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Baroness Hamwee: We have tabled Amendment No. 126A, which forms part of this group of amendments. It is almost identical to Amendment No. 120 but excludes paragraph (e). On the issue of third party rights of appeal, at an earlier stage the Minister appeared to indicate a good deal of sympathy with the problem. I understood him to say that this was something that had exercised his mind when he was an MP. Perhaps today he can tell us why there should not be a limited right of appeal by third parties. And can he explain to the committee whether there are real objections to the proposal or has the Government decided to put it into the "too difficult" pile?

Perhaps he can also expand, like the Minister in another place, on whether the statement of community involvement, which is part of the new provisions in the creation of the new local development framework—I may be using the wrong terminology here—is adequate protection for third parties. I support a plan-led system. I support community involvement at the time a plan is being created, but we all know that there are limits in that respect. One has to produce more effective consultation and greater community involvement than many of us have seen, though not for want of trying. It is a very difficult exercise.

A report entitled Third Party Rights of Appeal in Planning was published in September 2001 by a number of organisations, including the CPRE, RSPB, WWF, TCPA, ELF, the Civic Trust, ROOM and Friends of the Earth. I apologise to noble Lords for using so many acronyms, but those organisations are

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better known than LDFs and LDDs and RPBs. The report summarised (on page 10) the case against third party rights of appeal as follows. First, that there is insufficient evidence of a problem. The current discretionary system could be used more by the greater use of independent arbitrators with less reliance on locally elected councillors. I will not take the bait of going into the role of elected councillors, though I suspect others might wish to do so. However, there is a problem. It is still a current issue, people still raise it.

Secondly, the report said that landowners need to be able to appeal because their right to develop is being taken away, while third parties do not have a right that is being denied. The community—third parties—do have an interest in the area. That is not the same as a legal right but neither is it nothing. Thirdly, it said that there are already ample opportunities for third parties to express their views and have them considered before the decision is made. Yes, there are opportunities to express views; but that is not the same as having them heard by an inspector, who will determine the application. Fourthly, the report said:


    "Any benefits will be outweighed by disadvantages, not least the delay to development".

Well, the benefits and disadvantages in this instance—if the disadvantage is delay—really are chalk and cheese.

However, in its summary of the case for third parties to have a right of appeal, the report finds that there is a perceived unfairness in the procedures. Prospective developers may appeal, third parties cannot—by definition, that is what we are discussing. There should be an opportunity for those disadvantaged and aggrieved by planning approval to seek redress from an independent body. The examples given in the report relate to people directly affected by the development, nearby local authorities, interest groups and concerned persons, statutory agencies (if their objectives would be impeded or their advice on planning applications overridden) and government departments, if their policies would be compromised. Further, the report states that such a right would raise standards in planning authorities and redress the present imbalance by making them as accountable for their approvals as they are for their refusals. Reference is also made to other countries with advanced democratic planning systems having such rights, which are reported as having led to better decisions.

I have summarised quite a long report, which also refers to possible alternatives to third party rights of appeal: the local authority conducting an internal review—that would not be impartial; the Secretary of State calling in the application—that is discretionary and a bit of a lottery; judicial review—this is limited to points of law and does not amount to an appeal; and taking the matter to the Local Government Ombudsman, which would not allow for the detailed analysis that an appeal would afford. That is something all the major political parties have called for and has concerned many honourable Members in the Commons.

In 1996, the Association of County Councils, the Association of District Councils and the Association of Metropolitan Authorities—I am not aware that this

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view has changed now that we have the Local Government Association—called for a limited right where there is a significant departure from the development plan, where the local planning authority is the owner of the land in question, or where the local planning authority is also the applicant. Of course, the second and third of those may go hand in hand on a single application.

Those three points are central to the issue, and I think that they are generally regarded to be so. I hope that the Minister can use today to share with Members of the Committee what research the Office of the Deputy Prime Minister, or possibly its predecessor, has undertaken into how many cases fall into the categories that have been acknowledged as the real problem areas for some time, so that the delay point—the point that exercises developers most—can be answered. We are referring here to quality, transparency, probity and accountability, which I know are matters dear to the hearts of all Members of the Committee.

Noon

Lord Lucas: I am a little surprised—well, not surprised because the Liberals always surprise me in this way—that a party which says that it is in favour of local democracy should suddenly be in favour of local "quangocracy" and removing or questioning all possible decisions to be made by local councillors. There might be a case for it when the local authority is at once the applicant and the judge or when an agreed local plan in which local people have participated is being bust wide open in some way. But where it is just a question of whether a pub should be a house or a pub, surely that should be decided locally. Surely that is a local decision. If the locals have not bothered to elect decent local councillors, do not care to vote or to find out the local issues, that is their responsibility.

Lord Chorley: I spoke at Second Reading on this subject. I agree with both of the amendments; I do not mind which of them goes forward. As the noble Baroness said, only paragraph (e) of the amendment is different. My noble friend made a strong case, but I do not agree with the noble Lord, Lord Lucas. The noble Baroness, Lady Hamwee, took us through the arguments in great and thorough detail, which I shall not go over again.

In his winding-up speech at Second Reading, the Minister also touched on the subject. In his usual disarming way, he said that he had always been in favour of third party rights of appeal when he was an MP. But apparently he had a Damascene conversion on the road up Whitehall and has changed his mind. All politicians, particularly when they become Ministers, find themselves having to do that. One of the reasons he gave at Second Reading was that third party rights,


    "would be inconsistent with our democratically accountable system of planning".—[Official Report, 6/1/04; col.163.]

The noble Baroness touched on that point.

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I found that a strange argument to advance in cases where the local district planning authority is making a favourable decision on its own application. I think that the noble Lord who has just spoken took that point. In this House, rightly, we make a huge fuss about conflicts of interest in public authorities. If ever there was a conflict of interest, surely this must be one. Moreover, what if the planning authority is a national park? As I see it, that is not an elected body. There have been cases where national parks have made decisions in their own favour, many of which have been extremely controversial.

The Government make the point that a feature of the Bill is community involvement, about which the noble Baroness spoke. But how are communities defined in those circumstances? I do not know; I hope that the noble Lord will be able to explain. What is the local community of a national park? In one sense, it is the nation. The hallmark of a national park is that it is national, but we tend to forget that.

Again, at Second Reading, the noble Lord said:


    "We tried to find a way for third party rights of appeal that were tightly limited in scope, but every time a draft was presented, we were warned by the lawyers and parliamentary counsel that if we went down that road, the chances are that we would snuff out any and every development".—[Official Report, 6/1/04; col. 163.]

But lawyers and parliamentary counsel are always saying that things are too difficult. Perhaps I may encourage the Minister, who has a very independent mind, to be bold. As my noble friend Lord Bridges said, where there is a will there is a way. I doubt the reality of the Minister's remark that we could snuff out any and every development. I look forward with enthusiasm to the Minister's reply.

Lord Marlesford: I apologise to Members of the Committee that I was not here for the first few moments of the opening speech made by the noble Lord, Lord Bridges. Of course, it is a well known subject, with which we have all wrestled at various times, where, in the immortal words, something needs to be done; but it is very difficult to determine what.

I certainly would favour the Liberal amendment over the amendment proposed by the noble Lord, Lord Bridges. Under paragraph (e), one of the grounds for appeal would be where the local planning officer had been overruled by the elected council; that is clearly contrary to the whole democratic principle. In theory, every planning application is determined by the elected councillors on the advice of the planning officers. It is entirely because there is such a huge volume of applications coming before planning committees that the great majority of them are determined by planning officers. Certainly, in my book, that is not a reason for saying that where the council takes a different view from a planning officer, that is a reason for appealing against a consent.

The noble Baroness, Lady Hamwee, raised the question of call-ins. When I was at the Countryside Commission we had constant worries of fairly major planning applications that we thought would go wrong and where we were worried because there was no right of third-party appeal. The only way of trying

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to ensure that an irreversible step, or a very hard to reverse step, did not take place would be to get it called in. But, of course, the resources of the central planning people in Bristol are very limited. For resource reasons, there was always a very understandable reluctance to agree to call-ins unless they were important subjects. Therefore, that is not a sufficient solution. As the noble Baroness pointed out, a judicial review is not really relevant to this particular issue.

Undoubtedly, there are one or two examples of something unacceptable. One has been highlighted already; namely, when an authority gives itself planning permission. On the face of it, that seems to be contrary to natural justice. I am familiar with an example in which I have no personal interest other than a third-party interest, a pro bono interest. The Braintree District Council has repeatedly given itself planning consent to erect advertising hoardings along the A12 Witham bypass, which is totally contrary to PPB policy. When I have raised the issue on a number of occasions, it has said unashamedly and crossly, "Well, we are getting 30,000 in rent from these advertising hoardings". That is precisely the kind of thing that the local authority should not be able to do. That illustrates one of the areas where something must be done. But I shall sympathise with the Minister if he says it is extremely difficult to find a solution. However, I would have thought it not beyond his wit to do so, and this Bill is clearly an opportunity of doing something.

12.15 p.m.

Lord Rooker: Have the Conservatives nothing to say? I do not want to stifle any debate on this. I wonder why there is silence. This is certainly the most important issue we will deal with today on this Bill. I have two speaking notes—one is a long one and one is massive. I was tempted to use the long one but I am going to use the longer one because we are in Committee and I need to put some of the issues on record, especially as we will come back to this at Report. To cut things out in Committee will make a rod for my own back and does not do a service to the House.

I must refuse to comment on any particular applications, some detailed examples of which we have heard. This is particularly so with regard to Ipswich, because I claim the credit of having at one time had more jobs there than anybody else in the late 1960s, when I was doing real work outside Parliament. I understand some of the issues but I must not comment in detail on any of the applications.

I think—from the speeches and the amendment—that the difficulties created by any blanket third party right of appeal have been understood. I am encouraged by the fact that the clause—both clauses, since we are in effect dealing with the same clause—constrains the right of third parties to appeal. A blanket right has not been requested, but not all the proposed measures are appropriate. I admit that I am on record as saying that I was in favour of third party rights of appeal until I became the planning Minister, so it is more precise than "going up Whitehall". The reason I was doing it for my

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constituents is that I saw the way of just stopping development. That is why we wanted third party rights of appeal. We were not looking to amend developments. Most of us were looking to stop them; so was I at the time. I thus make my declaration of interest absolutely clear. The reason we wanted third party rights was because we had failed to stop development. That was the main reason for some of the individual cases I dealt with.

The Government have considered a limited scope; we want to be reasonable. However, the reasons for ruling out even a limited scope of appeal for third parties were set out in the planning Green Paper. Any right of appeal for third parties would slow down the system, though that is not a substantive argument against it. It would not be consistent with our democratically accountable system of planning.

At some time I will address the national parks issue. National parks are different in the sense that they are statutory bodies, but they are not directly elected. I take that point. It is the responsibility of local planning authorities to act in the general public interest when looking at applications. They are supposed to take account of the views of local people on planning matters before taking decisions. Elected members must justify their decisions subsequently to the electorate. They do not always like doing that; I accept that.

Part of my daytime responsibilities are the three major growth areas in the south-east. There is no doubt that councillors are reluctant to stand up in their local areas and say they support the growth. One cannot always rely on the democratically elected bodies to go along with the big picture of policy. I have known examples where councillors have said, "We will get this turned down so that it can go to appeal and then we can say that the Government are responsible together with the planning inspector for making the decision. We did not make the decision. We will say this to our constituents so that they do not vote us out". I have heard that said by local councillors. However, the Government do understand the situation. One of the reasons for this Bill is to get a faster, more balanced planning system. There is common consent on that.

We have acknowledged that we need greater community involvement in the planning process. It is right that anyone affected by, or with an interest in, development in the area should have the opportunity to make their views known, and to have those views taken into account. The planning system already provides opportunities for that to happen but this Bill builds on that and strengthens those opportunities.

Public participation must be at the right stage of the process; that is, before the decision is made. That is a fair and legitimate point. What nobody wants—perhaps somebody does—are increased opportunities for argument and debate after the event. That clearly is a requirement by some people, but that does not benefit anybody. It is the Government's intention to make the planning system more accessible, more transparent—I have repeatedly made that clear—with strengthened opportunities for community involvement. The provisions will strengthen the

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opportunity for people to comment on and influence development proposals much earlier in the process, even well before a planning application has been submitted.

I accept that this is going to be hard work because most people will only jump when their back yard or community is affected. They will not get involved when development plans or non-site specific proposals are being put together; it is only when something is on their doorstep that people get wound up to take an interest. Generally, people are getting on with their lives.

However, it is important that people's concerns are listened to up-front, and that once a decision is made people can see why it was reached. That is another important aspect; it is part of the process of opening up the planning obligation process so that people do not argue that someone has bought the planning decision behind closed doors. In that way the Bill will minimise the need for action after a decision has been made; it should ensure that the system is fairer and that everyone participates on as equal a footing as we can give.

Clause 17 of the Bill provides for a statement of community involvement. We are seeking effective participation by the community in the preparation of local development documents and in the exercise by the local planning authority of its development control functions.

Not only will it become a statutory requirement to prepare a statement as to how the local planning authority intends to involve the local community in the planning process, but that statement must itself be tested through independent examination. This is a major step forward.

Members of the Committee may already be aware that the Government are providing almost 4 million over the next three years to Planning Aid, an organisation that provides free and independent professional advice and assistance to members of the public who cannot afford to pay for advice on the planning process. I pay tribute to Planning Aid. I used the organisation umpteen times as a Member of Parliament in order for my constituents to have their cases heard both at the beginning and sometimes at the appeal process. It is a first-class organisation. We have made far more funds available.

The funding will enable Planning Aid to become more proactive and develop a greater role in targeting communities which traditionally do not get involved in the planning system—particularly groups in disadvantaged areas and those representing the socially excluded. We believe that the solution is not extra bureaucracy and lawyers, but meaningful engagement with local communities throughout the process, and greater transparency and clarity in the decisions taken.

Last year the Government extended the requirement for local planning authorities to provide a summary of reasons for granting a planning permission even where there were no conditions applied. This was done in order to improve the openness and transparency of the system. This is a major step forward. Local authorities were not required to say why they had approved an

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application; they were required to say why they had refused one, but it almost went by default. To now require them to say why they granted planning permission is a very important step forward.

It has been argued by some parties that this underlines the need for a third party right of appeal. On the contrary, it should ensure that planning decisions are properly explained so that any confusion or concerns that may exist which would be the substance of a third party right of appeal could be met—as long as that right did not have as its objective to stop the development, as opposed to change or modify it. More information will alleviate that need.

Regarding the scenarios cited in the proposed new clauses, we have already established clear and strict rules and procedures to ensure the propriety of the decision-making process and the decisions taken.

First of all, planning permission must be decided in accordance with the development plan unless material considerations indicate otherwise. Where proposals for developments do not accord with the development plan, the Secretary of State must be notified so that he can consider whether to call in the application for his own determination. It is already the case that the Secretary of State may similarly be requested to call in other applications, including those that are accompanied by an environmental impact assessment.

Members of the Committee may find it useful to know that approximately 1,000 applications each year are notified to the Secretary of State where a local planning authority is minded to grant permission for a planning application that is contrary to the local plan. Of course, the Secretary of State may exercise his discretion on whether to call in the application for determination by him rather than the local planning authority.

That system works in practice. During the 12 months or so that I was planning Minister, dozens of cases went across my desk on which we had to make a judgment on whether to call in. Those decisions were taken by Ministers. We were given advice but we did not necessarily follow it in every case, either to call in or not call in as the case may be. Decisions contrary to advice were reached both ways, which is the right approach. Ministers are accountable for those decisions.

Just over 5 per cent of the notifiable departures are called in by the Secretary of State. The reasons for deciding that the Secretary of State should determine a case include those where the issues may conflict with national policies, where they have significant effects beyond their immediate locality or may give rise to substantial controversy. A set of guidelines is available, based on a Written Answer in the House of Commons given by Richard Caborn when he was planning Minister. We rely on those for our policy, in particular when answering the dozens of letters written every week by Members of Parliament asking us to call in various applications. So very tight criteria govern what is and is not called in. An inquiry is then held to enable full consideration of the issues involved and to hear the concerns of interested parties.

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The proposal in the new clause in which Members of the Committee may see particular merit is for applications where the local authority has an interest. There appears to be a level of concern that a local authority will act improperly in deciding such cases. However, I should say that local authorities operate under very strict rules to deal with possible conflicts of interest and to avoid any impropriety where an application is one in which the local authority itself has an interest. Moreover, in the event that impropriety can be shown, judicial review by the courts is available.

Local authorities are often required to take decisions on issues in which they have a dual interest. There are around 5,000 cases a year in which local authorities have an interest in land to which they grant planning permission. It must be borne in mind that these will include town centre sites and often involve regeneration projects that will bring real benefits to local communities in terms of homes, jobs and environmental improvement. These are the very projects we need to ensure are delivered quickly and are not hampered by subsequent challenges.

However, where there are concerns about the ability of local authorities to act in a fair and unbiased manner in cases where they have a pecuniary interest in the proposed development, safeguards will apply to such decisions. For the benefit of noble Lords, I shall briefly outline some of those safeguards.

Local authorities are under an obligation to act fairly in relation to persons affected by planning decisions and to adopt decision-making procedures which provide adequate fairness safeguards to comply with the Human Rights Act 1998. Decisions are subject to control by means of judicial review in the courts. This ensures that decisions are taken in accordance with the law and within the authority's powers, and that they do not act for any illegitimate purpose or extraneous motive such as bias or vested interest.

In addition to these legal safeguards, a number of administrative safeguards ensure propriety in local decision making. The local government ombudsman has powers to investigate allegations of maladministration. Guidance on ethical conduct by local authorities is available, including the National Code of Local Government Conduct. Also, local authorities' own monitoring officers are charged with investigating allegations of maladministration or injustice. Arrangements are in place for the discharge of planning functions under the new constitutions for local governance, under which planning decisions are the responsibility of the planning committee and not the executive, to ensure propriety on land disposal and the promotion of specific developments. There are special procedural arrangements which already apply to local authorities' own development, including the need to notify the Secretary of State of proposals not in accordance with the development plan.

That forms a set of constraints on local authorities when they are dealing with matters where the planning permission is directly related to the local authority. We would argue quite strongly that those safeguards render third party rights of appeal in whatever shape or form unnecessary.

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I turn to the suggestion that a third party right of appeal should be available where officers' recommendations to reject an application are overturned by elected councillors. This challenges the very heart of the democratic process. I imagine that noble Lords would not want elected members to feel that they cannot reject their officers' advice so long as they have good and decent reasons for doing so. That would echo what is done by Ministers; I have done it myself. As long as people act rationally rather than on a hunch, there are no vested interests and people do not consider anything with which they are even remotely connected—because my former constituency was located in the region, as planning Minister I never dealt with anything whatever to do with the West Midlands—this system, with its checks and balances, operates in a fair way and these issues are covered.

In circumstances where councillors reject the advice of officers, they must have good planning reasons for doing so. I stress that planning reasons must be given. I had constantly to say to constituents, "You can't use competition reasons for trying to stop a development. You must use planning reasons. Here are a few planning reasons for you to take away and flesh out". A reason such as claiming that there are too many of a certain kind of shop in an area is not a planning reason, it is a reason of vested interest in competition. Again, however, it is the case that judicial review is available where there is evidence of impropriety or the decision can be shown to be irrational or perverse.

It is difficult to assess the level of challenges to local authorities' decisions by means of judicial review as the Secretary of State has no locus in such challenges and we do not have that information. However, to the best of our knowledge, between January 2002 and November of last year—a period of almost 21 months—there were 16 instances we know of where third parties brought judicial reviews of local authorities' decisions to grant planning permission. These were successful in seven of the 16 instances.

This shows, first, that judicial review is actively employed by third parties. It will always act as a form of nuclear deterrent, in a way, because it is so expensive. Secondly, decisions of local planning authorities have been overturned as a result. I am not building a massive case on 16 instances, but those 16 decisions were thought sufficiently bad for someone to provide the funds to go for judicial review. In roughly half of those cases, the challenge of the review worked in the sense that the decisions of local planning authorities were overturned. One could argue that the system is working at the extreme end, in major cases where it is thought that something is seriously wrong. The numbers of such cases will always be small, but I would argue that the system worked in those cases.

I do not gainsay the argument that because the number of cases is low, it does not count; we would not expect there to be regular resort to such proceedings. Judicial review is out of the range of most people, but it is not the sole recourse in the event of an allegation of impropriety in the process; there are other ways.

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Debates in Westminster Hall involving my colleagues as planning and other Ministers are held on individual cases on a regular basis. That, too, is quite right.

I have presented the difficulties, but I want to address just a few more issues. It is my understanding that the new clause envisages that the right of appeal would apply to anyone who had objected at application stage, and additionally to anyone else at the discretion of a person appointed by the Secretary of State for that purpose. Providing a right of appeal to anyone who had objected at application stage is likely to encourage the submission of objections in order to safeguard the right of appeal should permission be granted at application stage. This would confuse and slow down the initial consideration of the planning application, not necessarily for good reason.

Providing a right of appeal to anyone else at the discretion of a person appointed by the Secretary of State for that purpose would inevitably lead to delay. Introducing an additional procedure to be gone through to establish whether an appeal can proceed would mean that the developer would be unable to implement his permission until such sifting processes had been completed. Frankly, it is difficult to envisage the circumstances in which a person could legitimately seek a right to appeal against a proposal to which he did not object in the first place, but he would be able none the less to frustrate the development. It seems to us that that proposal as it stands is a recipe for chaos.

I believe that the third party right of appeal could be used to delay or effectively veto many otherwise acceptable developments which would bring benefits to local communities in terms of homes, jobs and the regeneration of neighbourhoods.

Challenges are not ruled out. However, in my experience, such a step was taken not to delay but to stop developments. Developers need certainty in order to invest in local areas and they want decisions quickly. Third party right of appeal would mean that planning approval could not be implemented pending an appeal and that would inevitably lengthen the decision-making process.

I have explained at length why the Government are not persuaded and why I am not persuaded. I am happy to defend this position. Our proposals for greater community involvement in the planning process are a major step forward. These proposals, coupled with the range of procedural and legal safeguards that exist, render even a limited third party right of appeal unnecessary. For those reasons I see no merit in introducing a third party right of appeal.

To answer the noble Baroness, Lady Hamwee, regulations require the local planning authority to consult when preparing local development documents. All the bodies she suggested—regional planning boards; the Mayor; regional development agencies; the rail authorities; local authorities in neighbouring areas; electricity, gas, water and sewage companies; voluntary bodies; bodies representing religions and disabled people; local businesses—can comment and the local planning authority has to take any comment into account.

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The statement of community involvement also provides an opportunity for third parties to be involved in significant planning applications. That is an important process, which I admit did not exist when people made complaints some years ago. The Green Paper was issued, but a Green Paper is not a firm proposal for legislation. There have been substantial changes since we produced the Green Paper. Those changes meet many of the demands made by people seeking a third party right of appeal on the issues I have mentioned. Having given that lengthy explanation, if this issue comes back on Report, I hope I can then use a shorter version because I will be able to refer back to Hansard.

12.30 p.m.

Baroness Hamwee: Was that the long version or the massive version? I was going to ask if we could have the massive version in order that we could anticipate what might be said at the next stage, as the Minister anticipates that there might be further discussion.

I will not attempt to deal with all the Minister's points but I will make some observations. Picking up on what the Minister said towards the end, it would not be possible to veto development simply by a third party having a right of appeal. That is because the inspector would rely on all items relevant to the decision. The fact that the third party had a right of appeal would still have to be limited to arguments within the development plan and so on. He mentioned possibly using judicial review, but I understand that is limited to a point of law.

I understand what the Minister said about community involvement, but it does not seem to answer the proposals for a right where there is a departure, or a significant departure, from the development plan, nor when the local planning authority owns the land or is the applicant. I am not sure the Minister was attempting to use that as the basis of his argument. Given that there have been serious concerns about this for a long time, I understand many of the points made. I think the issue is whether the proposals go far enough. Is there something else that can be done and can this Bill be used to do it? I was going to say that I look forward to reading the massive version—I will read the massive version, although I am not sure whether I look forward to doing so. I thank the Minister for sharing it with the Committee.


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