Planning Bill

This is indeed an important series of amendments in an important part of the Bill. We all agree that we want to ensure that this process—the opportunity for local people to make their voices heard—is clear, transparent and satisfies its purposes. I shall group some of the amendments, and hope that I can address and reassure Members of the Committee. Amendments Nos. 269, 271 to 273 and 285 to 288 address similar points around written and oral representations, and the judgment between them. I shall first explain why we have emphasised in the Bill the use of written representations. We are talking in the context of applications coming to the IPC which will be technical and extremely complex. There is a real role for written evidence. Yes, the noble Baroness has said that we are concerned to have a speedier process, but that is not the overriding force driving this process. It is driven by the need for effective consideration, which, in the testing of evidence and the gathering of information, will enable everybody satisfactorily to look back and say, ““Yes, they did a good job. They had the information they needed before them and the judgment was based on proper evidence””. Written evidence will speed up and clarify an application because it will reduce the need for often lengthy and repetitious oral evidence. Primarily, however, it will also improve the analysis of evidence and allow technical questions to be explored in greater depth. It therefore makes the process a bit more accessible to members of the public, not least because they do not have to attend a public inquiry but can access the exchanges in other ways. That said, I stress that the Bill sets out clear and explicit rights to be heard. I heard the noble Baroness saying that the Bill does not encourage that. I think that she was talking about cross-examination in that context. However, I believe that the Bill really encourages the right to be heard in very different ways. The emphasis on written representation set out in Clause 88 is subject to the requirement to hold specific oral hearings, which are set out in Clauses 89, 90 and 91. That, along with the open floor hearings to which I referred, is about being fair and being seen to be fair to people who in previous situations may not have been heard at all for different reasons. Clause 88 requires the examining authority to hold oral hearings to probe specific issues where it considers that it is necessary to ensure its adequate examination or to ensure that an interested party has a fair chance with its case. Each interested party would be entitled to make oral representations at this hearing. I stress that the decision by the examining authority to hold an oral session cannot be arbitrary. Interested parties will be able to make representations to the commission about how the application should be examined at the preliminary meeting, including whether they would be adequately or fairly treated by a purely written process. They would be able to make subsequent representations that exchanges of written evidence had not properly settled an issue. The examining authority will have to take all these representations into account before it decides whether a hearing is necessary. If it concludes that a hearing is needed, it must hold one. Clause 90 also requires that whenever an application seeking authorisation of compulsory purchase arises, the examining authority must hold an oral hearing into it. Any affected person would be entitled to make oral representations at that hearing. Certainly, the new step, and perhaps most importantly Clause 87, will require the examining authority to hold an open-floor hearing wherever an interested party notifies it by the deadline that they desire one. It is not discretionary. If they want an open-floor hearing, they will get one. That means that under the Bill interested parties have a right to be heard. They have a right to make oral representations. This is obviously subject to the examining authority’s powers to control examinations; for example, to disregard representations which are frivolous or vexatious, as set out in Clause 85. Those sorts of powers are perfectly standard. However, the IPC will not be able to use that provision as a means to exclude people from submitting evidence which has merit. The normal procedures of administrative law apply just as much to the IPC as to any other public body. Anybody who believes that their evidence has been unreasonably disregarded would be able to make use of the mechanisms for legal challenge. As I said, Clause 94 ensures that should a party be prevented from making an oral representation for whatever reason, they can still make a written representation. Therefore, we will provide a more rational and transparent process to test what will often be very technical evidence. As regards oral representations to be made by agents, Amendments Nos. 276 and 278 seek to make clear that representations at issue-specific and open-floor hearings can be made personally or by a counsel, solicitor or agent. In essence, they establish a right to be represented at hearings. I can offer reassurance here. The best possible motives lie behind making hearings more open and accessible; namely, that parties do not need to employ expensive, professional advocates to participate on an equal footing with other parties. However, we emphatically do not prevent them from employing someone to represent them if that is what they want. Nothing in the Bill prevents an interested party asking to be represented, and being allowed to do so. I hope that is reassuring. The noble Baroness made a very eloquent and passionate defence of cross-examination. Amendments Nos. 277, 279 and 281 are designed to give interested parties the right to call and cross-examine witnesses, in addition to being entitled to make oral representations at hearings. Amendment No. 282 is consequential and Amendment No. 273 is also relevant. I understand what the noble Baroness is saying, and I have heard what has been said by other parties about the importance of cross-examination. I do not deny that it has an honourable place in our planning system. But this is an opportunity for us to think clearly and critically about what cross-examination is about. It is simply one mode of testing evidence. When the noble Baroness talked about time, she was right that we are trying to make the process a bit more streamlined, so that we can avoid repetitious activity and so on. The point about cross-examination is that there has always been a risk, which has been realised in many instances, of it being exclusive and being something that you can obtain if you have wealth, connection, opportunity, organisation and access. It has also been legalistic and adversarial, and it has added infinitely to the protraction of the procedures in public inquiries. It has often been intimidating and difficult for members of the public to engage effectively in the process. We do not want to replicate those risks. We do not want the new process to mean that only those with the deepest pockets have the loudest say. As the noble Baroness said, we want to achieve the best possible testing of evidence. It is much more sensible for the commissioners charged with examining an application to probe and test the evidence themselves via direct questioning, rather than outsourcing it to other advocates and getting them to do it. Noble Lords should bear in mind that this is the end of a process at each stage of which the applicant and the IPC—before the pre-application hearing, the local impact assessment, the local consultation process and the pre-application stages—will have many opportunities to test out the assertions that are being made both by the promoters and by their adversaries. This will not be the only place in which arguments and evidence are tested. It will be a very specific process, but it will come at the end of a series of iterative processes. I take the point that we have a very fine profession in the Bar whose job it is to get the best result from cross-examination, but the noble Baroness does the IPC, and the skills that we intend to look for, something of a disservice if she thinks that it will not be able to question and probe to a very high standard the sort of evidence that will come before it. It would also be possible for the individual member of the local community to suggest questions. They may themselves not be able to cross-examine, if they have not reached that stage, but they would certainly be able to suggest questions to the IPC; ““Why don’t you ask the appellant on what evidence he bases the traffic flows on road X?””, and so on. There will be interaction. This will be an extremely robust process. The noble Baroness has raised the issue before—my noble friend Lord Hart raised this—and we are very serious about ensuring that the commissioners have the skills and training that they need to examine effectively. We will look for those generic skills in any case. If they thought it necessary, they could even appoint a counsel to the panel to probe evidence on their behalf. There would be an ability to dig under what they are being told. Nothing of that nature is ruled out in the Bill. I understand that there is an issue about technical expertise being challenged and how we ensure that. I think that there will be sufficient opportunity at this stage, in this way, for the evidence that comes before the commission to be challenged and tested. We also get an openness and a more level playing field for all parties, because the current adversarial system is genuinely exclusive and can shut out smaller, less confident or less well resourced participants. The noble Lord, Lord Dixon-Smith, asked whether there was a possibility of legal challenge, because the panel would be seen to be judge and jury. The commissioners will have to act reasonably and impartially—we would expect nothing else—but we will also specify in guidance how they should do their job, and they will have a code of conduct. If they do not meet the high standards that we set, they could be challenged. That is right and proper. However, the scenario posed by the noble Lord is pretty unrealistic, but I will think about that, because he rather sprang it on me. He is perfectly well allowed to do that and I will come back to him on that point. Cross-examination is emphatically not ruled out. While the commission would normally use direct questioning to test the evidence under Clause 97(7), the questioning could, as the noble Baroness pointed out, exceptionally allow participants to cross-examine where the commission considers that it is necessary to ensure the adequate testing of representations and to allow an interested party a fair chance to put the party’s case. There will be a panel whose job will be to ensure fairness and transparency. It will be on the lookout, on the qui vive, for that fairness to be seen to operate. Amendment No. 284, in the name of the noble Lord, Lord Dixon-Smith, is about substituting ““necessary”” with ““appropriate””. Amendment No. 283 is about removing ““exceptionally””. Both amendments address the basic principle that the panel should test the application by direct questioning and whether that should stand. We have opted for our position because the Bill sets out a way of proceeding for the IPC that aims to probe, test and assess through direct questioning. While we believe that interested parties should be able to cross-examine witnesses in certain circumstances, there needs to be a test of necessity. I hope that we have made full allowance in the Bill for that to be clear to the IPC; where necessary, the IPC should allow the person to have their anxieties and their voice heard properly. That is provided for in relation to the testing of evidence. Amendment No. 270 on who should be invited to the preliminary hearing requires anyone who commented during the application consultation to be invited. The purpose of the preliminary meeting is to enable those present to make representations as to how the application should be examined and to discuss any other that the examining authority wishes. Such meetings have long been held prior to the opening of complex inquiries. Investing time up front is well worth it. The Bill is much about that principle, and I hope that the noble Lord will accept my assurances that the Government have no incentive to short-change anyone. Clause 86 already requires the examining authority to invite any interested party to a preliminary meeting, including statutory parties, anyone with an interest in the land, or anyone who has made a relevant representation. Clause 54 requires that where the commission accepts an application, the applicant must notify relevant authorities and so on—all the people set out in Clause 55—and has to publicise that. That will ensure that potentially interested parties are made aware that an application has been accepted and that they will have an opportunity to meet the commission at the preliminary meeting about the application. Amendment No. 291 on people with an interest in land makes the same case. It seeks to ensure that they have a right to participate in the examination as interested parties. In the other place the Minister for local government said that Clause 99 already includes a provision for the Secretary of State to prescribe persons as being statutory parties, who will automatically be interested parties. We intend that persons who have an interest in land which the applicant proposes to acquire should be prescribed as statutory parties for the purposes of regulation under Clause 92. Amendment No. 274 specifies that examination of an application should also include, "““the carrying out of a site visit””," as well as the consideration of oral representations. We do not think it appropriate to require that a site visit be carried out in all cases. We are talking, not least, about offshore wind farms here, and I am not sure what the panel would expect. I am sorry that the noble Lord, Lord Reay, is not present. I am sure that we could arrange a visit to an offshore wind farm for him. However, the Bill provides the examining authority with the flexibility to use other methods to support their examination. Nothing rules out a site visit. Amendment No. 280 states that the deadline for notice of an open-floor hearing must be at least 56 days. We would expect to specify this sort of procedural deadline in regulations and not in primary legislation. That is the standard practice and it means that we can adjust the rules in the light of experience. We will look closely at this issue but I do not think that a deadline of 56 days is necessary. As I have set out elsewhere, because the Bill improves pre-application processes and so on, I do not think that it is realistic to require the commission to give 56 days’ notice. It is simply the deadline for registering the wish to appear before, and give evidence to, the panel. Amendment No. 275—I am coming to the end—would require the examining authority to publish all written representations. That will be dealt with in regulations under Clause 95. I assure the Committee that we intend that written representations should be made available to interested parties. That is key to the process and we will have to think how best to do that. The noble Baroness, Lady Hamwee, said that she will not be moving Amendment No. 290. It appears, in any case, to be a stray in this group. I have rattled through a lot of very important and detailed amendments relating to an important part of the Bill. I hope that noble Lords will feel reassured that we have thought very seriously about the content of the Bill and about what we are trying to achieve. We have provided a lot of opportunity for open and direct representation on the floor through oral representation and, exceptionally, cross-examination, supported by written examination, and we have provided the capacity for the IPC to do an extremely good job in challenging and testing the evidence.