[Sir John Butterfill in the Chair]

The Committee deliberated in private.

On resuming—

Robert Upton: This is Mr. Rynd Smith, who is the head of policy at the Institute.

Robert Upton: If it would suit, I would be happy to make a very short opening statement.

Robert Upton: Our thanks to the Committee for the invitation to give oral evidence. I should explain that the Royal Town Planning Institute exists to advance the art and science of planning and that is, among other things, to promote good practice in planning and to contribute to the formulation of policy and legislation. We have been actively involved in discussing proposals for planning reform over quite a few years now and we are broadly supportive of the proposals in the Bill, but we have two major concerns, which I would like to flag up at the beginning.

The first relates to the national policy statements and their role in the new procedure that is proposed. As we see it, the whole system proposed for development consents for major infrastructure projects depends entirely on the adequacy of those national policy statements. In our view, there are four tests that must be met there: clarity; consistency with each other; credibility in terms of the evidence base in the consultation; and the extent to which they manage to be location specific, that is, that they give a sufficiently clear indication of what is required so that impacts can reasonably be assessed. We think that it is essential that the Infrastructure Planning Commission should be required to make an annual report to Parliament on the adequacy of the statements with which it is working, to give a suitable degree of parliamentary scrutiny.

Our second major concern of principle relates to the provision under the Town and Country Planning Act  1990 for local member review bodies, which we see as a major breach of the 1947 settlement, which separated the decision-taking from the appeal process.

Q 8181

Robert Upton: Yes I was.

Robert Upton: Yes. We support the idea of the CIL.

Q 82

Robert Upton: Of course, what it gives is powers to the Secretary of State to introduce a scheme and the details have yet to be seen.

Q 83

Robert Upton: I think that I would want to know the Secretary of State’s intentions in terms of whether the entire capture from a local plan-based tariff was to be kept locally or whether there might be provision for some of it to be transferred for regional or sub-regional infrastructure because I think that that is a question that attracts a lot of interest. I think I would want to know how the money was going to be banked—

Robert Upton: Yes.

Robert Upton: In other words, the arrangements by which the money would be disbursed. I think that I would want to know how this would be seen as affecting the process of approving the plan—the local development framework—because it becomes a very important part of the local development framework and the extent to which that is sound and robust.

Q 84

Robert Upton: Yes, that is an important area to work through. My presumption at this stage, which has to come out of the detail, is that section 106 requirements will be reduced to very site-specific issues.

Q 85

Robert Upton: As locationally specific as possible.

Q 86

Robert Upton: I think that the national policy statement states an intention. We think that that intention should be as specific as possible, so that there can be the most adequate consultation, but I do not think that it amounts to a planning consent. There are questions around what the IPC should be able to consider in seeking to determine whether a development consent should be given. Should it be restricted simply to the national policy statement or should it be in general accordance with the national policy statement? To what extent should the IPC have regard to all other national policy statements, to planning policy statements and to local development frameworks?

Q 87

Robert Upton: There are two elements to that. First, we broadly support the idea of the IPC taking an inquisitorial approach. We think that that is right for the management of the process. We think that it is important that the IPC should be required to hear anybody and everybody who can demonstrate an interest.

Although I said that there were two elements to this, if I can have a third, there is also an interesting question about the extent to which bodies such as Planning Aid, for which we are responsible, can help communities to take effective part in the process.

Q 88

Robert Upton: We feel that some of the wording might be tweaked to make it clearer that there is an absolute right to be heard if you are affected.

Q 89

Robert Upton: In relation to the national policy statements?

Robert Upton: Well, it is tight, but it is very specific. It gives a clear indication of how a challenge must be made. It is probably sufficient for those who know that they are aggrieved to see whether they can take up that option.

Q 90

Robert Upton: Again, I would hope that if, for example, we are able to support those who are less well versed through the operation of planning aid, we would be able to flag up to them their options and the time scale in which they need to exercise them.

Q 91

Robert Upton: I accept that it is a matter of judgment, and I can see the intellectual case for sticking with an adversarial approach, but the danger is that adversarial approaches become unmanageable in the end—the process of inquiry loses its focus and sense of purpose. It is important that developers, when putting forward proposals, should be required to give as much detail as possible, and that those who have concerns should be able to express them clearly.

Q 92

Robert Upton: I think that they should give as much detail as they possibly can. To make a more general point, it is one thing to look at it in terms of processes, but the real issue as I see it is not a particular process; it is the requirement to develop much more transparency and clarity about our purposes in seeking to provide infrastructure of one sort or another and to enable a proper public debate about it. That is the real step forward that the Bill seeks to achieve.

Q 93

Robert Upton: Yes, I think that they should be prepared to do all those things. Obviously, it depends to some extent on the nature of the application, but they should meet local authorities and be prepared to hold public meetings and put out information. When it comes time for them to put in the final proposal, they should be prepared to include a statement of the mitigation proposals that have arisen from their consultations and discussions.

Q 94

Robert Upton: May I first say that it is not the case that they have been generally welcomed? As I understand it, that provision is the one in the Bill that has attracted the most hostility—87 per cent. of consultation responses have been opposed to it. The first point is one of principle and goes back to what I called the 1947 settlement, under which it was accepted that in return for having their rights over land possibly curtailed, people should have a right of appeal to a body other than the body that took the original decision. That principle has worked extremely well over the years, and I cannot see any evidence to show why it should change now.

There are two main parts to clause 150, which brings this measure in: the first is the ability of the Secretary of State to designate what should go to elected member review bodies, and the second is his or her ability to specify what decisions might be taken under delegated powers by officers. That is a good thing, which may well increase the speed and efficiency of the process in the case of some less efficient local authorities or local planning authorities, but the concomitant of that is that the public require the reassurance that their appeal will not be heard—as Mr. Curry says, I had the honour to be the chief executive of a very good local authority, but even in very good local authorities, there are dynamics that would reduce the public perception of the safety of the system.

Q 95

Robert Upton: I have seen it suggested that there might be joint bodies, although I cannot remember where I saw that suggestion. The answer to that question is, “But why? What are we achieving?”

Q 96

Robert Upton: I do not think that there is an issue of democracy here; we are talking about a quasi-judicial process. What the public want in those circumstances is the certainty that their appeal is being considered by somebody who is very competent, very independent and very much to be trusted.

Q 97

Robert Upton: You are talking about an appellate process. I think that local authorities absolutely should be charged as far as possible with responsibility for local development decisions.

Q 98

Robert Upton: You mean in relation to major infrastructure projects?

Q 99

Robert Upton: I think that that is perhaps a question that you might address more fruitfully to Ministers than to me, because I have very limited influence here. However, as I understand it, the Government’s concern is to achieve not only a body that is seen as entirely free standing and which has a range of expertise, some of which may well come from the ranks of the inspectorate, which has a great deal of expertise to offer, but a body that is seen as being focused on all the major infrastructure decisions, as opposed to the vast generality of cases, which run very effectively through the planning inspectorate. That is the distinction. However, you should perhaps put that more firmly to the Secretary of State.

There is one other point that I would like to make on behalf of the institute. I would like to emphasise the significance of the national planning statements, rather than the mechanism by which the development consents are decided downstream. What gives us the chance to move forward in a big way is the requirement that there should be clarity and transparency about  what is proposed and that the community, including the business community, has the chance to be engaged in it. That is potentially very important.

Q 100

Robert Upton: First, I think that national policy statements will vary quite considerably in kind. When it comes to discussions about airports, it is quite hard to imagine hypothetical airports. We by and large know where they are or where they might be. When you are talking about wind farms, I think that it is unreasonable to expect the national policy statement to say exactly where 150 wind farms in East Anglia will or will not go; that just will not happen. There is a big difference, but to the extent that national policy statements are more locationally specific and should be more locationally specific, the consultation on those national policy statements should indeed engage with the communities concerned.

Q 101

Robert Upton: Yes.

Q 102

Robert Upton: Not by cross-examination; through an inquisitorial system led by the commission.

Q 103

Robert Upton: It is fair to say that we are concerned about some possible implications of that, because it is not clear to us what national policy statements might then emerge that are perhaps less robust and less well evidenced than things that we would hope to see downstream. I suppose that there is always the risk that grandfathering in some policy statements that are needed, as the Government see it, urgently might prejudice the operation of the system. That is why at one stage we considered recommending that all national policy statements should be subject to some form of parliamentary scrutiny.

Q 104

Robert Upton: You mean in relation to the categories and thresholds?

Robert Upton: I think that others are more expert than we are. We have heard some doubts expressed about the thresholds being either too high or too low, but in terms of the basic coverage, it looks okay and there is the provision to extend them if that is required.

Q 105

Robert Upton: To be honest, I have not developed that point.

Q 106

Robert Upton: I am sorry. I am slightly deaf and I possibly have not followed you.

Q 107

Robert Upton: In terms of those who are managing the application, the issue of ownership should not be relevant, but obviously in terms of how it affects the communities concerned and their response to it, it may just be relevant. I do not think that it should be given any special relevance—or any relevance at all, really—in terms of the process.

Q 108

Robert Upton: I wonder whether that is the only distinction between the two cases.

Robert Upton: Well, in the context of a national policy statement on wind farms, I would expect that to take no cognisance of whom the applicant is. I think at that level, this has to be the case.

Q 109

Robert Upton: My colleague, Rynd Smith, is trying to put me right here. It is very hard to say whether it would count as a material consideration, in terms of how it was put forward.

Q 110

Robert Upton: I think that all local planning authorities should press on with their local development frameworks as fast as they possibly can and review them as they need to. The introduction of a community infrastructure levy will potentially have a very powerful effect on what constitutes a sound local development framework—in other words, what it is then within the ability of that local authority or planning authority to achieve for its community. I would not want them to stop. I think they should get on with it now.

Q 111

Robert Upton: Again, without wanting to duck the question, I think this is something which needs to be discussed. I am not clear at present where the Department  for Communities and Local Government wants to go on this. If one had the situation in which, for example, a regional or sub-regional strategy made development contingent upon certain infrastructure provision, then it would be almost perverse to rule out of a plan-based tariff the possibility of some contribution to that. I think the requirement is still that the vast majority of this money should be used in the area in which it is generated. I think there also has to be recognition that some areas will by definition do better than others out of this in terms of their potential, so it should not be interpreted as the chance to cut off all other forms of funding for infrastructure.

Q 112

Robert Upton: That should be a possibility, but there are other, more mundane possibilities such as a light rail system, guided busway or something else that is deemed to produce an environmental effect across a sub-region.

Q 113

Robert Upton: That is exactly the sort of issue that should be thrashed out by local communities in debating the proposals in the local development framework and the application of community infrastructure living.

Q 114

Robert Upton: It is an issue of degree and judgment. If the case can be made to the people of Skipton that they will be beneficiaries, they might agree to that and want to see it. Otherwise, they might object to it being part of the local development framework.

Q 115

Robert Upton: That they should provide in their programme of hearings the opportunity for that person or community or group to appear, so that whatever they have to say can be incorporated into the commission’s processes.

Q 116

Robert Upton: There is certainly an issue there, but the commission will have to decide such questions as it establishes itself. It will have to decide whether 9,000 carbon-copy objections—objections all in the same wording—constitute 9,000 different objections or just one.

Q 117

Robert Upton: There is no magic solution that will produce consensus around what are inherently controversial and contentious issues over which reasonable people having different values can disagree. We should not pretend otherwise. I think that all that one can reasonably aspire to do is to create a system and process that recognises that, does not try to sweep it all under the carpet and allows everyone to have their day—or at least part of a day—in court.

Q 118

Robert Upton: I do not feel that I, any more than you, have been given enough detail about the proposals to be able to answer that with any strong sense of being  right about it. If we have what I would crudely call a plan-based tariff that seeks to deal with the bigger district or multi-district-wide issues of infrastructure and meet the needs and aspirations of communities, I would hope that that would make it possible for section 106 requirements to come down to very site-specific issues of what is required to ameliorate the immediate impact of the development or fit it into the local infrastructure.

Q 119

Robert Upton: I think that that is something that should be explored.

Q 120

Robert Upton: With respect, the members of my institution have many skills covering a wide range of issues and are not limited to the ones that you set out, and there are certainly some who would be very competent at looking them. The point, however, is that clause 163(2) refers to the increase in the value due to the permission for development, and we are not convinced that that is necessary or is an issue of value. We think that it is theoretically possible that someone might wish to carry out a form of development that was perceived to reduce the value of the land, but in doing so might raise an infrastructure requirement, and we do not see why they should not contribute to that.

Q 121

Robert Upton: You will have the privilege of seeing my good friends Katrine Sporle and Leonora Rozee from the Planning Inspectorate later, so I will let you put that question to them.

Robert Upton: In relation to the IPC, there is a very large task for it to do when it is established, whoever makes it up. These issues of procedures are not trivial at all. I am sorry, but I keep coming back to the same point—that process is hugely important but more important still is clarity and transparency about what we, as a community, are trying to achieve in terms of infrastructure, because everything flows from that.

Q 122

Robert Upton: I accept that that is very difficult. I also accept that there is no planning issue of any significance in the world which ends up with all parties being satisfied. As I think I said in answer to Mrs. Lait, there is a judgment to be made here, but by and large our view is that the inquisitorial system is more likely to achieve the necessary outcome than the adversarial system.

Q 123

Robert Upton: And in 90 other countries.

Q 124

Robert Upton: Our perception is that it is a bigger issue in Wales than it is in Scotland, because there seems to be a clearer disjunction with the operation of devolution in Scotland. In Wales it would have significant implications for generating stations, both onshore and offshore, and in so far as it is tied to the totality of the development consent and then relates to the infrastructure onshore, in the worst case it could take quite a bite out of devolved powers in Wales. I think our colleagues are anxious that there should be a discussion at some stage between the appropriate parts of Government about what should be transferred.

Q 125

Robert Upton: I think that the point is that the process of devolution in relation to planning matters goes further in Scotland than it does in Wales. That does not make the issues any less; it just makes them different. In terms of issues such as energy and other things like that, there will need to be as much agreement as possible between the Administrations in England and in Wales about what the future policy is going to be, which means discussion. That cannot be legislated for; it just has to happen.

Q 126

Robert Upton: I do not think that any legislative process can resolve that problem; it comes back to the need for discussion between the Administrations concerned.

Sir Simon Milton: Certainly. I am accompanied by Graham Jones, who represents the Planning Officers Society.

Sir Simon Milton: A very brief one, Sir John.

Local government view planning as a key strategic function. It is the thing that enables us to help to develop prosperous mixed and well-planned communities and to do so with community consent. Therefore anything that takes away that operation should be done very carefully and on a very limited basis. We are persuaded that there is a case for handling very large projects through a different procedure, but with two safeguards. First, the definition of such projects should be drawn very tightly. Secondly, there should be a clear method for local views to be heard and paid attention to through the new process, given that the normal mechanisms of lobbying the local planning authority will not be available.

Q 127

Sir Simon Milton: The whole process starts with having a valid local development framework. There have been a number of difficulties for councils getting their LDFs through. One of the things we have lobbied the Government about is simplifying the process. Part of the Bill seeks to tackle that. Through that process you should as a local area be able to come up with an agreed vision of the community infrastructure needs. That will vary from area to area. We are keen that there should be maximum flexibility for councils and communities to define their infrastructure needs. It might be crèches, cycle paths or combined heat and power plants. We should not be prescriptive in the Bill or in guidance as to what that should be. That requirement should then be partly funded through this levy. That is how it should work. Yes, I believe that councils have the capacity to come up with an agreed statement of needs for their local community. That is at the heart of what councils can and should be able to do.

On the second point of your question and whether we see some kind of competition between authorities, the development decision to invest in an area and to seek to develop to build is subject to a whole range of economic and market factors. It could be that in time the demands of a community levy would become a material factor, but I doubt whether it would become such a factor as to outweigh all of the other things such as land values, complexity of development and the reputation of the planning authority as to have a significant and material impact.

Q 128

Sir Simon Milton: That certainly would follow logically from communities being able to define their needs. If their proposed tariff were set too high, it could discourage development, but that is the case with any planning policy that you put in place. If you make it too onerous to comply with, you will deter development after a certain point.

Q 129

Sir Simon Milton: I heard the tail end of the last sitting, so I heard your Craven example. Councils are coming together now in sub-regional partnerships. They are coming together in multi-area agreements and through those are defining what kind of infrastructure  is needed for their areas, particularly to do with transport, but also on skills development, economic development and housing. I think that it is entirely reasonable that councils that have come together in that way can agree among themselves to devote a small portion of the levy towards meeting those wider sub-regional needs.

Q 130

Sir Simon Milton: It does, but that is the direction that we are going in. The Government are talking about devolving significant decision making and budgets to those clusters of councils that voluntarily come together to promote prosperity in their sub-region, and we hope that they will do so.

Q 131

Sir Simon Milton: This goes to the point that I made in my introductory statement about ensuring that there are safeguards to ensure that local views are heard in the new process. The LGA believes that there are one or two mechanisms that would help that could be introduced by amending the Bill. First, on the national policy statement, the Secretary of State should be required to commission and pay for a statement of local community impact, particularly when it comes to allocating a project to a different part of the country. That would be one safeguard. Secondly, when you have a scheme that is going through the commission, the commission should be required to pay for a statement of local views and impact. That would allow the local authority to pull together local opinion and local consultation and present it to the commission. There should be a requirement for those views to be taken into account through the probing and questioning that the commission undertakes on the specific application.

Q 132

Sir Simon Milton: We know that the Government wish to get away from the sort of cross-examination that goes on where everyone has their QC. That is where all of the costs come in and I think that the direction is to get away from that. Nevertheless, it is important and necessary that the views that are expressed are tested properly in the hearing. I am sure that a commission, if it was adequately resourced and had the capacity, could undertake that role. We would be very keen to ensure that the issues thrown up by the statement of community impact were tested in that forum. That is extremely important.

Q 133

Sir Simon Milton: I do not believe that it should be detailed, because then you create a straitjacket that is too prescriptive. I think these things are best handled by negotiation. Yes, that sometimes takes slightly longer, but it is likely to lead to a better outcome. The LGA would be opposed to having percentage thresholds, with so much going to the sub-region and so much staying locally. I think it has got to be done through negotiation with the affected councils and through their LDF process, which is necessarily consultative.

Q 134

Sir Simon Milton: I did not hear the RTPI evidence, but I know that it is hostile to politicians getting involved in planning matters. Local member review boards are the right mechanism. It is ridiculous to assume that councillors are qualified to take decisions on very complex major developments but not competent to take decisions on minor planning matters that had been delegated to officers on which there is an appeal. So there is no issue there about the skills or capacity of elected councillors to do the job.

I do not accept that councils would automatically rubber-stamp the decisions that had been taken by officers. That is not the experience of how planning committees work. Councillors operate pretty independently. I think that they would be quite capable of assessing the evidence that was put before them by the appellant and of taking a de novo decision on whether the right initial decision had been taken. That has more legitimacy than having a planning inspector from Bristol come in and seek to take a decision without any real knowledge of local context.

Q 135

Sir Simon Milton: In a year, it would be single figures. At the moment, the schedule that I have seen suggests that there could be as many as 40-plus, which seems to me to fail the test that I mentioned at the  beginning: we must be strict in departing from the principle of locally determined planning matters. There are things in the schedule that, to my mind, fail to meet that test.

Q 136

Sir Simon Milton: If I can be more precise, the definition of “nationally significant infrastructure projects” does not have our support at the moment. That is different from saying that we do not support the Bill.

Q 137

Sir Simon Milton: Yes, I think that we do. We believe that it should be confined to matters of national economic or security importance. For example, the largest category that would come before the commission is Highways Act trunk road schemes. If you were building a trunk road to link a new port, it would clearly be part of that application, but trunk roads per se are not matters of national economic importance; they are quite suitable for being determined by local planning authorities. It is a nonsense, in our view, that they should fall within the remit of the new national commission.

Q 138

Sir Simon Milton: We would not necessarily favour that mechanism, but a mechanism is needed to prevent mission creep. There should be a requirement to come back to Parliament to change the definition in future.

Q 139

Sir Simon Milton: Yes. By their nature, we are talking about very large complex projects, which are likely to carry with them all sorts of specific conditions for permission being granted. There then comes the question of who will police those conditions.

The Government do not want there to be a residual involvement by the commission in monitoring every single application that goes through, and I think that they are right; so it will fall to local authorities to monitor the implementation of the new schemes. That carries with it a burden for investigation and, where necessary, taking enforcement action. It will have a significant cost requirement and we are saying that local government should be covered for those costs.

Q 140

Sir Simon Milton: If planning authorities are very small then it might be difficult to have a fresh pair of eyes to look at it professionally, in which case authorities could work together in clusters so that you could draw on the professional expertise of other authorities, but it would need to be managed in an equitable way in terms of cost burdens.

Q 141

Sir Simon Milton: No, provided that the same safeguards that we seek for national policy statements were carried out; namely, that there should be community impact statements, where you designate a particular location.

Q 142

Sir Simon Milton: Yes, of course, as a matter of principle we are, but we accept that there are a small, limited number of schemes where a national mechanism could be useful.

I would urge you to consider whether the commission should include either elected member or officer representation from local government, in addition to the other experts who will be on the commission.

Q 143

Sir Simon Milton: Yes.

Q 144

Sir Simon Milton: Yes.

Q 145

Sir Simon Milton: I do not have the schedule in front of me.

Q 146

Sir Simon Milton: They are for many people undesirable developments to be living next to.

Q 147

Sir Simon Milton: If we want to go back to basics, why is this Bill here in the first place? It is because Government have deemed it necessary to expedite the way in which we handle applications for schemes and projects of this type. We believe that it is justifiable where it is clearly in the national economic or national security interest to have a process that allows that to be expedited and where there are clear limits and clear guidelines.

If you accept that that is the case then you accept that you are going to ultimately disappoint some people who will not like the decisions that are made because they will not like living next to something which is a bad-neighbour use. However, that is the case in any planning system. There is nothing like a controversial planning application to get people turning up to a meeting at the town hall. We know that people can become very exercised. The best that you can offer as a planning authority, whether you are a council or the national commission, is that people have the opportunity to make their points and that they will be taken into account in making the final decision, whether you like that final decision or not.

Q 148

Sir Simon Milton: Absolutely. I think it would be a mistake if this was viewed as a cost-saving measure. If this is done properly, there will be costs that will need to be borne by the applicant.

Q 149

Graham Jones: I would agree with that and I would go further. One of the fundamentally important aspects of this legislation and the procedures attached to it is that it is an opportunity to limit or rather to define the areas for consideration at the outset, before the process starts. Going back to what we were discussing earlier, the opportunity to have a similar sort of process to that which we have in appeals, where the local authority and the applicant can agree on what  they agree on and therefore decide what they disagree on, before the commission undertakes its process, is one which should not be missed. That is one way in which the time scales and the areas of concern can be strictly limited. That is in everybody’s favour, if one puts it alongside an inquisitorial rather than an adversarial process.

Q 150

Graham Jones: I think that that is the point—it must be kept within bounds and it must be germane; those areas of evidence must be clearly defined and set before the process starts.

Sir Simon Milton: May I add to that, Sir John? Clearly, looking at the genesis of this, we are trying to get away from people misusing and abusing the process by prolonging it through quite ridiculous cross-examination in order to frustrate the development.

Q 151

Sir Simon Milton: Yes.

Q 152

Sir Simon Milton: The references to community infrastructure levy in the Bill are pretty sketchy because they are to be expanded through secondary legislation, guidance and various other things. It is therefore not very clear at the moment, and we are seeking to put down markers as the Bill progresses. The intention always was that it should be developed as the Bill progresses, so that we can ensure that those things happen—in other words, that councils are at the centre of determining what the needs are, and that there is flexibility and so on.

The scenario that I favour is one where the councils, through their LDFs, come up with a statement of need. A range of other interested parties will feed into that  process to ensure that the LDF takes account of their needs, and passenger transport authorities would be one of those. I see them feeding in through the LDF.

Q 153

Sir Simon Milton: The reason why LDFs have become so log-jammed is interesting. Depending on who you speak to, you could apportion blame in various ways. However, I think that everyone agrees that the process is far too complex at the moment. One of the things that it completely fails to do, in my view, is to engage the public, yet that is so critical to communities. However, it is a very technical subject. I looked at the consultation being put out by my authority for our LDF, and the truth of the matter is that nobody other than highly trained experts would be capable of responding to it. It is not because we are particularly jargon-prone—no more so than any other council. It is because the requirements set out in the legislation are so demanding and complicated. By simplifying that, we will start to make progress.

I had a meeting, on behalf of the LGA, with the housing and planning Minister at which we agreed to conduct a no-blame review as to why it was that of 40-odd LDFs that had been presented, only nine got through the process. The others had been either rejected or withdrawn. There is a variety of reasons, but it is clear that unless we get that process working smoothly, the whole of the rest of the planning system will fall, because everything is founded on that.

Q 154

Sir Simon Milton: Yes, we are.

Q 155

Sir Simon Milton: There is nothing specific in the Bill that would do that. It is, however, the case that the more onerous you make development, the less development occurs. I have a—I keep saying “I”; I hope that I am speaking for the LGA when I say that we are looking to the planning system to deliver more and more social benefits, and quite properly, possibly, social benefits from affordable housing to sustainability. The latest iteration is national security. The more you require the planning system to deliver, the more complex you make it and the slower development then becomes. You also risk choking off some development. There is nothing specific in the Bill that would threaten the ability to deliver affordable  housing, other than if we end up making the whole planning system too complex, too costly and too onerous.

Q 156

Sir Simon Milton: Yes. As with all these things, you have to pitch it in a way that optimises the amount of development you get. At the moment we debate endlessly what is the right target for affordable housing to have in your planning policy—what percentage figure. You can take different views on that, but you need a clear understanding of the point at which it becomes uneconomic for a developer. That is about not just the percentage, but the thresholds for when the affordable housing requirement kicks in.

Graham Jones: It is vital that there is local flexibility as far as the CIL is concerned. Otherwise, it could easily become a straitjacket; it could become a disincentive in certain areas. It must be right that the local authority has the flexibility to determine its priorities. If its priority is affordable housing, it should be able to prioritise that against other requirements on a case-by-case basis but within an overall LDF framework.

Q 157

Graham Jones: And quite a few of the housing growth areas are.

Q 158

Sir Simon Milton: No, and some pioneering authorities have done that, but the LGA would say that having statutory underpinning for that would be extremely helpful.

Q 159

Sir Simon Milton: I think that is undesirable, for the reasons that Graham has just given. You have to have local flexibility to make this work. The moment you start trying to devise national tariffs, you end up pinching the shoe somewhere in the country.

Q 160

Sir Simon Milton: Housing is a national priority. Because it is a national priority, there are all sorts of ways in which local authorities are now being monitored to see how they perform against that national priority. I do not think there is a need for an additional form of monitoring.

Q 161

Sir Simon Milton: I believe that wind farms per se are not a matter of national economic significance, but it is a matter of scale. There are quite a few smaller wind farm developments that local authorities should be able to, and should be given the ability to, determine. I accept that very large schemes would tip into the national category, and so I think it is a matter of agreeing a threshold for wind farms, but I do not think that all wind farms, as a matter of course, ought to come under the new national arrangements.

Q 162

Sir Simon Milton: Most of those schemes should be determined by the local authority.

Q 163

Sir Simon Milton: It is about a definition, which would include a scale definition.

Q 164

Sir Simon Milton: Yes.

Q 165

Sir Simon Milton: Perhaps we could write to you with some further thoughts on that and make a further suggestion?

Q 166

Graham Jones: I think this comes back in a way to the criteria for the development that will be going through the commission. If we are looking at a handful of national schemes per year, for those particular schemes it is quite feasible that we could devise a unified consent regime.

It also comes back to the issue we were talking about: how you discharge conditions and enforce them, and make sure that all those things can be dealt with properly at a local level, rather than having to go through another layer of consents, which would be locally based rather than nationally based. I think that if we are looking at a much larger number of developments, involving a different scale of development as well, then the issue of unified consent becomes more difficult, because it is affecting a much broader array of schemes, some of which will, by their very nature, be of much more local interest where those other consents would normally kick in, rather than being of national interest. It comes back to the issue of criteria. If the criteria are right, the unified consent regime could work.

Sitting suspended.

On resuming—

Katrine Sporle: I will just introduce my colleague in a little more detail and tell you that Leonora is deputy chief inspector of the Planning Inspectorate. She is head of profession and has 18 years experience as an inspector. I felt that that might be useful to the Committee as you proceed. I am here specifically to cover work load, resource, and those kind of issues. Leonora is the expert on matters relating to professional issues.

I also want to assist the Committee in clarifying that the Planning Inspectorate is an arm’s length Executive Agency. Our sponsors are the Department for Communities and Local Government and the National Assembly for Wales, and we do work for other Departments. I should be very clear that we are not an independent body. We are there to take decisions on behalf of the appropriate Secretary of State of whichever Department, or in order to recommend to the Secretary of State. So we do all our work on case work within existing policy frameworks. I felt that it might be helpful to set that out.

Katrine Sporle: I need to start by saying again that we are not here to determine policy; we are here to deliver established policy and to look at the evidence that is put before inspectors before coming to a decision, independent of the parties. Everything depends on the quality of the evidence put in front of the inspectors.

Q 167

Katrine Sporle: We are here to ensure that we can deliver Government policy.

Q 168

Katrine Sporle: I suspect not. We are very clear that we have worked right the way through the passage of the White Paper and the Bill in partnership with the Department for Communities and Local Government to ensure that we can improve the process of appeals and ensure that it is proportionate, cost effective and customer focused. We are not in competition with local authorities or the new IPC. We expect to be able to deliver an improved service at the end of this process.

Q 169

Katrine Sporle: I am going to hand over to my colleague. The thing that we need to be clear about is that the experience of the Planning Inspectorate and the inspectors to date is that we have been able to significantly improve on the processes and that we are able to more proactively manage inquiries. We are able to hear evidence in different ways at different times, as appropriate for the appeal that is being looked at. We have speeded up quite considerably the examinations in  public when it comes to core strategies under the local development framework proposals. The Bill is building on the experiences of inspectors being able to proactively manage in the way that has been discussed.

Q 170

Leonora Rozee: The important thing is to start from first principles. The proposals for the IPC include a wide range of both pre-application and post-application processes. One should not simply restrict oneself to looking at the inquiry. The expertise of the Planning Inspectorate has been in managing major inquiries, which is part of that decision-making process. The IPC proposals are a much wider process because they involve some proposals particularly around the application and pre-application process. For example, in response to comments made by Jacqui Lait, if I may refer to that, there is a clause that requires the applicant, under a duty to consult, to carry out consultation processes. One of the things that the commission can do is to give guidance on the extent of the consultation that is required to ensure that you start off by flushing out the issues that will be of concern to local people. This is not an assumption that by consulting you get consensus, but that on the basis of consulting it is clear to the community exactly what is being proposed.

Once the application has been brought to the commission, it has a range of different mechanisms by which that application can then be considered. Early procedural meetings and early discussions with parties to try to flush out what the issues are that need to be tested and explored are very much part of an inquisitorial process. The inquisitorial process does not simply mean the commissioners sitting in a room like this and asking questions of people sitting around the table. It is a much more involved process. It is about how you get to the point of the application and the identification of what the issues may be once it is being examined—flushing them out early and allowing people to exchange views through the early exchange of written representations to draw out the issues. Then the commissioners with their expertise test and explore and, as the Bill allows, offer the opportunity for cross-examination as and when it is necessary and appropriate. All of this is allowed for in the Bill.

Q 171

Leonora Rozee: They are certainly not there to provide a barrier between the decision maker and the constituent. They are designed to avoid the constituent getting to the inquiry process with inadequate knowledge and understanding of what the commission is seeking to do. I had a good example of this in an  inquiry that I held some years ago where there was a great deal of opposition. I held an open-floor session, much as is proposed here, and as a result the local community had a much better understanding of what the proposal was. Had that been done before the application was submitted, many of the fears of that local community would have been addressed through their ability to discuss with the promoters exactly what was proposed. Clearly there still needs to be an opportunity for people to see the decision maker as and when that is necessary, which is provided for through the open-floor session.

In response to your point about the 10,000 people, again our experience is that with careful management you can often narrow that number down to spokespeople who are prepared to come together and agree that out of your 10,000 a smaller number of spokespeople will be putting the points.

Q 172

Katrine Sporle: There are two points that we should be clear about. The first is that lovely phrase used by Sir Simon Milton: “statutory underpinning”. There is a need to ensure that everyone understands the process from the start. While there is discretion to do much of what Leonora has described at the moment, the new Bill provides that statutory underpinning. The other issue is that, as I said at the beginning, the planning inspectorate is there to work on behalf of—and, for transferred appeals, to stand in the shoes of—the Secretary of State. We are not independent decision takers, and the IPC is about decision making independent of Government.

Q 173

Katrine Sporle: The planning inspectorate has evolved procedures over time, and a number of the procedures that we use are more akin to an inquisitorial process, for example, the hearings that we hold. About 19 per cent. of our cases are done by hearing. The examination processes that have been evolved for the development plan—both regional special strategies and development plan documents—are based on an inquisitorial process. The 2005 legislation on town and country planning, which only relates to planning proposals and not to most of the proposals covered by the Bill, is still based primarily on an adversarial process. Stansted G1 was done within the spirit of the 2005 rules, and involved more inquisitorial-type procedures. Planning inspectors certainly have the expertise to operate within an adversarial and, indeed, a more inquisitorial type of process.

Q 174

Katrine Sporle: We have obviously had very wide-ranging discussions. I should correct myself slightly so as to not give the impression that the only distinction is the independence of decision making. The Bill provides also for the development of the planning application in its early stages, which we currently do not do. With DCLG, we have looked at the model that is currently in force at An Bord Pleanala, the Irish equivalent of the planning inspectorate. An Bord Pleanala, however, is already an independent body, and therefore had an extra wing put on to it to deal with this kind of major infrastructure proposal. It was, I suggest, an easier step than putting a wing on to the planning inspectorate.

Q 175

Katrine Sporle: In factual terms, the 2005 rules have not yet been used in full. They will be used for Stansted G2, for which the planning application is currently under development. Stansted G1 was, however, done under the spirit of those rules. It is important to remember that those rules only apply to proposals under town and country planning legislation. They do not apply to the bulk of the proposals in the Bill, because they come under different types of legislation for which such rules do not exist.

Q 176

Leonora Rozee: I am not a lawyer, but I assume so.

Leonora Rozee: In relation to a right of appeal, one would need to go back to the process by which the levy was initially produced, or defined. I am aware that the  precise details of that process and the precise consultation arrangements for identifying what the levy should be are still under discussion.

If you get the right sort of consultation arrangements for the definition of the levy in the first place, the issue of whether that levy is too high should not arise. It may well be much like current policy—for example, with affordable housing—in which one issue can be the viability of the development at a certain level of provision. Sometimes, there is a negotiation between the parties, whether it be the local authority and the developer or, ultimately, through an appeal process, to decide whether there may be an exception to a policy to allow a development to proceed because that development should proceed in the public interest, without necessarily making the contribution that is expected by the policy. I shall put that in simple terms, as it sounded unbelievably complicated. If you have a CIL, the viability of which was prejudiced in a particular development, but there were other public interest reasons why that development should go ahead, one could, conceivably, allow that development as an exception to that policy.

Leonora Rozee: Either on appeal or, hopefully, at the local authority level.

Q 177

Leonora Rozee: I think that the best way to answer that is to say that where there are disputes—it is necessary to hear disputes such as those we hear currently on appeal, which may well affect telecommunications or wind farms—the process must be robust and the evidence that is being examined must be robustly tested. The way to do that is to be inquisitorial if you do not think that all the issues have come to the table, and/or to allow cross-examination and/or to ensure that people can be heard. Whichever is appropriate, it is the process that must allow for robust testing, so that in the event that any party has been economical with the truth or whatever, it can be exposed. That is the purpose of a robust testing of evidence at cross-examination, whether at a hearing, an inquiry or an independent examination.

Q 178

Leonora Rozee: First, I want to refer to the Bill and to the various duties that have been placed on promoters. Under clause 42, headed “Duty to consult local community”, the proponent would first have to identify how it is going to be done, and then do it. Secondly, the commission would have the power to reject an application if it did not consider that the promoter had carried out proper consultation. A further safeguard is the role of the local authority, because it is one of the parties that has to be consulted. The local authority would have a role in representing the views of its community and should draw the commission’s attention to any inadequacies that it became aware in the consultation processes.

There are a number of safeguards built into the Bill that do not currently exist; there are no similar provisions in the planning legislation that relates to duties on the proponents of schemes. There are all sorts of duties on local authorities but those duties are expressly about making sure that the proponents of a scheme do the work that they should do before it ever comes to the commission. There are a lot of safeguards built in there.

Q 179

Katrine Sporle: The very straightforward answer to that last question is no. We are experiencing no inspectors getting on their bikes at all. I repeat what I said to you earlier: we are not in competition with local authorities and we would not be in competition with an independent planning commission. Each of us has different jobs to do. In working in partnership with the Department for Communities and Local Government we have always said that we see ourselves as having a role to play in being able to work with the IPC, particularly on the training and skilling of inspectors, either to provide an inquiry service or to go on to become commissioners in the future. There is no competition between the two bodies.

Q 180

Katrine Sporle: It is certainly the case that we deal with such a wide range of casework, from household extensions right the way through to major inquiries,  that we would be talking about a very small number of existing inspectors who would have the skills, the capacity and the capability and who would desire to become commissioners. But we would be very happy indeed to be the breeding ground for such skills and expertise in the future, as we are now.

Q 181

Katrine Sporle: I am not sure we should comment on that. I think it depends on the size, scale and nature of the schemes that will go to the IPC. That is down to whatever thresholds are determined.

Q 182

Leonora Rozee: I think that there may well be because inspectors are salaried civil servants and the proposed commissioners are not intended to be civil servants.

Q 183

Katrine Sporle: It is perfectly possible for inspectors to sit as a panel. That is currently done for examinations in public, for example, on a regional spatial strategy and, indeed, we will use teams of inspectors for major case work.

Q 184

Leonora Rozee: Which particular provisions are you referring to?

Q 185

Leonora Rozee: The issue is the fundamental distinction between the independent role of the IPC and the non-independent role of the Planning Inspectorate. For the Planning Inspectorate to take on what is proposed in the Bill seems to me to require the Planning Inspectorate to be a different body from that which it is at the moment.

Q 186

Leonora Rozee: It would need to be an independent body, which it is not at the moment.

Q 187

Katrine Sporle: And it would need to have the additional capacity and skills that the Irish system has brought in, in order to deal with the pre-application side of major projects.

Q 188

Leonora Rozee: Absolutely. Certainly the 2005 rules under the Town and Country Planning Act make it clear that there should be appropriate controls exercised over cross-examination. My own view is that the principle of a process that is primarily inquisitorial is the right principle with the appropriate safeguards that are built into the Bill and where, if necessary, questioning by opposing parties is an appropriate process.

It may be useful for the Committee to know that we have now been having discussions for three years or so with the planning Bar about how to make the procedures in both inquiries and examinations in public much more effective without going back into the adversarial processes. Those can be built upon for the IPC, so that you do provide these safeguards.

Q 189