Planning Bill

My Lords, I am very pleased to have the opportunity to address these issues, and I am sorry that the noble Viscount was discomforted by the groupings last week. It is excellent that we have been able to separate out and have a specific debate on the issues that he raised. He brings a huge range of experience in planning law to bear on the Bill, and, as the noble Baroness, Lady Hamwee, said, he raised some extremely important questions on process. I was comforted by the great good sense that the noble Viscount demonstrated by not wanting to revert to the present system. We can get a better system, including one that tests evidence properly and more effectively, by not returning to the present system. I absolutely understand his need to have something on the record—which enables me to spell out some of the processes that we are intent on. Before I address the amendments, I should like to set out the context of how the hearings themselves will work, so that we can see that in relation to the two extremely important instances raised. I quite agree that acoustic engineering and the measurement of noise is a fine science and is not something that, with the best will in the world, can be solved by amateur guesswork. The same can be said of his other example. Clause 92 provides that the examining authority must arrange an open-floor hearing if at least one interested party informs it within the deadline notified to the parties by the examining authority that it wishes to be heard. It also provides that each interested party is entitled, subject to the examining authority’s powers of control over the conduct of the hearing, to make oral representations at an open-floor hearing. The amendment would widen the purpose of these hearings by entitling all interested parties to call witnesses to give evidence. I hope to be able to assure the noble Viscount that the Bill, and particularly the procedural rules, will meet his concerns. I shall first briefly describe the new process of examination, which allows for a series of opportunities for interested parties to provide both written and oral evidence. I want to reassure the noble Viscount and the chairman of the Bar, to whom I have spoken, that the Bill provides for the proper consideration and testing of all evidence presented. We have laid a great deal of emphasis on written representations. All interested parties will have the opportunity to submit evidence in written form. We would expect much of the evidence from applications to be given in written form as such evidence would reflect the technical nature of much of the development application. The two examples which the noble Viscount gave illustrate why it would be helpful for people who will be affected by an application to understand some of the considerations, measurements and methodologies that have gone into making these judgments. It will also speed up the process of considering an application. It will make the process more accessible to members of the public as it will make it easier to understand the issues without having to turn up physically at the public inquiry. I also want to stress that the Bill sets out very clear and explicit rights to be heard. The emphasis on written representations in Clause 89 is clearly subject to the requirements to hold hearings set out in Clauses 90, 91 and 92. The provisions in Clause 90 require the examining authority to hold oral hearings to probe specific issues where it considers that that is necessary to ensure adequate examination of an issue. I suspect that it is at that level of interrogation that we will see a significant need for expert digging into the questions, implications and impacts on interested parties in the community. Clearly, we want to ensure that adequate examination of an issue means that an interested party has a fair chance to put its case. Each interested party would be entitled to make oral representations about the issue at the hearing. The provisions of Clause 91 require that whenever an application seeks authorisation for compulsory purchase, the examining authority must hold an oral hearing into compulsory acquisition, and any affected person would be entitled to make oral representations at that hearing. The provisions of Clause 92 require the examining authority to hold an open-floor hearing wherever an interested party notifies it by the deadline that it desires one. It is important to put on record that that is not discretionary. If an interested party wants an open-floor hearing and tells the commission that by the deadline, it will get an open-floor hearing. Finally, Clause 95 ensures that, should a party be prevented from making an oral representation for whatever reason, it can still make a written representation. In that process, all persons with an interest in the application have an opportunity to engage in the examination by giving evidence through either written or oral representations, provided that they have notified the examining authority of their interest within a deadline notified to them by the examining authority. In some cases, where this is permitted by the examining authority, they will also be able to call evidence. This is where we come to the amendments. The noble Viscount’s amendments refer to the calling of other people—people not registered as interested parties—to give evidence. It would be fair to say that in most planning cases the calling of evidence normally refers to the calling of experts to give evidence. I am happy to set out how we expect that the calling of expert evidence and expert witnesses will be dealt with by the commission. I begin by stressing that nothing in the Bill would prevent an ““expert”” registering himself or herself as an interested party to an application and then being able to give evidence in the normal course of the examination, through written representations or oral representations. They may also submit reports from experts who have been commissioned as part of their written representations. But it is worth saying that the whole process of examination at the application stage is predicated on the fact that, from the beginning of the process—the pre-pre-application process—we have built in a series of processes for interested parties to consult and agree with the examining authority how best to hear and test evidence. When a hearing takes place, Clause 93(3) provides that it is for the examining authority to decide how the hearing is to be conducted. That will include a decision about whether a person making representations should be permitted to call particular evidence from a third party. That means that the examining authority has discretion to allow expert witnesses to be called—much as in the current process the inspector has to agree to allow the calling of experts. What is the extent of the discretion? These sorts of powers are perfectly standard, not least because examining authorities need to have powers to organise hearings and refuse to allow the giving of irrelevant information. If we are to avoid the possibility of an examination being seriously disrupted, it is right that the examining authority should have the power to call a halt to any representations that are not seriously made or are calculated to obstruct. That is where we looked at Clause 94, which completes the package of necessary powers. Let me be clear on the noble Viscount’s important point about what rights interested parties will have and how they can exercise them. First, we consider that it would be appropriate for the examining authority itself to be able to call expert witnesses to give evidence on specific points at hearings. The noble Viscount, who was unable to be in his place when we talked about the provision of counsel support to the IPC, would have welcomed on that occasion, as he has today, the strength and extra expert interrogative power that this will give to the examining authority. It is also worth putting on the record—the noble Viscount already knows this—that Clause 99 provides that a person may be appointed as an assessor to the examining authority to assist in the probing of technical evidence. Therefore, we have bolstered the power of the IPC through the provision of additional legal support and technical evidence. In addition, the examining authority is also able to call expert witnesses when requested to do so by an interested party where the commission feels that it would help it to understand the issues, or so that an interested party has a fair chance to put its case. This is consistent with the fact that we want to get to decisions on applications in a manner that is timely and efficient and an improvement on the present process. However, I stress that a decision by the examining authority about whether to call expert witnesses cannot be arbitrary or one-sided. Interested parties would be able to make representations to the commission about how the application should be examined at the preliminary meeting—Clause 87—including making the case on whether they will be adequately or fairly treated if expert witnesses are not called to give evidence. They will be able to make subsequent representations that exchanges of written evidence or oral evidence have not properly settled an issue. Therefore, interested parties will certainly have a right to call for expert witnesses if they feel that it would be significant to their case and would help them make their case. The examining authority will have to take all relevant representations into account before it decides whether it is necessary for a witness to be called to give evidence at a hearing. If the commission unreasonably refuses to allow interested parties to call witnesses, this decision could, of course, be open to legal challenge. Although I hope the noble Viscount will be reassured on that point, I understand that, given that the Bill cannot carry the weight of detail, it would be useful to have other reassurances on the record. Therefore, the procedural rules made pursuant to Clause 96 will set out in greater detail the general requirements on how examinations are to be conducted. These rules will be in a statutory instrument which is consulted on in the usual way and laid before the House before it takes effect. We envisage that these rules might provide, for example, a power for the examining authority to call witnesses where it considers that that is necessary for the adequate examination of an application or so that an interested party has a fair chance to put its case and to respond to requests from interested parties that it should do so. I hope that this also meets the noble Viscount’s concern in Amendment No. 90 to provide that it is for the examining authority to decide whether a witness may be questioned at a hearing by another person. The reference in Clause 93(4) to, "““a person making oral representations at the hearing””," would cover circumstances where a witness is called to give evidence. On questioning witnesses at hearings, it is worth mentioning again that under the proposed new clause set out in government Amendment No. 94 the chair to the commission may appoint a barrister, solicitor or advocate to provide legal advice and assistance to the examining authority. That, of course, includes the ability to conduct oral questioning at a hearing. I have gone into this matter in detail because I was invited to put it on the record. I hope that that is helpful. I hope noble Lords will be assured that the provisions of the new clause will ensure that decisions of the commission on whether to allow the questioning of expert witnesses by another person will be based on legal advice of the highest quality. It will also ensure that where the commission decides not to allow questioning by another person, it will have the ability properly to probe the evidence itself. The noble Viscount has done the House a service in enabling me to put that on the record. I hope he will feel satisfied with the safeguards I have mentioned.