Prince Charles's veto on planning laws
Tony Gosling
tony at cultureshop.org.uk
Mon Nov 21 00:12:28 GMT 2011
this one is a few weeks old - but nonetheless
worryingly revealing of Charles' true role as a developer
Reveal Prince Charles's input on planning law, government urged
http://www.guardian.co.uk/uk/2011/oct/31/prince-charles-veto-planning-legislation
Letter obtained by Guardian shows minister sought
consent on bill, but Clarence House insists issue is not of 'personal views'
Read the letter sent to Charles by Lady Andrews (below)
Robert Booth - guardian.co.uk, Monday 31 October 2011 16.56 GMT
The government is facing growing pressure to
reveal how the Prince of Wales has used his power
of consent over draft legislation after it
emerged ministers asked him to approve planning
and construction laws because they might directly
affect the private £700m property empire that provides his annual income.
Documents obtained by the Guardian reveal that in
2008 Lady Andrews, a Labour communities minister,
wrote to Sir Michael Peat, his private secretary,
seeking Prince Charles's consent to law changes
that would "affect the interests of the Duchy of
Cornwall" and were "capable of applying ... [to
the] Prince of Wales' private interests".
The draft local democracy, economic development
and construction bill proposed to change laws
about handling disputes and payments in building
contracts and to introduce a new regional
strategy for planning permissions. The duchy is a
leading builder and has spent more than £18m on
property development and improvements in the last
two years, according to its accounts.
It also has large developments under way that
require planning consent, including 500 new homes at Poundbury, Dorset.
Prince Charles relies on duchy profits to fund
his lifestyle and work, and last year received
£18m in profits from the estate. Charles has been
granted the right to veto draft bills because
they might affect his interests or those of the
Duchy of Cornwall in what constitutional experts
described as the equivalent of a royal "nuclear
deterrent" over public policy. On Monday details
emerged of five more bills to which the Prince
has been asked to grant consent since 2005,
bringing the total over the period to at least
17. They covered subjects such as marine
navigation, retail development, company law and
charities, parliamentary records show.
On Monday night Labour peer Lord Berkeley, who
was ordered to seek the prince's consent over a
bill on marine navigation, formally called on the
government to "publish all correspondence between
the Prince of Wales and the Queen and ministers
in connection with bills for which their consent
is sought" and to say "whether any bill in the
last five years has been altered as a result of
comments from Prince Charles or the Queen, and in what way".
Clarence House and Whitehall seemed to be divided
over whether such transparency was a good idea.
Clarence House declined to say how the Prince
responded to the draft local democracy, economic
development and construction bill. A spokesman
for the Department for Communities said on Monday
"no changes were requested and as such none were introduced".
Asked if David Cameron who last week agreed
with Commonwealth states to change the rules on
succession to the throne had any plans to
reform the system, the prime minister's
spokeswoman said: "I know of no plans at the moment to look into it."
Clarence House insisted any correspondence was a
"private matter" but said the convention was not
about seeking the prince's personal opinions.
"Parliamentary procedure determines that the
Prince of Wales in his capacity as the Duke of
Cornwall may be required to give his consent to
bills directly affecting the interests of the
duchy," the prince's spokesman said. "This is not
about seeking the personal views of the prince
but rather it is a longstanding convention in
relation to the Duchy of Cornwall, which would
have applied equally to his predecessors."
Graham Smith, director of Republic, the campaign
for a directly elected head of state, said the
loophole was fundamentally anti-democratic.
"Charles is quite capable of doing the right
thing by refusing to exploit his position for
personal gain yet he refuses to do so," Smith said.
The government and Clarence House have repeatedly
refused to disclose correspondence detailing the
application of Charles's power.
The justice, education and food and rural affairs
departments are among those to invoke an
exemption to freedom of information laws that
allows correspondence between Charles and his
aides and government to be kept secret, claiming
that to do otherwise "would undermine the Prince
of Wales's privacy" and "could have a chilling
effect on the way in which he or his
representatives correspond with government ministers".
In a rare exception, the Department for
Communities agreed to release its letters to
Prince Charles over the local democracy, economic
development and construction bill, providing a
unique insight into the application of the
otherwise secretive protocol. Lady Andrews's
three-page consultation with Charles on draft
planning and construction laws begins: "I write
to formally request the consent of His Royal
Highness the Prince of Wales to provisions to be included in the ... bill."
It includes 12 detailed paragraphs on how the new
legislation will change laws on adjudication
procedures in contractual disputes with builders
and laws affecting how contractors must be paid.
Andrews explained: "Granted that these proposed
changes ... will apply to construction contracts
entered into by or on behalf of the Duchy of
Cornwall, we should be very grateful to receive
the consent of the Prince of Wales."
Turning to changes to regional planning law, she
spelled out proposed new regional planning
strategies and warned Charles that this section
of the bill "is capable of applying to the Crown
and the Queen and Prince of Wales' private
interests and therefore that consent is required".
"They were trying to tell him in 2008 that, like
everybody else, he will be subject to statutory
development plans," said David Lock, a former
government planning adviser. "This was an attempt
to make the crown estate and duchy subject to the
same planning rules as everyone else, which means
they would not get any privileges over any other
land owner." A Clarence House spokeswoman
confirmed the duchy enjoys some exemptions from
normal planning laws but "has chosen not to
exercise these rights since the change in legislation".
"Since 2006 the duchy has been subject to
planning control in the same way as any other
landowner and prior to that voluntarily complied
with planning laws," the spokeswoman said.
Labour has called for "complete transparency"
about the views, if any, that Charles has
expressed in the process of granting consent to bills.
"Most people will be taken aback by what the
Guardian has highlighted," said Wayne David MP,
Labour's spokesman on constitutional reform.
"There needs to be a mechanism so that the if the
Prince of Wales is expressing a formal position
he can do that an open way. We live in a
democratic society so any views expressed should
be disclosed and should be open to scrutiny and analysis."
http://www.guardian.co.uk/uk/interactive/2011/oct/31/letter-prince-of-wales-consent
Baroness Andrews OBE Parliamentary Under
Secretary of State Department for Communities and
Local Government Eland House Bressenden Place London SW1E 5DU
Sir Michael Peat The Private Secretary to His
Royal Highness the Prince of Wales Clarence House London SW1A 1BA
Tel: 020 7944 3083 Fax: 020 7944 4538 E-Mail:
baroness.andrews at communities.gsi.gov.uk www.communities.gov.uk
LOCAL DEMOCRACY, ECONOMIC DEVELOPMENT AND CONSTRUCTION BILL
I write to formally request the consent of His
Royal Highness the Prince of Wales to provisions
to be included in the Government's proposed Local
Democracy, Economic Development and Construction Bill.
Please find enclosed two copies of the near final
draft of the Bill, which will now only be subject
to minor and drafting amendments. As I am sure
you will understand, the circulation of the draft
should be restricted to only those who need to see it.
Construction Contracts
First, we are writing to you to seek His Royal
Highness the Prince of Wales' consent to
introduce legislation which will affect the
interests of the Duchy of Cornwall. I apologise
for the fact that it is necessary to go into some
detail about these provisions, as they are highly technical.
The proposed legislation will amend Part 2
(sections 104-117) of the Housing Grants,
Construction and Regeneration Act 1996 ("the 1996
Act"), which Part concerns "construction
contracts". By virtue of section 117 of the Act,
Part 2 already applies to "construction
contracts" entered into by or on behalf of the
Duchy of Cornwall. Given that the proposed new
legislation will be amending Part 2, the
interests of the Duchy of Cornwall will again be
affected. The interests of the Duchy of Cornwall
will not otherwise be affected.
The proposed provisions will be included as part
of the Local Democracy, Economic Development and
Construction Bill to be introduced in the 4th
Session this December as trialled in the Draft
Legislative Programme published in May this year.
Part 2 of the 1996 Act
Part 2 of the 1996 Act concerns "construction
contracts" i.e. agreements for the carrying out
of a very broad range of "construction
operations" (sections 104 and 105). By virtue of
section 107, Part 2 only applies to construction
contracts which are "in writing".
Section 108(1) of the 1996 Act gives each party
to a construction contract the right to refer a
dispute to "adjudication" (a quick, informal
dispute resolution regime). In this regard,
section 108(2) to (4) requires the parties to
include various terms in their contract regarding
adjudication (for instance, a term enabling one
party to give notice to the other at any time of
that party's intention to refer a dispute to
adjudication; a term requiring the adjudicator to
reach a decision within a certain time period;
and one prescribing that an adjudicator's decision is binding in the interim).
Section 109 of the 1996 Act provides that
contractors (those performing the work) are
entitled to periodic payments (unless the work is
or is estimated to take less than 45 days).
Section 110(1) provides that construction
contracts are to contain an "adequate mechanism"
for determining what and when payments become due
under the contract, and section 110(2) requires
the payer to give the contractor/payee a notice
(in advance of each payment) of the sum which the payer proposes to pay.
If construction contracts do not contain
provisions which are consistent with section
108(2) to (4) and section 110 (or, as regards
section 109, the parties fail to agree upon the
amounts or the frequency or circumstances of
payments), the terms of the relevant Scheme for
Construction Contracts apply - one Scheme in
respect of contracts for construction operations
carried out in England and Wales, and the other
in respect of contracts for construction
operations carried out in Scotland. Where either
Scheme applies, such terms have effect as implied
terms of the relevant contract - in effect
supplying the missing contractual provision.
In addition, Part 2 of the 1996 Act requires the
giving of an appropriate notice by the payer
where the payer proposes to withhold moneys
(which notice may, if various conditions are met,
be the same notice as that given by the payer of
the sum which he proposes to pay) (section 111);
allows contractors to stop working where the
payer owes the contractor money (section 112);
and renders ineffective clauses in construction
contracts which make payments conditional on the
payer having been paid by a third party (section 113).
Summary of proposed changes to Part 2 of the 1996 Act
The new legislation will remove the current
limitation of Part 2 to construction contracts
which are in writing, and will require the
parties to include in their construction contract
a provision allowing the adjudicator to correct
minor, clerical or arithmetical errors in his or
her decision. Furthermore, the new legislation
will ensure that any agreement by the parties to
a construction contract to the effect that one
party will pay all or part of the costs of an
adjudication is only valid if made after the
appointment of the adjudicator. The new
legislation will also (generally speaking)
prohibit clauses in construction contracts which
make periodic payments conditional upon someone
performing obligations under another contract
(e.g. a clause in a sub-contract which makes
payment in the sub-contract dependent on
something happening in the main contract); and
will amend the existing provisions relating to
the notices given by a payer of the sums which
the payer proposes to pay - for instance, by
making it clear that such notices must be served
even where the payer proposes to pay nothing at
all In addition, the new legislation will
introduce provisions relating to the giving of
notices by the contractor/payee or by a third
party. A payee will be able to give a payment
notice where, for example, the parties have
agreed this in their construction contract or
where, having agreed that such notices were to be
given by the payer, the payer neglects to give
one. Another, related provision will introduce
(in most cases) a statutory requirement on the
part of the payer to pay the sums specified in these payment notices.
The final substantive clause will amend the
existing provisions relating to the right of the
contractor/payee to stop working when he has not
been paid. For example, it will clarify that a
contractor/payee may stop carrying out some (and
not simply all) of the work in such a case, and
will make the party who has not paid up liable to
pay to the contractor stopping work a reasonable
amount by way of the costs and expenses he incurs in doing so.
Granted that these proposed changes to Part 2 of
the 1996 Act will apply to construction contracts
entered into by or on behalf of the Duchy of
Cornwall, we should be very grateful to receive
the consent of the Prince of Wales.
Single Regional Strategy
Secondly, we are writing to you to seek His Royal
Highness the Prince of Wales' consent to
introduce legislation on producing a Single
Regional Strategy, which will affect the
interests of the Prince of Wales and the Duchy of Cornwall.
Part 5 of the Bill (Regional Strategy) provides
for a regional strategy in each region outside
London. A regional strategy has to set out
policies relating to sustainable economic growth,
development and the use of land in the region.
The regional strategy will be part of the
statutory development plan for the area, so that
applications for planning permission are required
to be determined in accordance with the
development plan unless material considerations
indicate otherwise (as provided by s.38 of the
Planning and Compulsory Purchase Act 2004).
The Part 5 provisions will replace Part 1 of the
2004 Act which provides for a regional spatial
strategy. Part 1 of the 2004 Act applied to the
Crown, and that Act further applied the Planning
Acts to the Crown, so that now most changes to
the town and country planning system are likely
to need consent. We consider that all of Part 5
of the current Bill is capable of applying to the
Crown and the Queen and Prince of Wales's private
interests, and therefore that consent is required.
Your early response to this letter would be much
appreciated. If you have any queries, please do
not hesitate to contact Holly Manktelow in my
Bill team (020 7944 3851, holly.manktelow at communities.gsi.gov.uk).
I am sending a copy of this letter to the Private
Secretary to her Majesty the Queen, Mr Paul
Clarke at the Duchy of Lancaster, Mr Bertie Ross
at the Duchy of Cornwall, Mr Julian Smith Esq at
Messrs Farrer and Co and the Secretary to the
Crown Estate Commissioners. A copy of the letter
seeking consent in relation toto Her Majesty the
Queen's interest will be provided to you as well.
BARONESS ANDREWS
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