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Lord Williams of Elvel: I thank the noble Viscount for giving way. The Government make many statements about the future legislative programme. Some Bills arrive on the statute book, some arrive before your Lordships and some do not. It is not until a Bill is produced by the Government, who have made a raft of promises about legislation, that we can actually concentrate on it.

Viscount Ullswater: My Lords, the noble Lord tries to justify his position but I do not accept it. There have been plenty of opportunities for raising the issue by Oral or Written Question since the time of my noble friend's Written Answer.

I understand the anxieties of noble Lords opposite about the inclusion of retrospective provisions in the Bill and I gave a full explanation of the reasons for those provisions. We recognise that there is a common law rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used in the statutory provisions. I am advised that that common law rule of construction applies to statutory provisions where the retrospective effect is uncertain.

That is not the situation in respect of Clauses 2 and 4 of the Bill where the retrospective effect is clear and deliberately intended. Here we are merely restoring the local planning authorities and the departments to the position that they had all assumed and acted upon for a long time. In short, we are restoring the validity of payments which authorities made in good faith for each department's services. I remind noble Lords opposite that authorities have already received the benefit of the services of a planning inspector to conduct the inquiries in question.

The noble Lord, Lord Williams, asked whether the Government had received the benefit of an opinion from the Law Officers. Regardless of which government are in office, it is a firm convention that they never disclose publicly whether the advice of the Law Officers has been obtained. That is so that any litigation in a court will not be prejudiced by the knowledge of any such opinion.

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The provisions will also be thoroughly examined by the Delegated Powers Scrutiny Committee of this House. As regards the issue of precedents for retrospective provisions, each case must be considered on its merits. We are concerned here only with the validation of payments which were universally regarded by everyone involved as being lawfully made in respect of development plan inquiries. To that extent, there is no unfairness. Local planning authorities also receive sums in their financial settlements to cover the costs of such inquiries. That is very different from imposing a new and unforeseen burden, involving planning authorities in extra costs without the financial provision to meet them.

Perhaps I may quote a precedent which the noble Lord, Lord Williams, may find intriguing. In the Bates case, Mr. Justice Gatehouse said in relation to Section 132 of the Financial Services Act 1986:


    "To argue that Section 132 of the 1986 Act created a new obligation was, in his Lordship's opinion, not supported by the rationale of the decided cases which the House of Lords made clear in the Boucraa case was founded on the concept of fairness. His Lordship saw nothing unfair in restoring the parties to the contractual position they had both assumed and long acted upon".

As I explained in my opening remarks, the Bill is necessary to remove the present doubt about the basis on which the long-standing charges for planning inspectors' services—and, in Scotland, inquiry reporters' services—to local planning authorities in holding their development plan inquiries are made.

In return for putting these charging arrangements on a proper footing, planning authorities can rightly expect to receive an efficient and effective service. Since its setting-up in April 1992, the Planning Inspectorate Agency has striven to improve the standard of service it provides to all its customers.

The inspectorate intends to offer a "service agreement" between the agency and individual planning authorities which will attempt to specify the level of service they can expect from the inspector appointed to hold their development plan inquiry. Following consultation which is now taking place with the Local Authorities' Associations, the agency will offer this agreement to individual authorities before each inquiry. We believe that this flexible approach is better than the legalistic basis of a contractual arrangement. As a Next Steps agency, the inspectorate intends to account as fully as possible to planning authorities for the charges they will be expected to pay for development plan inquiries if this Bill becomes law. In Scotland, although it is not a Next Steps agency, the Scottish office inquiry reporters' unit will follow the same approach, on which the Convention of Scottish Local Authorities (CoSLA) is being consulted.

The noble Lord, Lord Ewing, asked why it was necessary to introduce the retrospective clause for Scotland. The Bill simply puts the position beyond the doubt of a possible future challenge. There are some occasions when putting Scotland on the same basis as England and Wales is perhaps a wise decision.

The noble Lord, Lord Williams, indicated that somehow the payments which local authorities are expected to make have not been provided for and that if private companies or individuals had asked to reclaim

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the money which they had paid we would not be taking these steps. The payments which authorities have been and will be expected to make are provided for in the overall total of the annual local government finance settlement. Provision has been made for them in the standard spending assessments and that will continue.

Perhaps I may briefly explain to the noble Baroness, Lady Hamwee, that the SSAs are not built up from such small components as the sums which authorities spend annually on development plan inquiries. Planning services for which local authorities are responsible are included in a large group of local authority services categorised as "all other services". This year the total sum is approximately £7,426 million. That compares with approximately £3 million annually for development plan inquiries, or 0.03 per cent. of the total sum. The total amount is reached after taking account of estimated commitments and the scope for economies. In practice, planning authorities know in advance when they will incur expenditure for an inquiry. Therefore, they should be able to make budgetary provision for this commitment, just like any other. In future, improved administrative arrangements between the authorities and the planning inspectorate should remove the difficulties that some authorities have experienced.

The noble Baroness asked about the costs, in particular the overhead costs. For the avoidance of doubt, I wish to clear up any misunderstanding about the reference to subsection (4) of new Section 303A to,


    "the general staff costs and overheads of his department".

This does not mean that the planning inspectorate's charges for inquiries will in future be loaded with an additional component representing the staff costs and overheads of the Department of the Environment's headquarters costs. What it means in practice is that the daily charge for an inspector's services will include a component representing the hypothecated cost to the Planning Inspectorate Agency of the agency's staff and administrative costs of holding development plan inquiries. We believe that that is entirely reasonable. It continues the previous arrangements for including this component in the charges that planning authorities have been paying. It is not a "hidden" extra cost.

The noble Baroness also thought that she had found another hole in the Bill that she would like to have filled in relation to why the Government are not in favour of local planning authorities charging for pre-application discussions. Potential developers may be unfamiliar with the planning process—we accept that—or wish to obtain a local planning authority's initial reaction to the proposal. Therefore, we encourage them to approach planning authorities for informal advice before a planning application is made. That applies in particular to small businesses. Those preliminary discussions may produce a better understanding between authorities and developers. Charging for those discussions may deter applicants from seeking advice and may lead to misconceived applications and an increase in the number of appeals.

I believe that the Government provided a great deal of information in the course of the debates on Clauses 2 and 4 of the Bill in another place. I have given the House a full explanation today and there will be a full

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opportunity to debate the matters during the remaining stages of the Bill, as indicated by the noble Lord, Lord Williams of Elvel. However, I believe that I have answered all the questions which he raised.

Baroness Hamwee: My Lords, before the noble Viscount sits down, perhaps I may take him back to one comment which he made when he talked about the service to be offered by the inspectorate. I do not think that he used the term "service level agreements" but that is what I understood him to be describing. He went on to say that the Government believe that that is better than having a contractual arrangement. I confess to being confused. I had thought that a service level agreement would amount to a contract. Perhaps the noble Viscount will clarify the matter.


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