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Planning Bill

My Lords, this is a complex set of government and opposition amendments. In view of the hour, I will be as concise as possible while, I hope, addressing some of these rather technical questions. Who will be liable to pay CIL was one of two remaining issues of major concern to the Delegated Powers and Regulatory Reform Committee that we have now been able to deal with. I shall address my own amendments first. Land ownership is a complex area and the vital importance of devising a workable solution has meant that this has involved a considerable amount of work. However, after much careful thought, we have found a practical way forward. Government Amendment No. 135A removes the existing clause setting out provision about CIL liability and replaces it with a new clause. It expressly allows any person—who may be the developer, landowner or other party with an interest in the land such as the bank or financer of the development—to assume liability to pay CIL before development commences. It also provides for default liability to be attached to the owner or developer and enables CIL regulations to provide for liability to be assumed partially, jointly, or jointly and severally. Amendment No. 144A amends Clause 210 on CIL enforcement to allow regulations to provide for the consequences of failure to assume liability. It is our intention, for instance, that where no party nominates itself to pay CIL, the benefits that it would have enjoyed would be withdrawn. We expect the vast majority of those intent on development to come forward to meet their CIL liabilities in full and on time. By allowing any party to take on liability in this way, we are providing maximum flexibility for the industry to make efficient arrangements. Where liability has not been assumed, regulations will enable charging authorities to recover CIL from other parties. Subsection (4) of the proposed new clause in government Amendment No. 135A therefore requires regulations to make provision for the owner or developer of the land on which development has commenced, in reliance on planning permission, to be liable to pay CIL. Definitions for ““owner”” and ““developer”” are set out in subsection (7) of the clause inserted by government Amendment No. 136A. As possible liable parties, we want the owner and developer to be fully aware of any liabilities that they may face on purchasing land or commencing development on it. Government Amendments Nos. 144B and 144D therefore enable regulations to provide for further enforcement measures for the payment of CIL. Together, they replace Clause 210(3)(c) with more detailed provisions, enabling regulations to provide for the registration or notification of actual or potential liability—either in a local land charges register or in another statutory register such as the register of planning applications kept by local planning authorities—and the creation, registration and enforcement of local land charges. These amendments are vital to ensuring that all interested parties are fully aware of any CIL liabilities that they may face when commencing development or purchasing land. Where there is more than one owner or developer, CIL liability may need to be apportioned between them, as provided for by subsection (5)(d) of the proposed new clause in government Amendment No. 135A. Subsection (5)(d)(ii) of that proposed new clause provides for appeals relating to any apportionment, but does not specify the manner in which they may be made. Government Amendment No. 140A ensures that any regulations providing for appeals in relation to the apportionments of CIL liability under proposed new Clause 202(5)(d)(ii) may make provision about the procedure on such appeals, about fees and the award of costs, and when the right to appeal must be exercised. Government Amendment No. 146A amends Clause 212 to provide that CIL regulations may make provision for the procedures to be followed in connection with actual or potential liability for CIL. Proposed new Clause 202 provides that liability may be assumed and for such liability to be transferable. This amendment ensures that the CIL regulations can set out procedures for how that is to be done. Government Amendment No. 146B enables regulations to provide for procedures to be followed in relation to exemptions from, or reductions in, paying CIL. I commend the government amendments to the House. Opposition Amendments Nos. 135 and 136AZA seek to prevent CIL regulations allowing CIL to be levied on infrastructure development. Opposition Amendment No. 135 seeks to ensure that development for CIL purposes may not include anything done to, or in respect of, an existing building that forms, or forms part of, infrastructure. Opposition Amendment No. 136AZA seeks to amend subsection (1)(a) of government Amendment No. 136A to ensure that ““development””, for CIL purposes, means anything done by way of, or for the purpose of, the creation of new buildings, excluding buildings housing infrastructure. My noble friend Lord Berkeley asked where in the new amendments we define ““buildings””. It is set out in Amendment No. 136A, where we say clearly that ““development”” means, "““anything done to … an existing building””." In Committee, my noble friend asked why we are making this distinction and not exempting infrastructure that does not include buildings. A version of that question was raised by the noble Lord, Lord Reay. There is not much that I can add to what I said in Committee. We are trying to deal with the impact that buildings have by generating a need for infrastructure because they are usually occupied by people who create needs. We have come up with the simplest definition of ““buildings”” that we can: there is clarity there. In Committee, I said that almost all development has some impact on the need for infrastructure, services and amenities: I say this also to the noble Lord, Lord Dixon-Smith. For example, a school, which is infrastructure, will have significant transport impacts, particularly at 3.30 pm. A hospital, which is infrastructure, will have significant waste impacts that require waste management infrastructure. Excluding infrastructure from the types of development that may be liable to pay CIL risks causing shortfalls in CIL revenue that other types of development might have to cover through higher rates of CIL. That is why our principal starting point has been that most types of development could pay CIL. However, we have given serious thought to which types of development ought to be liable, and, as clarified by Clause 202(3), we have decided principally to define liable development as ““buildings””. This is likely to mean that certain items of infrastructure such as phone masts, roads and railway lines would not be liable. I will answer in a general way the three questions asked by the noble Lord, Lord Reay. CIL is a new mechanism to help support the provision of infrastructure. Needs arise and are planned for by local authorities on the basis of people and their occupation and use of buildings. New homes, offices, shops and schools are all located to support the delivery of homes. Roads are upgraded to support new office developments. Therefore, ““buildings”” is the right definition of ““development”” for CIL purposes: it is relatively simple. As a result of defining ““development”” in this way, it is clear that some other types of development would not be CIL-liable. We include in that roads, railway lines, power lines, pylons and wind turbines. Opposition Amendment No. 136AZB, tabled by the noble Earl, Lord Caithness, seeks to amend the definition of ““development”” on which CIL can be charged by amending government Amendment No. 136A. This seeks to ensure that development consisting of anything done to, or in respect of, an existing building only ever gives rise to CIL liability if the building is ““occupied by people””. I am sympathetic to the spirit of the noble Earl’s amendment, which seeks to identify which developments may cause a need for infrastructure and which may not. In general, infrastructure needs arise because people are located in certain places: that is our rationale. The noble Earl raised the point about consultation. As part of the work to develop CIL regulations, I wish to consult widely on how we might exercise powers under subsection (2) to define what works or changes of use to buildings will incur CIL liability. We do not want to further restrict the definition in the Bill. The amendment also raises questions. For example, how often might a building have to be occupied to be charged CIL? Is it to be continuously occupied, or would temporary occupation be sufficient? The amendment would provide plenty of scope to avoid CIL. For example, you move out of a property, develop it and move back in some time later, but you do not pay CIL because you were not in occupation when development commenced. I am sure that the noble Earl takes the point that there are degrees of complication here. My advice is that many farm buildings are covered by general permitted development orders. We have said that most such developments would be exempt, and representatives of farming will be fully engaged in consultation on that point. I hope that we can pursue that point in written correspondence. Amendment No. 136AZC might be intended to prevent CIL regulations defining planning permission for CIL purposes as being anything other than within the meaning of the Town and Country Planning Act 1990. We have been clear that we expect that most types of development will be liable to pay CIL. As I have said in previous stages of the Bill’s progress, this could well extend to development consented to through regimes that are other than the town and country planning regime. For example, if an Act of Parliament consents to development, it might be appropriate for it to be liable to pay CIL. Similarly, if we conclude that it is appropriate that developments such as power stations should be subject to CIL, we would not want the largest schemes to avoid CIL by virtue of being consented to by the Infrastructure Planning Commission. The amendment would rule out those possibilities, and it is premature to do so. I hope that on that basis the noble Earl will feel able to not move his amendment.