Growth and Infrastructure Bill — Committee (4th Day) (Continued)

House of Lords, 4 February 2013.

Lord Berkeley (Labour)

Amendment 75ZAB stands in my name and in the name of the noble Baroness, Lady Valentine. This amendment comes out of a fairly recent discovery about some new roads that have received permissions under development consent orders. If the developer wishes to put a charge or toll on them then, for some reason, it has to be a fixed-toll plaza, with lots of toll booths and the old fashioned things that one sees on motorways in France, on the M6 toll, and the Dartford crossing. It seems rather odd that a developer who seeks planning permission to build a toll road needs to be told as part of getting consent that if he is going to put a toll or a charge on it then it has to be a fixed-toll point. It seems to me that that has very little to do with planning-except for the planning permission of the site-and that the method of tolling should come out of a policy from the Department for Transport. I have had a useful meeting with officials on it.

It makes me recall the debate that we have in your Lordships' House every now and then when the American embassy refuses to pay the congestion charge because it says it is a tax. One or two other embassies do the same thing. We all get a bit upset about that and the Foreign Office tries to make the embassies pay. It is an argument, but what is a toll, what is a charge and what is a tax? It is basically something you pay for going into a tunnel or across a bridge or up a road.

I have put down the amendment because I strongly believe that the Department for Transport should now have a policy on tolling. I do not mean which roads should be tolled and which ones should not be because that is a separate issue. We have the London congestion charge, we have tolls for the Dartford tunnel and for the Birmingham northern relief road, and we have lorry road-user charging coming in. The lorry road-user charging is going to be time-based rather than distance-based, which is odd. Nobody else in Europe is going time-based but that is probably why we are. Worse still, if these all move forward, you are going to have to have separate equipment in your car or lorry for each area, road, tunnel or bridge that you wish to use because I suspect that more and more of the crossings that now have toll booths will wish to convert to taking money while you are on the move because it is so much easier and cheaper and, of course, it is quicker for the person paying.

Cheapness comes into it. Noble Lords will correct me if I am wrong but the cost of collection of the congestion charge in London is something like 30% of the amount you pay. With some of the modern electronic systems used in other cities and some motorways on the continent, you are getting down to about 5%, which means that the developer keeps more of his money. One hopes that one day the Department for Transport, maybe in its new roads policy which we were told about earlier in the Committee stage, will come up with a policy on tolling. That should include one system for the whole country-one technical system-that you can have in your car. That means a common technology and it would be much better if it was common throughout Europe. Then it would be up to the developers, the Government or whoever to decide what rate should be charged for using whatever facility you need. We want to get away from the idea that if you are getting consent for a particular crossing or something with a development consent order, it has to specify the type of toll booth, which seems to be a rather retrograde step. I look forward to hearing the Minister's response. I beg to move.

Baroness Valentine (Crossbench)

My Lords, Amendment 75ZAB stands in my name and that of the noble Lord, Lord Berkeley. I declare that I am chief executive of London First, a business membership organisation.

The demands on our roads are growing. In major urban centres such as London, there are severe physical limits to building more capacity, and congestion is a serious problem. I believe that road charging will be an important part of that solution as we seek to manage our resources more efficiently. A more sophisticated charging scheme will need to deliver reduced and more certain journey times. As the noble Lord mentioned, London is ahead of the pack: it already has a congestion charging zone, which is now widely accepted, including by all political parties.

This amendment would enable Transport for London to develop intelligent, barrier-free charging systems for new or existing roads or river crossings in response to the growing demand for road space. This is more than an academic point. Transport for London is currently consulting on a new tolled river crossing at Silvertown in east London. There is a real dearth of river crossings on the east side of London, in contrast to the west, and a new crossing here would help relieve the Blackwall tunnel and would support new jobs and growth in east London.

Lord Berkeley (Labour)

Can the noble Baroness confirm that this should apply-and the amendment does apply-well outside London? There is a plan for a new road or motorway linking Felixstowe to Birmingham-of course, I would rather it was a railway, but that is irrelevant-and there is talk of it being tolled. There are lots of other plans for tolled motorways in the offing, so am I right in thinking it would be a national system?

Baroness Valentine (Crossbench)

Yes, indeed, it would be a national system.

Lord Snape (Labour)

My Lords, I support my noble friend and the noble Baroness in this amendment. It is something that I personally feel strongly about. I live near Birmingham in the West Midlands and I use the tolled section of the motorway quite frequently on my journeys north. It is a very convenient way of missing the congestion that can be found around spaghetti junction and the Ray Hall viaduct, the elevated section of the M6-until one reaches the toll booths, where we have this medieval concept of queuing to pay, the sort of thing one did with a horse and cart centuries ago. Invariably, I find myself behind someone who has got in the wrong lane, or someone who does not have the right money or cannot find their credit card, and a lot of the time saved by using the toll road is lost as one queues to get through this barrier. Surely there has to be a better way.

As the noble Baroness, Lady Valentine, said, in this day and age it should surely be possible to have a more modern system of collecting revenue for toll roads. It is 25 years since I first went to Singapore. The authorities there managed to collect congestion charges electronically three decades ago in a way that is apparently beyond us on the Midlands motorway. I ask the Minister to bear that in mind.

Perhaps I may test the patience of the Committee for two or three more minutes while I am on this hobby-horse of the Midlands motorway. At the moment it is comparatively lorry-free because the private owners-I understand that Macquarie, the Australian company, is the main shareholder in the Midlands motorway-deliberately, as a matter of policy, price off heavy goods vehicles. Those heavy goods vehicles then use the existing M6 over the elevated section at the Ray Hall viaduct and past spaghetti junction-a section of the M6 that is regularly and expensively under repair because of those very same heavy goods vehicles which, whatever the very effective road lobby says, do not pay their true track costs and do enormous damage.

Thanks to the generosity of the noble Baroness, Lady Thatcher, when she was Prime Minister in the 1980s, Macquarie was given the concession to run the Midlands motorway in perpetuity, and can charge what it likes. The last thing it wants is a non-stop procession of heavy goods vehicles, because that damages its motorway. It is no accident that the bit of motorway infrastructure regularly under repair anywhere in the country is the left-hand lane, because that is the one used by heavy goods vehicles. It is a nonsensical situation in which the British taxpayer has paid literally hundreds of millions of pounds. I know the Ray Hall viaduct quite well; it was in my former constituency of West Bromwich East. When the former Prime Minister John Major talked about the cones hotline he had the Ray Hall viaduct and the spaghetti junction interchange in mind. Miles of it are regularly coned off because of the damage done by heavy goods vehicles, which use that section of the M6 because they are deliberately priced off the Midlands motorway.

There are two matters here that I hope the noble Earl, Lord Attlee, will address. The first is the nonsensical and medieval concept of stopping to pay a toll, having used a road on which I must confess to breaking the speed limit occasionally myself. I have rarely if ever seen a police vehicle on that privately-owned section of motorway, although having said that I have no doubt I can expect to see one in the very near future. The taxpayer had to pay literally hundreds of millions of pounds because of the pricing policy on that section of toll road, which keeps off heavy goods vehicles. Both of those matters are complete nonsense. No one blames the Minister personally, but can he do anything about it?

Lord Adonis (Labour)

My Lords, I wish my noble friend Lord Snape well in his quest to abolish all medieval practices in this country. I would simply point out that your Lordships may be the first victims of such a policy, so I hope he does not progress too fast.

Lord Snape (Labour)

If my noble friend will allow me to say so, at least some of us in this House have occasionally sought election.

Lord Adonis (Labour)

Of course, in medieval times exit was not a permitted right. The issue here is a very simple and straightforward one, on which I hope the noble Lord can give the Committee comfort. It is as simple as whether it is possible to have a tolling regime without having to have toll booths. The reason the issue has come to the fore is the Silvertown tunnel proposal. TfL, quite rightly, does not want to have toll booths, but the legal position is unclear. TfL tells me the issue is whether the New Roads and Street Works Act 1991 or the Greater London Authority Act is the relevant legal basis for tolling. If it is the one, then there is not a need for booths; if it is the other, then there might be. I think we all agree on what the public policy objective is here; we simply need the Government to give us comfort that it can be achieved.

Earl Attlee (Conservative)

My Lords, I am grateful to the noble Lord, Lord Berkeley, for tabling this amendment and for raising this issue in the House. Of course, it is always a pleasure to listen to noble Lords when they get on their hobby-horses. No doubt the noble Lord, Lord Snape, will be here on Thursday afternoon to discuss the HGV Road User Levy Bill that I will propose to the House.

The noble Lord, Lord Berkeley, makes a persuasive case in favour of amending Section 144(3) of the Planning Act 2008 in order to provide greater flexibility for developers wishing to include road charging provisions within the development consent order and to remove unnecessary additional processes and restrictions from the major infrastructure regime. While I cannot comment on the detail of individual cases, I share his commitment to ensuring the delivery of the crucial infrastructure that this country needs to support vital growth and jobs. I also agree with him that it is important that we take the opportunity to ensure that the provisions of the Planning Act 2008 are fit for purpose and are not inadvertently acting as a barrier to growth. This is therefore an area where I am able to consider further the case for an amendment to Section 144(3) of the Planning Act 2008.

On the noble Lord's point about charges against diplomatic organisations, he will be aware that this is a long-running issue that we have debated many times. The Government pursue these charges vigorously with the organisations concerned. The noble Lord touched on the charging of road users, and of course on Thursday we will debate the HGV Road User Levy Bill, which partially addresses some of these problems.

I am happy to meet all noble Lords to discuss some of the wider issues relating to charging for roads. However, noble Lords will be well aware of the Government's policy on wider road-user charging. With those reassurances, I hope that the noble Lord will be willing to withdraw his amendment and perhaps return to it on Report.

Lord Berkeley (Labour)

I am very grateful to the Minister for what I felt was a positive response. I did not really need much on the poor old Foreign Office's attempt to get the Americans to pay for parking their cars here, but, on the subject of the amendment, it was good to hear that he understands the problem. I look forward to sitting down with him between now and Report and possibly encouraging the Government to come back with their own amendment, which I am sure will be much better than the one that we have drafted. On that basis, I beg leave to withdraw the amendment.

Amendment 75ZAB withdrawn.

Clause 22 : Special parliamentary procedure in cases under the Planning Act 2008

Amendment 75A

Moved by Lord Greenway

75A: Clause 22, page 22, line 39, leave out "Sections 128 and 129" and insert "In section 128"

Lord Greenway (Crossbench)

My Lords, I shall speak also to Amendments 75B, 77ZA, 77ZB and 77ZC. The amendments are to do with safeguarding port land.

Amendments 75A and 75B to Clause 22 are intended to preserve the possibility of special parliamentary procedure in relation to compulsory acquisition of land of certain types of transport statutory undertakers. Clause 22 relates to Section 128 of the Planning Act 2008, which provides for development consent orders authorising the compulsory acquisition of land of local authorities and statutory undertakers to be subject to special parliamentary procedure. As currently drafted, Clause 22 would repeal the whole of Section 128. The amendments would instead remove the reference to local authorities and the general reference to statutory undertakers in that section and restrict its application to land of harbour and railway undertakers. These are providers of infrastructure for public benefit, and it is important that land required for these purposes should continue to enjoy the additional level of protection which this procedure confers. Since Section 128 is not to be repealed in its entirety, Section 129 of the Planning Act, which relates to the operation of Section 128, will continue to need to apply. Amendment 75A would also remove its repeal.

Amendment 77ZA would delete subsection (4) of Clause 22, which repeals provisions which also relate to Sections 128 and 129 of the Planning Act. The proposal that these provisions remain makes repeal unnecessary.

Amendments 77ZB and 77ZC follow on from the previous amendments. Clause 23 modifies and limits the scope of special parliamentary procedure in relation to compulsory acquisition of land in certain cases where the Bill is not removing the process altogether; that is, in cases where special parliamentary procedure is triggered under what the Bill describes as a "special-acquisition provision". It is accepted that if special parliamentary procedure is still to apply under Section 128 of the Planning Act in relation to land of transport undertakers, it should be subject to the same limitations. These amendments would include Section 128 in the definition of special-acquisition provision. This means that the modifications to the procedures would apply to any case in which special parliamentary procedure was triggered by Section 128.

These are in the way of probing amendments. I am seeking assurance that the Government realise the importance of safeguarding port land. If the Minister can give me reassurance on this, and says that the amendments are unnecessary and that the Government are content with the status quo, I will be happy with that. I beg to move.

Lord Faulkner of Worcester (Labour)

My Lords, I start by thanking the Ministers-the noble Baroness, Lady Hanham, and the noble Lord, Lord Ahmad of Wimbledon-for taking the time to see me with their officials last Thursday to talk about the amendments I have tabled to Clause 23 in the next group and also about my objections to the inclusion of Clause 22 in the Bill.

Your Lordships may recall that I spoke about special parliamentary procedure-SPP-at Second Reading. That was based on my experience of serving on the Rookery South Joint Committee. I shall not repeat the arguments that I used then, other than to repeat the point that SPP has been triggered very rarely-only three times since 1990. While the eventual majority decisions of the Rookery South Joint Committee were not ones I supported-both the noble Lord, Lord Geddes, and I felt that the promoters of the resource recovery facility had a case to answer in terms of demonstrating the need for such a large project-I believe that the public interest was served in our deliberating in a Joint Committee. Had this Bill been an Act last year, with Clauses 22 and 23 contained within it, the Rookery South Joint Committee would not have taken place.

Since Second Reading, I have been sent two pieces of briefing on why Clause 22 should be removed from the Bill. The first relates to a battle against road-builders in High Wycombe in 1965. The redoubtable Kate Ashbrook, general-secretary of the Open Spaces Society, has described what happened on her blog, from which I shall quote some extracts:

"Wycombe Rye is a stretch of public open space on the east side of High Wycombe, Bucks, extending alongside the River Wye ... The rye is a treasured spot, 68 acres of land vested in Wycombe District Council and its predecessor body ... since 1927 ... Looking at it now you might think it had always been safe. Not so. In 1962 part of the land was threatened with a compulsory purchase order, to enable the inner-relief road to be built across it".

That road had been approved following a public inquiry. She goes on:

"There was a further inquiry into the appropriation of 2.4 acres of open space, but on the inspector's recommendation, the minister"-

of the day-

"confirmed the appropriation order, under the Acquisition of Land (Authorisation Procedure) Act 1946, on 5 February 1965. Fortunately no land was offered in exchange, so the order was subject to special parliamentary procedure ... That meant that objectors could petition parliament and present their case to a joint committee of both houses ... Magnificently, the committee ruled that the orders be annulled. The rye has remained intact to this day, saved by legislation which gives parliament the final say on the theft of open space where no suitable alternative is provided".

However, that protection will disappear if Clause 22 remains in the Bill because,

"instead of such cases being referred to a parliamentary committee, the Secretary of State for Communities and Local Government himself can decide the fate of open space. In future, when compulsory purchase of open space is proposed for development which the government thinks should go ahead quickly, and there is no suitable exchange land or that land is considered to be too expensive, the minister can cast aside SPP and rule that the development proceeds without regard to the open space".

Powerful arguments in favour of retaining SPP have also come from the Inland Waterways Association, which makes the point that the Canal & River Trust, the body set up following the passage of the Public Bodies Act, holds the waterways it cares for in trust on behalf of the nation in perpetuity. If the CRT is threatened by a compulsory purchase proposal it has at present the option to go down the SPP route. This, says the Inland Waterways Association, makes the authority threatening compulsory purchase treat the CRT with greater respect and encourages constructive discussion. It claims that if the Bill is passed, the CRT will lose the right to request an SPP. Will the Minister confirm whether it is right in that assertion? If it is, how does he explain the anomaly whereby the National Trust retains the right to call for an SPP on its own land but the Canal & River Trust is denied that? It appears to be the case that the Government are, by their amendment to Clause 22, strengthening the position of the National Trust but at the same time doing nothing to give protection to other bodies with heritage responsibilities. As the Inland Waterways Association puts it, how can the Minister justify the situation where the River Wey Navigation, which is owned by the National Trust and dates back to the seventeenth century is protected, but the River Lee Navigation, which is five centuries older, is not?

Finally, if Clauses 22 and 23 stay in the Bill, a decision, which was vested in Parliament, will now be taken by the Executive. I caution the Minister to take care in what he wishes for. One advantage from the Government's point of view about SPP is that it cannot be subject to judicial review and does not apply to decisions taken by the Secretary of State, which can be challenged by JR and will take far longer to resolve than SPP. Certainly, if the Government are threatening open space, they should anticipate the possibility of numerous judicial reviews. I suggest that the Government should now drop Clause 22, take it back for further consideration and perhaps come forward with fresh suggestions on Report.

Lord Jenkin of Roding (Conservative)

My Lords, Amendments 76 and 77 are in the names of the noble Lord, Lord Berkeley, and myself, and this perhaps is the moment when I should make my contribution to the debate. I read the speech made by the noble Lord, Lord Faulkner, at Second Reading and his reference to Rookery South. I approach this issue from a rather different angle. If one looks at the history of that energy-from-waste project in Bedfordshire, the SPP-a post-consent process; planning consent had already been given-simply allows the objectors a further opportunity to object. A lot of people feel strongly about energy-from-waste projects.

The noble Lord says that that gives rise to parliamentary accountability. I have to say that until I had studied the briefs on these two clauses, I had been entirely unaware as a Member of Parliament of the activities of the noble Lord and some of his colleagues-the noble Lord, Lord Geddes, was mentioned. I know that my noble friend Lord Brabazon has been involved in similar SPP processes and has regarded them as very long and drawn out.

This Bill is about encouraging growth and investment in the infrastructure. It really cannot make sense to continue with these, as it were, statutory procedures for delaying decisions and action on applications for which consent has already been given after the normal processes. I have to confess to the noble Lord, Lord Faulkner, that I have not studied closely the condition of the waterways, as he obviously has, or, perhaps I may say to the noble Lord, Lord Greenway, the ports.

These two amendments are concerned about, as am I, the application of the special parliamentary procedure for what is called common land,

"open space, fuel or field garden allotment".

The Planning Act currently provides that a development consent order which authorises compulsory purchase of open space land or a right over such land will be subject to the SPP unless the Secretary of State has issued a certificate confirming that certain prescribed circumstances will apply. I have already said that this is a post-consent approval stage that certainly has the potential to result in-and in some of the cases, not least that of Rookery South to which the noble Lord, Lord Faulkner, has referred, has actually resulted in-very considerable delays for a project that had already achieved planning consent. The procedure can be very costly for the applicants-and, I dare say, for some of the objectors-and hold back the provision of infrastructure projects that support economic growth.

Clause 22-I welcome it and want to make it perfectly clear that I support it-widens the circumstances in which the Secretary of State can issue a certificate confirming that a DCO which authorises the compulsory purchase of open space land or a right over such land will not be subject to SPP. However-and this is the point I wish to make to my noble friend on the Front Bench-there remains significant scope for a DCO which authorises the compulsory acquisition of open space land or a right over that land to be subject to SPP. I believe that the clause could go further and remove what could be a rather tiresome-and, from the economic point of view, obstructive-process, while still retaining a proper balance between the interests of promoters and the users of open spaces.

The amendments are aimed at limiting the scope of what is meant by "open space". They do this by a very simple process. An open space, for the purposes of this clause-and I am not referring to some of the earlier clauses that we discussed-would be limited to land which has been formally designated as open space by the responsible local authority. All important pieces of open land are officially and formally designated by the local authority, but they cannot cover every single piece of open land. For instance, where there is a road junction in a village with a triangle of open land in the middle of it and somebody wants to improve the road system and would require some of it, in theory that could be open to the SPP because it would belong to the local authority. However, it would never have been designated as open land that way. There are pieces of open land where boys are accustomed to go and kick a football around, but no local authority has ever thought it necessary for that to be formally designated. It just happens to be there; but why should an important road or other development be held up simply because there happens to be a procedure which is triggered by the fact that there is a compulsory purchase of open land?

My noble friend the Planning Minister in the other place, Nick Boles, got this absolutely right when he said:

"The Government believe there is a strong argument for the special parliamentary procedure to be limited to situations where there is a real need for further scrutiny by Parliament: for example, where there is a genuine need to weigh up the public interests of allowing infrastructure development to take place at the expense of the loss of certain types of very specially protected land".-[Official Report, Commons, Growth and Infrastructure Bill Committee, 4/12/12; col. 401.]

At another point, he referred to this as essentially our "most precious" open spaces. I am not challenging that, but, of course, all the most precious open spaces fall under designations that are already very clear and would be covered by the SPP. I am talking about the informal bits of land, land that happens to be open land but which no local authority has ever thought it worth while to designate because it seemed to be so trivial-that can somehow trigger the right of the objectors to a particular piece of development to ask the Secretary of State for a special parliamentary procedure.

It is a narrow point, but if this clause is to be effective, as I hope my noble friends in government expect it to be, this modest improvement in the situation would help the Government's intention. I hope that Ministers feel able to agree to that. What Mr Boles said on that occasion absolutely reflects what is right, and this amendment is necessary to give effect to that.

Lord Adonis (Labour)

Noble Lords have different views about the precise scope of the special parliamentary procedure, which we have heard expressed in Committee, but it is important that the scope is consistently applied. It is therefore important that the Minister answers the point made by my noble friend Lord Faulkner. Why does Clause 22(5) preserve the application of the SP procedure to propose compulsory purchase acquisition of National Trust land, which is held inalienably, but does not provide equivalent protection for land held in trust for the nation by the Canal & River Trust? Since the land is held for precisely the same purpose in both cases, why should the same legal procedure not apply to both?

Lord Greaves (Liberal Democrat)

My Lords, I support the amendments and the stand part debate proposed by the noble Lord, Lord Faulkner, and express some concern about the amendments in the name of the noble Lord, Lord Berkeley.

We are talking about open space. The law relating to open space is quite complex and is nothing like as simple as might be suggested. The problem is that a little bit of this particular Bill intervenes on the law on open space in one or two instances, potentially causing considerable confusion, not least about the definition of "open space". In Clause 22 is set out the proposal that in some circumstances where it is proposed to develop on and remove open space-it does not refer to commons; the position on commons will remain the same-the special parliamentary procedure will not apply. Those circumstances are when,

"it is strongly in the public interest for the development for which the order grants consent to be capable of being begun sooner than is likely to be possible if the order were to be subject (to any extent) to special parliamentary procedure".

It is an important bit to read out. The crucial words are,

"it is strongly in the public interest".

That decision will have to be made by the Secretary of State, which is why what the noble Lord, Lord Faulkner, said about the threat of a relatively large number of delaying judicial reviews is so crucial. What is and is not in the public interest is clearly debatable, and the question of whether the Secretary of State is making a reasonable judgment on what is in the public interest is clearly judicially reviewable. That is the constraint in here which means that it is poor legislation; it is vague and not very clear about what it means. It might mean different things in identical circumstances to different Secretaries of State.

There are other reasons why Clause 22 is undesirable. As the noble Lord said, there have been very few references to or uses of special parliamentary procedure. Once again in this Bill, the Government come forward wanting to do something without providing any clear evidence of why it is necessary. The first thing that the Minister has to try to do is to give us some evidence of why this is necessary in the real world, not of why, in some theoretical future, there might be a problem or two, but evidence that it has been a serious problem in the past. If it has been only in one or two cases, then that does not add up.

The other rather vague and, I believe, judicially reviewable phrase is "long-lived". These new provisions apply to circumstances in which the removal of the open space is temporary but possibly long-lived. Perhaps the Minister can tell us what "long-lived" means. I suspect that she cannot tell us very precisely because, again, it is a matter of judgment, and it may lead to more delays than even a special parliamentary procedure.

Has the noble Lord, Lord Berkeley, spoken to his amendments? He has not. I thought that perhaps I had been asleep and had missed him when the noble Lord, Lord Adonis, jumped in. I will speak to them, with his permission, and then he can tell me why I am wrong.

Lord Jenkin of Roding (Conservative)

I apologise, but my noble friend may have been asleep at the point when I spoke quite heavily to the amendment.

Lord Greaves (Liberal Democrat)

The noble Lord, Lord Jenkin, indeed spoke to the amendments, and his name is on them, so I am justified in speaking to them. I am grateful to the noble Lord.

At the moment, open space is generally defined as any land used for the purposes of public recreation. When it is threatened with compulsory purchase, the developer must provide suitable exchange land. If no land is provided, or if it is thought to be inadequate, then the special parliamentary procedure comes in. It is true that open space is often already designated by local authorities. It includes all the land designated in local plans as open space. However, it surely includes a great deal more than that.

At the moment the protection of Parliament is afforded to all land used for public recreation, formal or informal. For example, the amendments in the name of the noble Lord, Lord Berkeley, would remove this protection from the many thousands of acres of countryside, apart from the commons, which were mapped for access under the Countryside and Rights of Way Act 2000, and which are now clearly designated as access land and, therefore, open space. They would also remove this protection from many hundreds of sites which people enjoy by custom for informal recreation.

Again, the amendments in the name of the noble Lord, Lord Berkeley, produce a new definition of open space, which is that it has to be designated by local authorities in addition to, and over and above land designated in local plans. I do not know what this means. It would produce considerable new duties on local authorities to make sure that they looked again at all their open space and, inevitably, it would exclude quite a large amount of open space.

There is a suggestion that the Government now only want to protect the most precious spaces and very specially protected land, which the noble Lord referred to in his speech. However, that would be a very substantial restriction on existing definitions of open space. I am sure that, overall, that is not the Government's wish, but if it were to be their wish, they should come forward and apply that to everything, not just to this particular provision.

The provisions have existed in their present form since the Acquisition of Land (Authorisation Procedure) Act 1946 and were intended to protect land which is valued by people for recreation. I suggest that to introduce some kind of arbitrary distinction, which results from a new kind of designation by local authorities, is not the way forward. It would be vague and confusing, and to put out a new definition of open space just for this purpose would not be desirable at all. It would be a great confusion and would lead also to lots of judicial review. The noble Lord, Lord Jenkin, referred to the normal processes, but the normal processes in relation to open space are different from the normal planning processes. They are part of that but they are different.

Clause 22 already restricts the application of special parliamentary procedure to open space. It is something that I would rather did not happen. Therefore, I support the noble Lord, Lord Faulkner. However, to restrict it even further, as the noble Lord, Lord Berkeley, wants, would be a very substantial step backwards.

Lord Berkeley (Labour)

My Lords, the noble Lord, Lord Greaves, invited me to speak to my amendment, which was very kind of him. The noble Lord, Lord Jenkin of Roding, gave a very good description of it, which I do not need to repeat, but there are a couple of issues on which we ought to reflect. First, the special parliamentary procedure, which my noble friend Lord Faulkner described at Second Reading and again today, is to my mind a second attempt to oppose planning permission if you fail on the first occasion. Is that worth having and, if so, what exceptions or types of development should be included? There is also the question of the scope of the SPP because I believe that it can be very wide: for example, looking at a complete planning application again; or it could be narrowed to apply to just the particular issue that is under consideration.

I found a very interesting example of this recently on Humberside where the established port operator there, Associated British Ports, got into a bit of debate with a new company, which I think was trying to develop a port complex next door for offshore windmills or something or other. A railway line runs through the middle of the proposed development which the developer was trying to purchase so that he could install level crossings rather than having the cost of a bridge. The detail does not really matter but the issue comes back to the fact that if you are opposed to a proposed development, the SPP gives you a second round of attack, if you like, in putting your case. If you want it to go forward as quickly as possible, you will argue that the consent order process is perfectly valid and, if you do not like the outcome, I suppose that you can go for judicial review.

I also worry when my noble friend Lord Faulkner says that there have been only two or three of these cases in the past goodness knows how long, because once people discover that there is this rather arcane procedure, a lot of people might try to use it. That is not a reason for not having it but it is a reason for considering whether one needs it, the scope it should have and how long it should last. I have tabled my amendment in conjunction with the noble Lord, Lord Jenkin of Roding, to test the waters and probe. We have had a good debate and it will be interesting to hear what the Minister has to say in response.

Lord Ahmad of Wimbledon (Conservative)

My Lords, I am grateful to all noble Lords for the amendments they have tabled, in particular the noble Lords, Lord Greenway, Lord Jenkin and Lord Berkeley, for setting out their proposed amendments to Clause 22. Questions have been raised about the Government's position in putting forward Clause 22. It may be helpful if I first set out the issues that the Government are trying to address through this clause.

Clause 22 amends the provisions in the Planning Act 2008 which set out when special parliamentary procedure will apply to a development consent order which authorises the acquisition of specially protected land. It also repeals the separate certification process required in certain cases. The Planning Act 2008 brought together a range of different consent regimes for nationally significant infrastructure into a single development consent order. The overall aim of this regime is to provide a more efficient and quicker consenting regime for very large infrastructure projects. Development consent orders can include authorisation for the compulsory acquisition of land, but when certain categories of specially protected land are acquired, special parliamentary procedure can be triggered. The decision by the Secretary of State that such land is to be compulsorily acquired is then transferred to a Joint Committee of Parliament for confirmation. While the special parliamentary procedure is undertaken, the development consent cannot come into effect and work on the infrastructure project cannot start.

The noble Lord, Lord Greaves, talked about the reasoning behind such measures. Delays to infrastructure projects can have a significant knock-on impact in delaying benefits to the local and, indeed, national economy. In the case to which the noble Lord, Lord Faulkner, referred-the Rookery South project in which he was involved-the special parliamentary procedure was triggered for an infrastructure project under the Planning Act. The special parliamentary procedure added more than a year to the consent process. I understand that during this period no work was possible on the project, delaying the creation of up to 300 construction jobs and 80 permanent jobs that would have resulted when the project was up and running.

Lord Faulkner of Worcester (Labour)

I am grateful to the noble Lord for giving way. Has he any estimate of how long it would have taken if the decision had been taken by the Secretary of State and been subjected to judicial review, which was the alternative to the SPP?

Lord Ahmad of Wimbledon (Conservative)

That would be speculating but I will come to the specific issue of judicial review in a moment and perhaps address the question at that time.

In more general terms, there is also the strong argument that has been made about the threat of delay, for whatever reason, impacting on the confidence of investors and developers. We are, after all, looking at infrastructure which is supporting the economic growth of our country. In total, new infrastructure creates thousands of new jobs and billions of pounds of new investment, as we all know. Consents for such infrastructure must be provided as quickly and efficiently as possible. We cannot afford to lose those jobs and investment because of delays in finalising consents.

The Government are committed to reform of the SPP and want to ensure that in future SPP is used only in cases where there is a genuine need for further scrutiny by Parliament of a particular ministerial decision. We therefore consider that SPP under the Planning Act should be limited to cases where there is a need for further scrutiny, as I have said. As my noble friend Lord Jenkin rightly said, it should be invoked where there is a real need for further scrutiny based on public interest and, indeed, a general need to weigh up competing public interests of allowing infrastructure development and the protection of certain types of specially protected land.

Lord Greaves (Liberal Democrat)

Does my noble friend agree that what is set out in the Bill is not a balanced view of the public interest, as he is suggesting, but a one-sided view of it? New subsection (4A)(d) states that,

"it is strongly in the public interest for the development for which the order grants consent to be capable of being begun sooner than is likely to be possible if the order were to be subject (to any extent) to special parliamentary procedure".

If the new subsection referred to a balance of public interest in having a development as opposed to retaining a public open space, it would achieve what the Minister says that it does. However, that is not the case. It is a very one-sided consideration of the public interest.

Lord Ahmad of Wimbledon (Conservative)

I thank my noble friend for his intervention, but I do not agree with him on this point. We are not seeking to do away with the procedure altogether: we are ensuring that the procedure is still in place and can be invoked where there is a genuine public interest. This is not about sweeping the procedure away, although perhaps, on this occasion, we have different ways of looking at what is in front of us.

Clause 22 would repeal those sections of the Act that require special parliamentary procedure where land belonging to a local authority or land acquired by a statutory undertaker is compulsorily acquired. Repeal of these provisions would bring the Planning Act into line with other, similar consent regimes, such as the Transport and Works Act 1992.

The Planning Act 2008 already provides extensive opportunities for representations from local people, local authorities and statutory undertakers to be made about the compulsory acquisition of land. There are also comprehensive requirements for pre-application consultation. Examination of an application provides opportunities for parties to make representations as to whether the proposed acquisition of the land should proceed. These include hearings as part of a public examination. Persons whose land is acquired can require such a hearing to take place and, importantly, relevant representations will continue to be taken into account in the recommendations made to the Secretary of State and will inform his subsequent decision. I stress that the requirement, under Section 122 of the Planning Act, for there to be a compelling case in the public interest for the land to be compulsorily acquired, will also remain unchanged. This will be a crucial factor for the Secretary of State when reaching a decision on whether to authorise the compulsory acquisition.

The noble Lord, Lord Greenway, very clearly set out the effect of his amendment. It would mean that transport undertakings would still see the compulsory acquisition of land acquired by them for the purposes of their undertaking being subject to SPP, but the land of other statutory undertakers and local authorities would not be. I understand the noble Lord's concern about the removal of statutory undertakers' land from those types of land which can give rise to SPP. It would, however, be wrong to think that such land can be compulsorily acquired without any opportunity for statutory undertakers to present their case against the acquisition before the decision is made. There are ample opportunities to do so. I therefore hope that noble Lords will understand why the Government consider there to be no need for an additional level of scrutiny for such land through special parliamentary procedure.

I move on to the other provisions in Clause 22 and will address the amendments tabled by the noble Lord, Lord Berkeley, and supported by my noble friend Lord Jenkin. These would amend the definition of an open space used for the purposes of considering whether such land would trigger special parliamentary procedure under the Planning Act. Clause 22 also amends the provisions in the Planning Act 2008 which cover the compulsory acquisition of commons, open space land and what are known as "fuel and field garden allotments" or the compulsory acquisition of rights over those types of land. The Government have considered carefully the extent to which SPP should apply when open space is compulsorily acquired or a right over such land is acquired in respect of nationally significant infrastructure projects. At present, the main situation where the Secretary of State can decide that SPP should not apply is when replacement land is given in exchange for the land subject to the compulsory acquisition. However, the Government consider that there could be a very limited number of cases where such exchange land may not be available or, if it were available, would be available only at a prohibitive cost.

Clause 22 therefore proposes extending the circumstances, under the Planning Act 2008, in which the Secretary of State can decide that the compulsory acquisition of open space or rights over such land should not trigger SPP. The proposals would allow the Secretary of State to decide that SPP should not apply where open space is compulsorily acquired and suitable replacement land for the land being acquired is not available or available only at prohibitive cost. This would, however, apply only where it is demonstrated to be strongly in the public interest for the development to start sooner than is likely to be the case if it were subject to SPP. We expect that, in most cases, developers will continue to provide suitable replacement land to avoid the need for SPP. However, there may be limited occasions, such as in heavily urbanised areas, when such land is not available. Given the importance of infrastructure to growth, there may be cases where development should be able to proceed promptly without going through SPP.

I thank the noble Lord, Lord Berkeley, for his general support for government proposals in the Bill on infrastructure. Turning to his amendment, the current definition of open space, used in the Planning Act is,

"any land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground".

The noble Lord's amendment would have the effect of amending the definition of open space for the purposes of triggering SPP under the Planning Act. Such a distinction does not reflect the rationale for open space being given special status in terms of compulsory acquisition. The need for additional scrutiny through SPP in cases involving open space derives from the public use of such land and the wider public interest in its continued availability for such use. Whether such land is designated for such purposes is immaterial in this context.

Before I conclude, I will say a few brief words about the government amendments and pick up on a couple of questions raised by the noble Lord, Lord Faulkner. The Government are not making any changes to circumstances where compulsory acquisition of National Trust land and common land triggers SPP. These types of land are nationally and historically significant. The government amendments to Clause 22 are minor and will ensure that this remains the case. In particular, where land acquired is held both inalienably by the trust and is also a common, open space or fuel or field garden allotment, SPP will continue to apply under the provisions in the Planning Act governing National Trust land, even where the Secretary of State has reached a view that it should not apply under the provisions covering commons, open space or a fuel or field garden allotment.

The noble Lord, Lord Faulkner, raised the issue of the Canal and River Trust against the issues with the National Trust. The Government recognise the points he has raised. There is a special status attached to the National Trust because of the extent of the land it owns. Therefore, it occupies a special position, including its benefit in relation to SPP. That said, I hear what the noble Lord has said and it would be useful to arrange to sit down with him and the Canal and River Trust to establish exactly what the issues are and discuss the matter further.

Clause 23(10) is a minor and technical amendment that the Government are making to clarify the effect of subsection (10). As amended, this provides that Clause 23, like Clause 22, may apply to any development consent order under the Planning Act made after the clause has commenced. The amendment removes reference to other compulsory purchase orders as it is not our intention to apply the changes in Clause 23 to such orders where proceedings have started prior to commencement.

The noble Lord, Lord Faulkner, also raised the issue of judicial review and asked a specific question about whether decisions taken which were not subject to SPP would be subject to judicial review, and whether this was the Government's intention. Our current view is that the 2008 Act provides for judicial review of decisions on development consent orders and it is right that errors of law or procedural failures should be subject to challenge where necessary. We are not seeking to alter this, but it is important to note that judicial review will not happen in respect of every order authorising the acquisition of special land, and someone wishing to bring such a challenge would need the specific permission of the court to do so.

The noble Lord, Lord Greenway, made a point about safeguarding of lands and ports. The specific matter of safeguarding policy has been taken up with Ministers in the Department for Transport. I know that my honourable friend Stephen Hammond has written specifically on this letter. I am not sure whether he has seen that particular letter but we can perhaps bring it to his attention as well.

In conclusion, the proposals set out in Clause 22 will help ensure that essential infrastructure projects are not delayed by the need for the additional scrutiny required through SPP where this is not considered necessary. Notwithstanding the point made by my noble friend Lord Greaves, we have struck a fair balance between the protection of certain types of land and the need for new infrastructure to support growth. I therefore hope that, in view of my explanations and the Government's amendments to Clauses 22 and 23, other noble Lords will be minded to withdraw or not move their amendments.

Lord Greaves (Liberal Democrat)

My Lords, I have just two points. First, the Minister said that it was important in the national interest to get big infrastructure projects going. Clause 24, which we will discuss shortly, relates to business and commercial developments that may or may not be thought to be infrastructure, but which many people will think are not. This new provision for fewer special parliamentary procedures will apply to that clause also.

Secondly, when we were discussing Clause 1 some time ago, the Government were adamant that it was necessary to have such provisions in the legislation in order to make sure that planning authorities that they thought were not performing got up to speed and organised themselves. The Government said that they hoped that no planning authorities would ever come under these provisions, but they were nevertheless a necessary back-stop. However, if there is to be no back-stop of special parliamentary procedure in these cases, is it not the case that the incentive for developers to provide alternative land or open space when necessary will be less because they can simply apply to the Secretary of State, who can say, "No, you do not need to do so"? They can then do absolutely nothing about it. Surely the fact that there have been so few examples of special parliamentary procedure is because applicants for development consent have done their business and found appropriate alternative open space to replace any that they are using. The current system is working and there is a danger that there will be far less of this happening, simply because the back-stop SPP procedure will not exist.

Lord Greenway (Crossbench)

My Lords, there has been a fairly wide-ranging debate on this group of amendments, covering ports, canals, plots of land and so on. As far as I am concerned, I am grateful for what the Minister said about ports-in particular, for his latter remark concerning the letter from the Shipping Minister in another place, which I very much look forward to seeing. I will take on board what the noble Lord said and ruminate on whether to take this matter any further but, in the mean time, I am happy to beg leave to withdraw the amendment.

Amendment 75A withdrawn.

Amendments 75B to 77ZA not moved.

Amendments 77ZAA and 77ZAB

Moved by Baroness Hanham

77ZAA: Clause 22, page 24, line 26, leave out "To ensure that" and insert "In"

77ZAB: Clause 22, page 24, line 28, leave out from "objections)" to end of line 35 and insert "after subsection (3) insert-

"(3A) In a case to which this section applies and to which section 131 or 132 also applies, special parliamentary procedure-

(a) may be required by subsection (2) whether or not also required by section 131(3) or 132(2), and

(b) may be required by section 131(3) or 132(2) whether or not also required by subsection (2).""

Amendments 77ZAA and 77ZAB agreed.

Clause 22, as amended, agreed.

Clause 23 : Modifications of special parliamentary procedure in certain cases

Amendments 77ZB and 77ZC not moved.

Amendment 77ZD

Moved by Lord Faulkner of Worcester

77ZD: Clause 23, page 25, leave out lines 8 to 26

Lord Faulkner of Worcester (Labour)

My Lords, I shall speak also to Amendments 77ZE and 77ZF. I have also given notice that I wish to oppose the Question that Clause 23 should stand part of the Bill. This is, in a sense, a continuation of our previous debate on Clause 22. Perhaps I may first respond to the Minister's generous offer to convene a meeting with the Canal & River Trust. I am delighted to accept, as, I am sure, the trust will be; I look forward to the meeting.

I shall not repeat the arguments that I put forward regarding Clause 22 but seek simply to state that what the Government propose in Clause 23 goes further than what the two chairmen-the Chairman of Ways and Means in another place and our Chairman of Committees-recommended in their special report on the Rookery South order, when they considered the promoters' challenges to the locus standi of the petitioners against the order. In paragraph 28 of their report, the two chairmen concluded:

"We urge the Government to amend either the Statutory Orders (Special Procedure) Act 1945 or the Planning Act 2008-or both-so as to ensure a consistent statutory framework for the consideration of future Development Consent Orders subject to Special Parliamentary Procedure. In drawing up revised provisions, the Government will need to consult with the relevant authorities of the two Houses. In the meantime, no further orders of this type should be laid before Parliament until the statutory framework has been amended to resolve these inconsistencies".

In its proceedings on Rookery South, the Joint Committee decided at the outset that it wished to hear evidence on the whole of each of the petitioners' cases. The amendments proposed by Clause 23 would have prevented the Joint Committee from doing so. It is likely in future cases, once Clause 23 is in force, that any attempt to petition on issues that are not related to the acquisition of the special land are likely to be challenged at the preliminary stage before the two chairmen.

Despite that, it remains to be seen whether petitioners will be able to raise issues that are not directly related to the acquisition of the land. It has always been a central tenet of compulsory acquisition law that the applicant for the powers must demonstrate that there is a compelling case in the public interest for the land to be acquired compulsorily-a point made with great force by the noble Lord, Lord Greaves, in the previous debate. Those words are embodied in Section 122(3) of the Planning Act. In order for a petitioner to demonstrate that there is no compelling case in the public interest, he should be able to bring evidence to bear about the benefits of the proposals as a whole, compared with the injury that he will suffer when losing his land.

As I said, Clause 23 goes further than the request made by the two chairmen, who limited their remarks to the 2008 Act. No issue has been raised as regards the compatibility between the Acquisition of Land Act 1981-and other statutes that authorise compulsory acquisition-and the 1945 Act; yet the clause seeks to limit the scope of SPP in the 1981 Act and the other examples in the same way as it does for 2008 Act cases. I should be grateful if the Minister can explain why the Government have decided that this should be the case. My amendments would have the effect of limiting the changes proposed to the SPP procedure so that they apply only to development consent orders under the Planning Act 2008. I beg to move.

Lord Greaves (Liberal Democrat)

My Lords, I wish to put on record that I support the amendments of the noble Lord, Lord Faulkner.

Lord Ahmad of Wimbledon (Conservative)

My Lords, I am grateful to the noble Lord, Lord Faulkner, for explaining the reasoning behind his amendments. I have also noted his opposition to the Question that Clause 23 should stand part of the Bill. In my response, it might be helpful if I set out the reasons behind the approach that the Government have taken, how Clause 23 delivers that and take up some of the noble Lord's questions.

Clause 23 amends the Statutory Orders (Special Procedure) Act 1945. That Act sets out the procedural requirements for any order that is subject to special parliamentary procedure. Clause 23 ensures that where a development consent order under the Planning Act 2008 is subject to SPP, consideration will be limited to the order only in so far as it authorises the compulsory acquisition of special land. This is to reflect the wording and intention of the 2008 Act.

The clause also makes similar provision for certain other compulsory acquisition powers that require an order to be subject to SPP. It applies to any order involving the compulsory acquisition of specially protected land as a result of Sections 17, 18 and 19 of the Acquisition of Land Act 1981. It also applies to the Harbours Act 1964, certain provisions of the New Towns Act 1981 and the Transport and Works Act 1992. The clause will ensure that SPP applies in the way originally intended, where legislation makes clear that an order is to be subject to this procedure to a limited extent.

The need for Clause 23 reflects an inconsistency between the 1945 Act and certain more recent legislation. This was drawn to the Government's attention by the Chairman of Committees and the Chairman of Ways and Means in their initial joint report on the Rookery South order which, as the noble Lord Faulkner knows well, has been subject to SPP. The Planning Act 2008 provides that a development consent order which authorises the acquisition of special land is to be subject to SPP to the extent that the order authorises acquisition of such land. Consideration of that order should therefore be limited to that part of the consent order authorising the compulsory acquisition of special land.

However, the 1945 Act does not currently make provision for Parliament to consider just part of an order. This means that decisions on matters such as whether consent for development should be granted, which have been properly decided by a Minister, are open for reconsideration by Parliament. This was not the original intention of the Planning Act 2008 or the other Acts that I have mentioned. Clause 23 seeks to resolve this inconsistency. It amends the 1945 Act so that it covers circumstances where SPP applies only to a limited extent.

The amendment of the noble Lord, Lord Faulkner, would limit the proposal in Clause 23 only to cases where authorisation for the compulsory acquisition of special land was granted under the provisions of the Planning Act. That would mean not addressing the inconsistency that currently exists between the 1945 Act and those other pieces of legislation which state that Special Parliamentary Procedure should apply to an order to a limited extent. Indeed, the amendment would create a new discrepancy in the way that similar compulsory acquisition provisions are handled. Given that this inconsistency has now been drawn to our attention, it is important to ensure that it is removed wherever it occurs.

It may be helpful to give a very brief summary of how the actual proposals in Clause 23 would work in practice. Clause 23 identifies a statutory provision that requires an order to be subject to SPP to be limited as a "special-acquisition provision". New Section 1A of the 1945 Act provides that, where an order is subject to SPP under a special acquisition provision, that order is to be known as a "special authorisation", in so far as it authorises the compulsory acquisition of special land or rights over such land. Paragraphs 3 to 18 of the new Section 1A set out modifications to the provisions of the 1945 Act. In many cases, these provide that references in the 1945 Act to the "order" are read as references to the "special authorisation". The broad effect of this is that only petitions relating to the acquisition of special land may be considered by Parliament.

The noble Lord, Lord Faulkner, mentioned at Second Reading, and he has again highlighted, the whole issue of petitioners bringing evidence to bear about the benefits of proposed projects as a whole where an order is subject to SPP. In response to that, I can say that the provisions in Clause 23 keep existing procedures in place regarding the handling of petitions. It will continue to be for the Lord Chairman of Committees and the Chairman of Ways and Means to decide whether petitions can be certified as "proper to be received".

However, under Clause 23, the provisions in the 1945 Act in respect of petitions against an order must be read so that petitions against an order are construed as petitions against a special authorisation. Petitions can only therefore be certified as being proper to be received if they are petitions against the elements of an order authorising the compulsory acquisition of special land. In any particular case, it is the two chairmen's role to make a judgment as to whether a petition is proper to be received.

Although there has been detail, I have not gone into extended detail on the provisions in this clause. However, it does ensure that, where a provision makes clear that SPP is to be limited to the consideration of the compulsory acquisition of special land, that aim is achieved. Ensuring that such legislation operates as intended is crucial to getting in place the vital infrastructure that this country needs. I therefore hope, based on my reassurances and comments, that the noble Lord, Lord Faulkner, is willing to withdraw his amendment.

Lord Faulkner of Worcester (Labour)

My Lords, I can start with the easy bit, which is to thank the noble Lord, Lord Greaves, for his support. What the Minister has said is incredibly complicated. I will need to read it with great care and, I suspect, take advice from people who are much cleverer in this area than I am. I am grateful for the trouble that he has gone in explaining the Government's position and, indeed, the whole approach of the Government on the SPP in Clauses 22 and 23. I think that I am in a minority in your Lordships' House about the need to preserve the significant elements of the SPP operation. However, for the moment, I am happy to withdraw the amendment if the Committee agrees.

Amendment 77ZD withdrawn.

Amendments 77ZE and 77ZF not moved.

Amendment 77ZG

Moved by Baroness Hanham

77ZG: Clause 23, page 29, line 25, leave out from "(5)" to "after" in line 27 and insert ", so far as it applies to orders granting development consent, applies to any such order made"

Amendment 77ZG agreed.

Clause 23, as amended, agreed.

Amendment 77ZH

Moved by Lord Greaves

77ZH: After Clause 23, insert the following new Clause-

"Appropriation or disposal of open space land by local authorities

(1) The Local Government Act 1972 is amended as follows.

(2) For section 122(2)(b), substitute-

"(b) the council has complied with section 127A."

(3) In section 122(2A), for the words after "appropriating the land" substitute "the council has complied with section 127A".

(4) In section 123(2A), for the words after "disposing of the land" substitute "the council has complied with section 127A".

(5) In section 126(4)(b), for the words "appropriating the land" substitute "the council has complied with section 127A".

(6) In section 126(4A), for the words after "appropriating the land" substitute "the council has complied with section 127A".

(7) After section 127 insert-

"127A Conditions attaching to appropriation or disposal of certain lands

(1) When a local authority proposes to appropriate or dispose of land under this section-

(a) the authority shall give notice of its intention-

(i) by advertisement in two consecutive weeks in at least one newspaper circulating in the area in which the land is situated,

(ii) on the authority's website,

(iii) by notices in prominent positions on the land,

(iv) by serving a copy of the notice on every other local authority and planning authority whose area includes or is adjacent to that area, and

(v) by serving a copy of the notice on every voluntary body known to have a concern for the maintenance of the land or adjacent land for the benefit of the public, nature conservation or historic interest;

(b) the notice shall indicate the location and boundaries of the land and of any land to be given in exchange and where further information and plans may be inspected or copies obtained;

(c) subject to subsection (2), unless the land to be appropriated or disposed of does not exceed 250 square yards (209 square metres) land must be provided in exchange that is not less in area and is equally advantageous to the public, to be vested in the local authority subject to the like rights, trusts and incidents that attach to the land to be appropriated or disposed of;

(d) the notice shall provide for a period of not less than 28 days from the date of publication of its first advertisement and display during which objections or representations can be made to the authority; and

(e) if the authority decides to amend its proposal, this shall be subject to further notice in accordance with paragraphs (a) to (d).

(2) If the local authority considers that land in exchange for that to be appropriated or disposed of under this section is wholly or partly unnecessary, the notice must state this and give the reasons for the statement.

(3) If a proposal under this section remains subject to objection and is not withdrawn after the local authority has considered the representations received, it shall be referred to the Secretary of State for decision.""

Lord Greaves (Liberal Democrat)

My Lords, Amendment 77ZH introduces a new clause to provide a new procedure for the appropriation and disposal of open space land by local authorities. This does not apply to common land, for which there is already a different and better system.

The proposed new clause is a slightly modified version of the amendment I moved during the Committee stage of the Localism Bill on 28 June 2011. It amends the present Local Government Act 1972 procedure for the appropriation or disposal of non-common land open space, which dates from amendments made in 1980 to simplify the previous procedure. A local authority has merely to publish its intention in a local newspaper in two consecutive weeks and invite objections for its consideration. This can be done in private-for example, by a cabinet member who is under no obligation to give reasons for, or even publish, the decision. There is no right of appeal by the objectors. The land can then be used, sold or let for other uses free of all existing open space trusts and without regard to the fact that a park or recreation ground may have been gifted to or acquired cheaply-often, perhaps, with major contributions from public appeals-by the council's predecessor on trust for the perpetual enjoyment of the public.

The trust may have been imposed for a particular open space in a local Act of Parliament which authorised its acquisition, but most of these open spaces are now held under the general trust in Section 10 of the Open Spaces Act 1906. Others were acquired or appropriated under Acts which do not specify a trust. However, high judicial authority has decided that all are held on trust for the benefit of the public and are not simply council property easily available for any of its services or to sell off.

The leading judgment is known as the Brockwell Park case, which noble Lords will remember discussing during proceedings on the Localism Bill. The House of Lords decided Lambeth Overseers v London County Council in 1897. This was summarised by the Lord Chancellor, Lord Halsbury, as follows:

"One sentence was sufficient to dispose of the case-namely, that the public, for whom the County Council were merely custodians or trustees, were not rateable occupiers, and that there was no beneficial occupation of the property whatever".

In the fuller judgment, Lord Herschell drew a parallel with the then recent Court of Appeal decision in relation to Putney Bridge. In other words, what is applicable to a highway is equally applicable to a park. However, the procedure for extinguishing any type of highway, whether motorway or public footpath, is by no means simple.

In a further judgement, slightly more recently in October 2012, the Court of Appeal held in Barkas v North Yorkshire County Council that land laid out and maintained as a recreation ground under Housing Act powers was,

"appropriated for the purpose of public recreation",

and therefore local inhabitants indulge in lawful sports and pastimes by right and not as of right, as would be necessary to prove for the creation of a town or village green. This decision confirms that, if land acquired under other Acts for regeneration or major development is allocated for recreational purposes, it becomes equated with land acquired specifically for those purposes.

The present wording in the Local Government Act positively encourages breaking a trust imposed by the Open Spaces Act, never mind one implied by other Acts. If the land had been owned privately subject to a similar trust, it would be deemed to be held for charitable purposes and its use could not be so easily changed. It is surely wrong for a public authority to be encouraged in this manner, often in contradiction to its own planning policies. The proposed new clause is intended to rectify the situation.

During the Committee stage of the Localism Bill, my noble friend Lady Hanham was rather anxious about the provision for land in exchange. However, this was a standard requirement before the Local Government Act was amended in 1980 and remains where Section 19 of the Acquisition of Land Act 1981 applies. This is when compulsory purchase powers are used and in certain other cases such as for the appropriation of commons under the Town and Country Planning Act 1990. It is an important disincentive to choosing open space as a cheap and easy solution for obtaining other development requirements. Where major regeneration is proposed, it is accepted that compulsory powers should be used to obtain the full site required. This may include new or enlarged open space under the CPO.

This is a complicated matter. I am grateful to the Open Spaces Society for its assistance in proposing this amendment and I look forward to the Minister's reply. I beg to move.

Lord Ahmad of Wimbledon (Conservative)

My Lords, I thank my noble friend Lord Greaves for explaining his proposed new clause. He is of course greatly concerned with the protection of open spaces such as commons and what are known as "fuel and field garden allotments". I am sure that that sentiment resonates with many in the Committee. My noble friend also explained that when a local authority, including a parish or town council, wishes to appropriate this type of land for another purpose or to dispose of it, notification procedures should be beefed up and exchange land should be provided. His main point is that the present arrangements are inadequate and that more protection is required to prevent open space and other similar land from being lost to development.

The system that my noble friend seeks to amend concerns two types of land and two types of transaction. The types of land are commons, including town and village greens, and open space. The transactions are appropriation and disposal. The Committee will not be surprised to hear that the legislation that governs all of this is not confined to the Local Government Act 1972, which this amendment seeks to change. Significant elements are contained within the Town and Country Planning Act 1990. For commons, I think that my noble friend already has most of what he wants. Appropriation of common land larger than 250 square yards requires an order to be made by the local authority and then confirmed by the Secretary of State. Exchange land must also be provided, on pain of special parliamentary procedure-which we have just debated extensively-in the same way as for compulsory purchase orders.

In many cases, disposals also need the consent of the Secretary of State. For open space, the publicity and related arrangements for the consideration of objections are the same for both appropriation and disposal. If local authorities fail to consider objections properly, they run the risk that their decision will be challenged in the courts. Although protection for open space may appear lacking in legislation, this is not the whole story. Open space has had strong protection in the National Planning Policy Framework. Paragraph 74 states that existing open space should not be built on unless an assessment has been made to show that the land is clearly surplus and, moreover, that the loss should be replaced by the equivalent or better provision. It is therefore the Government's view that the protection of open spaces should be through the planning system and not front-loaded on to the procedures for appropriating or disposing of land. I hope that my noble friend will be minded to withdraw his amendment.

Lord Greaves (Liberal Democrat)

My Lords, I might be persuaded to withdraw my amendment when I have said one or two more things. One difficulty we are having in this Committee is that the Government are trying to deal with issues such as open spaces just through the planning system when in practice, as the Minister said, there are different laws that relate to open space, commons and so on. This is precisely the problem that we had when we talked about the registration of town and village greens: trying to align two clearly separate systems. You cannot simply say that the planning system is the way to deal with this.

I am grateful to the Minister for reminding us that the National Planning Policy Framework strongly proposes that, wherever possible, open spaces should not be built on, but that is not the purpose of this amendment. It is about buying and selling open space, not about the planning regime that refers to it. However, I am grateful for what the Minister said. I will carefully look at his response and again take advice. For the moment, I beg leave to withdraw the amendment.

Amendment 77ZH withdrawn.

Clause 24 : Bringing business and commercial projects within Planning Act 2008 regime

Amendment 77ZJ

Moved by Lord Adonis

77ZJ: Clause 24, page 29, line 32, after "may" insert ", subject to regulations excluding sites of special environmental or historic importance,"

Lord Adonis (Labour)

My Lords, I will speak to the six amendments in this group standing in my name. The question before us is what projects should be considered nationally significant and therefore subject to the Planning Act 2008, as amended in this Bill, and therefore subject to a national rather than a local planning consent regime. The 2008 Act permits this change to projects of national significance in respect of infrastructure. Clause 24 extends this to business and commercial schemes.

The thrust of my amendments is that Parliament should not give the Secretary of State such wide-ranging powers without defining their extent carefully in the Bill. In the Bill, discretion as to what constitutes national significance is left almost entirely to the Secretary of State. The only substantial limitation is that regulations may not encompass projects that include residential dwellings. My amendments are all probing and I look forward to the Minister's response to the substantial points underlying each.

Amendment 77ZJ would exclude from the new arrangements sites of special environmental or historic importance. Amendment 77AB would exclude developments that involve surface mineral extraction or quarrying. Such applications arouse especially strong local feeling, and to circumvent local planning entirely for such schemes is bound to give rise to acute concern. Amendments 77AA, 77AC and 77BA would remove the Secretary of State's discretion to define what is meant by business or commercial and to permit the bypassing of a local authority, because Amendment 77ZA and other amendments in my name specify the definition in the Bill.

Amendment 77ZA seeks to define business and commercial projects of national significance, rather than leaving it entirely to the discretion of the Secretary of State. Under my amendments, these projects could be subject to the national process only if they are in specific areas-largely those set out in annexe A of the Government's consultation on what should constitute nationally significant infrastructure projects in the business and commercial sphere.

That leads me to the Government's consultation on those projects. The Government will no doubt respond to my amendment by saying that they have consulted both on categories of development and on thresholds within those categories in terms of the number of square metres that might apply in determining whether a commercial or business development application is of national significance. Last week, the Government published their analysis of the responses. However, they have not yet said how they intend to proceed. A key issue for us in this debate is to know what the Government's response will be to the consultation that they carried out on types of development and thresholds. I will welcome the Minister's response to the question of what the Government intend to do in respect of the types of development and thresholds set out in annexe A of the consultation. If the Minister is not able to give me a response now, I would be very grateful if he would write to noble Lords before Report. I beg to move.

Lord Berkeley (Labour)

My Lords, I will speak to Amendment 78 in this group, which is in my name and that of the noble Lord, Lord Jenkin of Roding. It is yet another attempt to change the definition of what type of project could be included in the extent of the Planning Act. It relates to commercial and business developments that require consent under the national significant infrastructure regime.

The issue that I would like to raise is that of mixed-use schemes that have some housing or retail element. They should be able to take advantage of the regime for nationally significant infrastructure projects. Any retail element is excluded from the proposed list of development types set out in annexe A of the recent CLG consultation on extending the Planning Act regime. I imagine that this could always be reversed if the Government were minded to do so, but the Bill prevents any housing element being included in regulations.

I believe there is a large number of potentially significant business and commercial developments that will have some retail and certainly some housing element in them, even if it is only a caretaker. In theory, if there is just one property in a development, it cannot qualify for going down the nationally significant route. It is important for such developments to be able to include some housing element and to go for the nationally significant approach. An awful lot of time and cost could be saved if this were possible. The original prohibition of housing was well intentioned, and clearly big housing projects are not what the nationally significant definition is for, but it is a problem because if there were just one or two houses in a big development, it would be excluded.

That is what this probing amendment seeks to achieve. I hope that the Minister is willing to look at this again. Perhaps we can discuss whether there is some better wording that could be applied on Report.

Baroness Hanham (Conservative)

My Lords, this group of amendments seeks to set out in the Bill the types of development and development sites which can and cannot be considered nationally significant under Clause 24. A number of specific amendments have been moved, and I will attempt to address the issues in each.

As noble Lords are aware, the purpose of Clause 24 is to extend the existing powers within the Planning Act to direct sub-threshold forms of energy, waste, transport, water and waste-water schemes into the Planning Act regime, to new forms of business and commercial development. Our intention is not to bring new development into the regime automatically but to provide an alternative planning route where proposed development is of national significance. We have recently consulted on the types of business and commercial developments, and we are now in the process of considering the responses to that consultation.

Amendments 77ZJ and 77AB would rule out proposed schemes using the regime if they were on sites of special environmental or historic importance or if they involved minerals extraction, or quarrying. These amendments would apply equally to the existing types of infrastructure, such as energy, transport and water, as well as to new forms of business and commercial schemes.

An example of the effect of Amendment 77ZJ is that a sub-threshold energy scheme of national significance that might otherwise be considered via the Planning Act route could not be the subject of a direction if part of the site had an environmental designation. We do not consider this to be a sensible approach. If a scheme is of national significance and is directed into the regime, the Secretary of State will have to consider all the issues that are important and relevant, including any impacts on the historic or natural environment, before reaching his decision. To exclude large tracts of land without consideration of the planning merits or otherwise of the proposed development could discourage developers bringing forward much needed infrastructure or economic developments.

I will explain our thinking on minerals a little bit more. As we recognised in the National Planning Policy Framework, minerals are essential to support sustainable economic growth and quality of life. Without minerals, our building industry would grind to a halt. It is essential that there is a sufficient supply of material to provide the infrastructure, buildings, energy and goods that the country needs. We therefore consider that some minerals schemes could be capable of being of national significance, but again we wish to consider the consultation responses before we reach final conclusions about the forms of development.

Amendments 78ZA, 77AA, 77AC and 77BA seek to place the types of commercial and business development in the Bill. I am pleased that the noble Lord, Lord Adonis, broadly agrees with the types of development on which the Government consulted recently in connection with the proposals to extend the infrastructure planning regime to business and commercial projects. Nevertheless, we consider that this amendment is premature. We believe that a broad range of types of development of national significance could benefit from using the infrastructure planning regime and that further public and parliamentary scrutiny on how this new power should be used is appropriate. That is why we are now considering the responses to this consultation and why the accompanying regulations will be subject to the affirmative procedure.

Amendment 78, in the names of the noble Lord, Lord Berkeley, and my noble friend Lord Jenkin, also seeks to remove the exclusion in the Bill on dwellings from being prescribed in regulations. I listened carefully to the remarks made on this point by the noble Lord, Lord Berkeley. The Government have a clear position that planning for housing should remain a core responsibility of local councils. As the Government set out in the National Planning Policy Framework, local councils should be planning to deliver a wide choice of high-quality homes and wider opportunities for home ownership and creating sustainable, inclusive and mixed communities.

Many of the responses to the consultation exercise that we carried out recently supported the exclusion of housing from the infrastructure planning regime. Again, we are considering these responses, but we believe that housing should be and remain a core responsibility of local authorities.

Lord Jenkin of Roding (Conservative)

I did not intervene in the debate, because the noble Lord, Lord Berkeley, made the point. When will the Government publish the full response to the consultation? It has been represented to me that there were quite a lot of objections to the exclusion of housing. Of course one agrees that housing cannot be a main purpose of an application that goes directly to the Planning Inspectorate, but there are a lot of mixed developments now that usefully and importantly will include a housing aspect. It ought to be possible for an applicant to use the new procedure to have his application referred directly to the inspectorate.

Baroness Hanham (Conservative)

My Lords, I think that I made clear in my remarks that we are considering the results of the consultation that has just taken place. At present, the intention is to continue to have housing dealt with by local authorities. We are analysing the responses at the moment. While we already have a summary of the issues, we will publish a full response in due course. The summary of the issues may be helpful to us for the next stage.

I hope that noble Lords will agree the Government have set out a sensible approach that will enable new forms of nationally significant development to benefit from the Planning Act regime, that the noble Lord feels able to withdraw his amendment, and that other noble Lords do not press the amendments in their names, mainly probing as I understand them to be.

Lord Greaves (Liberal Democrat)

My Lords, I did not quite catch what the Minister said. Will a published summary of the issues encompass a summary of the Government's views and their response to the consultation, and did she say we would perhaps have that before Report? Some of us did not put down detailed amendments on Clause 24 because we were waiting for some clearer indication of exactly what it means in detail. If we do not get at least a summary or broad overview of the Government's views on this before Report, we might be tempted to take up more time on Report by putting new amendments down than the Minister would perhaps prefer.

The other questions I wanted to ask were about minerals. Will Clause 24 make a difference, for example, to the way in which planning permission or development consent is given for things such as quarries in national parks-the quarrying of limestone in the Peak District, for example-which are highly controversial and at the moment are done by the local planning authority, the national park? Are decisions like that going to be moved to the Secretary of State and the infrastructure planning regime?

The other question was specifically about the development of fracking for unconventional gas, which is going ahead slowly in Lancashire. Lots of different consents have to be obtained for that, notably from the Department of Energy and Climate Change, which takes place at a national level. However, the development that has taken place so far and the scale of it means that the planning permission, as I understand it, is the responsibility of the county council; in the case of the fracking that is taking place, or is about to resume, at the moment on an experimental basis in Lancashire, that will be Lancashire County Council.

It seems to me that with something like fracking, there are two crucial sets of decisions to be made. One is the question of whether the drilling, the fracking and the extraction of the gas should be allowed to take place. Then there are all the environmental issues related to that on the surface, such as the screening of developments and whether pipes from the different wellheads, which are quite close to each other, should be underground, overground or whatever, which is a matter of the local landscape and local planning. I would be quite appalled if the decisions over that kind of local planning were taken away from the local planning authority-in this case Lancashire County Council, as it is a minerals development-and put in the hands of a national authority, which I really do not think would have the local understanding or the ability to do the job properly. There are two separate issues there. Would it be possible for them to be separated, because they are dealing with quite different aspects, and for the decisions about whether the drilling and fracking goes ahead-and I should say that it seems to me that this is development which ought, at least on a pilot basis, to proceed as far as a viable commercial scheme-to be taken nationally through the infrastructure planning process but for the local details of the environmental protection and amelioration connected with it, and how that works on the surface, to be left with the local planning authority?

Baroness Hanham (Conservative)

My Lords, I thank noble Lords for those questions. The noble Lord, Lord Jenkin, asked about the summary of responses. We have that summary of responses, and I think it has already gone to the noble Lord, Lord Adonis; if not, it is on its way. We can make sure that Members of the Committee receive a copy and will put it in the Library, so that it will be available for consideration at the next stage.

We are thinking about the responses to the consultation and whether fracking should be included in the infrastructure planning regime or, as the noble Lord said, stay with the local planning authority. At the moment, a request will have to be made to the Secretary of State to use the major planning infrastructure regime, and the Secretary of State will be interested in it only if the whole proposal was going to raise issues of national rather than local significance. Fracking is a developing area and things may change but, as I understand it, that is the situation at the moment. I hope with those explanations that the noble Lord may be willing to withdraw his amendment and that noble Lords will not press the others when the time comes.

Lord Greaves (Liberal Democrat)

I will perhaps take up the question of fracking with the Minister outside the Chamber. However, the important thing before Report is not to get the summary of responses-although that would obviously be useful-but to get the Government's view of the responses and their view of the way forward.

Baroness Hanham (Conservative)

I understood that that was what the noble Lord, Lord Greaves, was getting at. I have committed to giving him the summary of the responses and have been told that the Government's response will come in due course. That does not sound to me as if it will come before Report, but if it does, I will let noble Lords know that it is coming.

Lord Adonis (Labour)

My Lords, the noble Lord, Lord Greaves, raises a point of some substance. I have read the summary of responses which the noble Baroness very kindly sent to me a short while ago. It is supremely uninformative. Question 3 asks:

"Do you agree with our assessment of the factors that the Secretary of State would need to take into account when considering whether a project is nationally significant?".

The summary of responses says:

"A number of respondents thought the assessment factors were broadly right whilst others commented that they were not detailed enough or were not supported at all".

I could go through them, but it is a profound exercise in waffle and does not really help us very much. To be fair to the Government, in annexe A of their consultation paper, they set out both specific types of development and very specific criteria in terms of the square metreage for the thresholds that would need to be met before these projects are deemed to be of national significance. That is crucial in informing our view as to whether we think this clause should proceed without requiring further limitation, although I think there is quite a strong preference for seeking to put provisions in the Bill. It would be extremely helpful if the noble Baroness were able, before Report, to indicate whether the Government stick by their proposals in annexe A or are minded to amend them in any form. If that does not come before Report, we will of course have no chance to assess the Government's intended course of action before this Bill becomes law.

Baroness Hanham (Conservative)

My instinct would say that if it is there, then the Government are going to introduce it and are probably not going to amend it. If there is any change to that, I will let the noble Lord and the Committee know.

Lord Adonis (Labour)

I beg leave to withdraw the amendment.

Amendment 77ZJ withdrawn.

Amendment 77ZK

Moved by Lord Adonis

77ZK: Clause 24, page 29, line 35, at end insert-

"( ) The Secretary of State must publish his reasons for giving a direction under this section."

Lord Adonis (Labour)

My Lords, the amendment standing in my name in this group is very simple. It would require the Secretary of State to publish the reason that a planning decision is to be made centrally, including why the application is regarded as nationally significant. This is a simple case of transparency and accountability. If the Secretary of State is to be granted the wide powers contained in this Bill, it is only right that their use should be open to scrutiny case by case. If the local authority is to have its planning role set aside, it seems only fair to tell it why. Just as planning inspectors have to give reasons for their decisions, it seems entirely consistent and transparent that the Secretary of State should have to give reasons for deeming a development proposal to be of national significance. I beg to move.

Baroness Young of Old Scone (Non-affiliated)

My Lords, I rise to speak to Amendments 77A, 77B and 78A, and to the question of whether Clause 24 should stand part of the Bill, which are down in the Marshalled List in my name and that of the noble Lord, Lord Greaves. I am afraid mine will not be quite as swift and simple as the amendment in the name of the noble Lord, Lord Adonis, because I want to give a pretty full exposition of why Clause 24 should be deleted, or at least amended in a way that would remove the extension of the major infrastructure regime to business and commercial projects.

I am afraid that my subtext will be the same as for previous amendments I have put forward: this is another unnecessary clause in an unnecessary Bill. We still lack evidence of substantial numbers of large-scale projects being delayed under the current system. Using DCLG's own statistics, local authorities are already determining and approving 87% of relevant, large-scale, major applications that might fall within the categories of Clause 24 within one year, which is the same period as the fast-track timetable that DCLG heralded when the Bill was published. Once again, we urge the Minister to present to the House the evidence for substantial delays or other reasons that would justify Clause 24.

The Minister Nick Boles, when briefing Peers, very kindly indicated that there would be only 10 to 20 applications to the Secretary of State each year under Clause 24. Therefore, one could take the view that it is hardly worth legislating for, especially as this is a centralising proposal that flies in the face of the Government's commitment to localism. The Secretary of State has call-in powers if necessary. Indeed, if local authorities struggle with some of these larger-scale proposals, the Planning Advisory Service is available to support them. What additional benefits does the Minister believe are provided by the provisions in the clause beyond those already available?

Clause 24 is all the more unsatisfactory because of the point already raised by the noble Lords, Lord Adnois and Lord Greaves, about the consultation on how business and commercial developments will be defined in terms of type and scale. It has only just been completed. I, too, have read the summary of responses and, as the noble Lord, Lord Adonis, said, it was not hugely illuminating. Indeed, all the types of development that the consultation proposed would have major local impacts and need to be dealt with by local government. I add my voice to those who already urge the Minister that we see not only the summary of responses, but the Government's reply and their intentions in terms of the clause, before Report. I ask the Minister to commit to producing the Government response before Report-otherwise we are being asked to buy a pig in a poke.

Of particular concern is that the proposals under Clause 24 also include the extractive industries: deep-mined coal, large onshore gas, oil and other mining and quarrying above certain thresholds. They would be brought within the major infrastructure planning system without robust guarantees that the considerable environmental impacts of these developments can be addressed through the planning system. They are usually dealt with through specific local, national park or county-level policies and procedures governing mineral planning issues. It is also unsatisfactory to propose that deep-mined coal be included in the proposed fast-track process because this seems at odds with the presumption against new coal that is included in the National Planning Policy Framework. It does not say much for commitment to addressing climate change if we regard these types of energy generation as sufficiently important to bypass the normal planning system.

One could say that there might be safeguards for decisions made under the national infrastructure procedure. National policy statements are the main basis on which nationally significant infrastructure projects on energy, transport, water or waste are decided. These have major advantages in that they are scrutinised by Parliament before being agreed. However, we do not yet know as a result of the consultation process whether Ministers will change their minds about formulating national policy statements for business or commercial schemes. The consultation was on the basis that there would be no national policy statements for these schemes, but I see from the consultation response summary that there has been some pressure to develop further national policy statements in these areas. Can the Minister give the House some clarification on the Government's position on national policy statements for business and commercial schemes, and could we have that clarification before Report?

There is a fundamental problem with the clause because it tries to imply that there is national significance for business and commercial schemes that are intrinsically local. Concocting national policy statements for these areas of business and commerce will be pretty difficult because they are not really national in their significance. It seems that they are being artificially designated simply to enable developers to chance their luck with the Secretary of State rather than the local planning authority. Of course, the Minister will say in response that there are other safeguards surrounding the impacts of business and commercial projects decided under the major infrastructure proposals. These include local plans and the National Planning Policy Framework.

However, a letter that the Minister sent, clarifying the Government's position on the local plan, still made it pretty clear that there is no legal requirement for the Secretary of State to give weight to the local plan. Therefore, in the absence of a national policy statement, the Secretary of State can legally give weight to almost anything. Even where there is a local plan, the Secretary of State's consideration will take account of a whole range of factors, only one of which will be the local plan. That is a considerable departure from the principle of the planning system, which is of a plan-led approach. At the very minimum, will the Minister undertake to look at amending the clause to ensure that the local plan is afforded pre-eminence in the absence of a national policy statement?

The other safeguard that the Minister will no doubt want to put forward is the role of the NPPF. The Government made it clear in the consultation document that, in the absence of a national policy statement, the NPPF and other local policy and material consideration could form the policy framework for decision-making on these schemes. However, in practical terms, the NPPF does not lend itself to the national infrastructure planning process. It was written to inform the decisions of local planning authorities in their plan-making and development management functions under the Town and Country Planning Acts. Throughout the NPPF, the references to the planning system and planning law are really references to the Town and Country Planning Acts, not to the 2008 national infrastructure regime. The very wording of the NPPF says that local authorities should do this and should do that, not that the Secretary of State should do this and should do that. This makes the NPPF difficult to apply outside the specific context of local planning. To give one example, the presumption in favour of sustainable development could not be applied to the Secretary of State's decisions under the national infrastructure procedure because the whole of this policy in the NPPF is set in the context of what local authorities will do in the local plan.

Therefore, the Secretary of State might not have a national policy statement to guide him, can choose to give as little or great weight to the local plan as he may, and the NPPF does not give him much help, if my analysis is correct. This does not exactly seem a policy and plan-led decision system, which gives certainty to developers, fairness to local interests and swiftness to decisions.

I could go on for hours about Clause 24-some might say I already have-but there are a few other things that I should like to put as weights in the scale. The process itself for national infrastructure planning is not particularly satisfactory in the absence of a national policy statement or a pre-eminent authoritative local plan for a number of reasons. Local authorities can be asked for a local impact statement but these are pretty expensive and complex, and there is no requirement on the local authority to produce one. Depending on the volume of these cases, we might well find that local authorities become less and less keen, as they are not the deciding authority, to produce these.

There is also a particular issue with developers making significant changes to their applications following the pre-application consultation. That is admirable in that developers are responding to local input, but the big problems with the national infrastructure procedural hearings are that they are very tightly timetabled and there are no formal rights to cross-examine developers. There are real questions about whether there is real community involvement when such changes are happening through the NSIP procedure. This is particularly so since the decisions will not be made by the democratically elected local planning authority.

I may be about to pre-empt something that the noble Lord, Lord Greaves, may say-I am sorry for putting words into his mouth if he does not intend to say this-but I must admit that when he capitulated on Clause 1 and said it would not affect very many councils so it was probably not worth arguing against, I had a bad night afterwards. Just because a clause will not affect many people, that does not make bad law good law, so I encourage him not to capitulate in future.

Let us also look at volume. The Minister has said that this provision is not likely to involve more than 10 to 20 cases per year. I, too, am concerned about volume for a number of reasons; for example, the shale gas fracking issue, where we know that potentially 800 well-heads are predicted in the north-west. These are well-heads of a limited duration; they move on fairly rapidly after a few years, so multiple applications are likely to come up in the future. In the light of predictions-for example, Friends of the Earth believes that there is a potential pool of projects of all sorts that could well come within the criteria, which are currently being consulted on and might total between 300 and 500 per year-it would be useful to know whether Ministers are still of the view that only 10 to 20 applications per year would come through under this process.

My concern is that one might live with a very small number of projects if one were the noble Lord, Lord Greaves, but one would not live with a very large number of projects if one believed that this clause was not a good clause. This would also raise the question, which I leave with the Minister, of whether sufficient resources and measures are being put in place to ensure that the Planning Inspectorate can cope.

I hope that noble Lords are totally convinced by my long exposition of why Clause 24 is pretty horrible and should be amended.

Lord Greaves (Liberal Democrat)

My Lords, I was going to congratulate the noble Baroness, Lady Young, on her brilliant speech that meant that I did not have to say anything at all, really-until she started challenging me, as her supporter on this amendment, in her last few remarks. I do not think I did capitulate on Clause 1; I think it was on Clause 5 that I came to the view that it was not going to make any difference to anybody in practice. I will review that, but I certainly still feel fairly resolute about Clause 1, which I think is fundamentally wrong in principle no matter how many councils it affects.

As far as shale gas is concerned, my view is there should be a limited-scale commercial pilot, which inevitably would be in the west Lancashire plain, before anything else happens. I think that will take quite a few years to get under way. I certainly would not be in favour of the large-scale development of shale gas in this country until that pilot had taken place and we could assess whether or not some of the worst fears are true. I suspect that some of the worst fears are not true but equally, we must assess the environmental and landscape implications, which are perhaps not quite as important as the more fundamental questions about the effects of the drilling, but are nevertheless very important. That is my view on shale gas. As I said in the previous group, I am in favour of as much of that decision-making as possible remaining at a local, Lancashire level, even though the basic consents for the actual operation would be taken at national level by the Department of Energy and Climate Change, and perhaps others.

I have one or two points to add to what the noble Baroness said. First, if there are 20 or 25 a year, the Government ought to come clean and tell us which commercial and business developments they believe have been stopped or significantly delayed in the past year or two years-or whatever period they choose-thus making this proposal necessary. Again, this would provide us with some hard evidence on the ground of ways in which the present system is preventing commercial and business developments taking place.

Of course, the Government would have to say which of those developments that have been delayed or, particularly, stopped they think ought to go ahead, and then people can judge this by outcomes. We can talk about processes until we are blue in the face but what most people are interested in are the actual outcomes of the planning process. Therefore, my question for the Government is: if this proposed new system had been in place for the past two years, what would have been different? If the answer is, "Not very much", we are wasting our time here talking about it, quite frankly.

To underline what the noble Baroness, Lady Young, said about the underlying planning policies that will guide the Secretary of State in his decisions, the whole infrastructure planning process, as set out in the 2008 Act, originally through the Infrastructure Planning Commission, was based on a series of national policy statements, which were government policy and were originally intended to guide the Infrastructure Planning Commission in its decisions. Just as local plans are there to guide local planning authorities in their decisions, the national policy statements were there, in different policy areas, to guide the Infrastructure Planning Commission in its work.

Now that the infrastructure planning process is being undertaken by the Secretary of State, the system has a fundamental fault at the heart of it, and I am increasingly of the view that the Government have got themselves into a bit of a mess by giving the powers of the Infrastructure Planning Commission to the Secretary of State. It is the Secretary of State who will make the policies and then make the development control decisions-presumably on the basis of the policies he has determined. There is something fundamentally wrong with that system, not least in that a decision is produced and there is no appeal process other than judicial review.

If there are not to be any of these national policy statements in relation to commercial and business development, where is the underlying planning policy coming from? Is it made up on the hoof by the Secretary of State or does it genuinely come from local plans? If it genuinely comes from local plans, why do we need to nationalise the system? As the noble Baroness eloquently explained, it is clearly not in the National Planning Policy Framework. The framework is very clearly set out as planning guidance from the Secretary of State, as policy, to local planning authorities making the decisions. That is its legal basis. That is what it is, and it replaces what the Government will say was about three feet of planning policy guidance that came in the old PPSs and PPGs. That has all gone; we have now got the National Planning Policy Framework. It is not an adequate basis for making decisions on big, nationally significant projects, whether they are on infrastructure or whether they are these new business and commercial ones that have been made by the Secretary of State.

The Government are in a bit of a mess over this. It is not clear on what basis the Secretary of State is going to make his decisions, which again is an invitation to more judicial review of decisions that are made.

Lord Jenkin of Roding (Conservative)

I am tempted to follow the noble Lord, Lord Greaves, in his interesting excursion into these matters. The Government's decision-which has of course now been accepted by Parliament-is that the NSIPs should not go to an IPA which is then able to make the decisions itself, because the IPA is not accountable to anybody. To have the IPA-or, as it is now, the inspectorate-simply making recommendations and the Secretary of State then making the decisions seems to me constitutionally very much better. I am not going to take this further.

When we were talking earlier about national policy statements, I stressed to my noble friend Lord Ahmad that I think the Government will quite soon have to think of a national policy statement for shale oil-for unconventional oil-because questions are now being raised in the House. They are being raised widely in the relevant community outside.

I do not know quite which world the noble Lord, Lord Greaves, lives in. I have been the recipient of a number of complaints about the difficulty firms have in making developments which seem to me to be absolutely essential, and indeed are so under the national policy. There was an incident in which I sought help for an electricity substation, for which it was absolutely necessary to bring ashore the product-the electricity- from what was intended to be a large offshore wind farm. I am not sure whether even that has yet been granted. I was the recipient of at least two complaints about the provision of underground gas storage. Again, people have an absurd idea of what these things may be. Those are the kind of big decisions, big applications, which have been seriously held up. I think therefore that it is absolutely right for an applicant to say that the application should be heard under the NSIP procedure.

There is also the different problem raised by Amendment 78B. This has been put to me by the National Grid, which obviously has very considerable experience of dealing with applications which may arouse a good deal of opposition. The case is a very simple one; it is in fact seeking consistency. Under the new proposals for commercial development, only the applicant is entitled to ask the Secretary of State to make a referral to the inspectorate, whereas for all previous applications the application can be made by anyone, in addition, of course, to the promoter. One must ask whether it is right that, concerning the new category of business and commercial project, only the applicant is able to refer. Why does this not apply to all the other bodies? The argument for consistency seems really quite overwhelming.

My noble friend Lord Attlee will remember that I raised exactly the same point when we were discussing the Localism Bill 18 months ago. He stated that,

"it may be that third parties with expertise in particular areas, such as environmental requirements, possess information which they think may elevate a proposed development from one of sub-national significance to one of national significance. It would not be right to prevent such bodies drawing this information to the attention of the Secretary of State". - [Official Report, 17/10/11; col. 107.]

Well, that is an argument. However, he of course pointed out that that amendment would enable someone to draw key information to the Secretary of State's attention if it has not already come to light. The Secretary of State can then of course direct that the matter goes direct to the inspectorate under the NSIP procedure. On that occasion I was trying to break new ground, but that is not the case under this Bill. As I said a few moments ago, under this Bill only the promoter can take that step in relation to business and commercial projects, and I am puzzled as to why. My amendment therefore simply seeks to bring all the existing applications into line with the new one for business and commercial projects. I hope that my noble friend will view this as a pretty reasonable request.

Baroness Parminter (Liberal Democrat)

My Lords, I support my noble friend's contention that this clause do not stand part of the Bill. I will not repeat the questions raised by noble Lords, which I feel deserve an answer from my noble friend the Minister. I am sure that we will get answers, because she has shown herself throughout this process to be very open and willing to engage with us.

The one issue I would like to expand on a little further is that of fracking, and bringing that into the fast track process. The Minister rightly said that this is a developing area, and it is therefore important that this House has time to consider all the possible implications. Like the noble Lord, Lord Jenkin, and others, I think it is appropriate for the Government to introduce a national planning policy statement for this. As my noble friend Lord Greaves said, this is an important new area with major implications, particularly in the north-west. Given the scale of fracking and the Government's commitment to press ahead with it, it would seem illogical not to give the Planning Inspectorate further clarity as it takes this issue forward.

The Minister said that there will be between 10 and 20 cases a year, a point raised by the noble Baroness, Lady Young. She cited evidence given by Friends of the Earth; I choose instead to cite evidence given to the House of Lords inquiry into EU energy policy last month, when Professor Jonathan Stern of the Oxford Institute gave his assessment of the implications of fracking in the United Kingdom. In the committee's evidence session, Professor Stern stated:

"The US drills 45,000 wells every year of which 80% are fracked... people in Europe just do not understand the scale on which the drilling has taken place. In the future, it may be possible to reduce the scale of that drilling but I think what you can say is, if in any specific country you have drilled 100 wells, you may know something about the resource base. If you are going to produce shale gas on any scale, you probably need to be drilling somewhere between 300 and 500 wells a year, every year".

I quote those figures because I think it is beholden upon my noble friend to answer-and I am sure she will do her best to do so-why the Government seem to think there will only be 10 to 20 cases emerging through this fast-tracking process if fracking is brought forward. There is a disparity which needs urgent clarification. Yes, it is a developing area, but if the Government are going to proceed with fracking, and take it forward as part of the energy mix in the short to medium term, then not only is there a case for a national policy statement, but there needs to be far greater clarity about the implications-particularly the resource implications-that would accrue for the Planning Inspectorate.

Baroness Hanham (Conservative)

I thank those noble Lords who have taken part in this rather interesting and short debate. I will try to pick up some of the matters raised, either as we go through or subsequently. Perhaps it would be helpful if I explain the Government's rationale for Clause 24 and the reforms within it. As we have said on many occasions, one of the Government's top priorities is to get the economy growing by creating the right conditions for growth. This includes ensuring that the planning system is operating in the most efficient and effective way. Clause 24 will support this aim by allowing developers of nationally significant business and commercial development to request to use the streamlined planning regime set out in the Planning Act 2008.

The noble Baroness's Amendments 77A, 77B and 78A would remove the ability of the Secretary of State to issue a direction for prescribed forms of business and commercial development in response to a request from a developer. I have listened to views expressed that business and commercial planning applications should be determined by the local planning authority, and we have no difficulty with that. The Government agree that that is the right approach in the vast majority of cases. However, there will also be a small number of projects that will be of national economic importance and, in certain circumstances, it will be right that a decision on such proposals is taken at the national level by democratically elected Ministers.

We are not proposing that that should be a mandatory route for developers; it is optional. Developers of major projects will choose to request to use the infrastructure planning regime only if it offers other benefits which the local authority cannot provide, such as statutory timetabling-the noble Baroness asked me what it would be-and the one-stop shop, which will be useful where multiple consents are required.

Any request made to use the infrastructure planning regime will also be subject to the agreement of the Secretary of State, who will have to be satisfied that the proposed project is of national significance. Under Section 35(10) of the Planning Act, the Secretary of State is required to give reasons for his decision when making a direction, and that requirement is carried forward in new Section 35ZA(10) in Clause 24. That is why we cannot accept Amendment 77ZK, which is unnecessary.

My noble friend Lord Jenkin spoke to Amendment 78B, which would limit who can make a request that an application or proposed application for energy, transport, waste, water or waste water projects below the Planning Act thresholds should be directed into the nationally significant infrastructure planning regime. I understand why the amendment has been tabled and am sympathetic to its aims, but perhaps I may explain why we have set out a different approach in the Bill for business and commercial schemes.

The Planning Act sets specific thresholds for energy, transport, water, waste and waste water projects. Any proposal for a development which meets those thresholds must seek planning consent through the nationally significant infrastructure planning regime. Section 35 of the Planning Act allows a request to be made to use the regime for projects which are below the thresholds. We have not sought to limit who can make a Section 35 request for infrastructure projects as we recognise that other parties may hold information which could indicate that the project was one of national significance and should be directed into the regime. However, for business and commercial schemes, the Government have been very clear that for developers of major schemes this is an optional route. Therefore, the limitation on who can make a request is not there. We believe that it should be for a developer or applicant to determine whether the advantages of using the infrastructure planning regime outweigh the usual route of making a planning application to the local planning authority. The Secretary of State will direct a project into the regime only if he considers that it is of national significance.

Concerns have been expressed that if we do not accept the amendment the Secretary of State will be inundated with requests from third parties, or that there will be delay to the application being submitted or to the local authority decision-making process. We think that this is unlikely. We are aware of only a very small number of such requests having been made to date. The impact assessment states that the figure is likely to be between 10 and 20 a year. We will have to see how that works out.

If an application or proposed application is directed into the nationally significant infrastructure regime, this does not mean that local opinions will be ignored. Developers will have to consult local communities, and local authorities will continue to play an important role. The consultation requirements of the Planning Act, as noble Lords will know, are rigorous. Local authorities will also be invited to prepare a local impact report. The Secretary of State must have regard to the report as well as to other matters that are both important and relevant in making his decision on the development consent order application. The local plan, for example, is likely to be both important and relevant, as indeed is the National Planning Policy Framework.

It is essential that sustainable development should go ahead with the minimum of delay. That is why we have brought forward this new power. We also think that it is appropriate to have further public and parliamentary scrutiny on how this new power should be used. That is why we have consulted recently on the types of development and why the regulations that follow and prescribe the types of development will be subject to the affirmative procedure.

Other matters were raised. The noble Baroness, Lady Young, who tabled some of the amendments in this group, has had a letter from my honourable friend Nick Boles which I think addresses most of the questions that she raised, but I understand why she would want those responses on the record.

Baroness Young of Old Scone (Non-affiliated)

All the points that I made earlier were taken in the Minister's letter. Having read it very carefully, I think that he confirmed that the local plan was just one weight in the scales and not pre-eminent and that the Secretary of State would take a whole range of other things that into account. That means that the local plan has been sidelined. I was therefore unconvinced.

Lord Greaves (Liberal Democrat)

If there are letters floating around which are being debated here, I wonder whether we might all have sight of them.

Baroness Hanham (Conservative)

My Lords, the letter in question was to the noble Baroness. If she is happy for it to be made available to the Committee, then, of course, I would be happy, too. I presume that my honourable friend at the other end was expecting at least most of it to be made public because it is a very public response to the questions asked. I do not think that there would be any disagreement with my saying that the local plan and the National Planning Policy Framework are both likely to be important and relevant in these matters. We have issued a consultation paper on extending the regime to business and commercial schemes, seeking views on whether one or more national policy statements should be prepared. These matters are relevant to today's debate and the answers are the Government's answers.

I do not think that moving business and commercial applications to the infrastructure regime will be a blow to local authorities. As I have said, we expect only a small number of applications to come forward and for most of them to be dealt with by local authorities.

I was also asked by the noble Baroness, Lady Young, and the noble Lord, Lord Greaves, whether we had any evidence that change is necessary. Over the past four financial years, the proportion of large-scale major applications for commercial and industrial projects taking more than 52 weeks to be decided by local authorities has increased from 8% to 13%, which is quite a significant rise.

We are not proposing to make mandatory this route for developers-it is optional-and there will be a timetabled approach. Developers will have to decide for themselves whether to use the infrastructure regime.

As we set out in our recent consultation document on the new business and commercial category of development, the Government do not consider the case to be strong for one or more national policy statements for this category of development. The consultation closed in January and we are considering the responses to that, including on whether national policy statements should be prepared. I think that we will discuss those later during our consideration of the Bill.

I was asked whether there will be sufficient resources. We are discussing the resource implications with the Planning Inspectorate at the moment.

We also had a question on fracking, which has come up quite a bit through the course of the Bill. It is clearly a developing situation. The information that the noble Baroness, Lady Parminter, gave us was interesting and begins to put a scale on what the ultimate development could be. At present, fracking applications will not be taken out of the hands of local authorities. Any developer will have to consult the local community and local people and the local authority will have the right of determination. A request would have to be made to the Secretary of State to use the infrastructure regime and he would agree to such a request only where the proposal raised issues of national significance. It may be that national significance and fracking will be one and the same but that gives an indication that at present we would expect this to be dealt with locally and local people would have a big say in what was to happen.

I think that covers the questions I was asked. The noble Baroness, Lady Parminter, also asked about fracking and, as I said, gave us very helpful figures from the report. I ask the noble Baroness, Lady Young, whether she would be happy for the letter from my honourable friend Nick Boles to be circulated. If so, I will make it available but if she does not wish that we will no doubt discuss the issues again at a later stage.

Baroness Young of Old Scone (Non-affiliated)

Can the Minister respond to an issue raised by a number of noble Lords on the question of when we might hear the Government's response to the consultation? It is very important for a variety of reasons that that happens before the Report stage. "In due course" does not seem a terribly firm timescale.

Baroness Hanham (Conservative)

We have a number of consultations coming through to fruition, so I am not able to stand here now and say that the Government's response will be available by Report. I hope that we will have an indication of what more we can discuss on this. If the response can be made available then I will certainly see that it is but I am not in a position to say that it will be. I note what the noble Baroness said.

Lord Jenkin of Roding (Conservative)

I listened with great care to what my noble friend said on the question of who can make an application to the Secretary of State for an NSIP treatment. I will read very carefully what she said but, having listened, I am still puzzled as to why there is a difference between the existing applications and the new ones for business and commercial. Perhaps I might leave that there. I will read very carefully what she said and decide how we should proceed after that.

Lord Adonis (Labour)

On the question of proposed types of development and thresholds, on which the noble Baroness, Lady Young, pressed the Minister, I took the Minister to have made a significant statement earlier when she said that if there was to be a notable departure from the proposals set out in annex A of the consultation document she thought it likely the Government would come forward and tell the House that before we passed this legislation into law. I am sure we will study carefully in Hansard tomorrow what the noble Baroness said but that was quite a significant statement. We look forward to the noble Baroness coming forward and telling noble Lords of the Government's intentions if they intend to depart from the proposed types of developments and thresholds set out in annex A.

Unless I missed it, I do not think that the noble Baroness replied to my amendment at all, which would require the Secretary of State to publish the reasons why a planning decision is to be decided centrally, including why the application is regarded as nationally significant. I thought that was a very reasonable and extremely constructive amendment and that she might even be able to accept it.

Lord Greaves (Liberal Democrat)

I would like to ask a question that the Minister might want to write to us about in some detail. She mentioned the figure of 13% of, I assume, major applications or perhaps some other kind of big applications that took more than 52 weeks. It would be a help to know whether they were major applications as defined at the moment. That is typical of the very general statistics that the Government give when we ask for evidence. How many of those applications would have gone to be decided at national level under the new system or how many would have been likely to go to that level? How many of the 87% of presumably major applications that were dealt with within 52 weeks would also have gone to national level? If we are expecting only an additional 20 or 25 in the commercial business categories, does that equate to 13% or what does it equate to? Some more detailed figures and statistics on these matters would be extremely helpful. I would also find it extremely helpful to have a list of just five or six applications dealt with in the past year which in future would come to national level, so that I can get my mind round what sort of developments they are and what sort of outcomes there might be.

Baroness Hanham (Conservative)

I hope I did not speed over the amendment or that the noble Lord, Lord Adonis, had not gone to sleep with excitement over it. I said that the Secretary of State is required to give reasons for his decision when making a direction. That requirement is carried forward in Clause 24. That is why I said I was not able to accept his amendment: it is not necessary.

Lord Greaves (Liberal Democrat)

Will my noble friend comment on my request for some more detailed statistical information on these matters?

Baroness Hanham (Conservative)

If I can get what my noble friend requires, I will make sure he and the Committee get that before Report.

Lord Adonis (Labour)

I beg leave to withdraw the amendment.

Amendment 77ZK withdrawn.

Amendment 77A to 77BA not moved.

Baroness Garden of Frognal (Liberal Democrat)

My Lords, just before I resume the House, I alert speakers in the debate that, as we now have a speaker in the gap, there are no spare minutes at all. Please would Back-Bench speakers ensure that they sit down as soon as the clock says "5", and preferably while it still shows "4", so that the Minister has his allocated time to respond?

House resumed. Committee to begin again not before 8.28 pm.

Lord Jenkin of Roding (Conservative)

My Lords, the amendment seeks to avoid a potential inconsistency in Greater London between the concept of what is of "strategic importance" for the purposes of the Mayor of London's powers to intervene in the local planning process, and what is of "national significance" for the purposes of the Planning Inspectorate's role under the new scheme. The potential inconsistency is set to arise in the City of London in particular because the Government's proposals in the Bill do not reflect the recognition given in the existing system to the special circumstances of the City.

Greater London provides a useful yardstick for the Government's proposals because regulations have already laid down in some detail what sort of development might, because of its implications for the regional economy, require a wider look than that taken by the local planning authority alone. It is in the interests of certainty and consistency that this careful demarcation is not undercut by the new proposals, which have a similar aim only with a national rather than a regional scope. Of course I am not suggesting that every development deemed to be of regional importance should be regarded as nationally significantly as well but the converse seems to me compelling. I struggle to see how a development could be said to be of national significance when it is not treated as regionally significant.

Let me make it clear at once that the Government's current proposals generally reflect this view. The consultation indicates a threshold of 40,000 square metres of floor space, above which a development might be considered nationally significant. Of course that comes from annexe A in the consultation document. This considerably exceeds the thresholds laid down for potential strategic importance in most of Greater London-namely 20,000 square metres in central London and 15,000 square metres in outer London. This was provided by the Town and Country Planning (Mayor of London) Order 2008, which was made under the powers introduced by the Greater London Authority Act 2007.

I suggest that this is the right way round. Powers to determine matters on a regional level should, if I can put it this way, kick in before powers to determine matters on a national level are involved. However, in the City of London-as opposed to Greater London as a whole-a higher threshold is provided for when a development might be regarded as of potential strategic importance within Greater London. The threshold in the City is 100,000 square metres of floor space. It may seem strange to some of your Lordships to single out a particular area in this way. It is, however, a recognition of the markedly different planning environment in the City from anywhere else in Greater London and, I might suggest, from anywhere else in the country.

The question of thresholds was discussed at some length in this House when the Bill for the Greater London Authority Act 2007 was considered in Parliament. It came to be accepted, I think on all sides of this House, that it was appropriate to recognise the special circumstances of the City in this way. I have reason to hope that the Minister may be receptive of this argument today. My noble friend Lady Hanham may well remember that she was on the Front Bench for the Opposition at the time of that Bill and she appeared to be very appreciative of the City's case. I have no doubt that my noble friend Lord Ahmad will be as well.

In terms of commercial development, what is significant in the City is not the same as what is significant elsewhere. The City is an area devoted to business in a manner unlike any other. Noble Lords who take an interest in these things will recall that it has fewer than 7,000 residents on the parliamentary roll, but more than 300,000 people work there. No global commercial centre can sustain itself without a substantial property stock capable of meeting the changing needs of international business. A principal objective of the planning system as it has been operated in the City is to ensure a plentiful supply of office buildings as one might say befits a world-leading business and financial district in the 21st century.

During the discussion about thresholds in 2007, I think that the House earlier recognised that applying the same thresholds to the City as elsewhere would capture a whole raft of projects which, while of potential strategic importance in other London boroughs, were unexceptional so far as the City was concerned. This would have defeated the purpose of the new powers, which was to enable developments of special or unusual importance to receive the wider consideration that they merited, while leaving boroughs to perform tasks within their normal range of responsibility and expertise without undue disruption or uncertainty.

The application of this principle in the City led to the adaptation that I described. To apply the threshold of 40,000 square metres in the City would leave far more projects liable to be treated as nationally significant than would be treated as regionally significant for Greater London. This seems absurd. Of course the situation under this clause is not quite the same as that which exists with respect to the Mayor of London, because the exercise of the Planning Inspectorate's powers will be triggered only on the application of the developer. However, this point of difference does not justify what seems to be a substantially different approach in respect of the City to the notion of what is of strategic importance.

The Government have been clear that they regard the new process as something to be used as an exceptional course. In the other place on 4 December, my honourable friend Nick Boles described it as a backstop where there were genuine reasons to bypass the normal role of local planning authorities. In my view, this requires thresholds for national significance that recognise the distinct position of the City, in the way that it is currently recognised in determining potential strategic importance at regional level. In that way, we would avoid the topsy-turvy situation where the City was the only part of Greater London where a development could fall within the nationally significant regime without being treated as of potential strategic importance at regional level. As I said, that would be absurd.

It may be that this should be dealt with in regulations rather than in the Bill. However, I hope that my noble friend on the Front Bench will give me some reassurance that the Government will be mindful of the need for a consistent approach. I beg to move.

Lord Ahmad of Wimbledon (Conservative)

My Lords, as ever I am grateful to my noble friend for the thoughtful remarks he made about why London is a special case and why we should have a different planning approach. To put it simply, we agree. That is why we set out in Clause 24 that new Section 35(4) should require the Mayor of London's consent before business and commercial projects in Greater London can be directed into the nationally significant infrastructure planning regime. Therefore the amendment is not required.

I can reassure my noble friend on his final point about how best this can be taken forward. We will discuss with the mayor how the proposal will work in practice, to ensure that there is no conflict with the mayor's responsibilities for projects of strategic importance.

My noble friend asked a few questions about the mayor's role. I reiterate that we recognise that London has its own planning context, with the mayor taking responsibility for strategic planning across London. That is why we built into the legislation the requirement to obtain the mayor's consent to issue a direction for any business and commercial project in Greater London that wants to use the nationally significant infrastructure regime. We also agree that it is hard to envisage a type of nationally significant scheme that the mayor did not have the ability to consider as being of strategic importance.

My noble friend Lord Jenkin referred also to the City of London-a place I know well-and to how different it is from other parts of London. He said that the threshold should be much higher to bring powers into line with those available to the mayor.

My noble friend alluded to the consultation. We are still considering the responses that we have received on the proposed thresholds; the intention behind them was to provide a gateway and give a clear indication that only schemes of national significance would be directed into the regime. Not every application above the thresholds will be directed into the regime and I come back to the point that the mayor's consent will be central.

I will explain our position a little further. We do not think that the amendment will work from a technical standpoint, as the schedule to the Town and Country Planning (Mayor of London) Order 2008, which refers to projects of potential strategic importance, goes much wider than the Government have proposed in their consultation paper on extending the infrastructure planning regime and commercial projects. For example, the order includes retail as part of strategic development which may affect the mayor's strategic policy. The Government have already indicated in the consultation paper on extending the regime to business and commercial projects that they do not propose to include retail development as a prescribed project of potential national significance.

The 2008 order also includes types of transport infrastructure as development of potential strategic importance. Under the 2008 Planning Act certain forms of transport infrastructure that meet specific thresholds must be considered under the nationally significant infrastructure planning regime. Transport projects that fall beneath the thresholds have to make a request to use the regime should they wish to do so.

The amendment would add to the complexity of the legal picture, confronted with issues around London. I come back to the point that I made at the outset. We have built into Clause 24 a simple requirement to obtain the mayor's consent so that this complexity is not necessary. For its implementation we are working with the mayor's office and will continue to have discussions with him about how this can best be taken forward. With that explanation, I hope that my noble friend is minded to withdraw his amendment.

Lord Jenkin of Roding (Conservative)

My Lords, I will study my noble friend's response carefully. I hope that I had made it clear that I was not considering the powers of the Mayor of London in this amendment but simply the question of the thresholds within the City area. My point was that a threshold of 40,000 square metres would be absurd within the City and for other purposes the threshold has been put at 100,000 square metres. Before I withdraw the amendment, can my noble friend confirm that his response takes into account what is seen by the City as an extremely important issue?

Lord Ahmad of Wimbledon (Conservative)

Specifically on the issue of the threshold, different thresholds for projects of strategic importance apply to different parts of London. I can confirm that the threshold includes development that comprises or includes the erection of buildings in the City of London with a total floor space of more than 100,000 square metres.

Lord Jenkin of Roding (Conservative)

I am most grateful. I have no doubt that the discussions will continue. I was really more concerned about the Guildhall than City Hall. My noble friend, who said that he was familiar with the City, will understand that. With that assurance, I am happy to withdraw my amendment.

Amendment 77C withdrawn.

Amendments 78 to 78ZA not moved.

Amendment 78ZB

Moved by Lord Adonis

78ZB: Clause 24, page 30, line 24, at end insert-

"(6) The Secretary of State must prepare and lay before Parliament a proposal for a national policy statement, setting out national policy in relation to this section."

Lord Adonis (Labour)

My Lords, as I said at Second Reading we are far from convinced that this Bill will do much to promote growth, or boost investment in infrastructure. The obstacle to infrastructure investment is not, largely, planning. It is funding, lack of clarity about government policy in key areas and the state of the economy. The National Infrastructure Plan does not meet this point, because it is simply a list of projects and not a blueprint for how they are to be funded, promoted and delivered.

My amendment in this group is simple. It attempts to provide greater policy certainty and impetus to taking projects forward. The Secretary of State should lay before Parliament a national policy statement to provide a framework for infrastructure decision-making, including in areas not addressed by the existing national policy statements, which cover energy, ports and waste water. As has been repeatedly noted in our debates today, there are still no national policy statements for airports, road, rail, water supply or hazardous waste. There is a big gap to be filled here and this amendment seeks to do that. I beg to move.

Lord Greaves (Liberal Democrat)

My Lords, I have Amendment 79 in this group. I was going to say how much I support Amendment 79A, which is in the name of the noble Lord, Lord Adonis. I do not think he spoke to it but I am happy to support him on it.

My amendment is similar to one that I moved when we were talking about Clause 1. Schedule 1 to the Town and Country Planning Act 1990, among other things, provides that notification of planning applications is given to all town and parish councils within the area of the authority. This amendment would provide the same duty on the Secretary of State to notify town and parish councils when an application for development consent takes place within their area and when a significant amendment is made to it. It is as simple as that. I hope that the Government will be able to accept the amendment, which places in the Town and Country Planning Act the same duty as already applies to local authorities.

Lord Adonis (Labour)

The noble Lord, Lord Greaves, quite rightly points out that I did not speak to my second amendment, which I thought was in the next group. The amendment is designed to request that the local plan would have primacy in the event that the Government refuse to publish a national policy statement. Since it is the only plan which applies in that event, it seems to be perfectly reasonable that it should be the one that has primacy.

Baroness Young of Old Scone (Non-affiliated)

My Lords, I stand briefly to support Amendments 78ZB and 79A. I will not re-rehearse the arguments that I made when talking about the previous group of amendments but will simply say that in my experience developers crave certainty. It is not always possible to give certainty, but if a firmer framework is put around the planning process, that would provide more certainty for developers. That is something they would welcome, and both these amendments would enhance that.

Baroness Hanham (Conservative)

My Lords, I will speak to Amendments 78ZB and 79A first, before then speaking to Amendment 79. The Government cannot agree to Amendments 78ZB and 79A. The first of these amendments would require the Secretary of State to,

"prepare and lay before Parliament ... a national policy statement",

for any development which would be the subject of a direction under Section 35 of the Planning Act. Amendment 79A would then require the Secretary of State to make decisions on development consent orders for business and commercial developments, where there is no national policy statement in place, in accordance with the relevant local plan. I will set out my reasons for not being totally in favour of this.

As we set out in our recent consultation document on the new business and commercial category of development, the Government do not think the case for one or more national policy statements is strong for this category of development. The consultation closed in January and we are considering the responses that we have received, including on the subject of whether or not a national policy statement for business and commercial development should be prepared. I should stress that, unlike nationally significant forms of infrastructure, this clause does not provide for a mandatory planning route. Developers may, as we discussed on previous amendments, make a request to the Secretary of State to use the Planning Act regime or they may continue to submit their planning application to the local council. Although there is a worrying trend of large-scale major applications taking longer to determine, we recognise that many councils do determine important applications quickly and that the majority of business and commercial applications will probably remain with the local council for decision. We expect the numbers of business and commercial applications to be determined via this route to be very small.

Without a national policy statement, the Secretary of State will determine applications having regard to any local impact report, any prescribed matters and any other matters he considers both important and relevant. This could include the local plan and the National Planning Policy Framework, which of course itself places great importance on local plans. In those circumstances, Amendment 79A is clearly unnecessary. The effect of the amendment would be that the local plan potentially overrides other important considerations. For projects of national significance it is important that a wide range of matters are able to be given appropriate weight.

My right honourable friend the Secretary of State for Transport has, for example, issued decisions under the Planning Act regime without a national policy statement in place. In reaching his decision on the application for the north Doncaster rail chord, my right honourable friend agreed with the examining authority that the unitary development plan, the draft core strategy, key policies from the local plan, the National Planning Policy Framework and other policy documents were able to provide the necessary policy context.

Baroness Young of Old Scone (Non-affiliated)

What happens in rail transport is very different from what happens in a heterogeneous collection of commercial and business applications. The whole policy framework, if not explicit in terms of railway planning, has been established for many years and the plans and proposals for most of the railway authorities and operating companies are very visible and transparent. Using a railway example does not test out that issue.

Baroness Hanham (Conservative)

My Lords, I sometimes think it is not a good idea to give examples so I will move on. The reason that I have said the national planning statement is not being looked at with favour for building commercial is simply because the expectation is that it will be of very little use and that there are other documents and evidence that will be good enough to help in this matter.

We support the intention behind Amendment 79 as we also believe in the important role that parish councils can and do play in the planning system but we are not happy to accept it for the following reasons. First and foremost, the Planning Act 2008 already places a requirement on the applicant to inform local authorities, communities and other prescribed bodies, which include relevant parish councils, about the proposed application and to engage them in pre-application consultation. In addition, should an application then be accepted for examination by the Secretary of State, the applicant must inform those bodies that the application has been accepted so they have an opportunity to make representations and register as interested parties for the purpose of the examination. Therefore, we cannot accept the amendment simply because it is not necessary. Parish councils are already defined as a statutory party in the regulations that accompany the primary legislation. This means that parish councils must be consulted about proposed applications for a development consent order and if they wish to make representations, they are able to do so. With those explanations, I hope that the noble Lord will be able to withdraw the amendment.

Lord Greaves (Liberal Democrat)

My Lords, I am grateful for the Minister's comments on my amendment. I am not sure I grasped all the details of the answer but I will read it carefully and if I have any further questions, I will come back. One question I have now relates to the pre-application consultations under the 2008 Act. Does that mean that an application for development consent for business and commercial purposes under the new provisions would not be accepted until those pre-application consultations by the applicants have taken place locally? Will that be the case in future?

Baroness Hanham (Conservative)

My Lords, part of the whole system under the Localism Act in particular was that developers should carry out pre-application consultations on every application. The answer to the noble Lord's question is yes, we would expect that pre-application consultation to take place with everybody who might be affected by the application. That, of course, might include parish councils.

Lord Greaves (Liberal Democrat)

I am not sure that the Minister has actually answered my question. I accept what the Minister has said that it is requested-as it is for ordinary planning applications. But in an ordinary planning application, if the pre-application consultations have not taken place, that is not a reason for refusing to accept and register an application. If I am wrong, I would be delighted to hear from the Minister but I do not think I am wrong. But in the case of an application for development consent that is to be dealt with nationally, is it actually a requirement and would the application not be accepted without it?

Baroness Hanham (Conservative)

My Lords, the answer to the noble Lord's question is, on both counts, yes. It is part of the regime that there must be pre-application consultation, whether it is going to be done by the local authority or under the major infrastructure plans.

Lord Adonis (Labour)

I beg leave to withdraw the amendment.

Amendment 78ZB withdrawn.

Amendments 78A to 79A not moved.

Clause 24 agreed.

Amendment 80 not moved.

Amendment 81

Moved by Lord Tope

81: After Clause 24, insert the following new Clause-

"Community Infrastructure Levy: Greater London

After section 222 of the Planning Act 2008 (regulations and orders: general) insert-

"222A Greater London

CIL regulations may include provisions enabling the Mayor of London to ensure that charging authorities in Greater London have proper regard to the need to be consistent with the spatial development strategy prepared and published under Part VIII of the Greater London Authority Act 1999.""

Lord Tope (Liberal Democrat)

My Lords, Amendment 81 stands in my name. We now return to the Mayor of London, as distinct from the lord mayor, and to Greater London, as distinct from the City of London. This amendment would enable the Secretary of State to include a requirement in the regulations for the community infrastructure levy-henceforth to be referred to as CIL-that in setting their CIL rates London boroughs should have regard to the policies of the London Plan. This simple addition to the mayor's current powers to vet proposed CIL demands would give developers greater confidence in the CIL-setting process and that local and cross-London priorities are being effectively aligned. It would also ensure that the strategic priorities set out in the London Plan are the focus of localised spending for the good of the capital as a whole.

The mayor will continue to vet all local CIL charging schedules in London to ensure that they take the mayoral CIL rates into account. However, according to the mayor, many developers have expressed considerable concern about CIL, worried that substantial payments proposed by local planning authorities could make new and important developments unviable. According to the mayor, a handful of local CIL rates proposed by some London boroughs are now emerging that appear to be prohibitively high and could jeopardise London's key developments coming forward, despite passing the regulatory tests of viability.

Therefore, the mayor strongly believes that it is vital that the risks to the delivery of strategic development objectives in London are minimised. He wants to ensure that he has strategic oversight over CIL payments that are being demanded from developers by boroughs and has the power to require amendments if payments would make an important strategic development potentially economically unviable. I beg to move.

Lord Adonis (Labour)

Could the noble Lord give some examples of London boroughs with CIL rates he believes to be too high, given that he has used this as an argument for this amendment?

Lord Tope (Liberal Democrat)

No, my Lords, I cannot, which is why I quite deliberately said that the mayor believes this. Therefore if the mayor believes it, he must provide the evidence.

Lord Adonis (Labour)

My Lords, is the noble Lord not moving this amendment?

Lord Tope (Liberal Democrat)

That was a statement of fact.

Lord Jenkin of Roding (Conservative)

My Lords, mention of the community infrastructure levy in this amendment gives me an opportunity-of which I have given my noble friends on the Front Bench notice-to raise an issue that was discussed with my noble friend Lady Hanham when she met the representatives of a very interesting small company called Pocket Living Ltd. This company aims to provide housing that is within the reach of people who can currently only afford to rent, and yet are above the level to qualify for social housing. Pocket Living Ltd has recently published a very splendid brochure, Pocket: Powered by the Mayor of London. This concerns the mayor's housing covenant fund, but the company is very much a thriving one that fills a hugely important gap in housing provision, not just in London but potentially elsewhere as well.

The question is: what is the definition of affordable housing that would qualify for relief from a community infrastructure levy? When we debated Clause 6 we had a new definition of the affordable housing requirement, and I am told this is the first time that the words "affordable housing" have appeared in any statutory definition. The definition as it stands serves the limited purposes of that clause, but it adds to a plethora of overlapping definitions in this area that have grown up over the years for different purposes. Not only are these confusing, they can sometimes be downright contradictory. This is important because, as we have discussed, the need for genuinely affordable housing has never been greater.

I support the Bill's objective of ensuring that the new housing developments we need are not held back by unreasonable and unviable demands for affordable housing. However, we must do everything we can to ensure that those who want to deliver genuinely affordable housing-of which I gave a brief outline at the beginning of my speech-have every incentive to do so, and are not held back by the unforeseen consequences of statutory definitions that may have been fit for purpose at the time, but in retrospect turned out to be too restrictive. I am afraid this is what has happened in the case of the regulations implementing the CIL. The regulations quite rightly recognise that we should not increase the burden on those with low or modest incomes, who are already struggling to find a home they can afford, by adding what would be a sizeable additional tax. However, the definitions of relief are so tightly drawn that we now find they do not cover some of the new and inventive models of affordable housing that are emerging.

I have mentioned that I was recently approached by a young company that found a very clever way to build smart new flats in central parts of London that young singles and couples can buy outright, even if they are on a modest income. The company wanted to build a small block of flats in Wandsworth for sale at around £200,000 each. The council wanted them, the Mayor of London wanted them, and they had a waiting list of 13,000 would-be buyers who desperately wanted them. However, as noble Lords may know, Wandsworth was one of the first London boroughs to implement the new levy, and when these people did their sums, they worked out that this would add some £10,000 to the cost of each flat. For a young couple on perhaps £30,000 or £40,000 a year, who have already been saving for perhaps seven or eight years for a deposit and have to pay London rents, £10,000 is an awful lot of money. The company reluctantly had to conclude that the scheme was unviable, and the plans were dropped.

These were genuinely affordable homes. They were available only to people who could prove that their salary was below the mayor's limit for affordable housing. They were for sale at 20% below the open-market value, with a maximum price of £225,000. They could only ever be sold to other buyers who qualified for affordable homes. They would remain affordable homes, however many hands they went through. In fact, they satisfied every condition that my noble friend's department sets out in the National Planning Policy Framework to qualify for affordable housing. Council planners say that they are affordable houses. The company had built five blocks of them already before the CIL came into effect. The Mayor of London agrees that they are affordable houses. DCLG says that they qualify for the affordable housing enhancement for the new homes bonus-so one part of the department seems to recognise this while the other does not. However, when it comes to the community infrastructure levy, they are treated in exactly the same way as if they were homes for millionaires. That really cannot be right. The only reason for it is that, when the regulations were drawn up in 2008, that type of home did not exist, so it was not included within the narrow definition for affordable housing.

As I have said, I am extremely grateful to my noble friend and my honourable friend Nick Boles who met with me and the representatives of this company. They listened very sympathetically as we put the problem to them. The company came away from that meeting encouraged by Ministers' recognition of the problem. I know that Ministers have conceded that the CIL regulations are not perfect. One piece of sticking plaster was already applied just a couple of months ago, but I understand that a consultation paper will shortly be issued with some more proposals for change. Can my noble friend give the Committee some assurance that a priority will be to ensure that relief from CIL will be extended to cover all types of genuinely affordable housing, including the kind of housing scheme that was described to my noble friend and her honourable friend, and that the definition will be broad enough that we do not have to come back to it again within four or five years?

I was very struck by the story that this company told, and I think that Ministers were, too. I hope that we may get a sympathetic response to this plea.

Lord Ahmad of Wimbledon (Conservative)

My Lords, I thank noble Lords who have participated in this short debate. I thank also my noble friend Lord Tope for tabling the amendment. I understand his desire to support the mayor in his efforts to secure London's growth, but I remain to be convinced that the changes being proposed are necessary and I shall highlight why.

The mayor has sufficient powers under the existing legislation to achieve his objectives. He has powers to set a CIL charge in London. He introduced this charge in April 2012 to help fund Crossrail, an objective that the Government fully support.

The existing CIL regulations are clear that the London boroughs must take the mayoral CIL charge into account when setting their own CIL charges. They cannot set a CIL charge which, when combined with the mayoral charge, would make broad areas of development unviable.

We have recently reviewed the statutory guidance for CIL. It is now clearer about the relationship between the levy and the implementation of local plans. The mayor can use the statutory guidance to challenge councils if he feels that their rates could put implementation of the London Plan at risk. Perhaps I may dwell on this point a little further. The issues within the statutory guidance published in December 2012 make it clear that charging schedules should be consistent and support implementation of the London Plan. It is also clear that the ability to deliver viably the sites and scale of development identified in the local plan should not be threatened. I point the noble Lord specifically to paragraphs 32 and 33 of the guidance, which refer to charge-setting in London and confirm:

"The Government expects the Mayor and the Boroughs to work closely in setting and running the Community Infrastructure Levy in London, including through mutual co-operation and the sharing of relevant information".

We have also encouraged charging authorities to consult for at least six weeks on their draft charging schedule. This also provides an opportunity for the mayor to review and challenge proposed rates if necessary. As I have already said, the challenge can be made, and the correct place for the challenge is at the consultation and examining stages, when the mayor can make representations on all borough CIL charges. An independent public examination stage is also key to CIL. Any representations can be made to an independent examiner, who must determine whether the proposed CIL charge is appropriate. We therefore strongly believe that the impartial role of the examiner is essential, and the mayor's role should be to engage with the process rather than take on additional powers to direct. My noble friend talked specifically of several London boroughs that have raised concerns and the noble Lord, Lord Adonis, also spoke specifically of where those matters have been raised. I am certainly not aware of which London boroughs have raised those issues but if that information is shared I am sure that can be looked at.

To pick up on a couple of points made by my noble friend Lord Jenkin, he referred to Pocket, which met with my noble friend and my honourable friend Nick Boles. It raised the issue of CIL payments and discount market sale housing. That case is being looked at and the issues raised have struck a note with Ministers. My noble friend Lady Hanham mentioned to me that she was very impressed by the issues raised. On the definition of affordable housing for CIL, the CIL Regulations 2010 give such a definition, which was quite tightly drawn. That said, if there are continuing concerns about the operation of the levy, they will be listened to. I am sure that as the levy comes more into play and practice, both in the mayor's office and at a borough level, we will continue to look at how best it can be improved. However, turning back to the specific nature of the amendment, with the points I have made I hope that my noble friend Lord Tope will see fit to withdraw his amendment.

Lord Tope (Liberal Democrat)

I am very grateful to the Minister for that helpful reply. I do not know what was in the mind of the mayor when he said that. It would probably be very interesting to know what was in the mind of the mayor. I do not know which London boroughs he had in mind. If I had known, I think I still would not have said so because inevitably we would then be discussing the examples and their merits, rather than the principle here. As the Minister knows, this is the last of a number of amendments that I have spoken to in Committee to consider the whole position of London in the context of the Bill. We have had some helpful replies and some less helpful replies to earlier amendments. I am grateful to the Minister for the reply to this particular amendment, which I hope will give some reassurance and save at least some of the mayor's worries. I beg leave to withdraw it.

Amendment 81 withdrawn.

Amendment 81A

Moved by Baroness Young of Old Scone

81A: After Clause 24, insert the following new Clause-

"Requirement on Secretary of State to consider climate change when drawing up a national policy statement

(1) After section 5 of the Planning Act 2008 insert-

"5A Climate change

A statement may only be designated under section 5 if the Secretary of State is satisfied that (taken as a whole) the policy in the statement contributes to the mitigation of and adaptation to climate change."

(2) After section 13 of the 2008 Act insert-

"13A Cumulative effects

(1) The Secretary of State shall publish on 6 April each year a report setting out the cumulative effect of development consents granted under this Act on the mitigation of and adaptation to, climate change.

(2) A statement designated under section 5 must contain a statement to the effect that it is the Secretary of State's view that the requirement of subsection (1) is satisfied.""

Baroness Young of Old Scone (Non-affiliated)

I rise to move Amendment 81A and shall speak also to Amendments 81B and 81C, in my name and that of the noble Lord, Lord Greaves. I hope to grasp the opportunity that the Bill provides to align the local planning regime and the national infrastructure planning regime with the objectives of the Climate Change Act to make sure that planning legislation plays a full part in taking us towards the very specific UK target of an 80% cut in CO2 by 2050 and to foster a climate-change-resilient nation.

I believe that this amendment is not at odds with the title of the Bill, as UNEP has recently described the greening of economies as a "new engine of growth". This may well be one of the few proposals in the Growth and Infrastructure Bill that is about growth. Spatial planning can be a real contributor towards tackling climate change because it fosters development which reduces carbon emissions. It also can help to improve the resilience to impacts of climate change, such as floods or heat.

Amendment 81A concerns, "Requirement on Secretary of State to consider climate change where drawing up a national policy statement". The increased scope for the Secretary of State under the Planning Act 2008 in relation to nationally significant infrastructure projects means that there is an increased responsibility on the Secretary of State in decision-making on applications and in the preparation of national policy statements.

Proposed new Section 5A, under Amendment 81A, places an obligation on the Secretary of State to ensure that the national policy statements are prepared in line with the Climate Change Act 2008. The current obligations in the Planning Act are inadequate because they require the Secretary of State only to explain how the policy set out in the national policy statements takes into account climate change. It is retrospective rather than prospective. Proposed new Section 13A would ensure that information about the cumulative impacts of development consents on climate change are gathered and published. Often, the cumulative impact is the most important.

Amendment 81B, "Requirement of Secretary of State to consider climate change when making decisions", places an obligation on the Secretary of State to take into account cumulative impacts on climate change when he is granting development consent under the Act where a national policy statement does not apply. It goes hand in hand with proposed new Section 13A on the duty to publish a report on cumulative effects.

Amendment 81C brings together planning law and the Climate Change Act 2008 and gives the requirements laid on planning authorities some teeth. Section 182 of the Planning Act 2008 created a new duty on planning authorities to contribute to the mitigation and adaptation of climate change. This applied only to development plan preparation defined in Part 2 of the Act. There is no linkage with the Climate Change Act 2008, which does not apply directly in law to local authority planning functions. Joining the Planning Act to the provisions of the Climate Change Act in plan making gives some teeth to the local planning authority actions in this area.

I believe that this would be a move that the Committee on Climate Change would support. In its report last May, it highlighted:

"There is currently no requirement for local authorities to take action on climate change. This coupled with limited funding means there is a significant risk that local authorities will not develop and implement sufficiently ambitious low-carbon plans ... The Committee recommends that a statutory duty ... is needed to ensure local authorities have stronger incentives to act".

The last amendment, at least in the planning sphere for local authorities, would give that statutory duty. I beg to move.

Lord Greaves (Liberal Democrat)

My Lords, I have added my name to these amendments. I had prepared something to say but it would substantially duplicate what the noble Baroness, Lady Young of Old Scone, has said. Therefore, I will not say it, except to underline her amendments and what she has said. In the past few years, when we have been discussing planning matters, we have been around these arguments several times under both Governments. There has been continued resistance from government to put too much on the face of planning legislation about the need to tackle climate change. I have no doubt that we will get the same resistance today.

I shall ask the Minister some questions. First, do the Government still accept the requirements of the Climate Change Act 2008? Do they apply that to their decisions, not least within the planning sphere? Secondly, is climate change and the need to tackle climate change one of the factors-whether or not it is in planning legislation-that the Secretary of State takes into account and will take into account when making planning decisions, both in the sphere of planning guidance and in making decisions about such things as applications for development control? Thirdly, is climate change something which the Government expect local planning authorities to take account of when they are making their own plans and their decisions on planning applications?

Baroness Hanham (Conservative)

My Lords, I start with the three questions asked by the noble Lord, Lord Greaves. With regard to climate change, Section 10 of the Planning Act 2008 already requires the Secretary of State to,

"have regard to the desirability of ... mitigating, and adapting to, climate change",

when undertaking statutory functions in respect of national policy statements. I think and hope that that concludes that. Planning has an important role in tackling climate change and making the transition to a low-carbon economy. We want to ensure that new development is future-proofed against climate change as decisions are made. As far as I am aware, local authorities would have to take account of climate change where it is relevant under their planning guidance.

I am grateful to the noble Baroness for moving her amendment. As I hope I have indicated, the Government remain committed to tackling climate change. We recognise that it is one of the great challenges facing the nation and the planning system has an important role to play, both in mitigation and adaptation. The planning regime can co-ordinate and galvanise community action on renewable energy and help to deal with the growing risks of flooding from severe weather and sea level rise. Many nationally significant infrastructure projects consented to under the Planning Act 2008, such as those that produce renewable or low-carbon energy, are in themselves major contributors to reducing the impacts of climate change.

I will now respond to the noble Baroness on her amendments to the Planning Act 2008. I hope to demonstrate to her that these changes are not needed, given the requirements that are already in place under that Act to ensure that the mitigation of and adaptation to climate change are properly taken into account both for individual projects and in terms of their cumulative effects.

Amendment 81A would introduce a new clause which would allow designation of a national policy statement under the Planning Act 2008 if the Secretary of State were satisfied that the policy in the statement contributed to the mitigation of, and adaptation to, climate change. It is difficult to see how this adds anything to the existing Section 10 of the Planning Act. As I have already said in reply to the noble Lord, Lord Greaves, this already requires the Secretary of State to have regard to the desirability of mitigating, and adapting to, climate change when undertaking statutory functions.

The amendment then proposes that a report should be produced annually setting out the cumulative effects of development consents. The noble Baroness's Amendment 81B, would require the Secretary of State to have regard to the latest version of this report when taking decisions on nationally significant infrastructure projects where no relevant national policy statement had been designated. I suggest that such annual reports would add a new legislative requirement with no discernable benefits. It is important to remember that a key factor in taking decisions on nationally significant infrastructure projects is the framework set out in national policy statements. Where these statements are in place, the Secretary of State is generally required to make decisions on development consents in accordance with them. The statements include specific policies on the mitigation of, and adaptation to, climate change. National policy statements are also subject to a sustainability appraisal before they are designated, and this appraisal will include consideration of impacts and benefits in terms of climate change. The appraisal of sustainability is also accompanied by a monitoring strategy, which ensures that a strategic-level assessment of the effects of implementation of national policy statements is properly considered.

In addition, most nationally significant infrastructure projects must be subject to detailed environmental impact assessment, and cumulative impacts must be considered as part of those assessments. I know that a number of noble Lords have expressed concern about those situations where no national policy statement may be in place that relates to a development requiring consent under the Planning Act 2008. But, in such circumstances, the Secretary of State must take account of factors that are both important and relevant when reaching a decision on development consent for a project. Such factors are very likely to include planning policies as set out in the Government's National Planning Policy Framework. A core planning principle of the framework is for planning to support the transition to a low-carbon future in a changing climate. In short, I would argue that we already have structures in place that meet what the noble Baroness is seeking to achieve through Amendments 81A and 81B.

On Amendment 81C, the National Planning Policy Framework already expects local councils to adopt proactive strategies to mitigate and adapt to climate change, in line with the objectives and provisions of the Climate Change Act 2008. We have set out clear policies in the framework on how local authorities should support the move to a low-carbon future. They should do this by planning new development in locations and ways which reduce greenhouse gas emissions, by actively supporting energy efficiency improvements to existing buildings and by having a positive strategy to promote energy from renewable and low-carbon sources. We have also made it clear that local plans should take account of climate change over the longer term, including factors such as flood risk, coastal change, water supply, and changes to biodiversity and landscape. I am sure that all of this rings pretty hard with the noble Baroness, who has spent quite a lot of time on all these issues. I also recognise the work of the Planning and Climate Change Coalition in producing cross-sector guidance, which has already helped local authorities to deal with the detail of how to take action.

As local plans are already required by the framework to have climate change policies on mitigation and adaptation that are in line with the objectives and provisions of the Climate Change Act 2008, there is no need for this amendment. The framework achieves this in combination with the existing duty on local authorities: Section 19(1)(a) of the Planning and Compulsory Purchase Act 2004, and the requirement in Section 19(2)(a) to have regard in preparing their plan to national policies and advice contained in guidance issued by the Secretary of State.

Furthermore, the amendment raises the possibility of legal challenge if the local circumstances mean strict application of every provision of the Climate Change Act 2008 is not appropriate. Additionally, any future changes to legislation on climate change can be readily reflected in updates to national planning policy, whereas a requirement in primary legislation, linked directly to the Climate Change Act 2008, could not be updated quickly. If the Act of 2008 were to be updated, this could confuse and hinder the production of up-to-date local plans.

In conclusion, the Government remain committed to tackling climate change. Existing provisions in legislation and policy already achieve what the noble Baroness seeks to do through her amendments. Given these reassurances about how we believe that this is all being dealt with, I hope that the noble Baroness will withdraw her amendments.

Baroness Young of Old Scone (Non-affiliated)

My Lords, I thank the Minister for her extensive response, which I shall have to pore over before I come to any conclusion. I have two issues in the mean time. The requirement of the Secretary of State to have regard to a general set of provisions about climate change is not the same as linking that clearly with the Climate Change Act and the suite of targets that flow from that. Getting that kind of numerical precision of the targets into the Secretary of State's responsibilities is important. The Minister's point about the importance of the national policy statements for setting the framework for decisions means that Amendment 81A becomes even more important in terms of making sure that the Secretary of State does have this duty when he draws up national policy statements.

I shall read very carefully the points made about local planning authorities, because they were extensive and I shall need to think about them. However, I was rather taken aback at the idea that some of these amendments would give rise to legal challenge, because they are couched in such a general way that they are pretty inoffensive, and are certainly not so explicit that they ought not to be in the Bill. I therefore look forward to reading Hansardand I beg leave to withdraw the amendment.

Amendment 81A withdrawn.

Amendments 81B and 81C not moved.

Amendment 81CA

Moved by Lord Jenkin of Roding

81CA: After Clause 24, insert the following new Clause-

"Development control

In the Planning and Compulsory Purchase Act 2004, after section 54 insert-

"54A Power for local planning authorities to require payment of a fixed monetary penalty for late or non-response to statutory consultations

(1) A local planning authority is required by statute to consult the statutory consultee before deciding whether to grant planning permission and where it appears to the local planning authority that-

(a) the local planning authority has not received representations concerning the application from the consultee within the timeframe specified in the consultation; or

(b) the consultee fails to give notice within the timescale specified in the consultation that it does not intend to make representations.

(2) The local planning authority may charge a penalty fee if they consider it expedient to do so (within that timeframe).

(3) A local planning authority which proposes to charge a penalty fee must-

(a) issue a document (a "statutory consultee penalty fee schedule") setting the amount of the penalty charge payable, and other criteria, by reference to which the amount is chargeable in respect of planning applications.

(b) be mindful of relevant advice issued by Secretary of State.""

Lord Jenkin of Roding (Conservative)

My Lords, at this time of night I will try to deal with the amendment extremely briefly. As we discussed earlier, the problem with the planning system is that it involves more than one consent. In many planning applications there is an obligation to notify other statutory bodies of the application that has been made. One of the problems that has emerged from that is the time taken by those other bodies to respond. In the mean time, of course, until they have responded, the planning authority cannot get ahead, which is one of the reasons why planning decisions get delayed.

Amendment 81CA sets out a procedure by which in appropriate cases the local authority can charge the consultee for the delay. This, it is hoped, will never have to be used. Of course, if there is agreement with the authority that the consultee cannot reply within the 21 days or whatever is appropriate for that particular consultation, that is different. If they have agreed a different timetable, that is fine. However, in many cases they simply do not reply. A disincentive to delay of that sort, with the prospect of being fined, might in fact encourage the others.

One might ask the question, "Would it actually deliver?" The Killian Pretty review on planning applications, Planning applications: A faster and more responsive system, came to the conclusion that it has the potential considerably to reduce the delays due to consultation. It has been estimated that these delays cost the economy at least £35 million a year. This would therefore be a valuable extra piece of machinery that could encourage the acceleration of the decisions on planning applications.

We are also discussing Amendment 81CB. This is a rather more drastic amendment, which perhaps at this stage should be regarded as a probing amendment. Certain of the consultees, the statutory bodies, have the power to veto applications. Examples have been given-I will not quote them all-of where a highways authority has said, "You cannot possibly do that. We will veto it", and it does so under a power that has been given by the Secretary of State. This amendment is intended to remove that power of the Secretary of State. It is not right that a highways authority or whoever should have the right to veto an application just like that. I can understand that there may have been a reason for it, but it is one of the reasons why planning applications run into difficulties and why applications then have to be turned down.

These are two ways in which we could achieve the Government's objective of speeding up the planning system. I hope that my noble friends on the Front Bench may be able to give me an encouraging reply. I beg to move.

Lord Greaves (Liberal Democrat)

My Lords, I understand the reasons behind these amendments but I am a little concerned about them. As regards the second amendment, there are very good reasons why a highways authority should be able to say no to a development in some circumstances if it considers that it would be unsafe and that to allow it to go ahead might cost lives or cause people to be injured. There are very good reasons for that power.

Of course, you can speed up the whole planning process very easily by abolishing it and letting people do what they want. The reason why the planning process exists and there are lots of obstructions in it to people doing exactly what they want as quickly as they want is because it is in the interests of society in general that planning should take place and that development should be controlled and organised in a way which is best for society. Nevertheless, it is perfectly proper to argue generally where the balance lies as regards the making of plans and individual applications.

The Environment Agency does not have a power of veto in relation to drainage but a lot of planning authorities will think very carefully indeed before going against the advice of that agency on matters relating to drainage. They will spend a lot of time talking to it to try to find an acceptable way through-a compromise-in a particular case.

I think that a lot of unintended consequences could flow from the first amendment in this group and that it has to be thought about very carefully indeed.

Lord McKenzie of Luton (Labour)

My Lords, we await the Minister's response on these amendments. I am bound to say that I have some sympathy with the point made by the noble Lord, Lord Greaves, about the second of the amendments and the need to have specific powers in some circumstances: for example, in the case of a highway authority. Presumably, that authority cannot exercise those powers in an arbitrary way. I should have thought that it had to be subject to a test of reasonableness.

The only point I would make on Amendment 81CA is that it seems to be a clear recognition of the fact that delays on the part of a local planning authority are not always or only the fault just of the local planning authority; it relies on others to play their part. That is why we will come back to Clause 1, which we wish to delete from the Bill.

Baroness Hanham (Conservative)

My Lords, the proposed new clauses in Amendments 81CA and 81CB seek to improve the performance of statutory consultees in the planning system. I am very sympathetic to this objective but I am not sure that these proposed new clauses are the way to achieve it.

It is important to recognise that statutory consultees have an important role in the planning system. The key statutory agencies have valuable expertise on a range of specialist areas such as heritage, highways and nature conservation, and their input helps local authorities ensure that the impacts of new development are comprehensively understood in planning decisions.

Where statutory consultees are consulted on planning applications, they are required by law to reply to the local authority within 21 days. In doing so, they must provide a substantive response, enabling the local authority to proceed with the determination of the application in question. Any extension to the 21-day deadline would need to be agreed with the local authority. Therefore, boundaries are already in place.

Statutory consultees are required to report annually on their performance in meeting these targets. The five main statutory consultees achieve between 96% and 99%. Taking this into account, we do not think that a system of fines could significantly improve performance and would be difficult to devise. However, we are aware of the need to improve the way statutory consultees engage with both local authorities and developers to foster a more positive approach to facilitating development and delivering growth. I am bound to say that the reply within 21 days cannot be just a holding reply; it has to be a full response.

We have also taken action to ensure that statutory consultees are more accountable for the advice that they give and we have changed the award of costs circular so that if an inspector considers that a statutory consultee has acted unreasonably during the determination of a planning application the consultee can become liable for an award of costs. Although I support the intentions behind the amendment, I do not think it is necessary, considering the steps we are taking.

The second amendment would repeal the general power in primary legislation for the Secretary of State to give directions restricting the grant of planning permission by a local planning authority. The Planning Acts give the Secretary of State a wide range of default powers that can be used as a last resort in relation to both plan-making and decision-taking. The powers are there as a fall-back to protect the public interest. The powers set out in Section 74 of the Act are exercised through Article 25 of the Town and Country (Development Management Order) (England) 2010 and that provides that the Secretary of State may give directions restricting the grant of permission by a local authority either indefinitely or during such a period as may be specified.

Planning applications are called in only in exceptional circumstances and the ability to serve holding directions is essential to the smooth functioning of the call-in process. In the case of the power of direction exercised by the Highways Agency, this is exercised during the consultation period, where the agency considers that, were a local authority to approve a planning application, it could result in a dangerous increase in risk to users of motorways and strategic roads. I agree that the Highways Agency should be accountable for the way in which this power is used in order to ensure that it is used for the key purposes of facilitating growth, both in ensuring that proposed developments are not delayed without good reason and in ensuring that approved developments do not result in additional congestion on the strategic road network. If noble Lords agree, I will write with further details on the Department for Transport's policy on the use of these directions and on any future plans it might have to review them.

I should like to reassure my noble friend and other noble Lords that we are also concerned that any direction is used in as open and transparent a way as possible. The Highways Agency is very keen to work with applicants in developing their schemes and welcomes pre-application discussions. It knows that early engagement with developers is vital to ensure that applications can progress without delay. The agency says that it responds to consultations within the prescribed limit in 99.9% of cases. In 2011-12, 9.4% of responses made by the agency were a holding direction. As already mentioned, the agency has published an improvement plan with actions to improve its performance, especially in reducing the time taken.

I have abbreviated slightly what I wanted to say and I hope that, having done so, my noble friend will feel able to withdraw his amendment.

Lord Jenkin of Roding (Conservative)

I am grateful for the amount of trouble my noble friend has taken in responding to these two amendments. I recognise that the second one was pretty drastic and I described it as a probing amendment, but I am grateful for what she said about the need to improve the performance of the statutory consultees. With that, I am happy to withdraw the amendment.

Amendment 81CA withdrawn.

Amendment 81CB not moved.

Amendment 81CC

Moved by Lord Shipley

81CC: After Clause 24, insert the following new Clause-

"General duties with respect to water industry

(1) The Water Industry Act 1991 is amended as follows.

(2) In section 2A(1) (guidance on social and environmental matters) after the words "in the guidance" insert "and about how in exercising its powers and duties, the Authority shall take into account aggregate population and housing growth projections relevant to water undertakers and sewerage undertakers".

(3) After section 2A (general duties with respect to water industry) insert-

"2AA Duty on the Authority (Ofwat) to have regard to local population and housing growth projections in undertaking price reviews

In exercising and performing the powers and duties mentioned in subsection (1) above, the Authority (Ofwat) shall have regard to aggregate population and housing growth projections (which are agreed as part of an adopted local plan, relevant to the individual appointment area or areas of the water and sewerage undertaker).""

Lord Shipley (Liberal Democrat)

My Lords, I hope that Amendment 81CC will be seen by the Minister as a constructive one. It is supported by the Local Government Association, of which I am a vice-president but it is also supported by the water industry, specifically its trade body, Water UK. The purpose of the amendment is to place a requirement on Ofwat to have regard to future housing projections and demographic growth in adopted local plans. This would give greater certainty for water companies to invest in the essential infrastructure needed to support growth. The benefit for local communities would be more consistent planning such as investment in new reservoirs, more flexibility between water supply zones and upgrades to outdated existing infrastructure to cope with more extreme weather conditions and the increased incidence of drought and flooding.

It has become increasingly clear that accelerated development to support economic growth, which the Government are committed to delivering, will stretch the capacity of our infrastructure. We therefore need to mobilise large-scale, long-term investment in repair, replacement and renewal of critical infrastructure across the country to provide the supply that we need. Demand for water is rising, supplies are more problematic, and flooding is more prevalent-partly as a consequence of too many of our drainage systems being unable to cope with the volume of water. I think we would all agree that an improved water infrastructure is needed to deal with that increasingly volatile weather, with more reservoirs to fight drought and more efficient pipe repair and replacement to conserve supplies.

Significant parts of the UK's water infrastructure are becoming outdated. The average age of sewers in England and Wales is 63 years, 40% of London's water mains are more than 100 years old, and the latest available total leakage level for the water companies in England and Wales, which I take from the 2009-10 Ofwat Service and Delivery report, shows supply pipe leakage as being 787 megalitres per day, out of a total of 3,281 megalitres per day. That is a loss of 24%-enough to fill more than 300 Olympic-size swimming pools.

Another key issue is the five-yearly price reviews, which are unhelpful to water companies' ability to plan for the long term. In England and Wales, water companies determine their need for investment in infrastructure through their resource management plans, which take into account a wide range of supply-demand factors, including housing projections, to ensure security of supply in the future. The Water Services Regulation Authority, Ofwat, is the water industry's economic regulator for England and Wales. Currently, it reviews prices every five years and sets the prices that water companies can charge and the investments that they can make over the period. The next five-year period begins in 2015.

Economic regulation is recognised as an important enabler of infrastructure investment. However, given the greater investment in water infrastructure needed now, it is vital to consider whether the existing regime remains fit to respond to the future investment challenges. The Institution of Civil Engineers concluded in its 2010 State of the Nation report that water investments planned for 2010-15,

"don't adequately take into account future population growth",

because the current framework focuses on short-term costs in place of long-term sustainability. The report concluded that the price review framework,

"simply can't cope with issues that require investment beyond the five-year regulatory cycle".

Long-term investments require confidence over the life of the investment. The current system of price reviews does not give water companies sufficient certainty over charging, which they need in order to undertake longer-term investment schemes.

The amendment would therefore place a new duty on Ofwat to take explicit consideration of local housing and demographic change projections in its role as economic regulator, which would translate into more certainty for water companies to invest in essential infrastructure needed to support growth. I beg to move.

Baroness Hanham (Conservative)

My Lords, I thank the noble Lord for moving the amendment, which has crept into our Bill. While the aims behind the amendment are laudable and understandable, we consider that the proposed amendment to Ofwat's duties is probably unnecessary. It duplicates Ofwat's existing duties, which is not in keeping with the Government's principles for economic regulation. Ofwat already has statutory duties requiring it to protect the interests of existing and future customers. It is already required to ensure that water and sewerage companies are able to finance their functions, which include a statutory requirement to provide an adequate water and sewerage service to all premises.

The statutory water resource management planning process requires water companies to set up plans for managing the supply-demand balance over the next 25 years. This must be submitted to the Secretary of State at Defra and must take explicit account of projected population on housing growth. In making price determinations, Ofwat must take account of the published water resources management plans. Furthermore, Ofwat is already under a statutory duty to carry out its functions in a manner best calculated to contribute to the achievement of sustainable development.

The requirement to provide guidance on these matters also duplicates existing provisions. The Government have already published in draft their new statutory guidance to Ofwat-the strategic policy statement. This makes it clear that, in assessing the costs and benefits of supply-demand options, the focus should be on the best overall value in terms of long-term resilience rather than a least cost approach for the short term. This guidance also emphasises the central role of the water industry in enabling the development required to support economic growth and to meet the housing needs of the growing population.

All investment in water and sewerage services is ultimately paid for by the customer through their bills. Since privatisation in 1989, the stable regulatory framework for the water sector has enabled companies to attract more than £108 billion in low-cost investment. This investment is used to upgrade water and sewerage infrastructure, to improve customer service and to improve environmental standards. As the noble Lord has said, between 2010 and 2015, £22 billion will be invested, including ensuring that supplies are available for new and existing customers.

I hope that I have provided the reassurance that the noble Lord seeks in his amendment that there is proper investment and proper consideration of future housing growth, in particular, in the plans of Ofwat and the water bodies.

Lord Shipley (Liberal Democrat)

My Lords, I thank the Minister for her reply. I shall read what she says very carefully. I am not sure that I agree that the current system works as well as she indicates-we have ended up with an excess of water in some places and not enough in other places. In the end, we do not seem to be dealing with the leakages, the availability and the flooding that is currently prevalent. I will, however, consult further and think further about the need for an amendment on Report. For the moment, I beg leave to withdraw the amendment.

Amendment 81CC withdrawn.

Clause 25 : Postponement of compilation of English rating lists to 2017

Amendment 81CD

Moved by The Earl of Lytton

81CD: Clause 25, page 32, line 35, at end insert-

"(11) This section shall not come into force until the Secretary of State has-

(a) published detailed up to date comparative estimates of the total numbers of those ratepayers who would be liable to pay more or less as the case may be if this section were or alternatively were not brought into force, and

(b) consulted formally with those likely to be affected by the bringing into force of this section, after publishing the information required under paragraph (a)."

Earl of Lytton (Crossbench)

My Lords, this is clearly not the time to go into great detail on a rather technical matter so I will be as brief as I can. I put down this amendment because I was dissatisfied with the explanations given by the department and dismayed somewhat at the claims made by Ministers.

Now, the noble Lords will realise that this amendment follows one moved in another place by the Member for Greenwich and Woolwich, Mr Nick Raynsford. I should probably declare some particular interest here in the sense that I am professionally involved with matters of rating. Of course, in a private capacity, I am both a landlord of commercial premises where rates are paid and, indeed, a commercial ratepayer myself in another capacity. I want to pay special tribute to the work done in connection with this and the whole question of the deferral of the rating revaluation by rating surveyors Gerald Eve. They have certainly been enormously helpful to me.

The fundamental point here is that businesses need to feel that they are being treated fairly in all this. I have mentioned before that, in my opinion, the rating system badly needs some attention. It has great unfairnesses and anomalies. The treatment of exemptions and relief needs looking at. The mounting number of appeals shows that there is a problem. Along with planning and compulsory purchase, this is another administrative system covered by the Bill that is under critical stress.

Frequent revaluations have long been known as necessary. For more than 20 years, we have had five-yearly revaluations. The Lyons report made it clear that where there are major shifts in values, more frequent revaluations might be necessary. If ever there was a seismic shift in property values, the time between 2008-the antecedent year for the 2010 year-and now was surely it.

It is hard to identify the precise reason for the decision to defer the revaluation. There does not appear to have been any consultation or compelling independent assessment, certainly not one that stood the test of hard scrutiny from the likes of surveyors Gerald Eve when they presented their evidence to the Public Bill Committee in another place. There does not appear to be any particular fiscal advantage because revaluations are tax neutral; the basket of values goes up and the non-domestic multiplier goes down, and vice versa. There does not appear to be any particular financial benefit to deferral.

Where was the quoted advantage? It was in the claim that 800,000 businesses would be better off. This simply was not correct. Even on a reworking of the Valuation Office Agency's figures, one could not arrive at that figure; it just does not make sense. As I said, it was comprehensively demolished by the evidence submitted to the Public Bill Committee by Gerald Eve. The greater certainty claimed for the benefit of these businesses seemed to be the greater certainty of being saddled with, in many cases, an over-high base for the rating assessment.

Whatever the reasons, this has caused a considerable amount of dismay among many bodies associated with businesses, in particular the British Property Federation, the British Council of Shopping Centres and many others. Many of them have taken advice, and have in turn made representations, through rating surveyors. Today, two press releases were put out by a number of these bodies, many of them household names. They all know that the effect, based on the public statistics, will be that retailing in much of London and food superstores generally will gain by the process of deferral. However, almost everybody else will be a loser in all this. Of course, extending the revaluation from five years to seven, even on a one-off basis, will make the process of subsequent adjustment that much more difficult. It is in recognition of that that I tabled the amendment. One has to consider whether it is fair that this situation should be allowed to continue.

I noted in passing a comment that some of the Portas pilot towns in particular, about which we hear so much, are likely to suffer through this. The fact that they need the undivided attention of the likes of Mary Portas means that they have problems. Possibly there is something of a self-fulfilling prophecy here. However, one needs to recognise the message that is being sent to businesses. Perhaps because they do not have votes, they do not matter, and perhaps that is why the information fed back to me suggests that when the industry met Ministers and officials, the tone was entirely dismissive of the industry's views.

The facts cannot be denied. Accounts abound of commercial ratepayers that are paying more in rates than in rent. Small business rate relief apart-which, of course, is financed by other ratepayers-the incidence of inflexibly high levels of rates stands in interesting comparison to the maligned upward-only commercial rent review. It is one of those areas where one simply cannot make progress, and something must be done about it.

A message that the voice of business ratepayers is being listened to and is important has to go out. It is not good enough for these toxic effects on retailing and investment and ultimately land-use decisions to be based on trying to avoid elements of excessive tax. They need fair treatment as much as consistency.

My amendment would not reverse the matter altogether but it would require proper review of the data and an impact assessment. It would require consultation with businesses in exactly the same way as consultations already take place, such as the consultation on transitional arrangements before the 2010 revaluation. It is interesting that this amendment is grouped with the amendment tabled by the noble Lord, Lord Smith of Leigh. My amendment would not delete Clause 25, but I could be persuaded that wholesale removal is ultimately the only practical option. I beg to move.

Lord McKenzie of Luton (Labour)

My Lords, I added my name to this amendment, which, as the noble Earl, Lord Lytton, says, mirrors that moved by my honourable friend Nick Raynsford in another place. Like the noble Earl, I am grateful to those who have briefed us on this matter, particularly Gerald Eve, who has given us some compelling data.

As the noble Earl has explained, the amendment would prevent the postponement of the business rate revaluation scheduled for 2015 until the Government have produced detailed, up-to-date estimates of those likely to pay more and those likely to pay less, depending on whether the revaluation is deferred for two years and, crucially, until there has been a proper consultation with those likely to be affected. Requiring proper analysis and consultation is hardly revolutionary. It is the very least that should be expected if such a significant step as postponing a revaluation is to be taken.

This is a hotchpotch of a Bill, but Clause 25 sits particularly oddly with the rest of its provisions. The lack of prior consultation points to a last-minute decision that by all accounts does not generate unanimity within the ranks of the coalition Government. Our suspicions about this are reinforced by the fact that no mention was made of a possible postponement when we were discussing the Local Government Finance Bill just a few months ago. This is strange, given that we spent some time discussing the VOA and its role in the business rate retention scheme, prompted, as I recall, by the noble Earl, Lord Lytton. Concerns were expressed about its capacity to cope, especially with the backlog of appeals from two prior revaluations, although they were brushed aside by the Minister.

Notwithstanding that, the impact assessment now states that postponement will,

"allow the Valuation Office Agency to focus more resources upon continuing to improve the valuation process and supporting local authorities with the rates retention system".

In replying, perhaps the Minister will give us a clear update on the capacity of the VOA and the resources available to it, or we might be tempted to revert more directly to this matter when we reach Report.

We should be clear that the purpose of rating revaluations is to achieve fairness in the business rate system by ensuring that rateable values are based on up-to-date rental values. Given that aggregate business rates are kept whole in real terms, revaluation would redistribute resources to those areas and sectors that have fared relatively badly since the last revaluation from those that have fared relatively better. Clearly, the extent to which this fairness is maintained depends on how frequently rateable values are updated. Since 1990, this has been every five years, a period that is seen as the maximum interval between revaluations.

The noble Earl, Lord Lytton, referred to the Michael Lyons report, which suggested that more frequent revaluations are justified, particularly during the economic turbulence and downturn that we have experienced since 2008. If the Government are to change the frequency of revaluations, especially to lengthen it, there is surely an obligation on them to provide a robust rationale for the change from the practice that has been maintained since 1990 free of political interference. This, I suggest, has not been done.

The Government are overwhelmingly basing their case on the VOA estimates of winners and losers should the revaluation proceed-supposedly, 800,000 facing a real-terms tax increase and only some 300,000 facing a fall. However, as the VOA makes clear-and the noble Earl has touched on this point-these are "high level" estimates, not forecasts, they are based on limited rental data, and neither the rental data nor judgments have been subjected to moderation and validation. Moreover, even on the VOA data given, experts have questioned whether the data can be used to justify the figures used by the Government. This has been set out in the briefings we have received, which have specifically drawn attention to the 528,000 hereditaments classified as "other"-not retail, office or industrial-which have been assumed to be the subject of an increase in rates, where some would clearly fall into the category of those that will benefit from a reduction.

The Government's analysis is at best crude. It does not seek to address the likely level of increases and decreases, and their distribution; nor is there any consideration of what the likely position might be two years hence. The overwhelming suspicion is that this is a political decision taken to avoid a revaluation operating in 2015, at the time of the general election. It is accepted that revaluations bring a degree of turbulence, but transitional relief has hitherto dampened the effects. If the Government are to refute this challenge, they can do what this amendment asks-produce a proper analysis and then consult with those affected.

One clear consequence of postponement will be that those areas and sectors which have done comparatively poorly since 2008 will be denied for an extra two years the reduction in tax they might have expected. Those that have performed comparatively well will have a postponement of the increase in tax. Of course, a reduction in rental values and rateable values will not necessarily generate a reduction in business rates because the tax rate-the multiplier-will rise to keep the aggregate business rates steady. However, if rental values have fallen across England by 14%, those areas and sectors which have done worse than this are the likely losers from the postponement. The issue cannot be seen just in terms of regions or cities, but information provided by the Investment Property Databank highlights that, between March 2008 and September 2012, rentals have fallen in Leeds by 31%, Nottingham by 27%, Bristol by 25%, Sheffield by 21%, Liverpool by 21%, Manchester by 19% and Newcastle by 18%. In terms of the sectors, although retail has held up in some areas, the situation in many high streets is grim. As the noble Earl, Lord Lytton, said, five out of six of the Portas pilot areas have seen rental falls greater than 14%, and news of major retail closures are all too familiar.

For those who are struggling and who had an expectation of some moderation in their business rates, the decision to postpone will prolong the agony. While "no change" may be good news for some, the undermining of a system for political ends is not conducive to building business confidence. This amendment asks for a proper analysis so they can justify the decision they are seeking to impose.

Lord Smith of Leigh (Labour)

My Lords, I rise to speak to the question of whether the clause should stand part of the Bill and will try, at this time of night, to avoid repeating some of the comments made by the noble Earl, Lord Lytton, and my noble friend Lord McKenzie of Luton. The significance of this clause is that it breaks the consensual approach to business rating that has been in place since the Local Government Finance Act 1988. Here we are, on the eve of the revaluation which would have taken place later this year, being asked to delay it. The process of revaluation seems to have been clearly explained in The Council Tax and Non-Domestic Rating (Demand Notices) (England) (Amendment) Regulations, which the Government issued in 2012 and which say:

"All rateable values are reassessed every five years at a general revaluation. The current rating list is based on the 2010 revaluation. Five-yearly revaluations make sure each ratepayer pays their fair contribution and no more, by ensuring that the share of the national rates bill paid by any one ratepayer reflects changes over time in the value of their property relative to others".

That seems a very clear statement of intent. Now the Government are delaying that process so, despite what they said only earlier last year about a commitment to fair share, that commitment has, presumably, been broken.

Noble Lords mentioned the Government's case about volatility, but volatility has always occurred whenever we have had a rating revaluation and we can cope with that. The data we have from the Valuation Office Agency are pretty sketchy. I will not repeat the comment about the rather suspicious addition of the 500,000 others who make the balance of the case. Before that the balance was that there were more winners than losers. The various revaluations that we have seen-I got a briefing from Colliers International-show that in all parts of the country rateable values in the retail sector seem to have fallen by at least 19%. For the individual centres they looked at, well over 80% had shown considerable falls, with a third of them over 25%. By contrast, the West End had shown an increase of 26%. These figures come from what Colliers calls itsmid-summer review, which happened last year. If the Government go ahead with this delay, the retail sector might well refer to this as a midsummermurder.

Both the noble Earl and my noble friend mention the Lyons review, which is the most recent authoritative report on local government finance. To further my noble friend's point, I quote directly from Lyons about more frequent revaluation:

"This would make the tax more responsive to the actual state of the property market and could have economic advantages by reducing the burden of taxation on businesses in economic downturns".

Goodness me-we are in an economic downturn. Lyons has suggested what should happen, but the Government have taken the opposite conclusion to this evidence. We need to understand why this has happened.

Both noble Lords mentioned the Portas review so I will not go into that again. One briefing I read also said that a further unintended consequence of the review could be its impact on property prices over the next couple of years. In areas of decline, this will put further downward pressure on prices so that property values fall much further than they might have if the review had taken place. In areas where property prices have risen, the effect may be the opposite-property prices would rise to soak up the impact of the lack of change. By the time we get to the proposed revaluation two years hence, the amount of turbulence will be significantly higher than it would have been if we had gone ahead with it now. Therefore, it is going to take a Government some degree of courage in 2015 to go ahead with that review if we are going to implement it. As noble Lords have said, this is a really important step. The Government need to give us a lot more information, if they have it, about how they can justify doing this, or we will need to come back to this on Report.

Baroness Hanham (Conservative)

My Lords, I am rather surprised by the amendment and the tone with which it has been introduced by noble Lords. The reasons for introducing the postponements were quite clear; we are in the middle of one of the most difficult economic situations we have ever had and businesses are suffering from that as well. Therefore, what we can do to help is not to make major changes at this time. I remind noble Lords that the Michael Lyons review was carried out under the previous Government, who decided not to implement any of it, so I do not think we need Michael Lyons quoted to us at the moment.

As noble Lords have said, Clause 25 postpones the 2015 revaluation of business rates. The clause amends some of the most important parts of the business rates legislation so it may be useful if I say a bit about those provisions first.

As noble Lords have said, business rates bills are found from the rateable value for the property, which is assessed by the Valuation Office Agency, and the multiplier, which is set by the Government. Rental values are set out on a rating list and are updated every five years at a general revaluation. Local rating lists are held by local authorities and contain all rating assessments in their areas. The central rating list is held by the Secretary of State and contains network properties such as the National Grid. For both types of rating lists, since 1990 rateable values have been updated every five years to reflect changes in the property market, as noble Lords have said. That requirement to revalue every five years is contained in Sections 41 and 52 of the Local Government Finance Act 1988, which this clause amends.

We have had many debates on this over the past few weeks. As we have said, revaluations do not raise any extra revenue. Therefore, postponing the revaluation will have no impact on the total revenue raised from business rates-I think everybody understands that-but revaluations redistribute the total rates burden so that some ratepayers see increases in bills and some see reductions. We recognise that regular revaluations are an important part of the rating system but certainty for business is also important. Of course, if the revaluation is delayed, the current situation pertains.

The Valuation Office Agency's best estimates of revaluation in 2015, which have been published in full, suggest there will be sharp changes in bills in 2015. The agency believes that 800,000 ratepayers may face increases, compared to only 300,000 seeing reductions. The Valuation Office Agency provides pretty detailed and good valuations, so I think it can be relied upon to produce these sorts of figures. Some sectors such as petrol stations, hotels and pubs would see very significant increases.

Postponing the revaluation for two years to 2017 will give businesses extra certainty to concentrate on delivering growth and maintaining their own business requirements, but we remain committed to regular revaluations so we will also ensure that the five-yearly cycle is reinstated after 2017.

We have provided for both these commitments in Clause 25. It inserts a new subsection (2A) into both Section 41 of the 1988 Act, which deals with local lists, and Section 52, which deals with the central list. The new subsection (2A) removes the requirement for a list to be compiled on 1 April 2015 and then sets a new five-yearly cycle to run from 1 April 2017. Clause 25 also contains consequential provisions to ensure that the current local and central rating lists remain valid until 2017, and that they continue to be maintained as usual throughout that time. This reform will support local economic growth by removing doubt about future rate bills and giving stability for businesses to plan and invest. I hope that noble Lords will agree that this clause should stand part of the Bill.

Amendment 81CD would require the Secretary of State to publish updated estimates of the effects of the 2015 revaluation and to consult formally with those affected before this clause is brought into force. The best available estimate of the number of ratepayers affected by this clause has already been published in full. As I have explained and the noble Lord, Lord Smith, has pointed out, the Valuation Office Agency has produced initial estimates of the 2015 revaluation, which it published on 12 November. Its work suggests that 800,000 premises would have seen a real-terms increase in their rates, compared to only 300,000 seeing a reduction. The Valuation Office Agency's report remains the only analysis we have seen that looks across all sectors and areas of the country. It is the only credible analysis of the impacts of a revaluation in 2015.

The noble Lord has asked in his amendment that we publish detailed up-to-date analysis. I understand the wish to know as much as possible about what would have happened to business rates bills in 2015, but the fact of the matter is that the only way to accurately provide such information would be to prepare the valuations. That would cost about £43 million of taxpayers' money, which does not seem a particularly useful way of spending it.

The Valuation Office Agency's analysis covers all sectors and locations. It has been published in full and is available. We know from that analysis that some sectors would have faced big increases: petrol stations would have seen an increase of 28%; the self-catering industry, such as caravan parks, 29%; hotels, 6%; theatres, 25%; and pubs, 11%. Retail overall would have seen a tax rise of 1% above inflation at the 2015 revaluation, with food retail and convenience stores facing significant tax increases. Shops in some regions would have seen much greater tax increases.

I know there have been concerns-as referred to by the noble Lord, Lord Smith-that 530,000 of the 800,000 losers at the 2015 revaluation fell within a single category of "other" in the Valuation Office Agency's report. However, the fact is that the Valuation Office Agency has looked at some of the larger categories of property within the classes, and their evidence and professional judgment support the figure of 800,000 losers.

The amendment would also ensure that we consult those affected before the postponed revaluation. We recognise the importance of consultation with business rates payers. Both the Government and the Valuation Office Agency hold regular forums to discuss business rates, and in recent weeks the Department for Communities and Local Government held several meetings with representatives of those affected by the postponement. I do not know whether it is those meetings which are reported by the noble Earl, Lord Lytton, to have been dismissive, but I find that quite surprising. The meetings have included the British Retail Consortium, Energy UK, the Association of Convenience Stores, the British Council of Shopping Centres, the Federation of Small Businesses, the TaxPayers' Alliance, and the Retail Motor Industry Federation. There are more planned during the passage of the Bill, and the Standing Committee in the other place received evidence from some groups.

The reason for what we are doing is to give priority to businesses and give them extra certainty now, before the revaluation process starts to raise doubts about future rate bills. That is a revaluation as a statutory exercise. We need to take primary legislation to stop it, quickly, for 2015. That is why we have moved to include the measures in this Bill. By placing the date of the next revaluation in the Bill, as well as the requirement for five-yearly revaluations thereafter, we have also shown our commitment to keeping rateable values up to date. I hope that I have reassured noble Lords that we have spoken about this clause to representatives of rate payers, and will continue to do so.

Lord McKenzie of Luton (Labour)

My Lords, would the noble Baroness perhaps explain to us what stability this decision gives to businesses which have really been struggling? For these businesses, rental values and rateable values are sure to decline in any revaluation that took place when it should. What stability is there for those businesses that were looking forward to some relief from a reduction in business rates? Is it not traditionally the case that there is a period of transitional relief for businesses that might suffer or be subject to an increase, in order to spread and dampen it?

Baroness Hanham (Conservative)

My Lords, we believe that stability will be provided by not having a revaluation at the present time. The economic situation is such to make a sureness and security about whatever position people are in very valuable. This is what is required at the moment to ensure that businesses know where they are. We appreciate that businesses are actually going through a very tough time; we have seen that on the high streets and we know that it is happening. So for businesses to have one problem fewer would be valuable.

Lord McKenzie of Luton (Labour)

Given that what seems to be at the heart of this is a dispute over the interpretation of the VOA figures, would the Minister be prepared to set up a meeting which noble Lords could attend together with the VOA and those who have put to us a different analysis of the VOA's data?

Baroness Hanham (Conservative)

My Lords, I am not sure that a combative meeting, which I think that that would be, would be very valuable. Perhaps I may think about that and see whether it would be helpful; I am not certain that it would be.

The measure is designed to give businesses security, to enable them to know where they are and to help them through what is a very difficult time.

I was asked also about the capacity of the Valuation Office Agency. We believe that it does not make any difference; it is up to it. It will have to do the same estimates again in a couple of years.

We have discussed the impact of appeals on several previous occasions. I have already told noble Lords that headroom is created in the local government financial settlement to ensure that rating appeals are taken into account and that local authorities do not lose out as a result. I hope that, with those explanations, noble Lords will decide not to press their amendments.

Earl of Lytton (Crossbench)

My Lords, I thank the Minister for giving such a detailed reply at this time of night. I thank the noble Lords, Lord McKenzie of Luton and Lord Smith of Leigh, for their contributions and for filling in a lot of the detail that it was not possible to give in my introduction.

My meeting with the Minister's officials was entirely satisfactory, save for the fact that it did not give me the answer that I thought I should have derived from it-but that is par for the course; one accepts that. I understand that the particular meeting to which I referred took place last Wednesday. The Minister-it was not the noble Baroness but one of her colleagues from another place-who had originally been destined to be there for half an hour or so, was there for two minutes and 40 seconds. Just one of the representative bodies got a question in and was more or less told, "Well, it's a done deal and that's it". That seemed to be the end of the conversation, which was not really satisfactory for people coming along and explaining the situation from a business standpoint.

It does not give businesses any comfort to know that the report by Sir Michael Lyons is to be left on the scrapheap because it was commissioned by a previous Government who did not implement it. These things are done with much fine intellect and great skill is applied to them, and they should be taken at face value. I say from these Benches that if businesses are just going to be subjected to the idea of the thing being of no consequence because it is politically inconvenient or political point-scoring, that does not do anything for growth or infrastructure. It does not do anything for businesses or business confidence because all this politicking switches businesses off; they do not operate on that basis.

The Valuation Office Agency's data were fine in their own terms, but it was how they were interpreted thereafter and the claims made for them that were not substantiated. It would have been better if they had never been prayed in aid at all. The Gerald Eve analysis of the figures-produced by the Valuation Office Agency, not by Gerald Eve; they were a reworking of the Valuation Office Agency's own figures-have to this day not been challenged or countermanded in any sense. The political overlay is a matter of dismay to many businesses.

The cost of occupation is directly related to jobs. If we are all in this together, and somebody in the Treasury or wherever in the Government is saying, "Well, we're not going to have this thing, because, in fact, we don't want any sort of wobbles on the transition to the Local Government Finance Act arrangements and the business rates retention scheme and all that sort of thing", that is fine, but it would be just as well if that were said outright and then we would all know where we were.

There does not appear to be any other reason for that. With the greatest respect to what the noble Baroness said, I do not believe that the figures add up in the way that she said. I do not believe that there are 800,000 gainers. I do not see that in the figures there. It is an allocation of a large proportion of "don't knows", and that is not the same thing at all. Obviously the noble Baroness is entirely dependent in these things on the information that is provided by her department but there is a great deal of concern about the information, what it means and what is being claimed of it. Different interpretations are being attached to things that should have a straightforward meaning to everybody. This is a problem that we need to address.

The noble Lord, Lord Smith of Leigh, said that it breaks with convention. Yes, it sets a precedent. If this goes through in the Bill, it will be something that is variable according to the whim or fancy of any subsequent Administration for whatever reason. It will accelerate the number of appeals, it will increase the mutterings of dissatisfaction and pressure for much more radical change, and it is likely to increase pressures in relation to investment, particularly in areas that are really struggling and have been hit quite badly both in terms of the turnover that they can generate and the values of the premises. The downward spiral is never at all comfortable for occupiers, landlords or anybody else. That needs to be recognised because this will produce further changes in our high streets and further challenges that we have to deal with. The hour is late and, while I may well return to this at a future date, I beg leave to withdraw the amendment.

Amendment 81CD withdrawn.

Debate on whether Clause 25 should stand part of the Bill.

Lord Smith of Leigh (Labour)

If I might just comment on the Minister's reply, I thank the Minister for that long reply at the end of what has been a very long day for her-I am sure she is looking forward to the conclusion of today's debate-but I thought that reply was somewhat disappointing. As the noble Earl said, the Valuation Office report was interesting in part but the other section, if you look at the detail, seemed to say that there were no data on which it could really base that finding. The incredible thing was that all 500,000 of these others were placed as potential gainers from non-implementing. Not a single one was regarded as a loser. The credibility of that is open to suggestion.

If the Ministers want a confrontational meeting, a meeting with the Valuation Office to really understand the basis of those figures might be helpful for your Lordships. If the Minister would agree to arrange that, it might be helpful. As I said, the quotation from the regulations from last year talked about the fair contribution based upon property values. The Minister is saying that to avoid turbulence we are actually going away from that principle. Lots of people would have gained by a revaluation, mainly in the retail sector but in other sectors, too. In a sense, they have the certainty that they will pay rateable values but higher than they should. But with that, I will not move that Clause 25 should not stand part.

Clause 25 agreed.

Clause 26 agreed.

House resumed.