Renewable Transport Fuel Obligations (Amendment) Order 2011
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Lord Berkeley
My Lords, I support the Government’s intention behind the order. However, the fact that it is 20 pages long and that a number of noble Lords have made some pretty wide-ranging comments about its effectiveness indicates just how difficult the system is. Clearly the Government’s heart is in the right place but I think there is a bumpy road ahead, and maybe not just on these regulations.
In transport, we all know that the intention, and the policy, is to reduce CO2 emissions by 80 per cent in 40 years’ time, by 2050. We are a long way from that, as many noble Lords have said. It is very easy to say, “We should do this and we should not do that”, and come up with a black-and-white approach. We need to have a more rounded approach and do everything possible because otherwise there is no chance at all of meeting those targets.
I worry about whether there is any joined-up government going on here. I read last week that the UK was the only EU member state to oppose the Commission’s plan to put a premium on CO2 emissions from the oil sands that are produced in Canada because of the additional CO2 produced as a result of that process. If we are trying to balance what is produced and how it is produced with the CO2 that comes from it, surely the Commission’s plans are very fair and reasonable. We can argue about the percentage but it appears to have a pretty disastrous effect on the environment there and if it is going to produce a great deal more CO2 as well, that should be reflected. I know that that is some way away from these regulations, but it is an example of how one can get tripped up by a policy, possibly without realising it.
The noble Lord, Lord Palmer, talked about some of the other issues to do with the change in policy. We have seen a change in policy recently on solar panels and the grants available for those. Again, it is probably fair and reasonable given the reduction in the prices that the panels are sold for, but it does not help industry invest in the right equipment for reasonable long-term production of whatever we are trying to produce. Again, several noble Lords have mentioned this in respect of the various feedstocks that we are considering today.
I recently came across a plan in Cornwall, where I live, to export domestic waste in 1 metre cubed blocks to Sweden for incineration and creation of electricity. At the same time, there is a plan to build an incinerator in Cornwall. Whether it goes ahead or not does not really matter, but why export it to Sweden when it can be burnt locally? Apparently it is a different type of waste, but if we are going to have to have different types of processing plants for all the things listed in these regulations, and if Government, for whatever reason, are going to change their policies on subsidies or feed-in prices or whatever, it is going to be quite difficult to get companies to invest in it. I question why we want to encourage the burning of sustainable waste from fisheries. There are enough problems with overfishing at the moment and we should not encourage anybody to fish more than they need to and say, “We will make some money out of burning it”.
I fear there are going to be a lot of unintended consequences out of this order and other ones. I do not have a solution. We can try to burn less fuel by using electricity for those vehicles that can be powered electrically, if that is generated in a carbon-free manner. That cannot be done so easily for big trucks. My solution, as chairman of the Rail Freight Group, is to send much more long-distance stuff by rail. However, that is not the only answer. We must try all these different solutions. I plead with the Minister to try to end up with a policy that is as consistent across all the different modes of transport as possible and that will give the businesses that will do this work as much confidence as possible that their investment will get the rate of return that they were promised by government policy when they started down the road.
Lord Reay
My Lords, the two great drivers—to use modern administrative jargon, as the Minister did—of our ruinously expensive renewable energy policy, which is still subscribed to by the leadership of both the Government and the Opposition in this country, are the Climate Change Act 2008—which, it was estimated by the Government of the time, will cost more than £400 billion by 2050—and the EU renewable energy directive of 2009. The Climate Change Act deals with emission reductions; the renewable energy directive provides for increasing proportions of used energy to come from renewable sources. Of course, renewable excludes nuclear.
As was explained, under the directive the United Kingdom has a target of 15 per cent of its total energy and 10 per cent of its transport fuel to come from renewable sources by 2020. The renewable transport fuel obligation has been in place since 2008, and under it an increasing proportion of road transport fuel must take the form of biofuel. According to figures provided by the Department for Transport to the Merits Committee, this has now reached 3.1 per cent. This order amends the RTFO to bring into effect various requirements of the directive that were described by the Minister.
In the various impact assessments provided with the amendment order, there is no assessment of the costs hitherto of the obligation. I find this to be a sorry omission and would be grateful if the Minister will in due course supply the figure. As the Explanatory Memorandum makes plain, supplying biofuels is more expensive than supplying fossil fuels. As to the expected costs of the amendment order over and above the costs of the order unamended, the Explanatory Memorandum offers an estimate of £324 million for the years 2012 to 2030. However, the overarching impact assessment states that the figure falls in the range of £100 million to £800 million. In other words, the Government have very little idea of what the cost will be.
The amendment order will be popular with no one except the Greens. The Government state that of the 4,600 replies to the consultation from members of the public, the majority called for the biofuel targets to be scrapped. This is not surprising as the effect is to add to the cost to the motorist. Given that the Government have just felt the need to postpone an increase due in January on fuel duty amounting to an extra 2p a litre, they will not make their life any easier by increasing in this way the price of fuel. In the sustainability criteria impact assessment, it is assumed that the additional cost to the motorist will peak at 0.4p per litre in 2017 for diesel and 0.1p per litre for petrol. The assessment goes on to state that any further costs will be capped by the buyout price. However, this is set at 30p per litre. I wonder whether that is really the price at which the cost to the motorist will be capped. Perhaps I do not understand this and the Minister will explain how a buyout price set at that level will effectively cap the price to the motorist.
Localism Bill
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“Determination of appeals
(1) Section 79 (determination of appeals) of the Town and Country Planning Act 1990 is amended as follows.
(2) In subsection (1), at the beginning insert “Subject to subsection (1A),”.
(3) After subsection (1) insert—
“(1A) The Secretary of State may only overturn a local planning decision if—
(a) the Secretary of State has reason to believe the decision is unlawful;(b) the Secretary of State has reason to believe that due process was not followed; or(c) the proposed development does not contravene materially the local development plan.””
Lord Reay
My Lords, this is a simplified version of an amendment which I moved in Committee. The idea behind it is to remove the right of the Secretary of State to overturn local planning decisions where these have been taken in accordance with the local development plan. Under the amendment, the Secretary of State would be able to overturn a local planning decision on appeal only where the decision had been to refuse permission for a development which was compatible with the local plan, or where the local authority had acted unlawfully, or where due process had not been followed. Where the local authority had refused permission for a development that contravened the local plan, the Secretary of State could not find in the developer’s favour on appeal.
The aim is to redress the balance in the planning process to a small degree, so that developers do not have an entirely unfettered right of appeal. This has led to powerful developers—or, in the case of wind farm applications, to developers with the intoxicating whiff of enormous subsidies in their nostrils—wearing down local authorities and local resistance by systematically appealing every decision that goes against them. By linking the rights of developers and the powers of the Secretary of State to the local plan, the amendment goes some way down the road that the Minister in another place once said he wished to follow, of making the local plan sovereign. The amendment would reduce the scope for developers to ram through unpopular proposals against the wishes of the local community as expressed in local plans. It has the support of the CPRE, which had a large part to play in its drafting.
I also strongly support Amendment 232ZB, tabled by my noble friend Lady Parminter, which would introduce a community right of appeal. This was the policy of both the Lib Dems and the Conservative Party before the last election. Since then, they seem to have invented the doctrine that it is the planning system that is responsible for the failure of the economy to grow faster than it has, and that nothing new must be introduced which could possibly provide a further obstacle to development. I do not think that my noble friend’s amendment is any different from the one she moved in Committee. She has been careful to circumscribe the circumstances in which an appeal can be made so that not any Tom, Dick or Harry can appeal whenever he likes.
I agree with the terms in which my noble friend has cast her amendment, with one exception. I am not convinced that whether an appeal can go ahead should depend on the position taken by the planning officer. In my noble friend’s amendment, the planning officer has to have recommended refusal of planning permission before any appeal against a local authority’s decision on the part of the local community can go forward. This seems to be too restrictive. But, even as it is, I would prefer the Bill to contain this amendment.
There is not much localism in the Bill now. Nothing would do more to restore meaning to the Bill than to reinstate into coalition policy a community right of appeal. Without it, the planning appeals system will remain most unfairly balanced in favour of developers. I hope that my noble friend the Minister will be sympathetic to these amendments, both of which advance the cause of localism. I beg to move.
Baroness Parminter
I rise to speak briefly to Amendment 232ZB in this group. A limited third-party right of appeal would provide stronger safeguards against planning applications which cut across local and neighbourhood plans. Such applications risk compromising the plan-led system and undermining public enthusiasm for taking a stronger role in plan making. As my noble friend Lord Reay mentioned, the Minister in another place has made statements about the importance of enshrining the primacy of the local plan. Granting a limited third-party community right of appeal, which was triggered where a decision to grant planning permission was not in line with the adopted local plan, would be a powerful support to that approach. It could also help to ensure that local councils put sufficient weight on policies in a democratically agreed plan and, crucially, strengthen mandatory pre-application discussions for major developments introduced by this Bill.
Lord Shutt of Greetland
My Lords, I thank noble Lords who have spoken. I should like, first, to respond to Amendment 232ZB in the name of the noble Baroness, Lady Parminter, because it helps to set the scene. The amendment intends to give a new right of appeal for local councillors. Before going into detail it would be useful to start by setting out what we are seeking to achieve in the reforms and how communities can shape the area in which they live. The purpose of our planning reforms is to put the local plan at the heart of the system. In fact, the draft national planning policy framework explicitly says so. It is the plan where councils and communities weigh up and integrate different goals and long-term needs so that it sets the framework within which individual planning applications are assessed and decisions taken. We want planning decisions to be taken by local communities, not more appeals undertaken by unelected inspectors in Bristol.
Everything that we are currently undertaking in the Bill—removing unelected regional structures and the top-down targets which constrained local councils, stopping inspectors arbitrarily rewriting plans without a council’s consent and removing unnecessary central government monitoring regimes and interfering in local timetables—gives control, choice and responsibility for local planning back to councils and communities. Other reforms which introduce neighbourhood planning and ensure appropriate consultation with local people before proposals are submitted have also been to that end, so that local people will, in future, have a real say. They will encourage developers to work with the local community to develop proposals all can support, rather than setting them against each other.
Given this, I have considerable sympathy with the noble Baroness’s intentions here. She desires, as I do, to ensure that local communities and the plans agreed between them and their councils should remain at the heart of planning decisions and she is concerned that, in some cases, that does not always happen because of the way the system works. I do not think that her amendment is a solution here. We consider that this would risk adding unnecessary uncertainty and delay at this crucial time of recovery and growth. Applicants will have invested considerable time, money and effort in preparing their proposals and should expect a council’s decision to be a corporate one. However, I recognise that there are issues that we need to address.
First, I understand that local councils have often felt pressure to approve applications which have not been consistent with the plan. One reason is that officers may advise elected members that if they do not approve development, even where it is outside the plan, they may lose at appeal and have to pay costs. Therefore I can reassure the House that we will revise the costs award circular which governs this process so that where a council refuses a development proposal on the grounds that it is contrary to an up-to-date development plan and there is no issue of conflict with national planning policy, there should be no grounds for an award of costs against the council in question.
Secondly, in some cases applications are made and approved which fall outside the development plan. This is an important flexibility in the system. However, we must also be clear that if an application is outside the terms of the plan it should be approved only if locally elected representatives have considered the views of the local community and concluded that such a departure would be acceptable in planning terms. For this reason, we will consult on requiring departure applications to have compulsory pre-application consultation with the local community so that elected members are fully aware of local views before they decide an application. This will mean that local councils will have a clear understanding of local views when they deal with key applications, should have no fear of costs being awarded against them when they have followed the right procedures and will be able to decide cases in the long-term interests of local communities. These changes to the system will strengthen its resilience and ensure that our reforms achieve their objective of putting the local plan and the views of the local community at the heart of the system.
I pay tribute to the noble Baroness, Lady Parminter, for raising these issues so vigorously. By doing so, she has done a service to the House. Given our proposals to strengthen community influence and the involvement in planning as a whole, which I have outlined, I hope she will agree that our measures are strong and effective ways to ensure that community views are heard in the process, especially where a development might depart from an up-to-date plan, and that she will not press her amendment.
Turning to Amendment 232ZA, as the noble Lord, Lord Reay, said in Committee, planning is a matter of getting the balance right. I agree. We are committed to a system of fewer appeals and want development proposals to be determined locally. However, in the few cases where appeals are made, the Secretary of State, as decision-maker, must be entitled to take other material considerations into account, as can councils, on finely balanced matters of judgment—for example, where a local policy is out of date because it does not reflect the changing circumstances of the local area or more recent national policy. In such instances the law allows councils to consider other material considerations in making the right decisions for their communities. They should not be restricted and neither should the Secretary of State’s decision be fettered. Amendment 232ZA would therefore be unduly restrictive in this regard.
However, I understand the intention behind the noble Lord’s amendment. We shall take the measures that I outlined earlier so that councils and communities feel confident, if challenged at appeal, in defending planning decisions made in accordance with an up-to-date plan and where there is no conflict with national policy. I reassure the noble Lord that judicial review proceedings can already be brought if a decision was unlawful or due process was not followed. I hope therefore that he will be willing to withdraw the amendment.
Lord Reay
I thank my noble friend Lord True for his support for my amendment. I agree with him that we have not seen the end of this matter. I was sorry not to have the support of noble Lords opposite. For once they have revealed themselves in their centralist colours.
The Minister entered fully into the arguments on the amendment and I am grateful for that. He said that the Government want to limit appeals—they do not want everything decided in Bristol—but, of course, the effect of my amendment would be to reduce appeals. I appreciate that he repeated what was said at an earlier stage about costs awards and I appreciate what he had to say about the consultation that would need to take place with local communities. In those circumstances, I am happy to withdraw the amendment.
Localism Bill
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Baroness Young of Old Scone
My Lords, I underline what the noble Lord has just said, particularly in terms of the requirement to adapt to climate change. Noble Lords may remember that the Climate Change Act contained strong reporting requirements as regards authorities reporting the action they were taking and their readiness to adapt to climate change. However, those requirements were not laid on local authorities. They were laid on a huge range of other authorities, but local authorities were not required so to report because at that stage they had a performance indicator which established their readiness to adapt to climate change. However, that performance indicator has since been swept away along with all the other performance indicators for local authorities. If I am correct, we no longer have any mechanism at all to make local authorities accountable for adapting to climate change and demonstrating that they are so doing. Therefore, I very much welcome this amendment as it would at least give us hope that a requirement was being laid on local authorities to demonstrate that they were adapting to climate change.
Lord Reay
My Lords, as this is my first intervention at this stage of the Bill, I declare my interest as a landowner. I object strongly to these amendments. When I sought to introduce an amendment in Committee that related to the costs incurred by local authorities contesting appeals in wind farm development cases, the noble Lord, Lord Whitty, chided me for introducing an inappropriate discussion of energy policy into a planning Bill. I could now say the same about the noble Lord’s friends who are moving this amendment.
As the noble Baroness more or less explained, the intention of these amendments is to impose on local authorities a responsibility for helping the Government to achieve their renewable energy targets. The principal effect in practice would be to make it even harder than it is already to resist the attempts of subsidised developers to cover the countryside with wind farms, for, of course, that is the one technology on which, in practice, the Government are, or were, pinning all their hopes for achieving those targets. I say “were” because at the recent conference of my party there were the first interesting signs that second thoughts are being entertained at last in government circles about their energy policy, owing to its expense, which seems suddenly to have become apparent to the Government. To be sure, so far the changes have been in rhetoric only but I find it hard to see that that will not be followed by action, for the point is that the Government’s deliberate pursuit of a renewable and, therefore, an increasingly expensive, energy policy is coming into ever greater conflict with the Government’s attempts to protect living standards.
In the Financial Times yesterday its energy correspondent produced an estimate that at the current rate by the time of the next election the average household will be spending more than 10 per cent of its income on its energy bills. In other words, they will be officially in fuel poverty. That will be an astonishing and, I suggest, intolerable outcome. Noble Lords will remember that when the previous Government were in power it was their stated policy to abolish fuel poverty, but, of course, that is quite impossible if you are pursuing a renewable energy policy. Under their watch the number of households in fuel poverty doubled in five years to around 5 million. With the present Government pursuing the same policies, this figure has continued to rise until it has now reached 6 million or even on some estimates 7 million. Therefore, it surprises me that in these circumstances noble Lords opposite continue blithely to propose measures that can only have the effect of further adding to fuel costs for the consumer. It did not surprise me, however, that in that same article in the Financial Times the director of consumer policy at uSwitch was quoted as saying:
“I believe there is going to be a U-turn because I believe the government is listening and they’re going to have to face reality”.
The Government, of course, could have done so a long time ago. I can hardly think of a single prominent independent newspaper columnist who has not over the past two years or more—in many cases much longer—succeeded in exposing the crippling expense of our climate change targets and the complete futility of wind farms. I should have thought that that probably covers virtually all the famous names in journalism, at least in the newspapers and magazines that I have read.
The Government therefore cannot say that no one warned them. Yesterday it was the noble Lord, Lord Young of Graffham, who had the opportunity to have his say in the Times. His article was headed:
“This is no time to waste our money on windmills”.
The noble Baroness may laugh but I cannot think of a more unsuitable time to contemplate putting a statutory obligation on local authorities to give yet more priority to the installation of subsidised renewal energy projects. I hope that the Minister will give this amendment short shrift.
Localism Bill
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Lord Reay
My Lords, I have put my name to my noble friend's amendment. Litter thrown from motor cars is a scourge of the countryside. It is a regular practice for people to discard litter from moving vehicles—in particular, drink containers and food wrappings. I am sure that to try to reduce the incidence of that habit is a goal worth pursuing. It is surely one test of how well a country is governed how tidy it is. I remember, when I visited Libya in the last years of Gaddafi's regime, how staggered and disgusted I was to see the quantity of litter to be found on the road between the airport and the centre of Tripoli. It was knee-deep in plastic. Of course, that was under a dictatorship, where regulating such things should be easier.
I also understand that the present situation here, where responsibility must be pinned on the person who has thrown the litter, is unsatisfactory. It is difficult enough to trace a car from which litter has been thrown. To then require the prosecuting authority to identify the culprits in the car is surely asking too much. It seems to me quite reasonable to hold the registered keeper of the vehicle responsible. As my noble friend explained, that is the idea behind the amendment. Whether such a change in the law would be successful in reducing the amount of litter thrown, we would have to see. I can certainly imagine that it would have a deterrent effect, with vehicle keepers not wanting to be exposed to legal penalties as a result of the actions of other people, whether members of their family or not, and therefore to some extent themselves acting as policemen.
Unfortunately, the amendment, for a reason which I do not entirely understand, does not propose creating a new national offence. As I understand it, the Bill was thought to be an unsuitable vehicle, although the amendment in another place proposed exactly that. This amendment would simply enable local authorities to adopt by-laws along the lines my noble friend described. As he said, there are grounds for believing that many local authorities might be interested in doing that. On that basis, I recommend the amendment to the House. I very much hope that the Minister will indicate that the Government now intend to do something about this problem.
Lord Jenkin of Roding
My Lords, I have huge sympathy with my noble friend’s amendment. Before he left the Chamber, my noble friend Lord Newton, who is taking part in the Welfare Reform Bill Committee, said that he was sorry not to be able to add his voice because he feels very strongly about this.
For nearly 30 years I lived in rural Essex within reach of my former constituency, and one of the disadvantages of the road we lived in was that it was perennially the subject of littering. There was a corner at the bottom of the hill with a bit of spare ground on the left-hand side and my children very quickly christened it “Mattress Corner”. It had become a place where people could dump their unwanted mattresses, which then had to be cleared up by the local authority. It was not only that. We lived a mile and a half outside the village where there was a fish and chip shop. We discovered that we were almost exactly the distance away that it took people to eat a bag of chips. I found myself as the riparian householder having to go out at fairly regular intervals with a plastic sack and one of those nice machines with which you can pick up things and pop them in the sack, simply to clear up the litter on both sides of the road that had been deposited by passing vehicles. Even if you saw a car with litter being thrown out of the window as it went past, there was nothing you could do. You did not know who the driver was or who had thrown it out. There was no point in taking down the number because nobody would do anything about it. You had to prove who it was. So I have every sympathy with this.
My noble friend Lord Marlesford said that it is not enough just to talk; you have to do. I have previously declared an interest as the joint president of London Councils and I am happy to say that London Councils is engaged at the moment in tackling this problem in London. It does this on behalf of the London boroughs and I think it is now ahead of the game. The London Local Authorities Act 2007 contains a provision to decriminalise the dumping of litter from cars and to impose a liability for penalty charges on the keeper of the vehicle. That is slightly different from the proposal put forward in my noble friend’s amendment but it is clear that we all have the same objectives in mind. A London Local Authorities Bill is currently awaiting its final stages in the other place. It will make a small drafting correction to that provision which will allow it to come into force.
Other steps are necessary. Discussions have taken place and progress is being made with the Ministry of Justice in relation to the making of regulations which will enable London borough councils to enforce their penalty charges under the civil regime in the courts. Officials are also co-operating on the necessary alterations to the Civil Procedure Rules and London borough councils understand that these changes and regulations will be made very shortly. I hope my noble friend on the Front Bench will be able to confirm that the provisions will be implemented very soon and the system can start to work in London. That is doing and not just talking. I believe London will show that this solution is perfectly feasible and can be addressed by local authorities. Other authorities may wish to copy what London Councils is doing and it will not be the first time that has happened. I support my noble friend’s amendment.
Localism Bill
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Lord Reay
My Lords, I put my name down to oppose that Clause 124 stand part of the Bill. A report was issued in 2007 by BERR—as noble Lords will remember, it was a department which existed before BIS and DECC came into being—which was entitled Delivering Community Benefits from Wind Energy Development: A Toolkit. It included this statement:
“There is a strict principle in the planning systems in all parts of the UK that a decision about a particular planning proposal should be based on planning issues; it should not be influenced by additional payments or contributions offered by a developer which are not linked to making the proposal acceptable in planning terms … To put it simply, planning permission cannot be ‘bought’”.
Do the Government still stand by that statement?
I am grateful to the Minister for circulating the most recent, six-page, briefing from her department on Clause 124. That document states that whereas Section 106 payments, or planning obligation payments as they are called, must relate to the planning merits of the specific development to which they relate, CIL income can be used more widely. However, local planning authorities, it goes on to say, should not have regard to considerations that are not material, and if they do their decisions will be unlawful. Deciding on the scope of what, as a matter of law, could be material to a planning decision remains principally a matter for the courts.
So what has changed? The Government say nothing has changed, except that the current legal position has been clarified by putting it into statute, presumably by removing it from case law. The Government have not stated clearly what happened to make them take the step of suddenly producing this clause at Report stage in another place. I should be grateful to the Minister if he takes the opportunity today of stating why that is so. In doing so, perhaps he could explain why the Government wanted to remove decisions about what count as material considerations in planning matters from case law, and what he thinks the effects of doing that will be.
I should also like my noble friend to state that the Government stand by the BERR statement from 2007 that I quoted—that it is not the Government’s intention that planning decisions can be bought. I would also welcome it if the Government were able to support Amendment 166WA, which was moved by the noble Baroness, Lady Hamwee. Incidentally, I should also like the Minister to say when we can expect the national planning policy framework, as this is the last day before the Recess on which we can receive that information directly.
Lord Best
Perhaps I could speak before the noble Lord, Lord McKenzie, who will bring everything together thereafter. I know that opposition to Clause 124 relates to the effects on planning decisions of taking into account, in particular, the financial benefits from the community infrastructure levy and, very importantly, the newly formulated new homes bonus. In relation to the community infrastructure levy, I think the Government were absolutely right in reworking and reintroducing the CIL concept. I hope that planning decisions will take full account of the benefits that these levies can bring.
I shall now consider the potential impact of the new homes bonus. I am a supporter of the bonus, and I pay tribute to the Housing Minister, the right honourable Grant Shapps, for bringing forward this way of rewarding those local authorities that take their leadership role seriously, often in the face of considerable and vocal opposition, and seek to increase the number of new homes built in their areas. We know how important it is that acute shortages of decent housing, particularly in the southern half of England, should be urgently addressed. Planning can be the fundamental barrier to new homes getting built; but it can also be a positive force that facilitates badly needed new homes, even though the beneficiaries—the proposed new residents—have no voice in the local decision-making because they have not yet moved in.
The new homes bonus provides a mechanism for local authorities to give something back to the existing communities affected by new development: money to enhance local facilities, improve the local environment and reward those who are bound to be inconvenienced by building works close by and probably by increased traffic. Councillors can stand before the sceptics and protestors and declare that not only will the new housing serve the needs of young families seeking a home, but it will bring benefits directly or indirectly to the local community too. Some district councils in the Home Counties—exactly the places where opponents of new homes are often most vociferous—could gain significantly from the bonus payments by taking a pro-growth line. In these difficult times, these payments could mean that local authority services, which would otherwise have to go, may be retained. Conversely, those councils that succumb to every pressure and oppose new homes being built in their areas will lose out. I wish the new homes bonus every success and would hate to see planners ignoring the benefits it could bring.
My starting point, therefore, has been to look favourably at Clause 124’s intention that planners should recognise the positive financial considerations for their localities that a planning decision can achieve. However, the arguments from the noble Baronesses, Lady Hamwee and Lady Parminter, and the noble Lords, Lord Jenkin and Lord Reay, cause me to think again. If there is a danger that this measure could lead to accusations of planners selling planning permissions, to objectors being able to argue that financial incentives have improperly influenced decisions, and to legal challenges and long delays, then I can see that it would be much better not to tackle this through legislation. If reliance on existing legislation—with some extra guidance—is the safer option then, as a firm advocate for the new homes bonus who would not want to put it at risk, I would support the amendment and that the clause stand part.
“Windfarms: appeal costs
Where an appeal is made against the decision of a local planning authority to reject a planning application for an onshore windfarm, and the matter is taken to a public inquiry, the costs incurred by the authority in contesting the appeal, as well as any reasonable costs incurred by any registered rule 6(6) party under the Town and Country Planning Appeals Rules 2000, shall be paid for by the appellant.”
Lord Reay
My Lords, in moving my Amendment 170A, I should like to start by quoting what the Minister, Mr Greg Clark, said in another place at the Report stage of the Bill:
“There is also a case for looking at the fact that the costs of losing appeals can sometimes hang over local authorities. Sometimes the threat of losing an appeal dissuades a local authority from turning down an application that it might want to turn down. We should look at that”.—[Official Report, Commons, 17/5/11; col. 274.]
My only quarrel with that statement is that it is not so much the threat of losing an appeal as the costs of fighting one, whatever the result, that can dissuade a local authority from turning down a planning application that it should turn down and/or might otherwise want to turn down. This is more true today than ever now that local authorities are having to make severe budget cuts.
Following my having taken up that point at Second Reading, my noble friend the Minister kindly wrote to me on the 20th of last month and ended her letter by saying that she hoped to be able to update me shortly with news on,
“how we propose to do that”;
that is, deal with the concerns about appeal costs. I am hoping that she may be able to tell us today what that is.
I have singled out onshore wind farm applications because it is particularly scandalous that it is the subsidies that wind farm developers are promised that place them in a position to outbid local authorities and local action groups. Without those subsidies, the planning applications would never be made in the first place. Just to remind noble Lords, the subsidy takes the form of a promise to take on to the grid for 20 years all the electricity that the wind farm can produce at a price which is currently over twice the market rate. If for some reason the grid cannot accept the electricity, as we have seen happen recently and I am sure we will again, it will still pay for it at the subsidised rate. It is of course the consumer, including the consumer who is being pushed into fuel poverty, who is then charged on his electricity bills with these costs, and who thus pays for the subsidy.
This of course creates the very antithesis of a level playing field. The result is that this is an area where final planning decisions are emphatically not taken by local authorities or local communities. Localism does not rule. It is routine for developers to waste no time in appealing once the local authority has rejected, if it has had the courage to reject, their planning application. In the first place, the developers hope to intimidate the local authority with the threat of a protracted and expensive public inquiry into granting their planning applications. If, nevertheless, the local authority stands up to them, they hope to defeat the local authority at the public inquiry. As developers are invariably able to afford better legal and administrative representation than the local authority, and certainly than the local action groups, they are favourites to win.
The Government are complicit in this unjust process because they maintain the subsidies. The Government also apply immense pressure on the Planning Inspectorate through statements in every conceivable piece of legislation and guidance to help deliver, through its decisions at public inquiries, the Government’s renewable energy targets. In many cases the inspector does give priority to local concerns or to landscape considerations, but it still seems to be the case that in a majority of cases he will give priority to government policy. So by means of the subsidies to renewable energy electricity generators and the pressure on the Planning Inspectorate to deliver the Government’s renewable energy targets, the Government are doing everything in their power to thwart local opponents of onshore wind farm schemes. Yet they still claim to want to devolve decision-making powers in planning matters to local communities. How do they justify that blatant contradiction? I am afraid that it invites the charge of hypocrisy.
Yet it is still the case that the Government have signalled their recognition that the ability of developers to intimidate local planning authorities into granting planning permission because of the costs of going to appeal represents a problem, which is why I hope that my noble friend will say today what the Government propose to do about it. My amendment might result in developers thinking twice about taking local planning authority refusals to appeal. In doing so, it might give some encouragement to local authorities to stick to their guns with the result that more final decisions might be in accordance with the wishes of local communities. Perhaps naively I thought that that was meant to be the main purpose of the Bill. I beg to move.
Lord Whitty
My Lords, I trust that the Government will give no credence to this intervention by the noble Lord, Lord Reay. Government policy for encouraging the development of alternative energy—which is essential to our future—includes onshore wind farms. If he wishes to pursue his opposition to that policy, he should pursue it under energy Bills and the various regulations that are brought before this House under the energy Bills. He may well have done so. However, this is not the appropriate point to do it.
His amendment would do the opposite of what he is suggesting. It would discriminate against developers of wind farms as compared with any other developer, as well as cutting across what has been a cross-party consensual position in terms of encouraging alternative energy, including wind farms. In reality, the number of wind farms that have been rejected on planning grounds is at least equivalent to those that have gone forward and the number on which a decision has been challenged.
I do not want to use the same intemperate language as the noble Lord, Lord Reay, but, in practice, on wind farm applications, the nimbys have generally won. In this, at least, let us recognise that there is an overriding national consideration that this Government, the last Government and all parties in this House have accepted. This is not the point at which to further discriminate against wind farm developers.
Lord Shutt of Greetland
My Lords, I thank the noble Lord, Lord Reay, and other noble Lords who have taken part in the discussion on this amendment. It is accepted practice that all parties to an appeal should normally meet their own costs, but cost awards may be made by the planning inspectorate if a party behaves unreasonably. There are no special circumstances that apply to onshore wind farm appeals compared with appeals against other forms of development, nor is it clear why there should be. This proposal to require appellants to pay all parties’ costs for onshore wind farm appeals will treat wind farms differently from any other types of development. It would create pressure to extend the provision to other types of development. What will it achieve? Is it meant to encourage more proposals for wind farms to be refused, irrespective of their merits? Local planning authorities will already consider whether a proposed wind farm is acceptable in terms of their development plan and other considerations. These can include national planning policy and relevant planning issues raised by local communities.
I appreciate that wind farms can be controversial, but that in itself is not a reason to refuse them. Wind farm developers, like local communities, should expect a level playing field. Local planning authorities should be confident in refusing development that is clearly contrary to an up-to-date development plan, and defending their decision at appeal. It is our intention that local plans will become more prominent in decision- making, and there should be a presumption in favour of sustainable development at the heart of the planning system.
I have just been handed a note that the Minister is to revise the costs awards circular—circular 03/09—to make sure that it is clear that where a local planning authority refuses a development proposal on the grounds that it is contrary to an up-to-date development plan and there is no issue of conflict with national planning policy, there should be no grounds for an award of costs against the local planning authority.
I trust that with these remarks the noble Lord will feel able to withdraw his amendment.
Lord Reay
My Lords, I am grateful to my noble friend the Minister for his concluding remarks, although I am rather surprised that he should have received this as a last-minute piece of information from his officials considering that this amendment has been down for quite a considerable amount of time.
I am grateful for what he said; I would like to study the implications of it. I can understand that he does not wish to make any distinction between wind farm developments and any other form of planning application. That really relates to the issue of renewable development which the noble Lord, Lord Whitty, said was no matter for this Bill. He might say that to some of his noble friends when they try and introduce an obligation to pay more attention to climate change and what should be done about it, because that is an example of exactly the same thing.
I am extremely grateful to my noble friend Lord Marlesford for his support, and to the noble Lord, Lord Judd. I entirely agree with him: planning is a matter of getting the balance right. The party opposite is rightly proud of what the planning system has achieved in this country. It has preserved the countryside from, among other things, ribbon development and inappropriate high-rises. All of us are now proud of that consequence, and it is extremely important that we succeed in the future in maintaining the balance that is implied by that, and that we do not give overriding consideration to some overarching concern like renewable energy. On that basis, I am happy to withdraw my amendment.
Lord Reay
My Lords, the present appeal system is unbalanced. Developers have an untrammelled right of appeal against the refusal of any planning application by a local planning authority. The appeal goes to a planning inspector—usually at a public inquiry—who hears the case as if for the first time. He can reverse the local planning authority’s decision on whatever grounds he chooses. Local communities, on the other hand, have no right of appeal. Once a planning permission is given by the local planning authority, that is the end of the story.
Prior to the general election, that was a situation that both the parties now in government recognised was unfair and promised to redress. Open Source Planning, which set out Conservative planning policy, promised to make the system symmetrical both by allowing appeals against local planning decisions from local residents—the broad purpose of the amendment of the noble Baroness, Lady Parminter—and by limiting the grounds on which developers could appeal to, first, where the correct procedure had not been followed, whereby cases were to be dealt with by the Local Government Ombudsman, and, secondly, where the decision contravened the local plan. I believe that Liberal Democrat policies were similar.
Both those policies would have advanced the principle of localism; both have now been abandoned by the Government. The arguments they use are incoherent. In opposing the third-party right of appeal, the Minister said that he wanted fewer appeals to the Planning Inspectorate and more decided locally. In that case, why not limit the developer’s right of appeal?
Planning policy has been captured by the Treasury, which seems to believe that any balance in planning policy threatens economic growth, and the Treasury is no doubt being cheered on by the Department of Energy and Climate Change, desperate to carpet the country with its useless wind farms.
I wholeheartedly support the amendment of my noble friend Lady Parminter, which seeks to reintroduce a community right of appeal. Such a right of appeal must clearly be circumscribed in some way and, as she explained, the amendment limits those entitled to appeal to local ward councillors and local parish councils.
However, there is one condition that my noble friend has introduced which I question, and I have tabled Amendment 170CCA to remove it—namely, that an appeal can go forward only if the planning officer recommends refusal. In other words, only in cases where the local authority had granted a planning application against the recommendation of the planning officer would the community right of appeal come into play. For the community, everything would hinge on what the planning officer recommended. If the planning officer recommended acceptance, and the local authority endorsed that recommendation, then the community would have no right of appeal.
That seems to me to give too much power to the planning officer. I do not see why it is the unelected planning officer who will in effect be able to decide whether there is any right of appeal against the decision of the local planning authority. If my amendment, and that of my noble friend to which mine is an amendment, were adopted, the effect would be that, whatever the recommendation of the planning officer, the community would have a right of appeal against decisions of the local planning authority. That seems to me to be more democratic.
Amendment 170CF, the other amendment in my name, seeks to deal with the developers’ right of appeal. That was suggested to me by the CPRE. I do not feel committed to it in its present form; indeed, I can see that there are reasons why it might be preferable to have a simpler amendment that would require any appeal to be confined to where the original decision by the local planning authority had contravened the local plan. If the refusal of the local planning authority were in conformity with the local plan, the developer would have no right of appeal. That would put Conservative and perhaps also Liberal Democrat policy back to where it was before the election. It would also chime with what Ministers keep saying about their wish to make the local plan sovereign, as my noble friend has pointed out. Would the Minister be tempted by such an amendment?
On the other hand, if the Government were to persist in their refusal to allow a community right of appeal, and at the same time do nothing whatever to limit the current right of appeal of the developer, so allowing the present unlevel playing field to be maintained, they would have revealed their words about wishing to ensure that fewer decisions go to public inquiry to be much empty waffle. The intentions that they express to give primacy to local concerns would be exposed as insincere, sacrificed to the Treasury's false belief that this is the way to get economic growth going and to the lunacy of the Government’s climate change fanatics.
Lord Judd
My Lords, the noble Lord, Lord Reay, is nothing if not challenging intellectually. I find myself very much in support of some of the issues which he raises in his amendment, but I do not support one of them. On one point, I strongly disagree with him. The profession of the planning officer is a very honourable and demanding one, and with all the subjective pressures which operate in society—sometimes very crudely with very considerable amounts of money and innuendo about possibilities and non-possibilities—it is very important to have the objectivity of a professional in the middle who can look at the law and at the overall social challenges and get matters right. It seems to me that, if a person has put his profession on the line and made a particular recommendation, that is very important in deciding whether an appeal is appropriate. I am afraid that on that issue I strongly disagree with the noble Lord, Lord Reay.
I certainly do not see my role in this House as helping to put the Conservative or Liberal Democrat policy back on course, but we have a responsibility to try to be objective and to see valid points that are made and, when they are made, to support them. In the middle of this, there are some very important and valid points. I referred to some of them in an intervention on a previous amendment. I am deeply concerned about the trend towards putting commercial economic interests above social, environmental and scenic issues. I strongly support anything that can be done to increase the well-being and dynamism of our economy—of course I want that—but my thinking does not totally coincide with that of the noble Lord, Lord Reay, as I also believe very strongly that wind power has a contribution to make. I put it to the noble Lord that if you have alternative energy, it will always be an aggregate of less dramatic quantities of energy than we have had from some of the methods with which we are familiar.
Therefore, I do not think it is an issue of being on the side of wind power or against it. I am very worried by those who turn anti-wind power positions into a kind of ideological cornerstone. The issue is where you put the wind farms; and the issue is how you take into account the social challenges and social needs, so that you do not end up with the least articulate members of society becoming the waste bin for all projects because everyone else has been able to fight them off. There is a huge social planning job to be done, but planning will succeed only if it carries the sympathy and understanding of the population as a whole. There is of course a great deal to take seriously in the Government’s position, about making democracy as meaningful and relevant as it possibly can be, and as near to the people as possible. Therefore, the position of the communities is crucially significant.
I believe that, if one looks at the Bill as a whole—not just on this issue, but on a lot of the issues that have been so painstakingly debated by colleagues in the course of the Bill—there is a very strange underlying paradox. The name of the Bill, and the cause of the Bill, is localism and enhancing local democracy; the effect of the Bill is an unprecedented concentration of central power. That has to be countered. It seems to me that from that standpoint the noble Lord is right. It is of course a great temptation to have increased authority for the Secretary of State at the centre, and all his civil servants working with him. If I was a civil servant with responsibilities in this area, I would get terribly vexed and frustrated at all this local democracy that was getting in the way of absolute logic; but if we are to have such increased authority at the centre, then it is very important that we make sure that there are firm rules about how that frustration is brought into play.
I think that the amendment of the noble Lord, Lord Reay, does something helpful: it in a sense takes the whole theoretical purpose of the Bill, and says, “Right, if we really mean what we say here, we must have codes by which the Minister is operating in his decisions which override local wishes, and we must make sure that those are limited, and that they are clear, explicit, and understood”. As for the amendment of the noble Baroness, Lady Parminter, she is absolutely right: it is a charade, a nonsense and a provocation to talk about a Localism Bill and then deny the community the right to appeal. Of course the community should have that right.
I conclude by making one point again—and I know that the Minister, who has not himself been participating in this debate, has been very good on this issue, and very sympathetic and understanding, as have some of his colleagues. If we talk about the importance of generating a vigorous economy, and giving priority to the measures that are necessary to make our economy strong, why do we want this? It is because we want a decent, civilised place in which to live. We want to have a society worth living in, and such a society needs a strong economy underpinning it. That is the whole point about the issue of balance: how do we ensure that we have strong policies, but at the same time that they are not so unduly, at the price of the quality of the wider dimensions of our society? That is why I repeatedly come back to the point of how previous generations ruined the countryside unnecessarily: we can now see with hindsight that it could all have been done much better. I think that the noble Lord is right, again, to be vigilant on these issues, although I profoundly disagree with him on some of his observations. I hope that the Government will take seriously what he and the noble Baroness have been arguing in their amendments.
Lord Shutt of Greetland
My Lords, as ever, we come back to this whole business of things being decided locally. I thank noble Lords who have taken part in the debate. This is my third appearance today and I am having, once again, to suggest that these amendments are not ones that the Government wish to support at this stage. Planning has got a key role to play in creating the conditions for economic recovery. We should not lightly agree to any measures that add uncertainty, cost and delay to recovery and growth. Development that is permitted after consultation with communities and consideration by the local planning authority should not have unnecessary hurdles placed in its way. A similar amendment seeking a community right of appeal was considered in the other House. In the relatively small number of cases where a decision is made that grants planning permission that is not in accordance with the development plan, it is only right that the locally elected planning authority should make that decision and not the Planning Inspectorate. The local planning authority is ultimately responsible for exercising its judgment in reaching a decision. Safeguards are already built in to the system of decision-making. Applicants will have invested considerable time, money and effort in preparing their proposals. They should expect the local planning authority’s decision to be a corporate one and not subject to challenge by other members of the council.
I agree with the noble Lord, Lord Reay, that the plan should be the starting point for the determination of a planning application. Legislation already provides for this. Local planning authorities should feel confident in defending planning decisions made in accordance with an up-to-date plan, if challenged at appeal. Where appeals are made, the Secretary of State must operate within the law. As a decision-maker, he is entitled to take other material considerations into account when reaching his decision. This is essential if we are to ensure that the planning system creates the conditions for economic recovery and sustainable development. Material considerations may change over time and should not be tightly defined, as this amendment seeks to do. The amendment on determination of appeals goes too far. It is unnecessary and will have a negative impact on growth and sustainable development. I hope the noble Lord appreciates why we do not therefore accept it.
The noble Lord put it to me that I might be tempted. Words have been spoken about why there may be changes in position—I am not aware whether there are any such changes, but I understand what has been said and accept it. All I would say is that at 5 pm on 20 July, I do not think I am in a position to say that we will accept this. However, the rest of July and August beckons and I do recommend that noble Lords use it well. If they believe that they have got concerns that can be drawn to the notice of the Government about ways that this Bill may be still further changed, I recommend that they use their endeavours. This is, as I have said before, Committee stage, but I trust that in the circumstances at the moment, the noble Baroness will feel able to withdraw her amendment.
Lord Reay
I will say one thing in reply to what the noble Lord, Lord Judd, said about planning officers. I have no intention of denigrating planning officers. They do an invaluable job and can be highly impressive. However, their job on the whole is to advise the democratically elected planning authorities. The amendment would put them in quite a different position, unlike the position that they normally occupy. However, in view of what the Minister has said, I am happy, for the moment at least, to withdraw my amendment.
Electricity Market Reform
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Lord Marland
As ever, the noble Lord, Lord Jenkin, knows the subject. I am slightly disappointed that he does not believe that there is a nuclear framework. We announced that there are to be six new nuclear power stations and reaffirmed that announcement two weeks ago and the sites where they will be located. Realistically, there are a number of issues in terms of the balance sheets of some of the companies wanting to invest—as we have seen from the fall-out in Germany. Having spoken with EDF, Iberdrola and others this week, I know that they are very committed to the cause of the nuclear framework.
As to when the legislation will happen, we are obviously hoping that it will start at the end of this year. There are some timing issues, even with getting the first Energy Bill back to this House—as we all know. The legislation issue will be difficult because there is a certain logjam in the other place.
On who will operate and regulate the supply, this will largely be Ofgem, which will have greater teeth. As we are running a little bit out of time, I am happy to discuss at a later time with the noble Lord the various component parts of that rather than going into it now—if he is happy for me to do so.
Lord Marland
Naturally, we work very closely with the devolved Governments. We are all travelling down the same path. However, HM Treasury, rather than the Scottish Government, will be responsible for the renewable heat incentive funding. That is in the spirit of the union, I think.
Lord Reay
My Lords, this extremely important White Paper sets out to introduce the reforms, if one can call them that, which the Government consider are necessary if they are to meet their targets for extremely high-cost, heavily subsidised renewable energy. I hope we will get the chance to debate it.
I have just one question for now. The Statement mentions offshore wind on three occasions but makes no mention of onshore wind. Can we take it that the Government are lowering their sights with regard to onshore wind and, it is to be hoped, abandoning their targets altogether? It is a deeply unpopular form of renewable energy, it bitterly divides local communities and it is destroying some of our finest countryside.
Lord Marland
I do not think my noble friend can take that from our Statement. The reality is that onshore wind does divide communities—my noble friend puts his finger on it—and it therefore becomes an issue for local communities to decide through the local planning process whether they want it. A large number of local communities in Scotland are embracing onshore wind whereas a number of communities in this country—I am sure my noble friend Lord Reay’s community is one of them—do not want to embrace it. The reality is that the Government have a target. Two-thirds of that target for onshore wind is either met or is in the process of being met so there is a very limited amount of headroom. Our real push is to get offshore wind up to the target we wish to achieve.