would ordinarily have been made.

My second amendment introduces a cut-off date. It is rather like some of the points mentioned by the noble Lord, Lord Berkeley: the more delays that you build into this process the more the infrastructure that is needed will itself be delayed. I know that it is my noble friend's intention that these procedures should operate as swiftly and effectively as possible while at the same time giving local communities the right to be heard and to present their case. Of course, all the pre-application consultations that are now required, which are a very important part of the NSIP procedure, are now in place and are happening. I get the newsletter from the IPC regularly when it is issued and it is fascinating to see how many applications it is now considering that have gone through a pre-application procedure. If we are then to have people entitled to say that an ordinary application should be handled by the

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NSIP procedure rather than by the local authority, it cannot be without limit. Therefore, the amendment says that it should be done before the application has actually been made. All the pre-application procedure will have told them and objectors may then say, "This ought to go through the NSIP procedure". Once the application is made to a local authority, that should be that, and the application should then be heard by the local planning authority.

These are two new points that stand a little apart from those of the noble Lord, Lord Berkeley, and the amendments are different from the amendments that I moved in Committee which I have not retabled. They have merit and I hope that my noble friend will consider them sympathetically.

Lord Boyd of Duncansby: My Lords, this is the first time that I have spoken on Report, so I repeat my declaration of interest: I am a solicitor in private practice and registered as a foreign lawyer in England and Wales, and some of my practice involves planning. I recollect that in Committee I stood to support amendments in terms very similar to those before the House this evening. I cannot now recollect in whose names the amendments stood, but I was pleased that the Minister, the noble Earl, Lord Attlee, offered to discuss that issue. It may be that I and others took our eyes off the ball, as it were, in following up the matter. I do not want to take the time of the House unnecessarily because both my noble friend Lord Berkeley and the noble Lord, Lord Jenkin, have gone through remarkably succinctly the detail of the amendments in the group.

The central issue is that the development consent order is expected to be an omnibus order that will encompass a range of other consents and will reduce the number of applications that a developer has to make, thereby making the development procedure that much easier.

The amendments address two issues seriously. The first is the range of further consents required beyond the development consent order. My noble friend Lord Berkeley listed the consents that are still needed-another 42 are still required, including 36 in Wales. Of course, there are occasions when you require specialist input that only specialist agencies can give-these are necessary safeguards-but, on the other hand, the policy behind this ought to be to reduce to the minimum the number of other consents that are required. That would be consistent with this Government's approach to reducing regulation and removing red tape. There are a large number of these further consents that can be effectively removed without reducing the necessary safeguards. At Committee stage, I gave an example of the London Gateway Port Harbour Empowerment Order 2008, which is an order under the Harbours Act which included provisions for the benefit of the Environment Agency, and would be a model for that.

The second strand is the further consents and procedures necessary on top of what the IPC grants in a development consent order-in other words, the further consents from the Secretary of State where, for example, land of statutory undertakers is being compulsorily acquired or the special parliamentary procedure applies. This procedure is not one that is

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used very often, yet we find, as my noble friend Lord Berkeley said, that the first application to be granted by the IPC requires that further consent.

Some might say that we need to have a proper check and balance. I accept that when the Infrastructure Planning Commission, which the Government told us was an unelected quango, was making its decisions independently of any outside scrutiny, it might then have been appropriate to keep a number of other procedures and safeguards in process-safeguards which were accountable. Now that we have the Secretary of State giving the final decision, you can incorporate within that the necessary safeguards that some noble Lords may wish to see.

There are also, within this group, issues in relation to the discharge of requirements. I do not intend to take up the House's time on that, but there are important issues in relation to ensuring that the regime that we create works effectively and that the transition from the Infrastructure Planning Commission, which makes the decision at present, to one where the Secretary of State is deciding on the recommendations of the major infrastructure unit of the Planning Inspectorate, is effective too.

I hope that the Minister will look at these issues seriously. They are important and they are designed to reduce the amount of bureaucracy and red tape that there is and make this a streamlined process.

I make one final point. A European Commission study into the consenting regimes for major infrastructure projects throughout the European Union commended the one-stop shop, which at the moment is encompassed within the Infrastructure Planning Commission, but which, when this Bill goes through, will still be there but with the Secretary of State. My understanding is that the European Commission is likely to make regulations to ensure the acceleration of the deployment of priority energy infrastructure projects by concentrating resources, simplifying and enhancing permission procedures and making use of innovative financial instruments. In order to enhance national permitting and granting processes, each member state will be required to create a competent authority-a one-stop shop-responsible for those tasks. Therefore, it looks as though we will get a seal of approval, if that is required, from the European Commission. We can make things better.

I hope that the Minister will take away these matters and look at them seriously.

Lord McKenzie of Luton: My Lords, it is unfortunate that a raft of technical amendments have come forward very late in the day, and seemingly in an environment where the promised engagement in Committee was not fully realised. That is not the best way for us to deal with these hugely important matters. It means that we are stacking up yet another issue to deal with at Third Reading. Whether we get through Third Reading in one day remains to be seen.

I hope that we all agree that, in relation to infrastructure, we want an efficient and effective system of dealing with planning. We have heard arguments about a one-stop shop and the extent to which we are some way from that. We have heard about the issues around

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the extent to which there should be a parliamentary process now that the Secretary of State is the ultimate decision-maker. I say to my noble and learned friend Lord Boyd and to my noble friend Lord Berkeley that I would need a bit of convincing to step aside from a parliamentary procedure just because the Secretary of State is making the final decision. We have debated the Bill in some detail and the issue of the powers of the Secretary of State has been a running sore in our deliberations, but I remain to be convinced on that.

Certainly I agree with and support the importance of having a one-stop shop on the raft of consents that apparently are still needed. However, the clock is ticking on Third Reading. This is an opportunity to sort out some issues, but we do not have much time in which to do it. It may be, as my noble and learned friend Lord Boyd said, that the EU could overtake us on this matter. We have a couple of weeks before Third Reading and there are very serious issues that have been raised tonight by all three noble Lords. The noble Lord, Lord Jenkin, also raised new points that we had not touched on before about who can make these qualifying requests, as well as issues around pre-application consultation. I hope that the Minister will be able to give us a full response on these issues. Generally, I find that we are in an unsatisfactory position on a hugely important issue for this country.

Earl Attlee: My Lords, I thank all noble Lords who have spoken. On the point about meetings, I cannot understand what has gone wrong. I would never resist meetings, not least because I find them so valuable. It is my responsibility to call a meeting. On the other hand, if it looks as though the meeting is not going to happen, a reminder would be helpful-and I do enjoy the meetings that I have with the noble Lord, Lord Berkeley.

We are very short on time. The amendments in this group seek to change the Planning Act 2008. Although they are technical in nature, they are none the less important, so I shall respond to each in turn. Amendments 223AA and 223AB, in the name of my noble friend Lord Jenkin, seek to limit the circumstances in which a qualifying request for a direction under Section 35 of the Planning Act 2008, as amended by Clause 120 of the Localism Bill, may be made. The amendments would restrict those who can make a qualifying request to the proposed applicant and the authority in question. Amendment 223AB would prevent a qualifying request from being made after an application is made to the relevant authority.

9.15 pm

I do not think that Amendments 223AA and 223AB would be helpful. In relation to who may make a qualifying request, it may be that third parties with expertise in particular areas, such as environmental requirements, possess information which they think may elevate a proposed development from one of sub-national significance to one of national significance. It would not be right to prevent such bodies drawing this information to the attention of the Secretary of State as this amendment seeks to do. I understand my noble friend's argument and am sympathetic to his

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aims, but I do not believe that there is a great deal of scope here for a delay to projects. The new provisions contained in the Localism Bill set out a clear, tightly constrained timetable in which the Secretary of State must decide a qualifying request. If someone were to make a vexatious request simply to slow down the local planning process, the Secretary of State would be quickly able to provide a response in the negative. The scope for delay is therefore minimal.

My noble friend Lord Jenkin suggested that an application has been made to the local authority and that should be that. At present, an application to a local authority can be directed to the Planning Act regime by the Secretary of State after submission. This amendment enables someone to draw key information to the Secretary of State's attention if it had not already come to light. With these assurances, I hope that my noble friend is willing to withdraw his amendments.

Turning to the amendments tabled by the noble Lord, Lord Berkeley, Amendments 223ZD and 223ZE would, by amending Schedule 13 to the Bill, repeal Sections 127 to 132 of the Planning Act 2008. These sections draw into the Planning Act long-standing protections from compulsory purchase for certain special types of land-land belonging to a local authority, statutory undertaker or the National Trust and commons, open spaces or fuel or field garden allotments. Amendment 223ZA replaces these protections with a significantly weaker requirement for the decision-maker to have regard to the effect of the compulsory acquisition of the land or statutory undertaker when taking decisions.

Amendments 223ZF and 223ZG would repeal Section 137 and subsections (4) to (6) of Section 138 of the Planning Act. I understand the purpose of the noble Lord's amendments and sympathise with his aim to simplify the major infrastructure planning regime. However, the existing protections embodied in these sections of the Planning Act are well established in existing compulsory purchase law. The proposed amendments would significantly weaken them, effectively creating a two-tier system for compulsory purchase with a stronger set of protections existing outside the major infrastructure system than within it, and I just do not think that that can be right. Secondly, these rights are well established in law and I see no evidence that the need for these rights has diminished. I do not believe that it is right to weaken them. I do not agree that a significant extra burden exists, and I hope that the noble Lord will not press these amendments.

Amendment 223ZB seeks to clarify that the Secretary of State may modify the proposals contained in an application when making an order. I am pleased that the noble Lord has raised this point. It gives me the opportunity to put an important assurance on the record. Section 114(1) of the Planning Act already grants a wide discretion for the decision-maker to decide the terms on which a development consent order may be made. The Secretary of State may already modify the consent order submitted as part of the application in whatever way the Secretary of State believes is necessary.

Section 150 of the Planning Act provides an important function. The Planning Act contains wide powers for development consent orders to amend and disapply

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other legislative requirements. Section 150 protects certain key consents from this power by requiring the agreement of the consenting body for the consent to be modified or disapplied. In doing so, it provides clarity to potential applicants that certain consents should not ordinarily be absorbed into the major infrastructure planning process. I understand that some have argued for a less bureaucratic approach to regulatory and environmental consents from the Section 120 power, but this is a complex issue and a better solution has not presented itself.

Amendment 223ZJ would allow an order or regulations made under the Planning Act, with certain exemptions, including a development consent order, to include a procedure to waive compliance with any of the requirements if compliance would be "unnecessary, impossible or impracticable". This provision is not necessary. Orders made under the Planning Act may already provide for such a waiver procedure if it is deemed necessary.

Amendments 223ZK and 223ZL seek to increase these powers, enabling offences to be created in relation to any type of development consent by creating a new power to vary by order the list of offences that can be created by a development consent order. I am not convinced that this widening of powers is necessary or appropriate. The present provisions of Schedule 13 aim to replicate equivalent provisions in paragraphs 12 and 13 of Schedule 1 to the Transport and Works Act 1992 and Sections 14(3) and 16(6) of the Harbours Act 1964, with which the noble Lord, Lord Berkeley, will be very familiar. The proposed power goes considerably wider than those of the Transport and Works Act and the Harbours Act, and I can see no evidence of the need to expand these powers so dramatically.

Amendment 223AC would amend Section 120 of the Planning Act 2008 to provide that, for the purpose of discharging the requirements and making a related appeal, the requirements are to be treated as if they were conditions imposed under Part 3 of the Town and Country Planning Act 1990. Again, I am pleased that the noble Lord has raised this matter as it gives me the opportunity to provide clarification on the record. Together, Section 121 and Section 120(5)(c) of the Planning Act provide a wide power for a development consent order to provide for third-party discharge of requirements and for any related processes, including appeals, to be specified.

Finally, Amendment 223ZM seeks to amend Clause 117, which gives the Secretary of State the power to make directions regarding the handling of applications which would transition from the IPC regime to the Secretary of State when the IPC is abolished. Specifically, the amendment seeks to enable the Secretary of State to make directions regarding environmental impact assessment screening or scoping decisions which have been issued by the IPC or where the IPC has authorised the applicant to obtain information about interests in land. I can confirm to the noble Lord that this amendment is unnecessary. Where the IPC has issued a screening or scoping opinion or has authorised someone to serve a notice under Section 52 of the Planning Act, these actions will generally stand

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as authorised after transition as the IPC was the body with legal authority to carry out those actions at the time. Screening and scoping opinions and authorisation to obtain information about interests in land will not have to be given again.

I am pleased to have been able to give a full response on the issues raised today, and I hope that, with the reassurances and clarifications given, the noble Lord will be prepared to withdraw the amendment.

Lord Berkeley: My Lords, I am extremely grateful to the Minister for a very full response on this group of amendments. It is incredibly helpful to have it on the record. I am sure we will be happy with the response on some of the amendments, but it will certainly be necessary to read in detail what the Minister said to see the extent to which it is worth taking the amendments further to try to simplify the objective of a one-stop shop.

Before I withdraw the amendment, I want to put on record that I do not think any of us were trying to blame the Minister for not having a meeting. We are all guilty, or we are all innocent. We did not have it, and we have a lesson to learn from that. I am sure that, if we find something we would like to discuss before Third Reading, the Minister will, as usual, be pleased to see us. I beg leave to withdraw the amendment.

Amendment 223ZA withdrawn.

Amendments 223ZB to 223ZL not moved.

Clause 117 : Transitional provision in connection with abolition

Amendment 223ZM not moved.

Amendment 223A

Moved by Lord Berkeley

223A: After Clause 118, insert the following new Clause-

"Directions relating to railway projects

(1) In the Planning Act 2008 after section 35A insert-

"35B Directions relating to railway projects

(1) Subsection (2) applies if a project for the construction or alteration of a railway includes-

(a) development which is within section 14(1)(k), and

(b) development which is permitted development and which is to be carried out wholly in England.

(2) The Secretary of State for Transport may, in response to a qualifying request, direct in the case of any specified development within subsection (1)(b) that-

(a) development consent is not required for the specific development, or

(b) development consent for development within subsection (1)(a) may also be granted for the specific development.

(3) A direction under subsection (2) can only be made if the Secretary of State for Transport thinks that the making of the direction will promote the efficient and timely development of the rail network.

(4) Subsection (5) applies if-

(a) a project consists of development which is within section 14(1)(k), and



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(b) the Secretary of State for Transport thinks that the project, taking into account its size, its potential effect on the railway network and all other relevant circumstances, is not of national significance, whether by itself or when considered with any other related project or proposed project in the same field.

(5) The Secretary of State for Transport may, in response to a qualifying request, direct the development to be treated for specified purposes or generally as development for which development consent is not required.

(6) If the Secretary of State for Transport decides to give a direction under subsection (2) or (5), the Secretary of State for Transport must give reasons for the decision.

(7) In this section "qualifying request", in relation to any development, means a written request which is made by the person proposing to carry out the development and which specifies the development, and-

(a) in the case of a request for a direction under subsection (2), explains why the conditions in subsections (1) and (3) are met; and

(b) in the case of a request for a direction under subsection (5), explains why the conditions in subsection (4) are met."

(2) In section 15(5) (development for which development consent may be granted) after "associated development" insert "or development in respect of which a direction has been given under section 35B(2)(b)"."

Lord Berkeley: My Lords, I assure the House that I shall be quicker than the last group of amendments. This is something that has come up quite recently, when we have tried to see how the IPC and the Planning Act 2008 should be applied to railway projects. It appears that there is no minimum size for railway projects to have to go to the IPC under the Planning Act. The example that has been brought to my attention is the electrification of the Great Western main line between Airport Junction, which is near Heathrow, and Cardiff, where Network Rail may have to demolish certain bridges or do other works. It mainly has the permitted development rights for those works but some of them may creep a few yards outside those rights. It has been suggested that any such creep would need permission through the IPC, so the amendment suggests that it would be nice if the Secretary of State were minded to direct that specific and maybe small developments outside the limits of permitted developments could proceed without any other process, on the basis that they were quite small.

It is not just about the electrification of the Great Western main line. The East West Rail project, roughly between Oxford and Milton Keynes, has found two places where the existing railway has never had permission. One little connection between two lines was built in the last war and nobody can find the documentation giving it permission; it may be with the British Rail Property Board but it has not found it. There is another place where the route that got permission went through a farm and the actual railway went round it; clearly the person owning the farm at the time saw somebody all right and there was a gentle deviation, which of course was no problem 150 years ago. Quite rightly, the promoters of this line want to get the legal situation correct before they start building.

There is a problem here which requires some change to the Planning Act, probably to Section 14. Perhaps the Secretary of State might be minded to bring forward

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regulations to find a way of getting some smaller railway projects permissions in a process outside of the IPC, which is meant for big projects and takes a long time to do. One can debate whether the problems here are with the Transport and Works Act, an ordinary planning application or something else, but I am sure the Minister will understand them. Maybe he has a better solution. I am grateful to him for the meeting that he arranged some time this summer. I cannot remember when it was now but we had a good discussion about this. What we do not want is for our new Secretary of State for Transport to turn round in six months' time and say that the electrification is held up for a couple of years because they cannot get permission for a couple of yards' extension to a bridge and that it has to go to the IPC. On that basis, I beg to move.

Lord McKenzie of Luton: My Lords, my noble friend has brought forward what seems to be an entirely reasonable proposition. I look forward to the Minister's reply. I add only that I do not know whether the same issue arises in relation to projects other than railway projects. Perhaps the Minister can cover that as well.

9.30 pm

Earl Attlee: My Lords, first, I thank the noble Lord, Lord Berkeley, for his work in this area. In answer to the noble Lord, Lord McKenzie of Luton, I have really considered this matter only in respect of railways but I think that noble Lords will find my answers satisfactory. The noble Lord and I did indeed have a meeting on this-ironically, I turned up a few minutes late.

Amendment 223A would amend the provisions of the 2008 Act which relate to railway projects. The amendment seeks to introduce two new powers. The first relates to a case where a railway project contains both development for which consent is required under the 2008 Act and development for which permitted development rights exist. In this case, the amendment seeks-on application from the promoter-to permit the Secretary of State for Transport to direct that the permitted development should be dealt with under the Planning Act along with the development for which consent is required under the Act. I confirm that Section 35 of the Act already provides a power of direction capable of achieving this. A new power is not necessary. The second relates to a situation where development consent is required for a railway project under the 2008 Act. In response to a qualifying request, if the Secretary of State for Transport thinks that the project is not of national significance, he may direct that the development should be treated as development for which consent under the Planning Act is not required.

My DCLG officials have discussed this matter with the Department for Transport and Network Rail, and have agreed that a carefully considered threshold would be preferable to such a power, as it would provide greater clarity on what should be considered major infrastructure. We have therefore agreed that secondary legislation should be brought forward under Section 14 of the Planning Act to set a suitable threshold for rail projects, as suggested by the noble Lord, Lord

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Berkeley. This will be taken forward by the Department for Transport. With this assurance, I hope that the noble Lord will be prepared to withdraw his amendment.

Lord Berkeley: I am extremely grateful to the Minister for that very positive response. Perhaps I could tell my noble friend Lord McKenzie that it applies only to railways because in other major project areas under the Planning Act there is always a minimum threshold. For some reason, one was not done at the time for railways-everybody thought that railways were big ones, and nobody picked it up. I suppose I should ask the Minister when the regulations will be tabled, but I am sure that he recognises the importance of that for certain projects. If it would help in drafting these things I am happy to meet with him, along with people from Network Rail and other infrastructure managers if they are interested. However, that seems to be a very good way forward and I am very grateful to him. On that basis, I beg leave to withdraw the amendment.

Amendment 223A withdrawn.

Clause 120 : Secretary of State's directions in relation to projects of national significance

Amendments 223AA and 223AB not moved.

Clause 128 : Development consent subject to requirement for further approval

Amendment 223AC not moved.

Amendment 223B

Moved by Lord Berkeley

223B: After Clause 129, insert the following new Clause-

"Hydraulic fracturing of underground rock

(1) Within 12 months of this Act being passed, the Secretary of State shall, by order, amend the Planning Act 2008 as follows.

(2) In section 14(1) (nationally significant infrastructure projects: general), at the end insert-

"(q) the hydraulic fracturing of underground rock"."

Lord Berkeley: My Lords, this is a completely different subject; it is to do with something which is colloquially called fracking. I raised it very briefly in Committee, but we were short of time then and I am grateful to the noble Baroness for the letters that she wrote, dated 5 September. Since that time I have had further thoughts about it. I have had quite an amazing amount of correspondence from people on the basis of a very short entry in Hansard. That is why I have tabled this amendment tonight, because it needs a different solution.

Very briefly, fracking comprises drilling a hole that is probably several kilometres under ground, pumping in water and unspecified chemicals, and sometimes apparently causing an explosion in the hope that gas will come up to the surface. There have been some pretty horrendous stories from the United States, where this is apparently quite common. There, houses have collapsed or settled seriously while water sources, and

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therefore water supplies, have allegedly been poisoned. In one instance, I believe that gas came out of the water tap, which must have been quite frightening.

I am not saying that that is going to happen here. However, the press release relating to what I believe is the first attempt at fracking in this country, somewhere near Blackpool, by a company called Cuadrilla Resources-the noble Lord, Lord Browne, an ex-chairman of BP, is apparently its chairman-said that it was excited because that could produce 200 trillion cubic feet of gas. I do not know what that means to the ordinary person in the street but it would be something like 30 years of gas. It all sounds very nice, with mouth-watering profits. But what will happen to the people who might be affected not by just the drilling and the things that I have mentioned, but by extra traffic on the roads, construction work and everything like that?

I know that there would be licensing from DECC and others. But if it were to happen around the country, I do not think that one can expect a local planning authority to have the resources to give something that is pretty technical due consideration, especially when it is balanced by potentially exciting numbers of new jobs and extra revenue from rates. It would be unfair to expect local planning authorities to give it the consideration that it deserves. I believe that the right solution is to make another change to Section 14 of the Planning Act to create a new type of project to include hydraulic fracturing of underground rock -it is not called "fracking" in the amendment.

This new type of project would then be subject to the IPC process but, equally importantly, it would have to have a national policy statement in which all these questions that I have been suggesting and more could be investigated, responded to, debated in the House and consulted on. We would all then have confidence that if this process could be done safely with minimum upset to local residents, it could go ahead on a national basis. If not, it will be in trouble. That is the purpose of my amendment. I beg to move.

Lord Jenkin of Roding: My Lords, it is right that the noble Lord, Lord Berkeley, has brought this matter back to the attention of the House. I have attended a number of lectures and presentations about the development of shale gas. As he said, it is perfectly true that there are substantial areas of shale several kilometres or more under the surface of this country, which could be, in appropriate circumstances, a source of gas for this country. However, a good many people have said to me, "But you would never be able to deal with this properly in a country that is as crowded and as fully populated as the United Kingdom".

It has happened in the United States-indeed, it is happening on a very substantial scale-but there are wide open spaces there. It is apparently likely to happen in Poland where, again, there are substantial areas where it could be done without interfering with the life of the normal population. But in the crowded areas of western Europe and the United Kingdom, there is a widespread view that this is not likely to happen.

I, too, have had correspondence from a farmer in west Lancashire who has written in terms of being extremely anxious about what is happening. Yes, we

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had the small earthquake outside Blackpool, which is perhaps a foretaste of what may come. But the real concern is the huge amount of surface activity that has to go on at regular intervals. There is a limit to the amount you can drill horizontally before you need to drill another hole down and have all the equipment and plant at the top to deal with it.

There is quite a movement now to say that there should be a moratorium on this until it has been examined a great deal more thoroughly. I do not know enough about it. The noble Lord, Lord Browne of Madingley, clearly regards it as very important: he is the chairman of Cuadrilla, which is the only company that I am aware of that is drilling so far in this country. One needs to treat this very seriously, as it is a serious prospect. If we could find an acceptable process for recovering very large quantities of shale gas, that would replace a lot of the North Sea gas, which appears to be coming towards the end of its life. At the same time, however, if there are enormous disturbances of local populations and communities because of a huge rash of surface activity, this solution would seem to be worse than the problem.

I do not know what the answer is-whether it is a moratorium, or it is simply sufficient to say that it will come under the NISP process. As I said to the lady who wrote to me, it is going to be jolly interesting to learn what the Minister says in answer to this amendment. All I know is that there is a widespread view that it is not going to catch on in this country for the reasons I explained a few moments ago. I look forward hearing my noble friend's response.

Lord Greaves: My Lords, this issue is closer to me than to other noble Lords, since the Bowland shale, which is the reserve of rock that potentially contains a large amount of methane, if it could be extracted in a sensible and safe way, underlies at a very great depth of some two miles or so a large amount of the Lancashire plain, and extends up towards Pendle Hill, where it is rather nearer the surface. Like other noble Lords, I have taken an interest in this and decided that I ought to find out something about it, as it is clearly extremely controversial. I have been doing just that, and I spent an extremely interesting three hours last Friday afternoon at the site at Banks in Lancashire where the firm Cuadrilla is currently drilling. Its employees showed me around, explained what they were doing and told me a very good tale. I listened and, like all very good tales, will assess it against all the other evidence in this particular case.

I have been deliberately trying not to take a view on the desirability of the extraction of shale gas until I discovered a great deal more about it. My current view is that the people who claim that this will be the answer for decades to the gas problems of this country are overegging their case a little bit, or quite probably a very large amount, but, equally, the people who claim that it would be the kind of environmental disaster in this country that it clearly has been in parts of the USA are also overstating the case. The regulatory regime in this country is very much stricter and more acceptable than the regime in the USA, particularly in some states of the USA. I doubt whether we will get

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the environmental devastation that has happened in some parts of the USA. I am told by Cuadrilla, although I cannot confirm it, that the famous picture which we have probably all seen on television of the water tap setting on fire was a result not of shale gas but of drilling into coal-seams. Even so, this clearly has to be taken extremely seriously indeed.

The licensing regime at the moment appears to be threefold. First of all, drilling for shale gas comes under ordinary petroleum exploration and development licences. Areas in which shale gas is currently being looked at have licences, issued in 2008 as I understand it, under that regime. It is a licence to explore and develop, but it does not grant planning permission or give the go-ahead even with planning permission. It is the first stage. The areas of this country where these licences have been issued in relation to shale gas include part of south Wales, where a different company, a British one I believe, is involved. I understand that there is also a wish to explore in a part of Somerset that has given rise to concerns in Bath about the spa waters.

The second stage is planning permission, which is what the noble Lord, Lord Berkeley, has been talking about. Planning permission is needed for exploration, and that is what is taking place in Lancashire at the moment. That planning permission was obtained from Lancashire County Council because in two-tier areas, the upper tier authority gives permission for mineral extraction. I have to say that, given the scale of the present exploration, it seems reasonable that the local planning authority, the county council in the case of Lancashire, should be in charge of this, although if it really took off, the points made by the noble Lord make a great deal of sense.

9.45 pm

The second thing needed in order to explore is to get consent from the Department of Energy and Climate Change. This is a separate consent in addition to planning permission. If you want to move on to commercial exploitation involving the extraction of the gas in order to sell it on, an additional and separate planning permission and an additional and separate consent from DECC are needed. So the consent regime is already quite complex. My view is that, given the scale at the moment, it is probably okay to leave this with local authorities, but just in the short term. That is because, as the noble Lord said, it is not just what happens underground that matters; it is also the infrastructure required above ground to get the gas into the mains gas distribution network or perhaps to turn it into electricity at the wellheads. That would clearly have a local impact and needs to be looked at.

I suggest that, as people learn more about it, this topic probably merits further debate in your Lordships' House separate from this Bill. It would be a useful exercise. I believe that central government needs to start to take an overall view on it because fracking for shale oil in different parts of this country and indeed in Europe, particularly in Poland, as the noble Lord, Lord Jenkin, said, is not going to go away. Given the increasing shortage of oil and gas resources around the world, and given the large-scale exploitation of

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shale gas in the USA, where it has contributed to a substantial reduction in gas prices, I repeat that it is not going to go away. For many of the reasons stated and others, extracting it in this country is going to be much more expensive than it is in the USA and probably in Poland because of our much stricter regulatory and planning regimes. Nevertheless, people are going to continue to want to do it.

As for a moratorium, if there is to be one it should be at the level of DECC consents to exploit. Continued relatively small-scale exploration is necessary in order to find out the facts, such as how much of this shale there is in different parts of the country. It is found in quite a few different areas, including places such as Surrey, I have to say, where it might well send the balloon up, no doubt filled with methane. The Government ought to have an overview of this, perhaps in the form of a national policy statement or something different. They need an overall view to determine, first, whether it is a desirable process; secondly, whether it has undesirable side-effects, even if it is properly regulated and controlled; thirdly, what the implications are environmentally for the areas concerned; and, fourthly, the matter of the potential contamination of water resources, which ought not to happen if it is done properly. However, that has happened in certain parts of the USA on a large scale. Lastly, the use of water is a major issue. All these issues need to be looked at if this is going to take off, because the worst possible thing would be for a relatively large amount of development to take place in a relatively economically uncontrolled way, and then for it to become a disaster. If it is going to be done, it has to be done properly, and I do not believe that it can simply be left to the market.

I hope that that is helpful. If noble Lords want some contacts in order to go and look at it themselves, I will happily pass them on. I do not know whether this will be the El Dorado of tomorrow-I suspect that it will not. Equally, I do not know whether it will be a total environmental disaster-I suspect that it will not. I suspect that it will be relatively small scale in this country, but even so it needs to be done absolutely properly.

Lord Lucas: My Lords, I was thinking, as that speech went on, what it would have been like if we had been discussing, a couple of hundred years ago, the idea of opening up deep-mine coal in northern England. I think we would have been rather more aware of the dangers and that the dangers would have been rather more real. Houses do fall down coal-mines from time to time; the idea that they could fall down a hole made by fracking gas two miles deep is really not tenable. I am very sad to say this, as an ex-member of both Friends of the Earth and Greenpeace, but there is a typical, current environmentalist film around called "Gasland", which, as far as I can establish, peddles nothing but lies, including that tap. If you drill a well through coal-seams you get gas out of it. That is not surprising, and methane is not exactly dangerous anyway. We are talking about a technology that, by and large, chucks household chemicals two miles deep. There is a chance of them coming back to the surface, but I am sure we will be careful about what we allow to be stuck down the wells.



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I am someone who, although I do not have the pleasure of living in Lancashire, has lived in the Hampshire oilfields. Noble Lords may remember that in the 1980s there was a nice little mini-boom in wells all over mid-Hampshire, which we suffered happily without any great effect. There was a month when the drills were busy and then you were just left with a hut. That is really what happens with shale gas; you have a well every half kilometre or so and you are left with a garden shed that produces gas. It is not exactly an environmental problem, other than the interference when the drilling is going on. I think this is something that we will deal with extremely well within the boundaries of our ordinary and sensible systems for dealing with potential environmental hazards and for planning.

In fact, the Bill will make things better, because one of the problems with such developments in the past has been that they have benefited the oil company, they have benefited the Government and benefited the landowner who is lucky enough to have the well drilled on his patch, but the local community, which has put up with the noise, the transport during the drilling and the continuing risk of something going on with the well, gets nothing. Under the Bill, of course-under neighbourhood planning-the benefit will be shared and that will be a great step forward.

Lord McKenzie of Luton: My Lords, if I understand my noble friend's proposition, it is that the hydraulic fracturing of underground rock will be brought within the national infrastructure projects regime, the planning regime that deals with major projects. I think that is central to what my noble friend is moving. We have had a wider debate about the potential importance of shale gas, what that might mean and the risks associated with it. It seems to me that we need a broader regime that encompasses all those issues: licensing regimes, as the noble Lord, Lord Greaves, said, not only to deal with exploration, but with exploitation as well. If there is to be no national infrastructure projects approach to this, then planning, presumably, is a matter for local planning authorities and, indeed, neighbourhood planning. That does not seem to me to fit well with something that is potentially of huge national significance, with potentially huge risks and uncertainties attached to it.

The noble Lord, Lord Greaves, said that this issue is worthy of a further debate. Perhaps when we have debated the NPPF to death we might turn our attention to it. I am a novice on this, but it is a fascinating and hugely important issue. I can remember when North Sea oil first opened up. It was a project on which I worked in my former life and I know some of the debate that went on around that. However, if I understand it correctly, my noble friend's proposition about the environment within which the planning ought to be considered is a straightforward one, and he makes a good case.

Earl Attlee: My Lords, Amendment 223B seeks to require the Secretary of State, by order, within 12 months of Royal Assent, to add hydraulic fracturing of underground rock, commonly known as "fracking", to the list of nationally significant infrastructure projects in Section 14(1) of the 2008 Act.



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The first exploration for shale gas in the UK has begun only recently. Fracturing has so far been used on one shale gas drill site in Lancashire but is currently suspended pending a geomechanical study into seismic activity.

The noble Lord, Lord Berkeley, raised some wider planning issues, but fracking is no more difficult or technical than other mineral extraction methods, and my noble friend Lord Lucas said as much. The noble Lord, Lord Greaves, covered some of the regulatory issues, and I shall not go over that ground again. My noble friend Lord Jenkin referred to a small earthquake. Of course he was actually referring to a seismic event, which is slightly different.

The amendment would require hydraulic fracturing to be added to the types of activity that are considered nationally significant. It is not necessary, however, to use this Bill for that purpose; a secondary power exists to achieve this. I am happy to undertake that this issue will be raised with my colleagues in the Department of Energy and Climate Change and, if it appears appropriate to the purposes of the Bill to add this type of activity to the list of nationally significant infrastructure projects, we will use the secondary power. On that basis, I hope the noble Lord will feel able to withdraw his amendment.

Lord Greaves: My Lords, there has been a great deal of discussion previously about thresholds and nationally significant infrastructure projects. Does the Minister agree that the question of thresholds may also be relevant in this case?

Earl Attlee: My Lords, I am sure my ministerial colleagues in the Department of Energy and Climate Change will take all relevant matters into consideration.

Lord Berkeley: I am grateful to noble Lords who have participated in the debate. It has been a good debate in which a number of different views have been expressed. The noble Lord, Lord Greaves, made a good point about thresholds. As I raised it in a previous amendment in respect of railway projects, I think it is relevant to learn from something that possibly went wrong before.

I am grateful to the Minister for agreeing to speak to his ministerial colleagues and, if appropriate, to bring this matter forward by secondary legislation. I am therefore pleased to withdraw the amendment.

Amendment 223B withdrawn.

Amendment 223C

Moved by Lord Greaves

223C: After Clause 129, insert the following new Clause-

"Notification of initiation of development etc

(1) In the Town and Country Planning Act 1990, after section 106C insert-

"106D Notification of initiation of development

(1) A local planning authority may require a person who carries out relevant development to inform the planning authority of the date on which they intend to initiate the development as soon as possible after they make a decision on that date.



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(2) A relevant development for the purposes of subsection (1) is one for which permission has been granted or for which a local development order, a neighbourhood development order or a community right to build order has been made.

(3) A local planning authority may apply the requirement in subsection (1) to all planning applications or particular descriptions of applications.

(4) A notice of planning permission or a community right to build order must where appropriate include a statement of the requirements of subsection (1) and section 171 and, where relevant, of section 106E."

(2) In section 171A of the Town and Country Planning Act 1990 (expressions used in connection with enforcement), after subsection (1)(b) insert-

"(c) initiating development without giving notice in accordance with section 106D,"."

Lord Greaves: My Lords, the amendment is a slight variation of an amendment that I moved in Committee and concerns the notification of the initiation of development. It is a development of the amendment suggested by the Royal Town Planning Institute which I put forward in Committee, and it has the support of the Town and Country Planning Association.

In Committee, I suggested that when development is initiated the developer should inform the local authority of the date on which it expects to start work in order that the local authority knows what is going on and can make appropriate checks if it wishes to do so.

10 pm

It was suggested by the Minister at the time that this was rather over the top as many authorities might not want to do it and that it would be a burden upon developers. The burden argument is grossly overstated. They already have to notify the appropriate authority, which might be the local authority, for development control purposes. In addition to that, if CIL is involved they have to make notification in relation to CIL, which will apply to larger projects, but not the very small ones. The amendment tries to take account of those objections by making it permissive:

"A local planning authority may require a person who carries out relevant development to inform the planning authority".

The authority can also make different rules for different classes of development. In other words, it would not be required for small developments, kitchen extensions, or whatever the authority thinks is a relatively small development. But it would be required for major and important developments, which would have a more important effect on the area, and where it may feel that having this kind of control is more important.

It was also stated in Committee that there was no evidence whatever that local planning authorities wanted this power. The RTPI has since then carried out a survey of its members in local authorities and it has come up with evidence that a substantial number of them would very much welcome such a power and believe it would help them in their work.

This is in many ways a watered-down amendment, but perhaps a more appropriate one, which would allow local authorities to do this but does not force them to. It was also stated in Committee that local authorities have this power anyway. This was news to various planning officers I spoke to. Where this does

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happen, it is done on a voluntary basis, which is not entirely satisfactory. If the Minister still believes that local authorities can do this, and can require such notification, it would be interesting to know under which legislation that takes place.

This is a sensible and modest amendment and it is one which would significantly improve the operation of the local planning system. I beg to move.

Lord McKenzie of Luton: My Lords, we are in total agreement with the amendment; indeed we should have added our name to it. I apologise for not having done that. One of the issues that was raised previously was about regulation, and if you have a new regulation then something has got to go. I would urge the Government not only to take on board this proposition but to look and see what might be gained by trying to streamline other notification procedures, particularly in relation to building regulations and notifications in respect of the community infrastructure levy. Why can these not potentially be combined into one notification procedure? So you have got two out, and only one in, on that basis. That notwithstanding, it does seem a very sensible proposition which we support.

Earl Attlee: My Lords, my noble friend's Amendment 223C is, as he has said, a simpler, more permissive version of the one he tabled in Committee. However, I regret to say that it still does not overcome the Government's concerns that this would add yet a further element of complexity and box-ticking to the application process for both the applicant and the local planning authorities and yet yield no practical benefit for local planning authorities.

In the March 2011 Plan for Growth, the Government clearly cited the problem of the cumulative additional cost to business of new regulations introduced since 1998. It is essential that reforms continue to reduce costs, delays and bureaucracy in the planning system and support the Government's collective approach to driving sustainable economic growth. Local planning authorities can, and do, ask for notification of commencement of development when and where they think it necessary. A developer failing to notify the local authority that the works had commenced would not be a good start to the relationship between them.

My noble friend may argue that an administrative scheme has no teeth if the developer does not return the form but the Government's view is that new Section 106D, to be inserted by the amendment, would have no teeth either. Making the commencement of development without giving notice a breach of planning control implies that enforcement action could be taken. However, the point of enforcement action is to remedy breaches of planning control. Once development has started it will no longer be possible to give prior notice, so the breach could not technically be remedied and enforcement action would be ineffective. If it turns out that the developer has failed to comply with pre-commencement conditions as well as not giving notice, then the local planning authority can take such action as it sees fit, perhaps by serving a breach of condition notice.



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The Government's view is that this amendment will inject additional complexity into the planning process yet provide little practical benefit. I invite my noble friend to withdraw his amendment.

Lord Greaves: I do not know whether the Minister incites me to call a Division but I will not do so at this time of night. I can see my Chief Whip in his place, who might not be very pleased by that and I do not want to fall out with him.

The Minister made some good points. On reflection, the amendment could be further simplified, particularly by the removal of the last four lines. There is a problem. The Minister wants to reduce the amount of bureaucracy on the part of local planning authorities. At the moment, particularly on major developments where there is concern about whether the development has started, the authority sends people round to find out and look on site or ring people up. That takes time and effort.

It is really six of one and half a dozen of the other. On the local planning authority side, this would not make much difference at all. However, I am sorry that the Government will not accept this. They will not accept everything that I put forward in the Bill. I beg leave to withdraw the amendment.

Amendment 223C withdrawn.

Clause 130 : Applications for planning permission: local finance considerations

Amendment 223CA

Moved by Earl Attlee

223CA: Clause 130, page 123, line 4, at end insert-

"(5) The amendments made by this section do not alter-

(a) whether under subsection (2) of section 70 of the Town and Country Planning Act 1990 regard is to be had to any particular consideration, or

(b) the weight to be given to any consideration to which regard is had under that subsection."

Earl Attlee: My Lords, your Lordships will recall our helpful debate in Committee on this clause, when we dealt with an array of issues. I shall give a brief reminder of the key points before moving on to the amendments now tabled and the issues that I understand still worry some noble Lords.

I start by reiterating the Government's purpose here. As my noble friend Lady Hamwee noted in Committee, the issue of local finance incentives and planning decisions was made topical by the new homes bonus, or NHB. When we consulted on that scheme, uncertainty was expressed about its relationship with planning. The CPRE was concerned enough to seek a legal opinion, which implied that the scheme might taint the planning decision-making process. The supposition was that the scheme might encourage local planning authorities to take non-material considerations into account when determining planning applications for new homes.



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The CPRE is right to keep a keen eye on this issue but in some instances its press releases and briefings have unnecessarily added to the sector's confusion and alarm. It has raised fears that that NHB will undermine the planning system and result in,

and result in any local decision in which a local finance consideration were taken into account being,

The clause itself, which the Government prepared in an attempt to ensure that local finance consideration would not be taken into account in inappropriate circumstances-in other words, to address the CPRE's core concern-has been branded as,

and as a temptation for local planning authorities to,

All such claims, though doubtless borne of genuine concern, are based on a false premise about the effect of the clause. As such they are rather misleading. To be clear, the clause simply restates the existing legal position, confirming for the avoidance of doubt that, like any other consideration, a matter such as the NHB or CIL must be taken into account if they are material to the planning application under consideration.

Inevitably, the CPRE activity on this issue has not helped the confusion already apparent in the sector, evidenced, for example, by the London Borough of Islington which, in its response to the NHB consultation, said:

"The government should make it clear whether NHB can be taken into account as a material consideration when determining planning applications".

It was precisely to address this confusion and to give a clear and lasting reminder that local finance considerations should be taken into account only where they are material in the long-understood sense-in line with case law-that Clause 130 was prepared.

It is clearly untenable to allow confusion to linger, particularly within the bodies responsible for making planning decisions. As I said in Committee, this would undermine the planning system's integrity and affect public confidence. Making the legal position more clear should reduce the risk of local planning authorities being accused of letting financial incentives improperly influence their decisions and so facing legal challenges to their decisions.

In Committee, my noble friend Lady Hamwee asked why the necessary clarification could not be given in guidance. As I indicated at the time, we thought carefully about the option. However, the Government concluded that with confusion on this legal and technical issue so prevalent, the only responsible option was to bring the desperately needed clarity to the fore by using the Localism Bill.

Given the significant accusations the CPRE was asserting, the consequent confusion that local planning authorities were faced with, and the grave risk which that confusion posed to the proper operation of the planning system, we felt it essential to clarify the position and clear up the confusion in law. Using the Localism Bill presented the most immediate and visible

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way to set the record straight on this important message. As the confusion concerned the legal position it made sense to use legislation to clarify the point and provide councils with reassurance on what they should and should not legitimately do.

It may be helpful if I remind the House of the tests for a material consideration. I know some noble Lords remain uncertain as to the circumstances in which the NHB or the community infrastructure levy might be material to a particular planning decision. Current statute confirms that in determining planning applications regard must be had to the development plan so far as it is material to the application and to any other material considerations. Statute does not define what a material consideration is but clear tests for materiality have been developed through case law.

10.15 pm

The classic statement is to be found in Stringer v Minister of Housing and Local Government. It states:

"Any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration falling within that broad class is material in any given case will depend upon the circumstances".

In order to be material, therefore, a consideration must relate to the use and development of land and to the planning merits of the development in question. These tests apply to all considerations, financial or otherwise, and are not altered by the clause.

Clause 130 clarifies that regard should be had to,

What this means in practice is that regard should be had where, and only where, the case law tests on materiality are satisfied; that is, where the local finance consideration in question relates to the use and development of land and relates to the planning merits of the development in question.

I am conscious that concerns were expressed in Committee that the clause as drafted might do more than this. There were suggestions that it might elevate the status of financial considerations above others; threaten the probity of planning; send a message that under the new system planning permissions can be bought and sold; allow financial inducements that are irrelevant to the merits of a particular development proposal to be material; and similar horrors. We took these concerns very seriously. We have taken all possible steps to ensure that the clause absolutely does not have the potential to result in such unintended consequences, and we have been consistently reassured on these points. Although it is not customary for Government to share their legal advice, perhaps it is opportune and helpful to do so on this occasion. I can categorically confirm that the Government are in no doubt that the clause as drafted does not represent any change in the current law whatever. It is declaratory of the current law, which is that where local financial considerations are material to a planning application they should be taken into account in the determination of that planning application.

Furthermore-this is of direct relevance to the concerns raised previously by noble Lords-the Government are absolutely certain that the clause does not require greater consideration to be given to

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local finance considerations than to any other material consideration. The decision-maker retains the discretion to determine the weight to be attached, subject ultimately to the supervision of the court. To reiterate: the Government are confident on these points. However, we do not wish to dismiss the understandable and well meaning concerns of noble Lords. We have not just blithely continued on our way without reflecting very carefully on the issues raised. Instead, we made a genuine commitment to consider further the wording of the clause to ensure that it is absolutely clear that apportioning weight remains a matter for the decision-maker. As noble Lords can see, we have now fully honoured that commitment and have brought forward an amendment which should put noble Lords' concerns completely beyond doubt.

As noble Lords will see, Amendment 223CA makes it absolutely explicit that the new reference to local finance considerations does not affect the weight to be given to any particular consideration. We have provided even greater reassurance by additionally confirming that the clause does not alter whether regard is to be had to any consideration. Apportioning weight remains a matter for the decision-maker. It may assist your Lordships if I give some simple examples to illustrate when matters relating to the NHB or CIL are likely to be material or not. In Committee, I used examples relating to new housing developments and the funding of improvements to commuter links. In the interests of variety, I shall use a different scenario. Take a situation where NHB and/or CIL moneys pooled by an authority will help fund new flood defence measures. In determining an application for a major housing development within the area to be protected, the fact that the scheme would generate funds to support the provision of the necessary defences would be material: it is clearly relevant to a planning issue arising from the proposal at hand. What, though, if the new proposed development would take place elsewhere, on land not at risk of flooding? The development would still result in moneys which would help fund the flood defences and this would still be a reasonable use of the funds. However, the provision of flood defences would not be material to the determination of the planning application.

Put simply, the crucial issue is not the nature of the policy instrument that results in funds being accrued, whether or not the Government require authorities to ring-fence funds for a particular use; it is whether at the local level there is a commitment to spend those funds on something that relates to the development and use of land and the planning merits of the planning application that is being considered. In practice it is likely that CIL will be more material in more instances than NHB. This is a natural consequence of the fact that authorities are free to spend NHB funds as they see fit while CIL must be spent on infrastructure needed to support the development of the area.

Of course, where regard is to be had to NHB or CIL, the local planning authority will need to be confident at the planning decision stage that the funds will be used to deliver the infrastructure anticipated. It will be for the charging authorities concerned to put adequate safeguards in place to ensure that the funds are spent appropriately and for the local planning authorities to be satisfied that the developments will

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be acceptable in planning terms, having regard to any relevant infrastructure that they can legitimately expect to be provided by the charging authority. Of course, none of this fetters the ability of an authority to choose not to spend its NHB moneys on matters relating to specific developments. The funds could, for example, be distributed as funds to local communities to spend as they wish. This would be a legitimate use of the funds, but in such circumstances the funds will notbe a material consideration in planning decisions.

I now turn to Amendment 223D. This amendment, tabled by my noble friend Lady Parminter, proposes that Clause 130 be withdrawn from the Bill. We have been clear that the clause does not alter the law but merely clarifies a topical point of confusion. Noble Lords may well ask, therefore, why the clause needs to remain in place. The simple answer is that having come so far in clarifying the question of when a local finance consideration should and should not be taken into account, it would be regrettable indeed to throw this matter back into doubt. Withdrawing the clause would not change the law. It would remain the case that decision-makers must have regard to any local finance considerations that are material to the planning applications that they determine, but there would be no clear reference in statute to this point. I hope that I have left your Lordships in no doubt that, irrespective of whether we are all in agreement that the clause is essential, we can at least be clear that it does no harm. I beg to move.

Baroness Parminter: My Lords, I rise to speak to Amendment 223D. As we know, this clause, which outlines that financial considerations can be material to a planning application, was added in the Commons as an incidental measure for clarification. As the noble Earl, Lord Attlee, indicated, the Government have argued that it is the new homes bonus that has necessitated such clarification. However, by using statute rather than the traditional route of guidance, the Government are undoubtedly creating further uncertainty.

The clause elevates financial considerations above all other legitimate planning considerations, which are not mentioned here or anywhere else in statute. As such, the courts will be used to decide just what Parliament means by putting financial considerations up front as a material condition. While the government amendment goes some way to try to tackle that ambiguity, there still remains a lack of clarity about when such financial considerations could be considered material. Until now, case law has determined whether or not a financial consideration is material. Over time that has been determined as it being necessary to make the development acceptable in planning terms, directly related to the application and fairly and reasonably related in scale to the application. On Report in the Commons the Minister gave an example of materiality which related to a road scheme that accommodates a development-a direct link between the use of the money and making the application acceptable in planning terms. Further, in the Government's response to the consultation on the new homes bonus in February this year, they stated that the new homes bonus could be lawfully taken into account as a material consideration,



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My noble friend Lord Attlee gave a useful example of such a direct link. However, this key point about the direct link is not made at all in the clause or the government amendment. This direct linkage is what case law has determined makes a financial consideration material, and it is a fundamental principle-to me at least-that guarantees the probity of planning. The Minister has made much of the CPRE opposing this clause. However, it shows skill on the part of the Government to unite the CPRE, TCPA and RTPI in opposing this clause and government amendment.

Without that clarity it can be read that financial inducements that are irrelevant to the merits of a particular development proposal can be material in determining planning applications. It is just such a lack of clarity that the noble Lord, Lord Jenkin, rightly raised earlier when he talked about the changes around the use of the community infrastructure levy. It is quite clear that guidance will have to be issued to local authorities on how government incentives are intended to influence planning and how this will work in practice. If further clarification is needed on the relationship between financial considerations and considering planning applications, as the Government say it is, then cover that alongside government guidance about the workability of these incentives. That would avoid further legal wrangling over what Parliament intended to say by this clause. I beg to move.

The Deputy Chairman of Committees (Lord Faulkner of Worcester): The House is debating government Amendment 223CA, with which Amendment 223D is grouped. Therefore the noble Baroness is not able to move that amendment separately.

Baroness Hamwee: My Lords, I think that my noble friend realised that when she started to speak. Some things become automatic as the evening goes on. I support my noble friend, who has made a very powerful case, as she has done on previous occasions.

I thought that I might be able to say tonight that the Lady at the Dispatch Box doth protest too much, but I suppose that Earls can protest too much as well. I find that as this debate goes on, the hole that the Government are digging is getting deeper and deeper. The position is not being improved by further re-emphasis. Can you have further re-emphasis? I think that we have got to that stage now-we are up to about three lots of emphasis. By adding this amendment, which says the same thing again, I become more and more concerned.

I do not want to repeat points that my noble friend Lady Parminter has made. However, the clause must mean something. It must mean something not otherwise provided for. I find it quite puzzling that the Government take the view that they need to use primary legislation to bring the matter, in the words of the noble Earl at the last stage,

I really do not believe that concerned parties need primary legislation to have this and the answer to it brought to their attention. The noble Earl told the House he thought that it would always be helpful, but

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it is not the practice, for legal advice to be shared. I asked innocently-it was not intended to be disingenuous, but probably sounded it-if we could have sight of the legal advice. I do not want this to sound ungrateful, but what we heard from the legal advice was not helpful, having got to this stage. We did not hear argument; we heard assertion. I am sure that it was not unsupported, but what was shared with the House was simply assertion.

Finally, the noble Earl talked of this certainly doing no harm. My fear is that it will do harm because it must be interpreted as meaning something that has not been the case hitherto. I support my noble friend.

10.30 pm

Lord Howarth of Newport: My Lords, it is ironic that the Government's attempt to clarify the purport of the existing law has led to large-scale confusion and anxiety. While I was enormously relieved to hear what the noble Earl said, and absolutely accept that that is the appropriate interpretation of the provision, none the less, since he also said that the addition of this clause and the amendment that we are debating to the new clause that the Government brought in at a late stage in Commons proceedings does not do anything to change the law, would it not be better to withdraw the clause and issue guidance to clarify, for anyone who may be in doubt, what the existing law means? That would be helpful. Of course, those who attempt to construe the law and the Government's intentions will take careful account of what the noble Earl said on the record this evening. However, it would be better to remove the clause, clarify the law as it is and allow everybody to settle down and get on with the work that they need to do.

Lord Jenkin of Roding: My Lords, the Minister deserves complete support. When we debated this in Committee, I made the point that the clause did not change the law at all. My noble friend made this clear and stated that there had been confusion, which the amendment was designed to remove. The noble Baroness, Lady Parminter, spoke eloquently. Her noble friend Lord Greaves suggested that perhaps, in order to remove doubt, it might be helpful if the Government could clarify the extent of the clause and explain that it did not put financial considerations above all others, but that it was entirely for the planning authority to determine what weight should be given to them. That has been done. I find myself very unsympathetic to the argument advanced by my noble friend Lady Hamwee that by going on and trying to make this clear, my noble friend is digging himself deeper into a hole. That is very unfair. He recognised the concerns that were expressed in Committee and moved an amendment that puts the matter beyond doubt. He deserves complete support.

Baroness Hamwee: Perhaps I may clarify that I am not suggesting that the hole is of the noble Earl's making.

Lord Greaves: My Lords, that reminds me of a song about digging a hole, but perhaps we should not go into it. In Committee, I attempted to search for a compromise on this and to help the Government to

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clarify what they were saying. I spend a lot of time trying to do that on Bills. The Government should be congratulated on and thanked for the huge amount of time and effort that was put in by Ministers and their civil servants in the Bill team, and by their ministerial colleagues in the House of Commons, to try to sort out a bit of a mess-perhaps more than a bit of a mess-that has resulted from what some of us would say was the rather hasty addition of this clause at the end of the procedures in the House of Commons. They made a huge effort, and I have no doubt that the amendment moved by the noble Earl is an improvement. It helps a bit. My noble friend says that it takes him further into a hole, but I am not sure that that is the case; it probably keeps his head above water. However, it is our clear view after reflection throughout the summer that far and away the best thing to do would be to remove the clause altogether. That is why I support the amendment eloquently spoken to by my noble friend Lady Parminter.

I want to make a couple of points-and one point in slight jest, which I will make now. My noble friend Lord Attlee said that one argument for accepting that this clause should remain is that it does no harm. I must say that I am so used to Governments telling us that amendments that we put forward may not do any harm but are not necessary that I think the boot is on the other foot now. Every time I move an amendment, while the noble Lord is taking the clause for the Government I will look forward to reminding him that my amendment does no harm and therefore should be passed with acclamation.

I would like to make two serious points. There is a very clear difference between CIL and Section 106, for example, which are themselves tied to an application and cannot be untied in any way, and the new homes bonus, which is not tied to a particular application and can be tied, as I think my noble Friend, Lord Attlee, said, only by a clear decision, a resolution presumably, of the council that will receive the new homes bonus. That is the real difference. The noble Earl said quite clearly that it can be taken into account only if it is tied to the application by the receiving council.

I have been thinking about this. In a possible case study, which may happen more often than people might imagine, a big development may result in a lot of new homes bonus and a significant amount of money coming to that council. The use of that money might be politically controversial and contested within the council. In advance of that money coming, the council, the executive, the cabinet, or whoever it is that makes decisions about its allocation, might corporately pass a resolution that makes it quite clear that when it comes, and if planning permission is given, the money will be tied to a project linked to that development. However, it is controversial and the opposition on the council does not agree to it and campaigns against it. Then there are some elections and the opposition wins them, and this large amount of money is taken out of that project and put somewhere else. Once a planning decision is made and issued, that is it; it cannot be revisited by the council. However, decisions about how to allocate money can be revisited whenever the council wants to revisit them. What happens if the development is clearly given on the basis, say, of flood damage or a

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new swimming pool in the middle of the estate that is linked to that development, and planning permission is passed and the council later changes its decision about how to use that money? They might have a huge budget crisis. Perish the thought that any council has a huge budget crisis nowadays, but if does have a huge budget crisis, the council may find that it simply has to put this money into the general fund in order to keep its head above water. It is quite clear that that could happen. What is the legal position? I do not believe that anybody can do anything about it, except that that planning permission will have been given on false pretences.

Lord Best: My Lords, I think the government amendment does something helpful. Councillors on planning committees have to face the accusation, if they are not careful, that they are selling planning consents, that they are just doing it for the money. There is ambivalence as to whether they can take on board the fact that it is surely important to consider that the local community may benefit financially from what happens if the development goes ahead.

The Minister has clarified the circumstances in which it is entirely legitimate for the planning committee to say, "Yes, we have taken on board the fact that there are financial gains for the locality as a result of this. It is not the only thing we take into account. It has no greater weight than the other material considerations. The fact that local people are going to benefit from this"-as the noble Earl made so clear-"can be taken into account, but don't let anybody accuse us, the planning committee, of just doing it for the money. We're doing something that is legitimate", as this clause makes clear. I think it can be quite helpful.

Lord McKenzie of Luton: My Lords, I speak in support of Amendment 223D to leave out Clause 130 and in support of the noble Baronesses, Lady Parminter and Lady Hamwee, my noble friend Lord Howarth and the noble Lord, Lord Greaves. To argue that these amendments are unnecessary and that this clause is necessary because it addresses the issue of confusion seems to be turning the matter on its head. We know there is confusion because the clause exists. The noble Baroness, Lady Parminter, said that it takes something to get the CPRE, the TCPA and the RTPI in the same position and all very concerned about this. They do not arrive at spurious conclusions. They have impressed on us and all noble Lords their real concerns about the impact of these provisions.

The noble Lord, Lord Best, said that the provision helps councillors understand what they can and cannot do. The Government's basic proposition in this is that the clause does not change the law. If the clause does not change the law, why have it? The proposition that noble Lords, particularly the noble Lord, Lord Greaves, referred to-that it does no harm-is an extremely spurious basis on which to legislate, particularly in such an important area. I accept that the Minister made some effort to differentiate situations where material considerations-local financial considerations-can legitimately be taken into account from those where they cannot, but that analysis does not depend upon the clause and the amendments before us but upon the law as it currently is. Are we not much better

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off leaving the law as it currently is rather than introducing something that does not, with great respect, clarify matters but adds to the confusion?

The very existence of the clause, amended or not, has caused great controversy. What changes the existing position? How does the new homes bonus or CIL change, from the Government's point of view, and to what extent can it be taken into account as a material consideration? As I understand it from the Minister, nothing changes. All it does is describe the law as it is. If that description is the cause of confusion and uncertainty, surely we are better off without it. It seems a very straightforward proposition. It seems to me that the onus should be on those seeking to introduce and sustain the clause as amended to explain why. To say that it does no harm is a totally inadequate justification for a provision that is causing great consternation among many people involved in planning, who are experts and who have been in the field for a very long time. I urge the Government to reconsider this matter. If the only justification for the clause is that it will help to deal with uncertainty, I hope the Minister will accept just from the discussion tonight that in many quarters it clearly does not and that we are better off without it.

10.45 pm

Earl Attlee: My Lords, I feel slightly disappointed that I have not managed to convince all noble Lords of my position. However, I do not feel in the slightest that I am in a hole. I am entirely comfortable with Clause 130 and the Government's position. It was mentioned that this was introduced as an incidental matter in the House of Commons. Your Lordships are quite used to matters being sneaked into a Bill in the other place and then coming to your Lordships' House for detailed scrutiny, which is exactly what we are here for.

The noble Lord, Lord Howarth, discussed my assertion that the Bill does not change the law, but my contention is that the clause is essential. On my point that it does no harm, the harm has been done by opinions that have muddied the waters in the past with regard to the NHB, and therefore it was necessary to introduce Clause 130. My noble friend Lord Greaves raised the issue that we need to be sure that the money will be tied to a project. In his expert case study, he described a situation in which the political landscape could change. The CIL-charging authority will need to be sure that it will spend the money in the way anticipated at the planning decision stage. If not, and things change, it may be challenged on the grounds of legitimate expectation. The local planning authority and the CIL authority will need to be sure that the money will be spent in the way anticipated.

I gave the House a very detailed exposition of my position and we have had an excellent, thorough and useful debate on this clause. I must thank my noble friend Lord Greaves in particular for highlighting the scope for the clause to be made clearer on the point of weight. In light of what I have said, the House can be confident that the clause poses no threat to the fair and proper operation of the planning system. I hope your Lordships are now happy, if a little reluctant, to

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support Clause 130 and the important elucidation it brings to the question of when local finance considerations can be taken into account in planning decisions. With the further refinements made by the Government's amendments, it is not clear to me that there is any problem left to solve. I hope, therefore, that my noble friend Lady Parminter will feel able to withdraw her amendment at the appropriate point and support the Government's amendment.

Amendment 223CA agreed.

Amendments 223D to 227 not moved.

Amendment 228

Moved by Baroness Gardner of Parkes

228: After Clause 130, insert the following new Clause-

"Development on green belt land

The appropriate planning authority may grant planning permission for development involving infilling on green belt land (within the meaning given by Planning Policy Guidance 2: green belts) if on that land sufficient infrastructure and services exist as to make the development reasonable."

Baroness Gardner of Parkes: My Lords, I discussed this amendment to a certain extent at an earlier stage. Therefore, I do not feel I need to say very much, especially so late at night.

The reason for tabling it is that there are little pockets of between two and five acres in between lots of other houses and buildings. I know of some that are described as green belt and are so listed and yet there is a conference centre next to them and huge buildings around them. To my mind, those are infill sites. I do not know the government ruling as to what exactly comprises an infill site, but it seems to me that if you have a small patch of land, whatever its classification, it is not really green belt if it is just a little bit in the middle of places. Yet it might already have all the infrastructure of transport, electricity and the things that are needed for development, and could provide a valuable space for either a children's home or housing or something of that type. It is for that reason that I move this amendment.

Lord McKenzie of Luton: My Lords, the issue of green belt is one of those matters which has caused great consternation. Obviously, we will have to await the final version of the NPPF. Of course, it is not for me to defend the NPPF in its current form, but as currently drafted it seems to address what the noble Baroness is in part seeking. The NPPF states that:

"A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are: limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; or limited infilling or the partial or complete redevelopment of previously developed sites".

That is envisaged within the NPPF as I understand it.

In terms of the infrastructure, it is not always right that the services and infrastructure exist before, rather than being provided as a consequence or as part of, the development. I understood that it might be implicit in the noble Baroness's amendment that it needed to be there before, rather than arising as an alternative.

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Therefore, I struggle to support the amendment in its current form. But the issues around development in the green belt are very important. We need to track what is going to happen and what the final version of the NPPF will be.

Earl Attlee: My Lords, my noble friend's amendment seeks to allow infilling on green belt land if,

This test is not related to green belt policy, which is about preserving openness, preventing the unrestricted sprawl of built-up areas and preventing the merger of towns. You could well have land with sufficient infrastructure, but allowing development on it would put at risk the key principles of the green belt policy. In any case, the law already requires determinations under the Planning Acts to be made in accordance with the development plan,

Infrastructure is one of the material considerations routinely taken into account by decision-makers in planning cases.

As observed by the noble Lord, Lord McKenzie, the draft national planning policy framework contains the Government's proposed policies on planning, including the green belt. It includes exceptions, set out in a similar way as current green belt policy, for certain categories of development. For example, it allows for the re-use of buildings, and the extension or replacement of dwellings. It also provides for the infilling or redevelopment of previously developed sites. I believe that these policies provide the flexibility to achieve the outcomes which my noble friend is seeking.

Given that current national policy has delivered a strong level of protection, I do not think it appropriate to make changes to green belt policy through legislative means. If changes are required to green belt policy, they should be carefully considered as part of the ongoing consultation and, if appropriate, taken forward through the framework. I hope that my noble friend will feel able to withdraw her amendment.

Baroness Gardner of Parkes: My Lords, it seems to me that the policy has always existed about being able to use infill sites. The real debate is: what is an infill? I remember the case of Little Paddock in Pinner from when I was on the Greater London Council. There were huge rows which went on for a period of a year or so about whether it was an infill. I do not know how it was eventually decided other than that eventually someone was allowed to build on it. Whereas in other cases I have met, people have been told, "Oh, well this has been a little smallholding, so if you put a barn on it, and you make it possible to live in the barn, you'll be able progressively to convert it", in the way that the Minister has just said, saying that you can rebuild and change things slightly. That seemed to be such a false way of allowing it, to have a creeping development into this infill site.

As I said, I have known some that were described as not being infills being definitely described as green belt even though there were huge conference centres adjoining them. It is a question of this

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definition of infill, which I hope can be clarified in due course. Meanwhile, I beg leave to withdraw the amendment.

Amendment 228 withdrawn.

Amendments 229 to 231 not moved.

Amendment 232

Moved by Lord Best

232: After Clause 130, insert the following new Clause-

"Town and village green legislation

(1) Regulations may make provision relating to powers for registration authorities to decline to accept proposals under section 15 of the Commons Act 2006.

(2) The regulations may in particular make provision-

(a) dealing with any case of proposals submitted under section 15 of the Commons Act 2006 where in the view of the registration authority insufficient evidence has been submitted or there is strong evidence that the application could not meet the criteria for registration; and

(b) dealing with costs incurred by the registration authority in amending or dismissing the application in cases of frivolous or vexatious proposals.

(3) Regulations may make provision relating to powers for registration authorities to reject proposals accepted under section 15 of the Commons Act 2006.

(4) The regulations may in particular make provision-

(a) dealing with any case of proposals accepted under section 15 of the Commons Act 2006 and which are subsequently deemed in the view of the registration authority to be frivolous or vexatious;

(b) as to the award of costs to relevant parties and as to the parties by whom the costs are to be made.

(5) In subsection (4), an application is "frivolous or vexatious" if it discloses no reasonable grounds for the application or is otherwise an abuse of process.

(6) Section 15(4) of the Commons Act 2006 does not apply in relation to any land where there is an extant planning permission in respect of the whole or any part of the land for the life of the permission."

Lord Best: My Lords, I shall be brief as we had an interesting debate on this issue in Committee. Amendment 232 relates to vexatious town and village green applications. There is a widespread view that, under the Commons Act 2006, the measure allowing areas that had been used for sporting, leisure and recreational use to be declared village greens and never to be built on, a status that would last in perpetuity, was being abused and being used as a pretext for stalling and blocking developments that in other terms would have succeeded. It is a very cheap way to stop anything happening. It costs those who do it very little. I quoted the example of the 50 acre site for which I was responsible on the edge of York, which was held up for a considerable period of time because someone was deemed to have walked their dog on the site for 20 years. I think that the dog was changed somewhere along the way. Even if the application fails, this can inflict a great deal of damage, delay matters and cause a lot of expense.

As I understand it, the Government are seized of all this, for which I am very pleased, and consultation is under way to see what might be done. The problem is that this consultation exercise concludes that action should be taken to prevent vexatious applications of

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this kind. As my amendment suggests, local authorities should have the power to turn down applications that they deem to be frivolous or vexatious, but that the Government will come to that conclusion at the end of a consultation period after the Bill has completed its passage through Parliament. There will be no opportunity until the next legislation comes along-in I do not know how many years-to set this one straight.

I ask the noble Earl on the Front Bench to let us know what the Government are expected to be able to do through regulations or other methods so that we do not find ourselves in the bind that without any legislative amendment nothing can happen, even though all are agreed that it should. I beg to move.

Lord Greaves: My Lords, because of the time of night, I shall make a couple of statements rather than explain them. This is not the right Bill or the time to do this. It probably does not require any amendment to Section 15 of the Commons Act. It can be dealt with in two ways: first, local authorities can pull their fingers out and not be unnecessarily legalistic and bureaucratic, which in my experience they have been; and, secondly, by tweaking secondary legislation. It is not necessary to do it here. The problem can be solved in a much more efficient way in secondary legislation through Defra.

Lord McKenzie of Luton: My Lords, I support the noble Lord, Lord Best, in what he seeks. The noble Lord, Lord Greaves, says that this is not the right Bill. It may be that it is not appropriate to put something in primary legislation but, surely, it is absolutely pertinent that we discuss it in the context of the Bill before us. It cannot be outwith the thrust of this Bill, given the whole range of stuff that is encompassed in it. I think that the noble Lord is simply seeking clarification of what the Government intend, what they propose to do, and when and how they propose to do it. If it is in secondary legislation, that is fine, but clarity is needed.

11 pm

Earl Attlee: My Lords, I am grateful to the noble Lord, Lord Best, for moving his amendment again as the matter has moved on a little. Amendment 232 would provide regulation-making powers to allow commons registration authorities to decline new greens applications if there was insufficient evidence that they could meet the necessary criteria, or if they were frivolous or vexatious, and to award costs. It would also prevent applications for the registration of land on which use for sports and pastimes ceased before 6 April 2007 if the land was subject to planning permission.

The Government share the concerns lying behind the amendment about the way in which the new greens registration system is being used in some cases to hinder legitimate development. I said in Committee on 14 July that the Government hoped to make an announcement on town and village greens shortly. On 25 July, we published a consultation document proposing reforms to the new town and village greens registration system. Coincidentally, that consultation closes this evening.



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The noble Lord, Lord Best, asked what can be done through regulation. Through regulation, we can consider streamlining the process for registering greens and setting the fees. The consultation includes a proposal to rule out applications for land which is subject to a planning application or planning permission. This would address the purpose of subsection (5) of the amendment. It also includes a proposal to rule out applications for land which has been identified for development or protected by the local green spaces designation in a local or neighbourhood plan. There is also a proposal to introduce fees for applications.

Commons registration authorities already have the power to reject new town and village green applications that are incomplete or lack the requisite evidence for registration. However, a specific power to deal expeditiously with such matters will provide an increased level of confidence to authorities. For that reason, we have proposed to streamline the sifting process. My noble friend Lady Byford and the noble Lord know that we are still consulting on our proposed reforms, though the deadline fast approaches-in fact, it is tonight. I am sure that they will appreciate how those who have responded to the consultation would feel if we were to legislate now in the manner suggested, without, it would seem, hearing their views on the options we have set out.

I have made it clear that the Government share the concerns of my noble friend and the noble Lord. As the Minister for the Natural Environment and Fisheries said in his introduction to the Government's consultation, we plan to announce our conclusions early in the new year. We will want to work with my noble friend, the noble Lord, Lord Best, and with others with an interest in taking these conclusions forward. In the mean time, I would prefer not to second-guess what those conclusions will be without having first carefully digested the response to the consultation.

Lord Best: My Lords, I think there is some helpful material within that. There are still 58 minutes in which people can give their responses to the consultation document. I am grateful for that response. We will be able to look at it at our leisure. I beg leave to withdraw the amendment.

Amendment 232 withdrawn.

Amendment 232ZA

Moved by Lord Reay

232ZA: After Clause 130, insert the following new Clause-

"Determination of appeals

(1) Section 79 (determination of appeals) of the Town and Country Planning Act 1990 is amended as follows.

(2) In subsection (1), at the beginning insert "Subject to subsection (1A),".

(3) After subsection (1) insert-

"(1A) The Secretary of State may only overturn a local planning decision if-

(a) the Secretary of State has reason to believe the decision is unlawful;

(b) the Secretary of State has reason to believe that due process was not followed; or

(c) the proposed development does not contravene materially the local development plan.""



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Lord Reay: My Lords, this is a simplified version of an amendment which I moved in Committee. The idea behind it is to remove the right of the Secretary of State to overturn local planning decisions where these have been taken in accordance with the local development plan. Under the amendment, the Secretary of State would be able to overturn a local planning decision on appeal only where the decision had been to refuse permission for a development which was compatible with the local plan, or where the local authority had acted unlawfully, or where due process had not been followed. Where the local authority had refused permission for a development that contravened the local plan, the Secretary of State could not find in the developer's favour on appeal.

The aim is to redress the balance in the planning process to a small degree, so that developers do not have an entirely unfettered right of appeal. This has led to powerful developers-or, in the case of wind farm applications, to developers with the intoxicating whiff of enormous subsidies in their nostrils-wearing down local authorities and local resistance by systematically appealing every decision that goes against them. By linking the rights of developers and the powers of the Secretary of State to the local plan, the amendment goes some way down the road that the Minister in another place once said he wished to follow, of making the local plan sovereign. The amendment would reduce the scope for developers to ram through unpopular proposals against the wishes of the local community as expressed in local plans. It has the support of the CPRE, which had a large part to play in its drafting.

I also strongly support Amendment 232ZB, tabled by my noble friend Lady Parminter, which would introduce a community right of appeal. This was the policy of both the Lib Dems and the Conservative Party before the last election. Since then, they seem to have invented the doctrine that it is the planning system that is responsible for the failure of the economy to grow faster than it has, and that nothing new must be introduced which could possibly provide a further obstacle to development. I do not think that my noble friend's amendment is any different from the one she moved in Committee. She has been careful to circumscribe the circumstances in which an appeal can be made so that not any Tom, Dick or Harry can appeal whenever he likes.

I agree with the terms in which my noble friend has cast her amendment, with one exception. I am not convinced that whether an appeal can go ahead should depend on the position taken by the planning officer. In my noble friend's amendment, the planning officer has to have recommended refusal of planning permission before any appeal against a local authority's decision on the part of the local community can go forward. This seems to be too restrictive. But, even as it is, I would prefer the Bill to contain this amendment.

There is not much localism in the Bill now. Nothing would do more to restore meaning to the Bill than to reinstate into coalition policy a community right of appeal. Without it, the planning appeals system will remain most unfairly balanced in favour of developers. I hope that my noble friend the

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Minister will be sympathetic to these amendments, both of which advance the cause of localism. I beg to move.

Baroness Parminter: I rise to speak briefly to Amendment 232ZB in this group. A limited third-party right of appeal would provide stronger safeguards against planning applications which cut across local and neighbourhood plans. Such applications risk compromising the plan-led system and undermining public enthusiasm for taking a stronger role in plan making. As my noble friend Lord Reay mentioned, the Minister in another place has made statements about the importance of enshrining the primacy of the local plan. Granting a limited third-party community right of appeal, which was triggered where a decision to grant planning permission was not in line with the adopted local plan, would be a powerful support to that approach. It could also help to ensure that local councils put sufficient weight on policies in a democratically agreed plan and, crucially, strengthen mandatory pre-application discussions for major developments introduced by this Bill.

Lord True: My Lords, I was not able to be present for this discussion in Committee. I would like to associate myself very strongly with the remarks made by both my noble friends because they are good localist arguments. Having campaigned in all integrity on the basis of the promises that were put forward by my party in respect of a community right of appeal, like many colleagues in the Liberal Democrat party I remain in a state of puzzlement as to why this worthy and desirable policy, very sensibly circumscribed in the amendment spoken to by my noble friend, has disappeared. It is something that some of us will want to return to on a future occasion, and I hope sincerely that the leadership of my party and that of my fellow party in the coalition will think again on this matter.

Lord Beecham: Heaven forfend that I should trespass on the griefs of the coalition about unfulfilled promises. It is already late enough and one could go on for many hours about unfulfilled promises, but I shall resist the temptation.

We cannot support either of these amendments. There is a balance to be struck between what is purely local and where there are other considerations which might well be of significance in regard to major areas of public policy, including that to which the noble Lord, Lord Reay, refers and about which he is exercised-it is right that he should be, if those are his views. There is a legitimate role for the Secretary of State to determine, at any rate, some appeals beyond those which the amendment would refer.

The amendment in the name of the noble Baroness, Lady Parminter, in addition to the general principle, also creates difficulties. A community right of appeal is an arguable proposition. Whether a community right of appeal could be said to be legitimately exercised by,

as proposed in new subsection (2B) that Amendment 232ZB would insert into Section 78 of the 1990 Act, is indeed arguable. I cannot see that those matters are a

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very persuasive definition of a community right of appeal, even assuming one was in favour of a community right of appeal, which, on balance, I am certainly not-whatever the coalition parties thought they were going to implement.

In these circumstances I offer once again an unusual degree of support to the Minister if he declines to support these amendments.

Lord Shutt of Greetland: My Lords, I thank noble Lords who have spoken. I should like, first, to respond to Amendment 232ZB in the name of the noble Baroness, Lady Parminter, because it helps to set the scene. The amendment intends to give a new right of appeal for local councillors. Before going into detail it would be useful to start by setting out what we are seeking to achieve in the reforms and how communities can shape the area in which they live. The purpose of our planning reforms is to put the local plan at the heart of the system. In fact, the draft national planning policy framework explicitly says so. It is the plan where councils and communities weigh up and integrate different goals and long-term needs so that it sets the framework within which individual planning applications are assessed and decisions taken. We want planning decisions to be taken by local communities, not more appeals undertaken by unelected inspectors in Bristol.

Everything that we are currently undertaking in the Bill-removing unelected regional structures and the top-down targets which constrained local councils, stopping inspectors arbitrarily rewriting plans without a council's consent and removing unnecessary central government monitoring regimes and interfering in local timetables-gives control, choice and responsibility for local planning back to councils and communities. Other reforms which introduce neighbourhood planning and ensure appropriate consultation with local people before proposals are submitted have also been to that end, so that local people will, in future, have a real say. They will encourage developers to work with the local community to develop proposals all can support, rather than setting them against each other.

Given this, I have considerable sympathy with the noble Baroness's intentions here. She desires, as I do, to ensure that local communities and the plans agreed between them and their councils should remain at the heart of planning decisions and she is concerned that, in some cases, that does not always happen because of the way the system works. I do not think that her amendment is a solution here. We consider that this would risk adding unnecessary uncertainty and delay at this crucial time of recovery and growth. Applicants will have invested considerable time, money and effort in preparing their proposals and should expect a council's decision to be a corporate one. However, I recognise that there are issues that we need to address.

First, I understand that local councils have often felt pressure to approve applications which have not been consistent with the plan. One reason is that officers may advise elected members that if they do not approve development, even where it is outside the plan, they may lose at appeal and have to pay costs. Therefore I can reassure the House that we will revise the costs award circular which governs this

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process so that where a council refuses a development proposal on the grounds that it is contrary to an up-to-date development plan and there is no issue of conflict with national planning policy, there should be no grounds for an award of costs against the council in question.

Secondly, in some cases applications are made and approved which fall outside the development plan. This is an important flexibility in the system. However, we must also be clear that if an application is outside the terms of the plan it should be approved only if locally elected representatives have considered the views of the local community and concluded that such a departure would be acceptable in planning terms. For this reason, we will consult on requiring departure applications to have compulsory pre-application consultation with the local community so that elected members are fully aware of local views before they decide an application. This will mean that local councils will have a clear understanding of local views when they deal with key applications, should have no fear of costs being awarded against them when they have followed the right procedures and will be able to decide cases in the long-term interests of local communities. These changes to the system will strengthen its resilience and ensure that our reforms achieve their objective of putting the local plan and the views of the local community at the heart of the system.

I pay tribute to the noble Baroness, Lady Parminter, for raising these issues so vigorously. By doing so, she has done a service to the House. Given our proposals to strengthen community influence and the involvement in planning as a whole, which I have outlined, I hope she will agree that our measures are strong and effective ways to ensure that community views are heard in the process, especially where a development might depart from an up-to-date plan, and that she will not press her amendment.

Turning to Amendment 232ZA, as the noble Lord, Lord Reay, said in Committee, planning is a matter of getting the balance right. I agree. We are committed to a system of fewer appeals and want development proposals to be determined locally. However, in the few cases where appeals are made, the Secretary of State, as decision-maker, must be entitled to take other material considerations into account, as can councils, on finely balanced matters of judgment-for example, where a local policy is out of date because it does not reflect the changing circumstances of the local area or more recent national policy. In such instances the law allows councils to consider other material considerations in making the right decisions for their communities. They should not be restricted and neither should the Secretary of State's decision be fettered. Amendment 232ZA would therefore be unduly restrictive in this regard.

However, I understand the intention behind the noble Lord's amendment. We shall take the measures that I outlined earlier so that councils and communities feel confident, if challenged at appeal, in defending planning decisions made in accordance with an up-to-date plan and where there is no conflict with national policy. I reassure the noble Lord that judicial review proceedings can already be brought if a decision was

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unlawful or due process was not followed. I hope therefore that he will be willing to withdraw the amendment.

Lord Reay: I thank my noble friend Lord True for his support for my amendment. I agree with him that we have not seen the end of this matter. I was sorry not to have the support of noble Lords opposite. For once they have revealed themselves in their centralist colours.

The Minister entered fully into the arguments on the amendment and I am grateful for that. He said that the Government want to limit appeals-they do not want everything decided in Bristol-but, of course, the effect of my amendment would be to reduce appeals. I appreciate that he repeated what was said at an earlier stage about costs awards and I appreciate what he had to say about the consultation that would need to take place with local communities. In those circumstances, I am happy to withdraw the amendment.

Amendment 232ZA withdrawn.

Amendment 232ZB not moved.

Clause 131 : Application of this Part to the Crown

Amendment 232A not moved.

Amendment 232AA

Moved by Lord McKenzie of Luton

232AA: After Clause 131, insert the following new Clause-

"Report on Part 5

(1) The Secretary of State must-

(a) establish an independent review of the planning provisions introduced by Part 5;

(b) publish a report on this review, including any recommendations for change; and

(c) lay a copy of the report before both Houses of Parliament within 3 years of section 97 coming into force.

(2) The report required under subsection (2) must, in particular-

(a) have regard to and report on the effectiveness of the provisions in producing sustainable development outcomes;

(b) report on the extent to which planning permission has been granted in respect of brownfield land;

(c) report on the extent to which open spaces and the green belt have been protected;

(d) report on the extent to which affordable and sustainable housing targets have been achieved;

(e) provide statistical information about the number of planning applications that were approved, approved but not actioned, or appealed before and after the commencement of that Part."

Lord McKenzie of Luton: My Lords, I beg to move Amendment 232AA. This calls for an independent review of the provisions of Part 5 of this Act; it calls for a report of this review, and it requires a copy of the report to be presented to both Houses of Parliament.


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