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These amendments would mean the Assembly engaging in executive decision-making proactively rather than retrospectively. As my noble friend Lady Turner said, noble Lords know that the GLA model of government, which is successful, is built around a strong, decisive mayor who is able to take often tough or difficult decisions and an Assembly which holds him publicly to account for those decisions. A

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fundamental principle is that the Mayor should be able to take operational decisions, including directions, without first having to refer to the Assembly. An Assembly power of call-in at that late stage would serve only to slow down the process and make it more bureaucratic and less efficient. The Mayor’s powers to issue directions and guidance to three of the functional bodies—TfL, LDA and, through Clause 29, LFEPA—are crucial for ensuring that those bodies deliver the Mayor’s priorities for London, the priorities that Londoners elect the Mayor to fulfil.

The Mayor also has specific direction-making powers. For example, on transport, the Mayor issues directions under Section 174 of the GLA Act in relation to setting TfL’s public transport fares. On planning, the Town and Country Planning (Mayor of London) Order 2000 specifies that the Mayor has 14 days from being notified of a borough’s decision on a planning application to decide whether to direct the borough to refuse the application. The Government are proposing a similar timetable in relation to the Mayor’s new power under the Bill to direct a borough that he will determine a planning application of potential strategic importance. The Mayor has used his powers of direction proportionately since the GLA was established, but I stress that directions do not come out of the ether from nowhere because the policies underpinning many operational directions have already been subject to the authority’s internal process of policy development, debate and scrutiny—there is no more active Member of the Assembly than the noble Baroness—which is where the Assembly scrutinises them.

Allowing the Assembly to influence the Mayor’s operational decisions at this late stage serves only to blur the boundary between the Authority’s executive and scrutiny functions. It is a clear risk that the Assembly would end up scrutinising the outcomes of decisions that it had helped to make. There are parallels to be drawn with the issuing of directions and guidance to non-departmental public bodies by the Secretary of State. In such circumstances, Ministers rarely consult Parliament before they exercise such powers and fully expect Parliament to scrutinise their actions retrospectively, should it so wish. I believe that the principle of retrospective scrutiny of operational decisions with a clear separation between executive and scrutiny functions is the right and consistent approach for the GLA. I hope the noble Baroness can be persuaded that there is a good case for withdrawing her amendment.

Baroness Hamwee: My Lords, I am grateful for the comments and for the compliments that, I think, came from one or two noble Lords. However, the fact that the Assembly has been doing its job well does not deter me from my argument that this additional tool would be useful. As I hope I made clear, the wording is not the same as in previous stages of the Bill; it has benefited from the debate on the amendment. It does not amount to a veto; it is a pause for reflection. In connection with the planning process, I have dealt with the position on applications, and in the context of a substantial and significant application, 14 days would be a short time. I resist any suggestion that

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from these Benches we would attempt to block the provision of more affordable housing in London. I led a lot of people through the Lobby, with the Government, on that issue at the previous stage. Consultation, to which the noble Baroness referred, is a different matter. The noble Lord, Lord Graham, says that the Assembly has not been inhibited in its criticism. I will take that as a compliment rather than as an answer to the amendment.

On the point about bureaucracy, this version of the amendment was drafted by the then monitoring officer, the whole Assembly having considered that it wanted to pursue the matter. Perhaps monitoring officers look for bureaucracy. I do not believe this one did. Certainly she was used to arbitrating between the different arms of the Greater London Authority. By definition, because of subsections (2) and (3), it could not add time. Also by definition, and this is where I shall finish, any matters which would be subject to this would be controversial. The fact that the Mayor has to issue a direction to a functional body—a functional body over which he has so much influence, indeed I would say control in a couple of cases—would indicate that the direction was controversial. The Greater London Authority Act 1999 does not require the Assembly only to deal retrospectively with matters. Section 59(1) says:

That does not read to me as precluding prospective action. Therefore, while understanding precisely the advice about what one should do at Third Reading, I wish to test the opinion of the House.

3.26 pm

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 51; Not-Contents, 145.


Division No. 1


CONTENTS

Addington, L.
Alderdice, L.
Ashley of Stoke, L.
Avebury, L.
Barker, B.
Bradshaw, L.
Burnett, L.
Carlile of Berriew, L.
Chidgey, L.
Cotter, L.
Dholakia, L.
Dykes, L.
Falkner of Margravine, B.
Fearn, L.
Glasgow, E.
Goodhart, L.
Greaves, L.
Hamwee, B.
Jones of Cheltenham, L.
Kirkwood of Kirkhope, L.
Lee of Trafford, L. [Teller]
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
Maddock, B.
Mar and Kellie, E.
Methuen, L.
Miller of Chilthorne Domer, B.
Molyneaux of Killead, L.
Neuberger, B.
Razzall, L.
Roberts of Llandudno, L.
Russell-Johnston, L.
Sandberg, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thomson of Monifieth, L.
Tonge, B.
Tordoff, L.


9 Oct 2007 : Column 133

Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.

NOT CONTENTS

Acton, L.
Adonis, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Ampthill, L.
Anderson of Swansea, L.
Andrews, B.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bilston, L.
Bledisloe, V.
Blood, B.
Boston of Faversham, L.
Boyd of Duncansby, L.
Bradley, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Corston, B.
Craig of Radley, L.
Craigavon, V.
Crawley, B.
Darcy de Knayth, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dear, L.
Dixon, L.
Donoughue, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Erroll, E.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Foster of Bishop Auckland, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Golding, B.
Graham of Edmonton, L.
Gregson, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kerr of Kinlochard, L.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lewis of Newnham, L.
Lipsey, L.
Listowel, E.
Lockwood, B.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Malloch-Brown, L.
Marsh, L.
Masham of Ilton, B.
Mason of Barnsley, L.
Maxton, L.
May of Oxford, L.
Mitchell, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Morris of Manchester, L.
Murphy, B.
O'Neill of Clackmannan, L.
Palmer, L.
Paul, L.
Pendry, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Radice, L.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Rogan, L.
Rooker, L.
Rowlands, L.
Royall of Blaisdon, B.
Sheldon, L.
Simon, V.
Smith of Leigh, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Valentine, B.
Wall of New Barnet, B.
Walton of Detchant, L.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
Whitaker, B.


9 Oct 2007 : Column 134

Wilkins, B.
Williamson of Horton, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

3.37 pm

[Amendment No. 2 not moved.]

Clause 33 [Mayor to determine certain applications for planning permission]:

Baroness Hanham moved Amendment No. 3:

The noble Baroness said: My Lords, I gave the Minister notice of Amendments Nos. 3 and 4 because they probe some technical matters that have arisen since the previous stage of the Bill. I have tabled the amendments for clarification. On reading the Minister’s letter of 9 July, there seemed to be some disparity between the Government’s intention that the Mayor should be able to authorise local authorities to determine approvals of reserved matters and details under conditions where he has granted the planning permission and the actual provision in the Bill at Clause 33.

In subsection (2) of Clause 33, proposed new Section 2C(1) refers only to the approval of reserved matters where an outline planning permission has been granted. It does not apply to approvals of details under other conditions. “Reserved matters” and “outline planning permission” have particular definitions and major schemes will require numerous approvals of details that are not reserved matters. The proposed new Section 2C(1) does not achieve the Government's purpose. Details might be required to be approved under conditions on conservation area consents, such as the recording of the building prior to demolition or arrangements for the clearance of the site prior to redevelopment. It seems prudent to make provision for those.

I am sure that there is a reasonable and doubtless highly technical justification for the current drafting of the Bill. I look forward to the Minister's response, which I am sure will set at rest the minds of planning experts throughout London, or at least provide some clarity on this matter. I beg to move.

Baroness Andrews: My Lords, I shall certainly try to set the noble Baroness’s mind at rest because it is important to be clear on these things. She explained the precise position for reserved matters. On the other matters that the noble Baroness wants to clear up, we have always been clear that the Mayor should take only the decisions that are appropriate for him to take. The noble Baroness’s Amendments Nos. 3 and 4 relate to her concern that the Bill does not provide for any decisions over the subsequent approval of details required under conditions and consents, et cetera, attached to planning permissions to be delegated to the relevant borough instead of being decided by the Mayor. Let me reassure her on this point.

We have provided in Clause 33, under new Section 2C, for decisions on the approval of specifically

9 Oct 2007 : Column 135

defined reserved matters related to outline planning permissions granted by the Mayor to be delegated back to the borough. But it is not necessary to do the same in relation to any subsequent approvals required by planning conditions attached to outline or full planning permissions. The wording of the individual condition will set out who will be responsible for making the subsequent decision. The wording of any planning condition attached to a planning permission is the responsibility of the decision maker. If the decision maker is the Mayor, he will take account of any conditions that the borough has asked him to impose on any permission as well as any he wishes to impose. Therefore, if the condition requires subsequent approval of a detail which is best decided at the local level, such as approval of external materials or design issues, the Mayor can specify in the wording of the condition that it is to be the borough, rather than him, that is to be responsible for dealing with that approval. This applies equally to any conditions attached to conservation area consents where approvals may be required.

As I have said, we do not consider it appropriate to put in place a blanket provision that all approvals of details will be dealt with by the borough instead of the Mayor because it is right to allow discretion to the decision maker. However, we are absolutely clear that the vast majority of such decisions will be appropriate for the borough rather than the Mayor. In order to make this absolutely clear, we will put it into the circular that will accompany the new powers, which will in turn be subject to consultation.

Baroness Hanham: My Lords, I thank the Minister for that reply. There is a danger of confusion here. There is danger of people assuming that others will do things and that perhaps the Mayor may take more responsibility than he may need. If it is made clear in the circular, which the Minister has put on the record, that satisfies me for today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

Baroness Hanham moved Amendment No. 5:

The noble Baroness said: My Lords, I have given notice of this amendment to the Minister. I am sure that she will be able to do the same with this as she has with the other one. The noble Baroness’s answer on hazardous substances consent was rather difficult to follow. It is my understanding that the Mayor is the hazardous substances authority under new Section 2B(5). Section 2C is proposed to deal with the problem that the Mayor is responsible for the detailed approvals under each consent he has granted. So the suggestion that a circular will say that the borough council is treated as a hazardous substances authority seems to be inconsistent with the Government’s interpretation of new Sections 2B and 2C. I have tabled Amendment No. 5 to probe the Government’s intentions behind this drafting. I beg to move.



9 Oct 2007 : Column 136

Baroness Andrews: My Lords, very similar issues arise on the noble Baroness’s Amendment No. 5, which would provide for the Mayor to delegate any decisions on subsequent approvals required under hazardous substances consent and conservation area consent to the relevant borough. As I said previously, we are concerned that decisions are made at the right level. For the reasons I gave in relation to Amendments Nos. 3 and 4, it is unnecessary to say anything in the Bill in relation to the delegation of subsequent approvals under conditions and conservation area consents. That can be dealt with in the wording of individual conditions. It is also unnecessary to say anything more on hazardous substances consent because new Section 2B(5)(b) in Clause 33 already makes it clear that the Mayor will be the hazardous substances authority only for the purposes of determining the hazardous substances consent connected with the planning application before him. That is where his role as hazardous substances authority formally ends.

If the Mayor attaches any requirements for subsequent approvals to the hazardous substances consent—for example, the specification of containers for storing the substance—they will automatically fall to be considered by the local authority, the borough, acting as the hazardous substances authority. The borough is defined as the authority under the Hazardous Substances Act 1990, but it will of course have to act on the advice of the Health and Safety Executive. That, I hope, puts the position on the record. Again, if there is any possibility of confusion, we will make sure that it is included in the circular.

The noble Baroness did not ask about our specific reference to listed building consents requiring subsequent approval of details in this part of the Bill, but I will set out the position. This procedure is specifically identified under the Listed Buildings Act and may be used, for example, where specific detailed additional information is needed before a listed building can be altered. In this Bill we are seeing the interrelationship between several different pieces of legislation which ascribe responsibilities and actions to different bodies as appropriate. That explains why the position is slightly more complex.

Baroness Hanham: My Lords, I thank the Minister for that reply and we now have the explanation on the record, which is what is required. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 [Amendments of section 106 of TCPA]:

3.45 pm

Baroness Hamwee moved Amendment No. 6:

The noble Baroness said: My Lords, I shall speak also to Amendment No. 7, which is grouped with Amendment No. 6. These amendments deal with aspects of the proposed new planning regime. When we debated the same amendments at the previous

9 Oct 2007 : Column 137

stage, the Minister said that she would write to me. I understand from the conversation of the past 10 minutes or so that it is the fault either of my filing—it cannot be the dog because I do not have one—the postal situation or whatever method of communication was used. I am not aware of having received a letter. In any event, particularly with regard to the amendment on how commuted payments—on the last occasion Hansard recorded that phrase as “commuter payments”—are to be dealt with when the application involves more than one borough, my concern is to understand what happens to sums paid by way of commuted payments by the applicant. Do they go to the Mayor? Are they divided between the relevant boroughs? For example, in the case of affordable housing, is there a mechanism that would allow the Mayor to use money paid by a developer in respect of a development in one borough which does not have the requisite proportion of affordable housing to build housing in another part of London?

I apologise to the House for bringing these amendments back, but having the explanation on the record will be helpful. I beg to move.

Baroness Valentine: My Lords, I have sympathy with both of these amendments, but I think that they would be better dealt with in guidance rather than in legislation. On Amendment No. 6, it is not appropriate that legislation should seek to effect the transfer of Section 106 funds to a borough, which would create unwarranted bureaucracy. I agree that the Mayor should transfer Section 106 funds to the body responsible for delivery. That might be a borough, but it might also be Transport for London or a training provider. Given that, these arrangements should be addressed in guidance.

On Amendment No. 7, given my experience of the Mayor in his planning role, I am unable to envisage a circumstance where he would not be looking for Section 106 money. However, the important issue raised is that the Mayor should have regard to the borough’s priorities for Section 106 money. That is a valid point and again should be addressed in guidance.

Baroness Andrews: My Lords, I am sorry that the noble Baroness did not receive the letter of 9 July; I should have made sure that she did. I am happy to put on the record what the letter said in relation to the commuted payments. But, as the noble Baroness, Lady Valentine, has raised the principle of the main amendments, I will briefly address those amendments and then come on to the detail.

We debated both amendments on Report and I shall not repeat the reasons why I cannot accept them but, for the record, obligations are private agreements which are usually negotiated between local planning authorities and developers, or offered unilaterally by developers, for the benefit of the local planning authority. As the noble Baroness knows well, their purpose is to mitigate harm that would arise from a planning proposal and make acceptable in planning terms a proposal that otherwise could be refused planning permission. Therefore it is entirely logical

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and necessary that where a planning application is determined by a London borough, it should be the responsibility of the borough to lead on the planning obligation; and when it is the Mayor who is determining an application, it should be him who leads.

As regards Amendment No. 6, it is wrong to assume that all the impact arising from a development would necessarily be local or that all the required mitigation would be provided by the boroughs. Each circumstance will determine and depend on the individual development proposal, obviously, and each planning obligation will clearly set out in terms the details of the mitigation to be provided, who will provide it, when it will be provided and the level and timing of funding for the mitigation.


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