Lord Jenkin of Roding
Main Page: Lord Jenkin of Roding (Conservative - Life peer)Growth and Infrastructure Bill
Lord Jenkin of Roding Excerpts
Lord Jenkin of Roding
“Planning Act 2008: further reform (examination fees)
In section 4 of the Planning Act 2008 (fees), after subsection (3) insert—“(3A) The regulations may only require the payment of fees in relation to the examination of an application with reference to those days during the examination period when the application was actually examined by the Examining authority.””
Lord Jenkin of Roding
My Lords, this amendment stands in my name and in the name of the noble Lord, Lord Berkeley. We have discussed how to calculate the fees for applications that are submitted to the Planning Inspectorate under the nationally significant procedure. The difference is really very simple. The regulations as they are drafted at the moment appear quite clearly to require that the fees be paid only for the days on which an application is examined. This has been interpreted in practice as every day between the launch of the application and its final decision. These cannot both be right. The question is: which is right?
The trade association took advice from a very prominent Silk in this area, Michael Humphries QC, who is in no doubt whatever. I quote from his opinion:
“It is apparent from the Explanatory Notes, the Explanatory Memorandum and the Guidance … that the government considers the words ‘relevant day’”—
in the regulations—
“to be synonymous with each ‘working day’ of the examination period … In my opinion, however, that interpretation does not accord with the clear statutory language in Regulations 8 and 9, combined with the definition of the Examining authority in Regulation 2 … Regulation 9(3) is explicit: a relevant day is a day during the examination period on which the Examining authority (i.e. the single appointed person or the Panel) ‘examined the application’. In my view that wording does contemplate ‘relevant days’ as being days on which the Examining authority actually examines the application”.
That seems to be perfectly clear. The Government have recognised that, I think, because we were sent yesterday the draft of some regulations which are intended to correct the position. However, what they are doing in the draft that we have seen is making sure that the regulations now comply with what has been done by PINS, charging fees for every single day between the application and its decision, whether or not the planning application was examined on a particular day.
It is rather disgraceful that the authority has been charging fees on a basis which was clearly inconsistent with the wording of the former regulations, but I am not sure that I can be any kinder about a Government who then say, “Well, we’re going to change the regulation so that it fits our misinterpretation”. That is what has been happening and it is rather unfortunate. The fees can be quite substantial. If you are going to charge fees for an application—I do not quarrel that applicants should pay the cost, or most of the cost, of the process of examining—it should be done consistently and fairly. It is not right to charge by the day or for a day on which their application is not considered.
I have a list of some of the fees that have been charged. I shall not read them all out. The daily rates run between £4,080 a day—for the Hinkley Point reactor, where there are a lot of applicants—to £1,230 a day for projects where there are single applicants. Where there are three inspectors, the rate is £2,680 a day. That runs for five days a week. It does not include the weekends or public holidays but they can amount to very substantial sums. The lists that I have run between £33,000 and £34,000 for the application. It is important to get it right but it must also be fair. I do not think the new draft regulation is fair and I hope the Government will take it back and think again. I beg to move.
Lord Jenkin of Roding
My Lords, I am grateful to my noble friend for that careful explanation. I should say that when I was quoting the figures for the totals, they were of course the overcharge on certain assumptions about how many days the inspectors had worked and the number on which they did not. It still amounts to a very large sum. I think the noble Lord, Lord Adonis, said that it came to more than £460,000 in the calculation that we have been shown. I totally support the noble Lord’s view that it is necessary to have a realistic way of charging that recovers the costs of each application. That seems right to me. I, too, will look forward to getting the letter that my noble friend is going to send to the noble Lord, Lord Adonis. We may not have to return to this on Third Reading, but we will no doubt want to debate the order when it is finally laid and comes before the House. In the mean time, I beg leave to withdraw my amendment.
Lord Jenkin of Roding
“(4A) In relation to development in the City of London which is or forms part of a business or commercial project (or proposed project) of a description prescribed under subsection (2)(a)(ii), the Secretary of State may only give a direction under subsection (1) if an application for planning permission for the development would, in the opinion of the Secretary of State, fall to be treated as an application of potential strategic importance for the purposes of section 2A of the Town and Country Planning Act 1990.”
Lord Jenkin of Roding
My Lords, I beg to move the amendment standing in my name on the Marshalled List, and I will just interpose a word about the speech that we have just heard from the noble Lord, Lord Adonis—which was made, of course, by the former director of the Institute for Government. I understand what he said, because there is a great deal of dissatisfaction about the way that we make laws in this country, and there needs to be a very thorough examination of it. However, that is not what I am on about here.
I am grateful to my noble friend’s department, which suggested that I group these two amendments together, which I was very glad to do. Their common thread is of course that they have both been suggested to me by the City of London. The first, Amendment 48ZE, revisits a matter which I raised in Committee in relation to development in Greater London and concerns the relationship of the thresholds as to what would be regarded as nationally significant and what, for the purposes of Greater London, are to be regarded as regionally significant. It really is quite absurd that those two numbers should, in a sense, be almost the wrong way round, with a higher figure for London and a lower figure for the national significance. This applies in relation to the whole of Greater London but is of considerable practical significance to the City of London, because the higher threshold, which is provided by the Town And Country Planning (Mayor of London) Order 2008, for the mayor to intervene in the City is much higher than is required for the rest of London—40,000 square feet of floor space for London generally, but 100,000 square feet in the case of the City. I think that everybody can understand why that should be different and why the City should have a much higher figure, as it is an almost exclusively commercial area with a very small residential development. I went into some detail on that in Committee. I think it will be fairly evident to everyone that the sheer volume of the commercial development in London is quite exceptional and will continue to be so in coming years.
The amendment that I am putting forward reflects the idea that, whereas in Greater London as a whole thresholds are already laid down to identify those cases where commercial development might require a wider look than is taken by the local authority alone, these thresholds should not be undermined by the new procedure for nationally significant development. I suggest that it would make little sense—this is the point I made in Committee—to treat a development as nationally significant when it is too small to be treated as strategically important at the regional level.
When my noble friend answered the debate in Committee he made the point that the threshold is only intended as a minimum. I understand that: not every development above the threshold would necessarily be accepted as being nationally significant. The same of course is also true of the threshold laid down for the Mayor of London’s power of intervention—it is only a minimum level, above which the mayor may or may not decide that the application has potentially significant importance. In both cases, the purpose of setting a threshold appears to be the same: to make clear to the developers and local planning authorities alike that applications for planning permission will be dealt with in the ordinary way by the local planning authority in all but a few exceptional cases. To invoke parallel procedures in respect of tasks that are within the local planning authority’s normal sphere of experience and expertise would risk introducing unhelpful uncertainty into the system. That is the basis on which this amendment is being moved.
It seems difficult to justify a significant discrepancy between the two thresholds as is set to occur in the City of London. When my noble friend answered the debate, he agreed that it was hard to envisage. He said—I quote from Hansard—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”.—[Official Report, 4/2/13; col. 97.]
That really makes the case. That is exactly the principle that my amendment would seek to establish. I therefore suggest that it would be a simple and convenient way of ensuring consistency between the two regimes. Of course, I am quite ready to listen to what my noble friend on the Front Bench has to say. However, the important point is that it should be quite clear that the new regime should not interfere with the ordinary routine activities of local planning authorities, even in unusual areas such as the City. I hope that my noble friend will be able to see the sense of this, and if he cannot accept this amendment, perhaps he could bring back his own amendment at a later stage.
The other amendment is on quite a different subject that was also raised with me by the City. This is amendment 50A. It is intended to remove what is undoubtedly an uncertainty within the City of London about the setting up of business improvement districts. This depends upon the regulations, and the regulations need some clarification. Business improvement districts are usually described by the acronym BIDs and would normally be set up by companies, industrial companies, or the Government introduced a provision whereby they could be set up by local authorities. The detailed procedures for setting them up are contained in regulations made under the Local Government Act 2003.
Some noble Lords may recollect that I introduced an earlier Bill for the setting up of BIDs and took it all the way through this House, but it never made any progress at the other end of the corridor. However, I have a sort of paternal interest in BIDs. It is where bodies come together with a view to supplementing local services by having a ballot. If the ballot has a majority on getting business rate payers to pay a supplement on top, it serves to be able to finance those extra services. They have proved popular and they are widely used now all over the country. There has to be a majority of at least half of the total rateable value of the premises within the area. If that is met, then a BID can come into being and all businesses are obliged to make a contribution to the cost of the additional facilities.
The BIDs model is now an established mechanism for business engagement. However, the company is not the only way; as I said earlier, they can be introduced by a local authority. This is where the difficulty arises in relation to the City of London. It is maybe a more convenient model. The obvious case where a BID might be operated is in the City because the City of London Corporation already operates under a largely business franchise. The great problem arises over whether its regulations actually recognise this. One could have a sort of philosophical discussion as to whether an authority could give a direction to itself, which would be implied by the regulation if it is not amended in the way that I am suggesting. If there is a company set up for the purpose then it can ask the local authority to do certain things. However, if the local authority itself is going to do it, then the regulations ought to provide that that is possible, in a sense by giving directions to itself.
Given that the bid involves a payment of a levy by businesses as a result of a majority vote, and there will always be some businesses that may have voted against it, it is important to see that the procedure cannot be challenged in the courts. I understand that the City of London Corporation has already brought this difficulty to the attention of the department, and that the department acknowledged the difficulty. However, the Bill seems to provide an opportunity for clarification, which perhaps the Minister will be able to offer in his reply. Perhaps he could also indicate if there could be an amendment of the regulations fairly soon.
The City is anxious to get ahead with this and the regulations need to make it possible and ensure that it would be beyond challenge. I hope that my noble friend will be able to reply accordingly.
Lord Ahmad of Wimbledon
My Lords, I am grateful to my noble friend for tabling these amendments and giving me the opportunity to set out the Government’s position.
Turning first to Amendment 48ZE, I have noted my noble friend’s comments, both here and in Committee, and share his opinion on the unique role of the City of London. As I said in Committee, I know the City of London well. It is a world-leading financial and business centre, as we all know, and central to the health of our nation’s economy. It plays a key role in promoting growth and, as my noble friend has said, faces particular challenges in delivering new development in a complex, densely developed, urban and historic environment—challenges that it meets with admirable results, as I am sure all noble Lords would agree.
In bringing forward our proposals to enable business and commercial schemes to benefit from the nationally significant infrastructure regime, we have sought to strike a careful balance between the need to respect existing procedures within the planning system—where these work effectively—alongside developing a simple and consistent approach for dealing with development which is potentially nationally significant.
In seeking to strike that balance, we have considered the particular circumstances of London and, of course, the planning roles of the mayor, the City and other local planning authorities in London. That is why we have included a provision requiring the mayor’s consent before a direction is issued that a project in Greater London can be considered through the infrastructure planning regime. If the mayor does not think a project should be directed into the regime, the application will be dealt with under normal Town and Country Planning Act procedures.
I know that officials have met with the City of London and I have already alluded to local planning authorities in London, and the views of the Corporation of London are recognised within that. As representations are made, certainly with the Mayor of London as well, those representations would be given due consideration.
Among other respondents, the City of London has also raised detailed comments on the thresholds proposed in the consultation paper, as my noble friend mentioned. We are currently considering the responses that we have received, including those from the City of London. I reinforce the point that I set out in Committee, as my noble friend noted, that the thresholds set out in the consultation document were not intended by themselves to signify whether a project was, or was not, of national significance. The thresholds were intended to be a gateway to the Secretary of State’s direction process. On any request for a direction, the Secretary of State would have to consider the details and circumstances of the particular project. With this in mind, and in light of the existing requirement in the legislation for the Mayor of London’s consent to be obtained for London projects, we do not consider that at this stage it is desirable to add to the primary legislation as envisaged by this amendment.
A further qualification in the Bill would add unnecessary complexity, which runs counter to our objective of simplifying and streamlining procedure. We will also be prescribing the types of development in regulations, which will of course be subject to the affirmative procedure. Your Lordships will therefore have another opportunity to consider the types of development, in London and elsewhere, that might be directed into the infrastructure planning regime.
Turning now to my noble friend’s amendment on business improvement districts, it may help if I briefly say a few words about how business improvement districts operate. A business improvement district is a defined geographical area within which the businesses agree to pay a levy that is used to enhance the local trading environment. More than 100 such schemes have been introduced in England in the past decade and the Government consider business improvement districts to be an important tool in the current economic climate for promoting the localism agenda and local growth. The importance of business improvement districts was recognised in both the Portas review itself and the Government’s response to it.
Lord Jenkin of Roding
My Lords, I am grateful for the trouble that my noble friend has taken in responding to these two points. On the first one, I recognise that this is very much a matter for regulations and I am grateful for his understanding of the position that the City has found itself in. On the second point, I shall be glad to take him up on his offer of a meeting. Perhaps I will be able to bring one or two of the experts from the City with me because I would not trust myself to deal with the technicalities by myself. Having said that, I beg leave to withdraw the amendment.