Planning Bill

Public Bill Committee, 29 January 2008.

Further written evidence to be reported to the House

Clause 105

Jacqui Lait (Conservative, Beckenham)

I beg to move amendment No. 26, in clause 105, page 49, leave out lines 26 to 29.

Welcome back to the scintillating proceedings on the Planning Bill, Sir John. We are starting with what appears to be an innocuous little amendment to delete clause 105(4)(h), which would allow the development consent orders to free land

“from any restriction imposed on it by or under the Green Belt (London and Home Counties) Act 1938 (c. xciii), or by a covenant or other agreement entered into”—

John Butterfill (Conservative, Bournemouth West)

Order. I know that the hon. Lady would not wish to mislead the Committee, but the amendment would also delete clause 105(4)(g).

Jacqui Lait (Conservative, Beckenham)

Thank you, Sir John. I am grateful to you, because that paragraph is even more sweeping. It is considerably less innocuous, even if shorter. Unless I receive serious reassurance from Ministers, I will invite my hon. Friends to vote on the amendment.

You, Sir John, probably more than anyone, are aware of the pressure on the green belt in and outside London. My hon. Friend the Member for Bromley and Chislehurst and I have long had to fight, on behalf of our constituents in Bromley, attempts to infiltrate the green belt with development; 50 per cent. of our borough is green belt, which leads to a lot of pressure on it. Anyone with an outer London constituency or one that borders any large metropolitan area—I do not use the term in the local government sense—will know that the pressure on the green belt is huge. The pressure to ensure that that lung remains around the big urban conurbations is equally huge.

The Government have for a long time been trying to use various methods and means to resist or break down the resistance to development in the green belt. They have been defeated so far on all occasions. It is, to say the least, sneaky to try to get it through in this Bill, in which no one would believe that it should be included.

We all know that the pressure for homes is enormous. The purpose of one section of the Bill, which we have still to come to, is to try to extract some extra value from the capital gains on housing developments because of demand in response to the market. However, the green belt is precious and is perceived to be precious. Should the infrastructure planning commission or any other body be able to override current legislation on it, I would suggest that the Government would live to regret it. We certainly think that that should be resisted wherever attempts arise to make incursions on to green belt land.

Therefore, as I have said, unless the Minister can reassure me as to the point of including paragraphs (g) and (h) in the Bill, I will invite my hon. Friends to oppose their inclusion as strongly as we can.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I fully support the amendment. The power in the paragraphs concerned seems very sweeping. Were the commission considering making such an order, effectively freeing up green belt land, would there be a dialogue with people in the surrounding area before such an order was granted, so that at least the consultation would have been gone through?

The provision seems to be extremely sweeping, and as the hon. Member for Beckenham has said, green belt land is there for a purpose and is very much valued by those who live in its vicinity. Although I generally understand why the commission should have powers to vary existing legislation, which can sometimes be arcane, I find this power a little disturbing. Will the Minister give some assurances about the amount, form and timing of consultation and how the commission would be guided?

Jacqui Lait (Conservative, Beckenham)

Although I sympathise with the hon. Gentleman and generally agree that there should be consultation, I am concerned that we can consult until we are blue in the face. I rather suspect that the consultation will be completely meaningless if the provision is passed, and that our local communities will feel even more cheated.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The hon. Lady puts her case strongly and I hear what she says. No doubt the Minister heard that and will respond in due course.

Bob Neill (Conservative, Bromley and Chislehurst)

May I briefly support the observations that have been made? The provision is a concern, and I understand the point made by the hon. Member for Meirionnydd Nant Conwy. There might be certain circumstances in which it is necessary to lay a pipeline across green belt land, or to undertake something similarly limited and modest that relates to infrastructure and development. However, a proposal to build a major infrastructure development within the green belt would raise great concerns indeed.

Although I see the argument for single consent, I cannot help but feel that however well it is dressed up, there will be a diminution of the protection of the green belt and of the rights of individuals to be consulted and to make representations. We have addressed that point with regard to London suburbs and suburban areas, and I make no apology for that. In my constituency, the inspector has recently given permission for some 700 houses to be built on green belt land, and that is a troubling precedent.

That issue relates not only to the suburbs, but to other areas of the country where we can envisage some type of infrastructure project being placed on the green belt, and the sweeping nature of the power seems to go well beyond what is set out in the subsection’s preceding paragraph, which sensibly limits the power in relation to electricity lines going across the land. What constraints and restrictions will there be on that power? Do we run the risk that many acres could be taken out of green belt land under the provision as it stands, with less protection and opportunity for the public to have their say than exists at the moment?

Jim Fitzpatrick (Labour, Poplar and Canning Town)

On behalf of those of us on the Government Benches, let me welcome you back to the Chair, Sir John.

The Government do not support the amendment, but understand what the hon. Member for Beckenham is trying to do. She would like to see green belt land keep all of the protection that it currently enjoys against inappropriate development. The Government share that desire to protect those areas from inappropriate development, but the amendment would not achieve that intended result and is unnecessary.

It might help the Committee if I were to set out the main protections for green belt land, and to clarify the differences relating to the amendment and the apparently simple term “green belt”. The clause relates to land that is designated as green belt land in accordance with the Green Belt (London and Home Counties) Act 1938. Under the 1938 Act, local authorities were given power to hold certain lands surrounding London and other metropolitan areas on trust, and development of that land is subject to restrictions over and above those imposed by the Town and Country Planning Act 1990.

When land is designated as green belt land for the purposes of the 1938 Act, a separate consent is required from the Secretary of State to enable the land to be developed. I will refer to that type of green belt land as statutory green belt land. It is not the same as land designated as green belt land by a local authority in its local development plan. Such land is currently protected from development by both local and national planning policy, which prohibits inappropriate development in the green belt, except in very special circumstances. This type of designated green belt is not the same as statutory green belt land. Although the development of this designated green belt land requires planning permission in the usual way, it does not also require a separate consent from the Secretary of State under the 1938 Act.

The way the Bill works in relation to green belt land is to combine the consent regimes arising from the 1938 Act and the Town and Country Planning Act 1990 into the single consent regime and to give the commission, or the Secretary of State when she is the decision maker, power to authorise the development of both statutory green belt land and land designated as green belt in a local development plan. An order granting development consent in relation to green belt land will therefore have a similar effect to both a planning consent and a separate consent from the Secretary of State under the 1938 Act.

In deciding whether to grant consent for a development in the green belt, the decision maker will be required to adhere to the policies set out in any relevant national policy statement and to take into account such other factors as may be prescribed. It is intended that not only will national policy statements reflect existing policy on green belt, as set out in PPG2, but the Secretary of State will make regulations requiring the decision to take into account the purpose for which green belt land is held. In that way, the special status of green belt land will be protected.

Amendment No. 26 would mean that a development consent order could not include provisions on the transfer of land protected by the 1938 Act or the freeing of such land from restricted covenants under that Act. That would have no effect on the ability of the IPC to make orders that contain provisions relating to land designated as green belt by virtue of a local development plan. The effect of the amendment would be detrimental to the concept of a single consent regime as in certain circumstances it would be necessary for a promoter to apply for a separate consent from the Secretary of State in order to allow a proposed development to proceed.

Applicants could still obtain authorisations for such sales or transfers, but only after a separate application to the Secretary of State, who would be unsighted on those issues as she would have no role in the granting of the other permissions or consents in relation to the project. Furthermore, under the amendment, in cases in which the Secretary of State was the decision maker, the applicant would still need to make a separate application to the Secretary of State.

The Government believe that the right way to address the issue is by ensuring that green belt policy is properly set out in national policy statements. It is our intention that when we introduce national policy statements they will cover the special policy protection for green belt land, which prohibits inappropriate development except in very special circumstances. In turn, that will be reflected in the policies set out in any local development plan. When Ministers prepare national policy statements they will have regard to national planning policies, including PPG2 on the green belt. Special protections for green belt land will therefore continue to apply.

In addition, I should like to draw the Committee’s attention to clauses 94 and 95, which permit the Secretary of State to prescribe matters which the decision maker must take into account before deciding to make an order granting development consent. It is intended that those regulations will set out that in a case involving proposed development on any green belt land, the decision maker will be required to take into account the special status of the land. The Secretary of State already takes that into account currently when deciding whether to grant a green belt consent under the 1938 Act. The single consents regime, as we have discussed previously, is based on a clear separation between policy making and decision making. As such, the final decision maker needs to have the power to grant all the necessary consents for a particular project, which may include the power to free the land in question from the restrictions imposed on the green belt.

In response to the specific question raised by the hon. Member for Meirionnydd Nant Conwy about dialogue with local communities, there would be three chances for local consultation: first, when the national policy statement is drafted; secondly, during the pre-application consultation; and thirdly, when an application is made. Therefore, there will be three opportunities to ensure that local issues are raised appropriately. On that basis, I ask the hon. Lady to withdraw her amendment. Otherwise, I will have to ask my hon. Friends to vote against it.

Jacqui Lait (Conservative, Beckenham)

The Minister has set out a convincing argument, but it still begs a number of questions. He refers to inappropriate development in the green belt. I would suggest that that is the issue about which local communities might get most exercised. They wish to feel, as we have set out clearly, that there is recourse to a democratically accountable person—the Secretary of State—because green belts are regarded as being precious in urban communities.

The other concern that I have, which applies to the green belt planning permission that my hon. Friend the Member for Bromley and Chislehurst referred to, is that once there is any form of infrastructure development such as a pipeline, pylons or an electricity sub-station, the land around it tends to degrade. Over the last few years we have heard the argument that the minute the green belt has degraded, it becomes ripe for development. We are concerned that this planning system should in no way lead to the degradation of the green belt. Therefore, I will press the amendment to a Division.

Jacqui Lait (Conservative, Beckenham)

I beg to move amendment No. 418, in clause 105, page 50, line 12, leave out paragraphs (a) and (b).

John Butterfill (Conservative, Bournemouth West)

With this it will be convenient to discuss Government amendments Nos. 430 to 432.

Jacqui Lait (Conservative, Beckenham)

We tabled the amendment to delete even more sweeping powers than were set out in the green belt provisions in subsection (4). Subsection (6)(a) and (b) will give the IPC the power to override Government decisions. It will be able to amend or repeal any legislation. If that reading is correct, a fundamental principle of democracy is being swept aside in order to speed up the planning system. Doubtless Ministers will have a very clear explanation for giving the IPC this power. We all wish to see the process speeded up, but under this proposal the IPC could ride roughshod over the democratic rights of the British public and of Parliament. I find that fundamentally difficult to contemplate, let alone accept.

Again, we want to hear what the Government have to say on the matter. Unless their rebuttal of the amendment is convincing, it seems that we are moving back to a situation in which the Executive pay absolutely no attention to the people who are democratically accountable. Without going too deeply into one of our continual criticisms of the Government over the past 10 years, that is all of a piece with their ignoring Parliament and wishing that they could ride roughshod over us and that we would all do exactly as they wished. On those powerful grounds, I have tabled the amendment.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

We oppose the amendment. I will explain why I hope that it will be withdrawn, subsequent to my explanation, or resisted by my hon. Friends.

The clause sets out which matters can be included in an order granting development consent for an application. In particular, the clause allows an order granting development consent to apply, modify, or exclude legislative provisions relating to matters covered in the order, subject to certain limitations. The ability to do that is modelled closely—I got into trouble last week for using the word “modelled”; I have checked this time and I am using it in the right context—on the powers already available to the Secretary of State in making orders under section 5 of the Transport and Works Act 1992.

I appreciate the hon. Lady’s concerns about the fact that the Bill would allow legislation to be applied, modified or excluded by a body other than Parliament. I hope to reassure colleagues about that and to demonstrate that a deletion of the provisions in paragraphs (a) and (b), as envisaged in the amendment, would be the wrong step to take. Before the Committee considers the amendment, it might be worth while to reflect on why the 1992 Act and the Harbours Act 1964 contained the legislative provisions that we are now trying to incorporate into the Bill.

In the past, promoters of several types of nationally significant infrastructure project have found that there are statutory provisions regulating existing infrastructure that they propose to upgrade or improve. In particular, railway infrastructure is frequently covered by one or more private Acts of Parliament, which gave the original promoters of the railway the ability to construct it in the first place. Often, the provisions of the existing legislation are inconsistent with proposals to upgrade or improve infrastructure.

For example, Network Rail might be under an obligation to provide or maintain a certain infrastructure, perhaps a bridge or footway, that would be incompatible with the provisions to upgrade a site. It was with that problem in mind that Parliament previously granted the Secretary of State the extensive powers in section 5 of the Transport and Works Act 1992, including the ability to make an order that can

“apply, modify or exclude any statutory provision which relates to any matter as to which an order could be made”

under that Act. The 1992 Act also permits the Secretary of State to make amendments, repeals and revocations of statutory provisions of local application as appear to her to be expedient in connection with an order. The Harbours Act makes similar provision in respect of local Acts in relation to harbour developments.

Clause 105(6) of the Bill is based on the wording in section 5 of the Transport and Works Act 1992, and the similar provisions in the Harbours Act. As we have seen in part 3, many of the types of projects to which the 1992 Act applies will in future be classified as nationally significant infrastructure projects, and, as such, will require development consent under the Bill. Clause 29(2) has specifically excluded the 1992 Act or 1964 Act orders from being made in relation to those projects. That will prevent the use of orders under those Acts to amend legislation in relation to such projects.

For the reasons I have already given, many of such projects could be incompatible with existing legislation. Unless that is dealt with, the single consent regime will be unworkable. The options would be to retain the provisions of the Transport and Works Act and the Harbours Act in relation to relevant nationally significant infrastructure projects, or for promoters to be required to promote private legislation to enable schemes to proceed. We do not believe that either of those options is sensible.

On the issue of private Bills, we should remember that the huge amount of parliamentary time that was taken up debating private Bills was one of the prime reasons why Parliament created the Transport and Works Act regime in the first place. If we required a promoter to obtain an order under the Transport and Works Act or Harbours Act, in addition to consent under the new regime, it could result in exactly the kind of duplication of effort that the new regime seeks to avoid. It would mean that the decisions would continue to go to the Secretary of State, which is the subject we debated previously. As has been mentioned previously, that would add time to the process and reduce predictability, because there would be multiple decision makers. In any case, we do not believe that such a system would lead to better or different orders because of the safeguards that we have already built into our proposals.

First, and most basically, the only pieces of legislation that can be altered are those that the promoter includes in the application. The IPC will not be able to make orders on a subject other than for that which is applied. Secondly, the form of the draft order is based on model provisions that are set out for the Secretary of State by order, as we discussed under clause 33. Those will be similar to the model provisions currently set out in relation to Transport and Works Act orders. Any Member will have the ability to scrutinise those model provisions and force a parliamentary debate on them.

Thirdly, the decision maker will only be able to approve the application and make an order when that is in accordance with the relevant national policy statement. Again, that will have been set out by the Government and scrutinised in Parliament. Fourthly, where the IPC intends to use the powers in clause 105(6), it will have to send a copy of the draft order to the Secretary of State ahead of time. If the Secretary of State thinks that the terms of the order would contravene Community law or any of the convention rights, she has a power in clause 106 to direct or require the IPC to change the terms of the order.

It should also be remembered that powers set out in clause 105(6), under which legislation may be amended, apply only in relation to the particular development that is under consideration. Those powers do not permit the commission or the Secretary of State to usurp the functions of the legislature. They are powers of limited scope and application. I hope that the explanation of the safeguards on the use by the IPC of legislative powers gives comfort to the Committee and the hon. Member for Beckenham. I therefore ask her to withdraw her amendment.

Government amendments Nos. 430 to 432 are technical in nature. They are intended to ensure that when the IPC needs to use its legislative powers under clause 105(6), those allow amendments not only of legislation but of statutory provisions. Without that provision, the IPC would not be able to amend previous Transport and Works Act orders or Harbours Act orders.

Jacqui Lait (Conservative, Beckenham)

I am grateful to the Minister for that comprehensive explanation, which goes some way to reassure me. On the basis of that I shall seek to withdraw the amendment, but I will probably have to do some more research to see whether we need to return to the matter on Report. I can understand the arguments about the Harbours Act and the Transport and Works Act. I am concerned that the national policy statement is a much wider system and that the conjunction of all those provisions might enable the IPC to make rulings much more widely than the Government envisage. I beg to ask leave to withdraw the amendment.

Dan Rogerson (Liberal Democrat, North Cornwall)

I beg to move amendment No. 398, in clause 105, page 50, line 23, at end insert

‘and to a resolution of both Houses of Parlaiment made under the super-affirmative resolution procedure as defined by section 18 of the Legislative and Regulatory and Reform Act 2006’.

I, too, welcome you back to the Chair, Sir John. Whether this will be one of the sittings where we make speedy progress or whether we will slow down again remains to be seen, but I am sure that you will enjoy watching our deliberations and keeping us in order.

The amendment is similar to that tabled by the hon. Member for Beckenham and is about the power to disregard legislation. We are spending a great deal of time in this Committee. We have 14 sittings in which to debate the Bill and potentially to put it into law. We do that because we take legislation very seriously and want to get it as right as is possible. If we then set up bodies that can disregard legislation and make decisions that will affect the lives of people in the areas concerned, we are going down a very dangerous road.

I did not speak to the last amendment because many of the issues addressed by it are addressed by this amendment. I hope that the Minister will forgive me if I reflect on what he said when debating the previous group. He made the case that the Secretary of State is already able to disregard legislation in some circumstances under other Acts. However, there is a fundamental difference between the Secretary of State and the IPC. We have had that argument before.

There is a difference of opinion between the Government and the Opposition parties about whether the IPC is comparable to the Secretary of State. I do not think that they are the same. People are willing to accept that the Secretary of State may, for certain technical reasons—as long as it is in the spirit of the legislation—exempt certain provisions in certain cases. I think that people will find it much harder to accept that an unelected, appointed body, at some distance from a democratic mandate, will have those powers. There are real differences between the two.

The amendment would use the super-affirmative resolution procedure, which sounds very exciting and was set up under the Legislative and Regulatory Reform Act 2006. It would still allow exemptions to be made from legislation, but there would be a powerful means of parliamentary scrutiny to ensure that such departures have been properly considered and that elected Members have had the opportunity to examine them in detail.

I accept what the Minister says about there having to be a facility to do such things to avoid going back to using private Bills. The amendment would provide for such a procedure, but it would be a little more onerous, it would give hon. Members the opportunity to participate in the process and it would take the power away from an unelected body—that is the fundamental point for me.

I hope that the Minister is prepared to consider my arguments. I hope he will see that this is not a black and white issue between the very lengthy procedure of using private Bills and the IPC having this power. There are other possibilities and, as the hon. Lady said, I hope that he will reflect on that and come back to us at a later stage. I am also interested to hear what he has to say now.

As we heard, the Bill is aimed at simplifying the planning procedure for major projects. It should make the whole process more straightforward and transparent. It should also cut out some of the repetition of areas of controversy and ensure that they occur at an earlier stage in the process. However, I still do not see that delaying something by a matter of a few weeks or months is crucial. We have talked about schemes in the past that have been delayed by five, 10 or 20 years while those processes have rumbled on. The important thing is that we get the decisions right. Allowing Parliament the opportunity to examine whether a case has been made for legislation that it has made to be disregarded in that way is an important part of the process, and I hope that the Minister will consider whether there might be a middle way between private Bills and the IPC having the power to throw out legislation whenever it wants.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

When the hon. Gentleman moved his amendment, I had hoped that he was taking the time to reflect on the earlier debate and was considering offering to withdraw it, but clearly he talked himself out of that while reminding himself of his speaking notes and has decided to test it by having some discussion.

I will try not to repeat what I have said because we have discussed the safeguards on the use of legislative powers by the IPC. However, the hon. Gentleman’s amendment tries to address that with a different tactical approach to such safeguards, by providing that no order granting development consent could apply, modify or exclude statutory provision without being confirmed by a resolution of both Houses of Parliament under the super-affirmative resolution procedure.

As we know, the super-affirmative procedure is extremely onerous, at least with regard to parliamentary time, and I say that with respect. Under that process, Ministers would lay a draft order before Parliament for 60 days, during which a Select Committee of either House may recommend on specified criteria that no further proceedings be taken, in which case the order falls. Designated Select Committees in either House may make recommendations on the draft order, to which Ministers must have regard. If the Minister decides to revise a draft order, the Committee stage restarts. After 60 days, if the Minister has decided not to revise the order, the draft order is laid before Parliament and a motion to improve it is then moved in both Houses. A Minister can only make the order if both Houses resolve to affirm it. I hope that that description demonstrates the amount of parliamentary time that would be taken up in that procedure, with which the hon. Gentleman is obviously familiar.

We are unconvinced, in any case, that Parliament would welcome those time commitments back again. It was because of the time spent on private Bills relating to infrastructure development that Parliament created the Transport and Works Act regime in the first place. I question whether any of the parties at the examination stage will welcome an additional parliamentary stage after the IPC’s examination has already gone over all the facts and reached a decision.

Amendment No. 398 would certainly increase uncertainty for all parties. Therefore, I encourage the hon. Gentleman to think again about the safeguards, four of which I listed in the discussion with the hon. Lady a moment ago. I hope that that explanation and the discussion that has just taken place with regard to amendment No. 418 on the safeguards on the use of legislative powers by the IPC have given him the opportunity to think again so that he will withdraw his amendment. If he does not, I will ask my hon. Friends to oppose it.

Dan Rogerson (Liberal Democrat, North Cornwall)

I felt it necessary to discuss the amendment so that the Committee had a second chance to consider what the Minister said in response to the hon. Lady’s amendment, and the safeguards do not reassure me a great deal. It is an onerous procedure, although not a hugely lengthy one, as there are time limits imposed on it. It ought to be fairly onerous for an unelected body to disregard legislation passed by Parliament. Therefore, on this occasion I would like test the Committee’s opinion on the amendment.

Clause 106

Dan Rogerson (Liberal Democrat, North Cornwall)

I beg to move amendment No. 399, in clause 106, page 50, line 34, leave out from beginning to second ‘the’ in line 36.

John Butterfill (Conservative, Bournemouth West)

With this it will be convenient to discuss the following amendments: No. 400, in clause 106, page 50, line 39, leave out subsection (4).

No. 401, in clause 106, page 50, line 43, leave out ‘28’ and insert ‘56’.

No. 402, in clause 106, page 50, line 45, leave out subsection (6).

Dan Rogerson (Liberal Democrat, North Cornwall)

We reach clause 106, which I suppose is a resonant number in the planning terms that we all quote backwards and forwards to each other in a different context. No doubt we will do so again when we reach the section on the community infrastructure levy.

The amendments would widen the scope of powers available to the Secretary of State. It may seem a little odd that I should be arguing for that, and that the Secretary of State’s representative among the Ministers might be arguing against it, but it allows the Secretary of State a longer period in which to act in considering whether he is happy with a draft order. As drafted, the clause specifically limits those powers to Community law or convention rights. My amendments would widen that provision so that the Secretary of State can review the draft order and make any changes that he or she sees fit to ensure that the draft order is right, or as near to that as possible. The provision may well not be exercised a great deal, and it would not necessarily delay the process a huge amount. However, it would ensure that there is an extra safeguard for the Secretary of State to consider the draft orders and to change them if concerns arise not only from problems with Community law or convention rights, as the clause currently states. I hope that the Minister will discuss how the Secretary of State might be able to address any problems that occur with a draft order.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

I ask the Committee to reject the amendments. The clause sets out a limitation and safeguard on the IPC’s ability to exercise its powers under subsection (6) in relation to a project. When the IPC proposes to make an order that will include such matters, it will have to send a draft to the Secretary of State. The Secretary of State may step in if she believes that any provision the IPC wishes to include in an order in exercise of its legislative powers will contravene Community law or convention rights under the Human Rights Act 1998. That reserve power takes the form of an ability to direct the IPC to make modifications to its draft order so as to prevent the contravention from arising.

The amendments would remove the limitation on the Secretary of State to make changes only when the order contravenes Community or human rights law. Instead, the Secretary of State could direct changes for any reason. It is not clear whether the Secretary of State’s power of direction would continue to be restricted to changes to the provisions relating to the legislative powers, or whether changes could be made to other provisions in the order granting developing consent. Even if the courts were to favour the former interpretation, the amendments have the potential to involve the Secretary of State extensively in decisions for which the IPC wants to make use of its legislative powers. Whether there is a restriction or not, it seems clear that the intention behind the amendment is to involve the Secretary of State more closely in making decisions.

We have discussed the topic at length, and the Government continue to believe that there are great benefits and a clear separation between policy making and decision making. That led us to suggest the IPC system in the first place. It would not be appropriate for the Secretary of State to direct changes to IPC decisions on any grounds other than those mentioned in the clause.

The amendments would jeopardise the benefits of the new system. The clause currently states that if the Secretary of State wishes to direct the IPC to make modifications to the draft order, she must do so within 28 days of receiving it. Amendment No. 401 would extend this deadline to 56 days, presumably because the hon. Gentleman is trying to expand the scope of decision making and so allow more time.

Nevertheless, we believe that 28 days remains the appropriate time. The Secretary of State will not need more than 28 days to determine whether a draft order contravenes Community or human rights law and to direct changes to ensure that it continues to conform. An extension of the deadline would simply slow down the process more in its final stages and therefore increase the level of cost to promoters who would be waiting for the development consent order to be made formally.

On that basis, I hope that the hon. Gentleman feels able to withdraw his amendment. Should he not do so, I will ask my hon. Friends to oppose it.

Dan Rogerson (Liberal Democrat, North Cornwall)

The Minister has clearly addressed the issues that we have just discussed. Having heard that he was quite happy for the IPC to have the provision to disregard the legislation, the amendments aimed to offer a further safeguard to that process. He and his colleague have sought throughout the debate to distinguish between policy and decision making. I should have thought that there is certainly an element of policy in deciding that legislation can be disregarded. It is a bit odd to say that that is purely a matter of deciding on an application. Surely the disregarding of legislation is in itself a policy-related decision. I am not entirely convinced by the Minister’s argument. However, we have had the opportunity to debate the principle and get it on the record that Opposition Members are unhappy about this. As others have said, we can return to this at a later stage. I beg to ask leave to withdraw the amendment.

Clause 107

Jim Fitzpatrick (Labour, Poplar and Canning Town)

I beg to move amendment No. 433, in clause 107, page 51, line 20, leave out ‘need’ and insert ‘case’.

John Butterfill (Conservative, Bournemouth West)

With this it will be convenient to discuss Government amendment No. 436.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

We ask the Committee to accept the amendments. Amendment No. 433 is largely technical. Instead of the decision maker needing to be satisfied of compelling need in the public interest for land acquisition, he needs to be satisfied of a compelling case in the public interest. That wording better reflects the current wording of the test set out in the Department for Communities and Local Government’s circular 06/2004 on compulsory purchases and the Crichel Down rules and hence the established case law. We have been asked by the Compulsory Purchase Association to make that change.

Clause 126 provides that time limits will apply to orders granting development consent. It specifies that development that is consented under such an order must have begun before the end of the prescribed period, although the clause allows the decision maker to set a different time limit as part of the order itself. Amendment No. 436 will allow us also to set time limits on any compulsory purchase powers contained in an order granting development consent. The time limits by which point compulsory purchase powers must be used will also be prescribed, as we expect that this prescribed period will in most cases be shorter than the time limits for the development to begin.

Again, this clause will allow the decision maker to set a different time limit as part of the order. We believe that it would be unfair and improper for developers to have the right to buy people’s land but then not do so until a significant period of time later. The ensuing blight from compulsory purchase powers that are not acted on could wreck people’s quality of life, let alone the value of their property.

Bob Neill (Conservative, Bromley and Chislehurst)

I welcome the amendments. I just flag up for future consideration that the Government have in this instance been prepared to return from their original proposal to the existing case law. That is sensible and makes for greater certainty. I hope that between now and Report they might like to reflect on adopting the same approach to the question of materiality that we discussed, because the same considerations apply.

Bob Neill (Conservative, Bromley and Chislehurst)

We will not vote against clause, but I ask the Minister to reassure people who have told us that they are worried about precisely what is meant in subsection (2)(b) by the circumstances in which land is required that is “incidental to that development”. Everyone understands the concept of land for development, and to facilitate that development, but there is naturally concern that the use of the powers in this regime should be limited to that which is necessary for the development. What are the practical implications of the phrase “incidental to that development”?

Jim Fitzpatrick (Labour, Poplar and Canning Town)

The Bill outlines different powers that the IPC may have. An applicant may apply for the decision to authorise the compulsory acquisition of land that is incidental development when the land is required as part of a package of compensatory measures—for example, if the applicant has to acquire land that is protected by the habitats directive. Where there is a clear community, environmental or legislative need to make additional incidental arrangements, they are covered by that phrase.

Bob Neill (Conservative, Bromley and Chislehurst)

I am grateful to the Minister for that explanation. If the phrase is used in that limited way we do not have a problem with it.

Clause 114

Dan Rogerson (Liberal Democrat, North Cornwall)

I beg to move amendment No. 403, in clause 114, page 55, line 33, at end insert—

‘(9) Where subsection (4) applies the Secretary of State shall publish a statement detailing the means and extent of the preservation or improvement that will be effected on the order land once compulsory acquisition has taken place.’.

The amendment relates to subsection (4), on the compulsory acquisition of land

“in order to secure its preservation or improve its management.”

We must be clear about why that land is being acquired and know exactly what will happen to it that will improve its management, as those objectives could be controversial.

The hon. Member for Bromley and Chislehurst wanted the Minister to clarify the use of the word “incidental” in clause 107, and I would welcome an explanation of how the implications for that land will be made clear if the clause as drafted is accepted.

Bob Neill (Conservative, Bromley and Chislehurst)

We have sympathy with the amendment and we look forward to hearing what the Minister has to say about it. It is a matter of clarification and our stance will depend on what we hear from him.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am curious about the magical figure of 209.03 sq m in subsection (5); were it 209.04 sq m, I dare say that things would not proceed. I presume that it is the standard width and accommodation for the land on each side of a pipeline that is not normally developed at any cost. There is a word for that which escapes me. I would be interested to know precisely why it is 209.03 sq m.

David Curry (Conservative, Skipton and Ripon)

I am equally somewhat arithmetically baffled. It might be that the figure refers to something defined in acreage or metres in a previous piece of legislation.

I would like some clarification from the Minister on how this provision will work for common land. There is a large amount of common land in my constituency. A significant part of the Yorkshire dales is common land. It is quite a complex business. The Bill says that if some land is taken away, compensatory land will be given on which all the old rights will apply, but it is not quite as easy as that. Rights on common land are historical rights held by various people. Those are not necessarily transferable to new pieces of land because they might not have the historical quality of the old land.

In addition, there is a complex issue regarding the Rural Payments Agency, an organisation which the Public Accounts Committee, of which I am a member, has had occasion to examine in some detail over far too long a period because of its continuing inability to get its act together. The way that the RPA recognises, or fails to recognise, the rights on common land is important. For any land given in compensation, the RPA should recognise the rights that are often endowed to grazers on common land. That should be done in terms of entitlement under the single payments system.

I know that the Minister is widely versed in all those matters, but I would like some strong reassurances about matter and, out of sheer curiosity, an answer to the question posed by the hon. Member for Meirionnydd Nant Conwy about the magical arithmetic.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

I shall ask the Committee to reject the amendment. However, I am grateful to the hon. Member for North Cornwall for tabling it. I will explain why it should be rejected and will try to address the point raised by the right hon. Member for Skipton and Ripon.

The clause will place restrictions on how far orders granting development consent can go in authorising the compulsory purchase of common land, open space and fuel or field garden allotments. The restrictions are drawn from section 19 of the Acquisition of Land Act 1981. They provide that any order granting development consent that would also authorise the compulsory purchase of common land and other specified types of land can be made only after being confirmed by means of a special parliamentary procedure. There are two exceptions to that: first, where less than 200 sq m of common land will be acquired; secondly, where the applicant offers replacement land. I draw the attention of the right hon. Member for Skipton and Ripon to the explanatory notes for the Planning Bill. On clause 114, they state clearly that

“the Secretary of State is satisfied either that:

a) replacement land has been or will be given in exchange and that it will be subject to the same rights, trusts and incidents;

b) the land is being acquired in order to secure its preservation”.

I hope that that addresses the point that he has raised.

David Curry (Conservative, Skipton and Ripon)

The fact of the matter is that with a road or a pipeline, there is likely to be common land on both sides. Where will we find the land that compensates for the land that has been taken, other than outside the common? If it is outside the common, how can the Secretary of State satisfy herself, in the terms of the Bill, that those rights can be attached to the new piece of land? It will not have those rights to start with.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

Clearly, were the Secretary of State not satisfied, and the parliamentary procedure used, any hon. Member could object to the proposal. I understand the important issues that the right hon. Gentleman raises on transferring rights and entitlements, but the clause simply repeats provisions that are already extant in the 1981 Act. It will not introduce any new provisions or remove any existing rights. In that sense, the clause is simply a repetition.

On the question from the hon. Member for Meirionnydd Nant Conwy about the reason for the figure of 209.03 sq m, it is a straightforward conversion from the imperial measurement in the 1981 Act. That is how we end up with that rather obscure figure.

A third exception exists. Special parliamentary procedure would not be required in this regard if the compulsory acquisition of common land is being carried out in order to secure its preservation or improve its management. Amendment No. 403 would require the Secretary of State in such cases to publish a statement explaining the means and extent of any preservation or improvements. The effect of the amendment would be problematic as it would require the Secretary of State to make a statement whether or not she was the decision maker. Furthermore, this statement would presumably be required before the decision was made, which would pose difficulties as the Secretary of State would not have been involved in the examination of the application.

However, I understand the concerns of the hon. Member for North Cornwall that the promoters of nationally significant infrastructure projects could claim to be acquiring common land for its preservation or management as a loophole to avoid needing to provide replacement land. I hope that I can reassure him and the Committee that we share his concern and that the Government are currently considering tabling an amendment that would prevent such a situation arising. With that assurance and the explanation of the other points, I ask him to withdraw the amendment. If the Government decide not to pursue the matter, he can return to it on Report. But as we intend to bring forward an amendment that should meet his needs, he should let us do the work.

David Curry (Conservative, Skipton and Ripon)

Were I to table an amendment on Report to change 209.03 sq m to 210 sq m, on the grounds that a nice round figure makes disputes less likely—I would hate to fall out with somebody over 0.03 of a metre—would it be regarded as a concession that went beyond the Government’s compass? As we have had no concessions of any description up to now, would a piece of land of about that size meet with the Government’s approval? The suggestion is just in order to have a nice, tidy metric system, which I am rather in favour of.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

I understand exactly where the right hon. Gentleman is coming from. I am personally a big fan of imperial measures. I would rather have seen the figure left as it was in the Land Acquisition Act. However, we do have an amendment to go to 200 sq m, if that would suit him. It is, however, a reduction in the amount that is contained in the Bill at present. I have heard what he has said. Obviously, we will reflect on his suggestion, and he will have the opportunity to return to the matter.

Finally, if there is no equivalent land to replace it with, the expectation is that the Secretary of State would simply not certify it and it would go to a special parliamentary procedure.

Dan Rogerson (Liberal Democrat, North Cornwall)

I am grateful to the Minister. There are perhaps one or two problems with the clause in relation to that provision for compulsory purchase if it takes place without adequate explanation. I am grateful to the Minister for considering that. I am also grateful to him for standing up for imperial measurements and getting involved in that debate. As someone of a generation who was taught metric but was surrounded by adults who quoted back in imperial, I use that as an excuse for not being good at metalwork, woodwork or anything like that.

I am glad to hear that the Government are considering—[Interruption.]

John Butterfill (Conservative, Bournemouth West)

Order. The Committee must let the hon. Gentleman speak.

Dan Rogerson (Liberal Democrat, North Cornwall)

The key point here is certainly what the Minister was talking about and how the provision might be used as an excuse with regard to compensation. Even if it is not an excuse and there are legitimate reasons, exactly what those are must be made clear, because of stewardship issues and all sorts of matters, such as the Rural Payments Agency, as we heard from the right hon. Member for Skipton and Ripon. I look forward to seeing what the Government come up with. I beg to ask leave to withdraw the amendment.

Clause 118

Dan Rogerson (Liberal Democrat, North Cornwall)

I beg to move amendment No. 404, in clause 118, page 58, line 6, at end insert—

‘(2) In order to be satisfied under subsection (1)(b), the decision-maker must have regard to public consultation.’.

Public rights of way are a controversial subject; many hours have been spent along this corridor in various Committees debating rights of way and rights of access. I took part in such debates when I served on the Committee considering the recent Commons Act 2006, along with the hon. Member for Meirionnydd Nant Conwy and perhaps others on this Bill.

It is crucial that people have the chance to comment on any proposal to alter or extinguish a right of way. The clause as drafted allows a right of way to be extinguished as long as the decision maker is satisfied that

“(a) an alternative right of way has been or will be provided, or

(b) the provision of an alternative right of way is not required.”

However, it does not say how that conclusion will be drawn and what information will be available on which the decision-maker will base his decision. Consultation must be part of it, and there should be a duty to consult specifically on that issue.

The proposal to extinguish a right of way may not have been a significant part of the overall debate on the application or on site-specific national policy statements. The previous consultation will have addressed the bigger issues and people in the local community may not have noticed what was happening to the rights of way. At the end of the process when the development consent is granted it is important that the issue is drawn to the attention of local people so that they have the chance to comment on it. It may affect only one or two people but in a very significant way, and they may not have been aware of it when they were considering bigger issues connected with the development: for example, its construction, its size, transport issues and so on.

I hope that the Government will consider accepting the amendment to ensure that the decision maker has all the information to hand when deciding whether the provisions in the clause have been met.

Bob Neill (Conservative, Bromley and Chislehurst)

We are very much inclined to the support the amendment because we want to maximise people’s consultation opportunities in the Bill as a matter of principle. Rights of way generate surprisingly strong feelings, as hon. Members know from our constituency postbags. It is better to have a requirement to have regard to consultation and to ensure that people feel that they have a fair crack of the whip, rather than a group of dedicated ramblers, for example, going for judicial review arguing that their concerns about a right of way that is precious to them have not been properly taken on board.

I hope that the Government will be sympathetic to the amendment.

David Curry (Conservative, Skipton and Ripon)

As my hon. Friend said, this is a complex issue. On one hand, I am very sympathetic to farmers who find that a right of way goes straight across their working surfaces—for example, through the centre of a farmyard where animals are kept—and any attempt to divert it to a more sensible path usually meets with huge resistance.

On the other hand, many arable farmers display agriculture at its most bloody-minded in their absolute refusal to obey the law, which is that when land on which there is a public footpath is ploughed over, it should be made good within a certain time. But that land is often deliberately left so that to go across it is like engaging in an endurance test because walkers end up with mud up to their knees. There are important enforcement issues to be considered.

A lot of common sense needs to be brought to the issue. People need to recognise that there are genuine concerns about the management of livestock, and rights of way need to have a sensible regard to them. Equally, those historical rights of way have not been put there for the express purpose of interfering with the work of the agricultural community and irritating them, but it would be much better for all concerned if they did the minimum required to ensure that they are observed effectively. Those who do it rarely have cause for concern, but there are few issues that get people more angry than the obvious disregard of something through, as I have described it, sheer bloody-mindedness.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

We all know, for example, that the procedure for stopping a current right of way, a stop order, is time-honoured and defined in law, and I am sure that many of us have had experience of inquiries of that kind. I am concerned about the wording of paragraph (b), which states that

“the provision of an alternative right of way is not required.”

Who is to decide that?

Let us think about public footpaths, which often join up with one other. If a public footpath does not join up with another, is that a reason for saying that it is not necessary? For example, if there were two footpaths in a locality running roughly in the same direction, does that mean that one is not necessary? I would be wary of ditching the current procedure whereby age-old usage and local conditions are examined, along with whether they link up with others and are in reasonable repair.

I would be the first to say that there have been occasions when our friends in the Ramblers Association have suddenly decided that they use a footpath that they have not known for half a century previously, and spin out the costs in time, money and sometimes a great deal of frustration. That said, there are many public rights of way that people are reliant upon and that have existed for good purpose over many generations, so I am wary of the clause’s working because I would not like someone totally divorced from the locality to decide suddenly that a footpath is not necessary, for whatever specious reason there might be. In his response, perhaps the Minister could tell the Committee what kind of reasons are likely to be adduced to support the contention that a right of way is not necessary, as that would be quite useful for the debate.

Alun Michael (Labour, Cardiff South and Penarth)

I am grateful for the opportunity to ask the Minister to clarify the wording of the clause, because I am interested in the words “is not required.” On a variety of occasions I have had to deal with the protection of rights of way and have found myself at different times on different sides of the argument. For instance, many people will recall the van Hoogstraten case, concerning an outrageous obstruction of a public footpath where maintenance of the right of way was absolutely crucial. However, there has often been obstruction to the closure of rights of way in circumstances where closure is necessary for the reduction of crime and disorder, such as on council estates and in inner-city locations.

A few years ago, we clarified some of that in legislation in order to make it possible for appropriate closures to take place. The problem is that we all want appropriate closure and protection, and the definition of which is which, as the hon. Member for Meirionnydd Nant Conwy said, is not always easy. Therefore, being absolutely clear about what is meant by the words “is not required” is important, and it would be helpful if the Minister could spell that out.

I have some concern that public opinion could be the only arbiter of whether a particular closure takes place. There are some places where all sorts of closures would take place on the basis of instinctive public opinion, despite their being necessary for people to get around. In other circumstances, public opinion is absolutely the right criterion to use. Again, the devil is in the detail, so my concern is to be absolutely clear what the clause means and to ensure that there is no danger of unintended consequences, where wording is intended to mean one thing but perhaps at a later stage could be interpreted through case law to mean something rather different. Therefore, the clearest possible explanation from the Minister of the test for whether an alternative right of way is required would be extremely helpful.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

The Government do not support the amendment. The clause specifies that an order granting development consent cannot extinguish public rights of way over land, unless the authority making it is satisfied that alternative rights of way have been provided or that none are required. That point has been raised by my right hon. Friend and other colleagues in the debate. The procedures are drawn from section 32 of the Acquisition of Land Act 1981.

The amendment would compel the decision maker to have regard to public consultation before deciding that an alternative right of way is not required. That might prove difficult if the decision maker was required to hold their own public consultation for the purposes of this section. Such an additional consultation would be expensive and could delay unreasonably the final determination of the application.

In any case, we believe that the amendment is unnecessary. The application as a whole would already have undergone extensive consultation, been widely publicised and been examined in detail. It would have been open about any rights of way to be extinguished, and any person concerned about the proposal would have the opportunity to make representations to the promoter, or subsequently to the IPC on that matter.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

That is the crux of the matter: “has the right to make representations”. As the law stands, the person would have an opportunity to address, effectively, a tribunal hearing, or an inquiry. Therefore, the member of the public loses the right to challenge that procedure at inquiry level that they would previously have had. Now we are down solely to representations; that is a major concern.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

As I said, the application would have to have been open about any rights of way, and any person concerned could make representations. Any representation would have to be taken into account by the IPC if it was relevant, particularly in deciding whether a right of way was needed. We understand the importance of the issue.

We have the power to issue guidance on consultation in clause 37, which we have previously discussed. We intend that it would include guidance on the right of way. An example of a right of way that may no longer be required, as asked for by the hon. Member for Meirionnydd Nant Conwy, would perhaps be a cliffside path that has been washed away by erosion but would still exist in law, or a right of way that has fallen into disuse. Apparently there is clear case law on those types of definitions and it would apply in those instances.

Alun Michael (Labour, Cardiff South and Penarth)

It is not clear to me what my hon. Friend is drawing from those two examples. For instance, a clifftop right of way, which is an important aspect of access that Government policy supports strongly, would surely still be required. Is that the interpretation he is placing on that example? Also, he used the words “needed” and “required”. The Bill contains the word “required”, but it is not clear from what he has said what is meant by that.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

I have been trying to reassure the Committee that there is case law in respect of the matter, that there are instances in which there will no longer be a requirement for a particular right of way, that the representations that individuals can make are already contained within the consultative procedures, and that there would be no loss of rights, as there would be relevant representation for the examination, including the open floor stage.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The Minister is obviously engaging fully with the matter. All the case law is predicated on the fact that there is currently a statutory right to a full inquiry. That is the crux of the matter. I do not want to delay matters unnecessarily and perpetuate quasi-tribunals that might not be of any use, but we are talking about a time-honoured statutory procedure. People who feel aggrieved because they think they will lose what they believe to be their age-old rights of access will no longer have recourse to an inquiry. They will simply be allowed to send in a submission within the ambit of the planning procedure; in other words, they will be consulted in a way, but that is all.

As the Minister said, the case law on the issue is extensive, and often decisions are made on the quality and quantity of use—how many people use a footpath, how long it has been used, whether there is evidence that the local council have maintained it or it has fallen into disrepair and so on.

The Minister’s examples are obvious ones that would cause no problem to anyone, but many fall into another category, which would create problems. For example, people rely on footpaths for recreation and other purposes, and they might find their representations on what might seem to be a trivial matter have been brushed aside in the interests of a larger scheme. For a local village or town the matter is not trivial but very important. The Bill is in danger of trampling on people’s ancient rights.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

I recognise the sensitivity and significance of the issue. We have had many discussions about previous procedures and ways of doing things, and this proposal changes things, but we want to reassure everyone who is interested that we are trying to strengthen the consultative arrangements by having a pre-application stage and a hearing.

I tried to explain to the hon. Gentleman that there will be no loss of the right to complain to the inquiry. There will be relevant representations for examination during the open floor stage of hearings. Individuals will still have the right to make those representations—

Mrs. Laitrose—

Mr. David Jones (Clwyd, West) (Con) rose—

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The open floor does not assist me very much, because the IPC could decide not to allow examination or cross-examination at that stage. Therefore, any objector could be muffled.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

I shall take interventions from the hon. Lady and the hon. Gentleman.

David Jones (Conservative, Clwyd West)

I want to underline what the hon. Member for Meirionnydd Nant Conwy said. I have been involved in many inquiries about public rights of way and I know the fundamental importance of cross-examination. The veracity or otherwise of evidence of long use can usually be tested only by assiduous cross-examination. If that is to be abandoned as a result of the proposed procedure, people’s rights will be trampled on, as the hon. Gentleman said.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

We are returning to previous discussions about the adequacy of the consultative arrangements being put in place, whether the IPC will be able to satisfy people that their concerns are being listened to and whether they have an adequate opportunity to put them before the appropriate authorities. We are confident that the arrangements we propose are more than adequate, and we oppose the amendment on that basis.

Dan Rogerson (Liberal Democrat, North Cornwall)

The Minister sets great store by the fact that there will be an examination of the overall application. However, subsidiary changes are proposed in this and other clauses to what will happen in the local area based on the main applications. The wider environmental impact will be considered primarily, and that will be people’s biggest concern. Consideration will also be given to transport implications and all sorts of matters that were set out in the national policy statements and how they should be applied locally once an application has been submitted.

Rights of way will not necessarily occur to people straight away. They might come to the fore only later on, when it would be too late for them to be considered in the open hearing. People will quite rightly have been exercised by the bigger picture and the totality of the development. There might be other provisions and unforeseen consequences. In the application and consultation, the applicant may have put on page 753, line 22: “PS: We’re going to take away your right of access.” That is not good enough. On matters as contentious as rights of way, where there are established processes for addressing the issues, I think that the Government have gone far enough. We have heard from hon. Members how important such provisions are to people.

Very generously, the Minister said that he will look again at the provisions under clause 114. I think that it is unfortunate that he has decided not to do so under this clause. Having heard about these concerns from hon. Members of all parties, it is important that we test the Committee’s opinion.

Clause 119

Jim Fitzpatrick (Labour, Poplar and Canning Town)

The clause would place a restriction on the ability of a decision maker to make an order granting development consent that authorises the carrying out of specified excavation, mining, quarrying or boring operations in a specified area. It specifies that the decision maker can make such an order

“only if the development to which the order relates is or includes the underground storage of gas.”

The provision was aimed at ensuring that a development consent order could authorise controlled operations in the same way as an authorisation under section 5 of the Gas Act 1965. However, it is not now intended that the IPC should be responsible for authorising this type of excavation work in the vicinity of a nationally significant infrastructure project. Instead, the Secretary of State will remain responsible for such authorisations. As a consequence, the clause is not required. The Government therefore propose that it be removed.

Clause 123

Jim Fitzpatrick (Labour, Poplar and Canning Town)

I beg to move amendment No. 435, in clause 123, page 58, line 37, at end insert—

‘(1A) If an order granting development consent includes provision authorising the charging of tolls in relation to a proposed highway, the order is treated as a toll order for the purposes of sections 7 to 18 of the New Roads and Street Works Act 1991.’.

The IPC will have powers under clause 105(4) to provide for the charging of tolls in a development consent order. Clause 123 specifies that an order granting development consent can only authorise the charging of tolls in relation to a proposed highway if that is requested in the initial application. It is entirely possible that funding arrangements for a proposed highway may be based on predicated tolls being charged.

The amendment is a technical one to ensure that, when the IPC makes an order authorising the charging of tolls in relation to a proposed highway, that order is treated, for the purposes of related legislation such as the New Roads and Street Works Act 1991, as a toll order. That will ensure that the order granting development consent has legal effect in other legislation governing toll roads.

Clause 126

Clause 127

John Butterfill (Conservative, Bournemouth West)

With this we may discuss clauses 128 and 129 stand part.

Jacqui Lait (Conservative, Beckenham)

I have only a brief question on clause 129. I note that it refers to a building being erected, extended, altered or re-erected. The building can only be used for

“the purposes for which the building is authorised to be used.”

For how long does that definition extend? Our country is covered with buildings that started with one purpose and have been converted to another. If an infrastructure development becomes redundant at some point, the associated buildings become redundant—the infrastructure could remain, but, for all sorts of reasons, the building could become redundant. Is there, in essence, a covenant on that building, or can its use be authorised to be changed?

Alun Michael (Labour, Cardiff South and Penarth)

I have a question about clause 129(2), which states:

“If no purpose is so specified, the consent is taken to authorise the use of the building for the purpose for which it is designed.”

I would be grateful if my hon. Friend can explain how the purpose is defined for that subsection. I ask because of a recent planning application in my area where there was a debate between members of the public and the local authority, which had to reach a determination on the application, about the purpose of a building that was being converted and the intentions of the developers. Sometimes, the purposes are very straightforward—for instance, with residential or commercial properties—but sometimes they are considerably less clear, as with this particular application. Will he explain what is meant by

“the purpose for which it is designed”?

Is it a question of what is set out in the application or is there some other meaning?

Jim Fitzpatrick (Labour, Poplar and Canning Town)

Clause 129 specifies that where a development consent order is made that includes the erection or alteration of a building, the order may specify the purposes for which the building can be used. Where the development consent order is silent about this matter, it is to be assumed that the building will be used for whatever purpose it was designed. That provision ensures that the IPC can specify, in the terms of a development consent, what a building will be used for and thereby ensure that, subject to the applicant receiving any necessary operational or safety consents from the appropriate regulator, there will be no regulatory gap preventing him from using the building for the purpose for which consent was granted.

In response to my right hon. Friend, the nature or purpose of a building will be determined and defined by the application. In response to the hon. Lady, a building can be used for the purpose for which it was intended or designed, but not only for that purpose.

I must confess that on reading clause 129, I consulted my officials because it is the last clause that I am responsible for in this sitting. I sensed that this was the elephant trap because it did not look very convincing to me. I am assured very strongly that this provision is for legal clarity in respect of an application that is submitted for consent. It will ensure that there is no gap at the end of the application and that, as I have explained, the building can be used for the purpose for which it was designed or for that which is stated in the application—whichever is appropriate.

Alun Michael (Labour, Cardiff South and Penarth)

I think that I understand what my hon. Friend is saying, but I would like to be clear. The words in the clause mean that it is not what a designer had in mind when they were drawing the plans, but what is stated by the applicant in the application for permission that determines the purpose.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

My right hon. Friend is very experienced in bringing legislation forward and in interpreting the words that are on paper. Clause 129(2) states:

“If no purpose is so specified, the consent is taken to authorise the use of the building for the purpose for which it is designed.”

If the application does not say that it will be an extraction room, but it is clearly an extraction room because of the nature of the equipment that is in it, the fact that the application is silent on that issue will give some certainty to those who are watching the construction as to the nature of the building.

Jacqui Lait (Conservative, Beckenham)

So that I have got it on the record, if a building subsequently becomes redundant, can somebody apply for it to be used for another purpose? I would like just a quick yes or no.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

The answer is a clear yes, as I tried to explain.

Clause 130

Bob Neill (Conservative, Bromley and Chislehurst)

I beg to move amendment No. 27, in clause 130, page 60, line 39, at end insert—

‘(1A) The measuring and marking out of land shall not constitute development for the purposes of this section.’.

We have another change of personnel and voice to keep everyone with us. The amendment would ensure that there is an effective time limit for the new criminal offence. After all, it involves a substantial financial penalty: £50,000 on summary conviction, which is well above the normal rung for such matters, and an unlimited fine on indictment. Therefore, it clearly envisages a harsh penalty.

Against that situation, it is right and proper that there should be an effective time limit for the bringing of proceedings, as with all criminal offences. Clause 132, as it stands, provides for a four-year time limit for bringing charges for committing the new offence—[Interruption.] I have read the wrong sheet, and am grateful to hon. Members for correcting me. I have my briefing notes here and have moved on to the wrong clause.

When dealing with a substantial financial penalty, it is important that it is proportionate to the operation concerned, and amendment No. 27 would deal with some case law, sometimes referred to as the Malvern hills case, about the definition of what the commencement of development can be. In a nutshell, the Malvern hills case indicates that setting out the pegs for laying out a road constitutes the commencement of development. Perhaps other members of the Committee have a more detailed awareness of these issues than I do, but that case certainly seems to be well settled and the lawyers, who naturally take an interest in those matters, have advised us that that is the potential situation.

Is it really proportionate, which is the issue that the amendment seeks to raise with the Government, to put someone at risk of such a substantial financial penalty when all that has happened is in itself a minor operation? I can see that it has consequences and should be stopped if unauthorised. We are not talking about anything to the contrary, but there are other mechanisms to stop that development. It seems to us that that does not come into the same category of someone who carries out a significant piece of development.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The hon. Gentleman is right, because when one looks at clause 127(2)(e), one sees that it states that “Material operation” will include

“an operation in the course of laying out or constructing a road”.

An anomaly will be entrenched in the Bill.

Bob Neill (Conservative, Bromley and Chislehurst)

I am grateful to the hon. Gentleman for that. He reinforces our point. Given that that could be rectified much more readily through the other procedures available, it seems excessive that someone who simply sets out the pegs potentially commits an offence that brings down such a penalty.

Part of our concern throughout has been that the Bill and the regime that it sets out command public confidence. It seems to be excessively heavy handed and out of proportion for someone who might act in good faith to be liable for that criminal offence because of a misapprehension about the position, despite having been put right. Indeed, a four-year time limit for the bringing of proceedings seems to be simply too much, and that is why we seek to place that modest, but important, limit in the interests of fairness.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I support the amendment and will give an example from the area in which I live. In Aberdovey, which is a small, charming village on the Cardigan coast, about 200 planning permissions going back to the 1960s are still viable because of a tiny amount of work on laying out the roadway into the village. The consequence has been that anyone along that coast seeking planning permission, even for one house, is told, “I am sorry. There are too many permissions already.”

I agree that a development should be far more substantial to qualify as material. Otherwise, unfortunately, there will be land banks here, there and everywhere. People will decide to invest their money in a piece of land for development, put in a slight amount of infrastructure, leave it there for 25 years, and, bingo, there is their pension policy. At the same time, it will skew all planning policy and practicalities in the local area, as I have seen, to the detriment of my constituents. I hope that the Government will seriously consider the amendment.

Parmjit Dhanda (Labour, Gloucester)

It is a pleasure to serve under your chairmanship, Sir John, albeit in the autumn days of this Committee sitting.

I will give some reassurance to the hon. Members for Bromley and Chislehurst and for Meirionnydd Nant Conwy. The amendment seeks to ensure that the measuring and marking out of land does not count as development, for which a person could be prosecuted if they did not have a consent order. Marking out land is quite different from the definition of laying out a road—they are quite separate and different things. I do not believe that the amendment is necessary. Under clause 127, development will be taken to have begun when a

“material operation comprised in the development begins to be carried out.”

Bob Neill (Conservative, Bromley and Chislehurst)

Is the Minister saying that those who advise him can reassure me that the laying out of pegs on the site, under circumstances such as we and the hon. Member for Meirionnydd Nant Conwy have been talking about, would not be caught by the definitions in the Malvern hills case?

Parmjit Dhanda (Labour, Gloucester)

I will make the situation clear by going through the list of enforcement issues that are relevant and those that are not, for the benefit of the Committee.

A material operation is defined in clause 127(2) as

“(a) a work of construction in the course of the erection, extension, alteration or re-erection of a building”.

—that is obviously not a mapping out, as in the hon. Gentleman’s amendment—

“(b) a work of demolition of a building;

(c) the digging of a trench which is to contain the foundations, or part of the foundations, of a building;

(d) the laying of an underground main or pipe—

(i) to the foundations, or part of the foundations, of a building, or

(ii) to a trench...

(e) an operation in the course of laying out or constructing a road, or part of a road;

(f) a change in the use of land which constitutes material development.”

The measuring and marking out of land therefore does not count as development under the legislation, with the sole exception of laying out a road that is specifically catered for.

I must re-emphasise to the Committee that clause 130 is specifically about nationally significant infrastructure projects that do not have consent. That is important. Clause 131 is a slight variant on that, and deals with a situation where a person has consent but is deviating from it.

Dan Rogerson (Liberal Democrat, North Cornwall)

The Minister is right to point out that some of these matters might more properly have been discussed under other clauses—such as clauses 126 and 127, on when development begins—that we have skipped over as we have rapidly made progress.

I do not know whether the Government have considered this question, and I hope that it is not out of order, Sir John, but it concerns me whether, once development has begun, there is a period within which it should be completed. We have doubtless all seen examples in our constituencies of a building being begun and then being left for a long time, but the development consent standing because some work has been going on. Have the Government looked at that issue, too? A major infrastructure project could be begun and then halted, for whatever reason, for a number of years, with environmental consequences for people in the surrounding area.

Parmjit Dhanda (Labour, Gloucester)

Yes, and the hon. Member for Bromley and Chislehurst is coming to that issue with amendments to clauses in part 8. I hope that I have managed to give the assurances that the hon. Gentleman sought. The amendment is consequently unnecessary and I urge him to withdraw it.

Bob Neill (Conservative, Bromley and Chislehurst)

I am only partly reassured. I understand the Minister’s intentions, but concern remains about how the definitions that he read out from the Bill are likely to be construed if it comes to litigation in court. We have imported “material development” from the town and country planning legislation into the second element of the test. The Malvern hills case was decided under that legislation. I am not sure that we have yet got to a stage where we have effectively excluded a result that we both seem to want to achieve. Perhaps I can leave it this way: we will take further advice. If I do not press the amendment now, perhaps there could be some discussion to ensure clarity. If not, we might need to return to this issue on Report. That said, I beg to ask leave to withdraw the amendment.

David Curry (Conservative, Skipton and Ripon)

My hon. Friend the Member for Bromley and Chislehurst is concerned that developers might get walloped unfairly for what they do. My concern is that they do not get walloped enough for the things they do unfairly. Some developers are given an inch and they try to take a mile. They know that the local authority will be very reluctant to take enforcement action because it costs an arm and a leg. The entire budget of the smallest local authorities that are planning authorities may be £7 million or £8 million. Even a fairly significantly sized local authority would have a budget of less than £20 million. Planning officials are therefore extremely reluctant to commit the local authority to embark upon a great case for enforcement. Equally, they are often reluctant to refuse planning permission because they do not then want to have to face the costs of going to the inquiry and contesting that planning permission.

In many ways the odds are rather stacked against local authorities. We know that some companies resent the whole business of planning permission in any case; they regard it as unnecessary bureaucratic interference. They get permission for X, and they do X plus, and there is a deliberate challenge to the local authority to take enforcement action. The roof-lines might be somewhat higher than agreed; the intensity of development might be somewhat more than planned. Equally, we all know that in the corner of a field there might be a shed, and five years later 5 acres of landscaped gardens and goodness knows what else has been built there without planning permission. A deliberate gamble is taken that the local authority will eventually cave in.

I subscribe to the belief that we should try to make planning more rapid, effective and transparent, but the quid pro quo is that where people deliberately try it on, the powers to prevent that from happening should also be reinforced. I should be grateful if the Government considered looking at this issue so that, perhaps during the Bill’s later stages, we can get more of a balance. We need to balance the acceleration that we all agree is necessary with the reassurance that it will not mean that people who are somewhat cavalier with the rules will get away with it, because of local authority reluctance, for whatever reason, to get into the significant legal tangle of taking enforcement measures that could even result in the demolition of the development itself.

Parmjit Dhanda (Labour, Gloucester)

That is a very helpful contribution, and those are the steps that part 8 tries to take. It is not just about the hefty fine of up to £50,000 for developments without consent, which has already been mentioned. The later clauses in part 8 make it incumbent on developers who do not have permission to take down the development in question in some cases; indeed, under certain clauses the local planning authority can enter the land, take the development down and bill the developer for doing so. I hope that that reassures the right hon. Gentleman that this clause and others in part 8 take into account his understandable concerns.

Clause 132

Bob Neill (Conservative, Bromley and Chislehurst)

I beg to move amendment No. 420, in clause 132, page 61, line 28, leave out paragraph (a).

I return to the matter that I inadvertently anticipated earlier—the time limits for bringing prosecutions. The clause puts a four-year time limit on bringing prosecutions for the new offence of carrying out development without consent or of breaching the terms of an order granting consent. However, under the clause, someone could be charged with one of the offences after the expiry of the four-year time limit if the local authority had applied for an injunction under clause 141 or if it had been served with an information notice under clause 137. The injunction probably relates to something that is fairly significant: a development that actually happened and on which some restraint is required. There will be some certainty in such a case because there will be a hearing on the injunction and the court will make a definitive order.

I am more concerned about the use of the information notice under clause 137 because it would require the person on whom it is served to provide information about any operations they are undertaking to enable the authority to determine whether one of the criminal offences has been committed. The notice would then hang over that person, whether or not the information process is proceeding. Once the notice is served, the time that it takes for that notice to be complied with—it will depend on the complications and nature of the works that are going on—will extend the time available for bringing proceedings. If an authority were strongly opposed to a developer, the time available could be stretched considerably longer than the four-year period.

Most people who have been involved in these things know that quite often in development, there may be a minor infringement of the conditions by, perhaps, a subcontractor acting in good faith. If those infringements are dealt with sensibly, the problem can be put right. In theory, however, the authority would be able to serve an information notice and trigger the provisions of the Act. Even if the information notice was served very shortly before the expiry of the four years, until the whole rigmarole was complied with, the risk of criminal prosecution would arise.

If a lot of notices were served, one after the other—as far as we can see, there is nothing to stop that if the local authority comes back with another notice after the first one has been served—the time in which there is a threat of prosecution would continue well beyond the four-year period. I suspect that that is an unintended consequence of the proposal, and the amendment would remove it.

Our view, which is held by many practitioners in this sector, is that although we do not have a problem in principle with the enforcement provisions of development consent orders, they might be better served if they followed the existing enforcement regime under section 171B of the Town and Country Planning Act 1990. That is why we tabled the amendment and it will be interesting to hear what the Minister says.

Dan Rogerson (Liberal Democrat, North Cornwall)

I listened closely to what the hon. Member for Bromley and Chislehurst said in his case for the amendment. However, I also have in the back of my mind the case put forward by the right hon. Member for Skipton and Ripon about ensuring that enforcement is as powerful as possible. There are many cases every week around the country of smaller developments of the nature that he mentioned, such as where roof lines are built slightly too big. However, we are talking not about that, but about very significant projects.

It is unlikely that the developers that we are talking about, having invested so much time in this process, will step outside the law. I do not think that there will be many cases of that. Having invested much time and effort in getting a huge application such as this through the process, it is unlikely that they will jump the gun. However, it is important that there is a clear provision that is as flexible as possible for enforcement to be carried out. On this occasion, I am not sure that I agree with the hon. Member for Bromley and Chislehurst.

Parmjit Dhanda (Labour, Gloucester)

There is an interesting piece of triangulation on the Committee because I am inclined to agree with the hon. Member for Bromley and Chislehurst. In a peculiar way, that gives the right hon. Member for Skipton and Ripon what he has been asking for all this time. He was saying that we have not given in on anything.

I suspect that the hon. Member for Bromley and Chislehurst has been talking to his old friends in the Law Society, and I confess that he is on to something. He expressed concerns that the clause, which is about invoking time limits for enforcement action, will mean that if an information notice is served under clause 137 before the expiry of the four-year time limit, a developer could find themselves faced with the indefinite threat of legal proceedings, under one of the new criminal proceedings. That may well happen because a local authority that is for ever opposed to a nationally significant infrastructure project could choose to use this process as a mechanism to keep the enforcement going. I am sympathetic to that point.

The Government are considering the application of time limits to the enforcement provisions. In doing so, we will be happy to take the hon. Gentleman’s concerns into account and will come back to him at a later stage. Although I am not accepting his amendment as worded, due to the potential consequences attached to it, I am happy to return to the matter and take on board what he has said. He has a fair point.

Bob Neill (Conservative, Bromley and Chislehurst)

I am grateful. In a different Bill Committee, on which the Under-Secretary of State for Transport, the hon. Member for Poplar and Canning Town (Jim Fitzpatrick) served, this would have been described by my hon. Friend the Member for North-East Bedfordshire (Alistair Burt) as a “champagne moment”. I am very grateful to the Minister and will relay what he has said back to those who open champagne in the Temple and the Inner Temple. I accept his point and if we can find a way forward, I will be grateful. I beg to ask leave to withdraw the amendment.

Clause 133

Bob Neill (Conservative, Bromley and Chislehurst)

I beg to move amendment No. 28, in clause 133, page 61, line 37, at end insert

‘provided that 24 hours notice of the intended entry has been given to the occupier of land.’.

John Butterfill (Conservative, Bournemouth West)

With this it will be convenient to discuss amendment No. 29, in clause 133, page 61, leave out lines 38 to 40.

Bob Neill (Conservative, Bromley and Chislehurst)

The amendments are about proportionality in respect of rights of entry. Quite simply, they seek to redress the balance. We understand that there will be circumstances in which rights of entry are appropriate, but we are concerned that the Government are going too far in giving draconian powers of entry to people’s property and, in some instances, to what may be their home.

We do not agree with the Government’s contention that it could be appropriate for somebody to enter a dwelling without notice, and so have tabled amendment No. 29. The Government are proposing that someone can go in with 24 hours’ notice being given to the occupier of a dwelling. We think that that is very limited. If somebody is away, for example, that does not give them very much time at all, yet it is a significant intrusion into their home. That is why we are saying that if someone wants to go into someone’s home, they should get a warrant under clause 134 rather than rely on the power to enter without one under clause 133.

I understand that there will be circumstances in which someone will wish to enter other premises—business premises and so on—and, because that involves less intrusion into people’s private lives, to which they have a right under domestic law and the European convention on human rights, we do not have quite the same difficulty with that. However, we think that there ought to be an attempt to give notice first.

The trigger should be that if the premises is a business premises, someone should seek to give notice and, if that is not possible, go in without a warrant. If it is a dwelling house, or a family house, it is not that onerous to get a warrant. It does not really take that long to get one. Those of us who have had experience in criminal law will know that a warrant can be applied for quickly if there is an emergency. I appreciate that there will sometimes be such cases, but entry to a dwelling should require the extra safeguard.

Parmjit Dhanda (Labour, Gloucester)

I am afraid that I am not about to give in again to the hon. Gentleman. [Interruption.] The bubbles are evaporating indeed.

The clause is about enforcement. The idea of a dwelling on the site of a nationally significant infrastructure project is an interesting notion. It almost goes back to the point made some days ago by the hon. Member for Beckenham about nuclear fusion—perhaps within a household, who knows?

It is quite fair for the clause to require 24 hours’ notice if we are talking about the remote possibility of a house on a site where there is development taking place, or if there is a nationally significant infrastructure project at the bottom of the garden. The Bill is consistent with the Town and Country Planning Acts. It gives the local planning authority the element of surprise in the likely scenario that it is actually the developer on the site who is perhaps doing something that he should not be doing. For those reasons, enforcement is important.

Bob Neill (Conservative, Bromley and Chislehurst)

I shall return to the issue of what dwelling houses might be on a site. Is the Minister’s advice that the clause would not permit entry into a dwelling that is not on the site of a major infrastructure structure project—it might be the home, let us say, of the developer or the engineer—to seize documents, plans and other correspondence that might indicate whether instructions had been given to carry out works on the site? It seems that if someone were carrying out the investigation, one of the things that they might seek to do is to go into the offices to get the drawings, for example. That is the situation that I am particularly interested in. Is the Minister saying that that would not be covered?

Parmjit Dhanda (Labour, Gloucester)

I am saying that the clause is specifically about getting on to a site. We will be moving on to another clause, and amendments tabled by the hon. Member for North Cornwall, that deal with a local planning authority not being able to access a site, the role of the justice of the peace, and giving a period of forewarning prior to accessing a site. Clause 133 gives an important power to local planning authorities to get on to a site, and to do so with an element of surprise.

Bob Neill (Conservative, Bromley and Chislehurst)

I understand much of what the Minister says. I do not want to sound ungrateful, but I have some residual concerns. It is possible that they can be met, but first I should speak again to those to whom I spoke about the previous clause. If concern remains, we can return to the matter on Report. I beg to ask leave to withdraw the amendment.

Clause 134

Dan Rogerson (Liberal Democrat, North Cornwall)

I beg to move amendment No. 405, in clause 134, page 62, line 16, leave out ‘a reasonable period’ and insert ‘14 days’.

This debate is related to that prompted by amendments Nos. 28 and 29. It is to do with the phrase “reasonable period”. Hon. and learned Members may well tell me that that is a standard phrase and that I should not be alarmed about it. The amendment simply suggests a period within which people should be notified that a warrant has been issued. The word “reasonable” could be open to interpretation.

Bob Neill (Conservative, Bromley and Chislehurst)

I have some sympathy with the amendment. I am open-minded about it because such phrases are used in other statutes. However, there is always an advantage in clarity, so I shall be interested to hear what the Minister has to say.

Sadly, the term “hon. and learned” has a particular connotation in the House; it requires appointment to a rank that, despite my career at the bar, no Lord Chancellor has yet thought suitable for me. If the hon. Gentleman wants to write a note for next year’s round, his support would be gratefully received.

Parmjit Dhanda (Labour, Gloucester)

The clause is particularly relevant in the event that entry has been refused to a development site. It provides that a justice of the peace may issue a warrant authorising a person authorised by the local planning authority to enter the land. The conditions are

“that there are reasonable grounds for suspecting that an offence...is being, or has been, committed”

under clauses 130 or 131; that entry to the land has been or is likely to be refused; or that it is an urgent case.

Clause 134(4) provides that entry is to be regarded as having been refused if no reply to request for admission has been received within a reasonable period. The hon. Member for North Cornwall suggests 14 days—a popular time for him—but the amendment is not necessary. I shall explain why.

The provision is based on similar provisions in the town and country planning regime, which have historically worked very well. It allows the JP, when considering an application for a warrant, to reach a view on whether a reasonable period has been given for a response. The JP may well decide that that period should be 14 days, or that it is more urgent than that. I suggest to the Committee that the provision has worked well in town and country planning, and that we should follow that model in part 8 of the Bill.

Dan Rogerson (Liberal Democrat, North Cornwall)

I am grateful to the Minister for that confirmation. I suspected that there might be precedent, and I am grateful to him for pointing it out. I beg to ask leave to withdraw the amendment.

Clause 136

Dan Rogerson (Liberal Democrat, North Cornwall)

The clause deals with an issue that has concerned me throughout: Crown land being given an exemption that does not apply to any other land. I can see that there are particular facilities or areas to which one would not expect a right of entry. There is a facility in my constituency operated by GCHQ that I would not expect the local planning authority to be able to get access to easily. However, Crown land is a wide definition, and an awful lot of land could be covered. I am concerned that the Government could perhaps have defined it a little more closely and that Crown land is too widely defined.

Parmjit Dhanda (Labour, Gloucester)

I shall aim to provide clarity for the hon. Gentleman. The clause specifies that the rights of entry that we have just discussed under clauses 133 and 134 do not apply to Crown land. Clause 175 states that offences under the Bill do not apply to the Crown; hence, powers of entry are not required. That clause is equivalent to section 296A of the Town and Country Planning Act 1990. It is a standard provision that the Crown cannot commit an offence under planning legislation.

Rights of entry to Crown land are strictly controlled. Although we have disapplied them under part 8 of the Bill for the reasons that I have set out, other rights of entry powers can be exercised if the appropriate Crown authority gives consent, such as under clause 48. Examples of such an exemption include Ministry of Defence land, in relation to which it is clearly right that there should be additional safeguards. In short, the intention is to make the Bill consistent with the 1990 Act.

Dan Rogerson (Liberal Democrat, North Cornwall)

I am grateful for that clarification. I still think that the clause perhaps captures too much land, but I shall not seek to press the matter.

Clause 137

John Butterfill (Conservative, Bournemouth West)

With this it will be convenient to discuss clauses 138 to 142 stand part.

Bob Neill (Conservative, Bromley and Chislehurst)

I have one question on clause 138 and offences relating to information notices, on which I am sure the Minister can help me. Earlier in the Bill, in clause 130, we set up the offence of development without development consent, which is punishable on summary conviction and on indictment. Interestingly, in clause 138, particularly subsection (4), we are considering—it is a common enough formulation—an offence that, under certain circumstances, such as making a statement that one knows to be false or misleading in material respects, might be argued to import dishonesty, and probably would, given the facts of certain cases.

I imagine that the reason for the provision is that the Minister seeks to follow the Town and Country Planning Act 1990 approach and other precedent. We have talked about lower-level breaches, and I shall sound like my right hon. Friend the Member for Skipton and Ripon now, but when there is dishonesty involving a potentially important breach in relation to a substantial project with significant sums at stake, would it be appropriate to make that offence triable on indictment, too?

Parmjit Dhanda (Labour, Gloucester)

Again, the hon. Gentleman makes a good point. If he looks closely at clause 138(3), he will see that for failing to respond to the information notice, one can incur a level 3 fine, which is £1,000. However, he makes a fair point that if one deliberately misleads, there should be a bigger fine, and subsection (5) states that if there is an offence under subsection (4), the fine will not exceed level 5, which is £5,000. So we have taken the issue into consideration and I hope that he will be satisfied, because we have done so for the reasons that he outlined. If someone deliberately misleads, it is a bigger offence.

Bob Neill (Conservative, Bromley and Chislehurst)

I understand and am grateful to the Minister. In certain circumstances, however, given the size of the project and what is at stake, one might be tempted—if one were being cynical—to say, “Cheap at the price.” I shall not press the point, but perhaps the Minister will think about it again, because I can envisage circumstances in which the misleading behaviour, if it were shown to be seriously dishonest, could be as grave—in terms of public perception—as the offence under clause 130.

Parmjit Dhanda (Labour, Gloucester)

It is important to remember that clause 138 deals with offences relating to information notices, not specifically to the development of a nationally significant infrastructure project on land, so the provision is proportionate for offences relating to information notices.

Clause 143

Bob Neill (Conservative, Bromley and Chislehurst)

I beg to move amendment No. 421, in clause 143, page 66, line 8, at end insert—

‘(za) in subsection (1) delete the words “interested in land in the area of a local planning authority”;’.

The amendment would assist the Government in their objectives and improve the Bill. It may sound technical, but the reason for adding,

“interested in land in the area of a local planning authority”,

is that the Town and Country Planning Act 1990 regime allows a person to enter into a planning obligation only if they hold an interest in land that is subject to development. There are proposed amendments to section 106 of the 1990 Act and we are not unsympathetic to them, but the amendment before us suggests that to make the system work better, it might be sensible to extend matters, because section 106 does not permit every promoter of an infrastructure project to enter into a planning obligation.

It might help if I gave an example. If an application for development consent includes power for the promoter of the infrastructure project to acquire land by compulsory purchase—an example would be the site of a power station—the promoter would enter into the planning obligation only after the compulsory purchase order process had been completed. Only at that point will he hold an interest in land for the purposes of the Act. If the promoter proposes to install overhead power cables or underground pipelines, we are advised that the current wording would mean that he would have no interest in the land at the time that the application for development consent goes in. He will have interest in the land only after the development consent has been obtained and after the promoter has exercised the compulsory acquisition powers that come with it. That means that he cannot enter into a planning obligation at the time that the development consent is granted. We should have thought that it was probably desirable from the Government’s point of view, as much as anyone else, that he be able to do so.

That is really what we are looking to achieve here. This matter has been raised by a number of practitioners in the field. We are sympathetic to the objectives, but we wonder whether there is an opportunity to improve the Bill’s operation by enabling people to enter into a section 106 agreement at the stage of consent. That would be consistent with the desire to have as much pre-application discussion as possible. No doubt the terms of that agreement would have been worked out and everything could be wrapped up more efficiently if it were not caught on the legal hook of whether, at the time when consent is granted, the promoter has an interest in land.

John Healey (Labour, Wentworth)

This is an important clause. I accept the hon. Gentleman’s explanation of his amendment and I recognise that the matter has been raised by a number of practitioners. I will try to deal with the clause as drafted and explain the purpose behind it; I hope that that will help the Committee. It allows the promoter of a nationally significant infrastructure project to enter into agreements with local authorities. Its purpose is to allow them to do so in the same way—I think the hon. Gentleman recognises this—as a developer seeking planning permission under the 1990 Act.

The clause is needed to allow full use of planning obligations to be made under the single consents regime. By allowing planning obligations to be negotiated on a bilateral basis between promoters and local planning authorities, agreement can be reached on many important issues that might otherwise have to be brought to the IPC’s attention for examination. Clearly, if they can be dealt with and agreed in advance, that saves everybody time and hassle. Certainly, it helps to speed up the IPC’s examination process and allows it to concentrate on the matters where agreement cannot otherwise be reached.

I recognise that the hon. Gentleman raises a real concern with his amendment, but it is not workable. In many ways it would wind the clock back a number of decades. At present, under section 106 of the 1990 Act, any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation with the local planning authority in question. The obligation is registered as a land charge.

John Healey (Labour, Wentworth)

Welcome back, Mr. Illsley. I am glad to see that you are in rude health.

I was setting out the way in which an obligation is formally registered as a land charge. It serves as a permanent restriction on the land, whereby that planning obligation will transfer to any successor in title who owns that land. The amendment would remove the need for a person to be interested in land in order to conclude a planning obligation with the local authority. Therefore, the planning obligation, which hon. Members are concerned about, would not attach to particular land in the way that it currently does under section 106 of the Town and Country Planning Act 1990.

I began my remarks by saying that I have some sympathy with the proposal and recognise that this concern has been raised by practitioners. I recognise that under section 106, a developer who is seeking to acquire an interest in land through a compulsory purchase order cannot enter into a planning obligation, while at the same time the existence of a planning obligation may be an important factor in deciding whether a local planning authority grants that planning permission in the first place.

In practice, the way through that problem is generally that the developer negotiates the terms of the section 106 obligation before acquiring the land and submits in draft for the approval of a local planning authority. The planning authority then comes to a preliminary view on the application and indicates whether it is minded to approve the application, subject to a prior completion of a planning obligation. Assuming that it is minded to grant consent, the applicant then goes about securing an interest in the land, which can take the form of a legal option to purchase the land, subject to the planning permission being granted. Often, in such circumstances, those three elements are brought together and concluded simultaneously.

Although that process can be cumbersome, the alternative approach that would be put in place by the amendment, not just for major infrastructure projects under the infrastructure planning commission but much more widely under the Town and Country Planning Act system, would cause more problems than it would solve. The mechanism of a planning obligation relies on a charge being placed on the land, which makes the terms of the obligation enforceable against subsequent owners of it. That works because any prospective purchaser gets notice of the planning obligation before buying the land and is fully aware of the burdens or responsibilities that come with it. At the same time, the purchaser gets the benefit of the planning permission issued in relation to the planning obligation.

In contrast to that, the amendment would allow persons to enter into planning obligations even when they do not own an interest in the land in question. It would therefore be impossible to place a land charge on the land. That would make enforcement increasingly problematic, particularly if there was a change of ownership. A planning obligation in those circumstances would be more like a personal contract that is enforceable against the original parties but would not be passed on to subsequent land owners.

Although I accept that the procedures that are necessary under the existing section 106 terms can be rather awkward, the answer is not to alter fundamentally the nature of a planning obligation from a covenant attached to the land to a contract that is more personal in nature. I hope that I have given the hon. Member for Bromley and Chislehurst sufficient reassurance and that he will withdraw the amendment.

Bob Neill (Conservative, Bromley and Chislehurst)

Welcome back, Mr. Illsley. I hope that things are improving vocally for you. I am grateful to the Minister for his full explanation. That is helpful. I will obviously speak to those who have raised concerns with me. We are all agreed about what we want to achieve. Perhaps everything will be sorted out before Report so that everybody is satisfied. I beg to ask leave to withdraw the amendment.

Clause 144

John Healey (Labour, Wentworth)

I beg to move amendment No. 445, in clause 144, page 67, line 30, at end insert—

‘(2A) In section 150(1)(b) (notices requiring purchase of blighted land)—

(a) for “21 or” insert “21,”,

(b) after “notes)” insert “or paragraph 24”, and

(c) after “Schedule 13 and” insert “(except in the case of land falling within paragraph 24(c) of that Schedule)”.

(2B) After section 165 (power of Secretary of State to acquire land affected by orders relating to new towns etc. where blight notice served) insert—

“165A Power of Secretary of State to acquire land identified in national policy statements where blight notice served

Where a blight notice has been served in respect of land falling within paragraph 25 of Schedule 13, the Secretary of State has power to acquire compulsorily any interest in the land in pursuance of the blight notice served by virtue of that paragraph.”

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss Government amendment No. 446.

John Healey (Labour, Wentworth)

These two amendments are technical amendments for the purposes of what might be termed integrating new categories of blight within the general blight provisions of the Town and Country Planning Act. A national policy statement which identifies a location as either suitable or potentially suitable for a big infrastructure project may, of course, create blight at that location, reducing land values and making it harder to sell the land. Blight may also result from an application being made for an order granting development consent, which authorises the compulsory acquisition of the land through the IPC. This clause is therefore intended to enable people in those circumstances to gain access to the normal provisions set out in statute in the Town and Country Planning Act. Those are provisions whereby people whose land is blighted can obtain compensation. The amendments make a couple of changes that are needed to make that work properly.

Amendment No. 445 gives the Secretary of State the power to acquire land when a valid blight notice is served as a result of a national policy statement. Having the power in practice means that the Secretary of State is obliged to purchase the land when a valid blight notice is served. Without the amendment, there would be no one to whom the owners of the land could sell their land. Amendment No. 446 is another technical amendment which identifies the appropriate enactment. Essentially it ensures that people would get the compensation to which they should be entitled for any loss in the value of their property due to blight. It allows us to define the appropriate enactment for compensation in the case of national policy statements and nationally significant infrastructure projects. Both amendments are important. They ensure that we get the framework right. I commend them to the Committee.

Bob Neill (Conservative, Bromley and Chislehurst)

We do not have a problem with these amendments. They are sensible. I reassure the Minister that I will not put out a press release about the increase in the amount of blight.

Clause 146

Dan Rogerson (Liberal Democrat, North Cornwall)

I beg to move amendment No. 571, in clause 146, page 69, line 18, leave out paragraph (a).

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss amendment No. 572, in clause 146, page 69, line 40, leave out paragraph (c).

Dan Rogerson (Liberal Democrat, North Cornwall)

I welcome you back to the Chair, Mr. Illsley, for round 10 of our detailed deliberations on the Bill. The amendments were suggested to me by the Guide Dogs for the Blind Association and concern the provisions for consultation on local development documents. That organisation is concerned that some of the consultations up to now have not borne fruit in amending important documents. The system has not worked as well as it would have liked and it would be even worse to remove those provisions altogether, as is proposed in the Bill.

The amendments would protect the provisions for consultation that have been won in the past. I am interested to hear what the Minister has to say about the concerns of the Guide Dogs for the Blind Association on how people’s views have not been taken into account, in particular those who have visual impairments and have particular needs for the built environment to cater for them.

Parmjit Dhanda (Labour, Gloucester)

Thank you, Mr. Illsley. It is good to see you back in—[ Interruption. ] I was going to say in fine fettle, but it is good to see you in fine-ish fettle.

I hope to be able to give the hon. Member for North Cornwall some reassurance on our ongoing commitment to consultation with the public. The amendments would change the proposed amendment of the Planning and Compulsory Purchase Act 2004 under the clause so that statements of community involvement remain subject to public examination. How best we carry out public examination is the key to this issue. In practice, examination is done by the Planning Inspectorate.

The first reason for wishing to remove the public examination of statements of community involvement is that the process is very costly and time-consuming for local authorities. That is not the main reason, but it is a reason. They should be getting on with genuine engagement with the community and not preparing for legalistic hearings or written representations with the Planning Inspectorate, which local authorities tell us they are invariably doing at the moment. The process also takes up a great deal of inspectorate resources. Most importantly, the Planning Inspectorate is not the best organisation to assess community engagement.

Officials are in discussion with the Audit Commission to see how the proposed comprehensive area assessment process will assess engagement overall. I think that that might be a better way forward. We want to see community engagement joined up across the local authority to reduce duplication and make matters easier for the public to understand. A joined-up strategy for this matter would be sensible, rather than having different compartments. Having a separate public examination for planning matters is something of a hindrance. With that reassurance, I hope that the hon. Member for North Cornwall will withdraw the amendment.

Dan Rogerson (Liberal Democrat, North Cornwall)

I will not press the amendment to a vote, but I hope that the Minister will reflect on the sentiments that have been expressed by one group, which has seen fit to contact members of the Committee with its concerns. No doubt there are many others, representing many people across the country, who feel that there are shortcomings in the consultation procedure. The Minister has set out ways in which he feels that the process can be made more effective but remain meaningful. With those assurances and on the basis that that is delivered, I beg to ask leave to withdraw the amendment.

Jacqui Lait (Conservative, Beckenham)

I beg to move amendment No. 427, in clause 146, page 70, line 13, at end insert—

‘(6A) After section 37 insert—

“37A Primacy of national policy statements

National policy statements shall take precedence of all other planning documents or planning guidance.”’.

I shall try not to tax your voice too much, Mr. Illsley.

The somewhat draconian, as it reads, amendment is intended to tease out from the Government another aspect of national policy statements, which we have already indicated that we approve of in principle. We have previously had a debate on consistency between national policy statements, planning policy statements and planning policy guidance. The purpose of the amendment is to get the Government’s view on how local development plans will fit into the national policy statement framework, and which, in their view, will take primacy.

If local people and local authorities spend a great deal of time developing a local development plan—amendments have been tabled to try to streamline that system, because the Government’s Act has not delivered the development plans with the speed that they wanted—which then collides with an infrastructure project, to which they have rooted objections, the local development framework will not necessarily fit nicely into the national policy statement. I hope that the Government have thought that through. We have tabled the amendment so that they can share their thoughts with us on which would win: local communities or the Government?

Parmjit Dhanda (Labour, Gloucester)

I hope that everyone can be a winner. I do not think that the hon. Member for Beckenham’s amendment is draconian; it asks some fair questions about how everything fits together, and I will attempt to make that clearer in the next few minutes.

The amendment proposes to amend the Planning and Compulsory Purchase Act 2004 to give precedence in the town and country planning system to national policy statements over all other planning documents or guidance. That is why the hon. Lady was suggesting that it was perhaps draconian, but that is what it does.

Were the intention of the amendment to facilitate the progress of renewable projects through the town and country planning system, which it is not—although, reading through it, it could have been—I would have had some sympathy for the outcome. But I consider that the amendment would be inappropriate and unnecessary.

Under the town and country planning system, there is already a statutory requirement for regional planning bodies and local planning authorities to have regard to national policies and guidance when preparing their local development plans. Therefore, under the Bill, once a national policy statement is published it should be fully reflected in relevant development plans, regional spatial strategies and local development frameworks.

Under the town and country planning system, planning authorities decide on applications in accordance with the development plan, unless material considerations dictate otherwise. That means that the relevant national policy statement would influence local authority decisions below the threshold for the IPC, if it contained policy that applied to infrastructure generally, and not solely to nationally significant developments. Decisions by the relevant authority on any non-nationally significant infrastructure projects would be made in accordance with the development plan, which would need to reflect national policy, including the relevant national policy statement.

Jacqui Lait (Conservative, Beckenham)

I perceive a circular argument here. Given that it will take some time for national policy statements to be put in place and that part of the purpose of the Bill is to speed up the local development framework process, if a local authority area is affected by a big infrastructure project, as foreseen under the national policy statements, will it have to assume that it will have an infrastructure project without knowing, or will it have to start going through it again? Would an infrastructure project not be regarded as significant enough for the LDF to be redrawn, given that a lot of the amendments would make minor changes to the LDF, so that the whole process would not have to open again? I hope that the Minister sees why I am saying that it is a slightly circular argument, and it would be useful if we could break the circle.

Parmjit Dhanda (Labour, Gloucester)

It is important to get across that local development plans need to consider everything in the national policy statement—I hope that I am getting that across to the hon. Member for Beckenham. Perhaps her perspective is that the two must be in conflict with each other. From my experience of local development plans, they are not some kind of one-hit wonder, but evolve over time, and it is really important that they evolve with consideration.

The hon. Lady has been quite specific about the possibility of a nationally significant infrastructure project within a locality and how the two fit together. I agree with her that it is important for that to be taken into consideration, and I am sure that local authorities will want to do so as part of their local development plans. In short, existing arrangements will ensure that national policy statements are taken into account when deciding relevant planning applications. I hope that that is of help to the hon. Lady and that she will withdraw her amendment.

Jacqui Lait (Conservative, Beckenham)

The best thing to say is that that gives us food for thought, and we might come back to it on a future occasion. I beg to ask leave to withdraw the amendment.

Clause 147

Jacqui Lait (Conservative, Beckenham)

We have raised on a number of occasions the importance of flood defence and the need to take it into account in future planning. On major projects and locally, we are at considerable risk from flooding, as we have seen this summer and again more recently, and much of the problem has been caused because the drainage system has not been able to cope sufficiently. Although Committee members will take it as read that sufficient precautions should be taken in all future plans to ensure that our drainage systems are adequate, given the importance of the perceived threat from flooding, it would be useful and sensible for the Bill to include references to flood defence and drainage. Would the Government be prepared to do that at this stage?

Parmjit Dhanda (Labour, Gloucester)

I appreciate the hon. Lady’s question, not least because I am the Member of Parliament for Gloucester, but I do not think that adding such a provision to clause 147 would be pertinent, especially when a great deal of work is taking place, led largely by my hon. Friend the Minister for Local Government, who works hard on the issue of flooding. At the same time, policy is evolving around the Pitt review. Clause 147 is important, not least because of its reference to a planning policy statement on climate change. Although I take the hon. Lady’s comments on board, it would not be pertinent to include such a provision in the clause, which I hope will stand part of the Bill.

Clause 150

Parmjit Dhanda (Labour, Gloucester)

I beg to move amendment No. 447, in clause 150, page 72, line 16, leave out ‘under subsection (1)(a)’ and insert ‘by them under this section’.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following Government amendments: Nos. 448 to 450, 457 to 460 and 467 to 470.

Parmjit Dhanda (Labour, Gloucester)

The amendments make minor changes and corrections to help to improve the drafting of the Bill.

Parmjit Dhanda (Labour, Gloucester)

I beg to move amendment No. 451, in clause 150, page 73, line 20, after ‘application’ insert—

‘(a) ’.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following Government amendments: Nos. 452, 461, 462, 471 and 472.

Parmjit Dhanda (Labour, Gloucester)

Again, the amendments make minor changes and corrections to help to improve the drafting of the Bill. I appreciate that in chapter 2 of part 9 there are lots of these measures, partly because we are translating changes to existing town and country planning Acts.

Amendments Nos. 451 and 452 confer a general power on the Secretary of State to make provision by regulations about the determination of planning applications in cases in which a local planning authority or a committee or sub-committee decides to determine a planning application, by virtue of proposed new section 75A(6), which would otherwise have been dealt with by an officer of the authority under the mandatory scheme of deregulation required under proposed new section 75A. Such planning applications might include those that, although relatively small-scale, had already generated a high degree of controversy in the early stages of the application process. We do not envisage that there will be many of those types of application.

Amendments Nos. 461, 462, 471 and 472 make corresponding changes in clause 151 in relation to the determination of applications for certificates of lawful use and in clause 153 in relation to listed building applications by officers.

Alun Michael (Labour, Cardiff South and Penarth)

My hon. Friend the Minister’s application amendments are to a clause that deals primarily with the determination of planning applications by officers. The Government amendments also refer to the determination of such applications by members of the council.

My hon. Friend rightly said that sometimes those issues will be controversial. For that reason, I should be grateful if he would spell out the responsibilities of councillors for communication in respect of planning issues of this sort and others. Does he agree with me that an important part of the role of the local councillor is communication with local people? On the one hand, he must listen to local views and, on the other, he must explain to people what is involved in an application. That is important because there is often serious misunderstanding about what is involved in a particular application, particularly of the sort to which he has just referred, which has already been a matter of some controversy.

There was an application in my constituency last summer for a facility to help in the training of adults with learning difficulties so that they could live independently in the community. Some local residents thought that it was going to house dangerous offenders. Terminology was misinterpreted, as were details of the design. I am sure that you would appreciate, Mr. Illsley, as any councillor or Member of Parliament would, how febrile the atmosphere can become around what initially looks to be a totally innocuous application or one in which the controversy has already been dealt with.

I approve of the emphasis that is placed by the Department on pre-application consultation by the developer, but that is not a universal panacea. In circumstances such as those that I have referred to, no amount of emphasis on pre-application work would take away the need for clarification and communication. A local councillor should be engaged in that, even if he or she is a member of the planning committee or in some cases the chair of it, as in the example that I have referred to. Of course they need to be professional. We need to avoid the impression of bias or prejudice, but in my experience, most councillors understand that and are very professional and objective. Indeed, recent research for the Department suggests that there is no major problem in that area.

What is worrying is that local councillors, especially those who are members of the planning committee, are being inhibited in carrying out their democratic duties as elected representatives by advice that is excessively restrictive and sometimes almost paranoid in nature. It seems that some officers feel that the silent councillor is the only type that they want to have around when it comes to planning issues. As anybody who is involved in democratic processes in any political party knows, a silent councillor is a dead councillor in political terms, just as a silent Member of Parliament is a dead Member of Parliament.

Will my hon. Friend assure me that it is the Government’s intention that public opinion be a material factor in the planning process? Will he assure me that the Government believe that councillors are under a duty to engage with this process in a professional and responsible manner, rather than by pretending to be Trappist monks? In the light of that, will he look at the publications that sometimes appear to be over-restrictive and over-cautious and at the advice that has been given to some councillors by some council officials? I do not pretend that that happens universally, but it is a serious issue.

I have looked at what is in many ways a very good document, called “Constructive Talk”. It has been drawn up by a series of organisations with the encouragement of the Department and it quotes Government advice. It says:

“Government advice is that Councillors should involve themselves in discussions with developers, constituents and others about planning cases, provided they observe the advice set out in Positive Engagement”.

“Positive Engagement” is, again, not simply a partnership document, although it bears the signature of a Minister, Baroness Andrews, as well as that of Sir Sandy Bruce-Lockhart of the Local Government Association, among others. It gives some really useful advice, but also among the “dos” it states:

“Hold discussions before a planning application is made, not after it has been submitted to the authority”.

That is a counsel of perfection. It is unrealistic to think that that can happen in all circumstances. It may be right to try to do that as frequently as possible, but there are many circumstances in which issues emerge only after the application has been made.

People will rightly turn to their local councillor and expect them to listen to their views and represent them. That does not mean that the councillor will necessarily swing into the camp of being a campaigner for or against something. It is that professionalism that is important. That advice, which in my view appears to go a little too far, is as nothing compared with the draconian advice to shut up and do nothing that is being given to some councillors and that is making many councillors feel that they are under a legal obligation not to carry out their democratic duties. I am sure that is not the Government’s intention, and I hope that the Minister can say something positive in response that will make that clear.

Jacqui Lait (Conservative, Beckenham)

Does the right hon. Gentleman think that this stems from the Standards Board advice about conflict of interest of councillors and does he think that advice is correct?

Alun Michael (Labour, Cardiff South and Penarth)

It goes a little bit too far. As with many aspects of proprieties—perhaps I should mention that I am a member of the Committee on Standards in Public Life—the principles of public life are principles of propriety, whereas the public expect good decisions, good service and action from their elected representatives. Of course, that activity on behalf of constituents should be done with propriety at all times. Sometimes we lose sight of quality while we are dealing with proprieties. I do not diminish in any sense the importance of doing things properly, correctly, without bias, objectively and all the rest. That is massively important, but so is doing things well and being seen to listen to the views of constituents. It is a question of getting the balance right.

Observing the proprieties and being careful not to give the impression of bias in what we do is as important for a councillor as it is for Member of Parliament, but so is the quality of the decision making, which means being fully informed, among other things, of the public views on an application. The visible representation of the interests of constituents is also important for the good reputation of democracy as well as the good reputation of the individual councillor. That should not be removed if that individual is a member of, or even the chair of, the planning committee. I have been the chair of a planning committee myself and I know that, in that role, one must be very careful about the words one uses. I do not think it should prevent anyone from engaging with the people they represent.

Sometimes the advice of officers can be too careful, so can that of officials in Government Departments. Having had ministerial responsibility for planning, I can say that from personal experience. That was in relation to Wales but the point is the same. Abrogating the responsibility to listen to all the arguments and to balance them in coming to the best possible judgment is the right way forward: pretending that one can close off all communications and that that is somehow safe is not. I hope that my hon. Friend the Minister will be able to endorse this as the balanced way of dealing with the responsibilities of councillors in relation to planning matters.

Bob Neill (Conservative, Bromley and Chislehurst)

I very much agree with the right hon. Gentleman. I hope that the Government will take on board the point that this is not the first time that we have raised this issue. There was quite a lengthy discussion during the Committee stage of the Local Government and Public Involvement in Health Bill. The same points were made and they were generally accepted. It certainly seems to most of us who have had experience of local government and who have seen how it operates now that an excessive restriction is placed upon members. Partly that is a result of the perverse workings of some of the case-law decisions in relation to the doctrine of predetermination. That has become something of a stranglehold rather than a guarantee of probity in many respects. It also stems from a gold-plating of cautiousness that is applied to the advice that comes pretty much at all levels.

Richard Benyon (Conservative, Newbury)

Does my hon. Friend also agree that we are rather archaic in how we inform members of the public about planning applications? For example, we still require local authorities to inform on issues relating to listed buildings through the local paper. We are led to believe that a declining number of people read local papers, but there is no requirement in law to put such information on the council website, for example. My local authority would save £65,000 a year if it was allowed by law to modernise the way it imparts information to local people on these important matters. That equates to about £10 million for councils across the country.

Bob Neill (Conservative, Bromley and Chislehurst)

My hon. Friend makes a useful point. Most local authorities voluntarily publicise planning applications on their website; the London borough of Bromley certainly does so and, as time goes on, it must be the sensible way to proceed. However, that segment of the population— perhaps the more elderly people—who may not have access to the internet must be taken into consideration. There is a balance to be struck and there may be more practical ways of achieving our objective without increasing the considerable costs that sometimes arise.

The right hon. Gentleman made a significant point about the importance of planning decisions to many people and communities. In many localities, planning issues are one of the key matters; they are as important as anything else, especially in view of how local authority boundaries are drawn. There may not be any other major issue in a ward, but planning issues may arise. If the existence of an application in effect gags local councillors from expressing views—by keeping a sensible balance and speaking with care—on what is probably the most important issue for their residents, it will have the perverse effect of bringing local democracy into disrepute.

One example, which is not from my constituency, was in a local authority ward where the big issue was the potential development of a golf course. It was privately owned but it was the main open space, the green lungs for people who lived in the area.

When elections come round, planning is one of the key things that people want to know about. Even between elections they ask, “Where do our councillors stand on this issue?” It is pretty perverse if councillors are told, “If you tell your residents where you stand, you can’t say anything if you serve on the planning committee because you might be seen to have predetermined the issue.” With respect to the people who drew up those rules, the average man and woman in the street would say, “That is absolute nonsense. It stands democracy on its head.”

The issues were raised at some length by members from both sides of the Committee in previous discussions in planning and local government Bills. The Minister’s predecessor, the current Minister for the Environment, was sympathetic to a number of their concerns and there was hope that the Government would look at them, but there is nothing in this Bill that deals with those issues. However, I hope that the Government will not lose sight of them because there is a general groundswell on this important matter. We all want to strengthen local government and local democracy and to remove a huge chunk of the work on issues that affect people and to impose what, to the voter, are artificial constraints that damage, without very good reason, the institution that we seek to nurture.

I hope that the Minister listened carefully to what the right hon. Gentleman said from his very great experience and that he accepts that we are not making a partisan point. We want to find a constructive way forward that would enable local councillors to exercise their democratic right in a way that is consistent with their difficult role in planning matters.

Dan Rogerson (Liberal Democrat, North Cornwall)

I want to add my support to the comments made by the right hon. Member for Cardiff, South and Penarth. He is absolutely right to raise the issue, which is of huge concern to elected Members involved in the process but mystifying to those who want to contact their local councillor to discuss matters. When I was a councillor those rules were not in effect, but I know it is a source of frustration to colleagues. I was fortunate in being able to say what I wanted to. However, I do not know whether I should admit the fact that I always managed to avoid planning training, so I did not have to go on the development control committee at the time.

Since I was elected as a Member of Parliament, I have noticed the number of times that people now come to their MP to express opinions. We have to say, “It is possible for me to write a letter but, to be honest with you, the experts who are trained in planning are your local members”. Great investment has been made to ensure that elected members of local authorities have the skills to consider these matters appropriately, and it is utterly ludicrous that they cannot perform their role as local ward members in addition. It cannot be beyond the wit of those revisiting the issue to come up with a solution that meets the need for fair decision making, but also reflects that important part of the role of local authority members.

I certainly add my views to those of hon. Members who have already spoken. As the Government move forward to reflect on how the Bill is progressing, bring forth further regulation subject to the provisions in the Bill and revisit planning, I hope that they will address the matter in the future.

Parmjit Dhanda (Labour, Gloucester)

This has been a useful debate. My right hon. Friend the Member for Cardiff, South and Penarth has taken an interest in such matters for a number of years. In fact, when he was a Minister, he had to help me with the odd planning application or two I recall. The frank answer to his question is: yes, public opinion is a material factor. It is important for local government and local councillors to be involved in local consultation. It is important to all politicians that we listen. The LGA is also very helpful in producing guidance, and I am happy to point hon. Members in that direction so that they can see some of the guidance that it has produced in that area.

Like the hon. Member for North Cornwall, when I was a councillor, I too steered clear of the planning committee. Little did I know that a few years later, I would be a Minister on the Planning Bill. That is the way it goes sometimes.

Briefly, on the subject of websites, a lot can be done to use them, as well as local newspapers, to get the message across. I am conscious also that the clause is about local member review bodies. I, and other Labour Members are keen on the idea of local members having greater involvement. I dare say that we will come to that wider debate when we come to the Opposition amendments tabled on the clause.

Parmjit Dhanda (Labour, Gloucester)

I beg to move amendment No. 453, in clause 150, page 73, leave out from ‘particular’ in line 23 to end of line 30 and insert—

‘(a) disapply or modify any provision of, or made under, this Part in relation to such an application;

(b) impose requirements on the officer, authority, committee or sub-committee determining such an application.’.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss Government amendments Nos. 454, 463, 465, 473 and 475.

Parmjit Dhanda (Labour, Gloucester)

The amendments deal with minor corrections and changes to help improve the drafting of the Bill. Proposed new section 75B enables the Secretary of State to make regulations about the determination of a planning application under proposed new section 75A(1)(b); that is, those applications that are specified as reviewable by a local planning authority or local member review body after an initial determination by an officer of the authority.

Amendment No. 453 is a technical one. Any determination of a planning application by an officer acting under arrangements made under proposed new section 75A(1)(b) or a local planning authority, a committee or sub-committee acting by virtue of section 75A(6) will be a determination of the application under part 3 of the Town and Country Planning Act 1990. That part will apply to the determination in the absence of provisions to the contrary. I will keep my remaining comments very brief because we can then move on to the substantial debate that I know hon. Members of other parties want to have on the clause. It follows that proposed new section 75B(2) is not quite right in assuming that part 3 needs to be applied. We believe that the right approach is to take a power to modify or disapply part 3. That is the purpose of the amendment.

Amendments Nos. 463 and 473 will make corresponding changes in clauses 151 and 153. Amendments Nos. 454, 465 and 475 will make similar technical amendments to other parts of clauses 150 to 152.

Bob Neill (Conservative, Bromley and Chislehurst)

I beg to move amendment No. 422, in clause 150, page 73, line 31, leave out from beginning to end of line 15 on page 74.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments: No. 407, in clause 150, page 74, line 10, at end insert—

‘(h) about the fee to be payable to the local planning authority.’.

No. 428, in clause 150, page 74, line 15, at end insert—

‘(7) A local planning authority may arrange for the discharge of their functions under this section by a panel of elected members drawn from other local planning authorities.’.

No. 423, in clause 151, page 76, line 45, leave out from beginning to end of line 27 on page 77.

Bob Neill (Conservative, Bromley and Chislehurst)

This group of amendments relates to the operation of member review bodies. We are interested in fleshing out how this process will work. The amendment looks draconian, but it is intended to probe how the process will happen. We start from the proposition that we are broadly in favour of anything that tends to pass down powers and decision making to a more local level, so I do not have an issue with the principle of the clause. However, if we are going to make it work and if it is to be viable, a number of questions remain to be answered. At the risk of sounding like the devil’s advocate, I think that it is as well that we probe the arrangements a little now.

It is significant that the Local Government Association supports the idea of member review boards for minor applications. We will have to be careful about what the thresholds are. It used the slightly guarded phrase that the boards

“could provide a welcome opportunity for councillors to have the final say.”

As with many people in local government, it wants a bit more detail about how that would work in practice.

On the other side of the coin, there are people with legitimate professional concerns about how we can guarantee the clear independence of councillors from their officers and ensure that such a system operates effectively without there being any breach of natural justice for applicants. We must ensure that we deal with that not only in domestic law, but under article 6 of the European convention on human rights. We are concerned about how that could be done effectively. Some detail has been set out, but much more will be required.

When we discuss later amendments, we will postulate an idea for how to get over the practical problems of getting a viable pool of members to hear the applications. We must consider how many applications any local authority will hear. For some local authorities, it could be quite a lot. Should the board contain people who would ordinarily be on the planning committee or is there to be a distinction? It looks as if we will have two parallel systems. Will there be applications that are dealt with by officers that are referred to the planning committee in the ordinary way? Will there be a separate review board for decisions that are to be made by officers? Will it be like the planning committee with the same people, but wearing different hats an hour later? Will there be a similar training regime? Should we use people who are not members of the planning committee because they could be thought to be too close to the officers with whom they work on a regular basis? That is the other side of the coin.

Dan Rogerson (Liberal Democrat, North Cornwall)

I am very pleased that the hon. Gentleman has tabled the amendment so that we can have this discussion. I see that he has proposed that members from a neighbouring authority should be involved. A number of authorities have raised concerns about the relationship between officers and the members of the authority. The proposal of bringing in members might, therefore, be helpful. Has he considered the possibility of seeking officer advice from the neighbouring authority as opposed to members, so that the democratic accountability remains with members who were elected to that body, but the advice comes from outside?

Bob Neill (Conservative, Bromley and Chislehurst)

I am grateful to the hon. Gentleman for that thought. I am open-minded on that issue. We would have to see what the implications would be in terms of the costs of an officer’s time being hired out to another authority. We tabled the amendments in a genuinely open-minded way. Perhaps something like that could be looked at. Many local authorities face the problem of a shortage of good, experienced planning officers. They are quite a scarce resource. In a number of authorities, planning departments are already thinking about ways in which they could operate to use their expertise. That might be something that we could look at.

Richard Benyon (Conservative, Newbury)

We had a debate last week about the difficulty of bringing together more Select Committees in the House to look at the responsibilities that have been given to them by Government. The same problem exists in local authorities. Those of us who have been councillors know how difficult it is, even in a pool of 50 or 60 councillors in a unitary authority such as mine, to draw together people who have the necessary training at a certain time and day to look at a particular problem in a professional way. A lot of them have jobs and other responsibilities at the same time. It would be good to tease out from the Government what would be the frequency of these member review board meetings, what they would be doing and what they would require—not only in terms of members, but in the quantity of work they would be undertaking.

Bob Neill (Conservative, Bromley and Chislehurst)

My hon. Friend makes a valid point. We need to do more work on that before the Bill completes its progress. That is a further issue that needs to be considered. It links in to our earlier discussion about the issue of predetermination and the scope that there is for local councillors to express views. If, for example, one were to adopt the view that ward councillors, or those who have expressed an interest in an application, are to be excluded, the pool of available members who could serve on the review body will pretty rapidly be reduced. If the planning committee was also excluded, who else would be left?

There are also the practical points that my hon. Friend the Member for Newbury made about whether members will be available at convenient times. One can see a lot of difficulties that could arise in practice. That is why we suggest in amendment No. 428 that it should be possible to bring in members from a neighbouring authority. We are flexible as to how the class of that authority should be defined. It could be another district in the same area or an adjacent borough in London. Again, there are swings and roundabouts on that issue. We are putting it up for discussion to see the ways in which it could be done. Some might say that, in a two-tier authority, members could be taken from a different tier. There are all manner of permutations.

We need to think the matter through if we are to end up with a potentially useful and enhancing role for local councillors. That role will set a significant precedent so we must get it right. With respect to the Minister, that is why I was a little disappointed in the reply that he gave to the points made by the right hon. Member for Cardiff, South and Penarth. The Minister went into some detail about the issue of predetermination and related matters, but it would have been better to have heard a little more about where the Government see themselves going on that issue. I would be troubled if his brevity was intended for anything other than to make good progress in the Committee. I hope that it was not hinting at any rowing back from the willingness that the current Minister for the Environment showed when he was dealing with planning matters.

Alun Michael (Labour, Cardiff South and Penarth)

I regard the Minister’s brevity as clarity of the absolute determination to produce the assurance we seek. I know that my hon. Friend is not someone who wastes words and I am sure that he will reinforce that point in his response.

Bob Neill (Conservative, Bromley and Chislehurst)

The right hon. Gentleman puts things persuasively and I hope that he is right because, as I have said, this is not an area where we want to raise any partisan issues. I think people on all sides in local government and in the House want us to try to get things right, but there is a certain inertia factor in terms of unwillingness to change deep-seated practices and advice, which needs to be overcome.

Chris Mole (Labour, Ipswich)

Perhaps I might briefly add some useful observations in the context of what the hon. Member for Bromley and Chislehurst has just said. Predetermination is less of an issue than the public’s perception of independence. There are precedents relating to local authority councillors undertaking appeal-type work in fields such as school admissions, although I think that has now been moved completely away from councillors. However, in other areas such as school transport, where local authority councillors usually have their appeal work administered by the local authority’s legal wing, some separation, a Chinese wall perhaps, is provided between the planning service and the councillors making those decisions.

When a member of the public gets the letter telling them what the process will be, however independent that process is, I fear that when they see the council’s logo on the top of the paper they will not distinguish between what one bit and another bit will do, and we will be wrestling with that reaction, perhaps until the end of time.

Bob Neill (Conservative, Bromley and Chislehurst)

The hon. Gentleman is absolutely right and his point is valuable and useful. The idea of different departments and Chinese walls is well worth looking at in practicality. I suspect that he is right about the scepticism that will remain, but we will just have to contend with it. When I was first elected to Havering council, I remember that it was suggested to me by someone who probably did not vote for me that I only did it because all councillors did not pay rates—as they were then called. There have always been some extraordinary misconceptions about local government, which one just has to struggle with as cheerfully as one can—[ Interruption. ] I did not realise that the Under-Secretary of State for Transport had not realised that was not the case.

I understand the point, which is helpful, and the Minister might be able to assist us a little more in fleshing out how we can make the process work if we are to go down that route.

Dan Rogerson (Liberal Democrat, North Cornwall)

To comment on the discussion that has just been led by the hon. Member for Bromley and Chislehurst, I think that the proposal is interesting and that it can offer something significant with regard to democratic accountability. Although I know that some people have concerns about the prospects and think that everyone feels that the Planning Inspectorate is fair and does an excellent job, and that it is independent and seen to be independent, that might be only from the applicants’ point of view and not from the point of view of residents in a local area. One often hears people’s dissatisfaction that a decision has been taken by someone who is not elected locally, so people will welcome greater provision to return to that principle. Clearly, there will be issues around how the proposal will work, but it is useful that we are having that discussion under clause 150.

Amendment No. 407 relates to the issue of costs and would ensure that the burden for an appeal did not fall on the local authority. The Minister will say that if the Government pass a measure to increase the powers or responsibilities of a local authority they will ensure that money goes with it so that the local authority does not have to find it from elsewhere. However, when the Minister’s party was in opposition they probably said that the previous Government passed things down without giving the local authority the resources to carry them out. That is a tendency that people in local government would identify, so if we are to give them extra responsibilities it is important to ensure that provision is made for the local authority to recover the costs involved, as there will be such costs. The prospect of local member review panels is a good one but much examination of the details will be needed, which has yet to come.

Richard Benyon (Conservative, Newbury)

The hon. Member for Ipswich made a helpful point and he was absolutely right: these bodies have form in local government. The big question is how many and how often the member review boards will be required. As a local councillor, I sat on housing benefit review boards and we used to play Chinese walls with the revenue department when it gave evidence on which we had to make a judgment.

The hon. Member for Ipswich referred to school admissions, when people take evidence in a quasi-judicial way and make a decision. I want to press the Minister on the frequency of the boards, which will have to consider growing developments and increasingly complicated planning applications, especially in a constituency such as mine in the south-east of England. The whole system will grind to a halt because of the demands on councillors’ and officials’ time in processing them. I am at heart a localist; I want decisions to be taken locally and in that respect I welcome some aspects of the proposal, but the practicalities of what the Government are proposing cause us and a large number of councillors great concern.

Parmjit Dhanda (Labour, Gloucester)

Before considering the purpose, effect and desirability of the amendment, it might be helpful for me to say a few words about the clause and where it is heading.

Clause 150 introduces in a new section 75A of the Town and Country Planning Act 1990 a requirement for local planning authorities to make arrangements for certain planning cases to be determined by officers of the authority. Examples of the types of development we have in mind are small-scale things such as householder developments, new shop fronts, small change-of-use proposals, advertisements and works on protected trees. Proposed new section 75A(4) provides for the Secretary of State, by regulation, to specify the types of planning application which, having been determined by an officer in the first instance, would be eligible for review only by a local member review body.

For those delegated applications, a proposed new section 75C establishes the right of review of the officer’s decision by the local planning authority through a local member review body. Proposed new section 78ZA removes the right of appeal to the Secretary of State under section 78 of the Town and Country Planning Act 1990.

Amendment No. 422 tabled by the hon. Members for Bromley and Chislehurst and for Beckenham would remove proposed new section 75C, and thus the provision for a review of a local authority officer’s decision on a planning application by a local member review body. Amendment No. 423 would remove proposed new section 193C of clause 151, and thus provision for review of an officer’s decision on an application for a certificate of lawful use of development by a local member review body. Either way we look at it, the amendment would, in effect, wreck what we are trying to do. We believe that the intention behind the amendments is to retain the right of appeal to the Secretary of State for such planning decisions. However, to make them fully effective, further consequential amendments would be required to clauses 150 and 151.

We regard the establishment of local member review bodies to review decisions on minor applications taken in the first instance by officers of the authority as a real merit, as does Sir Simon Milton of the Local Government Association, as the hon. Member for Bromley and Chislehurst mentioned. The measure will determine local matters at the most local level. It is probably the same in Newbury as it is in Gloucester as it is in London; we all know many councillors who lobby us and say, “We could be doing more at a local level.” I think that this is an area where they could be doing more.

Bob Neill (Conservative, Bromley and Chislehurst)

I hope the Minister gathered that we are not wedded to any particular form of wording; these are probing amendments. I take his point regarding the support of the LGA.

During discussions on the matters the Minister has been referring to, have his advisers in either the Department or the LGA been able to give an idea of the quantity of applications that might be dealt with? Sir Simon Milton was mentioned; he is the leader of a London borough. It would be interesting to know if there is any idea of how many such applications a London borough or a district council might reasonably expect to deal with, to establish the scale, as a number of Members are concerned about that.

Parmjit Dhanda (Labour, Gloucester)

The hon. Gentleman has taken the words out of my mouth. I was just coming to that point.

As I said, the measure is about determining local issues at a local level, in line with the Government’s commitment to devolving responsibility wherever we can. At present, minor planning appeals are dealt with by the Planning Inspectorate on behalf of the Secretary of State. The existing appeal system is not equipped to handle the increasing volume of appeals—currently 22,000 per year, of which about 8,000 are minor appeals. We are talking about 22 cases a year in each locality, although that is obviously an approximation. If those cases could be dealt with by local member review bodies, users would benefit from a much quicker and simpler process, and local authority planning committees and the inspectorate would have more time to focus on the major cases, as we heard from the inspectorate when its representatives gave evidence to us in Committee what seems like many weeks ago.

Concerns have been expressed that it would not be possible to ensure an independent review process if the same authority was responsible for decision and for review; but it is not unprecedented for a local council to review its own decisions, as my hon. Friend the Member for Ipswich and others have said. Examples include the review of decisions on applications in respect of homelessness and school exclusions. Officers involved in making the original decision would not be involved in the review process.

The hon. Member for Newbury mentioned members of a planning committee. It would be possible for members of a planning committee to be members of the local member review body, as long as they had not been involved in any way in the original decision. The local member review body would draw its advice from elsewhere—for example, from planning officers of a partner authority, as has been suggested by Opposition Members, from external consultants, or from the body’s own legal services department.

Any member of a review body with a personal interest in a case, would be required to declare their interest and, if necessary, to withdraw from the decision process, as we would expect. That is not dissimilar to the existing planning process. Local review bodies formed through partnership with other authorities would also help to ensure impartiality, as a proportion of board members would have no local interest—something Sir Simon Milton told us in the evidence session a few weeks ago. The LGA is very attracted to that idea.

In addition, in clause 152, we have provided for appeal to the courts for anyone aggrieved by the decision of a local member review body. We are working with local government and planning professionals to develop the details of the scheme which will be subject to consultation. We still have all of that ahead of us, assuming that the clauses are successful and make it into the Bill. We have accepted advice from local government that local member review bodies are likely to work best when set up jointly by local authorities, acting in partnership. The hon. Member for Bromley and Chislehurst will be familiar with that from his days on the London Assembly. Section 101 of the Local Government Act 1972 already provides for that, too.

Turning to amendment No. 407, proposed new section 75C enables the Secretary of State to make provision by way of regulations for reviews of planning decisions carried out by local member review bodies. Proposed new section 75C(4) sets out some specific matters for which the regulations may include provision. Amendment No. 407 would enable the regulations on reviews carried out by local member review bodies, which the Secretary of State can make under proposed new section 75C, to include provision for the fee payable to a local planning authority for a review of an officer’s decision by the local member review body.

The Committee may be aware that clause 162 provides a power to enable a fee to be introduced for appeals. We will come to that in the fullness of time. That fee will be payable by the applicant to the Planning Inspectorate. We therefore propose that a local member review body would be able to charge a fee for reviews as well to be consistent. However, section 303 of the Town and Country Planning Act 1990 already provides the necessary power for that, so the amendment is not necessary.

Bob Neill (Conservative, Bromley and Chislehurst)

Will the Minister help me with an issue that has been raised by people in local government? Will there be a tariff for the fees or will the local authority have discretion as to what fees it sets within Wednesbury reasonableness principles? Will local authorities be able to recoup the whole cost of their appeals process or just a portion?

Parmjit Dhanda (Labour, Gloucester)

That is still a matter for regulation and discussion. It is something on which we need to consult. I cannot give the hon. Gentleman a definitive answer, I am afraid.

Amendment No. 428 would enable reviews of planning decisions carried out under proposed new section 75C by a local member review body to be conducted by a panel of elected members drawn from other planning authorities, wider than just the local area. Local authorities already have the power under the Local Government Act 1972 to set up committees for the discharge of their functions, including joint authority committees. We have signalled that we would be happy for local authorities to establish those bodies on a joint basis should they wish to do so. The amendment is not, although I accept that it was tabled as a probing amendment. In conclusion, we are working with local government and planning professionals to develop the details of the local member review body scheme, which will be the subject of consultation and in which we see great merit. I therefore hope that hon. Members will not press their amendments further.

Bob Neill (Conservative, Bromley and Chislehurst)

I am grateful to the Minister for his response. It has been a worthwhile discussion on what is seen as an innovation. I note what he says and I am not at all unsympathetic, as I understand where he is coming from. However, if ever there was a classic case of the devil being in the detail, this is probably it, so it is important that we get as much indication of the Government’s thinking and as much clarity as possible. I appreciate that much of the detail will appear in regulations, but I hope that the Minister can update us on progress on some of those issues on Report. On that basis, I will not press the amendment.

Dan Rogerson (Liberal Democrat, North Cornwall)

I realise that amendment No. 407 is not to be discussed formally now, because it is not the lead amendment, but I shall respond to what the Minister said with regard to fees, because he said that the matter was up for discussion. I hope that he will take this as a contribution to that discussion and an acceptance of the principle that the local authority is already seeking to provide all sorts of good, efficient front-line services that have a big effect on the local community. When someone triggers an appeal, the principle that they should make a significant contribution, if not cover the cost, ought to be taken on board. I hope that we will come up with a solution as those discussions continue that allows the process to contribute to local democracy and democratic accountability without imposing an extra financial burden on the local authority.

Bob Neill (Conservative, Bromley and Chislehurst)

I beg to ask leave to withdraw the amendment.

Parmjit Dhanda (Labour, Gloucester)

I beg to move amendment No. 455, in clause 150, page 75, line 12, leave out from ‘if’ to end of line 16 and insert ‘—

(a) the local planning authority—

(i) have been required under section 75C to review the case, and

(ii) have failed to complete their review by the end of the period prescribed by regulations made by virtue of section 75C(4)(f), or

(b) the local planning authority have been required under section 75D to determine the application.’.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss Government amendments Nos. 456, 466 and 476.

Parmjit Dhanda (Labour, Gloucester)

As currently drafted, section 78ZA does not allow an appeal to the Secretary of State where the local authority or local member review body has determined a planning application following non-determination by an officer. There would be no form of appeal: the matter would be dealt with in the first instance by the local member review body and that would be it, so that needs to be amended. We believe that when a local member review body has taken the first decision on an application, rather than reviewing an officer’s decision, the right of appeal to the Secretary of State should be retained because there will no alternative opportunity for scrutiny of the original decision.

An example of such a circumstance is the local member review body stepping in and making the decision because officers were late in determining it. The purpose of Government amendment No. 455 is therefore to enable an applicant to appeal to the Secretary of State when a local member review body has taken the first decision on a planning application. Government amendment No. 456 is consequential to amendment No. 455. Government amendment No. 466 has the same purpose as Government amendment No. 455 in relation to lawful developments and appeals, as does Government amendment No. 476 in relation to listed building application appeals.

Clause 151

Clause 152

Bob Neill (Conservative, Bromley and Chislehurst)

I have a brief question for the Minister. Is my reading of subsection (3) correct, and am I right in thinking that the effect of proposed new section 286A is that there will be just two grounds for seeking a review by the High Court: either ultra vires or on the grounds of deficiency of process? That excludes any question of unreasonableness in terms of the Wednesbury decision. That question may well be excluded for perfectly good reasons, but for the purposes of clarity, am I right in thinking that that is the case?

Parmjit Dhanda (Labour, Gloucester)

Yes, that is the case, although there are other grounds for appeal, where one can go to the Secretary of State, as I described a few moments ago.

Clause 153

Parmjit Dhanda (Labour, Gloucester)

I beg to move amendment No. 474, in clause 153, page 81, line 23, at end insert—

‘(da) requiring a local planning authority reviewing a case to have special regard to the matters specified in section 16(2);’.

The amendment will enable the regulations made by the Secretary of State on reviews of listed building applications carried out by a local member review body to require the body reviewing the case to have special regard to the desirability of preserving the building, its setting or any features of special architectural or historical interest that it possesses. The amendment would therefore enable a review of a listed building application under proposed new section 19C of the Planning (Listed Buildings and Conservation Areas) Act 1990 to be consistent with consideration of listed building applications by local planning authorities or the Secretary of State under existing legislation.

David Curry (Conservative, Skipton and Ripon)

Will regard also be given to any special habitat features of the building? I have a listed barn which is supposed to be one of the best 17th-century barns in Essex. It would have been dead easy to get the council to give me permission to put six houses there, but I restored it and I had to go to great lengths to preserve two rare species of bats that lived in the barn. I am proud to have done so; the bats and I are great friends, and the muck they drop on the floor makes extremely good horticultural dressing for my vegetable garden. It is an entirely recycled system, which is helping to save the planet.

We are all concerned about the future of owls and their habitat, and I want to ensure that one cannot knock down something that is the habitat of a species we are anxious to preserve.

Parmjit Dhanda (Labour, Gloucester)

I welcome back the right hon. Member for Skipton and Ripon and wonder whether he should declare an interest before making a contribution. I will have to check what happens if the habitat is part of the listed status, and I will clarify the position in writing to him. I shall be interested to know the answer, too.

David Curry (Conservative, Skipton and Ripon)

I doubt whether it will be part of listed status, because the building could have been listed some time ago and the habitat could have developed subsequently. This is not a joke; it is a serious matter and I should be grateful if the Minister made some inquiries about it.

Clause 155

Jacqui Lait (Conservative, Beckenham)

I beg to move amendment No. 415, in clause 155, page 83, line 20, after second ‘development’, insert ‘within the curtilage of a dwelling house’.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss amendment

No. 535, in clause 155, page 83, line 28, at end add—

‘(3C) This section shall not apply to permitted development rights under Part 5 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995.”.’.

Jacqui Lait (Conservative, Beckenham)

The amendments are different sides of the same coin. There is a desire to tidy up some of the applications under an article 4 direction. I understand that the Government are particularly concerned to affect the house in single ownership, which is why we tabled amendment No 415. However, we are also concerned about the case in East Sussex that was drawn to our attention during the evidence session in a written submission from Tim Driver. I had nothing to do with it, and it does not affect where I live or the county council; it is coincidental that the case was in East Sussex. It was an interesting one, involving a family argument about a caravan site, and I am sure that the Minister is well aware of it.

Our concern is that at present, article 4 directions apply to more than just the small house owner. They apply in the agricultural sector, forestry, industrial development, minerals, drainage works, aviation, schools, colleges and hospitals. If the right to compensation is withdrawn should a local planning authority decide to change its mind, it affects not just the house builder but a much wider audience.

The National Farmers Union has been very active in setting out for us the case as it affects farmers. On the one hand, the Government are trying to be more permissive and to make it easier for people to develop under permitted rights. On the other, the blanket application of this clause will have a negative impact on the areas that I have already set out, because it will make it much more difficult for farmers in other areas to develop their business without knowing that they are within their rights for permitted development. A local planning authority could change its mind and, given the pressure that farmers are under at the moment to diversify, they will find that there is no right to compensation.

We want to get a feel from the Government as to whether they have any sympathy at all for the plight of people who could be affected by this change in permitted development. I readily admit that if there is some sympathy and the Government are prepared to look at the matter further, I will not press the amendment. The wording may need to be changed, but we should like to hear the Minister’s view on the principle here.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I note that the Bill includes the usual section 19 reference to human rights compatibility. Is it right for such a clause to be stand part of the Bill? If my reading is correct, planning permission could have been validly given at some point by the necessary authority. It could then be withdrawn, albeit with 12 months’ notice, and no compensation would be paid for the diminution in the business and/or the loss of that facility. I am not sure whether that is contrary to the Human Rights Act as I understand it.

In any event, as a matter of good common sense, if someone loses an asset through no fault of their own, but as a direct result of an administrative action by an authority, surely basic understanding of administrative law leads one to think that there has to be a right to compensation. Otherwise, people could be ruined overnight through no fault of their own. This is rather serious. Unless I have misread the clause, it appears to be an extremely serious proposal.

Parmjit Dhanda (Labour, Gloucester)

I am grateful to the hon. Gentleman for his question. I believe that he has misread the clause, and I will try to explain why. I may wish to return to the hon. Lady for a little more information about the nature of article 4 and the impact that she feels it is having on the farming community, what type of article 4 she means, and whether such a thing could in any case happen as of now. The clause does not do away with the existing article 4, but it gives other powers to local authorities, which I will try to explain.

The clause amends the right to compensation so as to enable changes to be made to restrict permitted development without incurring liability for compensation. I will give some examples of that in a moment. Existing legislation provides that local planning authorities are liable to pay compensation for 12 months after permitted development rights are withdrawn. Hon. Members can probably understand where that has come from.

I will give an example. If Westminster city council did not want the residents of every house on a given street to convert their front lawns into driveways, it could implement article 4, saying that it is against the rules for anyone to do so. Residents locally could say that they were planning to do that, and they would have 12 months to apply for compensation.

The changes that we are making to the clause will make it possible for local authorities to say, “Actually, in 12 months’ time, we will implement this change, so if you really want to concrete over your front drive, you have 12 months to do it. Therefore, you will not get compensation.” In many cases, so local government has told us, people who had no intention of concreting over their front drives applied for the compensation, saying that they had planned to do so. That is the bare bones of the intention behind the provision.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

That is obviously a case where everyone would be in sympathy with the Government in making the change. I am asking whether the clause extends more broadly to larger permitted developments. Farmers are often allowed to put up large byres or to convert a grain store for further business use, whatever it might be. A substantial body of permitted development is allowed under the Town and Country Planning Act 1990 for people engaged in full-time agriculture. Would the provision affect them in some way?

I do not think that anyone would argue with the example that the Minister gave, but the concern of the NFU and others would be whether existing permitted developments were to be denied without compensation. Let us say that I, as a farmer, put up a grain store, which I am entitled to do under permitted development. I start my business and 12 months’ hence, I find that I am not allowed to pull it down. That is my reading of the provision. I hope that I am wrong, but clearly the question of compensation ought to be considered.

Parmjit Dhanda (Labour, Gloucester)

I can reassure the hon. Gentleman that the Bill has been human rights-proofed and checked. I am happy to come back to him in a few moments, when I will spell out a little more what the clause does and does not do, but for now I want to make some progress.

Existing legislation provides that local planning authorities are liable to pay compensation for 12 months after permitted development rights are withdrawn. That might occur when a planning application to carry out what had been permitted development is either turned down or granted subject to conditions. A local planning authority might require planning applications for loft extensions, for example, in order to protect the appearance of an area. The legislation applies whether the change is made by a planning authority withdrawing rights locally, or by Government changes to national permitted development rights.

The clause is part of the Government’s general policy to give greater flexibility to local planning authorities to tailor permitted development rights more closely to local circumstances, within a generally more permissive regime. That will allow local authorities to protect specific areas from unsuitable development. The clause will provide an alternative procedure that allows restrictive charges to be made without compensation being payable. I hope that I have answered the hon. Gentleman’s point.

If there are any developments that will no longer be permitted for compensation terms, there will still be 12 months for those developments to be fulfilled. To ensure that people whose permitted development rights have been removed do not incur abortive expenditure, the clause requires that at least 12 month’s notice is given of the change. The 12-month notice period should ensure that such costs are avoided, so that people will be no worse off than under the existing scheme.

Amendment No. 415 would limit the alternative compensation arrangement to changes relating to householder development only. However, the purpose of the clause is to deliver greater flexibility to amend permitted development rights generally. That will allow local authorities greater freedom to do what is necessary to protect particular areas by means of what are known as article 4 directions.

The clause is necessary to protect particular areas, given the Government’s intention to provide a generally more permissive national framework. I have also explained that, given the 12 month’s notice required before a change comes into effect, developers will not lose out. Under the new mechanism, they will have 12 months to carry out the work.

The existing system will remain in place in parallel. However, we want to ensure that restrictions are made only when necessary and that people who might be affected have a chance to make their views known. I hope that that is of relevance to the hon. Gentleman. We intend to strengthen the procedures of article 4 directions. In the future, local authorities will be required to consult those people who are likely to be affected by a direction. Representations will have to be taken into account before an article 4 direction can be made. Similarly, any proposed Government restrictions will be subject to public consultation.

Amendment No. 535 would remove any right to compensation for restrictions made to permitted development rights that relate to caravan sites. I have already explained that, in general, we want to make it easier for permitted development rights to be withdrawn where necessary. However, I believe that those who enjoy such rights deserve some protection where that might happen. The Government approach that would ensure a 12-month period of notice before rights are removed or a 12-month right to compensation being payable is fair across the board. I see no reason to single out any form of permitted development—whether caravans or something else—to be subject to different treatment.

With regard to proposals that affect other types of development—for example, farms—I understand what the hon. Gentleman is saying, but I can already name rights that have been withdrawn under the old system where compensation had to be paid for 12 months. Under the new alternative, there will be 12 months to carry out that work, unlike under the existing system. The hon. Gentleman still looks somewhat perplexed; I am quite happy to hear anything more that he has to say.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The Minister is doing his best to assist us, but I am still not fully au fait with what he is saying. Let us say that there is permitted use of some agricultural land for a certain period each year for touring caravans and camping. That would add considerably to the value of the holding. It is also in accordance with what we are all trying to encourage—diversification and so on. If the Minister is suggesting that we could say, “Well, in 12 months’ time, you won’t be allowed to site anything on that land, but we’ll only pay 12 months’ compensation”, that does not seem to be much of a bargain from the farmer’s point of view if, for example, that holding had depended on that summer income for its viability for the past 10 or more years. I understand most of what the Minister says, but I do not think that 12 months’ compensation is an adequate basis for that type of example. Such a system could make the difference between a small holding being viable and having to sell up, move to a town and give up farming altogether.

Parmjit Dhanda (Labour, Gloucester)

The hon. Gentleman and I may be at something of a crossed line here. I am talking not about 12 months of compensation, but about a specific development and having 12 months within which to build that development—a slightly different set of circumstances from what the hon. Gentleman is talking about.

Local authorities can already use article 4 to tell a farmer, for example, “This is not allowed on your land.” However, we are talking about development, so that if the farmer wishes to have a development on his land, it is not a case of taking anything away from him, but of saying to him and to people across a wider area, “This is what we intend to do; this is what we intend to prohibit; you have 12 months in which to do it.” In the past, there would have been a case of compensation if a farmer had said, “Well actually, it was my plan to do that here on this site, but you have invoked article 4, so I therefore cannot do it anymore.”

Richard Benyon (Conservative, Newbury)

I declare an interest as a farmer. If the Minister remembers back a few years, the buzz word in Government was “rural proofing” and every aspect of Government policy had to be rural-proofed. [Interruption.] Indeed. The right hon. Member for Cardiff, South and Penarth was responsible for that. Has the Minister run this past his colleagues in DEFRA? Certain local authorities are itching to grab hold of the whole general development order process, to stop farmers from expanding their businesses in just the way that the hon. Member for Meirionnydd Nant Conwy was describing. I fear that, in some areas, one of which is not far from my constituency, the local authority would stifle the development of businesses in precisely the opposite direction to that in which the Minister’s colleagues in DEFRA are taking it.

Parmjit Dhanda (Labour, Gloucester)

I am going to bring my comments to a conclusion, because I think that we have had a useful debate, but I hope that I have been able to allay hon. Members’ fears, as article 4 directions are already in existence. As I have said, the local authorities can say that a certain kind of development will be prohibited and then local people—whether farmers or other residents—can say, “I want compensation because I had planned to do that.” This measure gives another option to local authorities, whereby they can say, “We wish to prohibit this kind of development, but if you wish to go ahead with it, you have 12 months to do so.” That is probably a fair position to be in.

Jacqui Lait (Conservative, Beckenham)

I must apologise to the Committee, because in my eagerness to be brief, I was not clear, so I am grateful to the hon. Member for Meirionnydd Nant Conwy and my hon. Friend the Member for Newbury for giving graphic examples that clarify the situation. I am still unconvinced by the Minister’s argument. In essence, he is making it easier for local authorities to take away a permitted right, so the proposal is permissive for local authorities, but it is absolutely not permissive for those people who are predicating a business plan, which may last for more than a year, on permitted development rights that they have and have taken for granted that they would have. I accept what he says about local authorities being able to take permitted rights away, but they have to pay compensation. The proposal limits that compensation. I will read what the Minister said carefully, but my gut feeling is that I will not be happy and that we may well have to return to this.

Parmjit Dhanda (Labour, Gloucester)

It is worth adding that it is a requirement for local authorities to consult as well, when they are planning any of these article 4 changes. That is important in this context. Article 4 already exists, but under the new interpretation and given 12-month period, any change would require local discussion.

Jacqui Lait (Conservative, Beckenham)

I am grateful to the Minister for elucidating that point, but it does not answer what my hon. Friend the Member for Newbury said about a local authority that is itching to gets its hands on those rights. We can consult till the cows come home, but if that local authority is determined to extinguish those rights, the Government are giving them that ability, however hard they insist on consultation. I do not wish to prolong the debate any further, unless the Minister has something new and revelatory to say. On the basis that we may wish to return to the issue later, I beg to ask leave to withdraw the amendment.

Clause 156

Parmjit Dhanda (Labour, Gloucester)

I beg to move amendment No. 477, in clause 156, page 83, line 29, at end insert—

‘(1) TCPA 1990 is amended as follows.

(2) ’.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

Government amendment No. 478

No. 30, in clause 156, page 83, line 33, after ‘may’, insert

‘on the request of a person interested in any of the land to which the permission relates’.

No. 31, in clause 156, page 83, line 34, leave out ‘relating to land in their area’ and insert

‘for which they are the local planning authority’.

No. 32, in clause 156, page 83, line 34, leave out ‘they are satisfied that’.

No. 33, in clause 156, page 83, line 36, leave out ‘a local planning authority must have’.

No. 34, in clause 156, page 83, line 37, after ‘regard’, insert ‘must be had’.

No. 35, in clause 156, page 83, line 40, leave out from beginning to end of line 1 on page 84.

Government amendment No. 479

Clause stand part.

Parmjit Dhanda (Labour, Gloucester)

This clause will enable a local planning authority to make a minor change to a planning permission that relates to land in its area where it is satisfied that the change is not a material one. This provision is necessary because, when developers seek to implement their permissions, they can often find that minor changes to their original proposals are necessary. Such issues are particularly common for complex, large-scale developments that take long periods to be built.

Examples might include slightly moving the entrance to an office or providing a new fire escape, because of changes to building regulations that have occurred during the development process. In the past, such minor changes were dealt with locally, with planning authorities making a judgment about whether they were so minor that they could be allowed without any formal procedure. We are taking advantage of and introducing such a formal procedure under the clause.

However, case law has thrown into doubt whether such an approach, which existed in the past, is lawful and acceptable. That has led to widespread uncertainty for both planning authorities and developers, and a generally more cautious approach has led to even minor and insignificant changes requiring a new full planning application. All we seek to do is to reintroduce a little practical flexibility into the system.

David Curry (Conservative, Skipton and Ripon)

How many times could a developer come back for a minor modification in the course of a development? I know of circumstances in my constituency where planning permission has been granted and then a series of small incremental changes have been made that end up changing the shape of the development significantly. Local residents, having perhaps acquiesced to or been willing to accept an original planning permission, have ended up with something radically different from what they had consented to in the first place. They had no opportunity to intervene in the mean time. How many times can that happen and how much does it add up to?

Parmjit Dhanda (Labour, Gloucester)

The right hon. Gentleman makes an interesting point. No two developments are the same, and when I say “minor” I mean it. That is part of the reason that I gave a couple of specific examples, such as fire escapes due to changes to building regulations. Such really minor matters have resulted in big planning applications being lost entirely. I hear what the right hon. Gentleman says, but it is a bit like asking me how long a piece of string is, because no two developments are the same.

David Curry (Conservative, Skipton and Ripon)

My point was about a series of changes being applied for in respect of a single development, which have the cumulative effect of changing significantly the nature of the development. Is that dealt with in the clause, or could developers use salami tactics?

Parmjit Dhanda (Labour, Gloucester)

I assure the right hon. Gentleman that the clause is not about changes to a development that result in a material change. It is about very minor changes. I hope that that reassures him. I also ask members of the Committee to remember that a similar provision has existed in Scotland for about a quarter of a century and has worked well.

The Government amendments will provide further clarity as to how the power will work. Amendments Nos. 477 and 478 are technical drafting changes that I trust will be totally uncontentious. Government amendment No. 479 makes a number of changes to the clause, first by inserting proposed new subsection (4) to proposed new section 96A, requiring that the power in the clause can be exercised only by a person with an interest in the land or someone acting on their behalf. I note that Opposition Members’ amendment No. 30 is intended to achieve a similar outcome, so I hope that that will allay their concerns.

Secondly, the amendment will add proposed new subsection (5) to proposed new section 96A, so that an application to make a non-material change—I emphasise that point again—must be in the form and manner prescribed. It is intended that, as with other planning-related applications, the standard application form will be used. Thirdly, proposed new subsection (6) will allow us to prescribe how such an application should be publicised and who should be consulted as part of the process.

Fourthly, there are amendments to section 5(3) and schedule 1 to the 1990 Act, providing that a local authority can make a change under the provision only if it is the local planning authority for the planning permission in question. Opposition amendment No. 31 is intended to achieve a similar outcome, so perhaps we are aligned in our thinking. Finally, section 69 of the 1990 Act will be amended to require that a request for a non-material change be recorded on the planning register. I hope that we can agree that those are sensible changes to a sensible provision, and that Opposition Members will not press amendments Nos. 30 and 31.

Bob Neill (Conservative, Bromley and Chislehurst)

The Minister has shortened what I need to say. He is right that we have the same objective. Lest anyone should wonder why the matter is of significance, there are situations such as that of the Thames Gateway involving urban development corporations, national parks and so on, which not be the local planning authority. I am grateful to the Minister for having dealt with such issues. Some of our amendments were drafted similarly, with objectives that I accept have been achieved by the Government amendments.

Amendment No. 35 is slightly different and harks back to the concern expressed by my right hon. Friend the Member for Skipton and Ripon. In the first two proposed new subsections, the starting proposition was that any changes should not be material. However, the concern is that a number of changes can have a significant cumulative effect. Proposed new subsection 96A(3) worries me, because read together with the other provisions it suggests that new conditions can be imposed or old ones removed or altered if they are not material. I am trying to think of circumstances in which they would not be material. If they were not material, why were they imposed in the first place? That is the part that seems odd and tautologous. I am worried about the risk of what are asserted to be non-material conditions being changed, as it is difficult to think of a non-material condition. I would be grateful if the Minister could help us on that.

Parmjit Dhanda (Labour, Gloucester)

I have given an example on a couple of occasions about fire doors. It is a good example. There could be a development that is working but then a new set of building regulations is introduced. We cannot have a set of circumstances in which the entire process must begin again with the planning application. That has happened; I have an example of it that I am happy to share with the hon. Gentleman, but I do not want to bore him.

The hon. Gentleman mentioned amendment No. 35, which would remove the ability to make non-material changes by removing or altering existing conditions or imposing new ones. It would prevent a local planning authority from making minor changes to an existing planning condition, unless there was a further formal planning condition. We would not want to go through such a process. However, were it accepted that the kind of non-material changes to a planning permission that I have outlined should be allowed, the planning authority would be best placed to decide what is material or not. There seems little reason to impose a restriction that would prevent a minor change to a planning condition. While it is accepted that section 73 of the 1990 Act provides an existing mechanism to vary a condition, an alternative route to making minor changes should be allowed. On the record, I want to reinforce the point that we are talking about really minor changes.

Bob Neill (Conservative, Bromley and Chislehurst)

I am grateful to the Minister for reinforcing that point. I understand his point about minor variations to conditions, and the ability to amend a condition, but I am still interested to think of circumstances in which it would be appropriate to remove a condition completely or to impose a wholly new one. I understand and see the good sense in changing a condition for the reasons that he has explained. However, I am concerned that we do not open up the flood gates, beyond that which he would wish to see, by allowing the complete removal of a condition or the imposition of a wholly new one. Is the process to be circumscribed to allow an old condition to be removed but a similar one to be imposed, so that the package of conditions remains the same? That might make sense. Were a condition removed entirely, one might ask why it was there in the first place if it was sufficiently immaterial to be removed. That is a different matter from the Minister’s valid point about making a minor amendment to a remaining condition.

Parmjit Dhanda (Labour, Gloucester)

I do not have a great deal to add other than that local authorities who have worked with developers to get some of the important developments up and running have brought the matter to our attention. They have had difficulties, and in the past have done this in an informal and ad hoc way. The clause is necessary to remove that ad hoc and informal way of reaching the same position, because legal challenges have resulted in major developments being knocked back to square one.

Bob Neill (Conservative, Bromley and Chislehurst)

We have not had a Division all afternoon, and I am not about to ask for one now. I beg to ask leave to withdraw the amendment.

Clause 157

Alun Michael (Labour, Cardiff South and Penarth)

I beg to move amendment No. 439, in clause 157, page 87, line 24, at end insert—

‘(7A) In section 210 (penalties for non-compliance with tree preservation order)—

(a) for subsection (1) substitute—

“(1) If any person contravenes tree preservation regulations, he shall be guilty of an offence.

(1A) In proceedings for an offence under this section, it shall be a defence to prove the following matters—

(a) that works to the tree were urgently necessary in the interests of safety or health or for the preservation of the tree;

(b) that it was not practicable to secure safety or health or, as the case may be, the preservation of the tree by other means;

(c) that the works carried out were limited to the minimum measures immediately necessary; and

(d) that notice in writing justifying in detail the carrying out of the works was given to the local planning authority as soon as reasonably practicable.”, and

(b) omit subsection (4).’.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments: No. 440, in schedule 3, page 121, line 17, leave out sub-sub-paragraph (a).

No. 441, in schedule 3, page 121, line 26, at end insert ‘, and

(c) in the side-note and the heading above the section for “in conservation areas” substitute “not subject to tree preservation order”.’.

No. 442, in schedule 3, page 121, line 32, leave out paragraph 10 and insert—

‘10 In section 213 (duty to plant replacement tree in conservation area)—

(a) for the words from “at a time” to the end of the paragraph substitute “at a prescribed time”, and

(b) in the side-note, for the words after “controls”, substitute “under section 211”.’.

New clause 15—Register of trees

‘After section 210 of TCPA 1990 insert—

210A Register of trees of special interest

(1) The Secretary of State may compile and maintain a register of trees situated in England and appearing to him to be of special interest, or may approve with or without modification such a register compiled by other persons or bodies, and may amend any register so compiled or approved.

(2) The Welsh Ministers may compile and maintain a register of trees situated in Wales and appearing to them to be of special interest, or may approve with or without modifications such a register compiled by other persons or bodies, and may amend any register so compiled or approved.

(3) The Secretary of State or, as the case may be, the Welsh Ministers shall, as soon as practicable after including in the register an entry relating to any tree, notify the persons mentioned in subsection (4) of this section of the inclusion and send them a copy of the entry.

(4) The persons are—

(a) the owner and (if the owner is not the occupier) the occupier of the land on or over which the tree or any part of it is growing; and

(b) any local planning authority in whose area such land is situated.”’.

New clause 16—Protection of trees not subject to a tree preservation order

‘(1) In section 211 of the TCPA 1990 (preservation of trees in conservation areas), in subsection (2), after the words “in a conservation area” add “and to any other tree”.

(2) In section 212 (power to disapply section 211)—

(a) after subsection (2)(b), insert—

“(bb) trees in such other areas or descriptions of areas as may be so specified;”;

(b) in subsection (2)(c), before the word “size”, insert “description,”;

(c) after subsection (2), insert—

“(2A) Such regulations may, in particular, exempt from the application of section 211 any works to a tree whose felling would require a licence under the Forestry Act 1967.”; and

(d) omit subsection (4).’.

Alun Michael (Labour, Cardiff South and Penarth)

Mr. Illsley, I have known you for more than 20 years as a vigorous and forthright Member of Parliament, so it is slightly odd to see you trapped in the Chairman’s role of complete neutrality. It is a real penance for a politician of your calibre. However, it does not prevent you from listening or indeed reading. I therefore want to lighten your hours on the Planning Bill by handing you a copy of “The Heritage Trees: Britain and Northern Ireland”.

Parmjit Dhanda (Labour, Gloucester)

Is it a signed copy?

The rest of the debate is in Hansard.