'(1) After section 78, subsection (2), of the principal Act there is inserted—

'(2A) Where a local planning authority approves an application for planning permission and—

(a) the planning application does not accord with the provisions of the development plan in force in the area in which the land to which the application relates is situated; or

(b) the planning application is one in which the local authority has an interest as defined in section 316;

(c) the planning application falls within the definition of ''major applications'', as defined by a person appointed by the Secretary of State for that purpose;

(d) the planning application is accompanied by an Environmental Impact Assessment;

(e) the planning officer has recommended refusal of planning permission, certain persons as specified in subsection (2B) below may by notice appeal to the Secretary of State.

(2B) Persons who may by notice appeal to the Secretary of State against the approval of planning permission in the circumstances specified in subsection (2A) above are—

(a) any persons who have lodged a formal objection to the planning application in writing to the planning authority for the area in which the land to which the application relates is situated;

(b) other persons at the discretion of a person appointed by the Secretary of State for that purpose.''.

(2) Section 79 of the principal Act is amended as follows—

In subsection (2), leave out ''either'' and after ''planning authority'' insert ''or the applicant (where different from the appellant).''

In subsection (6), after ''the determination'' insert ''(except for appeals as defined in section 78(2A) and where the appellant is as defined in section 78(2B).''.'.—[Matthew Green.]

Brought up, and read the First time.

Question proposed, [16 October], That the clause be read a Second time.

Question again proposed.

I remind the Committee that with this we are discussing new clause 47—Appeals (non-compliance with development plan)—

'1. After section 78, subsection (2), of the principal Act there is inserted—(2A){**em**}Where a local planning authority approves an application for planning permission and—

(a) the planning application does not accord with the provisions of the development plan in force in the area in which the land to which the application relates is situated; or

(b) the planning application is one in which the local authority has an interest as defined in section 316;

the persons who may by notice appeal to the Secretary of State against the approval of planning permission in the circumstances specified above are—

(a) any persons who have lodged a formal objection to the planning application in writing to the planning authority for the area in which the land to which the application relates is situated;

(b) other persons at the discretion of a person appointed by the Secretary of State for that purpose.''

2. Section 79 of the principal Act is amended as follows—

''In subsection (2), leave out (''either'') and after ''planning authority'' insert ''or the applicant (where different from the appellant).''

In subsection (6), after ''the determination'' insert ''(except for appeals as defined in section 78(2A) and where the appellant is as defined in section 78(2B)''.'.

On a point of order, Mr. Hurst.

Mr. Clive Betts (Sheffield, Attercliffe) rose—

Order. I call the hon. Member for Cotswold (Mr. Clifton-Brown) first, on a point of order.

I am sorry to interrupt proceedings so soon in our second week of proceedings, Mr. Hurst. I welcome you to the Chair, and I also welcome other members of the Committee and the House of Commons staff.

I wish to put on record my gratitude to the Government for their speed in responding to the Committee's deliberations on high hedges in new clause 1, tabled by my hon. Friend the Member for Isle of Wight (Mr. Turner). They acted with admirable speed, and have taken a better route than would have been achieved through this planning Bill—through the Anti-social Behaviour Bill, with a conciliation and arbitration procedure. I know that all of the 10,000 people who have problems with high hedges will be absolutely delighted with the Government's announcement. I hope that the change is accepted in the other place and that we can consider it once that Bill returns to the House, and that it is put on the statute book as soon as possible.

Order. That is not a point of order, but a point of civility.

I am afraid that I am in a rather hot and sticky state this morning, Mr. Hurst. It was not the prospect of the Committee's deliberations that got me excited, but the fact that I had to run here; I am not as fit as I thought I was.

I ask the Minister to take my comments as an opportunity for reflection. I am not threatening to side with what the hon. Member for Cotswold (Mr. Clifton-Brown) said about third-party rights of appeal, but I think that he made some interesting points that are worthy of an ongoing debate. Indeed, a debate has been taking place on such planning issues for some time.

We have two issues to grapple with. One is the democratic nature of the planning system, and where responsibility and accountability lies for taking decisions. The other is the need for an efficient and

quick planning system that will deliver the appropriate decision promptly to those who have made planning applications.

The objection to third-party rights of appeal against planning decisions has always been that it would slow down the system, making it unworkable, bureaucratic and cumbersome. It has therefore been resisted by Governments of all political persuasions. However, in some respects, it is worth reflecting whether some change might be made.

The Opposition have raised the interesting question of allowing third-party rights of appeal in certain limited areas. The first case that comes to mind is a departure from the unitary development plan or, in future, the local development framework—a decision in which the local authority has a direct interest. Such a limited right of appeal would not hold up many cases, but it would probably address the concern sometimes legitimately held by local people that their views are not properly taken into account.

Generally speaking, local decisions should be taken by local authorities. I think that we ought to look on the other side, and consider whether some rights of appeal might be removed. I shall give an example of what might happen under the current system of unitary development plans. A group of people may object to the local authority's allowing building on a certain piece of land. The local authority may decide to incorporate that piece of land into the UDP for housing purposes. The individuals concerned go through the appeal process. They raise their objections, and the case eventually comes to a final hearing before an inspector. They win their case, and as a result that area of land is not zoned for housing. The UDP shows it as open space, or it is put to some other use.

It is technically possible that within a few weeks of that, the local authority can make a planning application for housing on that piece of land. As I understand it, that can be stopped in two ways. First, the Secretary of State can call in the decision, but if the piece of land is relatively small that may not happen. Secondly, the individuals may go for a judicial review because the local authority had breached its planning obligations in its handling of the case. However, for such a small group of people, judicial review is not an easy or cheap way of challenging such a decision.

In the few cases in which the existing plan for the area has clearly been breached, and the local authority has an interest in doing something that might be seen to run counter to its planning interests—in other words, it will make money out of the sale of the land—we may need to examine the potential problem of third parties not having a right that they can exercise through a judicial review; if it were decided that the Secretary of State would not call in the proposal, there would not be another way forward.

There is another side to the coin: if the Government really want to speed things up, will any thought be given to removing the right of appeal from an applicant when the local authority's decision is absolutely in line with the current plan for the area? If a local authority turns down an application, why should

there be a right of appeal if that decision is completely in line with the current UDP or the future local development plan? If we put the two together, we might end up with far fewer appeals and a far quicker process. I throw that up as an idea for discussion, because I have sometimes wondered why an unappointed official or inspector with no accountability at local level should have rights when the local authority has taken a decision completely in line with existing plans, which the Secretary of State has also approved.

The issue is worthy of debate because there are interesting conflicts relating to quick and proper process, and where democratic accountability lies, on which the Minister might like to reflect.

I reiterate the welcome given by the hon. Member for Cotswold to you at the start of today's sitting, Mr. Hurst.

I thank the hon. Gentleman for his point of civility in expressing support at the commencement of our proceedings for the moves to incorporate the provisions of the High Hedges (No. 2) Bill into the Anti-social Behaviour Bill in the House of Lords. The fact that we are doing that is a reflection of the seriousness with which we take the Committee's deliberations. During our proceedings on Thursday, it was a source of slight frustration to the Under-Secretary of State, Office of the Deputy Prime Minister, my hon. Friend the Member for Pontefract and Castleford (Yvette Cooper) and myself that we knew that a decision was imminent, but were unable to let the Committee know what it was because it had not been finalised. I believe that I express the satisfaction felt by both sides of the House about this sensible and important development.

I have responded—I believe graciously—to the hon. Gentleman's point of civility, but I shall have to begin my response to our debate on new clauses 27 and 47 on a somewhat sombre note. The Committee will recall the closeness with which the hon. Member for Ludlow (Matthew Green) and I operated in response to his proposals in new clause 26. In contrast to our previous exchanges, however, I fear that the love-in between the hon. Gentleman and myself may now be at an end.

New clauses 27 and 47 seek to introduce a right for third parties to appeal against the planning permission granted by a local planning authority in specified circumstances. Both clauses envisage a limited right of appeal. I am encouraged to see that at least there are no calls for any blanket third-party right of appeal. I am also encouraged by the hon. Member for Cotswold and his rejection of some of the categories of development included in the new clause tabled by the hon. Member for Ludlow.

The inspiring intervention by my hon. Friend the Member for Sheffield, Attercliffe (Mr. Betts), which was characteristically thoughtful and serious, was well worth the journey. In many respects, it was as much a call for greater flexibility in the planning process as for extending third-party rights of appeal. I very much hope and expect that the Government's new proposals for a change to the planning framework, which we will

debate this afternoon, will in many respects deal with those elements of greater flexibility for which my hon. Friend is, in part, calling.

The planning Green Paper clearly set out the reasons for ruling out any right of appeal for third parties, even one limited in scope. A right of appeal for third parties would slow down the system and would not be consistent with our democratically accountable system of planning. It is the responsibility of local planning authorities to act in the general public interest when determining planning applications. They must take account of the views of local people before decisions are made, and subsequently justify their decisions to their electorate.

The hon. Member for Ludlow rightly recognises the need to secure a faster, more balanced planning system. We need greater community involvement in the planning process. He and I are at one on that matter. It is right that anyone affected by, or with an interest in, the development of an area should have the opportunity to make their views known and to have them taken into account. The planning system already provides ample opportunities for that. However, it must take place at the right stage in the process, before decisions are made. We do not want increased opportunities for argument and debate after the event.

We intend to build on and further strengthen the opportunities for contribution by making the planning system more accessible and transparent, and by strengthening opportunities for community involvement throughout the whole process. The provisions will strengthen the opportunities for people to comment on and influence development proposals earlier in the process, even before a planning application has been submitted. By listening to people's concerns up front, we should be able to minimise the need for action after a decision has been made.

Surely, in the brave new planning system where problems are dealt with ahead of planning applications in a more effective way, the chances of there being the same number of appeals as under the existing system will be reduced. We would not expect a lot of appeals under the new clause. The Minister is confident about the effect of the consultation, and I too am confident that it will speed up the process, so there will be less chance of appeals being lodged; why not, in that case, allow the new clause in, because it might be needed in the odd few cases?

I understand that point. However, as I intend to demonstrate, the hon. Gentleman does have anxieties about the possibility of abuse of the planning system, as I do. There is a serious issue regarding abuse through the provision of third-party rights of appeal, however qualified.

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

authorities of their development control functions. It will not only 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 will have to be tested through independent examination.

As for the scenarios cited in the new clause, clear and strict rules and procedures are already established to ensure the propriety of the decision-making process and the decisions taken. First, proposals must be decided in accordance with the development plan unless material considerations indicate otherwise. Secondly, when proposals for substantial 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 determination. Thirdly, the Secretary of State may be requested to call in other applications, including those accompanied by an environmental impact assessment.

I now turn to the category for which Opposition Members see particular merit in their proposals—applications in which the local authority has an interest. Local authorities operate under strict rules to deal with possible conflicts of interest and to avoid any impropriety where a local authority has an interest in an application. Moreover, judicial review is available if impropriety can be shown.

The Minister asserts with confidence that local authorities act under strict rules. The rules may be strict, but most members of the public find that they are not very effective, and that judicial review is not a useful route. Will the Minister set out those strict rules, so that we can examine them in this Committee?

I am grateful to the hon. Gentleman, who anticipates my intentions in my few succeeding remarks.

Local authorities are often required to take decisions on issues in which they have dual interests. I believe that local authorities grant planning permission in some 5,000 cases a year in which they have an interest in the land. Those cases sometimes involve town centre sites and regeneration projects that will benefit local communities by creating homes and jobs, and by improving the environment. We need to ensure that such projects are delivered quickly.

Concerns were expressed about local authorities' ability to act fairly and in an unbiased manner where they have a pecuniary interest in a proposed development. For the benefit of the Committee, I shall briefly outline some of the safeguards that apply to such decisions, as requested by the hon. Member for Isle of Wight.

First, local authorities are obliged to act fairly towards those persons affected by planning decisions, and to adopt decision-making procedures that provide adequate fairness safeguards that comply with the Human Rights Act 1998. Decisions are subject to control by means of judicial review in the courts. That ensures that decisions are taken in accordance with the

law and within an 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 those legal safeguards, there are several administrative and procedural safeguards to ensure propriety in local decision making. First, the local government ombudsmen have powers to investigate allegations of maladministration. Secondly, there is guidance on ethical conduct for local authorities, such as the national code of local government conduct. Thirdly, local authorities have monitoring officers, who investigate allegations of maladministration or injustice. Fourthly, to ensure propriety in land disposal and in the promotion of specific developments, there are arrangements for the discharge of planning functions under the new constitutions for local governance, under which planning decisions are the responsibility of the planning committee, not the executive. Finally, there are special procedural arrangements, which already apply to local authorities' own development, such as the need to notify the Secretary of State of proposals that are not in accordance with the development plan. Those powerful safeguards render third-party rights to appeal, in whatever form, unnecessary.

Most of the safeguards in that list apply to councillors rather than to officers. I will quickly give an example from my constituency, although the Minister may not be able to comment on it in detail, because it will probably land on his desk in the end. The Bridgnorth district council has just granted planning permission on a site on which there will be a supermarket. As a result, there is a relief road on the land. The district council has a financial interest in part of the land, and for the past two years, the main promoter of that solution has been the head of development control, who is also the head of economic development. He wrote the planning report, which recommended approval despite the proposal being against the local plan, and then spoke extensively at the committee meeting, answering questions on why the plans should be approved. He may only be an officer, but he is very influential.

Again, I take the hon. Gentleman's point. In any circumstances we have to accept that it is normal within a planning function to have a proactive, developmental, regenerative role as well as a development control function. The broad situation that he describes is common in planning, and we want to support it. The Government are keen for local planning authorities to become increasingly proactive in their approach to planning. The purpose of planning is to promote sustainable development, not to find an elegant way of saying no to change.

The hon. Gentleman also alluded to specific aspects of the relationship between individual proposals and the plan. He is right to say that, because of my quasi-judicial capacity, it would be wrong for me to make any comment on the case that he mentioned. That is not an evasion; it is a statement of the law.

I do not ask the Minister to reflect on those most recent words, but I would ask him to reflect on his general statement. If it is the will of the Government and of councils that regeneration should be promoted through the planning process, surely that is a matter for the planning process—the unitary development plan or whatever succeeds it—not for the development control function, which is there to ensure that development is in line with the plan. Most local authorities have a planning policy officer, who sits alongside the development control officer. Is it not for the planning process itself to promote regeneration?

That is a perfectly reasonable point, and I do not see much difference between the hon. Gentleman's contention and the view that I expressed.

I find the proposition that a third-party right of appeal should be available where officers' recommendations to reject an application are overturned by elected councillors astonishing. It challenges the heart of the democratic process. Elected members must be allowed to reject their officers' advice; they, not the officers, are responsible to the electorate. In any event, councillors must have good planning reasons for rejecting officers' advice. Judicial review is available in the event that impropriety can be shown, or the decision can be shown to be irrational or perverse.

The Minister has referred three times to judicial review. On how many occasions, in whatever period happens to be convenient and within his knowledge, have planning decisions been overturned on judicial review?

I certainly cannot tell the hon. Gentleman that off the top of my head—and as I gazed around in my usual fashion for the usual sources of inspiration, I saw a shrugging of shoulders. However, I undertake to write to the hon. Gentleman, and therefore to the rest of the Committee, with that information. Again, I draw his attention to the fact that there are powerful safeguards in the planning process, and judicial review is not the sole recourse in the event of an allegation of impropriety in that process.

When the Minister writes to the hon. Gentleman about judicial review, will he draw a distinction between judicial review called for by the applicant and that called for by a third party? He is likely to find few instances of third parties going for judicial review and succeeding.

Again, I understand my hon. Friend's point; it is essential to the contention in his initial contribution. I shall certainly aim, if possible, to make those distinctions in the note that I supply.

I have said that there is an absolute requirement for the final decision in planning matters to be in the hands of councillors, not officers, and that it is absolutely correct for councillors to have the right, in the correct and proper circumstances, to reject officers' advice, but the difficulties with the new clauses do not end there.

It is envisaged that the right of appeal would apply to anyone who had objected at the application stage, and to anyone else, at the discretion of a person appointed by the Secretary of State for that purpose. The former provision would be likely to encourage the submission of objections, so as to safeguard the right of appeal should permission be granted at the application stage. The latter would inevitably lead to delay, by introducing an additional procedure to establish whether an appeal could proceed. A developer would be unable to implement the permission until the sifting process had been completed.

It is difficult to envisage 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, yet that would be possible under the proposal in question. The effect would be to frustrate the development. The proposal is a recipe for chaos.

To return to my response to an earlier intervention by the hon. Member for Ludlow, perhaps I may take the Committee back to the exchanges of last Thursday, on new clause 18, which dealt with the procedure for authorisation of compulsory purchase. In relation to the Government's innocent and well-meant proposals to extend the category of persons with a right to object to the confirmation of a compulsory purchase order, the hon. Gentleman spoke with anxiety and disapproval of the possibility that objectors could exploit the new clause. He said:

''There is the potential in all this for determined and well organised objectors to create an unforeseen difficulty.''—[Official Report, Standing Committee A, 16 October 2003; c. 91.]

He went on to warn that the provision could become ''an objectors' charter''. I want to know, and I am sure that the Committee will want to know too, what has changed between then and now. For that reason, and for the others I have mentioned, I see no merit in introducing a third-party right of appeal, and I ask the hon. Gentleman and the official Opposition to withdraw the new clauses.

The Minister has been very persuasive. I can speak only to new clause 47, and must leave the hon. Member for Ludlow to speak to his new clause. On reflection, there may be sloppy drafting early in our new clause, in the passage that begins:

''Where a local planning authority approves an application for planning permission''.

We have specified two sets of circumstances in the provision: where the proposal does not accord with the development plan, or where the local authority has a vested interest. Those would obviously be known beforehand. My intention in supporting the new clause was not that people would have to wait until planning permission had been given. Clearly, if a local authority puts in its own application to develop its own land, we can all tell what the answer will be. In the two sets of circumstances specified in the new clause, third parties should have an immediate right to have their say.

All the issues could be overcome. I keep stressing that I want any legislation to be as simple as possible. What we intended by tabling new clause 47 could come about without any change in the law if the Secretary of State were minded to say, ''Where these two conditions exist, I will make it my practice to call in the application for determination''—after a public inquiry, of course. Although we agree with the Minister that the process should be speeded up, I sense that a majority of the Committee's members—certainly those who have spoken—feel that the problem could be overcome if the Secretary of State declared that he would call in after a public inquiry where a local authority has a vested interest in an application that either it has put in or that someone else has put in on its behalf, where there has been a significant departure from the development plan. I do not know whether the Minister feels that he could go that far, but that would relieve a lot of the doubts and concerns that prompted us to table the new clause.

I did not intend to speak a second time to the new clause, but I must address some of the issues to which the Minister referred. I was agreeing not with him, but with the hon. Member for Ludlow, when I said that it was reasonable that regeneration projects should be addressed through the planning policy, not through the development control function. The misunderstanding was probably my fault, for not making myself clear. My local authority divides responsibility within the planning department. Under what the Government propose, it should in principle be possible to address a new development that is outside the existing local plan first, and perhaps for it to be called in by the Secretary of State or subject to a public inquiry, and certainly for it to be subject to a third-party right of appeal, although that should apply at the development control point, not at the planning inquiry point, where there are plenty of processes already.

However, as the hon. Member for Sheffield, Attercliffe said, the problem is when the local authority knows that something is against the plan, yet still gives permission. Unfortunately, members of the public do not agree with the Minister that local authorities are bound by all those safeguards—and it is perhaps even more important not only whether they are bound by those safeguards, but whether they are seen to be so.

The first of the safeguards to which the Minister referred is judicial review. He is resting on judicial review as an option for third parties, but if he cannot tell us how often it has been used—and I do not expect him to be a walking encyclopaedia—he ought at least to consider the difficulty that individuals have in taking it forward. Judicial review is beyond the power of most people; they simply cannot afford it. In a case in my constituency in which the local authority gave planning permission, having financially sponsored a development, a member of the public has taken the authority to judicial review. This case probably will not end up on the Minister's desk, but that member of the public told me that he had set aside £2 million for taking proceedings against the local authority in the

High Court. Most people do not have access to such resources, or anything approaching them, so there is no defence for putting forward judicial review as a means of redress for members of the public.

Does my hon. Friend agree that in the vast majority of cases, developers have the financial resources to be able to contemplate judicial review, whereas local objectors almost overwhelmingly do not? None the less, the Minister keeps citing judicial review as an avenue to be used in such circumstances. His argument is undermined by the fact that that avenue is available to one side but not, in most cases, to the other.

Indeed. That is encapsulated in the phrase, ''One law for the rich and another for the poor.''

The Town and Country Planning Association has given an example:

''In one case a damaging planning permission that removed already scarce daylight and sunlight from some one's home was effectively unchallengeable by the by the individual concerned. This is because appeals to the High Court generally deal only with errors in the decision making process (not with interpretation of policy)''.

In other words, if half a dozen councillors believe that something is the right thing to do, however absurd it might be, they can get away with it so long as they manage to jump through the right hoops on the way.

The Town and Country Planning Association continued:

''and because the Local Government Ombudsman has no powers over planning decisions.''

I interpret that to mean that although the local government ombudsman has the power to investigate planning decisions, he has no power to overturn them. Once planning permission is granted, especially by a local authority to itself, it is highly improbable that anyone will revoke it.

The association goes on to say:

''Furthermore the client was advised by counsel that it would be unwise to defend her right to light in a civil case as the court would be unlikely to uphold a right that the planning authority had already deemed unimportant to uphold. So called individual rights therefore (such as the right to light) can in a small minority of cases therefore, come to nothing under the current system.''

The Minister gave examples of administrative safeguards, and I referred to the powers of the ombudsman. The ombudsman is dependent on the information that the local authority gives to him. In many cases, it is the sheer partiality of that information that led to the decision in the first place. I should also add that local authorities are notorious at being unable to find the relevant records when the ombudsman wants to conduct an investigation.

There is guidance on the ethical conduct of individual councillors and the role of the monitoring officer, but again a good deal of work is required on the part of individuals who may not be familiar with the working of the council and who may not have access to confidential information. In many cases, the information is kept confidential even from councillors, unless the councillor concerned knows that the

information exists. A member of a local authority can ask for a piece of information if they know that it exists, but they cannot do so if they do not know that it exists.

Finally, the Minister referred to the responsibility being given to planning committees but not to the executive. I regret to say that some planning committees, including the one in my constituency of Isle of Wight, are composed largely of members of the executive. There is a requirement for planning committees to operate independently, but there is no requirement for members of the executive, who may have responsibility for economic regeneration or for resources, not to sit on the planning committee. It is therefore fairly easy for them to translate what they learned in the executive, and perhaps in a political group that meets before the executive, into a decision taken in the planning committee.

I am especially concerned about the case of a planning consultant who used to be the leader of the local authority and who is promoting the development of supermarkets in three or four towns throughout the island on property owned by the local authority. The local authority is now seeking to have a building de-listed to facilitate the development of a supermarket. That seems to me to be a total abuse of the planning process and a perfect example of a conflict of interest in which planning permission would be granted under the Minister's desire for effective regeneration. We all want regeneration, but we want it to be balanced by effective planning and we want members of the public to see it as fair. The Minister has not yet persuaded me that it is fair.

We cannot let the matter rest on the Minister's reply. I give him notice, so that he and his officials can think about it, that I am about to adduce a case on a detail of article 6 of the European convention on human rights. It is important that there should be something on the record from the Minister, as it is almost a racing certainty that, now that article 6 of the convention is incorporated into our law, somebody will challenge the Bill in the European Court of Human Rights, and that might well concern third party rights.

My hon. Friend the Member for Chipping Barnet (Sir Sydney Chapman) raised the point in the previous sitting, and I am grateful to him for alerting me to it. Since then, I have done some reading, in particular the House of Commons research paper 02/38, ''Third Party Rights of Appeal in Planning''. We should pay tribute to the House of Commons Library, which gives us an excellent service. Our debates, both in Committee and on the Floor of the House, are considerably enhanced by its material, which is often produced when we want things yesterday.

I shall mention a couple of practical points before I go into the legal arguments about article 6. It is accepted in the Committee that third party rights of appeal should be limited to the two categories in new clause 47. Indeed, I made a similar specification in new clause 4 for the Report stage that never happened, so that we did not get a chance to discuss the matter.

Let me deal with the category in which there is a departure from the local plan. At the moment, if there is a departure from the plan, the relevant Government office is notified and has to decide whether to call in the application. For most larger and controversial applications, a departure from the plan would be called in. Therefore, the crucial question is, how many cases in which there is a departure from the local plan are not called in? If the Minister cannot answer that now, I should be grateful if his officials would write to us. I am thinking of small but significant cases, as my hon. Friend the Member for Chipping Barnet called them: those that fall between the large and controversial and those in which there is a silly departure such as a building being a few feet out of line. I accept that there could be a difficulty in defining significant cases, but we need to know about them in order to decide whether there is a need for the third party right of appeal in that category.

The strongest category is that in which the local authority has any form of pecuniary interest in the land and grants planning permission. My hon. Friend the Member for Isle of Wight, has come up, as always, with an interesting example in his constituency, that of the local authority owned land on which a supermarket might be built. Whether or not it is the right site, if a supermarket is to be granted permission, the system needs to be seen to be fair, open and transparent. Indeed, the Minister used the words ''accessible'' and ''transparent''. Those words will be held up to bright lights in the future.

Of the 500,000 or so planning applications a year, 90 per cent. are granted, so the Committee is dealing with a law that affects people who have an interest in land in the remaining 10 per cent. However, that is still 50,000 cases, of which only 5,000 concern situations in which the local authority has an interest in the land. If all 5,000 landed on the Minister's desk and all of them required a local public inquiry, that would add significantly to the planning inspectorate's work load. However, I do not expect that all of them would require a public inquiry. Only a proportion of them would.

If we do not introduce some form of third-party right of appeal, an appeal will eventually be made to the European Court of Human Rights, and the European court will insist that such a right is incorporated into our law. The Minister needs to consider the point more favourably.

On the important point about the possibility of going to the European Court of Human Rights, I understand that, under the Human Rights Act 1998, our courts have to anticipate decisions of the European Court. As a result, appellants would not have to go to the time, trouble and expense of going to the European Court of Human Rights; they could go to court here.

As I shall say in a few minutes, such cases have already been heard; and I shall parade details of them before the Committee so that we can see exactly where we are in legal terms.

As I said, the Human Rights Act 1998 opened up the possibility of using the European convention on human rights to challenge our planning system, mainly through article 6, the relevant part of which states:

''In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.''

The well known planning expert Professor Malcolm Grant gave evidence to the Environment Sub-Committee. He said:

''When one looks closely at the convention rights and looks at the case law that has arisen from the court in Strasbourg and from our national courts, it is difficult to avoid two conclusions. One is that in planning appeals Article 6 applies to appeals by developers because it involves the determination of people's civil rights and obligations.''

Most important, he continued:

''If that is true of prospective developers, it is also equally true of objectors, although not in every case.''

That hinges on the point made by my hon. Friend the Member for Isle of Wight on access for everybody to judicial review. Clearly, the system is currently unequal. Professor Grant continued:

''However, there will be cases in which it would be foolish to deny that people who are objectors to a development had civil rights and obligations that were being determined. If that is the case, at present we would be falling short of our convention obligations were we not to have a third-party right of appeal in such instances.''

In December 2000, a test case known as the Alconbury judgment was heard. In it, a group of four test cases resulted in a High Court ruling that the planning system was incompatible with the convention. Needless to say, that case went to the House of Lords, where it was known as Alconbury v. SSETR. It was heard in early March 2001, and judgment was given on 9 May 2001. The House of Lords ruled that although the Secretary of State did not constitute an independent and impartial hearing—that is one part of article 6 with which we clearly did not comply—the whole procedure, including the public inquiry, was compatible with article 6.

The Times law report gave Lord Slynn's judgment, with which the other Lords concurred. The report stated:

''Lord Slynn said that it seemed plain that the dispute was one which involved the determination of civil rights within the meaning of the Convention. The European Court of Human Rights had, however, recognised from the beginning that some administrative law decisions which affected civil rights were taken by ministers answerable to elected bodies...It was not suggested [by the respondents] that there was actual bias against particular individuals, on the part of the secretary of state or the officials who reported to him or who advised him. But it was contended that the secretary of state was involved in laying down policy and in taking decisions on planning applications in accordance with that policy. He could not therefore be seen objectively to be independent or impartial''.

Again, that point was made by my hon. Friend the Member for Isle of Wight last week.

The Times law report continued:

''But none of the judgements before the European Court of Human Rights required that the court should have full jurisdiction to review policy or the overall merits of a planning decision.''

The Library conclusion was:

''It would be possible to take the challenge to the European Court of Human Rights at Strasbourg, but that process normally takes around two years.''

When a case is bought, it will be a long time before we change the law.

The Sweet & Maxwell Encyclopaedia of Planning Law and Practice Monthly Bulletin, the bible of planning, gave a conclusion on the Alconbury case. I will not quote the whole conclusion, but merely this part:

''Given that a third party may challenge the grant of planning permission by a claim for judicial review, under broad rules of standing, does this overcome the evident want of independence and impartiality on the part of the local planning authority? It is not evident that it does so.''

Importantly, Lord Woolf, the Lord Chief Justice, who had nothing directly to do with the House of Lords case, made comments afterwards in the Sir David Hall memorial lecture that may prove to be the best guide to what may happen next. He pointed to the judgment of Lord Slynn and was reported in Planning as follows:

''Slynn said that 'in exceptional circumstances' courts may be able to reconsider the merits of a particular case. Slynn's judgement, Woolf claims, gives the green light for a widening of the scope of judicial review which at present can only assess the facts of a given case and not its merits. Slynn said that exceptional circumstances can occur when courts weigh up whether a development is important enough to justify the potential infringement of an individual's human rights. Woolf pointed out that this would involve the introduction of the European human rights legal concept of proportionality into UK administrative law.''

Another piece of law and convention touches on planning law—that is, the Aarhus convention. The main provisions concern the right to environmental information, public participation in decision making and the right to challenge environmental decision making in the courts. Its main impact will therefore be to improve the alternatives to third party rights of appeal.

It seems to me that the Government are under pressure on third party rights of appeal on two counts. That pressure is due first to article 6 of the European convention on human rights and secondly to the Aarhus convention. We have a narrow judicial review, which is inaccessible to ordinary citizens on the grounds of cost and complexity as well as because of its narrowness. I hope to goodness that we never get away from that narrowness, as a judicial review can challenge only the law and the way in which the planning authority has gone about a decision, not the merits of the decision itself. Once judges can challenge and make judgments on the merit of the decision, every single case will end up in the courts. Narrowness in planning and arbitration decisions has been a fundamental convention of the law. Practitioners should debate the merits of a case; the law should debate the mechanics and the law of the case.

Given the narrowness of the judicial review, which my hon. Friend the Member for Isle of Wight has touched on, it seems to me that somebody will challenge under article 6 before long on the basis that they do not have full access to a proper, fair and easy system of tribunals and appeals. In that situation, the Minister will need to consider carefully whether we ought not to introduce some form of third party rights of appeal to our law.

Unfortunately, in the time available I could not get the chapter and verse for what I am about to say, but I believe that it is correct. The final reason that the Minister should introduce those rights is because where a national Parliament legislates clearly on a matter, it is much more difficult for the European Court of Human Rights to overturn that particular law. Rather than wait for somebody to challenge the Government under article 6, it would be much better if we clearly provided in the Bill for the limited circumstances set out in our proposal. I accept the comments made by my hon. Friend the Member for Chipping Barnet that we may not have got the wording right—either for the category of people who have the third party right or for the mechanism—but the principle is there. We are debating the principle and the Government need to address that matter very seriously.

I am grateful to colleagues for their serious and knowledgeable interventions. I say to the hon. Member for Cotswold that I will deal with article 6 at some length.

As ever, the hon. Member for Isle of Wight makes a generally knowledgeable and informed intervention. However, he may have put his case a little too forcefully. A huge body of planning law constrains local planning authorities. There is a huge body of procedure and of opportunities for appeal on the ground of impropriety. Above all, there is the safeguard of democratic accountability. It is at least arguable that elected representatives are generally a little too responsive to the sentiments of local populations.

Every year, thousands of decisions are taken in which local authorities have dual interests. As far as we know, there are relatively few objections in those cases. That is the evidence. None of us has been able to adduce statistics. If there were blindingly obvious statistics on the matter, someone would have them to hand.

I do not believe that the sole explanation as to the objections can be the constraint of judicial review costs, although I take that point. We live in an increasingly litigious society in which people are increasingly inclined to pursue matters through the courts if that is feasible. It is a matter of judgment. A balance must be struck. Successive Governments have taken the view that, against the need to progress, to make the planning process more efficient and effective, and to ensure that it delivers more extensively, the balance comes down on the side of declining third party rights because of the risk of abuse.

I return to the proposition underlying the Government's proposals, which is to encourage negotiation at the pre-application stage and to encourage the elaboration of a statement of community involvement through the statutory obligation laid on local authorities. The whole emphasis is on the involvement of local communities and local people in the processes. If there is a basis for concern about local people's rights, although I do not concede that there is, the arrangements that we are considering will go a long way towards securing people's rights in those situations.

I hear what the Minister says, but I believe that my hon. Friend the Member for Isle of Wight is on to a good point, as he often is. The problem is not the system but the perception of that system. In a controversial case in which the local authority granted itself planning permission, there was a general feeling afterwards that local people had not had the opportunity to object. Of course they had, but people do not know what their rights are and touch the planning system only when it affects them in a controversial case such as that. We need a system in which such cases are more widely advertised, and there is more opportunity for public meetings and for people to go along to the local planning committee and have as much time as they want to put their case. Very often people go to the planning committee and are told, ''Oh, only a spokesman can address the committee.'' People's rights are being taken away and they do not even have an opportunity to address the planning committee. Thereby they feel very aggrieved—

Order. I am afraid that that is not brief enough for an intervention.

If I may say so in a nutshell, I entirely agree with the hon. Gentleman that there is such a perception. The purpose of the Bill—to widen the opportunity for community involvement and to encourage local authorities in their statements of community involvement to set out exactly the procedures that they will adopt to involve the local community, which must precisely involve, for instance, publicity and adequate advertisement of impending planning decisions—will be implemented. Members should again remember that the local authority's decision on the means of involving the local community will not be taken, as it were, behind closed doors, but will be subject to independent examination as an essential part of the new planning process.

It is not at the plan-making stage that people do not feel involved, but when the application comes up. Please will the Minister consider my example, in which a group of objectors goes along to the planning committee, which says, ''Oh, we can't be bothered with you, we'll just hear one of your spokesmen.''? That is not an acceptable way to proceed.

I apologise; I now better understand the hon. Gentleman's point, which is serious. I assure him that we shall think hard about precisely that issue in the draft guidance on the extent of community involvement that we expect to publish in the near future.

The hon. Member for Chipping Barnet speaks, as ever, on the basis of great experience in such matters and with eminent reasonableness. He made a plea for a wider use of call-in powers, but we would be reluctant to make a commitment to widen that practice. Our anxiety is that the already slow process of planning, granting of planning permission and subsequent development would be slowed down even further. The Secretary of State must exercise his judgment on the need for calling in any decision on a case-by-case basis. However, as the hon. Member for Chipping Barnet knows, those powers exist and they are exercised, as my hon. Friend the Member for Pontefract and Castleford and I very well know as Ministers with responsibility for planning. I understand the hon. Gentleman's point, but we would be reluctant to issue an edict that widening the call-in should be a more general policy.

On that point, the Minister will be aware that regional Government offices follow the guidelines of the Secretary of State on the exercise of the call-in powers. I do not suppose that most requests to call in reach the Minister. In his view, does the guidance that he gives to regional offices on whether to accept requests to call in give applications of the kind to which my hon. Friend the Member for Chipping Barnet referred a reasonable chance of getting through to the Minister?

That question is as long as a piece of string. We need to be more precise about the applications to which the hon. Member for Chipping Barnet was referring before we can decide whether it is already the practice of the Government offices to ensure that such cases be called in and that they reach the Minister.

I shall reflect on the matter, but we already deal with a large number of called-in cases. As a new boy on the block, I am impressed by the extent of democratic involvement in this context; I regard myself, as a Minister, as reflecting and forming part of that democratic process. The fact that many local cases that obviously relate to local people—at an extraordinarily microscopic level—should reach the higher reaches of government already reflects positively on our democracy, but whether we should extend that democratic element further is a matter for reflection.

May I put the matter another way round? Can my right hon. Friend think of any circumstances in which a planning application that was contrary to the local plan and had been approved by a council that had an interest in it would not be called in?

I have often had cause to comment, from my experience at the Dispatch Box, that there is nothing more deadly than a friendly intervention. I remember, too, the questioning from my hon. Friend when I appeared before the Select Committee. However, I get there in the end, and I am sure that I shall do so this time; I should like to give the impression that I have reflected. The matter is at the back of my mind as I respond to the questions asked by the hon. Member for Cotswold about article 6 of the European convention on human rights. It is an important issue and I need to respond at some length.

Article 6 requires, among other things, a fair hearing before an independent and impartial tribunal. In the context of applications for planning permission, and planning appeals, neither the local planning authority nor the Secretary of State is an independent and impartial tribunal. The requirement for a fair hearing is satisfied in all cases by the right to apply to a tribunal that undoubtedly is independent and impartial—the High Court. There is no general right for objectors to be heard by the local planning authority that determines the planning applications to which they object. There is, in general, no need for a hearing at that stage.

Of course, local planning authorities can hold hearings if they wish, and many do. In a case that came before the High Court about two years ago, the local planning authority's planning committee set aside a whole day to consider one application and to hear objectors state their views on it. That leads me to reflect that nevertheless, after what sounds on the face of it like a very fair approach, the matter went to the High Court.

It might be necessary in exceptional cases in which matters of fact are at issue for local planning authorities to give objectors a hearing, or even to hold local inquiries. They can do that under their present powers. If a local planning authority that should have done so fails to give a hearing, the court can quash the decision. The authority will then have to reconsider the application by the means indicated by the court.

That process of consideration of a planning application by a body that is not independent or impartial, followed by review by a body that is independent and impartial, has been approved in Strasbourg in the case of Bryan v. United Kingdom, and in cases before the domestic courts. The position was made clear by the Court of Appeal in the case of the Queen on the application of Adlard and others against the Secretary of State for the Environment, Transport and the Regions. In his judgment on 17 May 2002, Lord Justice Simon Brown stated that he had reached

''the clearest conclusion that the statutory scheme as a whole is plainly compliant with article 6''.

The statutory scheme to which Lord Justice Simon Brown referred is the scheme for the grant of planning permissions by local planning authorities. I accept that objectors to the grant of planning permission may not be entitled to a hearing of their objections by the local planning authority that is considering the application,

but that does not mean that their article 6 rights are infringed. In the same case, Lord Justice Simon Brown said:

''The remedy of judicial review in my judgment amply enables the court to correct any injustice it perceives in an individual case. If, in short, the court were satisfied that exceptionally, on the facts of a particular case, the local planning authority had acted unfairly or unreasonably in denying an objector any or any sufficient oral hearing, the court would quash the decision and require such a hearing to be given. This presents no difficulties''.

The judgments show clearly that there is no need for a third party appeal right in order to satisfy article 6 of the convention. I hope that the hon. Member for Cotswold is reassured by my words. I rest my case.

I had not realised that we were going to have an entire debate all over again. I have listened carefully to the Minister and he teased me over the objectors' charter. The new clause was drafted by a number of outside organisations, and one of the reasons why I tabled it was to prise from the Minister the circumstances that he might agree to be possible routes for a third party right of appeal. I can see that that was a futile exercise in this Committee, but I suspect, given that there is some agreement on this side of the Committee, that we might be able to return to the matter on Report or in another place.

I should like to deal with a couple of the points that the Minister made when he said that the system had built into it a series of controls, particularly in respect of decisions made by local authorities about their own land. I mentioned the case of Bridgnorth district council. I know that the Minister will not want to respond and I am not asking him to talk about it. Bridgnorth is slightly behind the times in that the director of development control and planning is also the director of economic development; a single person negotiates with the developers, then writes the report, then speaks on the matter in the planning committee and has promoted the scheme in the press for two years. The other district council in my area has separated the roles. Most people would hope that councils would do that, but there are clearly places in which it has not been done, and there is no diktat that it should be. There is therefore potential for abuse by officers.

My second point concerns the concept of the ombudsman. We heard from the hon. Member for Isle of Wight about access to information. He is right. Even councillors can find information only if they know that it exists. Even executive councillors do not always have access to information. In a recent case, which affected part of my constituency, the council granted itself planning permission because it had locked itself into a commercial contract. However, the councillors—not merely those involved in planning, but others as well—were not allowed to see the contract. It was only when I threatened to name in the House the officers who were refusing access that they relented and let an independent officer see the information in order to provide a precis for those involved. The limiting of access to information within local government can sometimes have a major bearing on planning applications. If information is not even

available to councillors who are trying to come to a decision, I struggle to see how it might be available in other cases.

The Minister also pooh-poohed subsection (2A)(e) of the new clause, which concerns the planning officer who has recommended refusal of planning permission. That would almost certainly be the same as the provision in paragraph (a),

''where . . . the planning application does not accord with the provisions of the development plan''.

A planning officer is most likely to recommend refusal of planning permission if it does not meet the needs of the development plan.

The Minister mentioned democratic rights. Let me give him the example of a number of councillors in my constituency, mostly independents, who will virtually vote yes every single time somebody proposes building a house in the open countryside or in the green belt, because they believe that the Government's policy—I think that it is PPG7—is wrong. We do not have recorded votes in relation to most planning applications, which is a great shame because I cannot prove statistically that that is the view of some of the councillors, but I know that it is. If they happened to be in a majority—fortunately, they are not on either of the councils—and therefore had a majority on planning, we would almost certainly see applications go sailing through every time somebody put in an application, even though it was contrary to the local plan. Applications for single houses would not be called in by the Government office and would not land up on the Minister's desk. Some circumstances might constitute local democracy but they could result in blight to an area and be completely contrary to planning policy guidance.

The issue of votes brings me to a further matter. The Minister spoke of accountability—at the end of the day the councillors have to live with their electorate. There are two issues there. One is that there are mostly single-member wards in a big rural area. All the objectors are likely to come from one ward, so the accountability will fall on one councillor, who might not even be on the planning committee. The others can make hay and not worry about accountability. Secondly, it is not compulsory to record votes in planning committees; it is the exception rather than the rule.

Is the hon. Gentleman aware that some planning authorities, including mine, guide their members not to vote at all on applications in their own wards?

I am aware of that. One local council lost a seat at the last local elections because it had earned itself a reputation for sitting on the fence on every local decision—it had followed officer advice and never taken part in any decision and had become the object of ridicule in the local pubs. That policy might protect a council against the Standards Board, but it does not protect if from the electorate. It is a serious issue. Unlike here, where every vote is

recorded, there are no recorded votes in planning meetings. If the Minister is serious about local accountability, he should consider ensuring that every vote in a planning committee is recorded. That would enhance accountability.

Order. The hon. Gentleman is drifting away from his new clause.

Thank you, Mr. Hurst. The Minister cited judicial review as a protection and as another reason why the new clause is unnecessary. I wonder whether the Minister knows that, in a judicial review ruling last year, Lord Chief Justice Woolf made it fairly clear that councillors were allowed to have predisposition but not predetermination. Predisposition means that, because they make policy, they are also expected to enact it. That is absolutely right. However, not only will councillors have made the policy; they will sit on the planning committee and vote for it. That, and the fact that a local authority can have an interest in a planning application, strengthens the case for the new clauses.

It has been a useful debate. I feel that we are heading towards common ground, at least on this side of the Committee, although the other place may have to use its muscle. However, I return to a point that I have made before. The Minister should be confident about his new system, as it involves much more consultation, and allows engagement with the public at an earlier stage. He should therefore also have the confidence to accept that, in some limited circumstances, a limited group of people—I do not pretend to have got it right in the new clause—should have a third party right of appeal. That is necessary to balance the system, because at the moment it is stacked in favour of those who make the application.

The hon. Gentleman refers to muscle being exercised in another place. I emphasise that not only Opposition Members have spoken about the need to alter the system. Labour Members have said that some alteration may be needed. I hope that those who might wish to exercise muscle will take note of that.

I thank the hon. Gentleman for that intervention.

After all those comments, it is obvious that I have not framed a new clause that the Committee can favour. It clearly contains some technical inaccuracies.

If the hon. Gentleman withdraws his new clause, I cannot then move ours. I give notice, Mr. Hurst, that, if possible, we shall press new clause 47 to a Division, even if the hon. Gentleman does not press new clause 27.

I want to see whether—

On a point of order, Mr. Hurst. Can we be clear about the procedure?

If the hon. Member for Ludlow indicates that he wishes to withdraw new clause 27, and if the hon. Member for Cotswold wishes to

proceed with new clause 47, the first will be withdrawn by leave of the Committee and the second will be divided upon when we reach the appropriate place.

I thank you, Mr. Hurst, for that clarification. You are right to anticipate that I shall seek leave to withdraw the new clause.

I do not wish to pursue the matter; we have debated it at huge length. I simply say that the critical phrase in article 6 of the European convention on human rights states is that

''everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.''

I hear what the Minister says, and I know of Lord Justice Simon Brown's judgment. In my view, however, judicial review will eventually not be held to constitute an independent and impartial tribunal established by law, particularly while it deals only with the mechanics of the law and not with what Lord Chief Justice Woolf called the proportionality or merits of decisions.

I hope that we never reach that state with judicial review but, in time, the Government will not be able to rely on it—especially, as has been pointed out this morning, because of the expense and difficulty of applying for judicial review and the fact that it is rarely, if ever, funded by legal aid. Effectively, the ordinary citizen of limited means has no access to judicial review, and the Government will not be able to rely on it for ever more. They need to think carefully about that otherwise, as I said in my opening words, it is almost a racing certainty that such cases will end up in Strasbourg.

I hear what the hon. Gentleman says, but I have trespassed as far into those judicial matters as I wish to. I have given the Committee a full explanation of the Government's understanding of the requirements of article 6 of the convention.

I am grateful to the hon. Member for Ludlow for his contribution, which was as lively and as colourful as ever. I continue to welcome his support for the Government's proposals for greater community involvement in the planning process. I suggest that we should perhaps explore the possibilities and see what emerges. That would go a long way towards allaying the fears surrounding the issues that have been raised in Committee.

I promised to reply to the question posed by my hon. Friend the Member for Sheffield, Attercliffe about whether there are any circumstances in which a decision to grant permission at variance with the local plan would not be called in. The answer is that it cannot happen; the Secretary of State must call it in before the decision is made. I hope that that satisfies my hon. Friend.

I thank the Minister for his unfailing courtesy and his great patience in answering all our questions. Despite that, we shall press new clause 47 to a vote at the appropriate time.

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.