Neighbourhood Planning Bill (Sixth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 25th October 2016
(8 years ago)
Public Bill CommitteesNeighbourhood Planning Act 2017 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 25 October 2016 - (25 Oct 2016)
The Committee divided: - Ayes: 4 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 4 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Neighbourhood Planning Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Neighbourhood Planning Bill (Eighth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 27th October 2016
(8 years ago)
Public Bill CommitteesNeighbourhood Planning Act 2017 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 27 October 2016 - (27 Oct 2016)
The Committee divided: - Ayes: 4 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 8 - Question accordingly negatived.
This text is a record of ministerial contributions to a debate held as part of the Neighbourhood Planning Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Tuesday 13th December 2016
(7 years, 11 months ago)
Commons ChamberNeighbourhood Planning Act 2017 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 13 December 2016 - (13 Dec 2016)
This text is a record of ministerial contributions to a debate held as part of the Neighbourhood Planning Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Emily Thornberry
My hon. Friend makes a powerful point that, in many ways, echoes what was said earlier about the importance of allowing aid workers and independent people into the area to bear witness to what is going on.
Secondly, once the fighting in Aleppo has ended—an end might well come very soon—how will we get humanitarian relief to the citizens still in eastern Aleppo and to those who have fled elsewhere, particularly as the temperatures begin to plummet and the need for shelter and blankets becomes as great as the need for food, water and medical supplies? As I have said, there is also a need for witnesses to the aftermath. If Russia and Assad continue to block road convoys into the area, surely the Government must finally accept that we have reached the point of last resort—that point at which the previous Foreign Secretary promised that airdrops would be used. If we fear that manned flights might be too dangerous, as does the Under-Secretary of State for Foreign and Commonwealth Affairs, the hon. Member for Bournemouth East (Mr Ellwood)—
The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr Tobias Ellwood)
indicated dissent.
Emily Thornberry
The Minister sits and shakes his head, but if we fear that such flights might be too dangerous, the Government must consider using unmanned drones or GPS-guided parachutes.
The Secretary of State for Foreign and Commonwealth Affairs (Boris Johnson)
I am very grateful to my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell) for securing this debate on a matter that the whole House feels so strongly about. I listened very carefully to all the speeches and found myself greatly in agreement with much that has been said by Members on both sides of the House.
After five months of siege and almost a year of bombardment, we are now reaching the end of the siege of Aleppo, and Assad’s forces are doing their utmost to stamp out the last embers of revolt. The dictator’s militias have carved paths of destruction through crowded streets destroying hospitals, severing water supplies and herding thousands of people from their homes. I will come in a minute to what we have tried to do as the UK Government, what we continue to do and what we will do in future. I will also, of course, discuss the tragic limitations that we have faced in our actions so far.
First, it is worth going back and remembering how this tragedy has unfolded. As long ago as July, the regime sealed off eastern Aleppo and then defeated two abortive efforts to break the siege. Notch by notch, Assad tightened the noose. The last UN convoy entered eastern Aleppo on 7 July. The last food rations were handed out on 10 November. The last functioning hospital was targeted by an airstrike and knocked out of action on 19 November. Some 275,000 men, women and children were then trapped in eastern Aleppo without food, medical care, or even, in many cases, electricity and water. In this piteous condition, they endured ceaseless attack from air and ground, notably by barrel bombs dropped from Syrian military helicopters.
I know that time is short, but it is worth reminding the House of exactly what a barrel bomb is and why it makes such a hideous weapon. Imagine a metal drum filled with petrol and explosives, and laced with nails and jagged shards of metal. These objects—[Interruption.] People watching and listening around the world may not know what they are. These objects are loaded on board helicopters, which then hover over civilian areas. The men on the helicopters simply light the fuses of the barrels before rolling them out of the door, leaving them to fall to the ground where they shred and incinerate any human being with range. There is no guidance system or targeting. Barrel bombs have no military purpose; they cannot be dropped near a frontline for fear of striking friendly forces. Their sole purpose is to murder civilians. Scores of these awful weapons have been used against the people of eastern Aleppo by Assad every day.
The collapse of the rebel-held districts began on 26 November and has gathered pace. In the areas recaptured by the dictator, we have already heard reports today of hundreds of young males being separated from their families and marched away to an unknown fate. The UN High Commissioner for Human Rights today reported that civilians have been “killed on the spot”.
As this tragedy has unfolded, the Government have sought to reduce the suffering with every diplomatic and humanitarian lever at our command. I must tell the House that we have used every effort at the UN. Even today, we are, along with the French, calling for an emergency meeting of the Security Council. I know that our excellent ambassador, Matthew Rycroft, will be conveying at the UN many of the sentiments expressed in the House.
On 8 October, we tried to secure a UN resolution that would have urged a ceasefire. It demanded that
“all parties immediately end all aerial bombardments of…Aleppo”.
That resolution was vetoed by the Russians. On Monday of last week we tried again, throwing our weight behind a draft resolution co-sponsored by Egypt, Spain and New Zealand that urged a seven-day ceasefire in Aleppo to allow the evacuation of casualties and the delivery of aid. Once again, Russia vetoed the resolution, joined by China. I think that the House will join me in condemning those in Moscow and Beijing who would not allow the people of Aleppo even a seven-day respite. I must say to my right hon. Friend the Member for Sutton Coldfield that I have had information from Aleppo—I am sure that other Members have, too—that even today the Russians are blocking the evacuation of the injured and of medical staff from the very zones they are attacking.
Stephen Doughty
Given what the Foreign Secretary has said about Russia and China’s behaviour and their failures, what will the consequences be for Moscow and Beijing?
Boris Johnson
We are gathering all the information that we think will be necessary for the prosecution of those guilty of war crimes, but the diplomatic pressure must continue. It was asked earlier what we are doing in the EU; I can tell the House that the UK stood up at the last meeting of the Foreign Affairs Council and argued for tightening sanctions against Russia in respect of Syria as well. I wish that the rest of the EU would follow suit.
Last Saturday I broke off a visit to the middle east to fly to Paris to discuss these matters with Secretary Kerry. I pay tribute to John Kerry for his efforts, but they have not prevailed. We jointly demanded that the “regime and its backers” allowed the UN to deliver aid “with immediate effect.” Assad has doggedly refused to allow the UN to deliver supplies to hundreds of thousands of people, many of whom are now starving. He is content for his own people to be reduced to starvation, even though there are UN warehouses full of food within easy reach.
Alison McGovern
What specific action to protect civilians will the Foreign Secretary tell the Prime Minister that she should propose to our European colleagues when she goes to the European Council next week?
Boris Johnson
What the Russians need to do—this is what our European colleagues should do as well—is to institute an immediate ceasefire. It is up to the Russians, and, I am afraid, to the Assad regime, to institute a ceasefire. I will come in a minute to the deficiencies and problems that our decision in 2013 left us with today. Many Members have sought to find fault with the UK Government and what we have tried to do. Given that we are contributing £2.3 billion of aid, many Members have asked an entirely legitimate question: why we do not fly in aid ourselves? Labour Members have asked that very question: why do we not drop aid on eastern Aleppo from the air? Many have spoken in favour of airdrops. In recent weeks since we last discussed this matter in the House, we have studied that option with great care. Working with my colleagues across Whitehall, and working with my right hon. Friend the Secretary of State for Defence and the RAF, I must tell the House that we have come up against some hard realities.
Mr Bradshaw
When the Foreign Secretary complains, as he repeatedly does, about Russian behaviour and Russian vetoes, does he understand that he sounds exactly like the Conservative Foreign Secretaries in the early 1990s who said exactly the same thing about the Balkans? We subsequently had a Labour Government who showed leadership, assembled a coalition and got American support to do something to stop the genocide. What is he doing?
Boris Johnson
That comes a little ill from a Labour Member because the right hon. Gentleman remembers fine well that the Labour party was whipped to oppose any action in 2013.
I want to return to the current situation because Members have asked some very reasonable questions that I think I must answer.
Boris Johnson
I hope that the hon. Lady will forgive me if I make some progress, because I have very little time left.
For airdrops to be accurate, they must be conducted at low level and low speed. Russia has deployed its most advanced jet fighters and surface-to-air missiles in Syria, which makes it impossible for us to carry out airdrops without Russian permission. Even if Russia were to give its consent, our aircraft would still have to fly over areas of Syria that are hotly contested by a multitude of armed groups, including Daesh and al-Qaeda. They would make every effort to shoot down a British plane, and a lumbering, low-flying transport aircraft would be a sitting duck. We came reluctantly to the conclusion that airdrops over Syria, under those conditions, would pose too great a risk.
When it comes to drones and other devices, we still face the problem that the Syrians and the Russians control the airspace. Of course it is possible that circumstances might change, so I will not rule out any option for delivering aid today, but nor will I give false hope. As things stand, we would be risking the lives of our aircrew if we tried to drop supplies into eastern Aleppo.
I pay tribute to those who have made brave efforts to evacuate wounded children. All those efforts depend on Russia and the Assad regime, and it is up to them to agree a truce. By far the most effective way of delivering aid would be for them to give permission to the UN to distribute the supplies that are piled high inside its warehouses. As long ago as December 2015, Russia voted in favour of UN resolution 2254, which urged all parties to
“allow humanitarian agencies rapid, safe and unhindered access throughout Syria”.
Russia must now obey the very resolution that it supported and compel Assad to allow the UN to feed his people—[Interruption.] I say to Opposition Members who are objecting to this that if we take the pressure off Russia, we are serving the purposes of the Assad regime.
Boris Johnson
I am afraid I will not.
There is another inescapable reality that Members must accept. On 29 August 2013, this House voted by 13 votes not to use force against Assad, even after he had poisoned hundreds of his people with sarin nerve gas. We, as a House of Commons and as a country, vacated the space into which Russia stepped, beginning its own bombing campaign on behalf of Assad in 2015. Ever since that vote, our ability to influence events in Syria, to protect civilians or to compel the delivery of aid has been severely limited. The dictator was left to do his worst—along with his allies, Russia and Iran—and the bloodiest tragedy of the 21st century has since unfolded.
I must say—the House should listen to this—that Assad’s conquest of Aleppo will not mark the end of the war. The victory will turn to ashes in his mouth, because even if he reimposes his rule over the rubble of that city, about two thirds of Syria will remain outside his control. Millions of Syrians are viscerally hostile to the rule of a tyrant who has the blood of hundreds of thousands on his hands. Already Daesh has taken the opportunity created by Assad’s assault on Aleppo to surge forwards and capture again the ancient Roman city of Palmyra. Assad has repeatedly said that his aim is nothing less than the re-conquest of “every inch” of Syria. If he is allowed to pursue that goal, I fear that this war will continue for more years, and victory will still elude him.
My question to those who ask what we would do—let us turn the question around—is: do Russia and Iran want to stand behind Assad in this futile and indefinite struggle to subdue Syria? Do they want to be with him siege for siege, barrel bomb for barrel bomb and gas attack for gas attack, as the tyrant reduces his country to ashes? In the months or perhaps years ahead, does Russia still wish to be dispatching warplanes to bomb Syrian cities while casting votes in the Security Council on behalf of Assad, a man for whom it has no great regard?
Alison McGovern
The Foreign Secretary mentions the vote in 2013; I will live with that for the rest of my life. May I ask again the question that I asked him earlier? There is no pressure on Russia at the moment, so why does he not tell the Prime Minister to go to the European Council and propose action that is led by the UK and supported by our European allies?
Boris Johnson
I can tell the hon. Lady that we are doing everything that we can within the constraints we face. I have described the restrictions on military options, which I think most people in this country understand.
Boris Johnson
I am afraid that I must now wind up.
I hope that Russia will see sense and join us to secure the transition away from Assad that is the only hope for a peaceful Syria. It is up to them—the Russians and Iran—and they have the future of Syria in their hands. This is one of the darkest hours in Aleppo’s four millennia of recorded history. One day, that city will rise again, and one day, Britain will be among the countries that help to restore Aleppo to the greatness it once had. That day might seem far off now, but it will come all the faster if the Russians and the Iranians do the right thing, abandon their puppet, and promote the peaceful and political solution that is the only way forward.
Question put and agreed to.
Resolved,
That this House has considered international action to protect civilians in Aleppo and more widely across Syria.
Mr Mitchell
On a point of order, Mr Speaker. Following the emergency debate, may I seek your advice? There has clearly been a profound re-examination of some of the arguments that led to the result of the vote in August 2013, when Parliament was recalled during a recess. Will you advise me whether there may therefore be a case for the Government to come back to the House with a substantive motion to reflect the changed circumstances since that time?
Tuesday 13th December 2016
(7 years, 11 months ago)
Commons ChamberNeighbourhood Planning Act 2017 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 13 December 2016 - (13 Dec 2016)
19:40 - The House divided: - Ayes: 161 / Noes: 274 - Question accordingly negatived.
19:53 - The House divided: - Ayes: 157 / Noes: 279 - Question accordingly negatived.
This text is a record of ministerial contributions to a debate held as part of the Neighbourhood Planning Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Tuesday 17th January 2017
(7 years, 10 months ago)
Lords ChamberNeighbourhood Planning Act 2017 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 13 December 2016 - (13 Dec 2016)
This text is a record of ministerial contributions to a debate held as part of the Neighbourhood Planning Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, I am delighted to be opening this important debate on the Second Reading of the Neighbourhood Planning Bill. Few of us here would disagree that our country is suffering from a serious shortage of housing. It is not a new problem, nor an unexpected one. We have not built enough homes in this country for a very long time. Between 1969 and 1989, more than 4.5 million homes were built in England; between 1992 and 2012 it was fewer than 3 million.
Every year that we build fewer homes than we need, the challenge becomes greater and the burden that we place on our children and grandchildren grows larger. Some 50% of today’s 45 year-olds were home owners by the time they were 30, but for those born 10 years later the figure is just 35%. Only 26% of those who are 25 today are projected to be home owners in five years’ time. Millions of young people are living with their parents until well into their 30s or struggling to save for a deposit while they rent. Too many cannot afford a roof over their head at all.
This is not just an economic headache but a profound social failure: a country divided between the haves and have-nots, where younger generations are denied the aspirations and standard of living that many of us took for granted. There is no single or simple solution to this complex and long-standing problem. However, one thing is clear: we must build more homes in the right places. This will require a planning system that is efficient and effective, and that helps communities plan for the homes they need. This Bill is a small but important step to help achieve this.
The good news is that we are not starting from scratch. Over the past six and a half years we have laid some foundations for a better planning system: local people have been given a much greater say over new development in their area; planning policy has been radically streamlined; and the planning system is faster and more efficient. The results are obvious. The planning system granted planning permission for 277,000 new homes in the period from 1 October 2015 to 30 September 2016—9% more than in the previous year—and 900,000 new homes have been delivered in England since 2010, with housing starts now at their highest level since 2008.
The Government are prioritising huge investment for housing, with a further £5.3 billion set aside in the Autumn Statement, bringing our total planned spend to more than £25 billion during this Parliament, and we will shortly publish a housing White Paper, which will set out radical plans to boost housing supply in the coming years. I will certainly ensure that there is a briefing for Peers as soon as the White Paper is published. Both the Secretary of State and the Minister of State have indicated an intention to come along to that briefing to help explain some of the intentions.
Perhaps I may give an overview of the Bill. It is part of the plan to deliver more housing and it has two key aims. First, it aims to help identify and free up more land to build homes on, and to give communities as much certainty as possible about where and when development will take place. Secondly, it aims to speed up the delivery of new homes—in particular by reducing the time it takes from planning permission being granted to building work happening on site and, most importantly, new homes being delivered. The Bill also provides a focused set of measures relating to planning and compulsory purchase. These measures will support the Government’s ambitions to boost housing supply while protecting those areas that we value most, including the green belt.
The Bill has two main parts. Part 1 relates to planning and includes measures on neighbourhood planning, local development documents, planning conditions and the planning register. The second part relates to compulsory purchase. The provisions have been subject to rigorous and constructive debate in the other place, and I would like to take a moment to thank my right honourable friend Sajid Javid, the Secretary of State for Communities and Local Government, my honourable friend the Housing and Planning Minister, Gavin Barwell, and Members in the other place, who fulfilled significant roles in shaping and scrutinising the Bill during its consideration there.
The Minister for Housing and Planning in the other place committed to look in more detail at various issues raised on Report in the Commons, such as matters relating to neighbourhood planning and planning for the housing needs of the elderly and people with disabilities. I will keep the House updated on progress on those matters, but the intention is to bring forward a handful of targeted government amendments at the earliest opportunity during the Bill’s passage in the Lords.
I will speak briefly on the two parts of the Bill that I have outlined. I turn first to Part 1: neighbourhood planning. The first five clauses further strengthen neighbourhood planning and will ensure that communities have a stronger say in the planning of their area. The Localism Act 2011 laid the ground for neighbourhood planning—one of the Government’s great success stories. It has been instrumental in giving real power to local people to shape their area and play their part in delivering the housing and other development that they need. I know that many in the Chamber today can legitimately share in the successes of neighbourhood planning, having spent many tireless hours helping to improve that legislation when it passed through this place. This Bill will build further on that.
Since its inception, more than 2,000 communities have started the process of neighbourhood planning, in areas that include nearly 10 million people. Indeed, recently updated analysis suggests that neighbourhood plans in force that provide a housing number have on average planned for approximately 10% more homes than the number for that area set out by the relevant local planning authority. For example, the award-winning Newport Pagnell neighbourhood plan illustrates the vital contribution that neighbourhood plans make to housing supply. The judges at the 2016 planning and place-making awards highlighted,
“how proactive planning can secure community support for the significant increases in housebuilding that will be required across the country if housing need is ever to be met”.
That plan allocates 1,400 new homes to the area between 2010 and 2026—three times the number that were required by Milton Keynes Council’s Core Strategy, which was adopted in 2013. Furthermore, it was backed by 83% of local voters in a referendum held on 5 May 2016. That is good news indeed.
The Bill will ensure that planning decision-makers take account of well-advanced neighbourhood plans. In practice, this means that where a neighbourhood plan has been drafted by a parish council or neighbourhood forum, independently examined and found to have met the relevant conditions, local planning authorities and other decision-makers must have regard to policies in the plan where this is material to a development proposal. The Bill will also bring forward the stage at which a neighbourhood plan has full legal effect. Following a successful referendum, the plan will become part of the statutory development plan for the area immediately, along with any adopted local plan. The measures on neighbourhood planning will also introduce a streamlined procedure for modifying neighbourhood plans as local circumstances change, and facilitate the modification of neighbourhood areas where a plan is already in force for that area.
The proposals will also encourage more communities to consider neighbourhood planning by requiring local planning authorities to make their duty to support neighbourhood planning groups more transparent. This will be achieved through the inclusion of local planning authorities’ policies on giving advice and assistance to neighbourhood planning groups in their statements of community involvement. These provisions, alongside policy changes, will make the neighbourhood planning process fit for the future. Moreover, they will make it even more accessible to everybody.
Also in the first part of the Bill are provisions on local development documents, to which I now turn. Every community deserves to have an up-to-date plan in place. These are the instruments through which local planning authorities can set out a vision and framework for the future development of an area and engage with communities in the process. They are important documents as, once adopted, they become part of the statutory development plan for an area. The development plan is the starting point for determining planning applications in an area. Indeed, producing local plans should be a shared endeavour, led by the local planning authority but in collaboration with local communities, developers, landowners and other interested parties.
Currently, 89% of local planning authorities have published a local plan and 74% have an adopted local plan. But this is not enough. More than a decade since the existing system was introduced, over a quarter of local planning authorities still do not have an adopted local plan. The measures in the Bill relating to local development documents seek to strengthen the plan-led system by ensuring that all local planning authorities in England identify the strategic priorities for the development and use of land in their area and have policies to address these in an up-to-date plan. The Bill also supplements the powers already available to the Secretary of State to intervene in a plan, for use as a last resort where local planning authorities have failed to prepare a plan that they have committed to prepare or revise.
Also in Part 1 are provisions relating to planning conditions. If we are going to expedite the delivery of new homes, it is crucial that work starts on site as soon as possible once permission has been granted for a development. As many of us well know, I am sure, a cause of delay during the interim period between the granting of planning permission and the start of work is the use, or rather the misuse, of pre-commencement planning conditions. Such conditions prevent any development taking place until detailed aspects of the development have been approved and the condition has been fully discharged by the applicant. Issues such as the full details of utility boxes, lighting and roof tiles, for example, are all important matters, but ones which can be discharged at a later stage of a development. The Bill will therefore ensure that pre-commencement planning conditions are used by local planning authorities only where they have the written agreement of the applicant.
The Government’s recent response to consultation on the Bill’s provisions regarding conditions, published just a month ago in December of last year, supports our proposals. By building on existing good practice, the Bill will ensure that mutual agreement to certain conditions before a planning decision is made should become a routine part of discussions between the applicant and the local planning authority. I make clear that, of course, conditions fulfil a significant role in planning and the clause relating to this will not restrict the ability of local planning authorities to impose necessary conditions to achieve sustainable development.
The second element of Clause 12 is a power to allow the Secretary of State to prescribe the circumstances under which certain conditions may be imposed, and the descriptions of such conditions, to ensure that they are in accordance with the National Planning Policy Framework. Oral evidence given during the Commons Committee stage, and a multitude of case studies submitted as part of a recent Home Builders Federation report, provide evidence of conditions being imposed which either fail to meet the policy tests in the National Planning Policy Framework or are unnecessarily restrictive. I intend to write to noble Lords participating in this debate with evidence of that so that they will be well appraised of how that has been operating.
Also in Part 1 of the Bill are provisions relating to the planning register. Clause 13 is a small change relating to the use of the planning register and, more specifically, the monitoring of the use of permitted development rights. Permitted development rights are a national grant of planning permission which allow certain types of development to proceed without first making a full planning application, helping to speed up the planning system and release more land for residential use. In some cases—for example, for change of use from office to residential—prior approval of the local planning authority is required by the applicant before the proposed development can commence. This would allow local consideration of certain specific matters, such as the impact of the development on transport and flooding risks or the external appearance of the proposed development.
The permitted development right allowing change of use to residential is playing an important part in supporting the delivery of additional homes. At present, data provided by local authorities indicate that almost 12,400 applications for change to residential use have received prior approval since 2014. However, we do not currently have data on how many new homes these applications may deliver. The Bill, therefore, will provide the Secretary of State with powers to enable information relating to permitted development rights applications for prior approval, such as proposed housing numbers, to be placed on the planning register to provide us with that additional information.
This measure will not require local authorities to undertake additional or burdensome tasks. It is intended simply to increase transparency by making information about prior approval applications and notifications available to the public. This information has already been given but is not on the register. Doing so will create parity between these types of applications and those for planning conditions, enforcement notices and so on, all of which already appear on the public register.
Part 2 of the Bill deals with compulsory purchase. The effective regeneration of areas, and therefore the delivery of large amounts of housing and accompanying infrastructure, can often require the compulsory purchase of land in the public interest. Compulsory purchase is, however, used as a last resort where land cannot be obtained by agreement. Reforms to the compulsory purchase system are being undertaken in two stages: the stage 1 reforms are mostly in Part 7 of the Housing and Planning Act 2016 and the stage 2 reforms will be delivered through this Bill. In particular, the measures on temporary possession of land will clarify the options and rights of owners and occupiers when faced with temporary possession. These provisions will protect them from extended periods of uncertainty as to the occupation of their land by defining the scope and operation of temporary possession powers. This means that acquiring authorities will need to set out for how long and for what purpose the land is needed and, in addition, they will have to provide a robust justification for their need for temporary possession, as is currently the case for compulsory purchase in general.
In addition, the compensation measures in the Bill will achieve a clearer way to identify market value of land by establishing the principle of the “no-scheme world” fairly and effectively in the valuation process. This has been widely welcomed. It introduces a clear definition of a scheme that should be disregarded in assessing compensation and a clear basis for assessing whether the scheme forms part of a larger underlying scheme that should also be disregarded. These reforms are needed in order to make the process clearer, fairer and faster for all—and, in turn, speed up the delivery of more homes.
I know that many noble Lords will speak on the Bill and have exhibited great interest in meeting the challenges we face as a country. I thank them for engaging in the process hitherto and I look forward to a debate among people who know and care a great deal about planning and related issues.
It is very clear that we have a nationwide shortage of housing that people can afford. Any delays in tackling this problem will simply make it worse. The Bill will build on the improvements we have made since 2010 to build more homes and give greater responsibility to local communities to decide what gets built and where. It will remove red tape that delays construction, provide better information about the planning system and ensure that we have a compulsory purchase system that is fit for the 21st century. The Government are determined to make progress and the Bill is a vital part of our strategy. I commend it to the House.
Lord Bourne of Aberystwyth
My Lords, I thank all noble Lords who have participated in this wide-ranging and useful debate for their spirit of positive engagement. I can reassure them that I am keen to engage on how we can move in the direction of ensuring that the Bill delivers. As noble Lords—including the noble Lords, Lord Shipley and Lord Taylor of Goss Moor—indicated, the Bill is not only about building extra housing, and as I said in opening, I totally accept that it is not a silver bullet to solve the housing crisis. That is certainly not the case, although it will go some way to helping. The Bill is also about empowerment. We believe in empowering communities and having decisions on neighbourhood plans taken at the most appropriate level and in ensuring that they are given appropriate strength.
I thank the most reverend Primate the Archbishop of York for his participation. He encapsulated some of the key issues about the neighbourhood plans, which are intended to have an effect at an earlier stage and to have legal status. The experience of local referenda so far is that they have not delivered nimbyism. As the noble Lord, Lord Taylor, agreed, they have tended to identify more housing at neighbourhood level than was the case at district level. The experience so far is reassuring, notwithstanding the pews example that we do need to guard against.
We are keen to engage on pre-commencement planning conditions to ensure that there is appropriate protection for the cathedrals of the natural world—the very descriptive phrase used by the noble Baroness, Lady Young—in terms of how we provide protection for the natural world, for heritage and so on, and how we can move away from what are not appropriate pre-commencement conditions. It will be appropriate to look at them at a later stage but issues about what colour roof tiles should be or what sort of windows should go in are not appropriate as pre-commencement conditions. I am very happy to look at how we should tackle such issues going forward.
Noble Lords should have seen the link in the documents available in relation to delegated powers in the Bill but I will make sure they come round again as we have quite a lot to say on the subject. This has been such a wide-ranging discussion that I will ensure that a full letter goes to all Peers who have participated in this debate—I shall also place a copy in the Library—picking up on all the many issues in the Bill that have been touched on. Some of the points made were appropriate in relation to a general view of the waterfront on planning but were perhaps not appropriate to the Bill. For example, it was not intended to look at land tenure and so on, but I will pick up on those points and refer to them in the correspondence that will follow.
Most noble Lords who have participated have welcomed the neighbourhood aspects of the Bill, although some have reservations in certain areas, including my noble friends Lord Borwick and Lord Ridley. My noble friend Lady Cumberlege has spoken to me, to the Minister of State and, I suspect, to the Secretary of State about the neighbourhood plan and I understand the issues that she has raised. I will revert to that in a moment. However, noble Lords round the Chamber—including the noble Lords, Lord Cameron, Lord Thurlow and Lord Renfrew, and the noble Earl, Lord Lytton—welcome the principle, with qualifications. I understand that.
Others have extended the area to be covered. The noble Lord, Lord Judd, not only talked about the need for housing, which he accepted, but introduced the context of appropriate provision for the environment and so on. Again, I will pick that up in the correspondence. The noble Lord, Lord Thurlow, who is not in his place, referred to the importance of brownfield sites, and I will also cover that in correspondence. It will be dealt with in the housing White Paper. It is a manifesto commitment and we have already done a lot in ensuring that there is a brownfield register. We expect 90% of brownfield to be appropriate for building on, but I will cover that, as I say, in the correspondence.
As to the contributions in the areas I set out initially, let me deal first with the neighbourhood planning point and the importance of tying that back with localism. I recognise the role that our colleagues in the coalition Government played in this, including the noble Lord, Lord Stunell, and the noble Baroness, Lady Parminter. We strongly believe in neighbourhood planning. We very much look forward to engaging on this issue to see how we can ensure appropriate funding and strength is given to the neighbourhood plan. I acknowledge the importance of parish councils in that—a point made by the noble Lord, Lord Greaves.
There needs to be appropriate dialogue. The sort of situation outlined by my noble friend Lady Cumberlege should not be happening. I am very happy to continue engaging with my noble friend to see what we can do in that regard.
As has been acknowledged, neighbourhood plans have so far covered 10 million people in the country and 2,000 neighbourhood plans have been submitted. There is a long way to go, but I do not think we should beat ourselves up too much. It is progress. We believe in it; the Bill gives it added strength and we should be able to carry it forward. I welcome the general welcome in principle from the noble Lord, Lord Kennedy, my noble friends Lady Finn and Lord Porter, and others. Indeed the noble Baronesses, Lady Pinnock and Lady Parminter, recognised the important role this has to play in planning decisions.
The issue of permitted development rights was touched on more in the context of pubs than offices, which may say something about the nature of the people participating in that part of the debate, I do not know. To be fair, it was a given that I would touch on offices anyway and say that we have to be careful. I come back to the point made by the noble Lord, Lord Cameron, about his test on housing, which I will take up. The question should be whether the Bill will deliver more houses. It will. We can look at how we can provide some protections here as we move it forward, but I am keen that we do not throw out the baby with the bathwater in ensuring we keep our eye on the ball to ensure that housing is provided through this mechanism.
Pubs were touched on not just by my noble friend Lord Porter and the noble Lord, Lord Kennedy, but by the noble Lord, Lord Shipley. Indeed, he said that they can be nominated to be listed as assets of community value. Where that happens that means that planning permission is necessary for any change. That is a significant point that we need to get across to communities, because they can protect themselves in that way. There are some first-class pubs that form a massive part of community life up and down the country. As we know, the days when these were just somewhere to go for a drink are long passed. It is much more significant than that, but it is part of it. I am happy to engage on that.
To move on to pre-commencement conditions, points were made very tellingly by the noble Baroness, Lady Young, relating to woodlands. I appreciated the discussion we had on that and what we can do through the planning policy framework, which will be touched on in the White Paper. It is very significant. Ancient woodlands are rightly part of our national heritage. At the same time, there are some specious claims—I adopt the word used by the noble Lord, Lord Thurlow—relating to some preconditions that are not necessary. The point about woodlands was taken up by the noble Lord, Lord Shipley, my noble friends Lord Framlingham and Lady Hodgson, and by others. Indeed, we will want to look at that at some length.
On sustainable drainage and flooding, flood risk is an incredibly important issue and I fully understand why people are exercised about it, and about drains. Since the Government came in in April 2015, we have taken a number of steps of robust policy protection by: strengthening the policy expectation that sustainable drainage systems will be provided in major new developments, whether or not in a flood risk area; amending national planning guidance to set out the considerations and options for sustainable drainage systems; and making lead local flood authorities statutory consultees for planning applications for major developments. That is significant too. I appreciate that there was an issue there that noble Lords will want to look at.
On the third area touched on by the most reverend Primate the Archbishop of York, the compulsory purchase element of the legislation, we have taken a pragmatic approach—as the noble Lord, Lord Shipley, acknowledged—rather than an approach across the piece which tries to consolidate the whole area. That approach may be appropriate at some time, but this is targeted to ensure that we are doing what is fair in relation to the value of land and to people who have land acquired from them. I look forward to engagement on what I think was a broad welcome for that, although the devil may be in the detail.
My noble friend Lord Lansley talked about the strategic context of the housing White Paper. I quite agree with him that it is important for that reason and probably others. The intention is that it should be with us before Report stage. I will update noble Lords in the letter as to the precise position. As I speak, I think that we are confident of landing that. It will cover issues such as the fees situation, brownfield registers and many others. The noble Lord, Lord Beecham, asked whether it would result in legislation. I suspect that there will almost inevitably be things in it that we would need to legislate on. There is competition for that, as the noble Lord knows, but that is certainly so.
Many additional issues were raised. It was great to hear from the noble Baroness, Lady Maddock, who is coming up to her 21st year here.
Lord Bourne of Aberystwyth
I am running ahead of myself. I thank her for her comments and questions on highly relevant issues such as pre-builds. We are very much wedded to those and doing things on them. Perhaps I may write to her on the resourcing that we are giving to them and on the importance that we attach to them. They are very popular, even when they are called pre-fabs—which surprised me. Opinion polling suggests that they are very appropriate. As the noble Baroness indicated, the design of some of them in Scandinavia and elsewhere in Europe can be extremely attractive. I am sure that they are part of the solution to the housing issues that we face as a country.
I will endeavour to pick up in the write-around other issues that I have not touched on. There was a general welcome for compulsory purchase—I know that the noble Earl, Lord Lytton, raised broader issues about that, which I will pick up in writing. Garden cities and villages were touched on and welcomed by the noble Lords, Lord Borwick and Lord Taylor. I know that we have been in touch with the noble Lords, Lord Taylor and Lord Best, and have tried to help with that—on setting up of corporations and so on. Again, these are part of the solution, but I appreciate that they need to be considered in the context of ancient woodlands, neighbourhood plans and so on. I will seek to do that in the write-around.
The noble Baroness, Lady Hodgson, quite rightly raised the important issue of design. I suspect that we will return to that in the debate next week. I know that she feels very strongly about it and understandably so. It is an issue that I touched on in a sense in relation to the pre-builds as well.
I thank noble Lords for their positive engagement ahead of Committee stage, which I think starts in the week commencing 30 January—I think that there will be two sessions that week and two sessions the week after. Ahead of that, I will write to noble Lords picking up all the points that have been dealt with, correcting myself if I have got anything wrong—which is always possible—and adding points that I have missed. I look forward to noble Lords’ further positive engagement to ensure that we move this legislation forward with as much consensus as possible.
Tuesday 31st January 2017
(7 years, 9 months ago)
Grand CommitteeNeighbourhood Planning Act 2017 Read Hansard Text Amendment Paper: HL Bill 86-II Second marshalled list for Grand Committee (PDF, 137KB) - (31 Jan 2017)
This text is a record of ministerial contributions to a debate held as part of the Neighbourhood Planning Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, first I thank the noble Lord, Lord Kennedy, for that build-up about the detail in the response. I am sitting here horrified because it is not incredibly detailed.
I have known my noble friend Lady Cumberlege since I came into the House. I thank her for how she has handled this and for her willingness to have positive engagement. This is the way forward. My noble friend has understandably tabled many amendments on this issue. I can reassure her that we are very keen to look at it, particularly in terms of dialogue with officials and those in the know before the neighbourhood plan is put together, because some of the problems that may arise relate to this.
Secondly, notwithstanding what my noble friend has said in relation to the incident about which she has spoken, my legal advice is to the contrary. I cannot speak about the specific case. I hope she will understand that I must be guided by this advice. All of us here support neighbourhood planning but, inevitably, in any new system there will be growing pains. To a degree, this has been the case in some of the circumstances arising in this area.
Amendment 1 raises a matter that noble Lords and those in the other place have spoken about at Second Reading and again today. I must stress that the law is very clear that decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise. Of course, the neighbourhood plan is part of that development plan. Furthermore, measures in this Bill will bring forward the stage at which a neighbourhood plan has full legal effect. This is important to note.
The noble Baroness, Lady Andrews, raised the number of appeals. Out of 16,500 appeals, the number recovered by the Secretary of State was extremely small—just 75 in this context. I can reassure noble Lords that, where the Secretary of State has a more direct role in a small number of decisions—for example, through the appeals system and the call-in process—he or she uses these powers very sparingly—usually, where planning issues of more than local importance are involved. The Secretary of State’s policies for both types of intervention are available on my department’s website. During the course of this Committee, I will pick up on some of the points covered and write to noble Lords. For example, I will ensure that details of this part are on the website for noble Lords to look at.
The current policies for intervention strike the right balance between the national interest and local autonomy. On who can plan for housing in an area and how, the Government are clear. It is for local planning authorities, with their communities, to identify and plan for how to meet the housing needs of their area. Communities can choose to use a neighbourhood plan to address housing needs in their area. Where they do so, their local planning authority should share relevant evidence on housing need gathered to support its own plan making. If, over time, circumstances change and more housing is needed, again, communities may decide to update their neighbourhood plan or part of it. Just as in the initial drawing up of the neighbourhood plan, in the case of modification money is available from the fund set up for the purpose.
Our planning guidance is clear that, if a local planning authority also intends to allocate sites in the neighbourhood area, it should avoid duplicating planning processes that will apply to the neighbourhood area. The authority should work constructively with a neighbourhood planning group to enable a neighbourhood plan to make timely progress.
As well as the noble Lord, Lord Kennedy, other noble Lords have contributed and stressed the importance of neighbourhood plans. I thank the noble Lords, Lord Greaves and Lord Stunell, and the noble Baroness, Lady Andrews. I am grateful to the noble Lord, Lord Shipley, for his very constructive suggestion about engagement with officials and others to try to move this forward.
I understand why the noble Lord, Lord Kennedy, inevitably picked on the fees issue. This will be more than touched on in the White Paper, which we expect very shortly. I can confirm that we shall see the White Paper before Report and there will be an all-Peers briefing on it.
The Government’s rigorous new burdens doctrine, which I failed to address earlier in response to a question from the noble Lord, Lord Beecham, ensures that local planning authorities will receive the relevant resources to meet their statutory obligations towards neighbourhood planning. Inevitably there will be differences of opinion between local authorities and central government about how much that funding should be, but also, inevitably and rightly, there will be a dialogue about it. As I say, however, the broader issue of funding will be addressed in the White Paper.
As to Amendment 1, perhaps I may once again reassure my noble friend Lady Cumberlege that we are approaching this in the spirit of wanting to ensure that neighbourhood forums, parish councils and local people are fully engaged in the process. We want to see that happen, but whether it is done in the Bill or, as is more likely, in planning guidance, is something we can talk about. In the meantime, I respectfully ask my noble friend to withdraw her amendment.
Lord Kennedy of Southwark
Can the Minister say a little more about why the Government will not accept this proposed new clause? It is a very good amendment and, while the noble Lord has talked about setting something out in guidance, he has not said why he is against it. It would be useful if we could understand a little more of the Government’s thinking and why they will not just accept the amendment.
Lord Bourne of Aberystwyth
With respect I think I have explained that the present process provides the right balance of what is needed in planning procedures. However, I accept that occasionally a neighbourhood plan may have been developed that does not achieve what its framers wanted for it. Given that, it is important that there is a power at the centre, to be used only sparingly, in relation to appeals and the call-in process. As I have indicated, the number is 75 out of 16,500, so it is not as if this is a major issue. It is therefore important that someone in the position of the Secretary of State will consider these matters, usually where the planning issues involved are of more than local importance. In practice, the vast majority of cases would be covered by that and we believe that the present process for this is correct, although overall we appreciate that there needs to be some discussion about the compiling of the neighbourhood plan, the provision of proper advice and so on.
Lord Kennedy of Southwark
Just to be clear, nothing that the noble Lord has said in his response means that he would not be able to accept the amendment.
Lord Bourne of Aberystwyth
With respect, I am not entirely surprised. The noble Lord wants this amendment and the Government do not. I hope we can disagree agreeably but this is not an amendment we can accept. As I have indicated, while it pays proper regard to neighbourhood planning, which is at the centre of the system, in the circumstances that I have set out across a range of amendments that have been tabled on this topic, we will look at how we can ensure that proper advice is given in the compiling of a neighbourhood plan, which I think will answer most of the points being raised.
Lord Kennedy of Southwark
I do not like to disagree with the noble Lord because I have great respect for him and the work he does. However, I am trying to understand what the problem is here, although we may well come back to it later. That is the aim of these questions because in many ways we are all in agreement.
Lord Bourne of Aberystwyth
With respect to the noble Lord, I am not sure we are. The noble Lord has been around the planning block a few times and he will know that occasionally planning decisions have national significance. Not least for that reason, we need to retain the power of the Secretary of State to recover appeals in limited circumstances.
Lord Beecham (Lab)
Perhaps I may raise a slightly different point. The noble Lord has given a sympathetic response to the question of resources, but looking at subsection (3) of the proposed new clause set out in Amendment 1, there is an issue which I do not think he has addressed in his reply. It relates to the case where,
“it is deemed necessary to override a neighbourhood plan”.
The amendment then calls for specific action. It says that,
“the Secretary of State must … have regard to the policies of the neighbourhood development plan”,
and,
“policies on employment opportunities … and … inform the local community of the number of houses and types of housing required”.
That is not an onerous request. It may be that the noble Baroness would be satisfied with an assurance that that would be the Government’s policy rather than necessarily writing it into legislation, but, with respect, the Minister should deal with those points. He may consider that a letter would do. One way or another, it is rather a different point from some of those that have already been aired. The Government could be clear about it at a pretty early stage.
Baroness Andrews
This point is very similar to the one my noble friend just made. It is very welcome that the Minister is prepared to talk along the lines suggested by the noble Lord, Lord Shipley. It is worth a conversation. The amendment strikes a balance between elevating the principle of local neighbourhood planning and reinforcing it; it does not take away the powers of the Secretary of State to intervene except in exceptional circumstances. I raised that point. There are other ways of reinforcing the importance and integrity of neighbourhood planning. Since the consultation on the National Planning Policy Framework is still in play, will it be possible to reinforce the importance of the plan and the nature of exceptional circumstances in the National Planning Policy Framework while it is being reconsidered?
Lord Bourne of Aberystwyth
My Lords, in response to the points made to the noble Lord, Lord Beecham, and the noble Baroness, Lady Andrews, it is right that the National Planning Policy Framework is still in play. I certainly do not rule out looking at issues such as this. I am addressing the amendment and saying that we certainly cannot accept it as it stands. I think I have made that point clear. I am very happy to look at the centrality of the neighbourhood development plan to see what we can do to consolidate it. It is indeed central to the process, but I will not concede the importance of a role for the Secretary of State in exceptional circumstances. I am very happy to take away the points made and look at them in the context of the general issue raised by the amendment.
Lord Kennedy of Southwark
I am very happy that the Secretary of State retains an overarching position. That is absolutely right and I have no problem with it at all. However, the noble Baroness, Lady Cumberlege, included that in the first part of her amendment. It is absolutely clear. It says:
“The Secretary of State has a duty to uphold neighbourhood development plans … except in exceptional circumstances of national importance”.
I am surprised and find it odd that the noble Lord does not think that gives the department and the Secretary of State what they need. It is very clear.
Lord Bourne of Aberystwyth
My Lords, we have to be careful that we do not lose sight of the importance of the need for fresh housing. It is very easy for noble Lords to accept the general point about the need for more housing and then, when an issue comes up, say, “Not here; not there”. We would suddenly whittle it away and there would be nothing left. It is important that the Secretary of State retains a power relating to housing development because of the need to create more housing. I suspect we may disagree on the centrality of that, but I will have a look at this in the context of ensuring that the neighbourhood plan has particular significance.
Lord Greaves
My Lords, this is the important, high-level stuff. I raise what might be called the low-level stuff about the nature of the relationship between the local planning authority and its staff, its members and the neighbourhood planners. Does the Minister agree with my assessment that in some places it works very well and in others there is quite a lot of tension, difficulties and resistance on the part of the local planning authority? Would he comment on what might be done, without being too heavy-handed, to get local planning authorities to change their attitude where necessary?
While I am on my feet, the amendment refers to resources. As I understand it, the resources that the Government make available to a neighbourhood planning group, and whether it is a parish or forum, as the Minister referred to, is the same whatever the size of the neighbourhood. The neighbourhood may be quite a small village or a town such as Colne, which I know, which is embarking on neighbourhood planning. It has about 18,000 people and is quite a big town. People in small places are saying that the available grant does not pay for the process, so funds have to be found locally by a parish council or in other ways. Clearly, if my information is correct, the grant available in bigger places will not begin to cover this process, given that everything that the Government set out must be done for a neighbourhood plan costs money, as consultants may have to be brought in and so on. Will the Government look at that to make neighbourhood planning more financially viable than it is at present?
Lord Bourne of Aberystwyth
Some of these points go well beyond this amendment. Nevertheless, I accept that they are important. The noble Lord gave examples of how this process works at the coalface. I suspect that he is much closer to the coalface than I am in that regard. We need to be a little careful about setting up a system that stresses the importance of localism and these things being done locally, and then have central government stepping in and saying, “Do it this way”. As I say, there are growing pains. We may indicate in guidance how better relationships can be achieved. That is what I seek to do through the dialogue I am offering.
On the neighbourhood groups that may benefit from money for the neighbourhood plan and for modifications, I think there is money available if a case is made for an extra sum. If I am wrong on that, I will write to noble Lords. However, if a case can be made, I think there is access to additional funding. As I have indicated, the White Paper will say more about funding and the financial side more generally.
Baroness Cumberlege
My Lords, I thank Members of the Committee for their support for the amendment, which was gratefully received. I say to the noble Lord, Lord Shipley, who led the response to the amendment, that we are so lucky in this forum to have people with real knowledge of planning, local government and other matters. The noble Lord, Lord Shipley, took forward the then Localism Bill, and therefore knows it in detail, which is very good.
Lord Bourne of Aberystwyth
My Lords, in speaking to this group, I will focus on important government Amendments 6 and 131, as well as discussing government Amendments 2, 3 and 4. There are some other amendments in the group which I will obviously respond to after those who tabled them make their contributions.
Amendments 6 and 131 put beyond doubt that neighbourhood planning groups which are well on their way to completing a neighbourhood plan will be aware of future planning applications in their area. These amendments also reaffirm the Government’s commitment to ensure that neighbourhood plans are given proper consideration when planning applications are decided.
Lord Kennedy of Southwark
My Lords, as we have heard, government Amendments 2, 3 and 4 are additions to Clause 1. The Minister said that they were in response to points raised in the other place and elsewhere. They may be technical but they are certainly not minor. They are actually bigger than the clause they seek to amend.
Government Amendment 6 deals with the procedures for notifying parish councils and neighbourhood planning forums of a planning application or permission in principle if there is a neighbourhood development plan that falls within part or all of an authority’s area. That is very important. The noble Lord, Lord Greaves, raised an important point regarding the rights of parish councils. He is absolutely right that they have these rights anyway. It will be interesting to see what difference the amendment makes, or whether it is just tidying up to bring in the neighbourhood forums. My noble friend Lord Beecham just raised the whole issue of neighbourhood forums and the obligations they may or may not have to notify local residents. I look forward to the Minister’s response to those points.
Amendment 8, in the name of the noble Baroness, Lady Cumberlege, seeks—I think, importantly—to require a clear definition of modification as it will apply to the Act. We all know, certainly in respect of planning, that being very clear about what you are doing is very important. There is a whole clause—Clause 3—which refers to the modification of a neighbourhood development order or plan. It is very important that we get this absolutely right. The Minister may tell us that the amendment is totally unnecessary. I hope that if he does do that, he will set out clearly for the record what is in the mind of the Government when they are talking about modification, or maybe that is something that will come in guidance. I look forward to the Minister’s response. The noble Lord, Lord Shipley, raised a similar point. As I said, this needs sorting.
Amendment 8A, again in the name of the noble Baroness, Lady Cumberlege, seeks to give greater authority back to local and parish councils, which is very welcome. I support Amendment 64, in the name of the noble Baroness, Lady Parminter. As we have heard, it sets out the responsibilities of the planning authority in relation to the things it must do.
I should be clear: I certainly want to build more houses. I am looking forward to the White Paper and hope that we will get some more council houses as well. But what we must do, when building more houses, is ensure that they are of good quality, they are well designed, they deliver sustainability, they are carbon-neutral, and they are homes for modern living, rather than badly designed homes on the cheap, which, as we know, we have suffered before up and down the country. We must never go back to that. I look forward to the Minister’s response. I might have one or two questions for him when he responds.
Lord Bourne of Aberystwyth
My Lords, first, I will deal—in no particular order—with some of the points that were raised in relation to the government amendments. In relation to a point raised by the noble Lord, Lord Greaves, about Amendment 6, previously it has been open to neighbourhood forums and neighbourhood groups to ask for notification of planning applications. Amendment 6 makes it automatic. That is the difference: it will happen automatically; there is no need to ask. The concern has been that previously some things may have slipped through the net so that is the reason for that.
Lord Greaves
In relation to parishes, as opposed to forums, this is just a lot more words but it is no different from the present system.
Lord Bourne of Aberystwyth
It will be automatic notification. That is the key point.
Lord Kennedy of Southwark
I think the point that the noble Lord, Lord Greaves, made was that it is already automatic for parish councils.
Lord Bourne of Aberystwyth
Yes, but not for neighbourhood forums, I think. It does not make any difference to parish councils but for neighbourhood forums it becomes automatic.
In relation to a point made by the noble Lord, Lord Shipley, about modification and the impact of that, as set out in Clause 3(2), it is not a particularly strange sort of provision to say,
“does not materially affect any planning permission granted by the order”.
The important point is that this will mean that anything other than something minor will materially affect planning permission. I am happy to put that on the record if that is helpful but that is the important point there. Obviously that would be justiciable. If it is immaterial, it would not fall within that subsection.
On the matter raised by the noble Lord, Lord Beecham, the requirement for a neighbourhood planning forum to notify residents is covered under existing secondary legislation and development orders. I will get him chapter and verse of the particular provision and circulate it to noble Lords who participated in the debate. It is covered under existing legislation.
I turn to the three non-government amendments in the group, Amendments 8, 8A and 64. I shall deal first with Amendments 8 and 8A in the name of my noble friend Lady Cumberlege. I thank her for her helpful comments. On Amendment 8, the Government believe that a more proportionate way to modify neighbourhood plans is needed to incentivise communities to keep their plans up to date—this deals with some of the points I have just touched on, raised by the noble Lord, Lord Shipley. Clause 3 will achieve this by introducing two new modification procedures. The first allows a local planning authority, with the consent of the neighbourhood planning group, to make minor modifications to a neighbourhood plan or neighbourhood development order at any time, in the same way that errors can currently be corrected. These might, for example, amend the wording of supporting text to clarify the application of an existing policy, which previously would have entailed a referendum.
The second streamlined procedure could not apply where the proposed modifications to a neighbourhood plan were so significant or substantial as to change the nature of the plan the community has voted on. I understand the desire to provide clarity and reduce opportunities for ambiguity and litigation. However, the amendment could unintentionally have the opposite effect. Whether a modification is considered under the new procedure will depend on the context of the overall plan. A modification that is significant or substantial in the context of one neighbourhood plan may not be in another.
I offer an example to assist noble Lords. The addition of sites to accommodate 50 new homes may not change the nature of a plan addressing the needs of an extensive urban area, but for a small rural village this same modification of a plan could have a much more significant and substantial effect on the plan and the local community. I welcome further discussion on any of these points and I am happy to meet with the noble Baroness and any noble Lord who would like more information on these matters, but I respectfully ask the noble Baroness not to press her amendment.
Amendment 8A, proposed by my noble friend Lady Cumberlege, concerns the more detailed procedure for modifying a neighbourhood plan that is already in force. Currently, any modifications to a neighbourhood plan or a neighbourhood development order beyond the correction of an error must go through the same process of producing a new plan, irrespective of the significance and scale of the modifications proposed. I reassure noble Lords that the procedure to which the amendment relates applies only where the proposed modification of a plan is minor. Any proposed modification cannot materially affect any policies in the neighbourhood plan or the planning permission granted by a neighbourhood development order. A local planning authority will need to have the consent of the relevant neighbourhood planning group to make such a modification. The local planning authority would also be required by Regulation 16 of the Neighbourhood Planning (General) Regulations 2012 to publicise any such modification on its website and in any other way it believes would make the local public aware of the proposal.
This is an important change as it will allow groups to, for example, amend the wording of supporting text to clarify the application of an existing policy, without the requirement to go through the same process used to produce a new plan. I hope this reassurance will convince my noble friend not to press the amendment.
On Amendment 64, I thank the noble Baroness, Lady Parminter, for her partial welcome of what we are doing with our new proposals. I thank her for raising the importance of community voices being heard in decisions about planning in their area. I also respect the points made by the noble Lord, Lord Taylor of Goss Moor. He is not in his place at present but I know he understands these issues thoroughly.
Clauses 1 and 2, which have been welcomed by the noble Baroness, together with provisions in the Housing and Planning Act 2016, the recent Written Ministerial Statement of 12 December 2016 on neighbourhood planning and the government amendments that were tabled last week address the concerns she has raised, thus, I believe, making her amendment unnecessary. First, perhaps I may confirm that it is a three-year housing supply that is needed, which was a point raised by my noble friend Lady Cumberlege.
This amendment may inadvertently send a message that those elected locally to take decisions cannot be trusted to do so without the matter being referred to central government. That is the wrong message. However, I recognise the expertise and the intention of the noble Baroness and others who have spoken in support of her proposal. I am very happy to meet the noble Baroness between our Committee deliberations and Report, and indeed any noble Lord who would like more information on these matters. However, I ask her in the meantime not to press the amendment.
Lord Kennedy of Southwark
In respect of the amendments moved by the noble Baroness, Lady Cumberlege, does the Minister expect the department to issue any further guidance at some point on modifications and how minor they may be? I am conscious that government departments might say, “This is a minor modification”. I recently put down a Parliamentary Question to ask a number of government departments about reviews that are announced in Parliament from the Dispatch Box, and I have been told by a number of them that there is no definition of a review. I know that it is a bit odd, but if there is definitely going to be a review, when a Minister stands before us saying whether a modification is minor or not, what status does that have? Would he consider producing further guidance to help residents, neighbourhood planners and parish councillors to understand all of this?
Lord Bourne of Aberystwyth
My Lords, as I have indicated, the intention here is to ensure that we have flexibility because neighbourhood plans may vary in their circumstances, size and so on. There is a massive body of law that defines the word “minor” and judges will be able to put it in context. I have given an example of why we believe that we are answering the need for flexibility in the legislation and I think that the Government have got it right in this regard. However, if the noble Lord has any particular points that he wishes to raise subsequently in writing, I will be happy to look at them.
Baroness Cumberlege
My Lords, I welcome very much government Amendment 3 because we are having to use the Freedom of Information Act to get some of this information, but now it is a requirement and I really do welcome that.
While we are looking at modifications, be they minor or substantial, my noble friend cited the case of 50 houses in a rural area. If planning permission is granted for 50 houses that are outside the planning area and that would increase the number of houses being promoted in the neighbourhood plan, currently standing at 100, so now another 50 are added, which is a substantial increase, would that mean that the neighbourhood planners would have to go back to square one and start again because that would be a major modification, not just a minor one?
Lord Bourne of Aberystwyth
My Lords, I have to be very careful when responding to that question because as I have clearly indicated, there is an issue that is sub judice and therefore I cannot comment on that particular case for obvious reasons. I have said in broad terms that 50 houses may occasionally be minor and occasionally major, depending on the circumstances of the case, but obviously there is also an issue around the interpretation of the relevant neighbourhood plan, which has to be seen in that context. I think that I have given a fair example and although I do not sit as a judge, I try to give particularly bold examples of what would be a minor provision in an urban area but may not be so in a smaller village situation.
Baroness Cumberlege
My Lords, I thank my noble friend for that. What happens if there is a change through, say, the examiner or some other process? For example, where a community has agreed to 100 houses and they have booked the sites and everything else, yet the examiner comes in and says, “No, it’s a minimum of 100 houses”, is that a major modification?
Lord Bourne of Aberystwyth
With respect, I have already given an indication as a lay man in this context as to how this would play out. I have a legal background, but I am not an expert in planning law. I do not think I can be asked, “Is this minor or major”, about a succession of situations. I would be giving what is essentially a lay view in planning law terms. All I have sought to do in setting this out—I hope helpfully—is to say that sometimes something would fairly obviously be major in the context of one neighbourhood plan, but very minor in another. Contrast, for example, a situation of high-density population in an urban area with a small rural village a long way from the nearest town. I hope this indicates the intention here.
Lord Kennedy of Southwark
The noble Lord has been very helpful. The noble Baroness’s question has highlighted that some situations can be very difficult. What somebody thinks is minor somebody else can think is major. Equally, there could be a situation where development could be in an urban area and it could be only 50 houses, but people could think that was an issue as well. I do not think the noble Lord can go much further, but this exchange has highlighted how difficult this can actually be.
Lord Bourne of Aberystwyth
My Lords, I do not agree entirely. I accept the point that it is not always easy at the margins, though I think it is far easier in extreme cases. We do not have all the facts of a particular community that is being referred to in front of us. So, in the abstract, it is much more difficult than it would be with some concrete examples from a particular community.
“(c) an examiner has recommended under paragraph 13(2)(a) of Schedule A2 to the Planning and Compulsory Purchase Act 2004 (examination of modified plan) that a local planning authority should make the draft plan, or (d) an examiner has recommended under paragraph 13(2)(b) of that Schedule that a local planning authority should make the draft plan with modifications.(3BA) In the application of subsection (2)(aza) in relation to a post- examination draft neighbourhood development plan within subsection (3B)(d), the local planning authority must take the plan into account as it would be if modified in accordance with the recommendations.”
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in the debate on the amendments in this group. Before I respond to the specific amendments from the noble Lord, Lord Stunell, the noble Baroness, Lady Parminter, and my noble friend Lady Cumberlege, I shall make some introductory remarks that I hope will set out the context.
It is right that unsuccessful applicants can seek to have their planning application reviewed through an impartial planning appeal process. This is a strong belief of the Government, as it has been of successive Governments. I want to get that on the record. This recognises the control the planning system places on the use of land. This should be an option even when the proposed development is not in accordance with the development plan. A planning appeal should be lodged only if issues cannot be resolved with the local planning authority and if an applicant considers, in the light of the facts, that planning permission should have been granted.
Turning to Amendment 5, tabled by the noble Lord, Lord Stunell, and the noble Baroness, Lady Parminter, I thank them for the opportunity to discuss this matter. In this case, when considering an appeal that relates to a neighbourhood plan, the Secretary of State must know the importance of that neighbourhood plan. The law is very clear that decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise. Reference has already been made to the number of call-ins that have been made by the Secretary of State for the last year for which figures are available—75 out of 16,500. This idea of a super-bureaucratic system running riot with call-ins is overstated and wildly hyperbolic.
Lord Stunell
Is the Minister in a position to say how many of those 75 came from neighbourhood plan areas?
Lord Bourne of Aberystwyth
I thank the noble Lord for that intervention. I do not have those facts in front of me but I shall endeavour to see if we can provide that information in the letter that I have promised to noble Lords. If the information is there, I will gladly supply it.
We should also be clear that the rules on call-ins were made in 2008, ran throughout the last Government and into this Government. The suggestion that this is somehow something new is wrong. I am also happy to circulate the parliamentary Statement that contained those rules to Peers who have participated. I accept that the amendment tabled by my noble friend Lady Cumberlege and the noble Baroness, Lady Pinnock, acknowledges that there are issues of national significance. We can all think of examples of compliance with climate change policies, world heritage sites, green belt and so on. So I would have to take issue with the idea that a call-in is never appropriate, which I think one or two noble Lords got close to saying. When we look at planning, there is always room for and, indeed, an importance to a national dimension. This is what we are seeking to preserve.
I was asked once again about the neighbourhood planning Written Statement. I will also circulate this so that noble Lords have it in relation to the three-year supply of deliverable housing sites. This Written Statement, in the name of my honourable friend the Minister of State for Housing and Planning in another place, Gavin Barwell, indicates:
“The Government confirms that, where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted”,
provided that,
“the local planning authority can demonstrate a three-year supply of deliverable housing sites”.
I am putting this in a shorthand form, but I will ensure that it, or the link, is circulated to those who have participated in the debate.
Baroness Pinnock
I thank the Minister for that clarification. However, what I was seeking to understand was whether the three-year supply referred only to where a neighbourhood plan was in place or whether it would be for the whole of a local plan. If that is not the case, we have a serious discrimination between those areas—often rural areas, at the moment—with a neighbourhood plan and those without. For one, a three-year supply would be sufficient; for another, a five-year supply is required.
Lord Bourne of Aberystwyth
I confirm that it applies only to neighbourhood plans. It is just one other reason that it is very good to have a neighbourhood plan in place. I do not see anything inconsistent in that. If we are strong believers in neighbourhood plans, that is quite appropriate.
Lord Bourne of Aberystwyth
I will cover the point in the letter but I am sure that it is the case, as I indicated, in the Written Ministerial Statement—it was on 12 December 2016—that this is in relation only to neighbourhood plans.
If I might proceed, the Government are equally clear that we must allow those taking decisions, including the Secretary of State, to do their job and exercise their judgment when considering the planning merits of the case before them and the evidence for and against an appeal. By the way, the Secretary of State does not necessarily have to uphold the decision of the inspector in this regard. That does not necessarily follow. This provides the necessary flexibility that is at the heart of our planning system, which the amendment, if accepted, would remove. For these reasons, I ask the noble Lord to withdraw Amendment 5.
Turning to Amendment 20, tabled by my noble friend Lady Cumberlege and the noble Baroness, Lady Pinnock, we place great importance on local development plans. They provide the local community’s vision of how it sees its area developing. It is right that they should be given the weight they deserve within the planning appeals process. As I have said, where a development plan’s policies are material to an appeal, a decision must be taken in accordance with the development plan, unless material considerations indicate otherwise. This does not mean that a planning appeal that is not in accordance with the local development plan will always be dismissed. It means that the appeal should not normally be allowed and that planning permission should not normally be granted. However, we cannot, and should not, fetter appeal decision-makers by requiring them to dismiss appeals that are contrary to the development plan. Instead, we must allow planning inspectors to do their job and exercise their independent judgment.
Significantly, planning appeals can be made in a number of circumstances, not just when a planning application is refused. They can also be submitted when a planning application is not decided within the statutory timescale or if conditions the applicant deems unreasonable are imposed on a grant of planning permission. If accepted, the amendment could affect these appeal rights. An applicant who was refused permission would not have their appeal heard in certain circumstances because the amendment would require it to be dismissed. This is not acceptable. In conclusion, I ask my noble friend to not move her amendment.
“Notification of applications to neighbourhood planning bodies
(1) Schedule 1 to the Town and Country Planning Act 1990 (local planning authorities: distribution of functions) is amended as follows.(2) Paragraph 8 (duty to notify parish council of planning application etc) is amended in accordance with subsections (3) to (5).(3) After sub-paragraph (3) insert—“(3A) Sub-paragraph (3B) applies to a local planning authority who have the function of determining applications for planning permission or permission in principle if—(a) there is a relevant neighbourhood development plan for a neighbourhood area all or part of which falls within the authority’s area, and(b) a parish council are authorised to act in relation to the neighbourhood area as a result of section 61F.(3B) The local planning authority must notify the parish council of—(a) any relevant planning application, and(b) any alteration to that application accepted by the authority.(3C) Sub-paragraph (3B) does not apply if the parish council have notified the local planning authority in writing that they do not wish to be notified of any such application.(3D) If the parish council have notified the local planning authority in writing that they only wish to be notified under sub-paragraph (3B) of applications of a particular description, that sub-paragraph only requires the authority to notify the council of applications of that description. (3E) For the purposes of sub-paragraphs (3A) to (3D)—“neighbourhood area” means an area designated as such under section 61G;“relevant neighbourhood development plan” means—(a) a post-examination draft neighbourhood development plan as defined by section 70(3B) to (3C), or(b) a neighbourhood development plan which forms part of a development plan by virtue of section 38(3) or (3A) of the Planning and Compulsory Purchase Act 2004 (plans which have been made or approved in a referendum);“relevant planning application” means an application which relates to land in the neighbourhood area and is an application for—(a) planning permission or permission in principle, or(b) approval of a matter reserved under an outline planning permission within the meaning of section 92.”(4) In the opening words of sub-paragraph (4) for “the duty” substitute “a duty under this paragraph”.(5) In the opening words of sub-paragraph (5) for “their duty” substitute “a duty under this paragraph”.(6) Paragraph 8A (duty to notify neighbourhood forums) is amended in accordance with subsections (7) to (9).(7) After sub-paragraph (1) insert—“(1A) Sub-paragraph (1B) applies to a local planning authority who have the function of determining applications for planning permission or permission in principle if—(a) there is a relevant neighbourhood development plan for a neighbourhood area all or part of which falls within the authority’s area, and(b) a neighbourhood forum are authorised to act in relation to the neighbourhood area as a result of section 61F.(1B) The local planning authority must notify the neighbourhood forum of—(a) any relevant planning application, and(b) any alteration to that application accepted by the authority.(1C) Sub-paragraph (1B) does not apply if the neighbourhood forum has notified the local planning authority in writing that it does not wish to be notified of any such application.(1D) If the neighbourhood forum has notified the local planning authority in writing that it only wishes to be notified under sub- paragraph (1B) of applications of a particular description, that sub-paragraph only requires the authority to notify the forum of applications of that description.”(8) In sub-paragraph (2)—(a) before the definition of “neighbourhood forum” insert—““neighbourhood area” means an area designated as such under section 61G;”, and(b) after the definition of “neighbourhood forum” insert—““relevant neighbourhood development plan” means—(a) a post-examination draft neighbourhood development plan as defined by section 70(3B) to (3C), or(b) a neighbourhood development plan which forms part of a development plan by virtue of section 38(3) or (3A) of the Planning and Compulsory Purchase Act 2004 (development plans which have been approved in a referendum or made).” (9) In sub-paragraph (3) for “(3) to (6)” substitute “(3) and (4) to (6)”.(10) Section 62C of the Town and Country Planning Act 1990 (notification of parish councils of applications made to Secretary of State) is amended in accordance with subsections (11) and (12).(11) In subsection (2) after “paragraph 8(1)” insert “or (3B)”.(12) In subsection (3) after “Schedule 1” insert “or notifications received by the authority under paragraph 8(3C) or (3D) of that Schedule.”
Lord Kennedy of Southwark
My Lords, I very much support the amendments in this group tabled by the noble Baroness, Lady Cumberlege. Clearly, they are probing amendments and I look forward to the response from the noble Lord, Lord Bourne, to the points raised.
It is important that we ensure that communities are consulted and that they have confidence that if they are to make a local plan it should have some validity, particularly once they are into the process. These amendments seek to ensure that. Amendments 9, 10 and 11 look at the modification procedure and give the opportunity to move it from a written to an oral procedure. That is important. It may well be that it should be much more either/or, but at the moment it is much more towards the written procedure apart from exceptional circumstances. I am interested to hear what we get back from the noble Lord in respect of that.
We have also begun to mention a number of words in the debates on the Bill, such as “modification”. Words are important, particularly to planning. Planning is complicated. I am not a lawyer. I am a councillor and I am on a planning committee, but I rely heavily on the advice we get from our planning officers on looking at applications. Rules are also important, and the noble Lord, Lord Shipley, mentioned “the general rule”. What worries me is the flexible rule, which might be so flexible that it is not a rule at all. We need to be very careful about what we are doing here.
I would also like the noble Lord to tell us a little about the examiner. The examiner will look at an application and will want to determine and pass it properly, so we must hope that he is working to soundly based rules as well. It would be useful to learn about the rules they operate under. It seems odd that an examiner can simply throw out a proposal that has been agreed, especially having heard about how important these processes are from the noble Lord, Lord Taylor of Goss Moor. So it will be interesting to hear about exactly what takes place and what the examiners are told. I am conscious that these are probing amendments and I look forward to the noble Lord’s response, at which point I may have one or two more questions for him.
Lord Bourne of Aberystwyth
My Lords, perhaps I may say as I crawl across the minefields in the mist having been battered by iron fists and with my feet held to the fire, that I will try to deal with some of the issues that have been raised quite fairly by noble Lords relating to this group of amendments. It may help if I first try to put this in the context of what the Government have done to promote and improve neighbourhood planning—just so that we do not lose sight of what is important.
The measures introduced by the Housing and Planning Act have sped up and simplified a number of processes, with, for example, new time limits being imposed on planning authorities and more transparency in committee reports. We have provided £22.5 million-worth of support for neighbourhood planning groups and have provided more than 1,800 grants to the value of over £10 million. Also, some £13 million has been paid out to local planning authorities to help them meet their responsibilities. I have referred to the Written Ministerial Statement of December 2016, which was provided to address the issue raised by communities about the transition problems around the operation of the five-year land supply requirements. This Bill will put it beyond doubt that decision-makers must have regard to neighbourhood plans that have passed examination—it is important to nail that. It also makes clear the advice and assistance that local planning authorities are able to provide to neighbourhood groups and it will bring neighbourhood plans into legal force as part of the development plan at an earlier stage, all of which is important.
Before I turn specifically to the amendments tabled by my noble friend Lady Cumberlege, perhaps I may address a couple of points raised by the noble Lord, Lord Shipley, in the context of Schedule 1 relating to the procedure for examination as set out in new paragraph 12(1). The words “the general rule” replicate the language used in the Localism Act 2011 under the coalition Government. I appreciate that that is not the whole of the answer, but the phrase has been put in for good reason in that there is a substantial amount of case law that defines what “the general rule” is. I will endeavour once again in the compendium letter that I will send round to give examples of how it would operate.
I would also say to the noble Lord that new paragraph 12(2) makes it clear that it is not just the examiner who can initiate an oral hearing, or at least that it may be but he would be required to do so under new paragraph 12(2)(b),
“in other such cases as may be prescribed”.
It is not as if he has a totally unfettered discretion. Indeed, we may want to examine this heading when we discuss the specifics because it does provide for cases to be prescribed.
Lord Shipley
Can the Minister explain what and who it is who will do the prescribing?
Lord Bourne of Aberystwyth
The prescribing would certainly be done by the Secretary of State, but obviously the Bill has not yet passed into law so no cases would be prescribed at the moment. Again, perhaps I may give an indication of the sort of circumstances where we anticipate it may be used.
I turn now to the amendments and again I thank my noble friend Lady Cumberlege for raising this important matter, and the noble Lords, Lord Cameron, Lord Shipley, Lord Kennedy, and briefly the noble Lord, Lord Beecham, who is not in his place at present, for their contributions. It may help noble Lords if I first explain the current examination process for a neighbourhood plan. The person appointed to examine a neighbourhood plan must be independent of those who prepared the plan and of the local planning authority, and have no interest in any land that may be affected by the plan. They must have appropriate qualifications and experience. The noble Lord, Lord Kennedy, raised the issue of rules in relation to this. Perhaps I can provide a link in the letter, but they clearly must have appropriate town and country planning qualifications and experience. There will certainly be rules under which they will have to operate. Noble Lords may perhaps want to do a more detailed examination of these.
The examiner’s role is to consider whether the plan proposal meets a set of basic conditions and other legal tests. Neighbourhood planning groups must submit various other documents to the local planning authority with their neighbourhood plan proposal. These include a statement setting out how the plan proposal meets the relevant tests. This statement provides the opportunity for those who prepared the plan to demonstrate that their neighbourhood plan proposal meets those tests. Those wishing to make their views known to the independent examiner, or to submit evidence to be considered, can submit written representations to the local planning authority during the statutory publicity period for the draft neighbourhood plan. The local planning authority must send to the independent examiner the draft plan proposal, any other document submitted by the neighbourhood planning group relating to the plan proposal, and a copy of any representations made.
My noble friend Lady Cumberlege’s Amendment 6A concerns the modifications that an examiner may recommend to a neighbourhood plan. It is already the case that the examiner of a neighbourhood plan must make a report on the draft plan. This must recommend either that the plan is submitted to a referendum or that modifications are made to the draft plan so that it meets the basic conditions and other legal tests for the plan as modified to be submitted to a referendum. It is only where an examiner is unable to make such modifications that they would have to recommend that the plan proposal is refused. With this clarification, I would ask my noble friend to withdraw that amendment.
I apologise to my noble friend that I have not taken her amendments in the same order as she proposed them. Amendment 6B would give an opportunity to provide further details on the procedure for examining neighbourhood plans. It is currently the case that, where a new neighbourhood plan has been examined, a local planning authority must reach its own view on whether the plan meets the basic conditions and legal tests required. The authority must do so having considered the recommendations of the examiner. It is then for the authority to decide whether a neighbourhood plan proposal, with or without modifications, should be put to a referendum.
Our planning guidance is clear that we expect local planning authorities to constructively engage with the community throughout the neighbourhood planning process, including when considering the recommendations of the independent examiner of a neighbourhood plan. Again, these are important matters raised by my noble friend Lady Cumberlege on which I will carefully reflect ahead of Report.
My noble friend’s Amendments 9, 10 and 11 concern the method of examination. The Government maintain that the process of examining neighbourhood plans by written representation in general provides a proportionate, appropriate and robust scrutiny. It is certainly an appropriate approach for plan modifications that make use of the new streamlined modification procedure in the Bill. By definition, such proposals will not substantially change the nature of the plan. Nevertheless, for new plans or for modifications to plans where the examiner considers it necessary to ensure adequate examination of an issue, or to give a person a fair chance to put a case, they must hold a hearing. In these cases, neighbourhood planning groups are entitled to make oral representations. I want to reassure noble Lords that the legislation is very clear. Communities already have the opportunity to have a say in writing throughout the examination process and, where appropriate, at an oral hearing.
Ahead of Report—and I shall endeavour to do this for all noble Lords—I think it appropriate that I set out the procedure whereby there is interaction between the examination and the neighbourhood plan. In setting out that procedure in discussion with my noble friend Lady Cumberlege and others, we can see where there are gaps where we may need to plug the legislation, if I can put it in the vernacular in that way. I accept that something must be going wrong with some plans. I am happy to look at that to see how we might address it. The general position is satisfactory, but I accept that something can obviously be done to make it more watertight. I thank my noble friend for saying that these were probing amendments, but with the reassurance that I have sought to give I ask her not to press them.
Baroness Scott of Needham Market (LD)
My Lords, I, too, support the noble Baroness. I assure her that she need not apologise for anything as she has raised some very interesting issues in the course of the Grand Committee, and has done so with great passion and commitment.
I raise a related, but perhaps slightly tangential, issue concerning the impact of having a lot of development all at once. Currently, developers argue that Section 106 or community infrastructure levy contributions should relate only and very specifically to the development they are undertaking. That may sound a reasonable argument but it is highly problematic as it completely fails to take into account the cumulative effect of a number of developments taking place around a village, or, indeed, taking place over time. It is very difficult to argue with legal certainty that the need for a new school, for example, is related simply to one development as opposed to the cumulative impact of a number of developments. Therefore, that issue needs to be looked at as it goes to the point about the acceptability of development to local communities. They also need to feel that the funding mechanism will be there. Furthermore, developers often argue that the money should be used only for very narrow purposes and not for the benefit of the wider community. The Government need to look at the acceptability of development in this regard.
Lord Bourne of Aberystwyth
My Lords, I thank my noble friend Lady Cumberlege for moving this amendment. Before I look at the substance of it, on housing need generally I think it will be borne out by statistics that even if all migration were to stop now—it will not because the Prime Minister made clear that we will still very much need the brightest and best for specific areas of activity in the country—there is still a truly massive backlog of housing that needs to be supplied. There is no gainsaying that. There is a massive catch-up operation to be done, and all political parties over the years contributed to this problem by not building enough. There is little doubt of that. I part company with my noble friend on that specific point.
On Amendment 7, moved by my noble friend, local communities within a designated neighbourhood area are responsible for deciding which policies they want to include in their neighbourhood plan. They can, if they choose, include policies on housing delivery and housing sites if they consider them appropriate for their area. They will develop their housing policies by considering the types of development needed for their area and will identify suitable locations for housing development. If the policies and proposals are to be implemented as the community intend, a neighbourhood plan must be deliverable.
Where a neighbourhood plan is used to allocate sites for housing development, the local community must assess whether those sites are deliverable and developable. Paragraph 47 of the National Planning Policy Framework provides details of what needs to be considered. As part of this consideration, those preparing the plan must take realistic decisions about the timescales for delivering those houses and the issues that might affect this, such as the area’s infrastructure needs. This might require them to consider phasing the delivery of development to ensure that they have a realistic plan for delivering their housing policy within required timescales. It is certainly open to neighbourhood groups to do that now and for that to be part of the neighbourhood plan. Where communities consider this necessary, they should of course have clear evidence as to why there should be a restriction on when a specific site or sites will come forward for development.
These are important matters but should essentially be left to the judgment of local communities. Maybe we need to make clearer that that is a possibility but then it is a matter for the relevant neighbourhood, advised by their local planning authority. These people are best placed to make such decisions, which are more appropriately addressed by policy documents and guidance than legislation. As I previously indicated, the Government set out their policy on these matters in the National Planning Policy Framework and in planning guidance, to which both local planning authorities and those preparing neighbourhood plans must have proper regard.
I hope I have reassured my noble friend on this point. Just before I leave this particular amendment, the noble Baroness, Lady Scott, raised an issue regarding funding from community infrastructure. We shall come to this in the next group but, just briefly, I think 25% goes to the relevant parish council or neighbourhood group. It is up to them how to spend that; it does not have to be related to the infrastructure for which the levy was paid. As I say, we will come to that on Amendment 26 and can look at it in more detail then. In the meantime, I ask my noble friend to withdraw her amendment.
Lord Bourne of Aberystwyth
My Lords, I thank all noble Lords who have participated in the debate on these amendments. I turn first to Amendment 12 tabled in the names of the noble Lords, Lord Kennedy and Lord Beecham. I understand the desire to ensure that adequate funding is available for local planning authorities.
I hope that I can reassure the noble Lord, Lord Beecham, that the Government’s rigorous new burdens doctrine ensures that local planning authorities receive the relevant resources to meet their statutory obligations under the neighbourhood planning process. Since 2012, more than £13 million has been paid out by the department to enable local planning authorities to meet their neighbourhood planning responsibilities. Some 104 different local planning authorities have submitted claims for the current financial year, and under the current arrangements where applicable, these authorities could have claimed £5,000 for each of the first five neighbourhood areas and the first five neighbourhood forums that they designate. For those authorities where a referendum date was set, they could also claim a further £20,000 to cover the costs of an examination for each referendum.
Evidence compiled by my department in August 2015 found that the current funding arrangements adequately cover the neighbourhood planning costs for the majority of local planning authorities. I appreciate that that is almost 18 months ago but I would be happy to share this evidence with noble Lords and I will ensure that it is sent on to those who have participated in the debate. We continue to review the level of funding available to local planning authorities and I can confirm that funding will continue to be available for the next financial year. Further details will be announced shortly, ahead of the next financial year.
I now turn to Amendment 26 tabled by my noble friend Lady Cumberlege. I share her desire to support neighbourhood planning, and that is why we currently allocate a proportion of community infrastructure levy receipts to those areas with an adopted neighbourhood plan, as she correctly acknowledged. It is a local choice, as the noble Lord, Lord Greaves, pointed out, for areas to introduce the levy based on economic viability and infrastructure need, and of course that will vary from area to area. Take-up has increased by 144% since April 2015. The current number of authorities which have adopted the community infrastructure levy is 132, and a further 86 have taken substantive steps towards it, which totals 64% of local authorities. However, I emphasise that this is a local choice. There are clear benefits in many cases and it may be that we need to look at publicising those more widely, but of course it is not for everyone.
It is also important that local areas have a choice over how the money raised by the levy is spent. The 25% neighbourhood share already allocated for communities with neighbourhood plans provides a real opportunity for those areas to have a say over how the levy is spent in their area. Communities can also influence how the levy is used across their local authority through participating in the development of the local plan and the charging schedules which set out the local authority’s infrastructure priorities.
I thank the noble Baroness, Lady Scott, for her contribution more widely in relation to the community infrastructure levy and I am happy to agree to the meeting she has suggested in order to understand and consider some of the detailed concerns. That would be beneficial to me as well.
I turn now to the issue of how best to continue to incentivise communities, and I understand the wishes of my noble friend Lady Cumberlege in this area. The Prime Minister has made clear that this is a particular priority for the Government. An independent review of the community infrastructure levy has recently reported to my department. The review group considered a wide range of issues including the take-up of the levy and the use of the neighbourhood share. We are currently reviewing its recommendations and once again I will provide further information on exactly where we stand on that.
With the reassurance that the Government are already considering the recommendations and the need perhaps to publicise the benefits of the community infrastructure levy more widely by giving evidence of how communities can benefit from the development of their area, and continuing to review the level of funding available to local planning authorities—the White Paper will have something to say on that as well—I would ask the noble Lord, Lord Beecham, to withdraw his amendment.
Lord Beecham
My Lords, I am grateful to the Minister for his constructive response. I was rather taken with his notion that the Government have a rigorous policy towards meeting new burdens. I would have thought “rigor mortis” might be a more appropriate description of their performance in that area but he is clearly well intentioned and we hope to see some evidence of that as the legislation goes forward.
Significantly, the figures he quoted on the community infrastructure levy were quite alarming in many ways. From what he said, authorities are not necessarily taking full advantage of what is currently available. Has the Minister considered talking to the Local Government Association about that? This matter should be taken forward in that way. I will certainly ensure that the points he made today are heard. I hope that process can be tackled. It is for the noble Baroness to comment more specifically on that subject since she raised it but there seems to be an issue here. One way or another, the system does not seem to be working adequately, yet apparently the goodwill is there on the government side to ensure it does. Perhaps after the event we could look at ways to promote the use of what should be a helpful instrument for both local authorities and the communities they represent.
Lord Kennedy of Southwark
My Lords, I intervene only briefly because I made reference to turnouts in my speech at Second Reading. It may well be that the figure of 40% is too high, but our concern is that a plan can be approved on a very small turnout, which itself could cause problems. That is why we have put this amendment forward for debate, but it is certainly not an attempt to wreck anything. As I have explained before, I am a councillor in Lewisham where we are actually producing our own neighbourhood plan. We are about a year into it because it is a very complicated process, but it has definitely involved many members of the local community and I am supportive of that, as is my noble friend Lord Beecham.
Perhaps there should be a discussion about what would be a legitimate figure. Would a turnout of 1%, 2% or 5% be legitimate? At what point would a plan genuinely have community backing when it is put to a referendum? That is the point of the discussion today, rather than any attempt to wreck the provision. I think that we have had a useful discussion that has covered a range of issues.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lords, Lord Beecham and Lord Kennedy, for raising this matter. I am not sure whether they believe in the 40% figure, 4% or 2% because that is not entirely clear. Perhaps I may say that I do not think that their hearts are quite in it. The most alarming thing about the debate is that on this basis, Newcastle would have been deprived of the noble Lord, Lord Beecham, and Lewisham possibly deprived of the noble Lord, Lord Kennedy, to the detriment of our national life. I would have thought that the presence of the noble Lord’s name on the ballot paper would have ensured a really high turnout. More seriously, this is not something that we can pursue.
Lord Shipley
Just to assist the noble Lord with further information. In fact, the noble Lord, Lord Kennedy of Southwark, was elected on a turnout of 40.61%.
Lord Bourne of Aberystwyth
My Lords, I think we now know why the figure of 40% appears in the amendment.
In all seriousness, clearly we would all want to see higher turnouts, but regrettably much of our national life turns on low turnouts. In May 2016 the overall turnout in English local elections was 33.8%—the noble Lord, Lord Kennedy, bucked the trend. The average turnout for neighbourhood planning referendums is 32%. The principles of neighbourhood plan and neighbourhood development order referendums are consistent with all referendums and elections in our country. People are given the right to vote but are not obliged to do so. With this in mind, we cannot support the 40% threshold. The Electoral Commission’s data show that the overall turnout in English local elections since 2007 has exceeded 40% in only three years.
As the Minister for Housing and Planning, Gavin Barwell, highlighted in the other place when a similar amendment was tabled in Committee, of the approximately 240 neighbourhood planning referendums that had been held at that point, around 170 had had a turnout of less than 40%. The amendment would drive a coach and horses through the legislation and could jeopardise the whole neighbourhood planning process and the hard work of so many people and communities to produce neighbourhood plans, which the Government support. With this clarification, I hope the noble Lord will withdraw his amendment.
Lord Beecham
My Lords, it is interesting to be identified by the Liberal Democrats as having a low polling achievement, when at the general election, was it 8% or 9% that the party of the noble Lord, Lord Shipley, managed to achieve? However, to my mind the issue was not so much about a particular figure as about trying to ensure that there is significant involvement of local people in making a decision.
I did not know the statistics that the Minister referred to and I am grateful to him for answering my question about that. Those figures suggest that there is in many places a reasonably high demand—30% or so, whatever it might be, is a good response to something such as this. But the object ought to be to encourage as much as possible a turnout on these decisions. I am not wedded to the 40% figure. Perhaps a different approach might be to provide financial and other support to promote referendums, without necessarily imposing a limit, but to work with local authorities— again, perhaps with the LGA—to develop a scheme to maximise the involvement of local people in a system which is supposed to engage them in evolving policy which will affect their communities. Perhaps it could be looked at afresh from that perspective without identifying a particular figure, which I accept is very much an arbitrary one. But we are all concerned to see public engagement increasing as much as possible. There may be ways to do that.
In the circumstances, of course I beg leave to withdraw the amendment, and I hope that the turnout in the next elections in Newcastle will be somewhat higher.
Thursday 2nd February 2017
(7 years, 9 months ago)
Grand CommitteeNeighbourhood Planning Act 2017 Read Hansard Text Amendment Paper: HL Bill 86-III Third marshalled list for Grand Committee (PDF, 125KB) - (2 Feb 2017)
This text is a record of ministerial contributions to a debate held as part of the Neighbourhood Planning Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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Baroness Andrews (Lab)
My Lords, I support the amendments and thank noble Lords for what they have said because, although I thought this was a serious issue, I was unable to take part in debates on the then Housing and Planning Bill. It is clearly very important. Permitted development is a useful tool when used proportionately. It has been able to free extra capacity to build housing, in many cases, very appropriately. When the National Policy for the Built Environment Select Committee was doing its Building Better Places report, this came up as a formidable problem. The noble Lord, Lord Tope, has described it. It is to do with the scale and the concentration in particular areas. I will be very grateful if the Minister has any figures that show how much conversion of office space to residential there has been and a geographical breakdown that shows some notion of the scale. We are getting housing development outside the normal planning provisions. Once that happens, essentially none of the planning rules applies. One of the things that exercised the committee was that the casual conversion of office space to residential space was compromised because of the absence of space standards and, I think, normal building regulations. I would be grateful if the Minister will state the official position on the lack of acceptable agreed building standards in buildings that are being converted.
There are two social impacts of casual conversion. One is on the nature of the living accommodation that is being created in this era of desperate demand for housing. What sorts of lives are people living? The other impact is that with 28% more housing instead of office space, the demand on services is quite different. Therefore paragraphs (a) to (c) of the proposed new clause are extremely important. Does the department have any assessment of this? Has it done any work on the impacts that can be measured? What is the Minister’s judgment about that? We need more information and to know more about what the department and local authorities know about the way this is working.
Amendment 44 raises an important principle. The point about planning changes is that single changes are manageable and have a useful, and often positive, effect, but cumulative change can be very different. Cumulative change is what the noble Lord, Lord Porter, raises in his amendment. The noble Baroness, Lady Cumberlege, represented him very well and spoke about development rights and the impact on sustainability overall. The only analogy I can make—and I hope it would be contained in Amendment 44—is with conservation areas. In conservation areas, you have permitted development rights. You may be able to advise individual householders to put in wooden windows rather than plastic windows or not to put a porch over the front door, but after a while control and discipline slip and the character of the conservation area can be completely compromised. One has to be extremely careful about the nature of the slope when one embarks on permitted development rights. The notion of cumulative impact is very important.
I do not know whether there is anywhere in planning law the concept of a cumulative impact which could inform the way this amendment could be very usefully attached. If there is, there is something to be gained from thinking intelligently about how Amendment 44 might be pursued. It is obvious that local authorities ought to have more control over what happens in the exercise of permitted development rights, and this is very timely because we have now had five or six years of accelerated deregulation, of which permitted development rights are probably the most conspicuous aspect. It is time that we step back and look at the impact of that in relation to local authority competence.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, I thank noble Lords who have participated in the debate on the amendments in this group. Before I respond to some of the specific points that have been made on the two amendments, let me say a little about permitted development generally.
Permitted development rights have long been a part of the planning system and have been recognised as a beneficial way of simplifying the need to secure planning permission. The current permitted development rights for England are set out in the Town and Country Planning (General Permitted Development) (England) Order 2015 and provide flexibility, certainty and reduce planning bureaucracy. The noble Baroness, Lady Andrews, asked about the number of additional homes that have been delivered by permitted development rights. I am particularly proud that development rights in the latest year for which we have figures, 2015-16, delivered an additional 13,800 homes. We are looking to see if we have a geographic breakdown of that, and I will certainly pick up on it.
Baroness Andrews
Are those 13,000 homes generated by the conversion of offices?
Lord Bourne of Aberystwyth
I believe that this is all permitted development rights conversion to residential.
Baroness Andrews
It would be useful to have a breakdown of the number generated by the conversion of offices.
Lord Bourne of Aberystwyth
I suspect that that forms the bulk of them but I shall endeavour to get that information.
Permitted development rights are making a real difference in providing homes in town centres, rural areas and brownfield sites, supporting our housing delivery ambition. We should welcome that permitted development rights provide that opportunity.
I thank the noble Lord, Lord Kennedy of Southwark, and my noble friend Lady Cumberlege for Amendment 14, which seeks to prescribe those matters which must be considered by the local authority as part of the prior approval process in any future permitted development rights that allow change of use to residential. When new permitted development rights are designed we work to ensure that any matters that we think require the consideration of the local planning authority are included in the prior approval contained within that right. Certain criteria have to be considered in this prior approval process for the change from office to residential, and these include some of the matters contained in the proposed amendment.
Four matters that have to be considered on office-to-residential prior approvals are: transport and highways impacts of the development; contamination on the site; flooding risks on the site; and the impact of noise from commercial premises on the intended occupiers of the development when it shifts, as is proposed, to residential. So they are tailored to consider those specific points. We recognise that in all cases of change of use to residential, the prior approvals that are set out are important. However, this is not necessarily true of all the other proposed prior approvals in the amendment.
The current approach to permitted development certainly simplifies matters—it cuts out some of the bureaucracy and helps in relation to costs for the applicant and the local authority. Amendment 44 covers some of the same territory but is wider. It was tabled initially by the noble Lord, Lord Porter of Spalding, who is not in his place, but was ably spoken to by my noble friend Lady Cumberlege and supported by other noble Lords. In the Government’s view the proposal is far too wide. There will be exceptional circumstances where a national permitted development right is not appropriate in a particular location. This is why an effective process to allow local planning authorities to remove permitted development rights already exists. The noble Lord, Lord Tope, referred to this and said that it had made a difference. To be fair, he said that he had hoped it would have gone further but that it has made a difference. As noble Lords will acknowledge, this is true in some of the areas that are hardest hit.
I have been listening carefully. There are issues relating to change from office to residential which have had an impact in some communities on the availability of commercial premises. That is undoubtedly true. The noble Lord, Lord Tope, spoke of his personal experience and made reference to the experience of my noble friend Lord True, who is not in his place, who raised this issue in relation to Richmond.
Article 4 provides part of the answer but obviously fairness demands that those affected are given an opportunity to be heard, that they are given notice and that they are compensated where necessary. However, I am pleased to offer the reassurance that the Article 4 process gives planning authorities the flexibility to withdraw rights in exceptional circumstances, while ensuring the fair treatment of those affected if they are not able to pursue the development. I accept that there is a concern more generally about these issues, and although I believe that these amendments—in particular Amendment 44—go far too far in requiring consideration across the board without being properly targeted, I acknowledge that there is an issue that should be looked at. That point was well made. However, as I said, these amendments go far too far.
I am not sure about the point that was raised concerning cumulative impact, and I suspect that that will be very difficult to define. I do not think it is recognised in planning law but I will investigate that. I think that challenges of cumulative impact would arise depending on how large the area was and so on, but I do not think that it would be easy to tackle.
I would like to reflect on what has been said in Committee today and, without prejudice to the outcome, to go away and perhaps speak to other noble Lords who cannot be here, such as my noble friends Lord Porter and Lord True, as well as others. I shall be very happy to have an open door to discuss this matter but, in the meantime, and with the reassurance that I have given, I ask the noble Lord, Lord Kennedy, to withdraw the amendment.
Lord Kennedy of Southwark
I thank the Minister. Before withdrawing the amendment, I would like to raise one or two points with him. The Article 4 direction is not widely used and is not that easy for local authorities to use. The Minister said that Amendment 44 goes far too wide. I thought that it was for the Government to set the broad parameters of policy and then for local authorities to apply it locally. I would not expect the Government to be very specific but I do not see why they would not want to give a wider power, with an authority then looking at how it applies locally and impacts locally. I would welcome further comment on that.
On Amendment 14, I am very pleased that the Minister was able to respond in respect of the first four items in paragraphs (a) to (d) and I thank him for that. However, there are the other items listed in paragraphs (e) to (i), and I do not know whether he can comment on those. I draw his attention, in particular, to paragraph (h), which refers to air quality. Deaths from poor air quality are now regularly reported on in the media, and that is a particular problem in London and elsewhere. If development were to take place on a former industrial area, that could be an issue.
Paragraph (e) refers to minimum space standards. One development that I know of is Lewisham House in Lewisham—the old Citibank tower. It is not the most attractive building in the world—I do not know whether the Minister knows Lewisham town centre. Apparently, at some point in the future it is going to be converted into largely one-bedroomed properties but I do not know what the minimum standards will be. I suspect that the plan will be to have something like 230 one and two-bedroomed properties there, and they will not be particularly big. The whole question of space should be of concern to the noble Lord and to the Government in general. I hope that the days of rabbit-hutch developments are long behind us, but that is something that the noble Lord should certainly look at. There are a number of other places that I know of where I do not know whether the developments have taken place. Lewisham House has not been developed yet—it is sitting there waiting for that to happen. However, we would not want rabbit-hutch developments if we could possibly avoid them.
Lord Bourne of Aberystwyth
I thank the noble Lord for that. In answer to the question, “Do I know Lewisham?”, I have certainly visited it on occasion but, through the noble Lord, I feel I know it better than just from the two visits I have made there fairly recently.
In relation to the points he is making, there has to be a balance in what we do here, and I think that noble Lords would accept that Amendment 44, talking as it does of giving the power, seemingly unchallenged, to local authorities to suspend permitted development rights indefinitely, goes too far. I have offered to go away and reflect on this but I have made it absolutely clear that we cannot accept that amendment as it stands.
Article 4 directions are open to boroughs and other areas to use. In fairness, this is one area where they try to look at the cumulative impact. So, contrary to what I have just said, there are areas where we try to assess cumulative impacts, which is part of the Article 4 consideration. But, as I say, I accept that there is an issue to look at here. I want to go away and reflect on this, so I do not want to get down into too much detail on the position of the different London boroughs or elsewhere. However, I am happy to go away and have a look at it, without prejudice. I hope that noble Lords will take up that offer.
Lord Kennedy of Southwark
I thank the noble Lord, and of course he is very welcome to visit my ward in Lewisham any time he likes. I can show him one or two places that I have mentioned in our debates as well as other problems I have. I am quite happy to show him. It might actually help us in our debates over the next few weeks. I thank him for his response and am happy to beg leave to withdraw the amendment.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, as this is the first time I have spoken in Committee I draw the Committee’s attention to my entry in the register of interests.
I fully support the noble Lord, Lord Kennedy, in this amendment. The problems he has listed are those relating to London and other urban areas. However, they are not isolated to just those areas. Those of us in rural areas suffer significant frustration when planning permission has been applied for and given but nothing happens. Land is often left untouched for many years when it could have been productively used for key priorities in local development or neighbourhood plans.
Occasionally, spoiling tactics are employed. A local authority can identify a particular use for a parcel of land which does not meet with the approval of either the owner or those living in close proximity. As we all know, anyone may apply for planning permission on any piece of land; they do not have to own it. It certainly helps the process if the applicant is the owner, but this is not a requirement. Spoiling applications are submitted, appear to be in accordance with the local plan and gain approval. Thereafter, nothing is done to the site and those objecting feel their mission has been accomplished.
In such cases, and those listed by the noble Lord, Lord Kennedy, I support the local authority having the right to direct the use of the land in order to fulfil the priorities in the local plan or neighbourhood plan. After all, both plans will have taken a great deal of time and effort to be completed; they will have gone out to extensive consultation and been thoroughly examined before being adopted. It is therefore only correct that the aims of those plans should be implemented as far as is possible. I believe this clause would help achieve that aim, which is in the general public’s interest. I look forward to the Minister’s response.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord, Lord Kennedy, and the noble Baroness, Lady Bakewell of Hardington Mandeville, for moving and speaking to Amendment 15, which is in group 9. This amendment, tabled by the noble Lord, would allow local planning authorities to direct the use of land upon which planning permission has expired for the purposes of its priorities, as set out in a local development plan.
Authorities should normally take decisions on development proposals within their area in line with the priorities set out in the development plan, together with the other policies of the plan. That principle is already enshrined in the Town and Country Planning Act 1990 and set out clearly in the National Planning Policy Framework. Both the Act and the framework are clear that applications for planning permission must be determined in accordance with the development plan, where its policies are material to an application unless material considerations indicate otherwise. Thus where planning permission has lapsed, any new proposals for development which require planning permission must be determined on that basis.
The planning history of a site, including any recently expired planning permissions, may be a material consideration when considering any fresh proposals. The weight to be attached to any earlier permissions will be a matter for the local planning authority but the importance of the plan remains unchanged. I appreciate and support the intention of the new clause proposed by the noble Lord, Lord Kennedy, and supported by the noble Baroness, Lady Bakewell. However, I do not believe it is necessary at the moment. The noble Lord mentioned the forthcoming White Paper, which we hope will be forthcoming very soon. It will cover this issue, as I have mentioned many times before in the Chamber and elsewhere. This is an issue that we must confront and not just for London and urban areas. I fully accept what the noble Baroness alluded to there.
Perhaps I may bring the Committee back to this legislation, which is designed to streamline processes and deliver more houses. We should not lose sight of that. We all say that we are wedded to it but we must be careful to ensure that it remains a central feature of the thrust of the debate, and of the legislation. If that much land is held by developers, they have fewer excuses for land-banking. I say gently that if that land were developed more quickly, although it would not crack the problem in its entirety, it would go some way to doing so.
I thank the noble Lord, Lord Kennedy, very much for the invitation to Lewisham, which I look forward to fulfilling—not necessarily on a day when Millwall is playing at home but on some other day. With the knowledge that this issue will come forward in the White Paper and that we will have a longer process of having a crack at it in a deeper dive—along with that friendly reciprocation of his invitation—I ask him to withdraw his amendment.
Lord Greaves (LD)
My Lords, I want to speak briefly to Amendment 15, which my noble friend Lady Bakewell has spoken to. I know that Lewisham is closer to this place than some places are, but if the noble Lord is issuing a general offer to visit wards that some of us sitting here represent on local authorities, he might have a few letters in the post. But he would be welcome indeed to come to Colne any time he wishes and I would be happy to show him some of the problems we have that are different from those in Lewisham and other parts of the south-east.
Having cheekily said that, there is something behind this amendment about what happens when a planning permission which has been given, perhaps in detail, then lapses and that permission is no longer in line with a local plan. For example, if there has been a local plan and the permission has been given, a neighbourhood plan may then be adopted which does not have to accord exactly, as I understand it, with the local plan on site allocations but has to be in general conformity with it. If a neighbourhood plan for a village says that a piece of land which has planning permission for housing is not the most suitable while a different piece of land can be allocated—one which local people would prefer to be allocated under the neighbourhood plan—and if that keeps the same number of new houses built in that area, or even more, what then happens?
There is a wider issue: developers and planning committees—planning officers—tend to assume that if a planning permission has previously been given, for example for a change of use, and has not been taken up, and the same application is put in again after four or five years, it ought to be granted, on the precedent that it has been granted previously, and yet circumstances may have changed. There is a very important issue here relating to detailed applications which, at the moment, do not always result in the most satisfactory outcomes because of the assumption that although planning permission has lapsed, it is really still there and all you have to do is fill in the forms, pay the fee and everything will be okay.
Lord Bourne of Aberystwyth
My Lords, I will seek to reassure the noble Lord, Lord Greaves, on both points.
First, if the planning permission has lapsed, a fresh application has to be put in for the use of the land, and it must conform to the local plan at the time, including any neighbourhood plan that has become part of the local plan in the meantime. Secondly, in planning law there is no presumption that permission should be given in relation to an application with a lapsed permission. That would not be the case. The committee might want to take into consideration the fact that a lot of work has been done and look at it, but there is no presumption in law that it should be adhered to. I do not think that planning authorities are under that misapprehension but if they are we need to make it clear that that is not the case.
Lord Kennedy of Southwark
My Lords, I thank the Minister for his response. I am pleased by his comments and am looking forward to the White Paper and these issues, hopefully, being addressed. I have put Questions down in the House before, and there is an issue with getting houses built in certain areas. The noble Lord, Lord Greaves, is right: there may not be a case for granting permission in certain areas. I accept that entirely. However, in certain areas there is pressure for building and the frustrating thing is that you have given permission to build on the site, then you drive past every day and nothing has happened. It is very frustrating.
I hope that the White Paper will address that. I hope also that the Minister will visit my ward; his predecessor, the noble Baroness, Lady Williams of Trafford, visited my noble friend’s ward while she was in his job. He may consider that too. If the noble Lord ever comes to Millwall I can assure him of a very warm welcome. As the noble Lord, Lord Young, knows, planning permission and compulsory purchase are big issues down there at the moment. I beg leave to withdraw the amendment.
Lord Bourne of Aberystwyth
My Lords, I thank the many noble Lords who have participated in the debate on this amendment. Before I turn to the specific amendment, I shall make some introductory remarks which I hope will set the matter in its context.
Community members have said that a local planning authority’s input and attitude can make a significant difference to neighbourhood planning progress. We have also heard during our discussion of the importance of neighbourhood planning groups being able to access technical advice and support and financial support. All parts of the committee have spoken of the importance of ensuring that we promote neighbourhood planning, which is something to which all parties are committed. I am sure that that will make a difference. It is clearly beginning to make a difference, although I accept there is much ground still to cover.
I shall say a little about the advice available through the Government’s support programme for communities preparing a neighbourhood plan before we turn to the specific role of local planning authorities. The Government’s £22.5 million support programme has been accessed by communities across the country and has made more than 1,800 payments since it was launched in March 2015. The support available now is very different from that which may have been available to some of the early pioneers of neighbourhood planning. All those wanting to prepare a neighbourhood plan can apply for grant of up to £9,000 to help them do so. Those that fall into certain priority groups can apply for up to a further £6,000. I am not sure that that is widely known. I think there is work to be done to make sure that it is more widely known.
We have reflected on the experiences of early pioneers and responded to new challenges that groups have faced. For instance, specific toolkits and technical support are now available to help groups establish neighbourhood forums in unparished areas, which are usually urban areas, as the noble Lord, Lord Greaves, said, to assist with assessing local housing needs and to support those wishing to allocate sites for development. Any group wishing to modify its existing neighbourhood plan can also apply for support in the same way as any other group can on initially setting up. I applaud the work being done by those who are setting up neighbourhood forums or parish councils. Although there is only one parish council in London, there are neighbourhood forums in London and many work across boroughs, such as the Kilburn Neighbourhood Plan Forum which works across the boroughs of Brent and Camden on specific projects.
The Government have also established a national network of 132 neighbourhood planning champions. These volunteers are drawn from local planning authorities and neighbourhood groups and provide advocacy and peer-to-peer support. We are continuing to support them across England through further training and local networking events. Last year, the Government launched a national advertising campaign to promote take-up of neighbourhood planning, targeting 81 local authority areas through adverts in local press, local radio, online and on-street posters. I shall endeavour to provide more information on that. Perhaps it can be disseminated to particular councils that noble Lords will be familiar with so that we can share some of this information more widely because that would be appropriate.
If I have not said this already, and I do not think I have, I will write again. The letter regarding the first day of Committee is in the process of being finalised, and I would like to write another one to pick up points that I do not cover or fully cover in the course of today’s debate. So once again there will be a write-round.
I turn specifically to Amendment 16. I thank the noble Lord, Lord Greaves, and others who have contributed to the debate. This is an important area. Already, communities in over 70% of local planning authority areas have taken up the opportunities offered by neighbourhood planning, but I fully acknowledge that that does not capture the fact that there are massive gaps. In other words, there are groups throughout the country but it needs to permeate much more widely. There is much more to do, as noble Lords have rightly said.
Local planning authorities have a legal duty to give such advice or assistance as they consider appropriate to facilitate neighbourhood planning. As set out on Tuesday in response to a point raised by the noble Lord, Lord Kennedy, these duties are funded by my department under the new burdens doctrine. I can confirm that that funding will continue into the next financial year, and the amount of that will be released ahead of the new financial year so details of it will follow.
Planning guidance sets out the Government’s expectation for local planning authorities to take a proactive and positive approach, working collaboratively with those preparing a neighbourhood plan to ensure that neighbourhood plan proposals have the greatest chance of success. Building on this, Clause 5 requires authorities to set out in their statements of community involvement their policies for providing support to their communities. That requirement applies irrespective of whether there is any existing neighbourhood planning activity in the area and will bring transparency to the support that authorities provide, leading to more informed and equitable discussions.
The Government have set out, in the document entitled Further Information on How the Government Intends to use the Bill’s Delegated Powers, our intention to require statements to be reviewed at least every five years. While it will be for authorities themselves to decide whether the document should be revised, should an authority consider change unnecessary then it must publish its reasons why they are not updating the statement. The Government have also tabled an amendment to the Bill that would allow the Secretary of State to specify by regulations the content of those statements, and I think we are coming to those later.
Local planning authorities are also required to publish a map setting the designated neighbourhood areas in their authority area. Regulations also require authorities to publicise on their website, and by other means, when they designate a neighbourhood area or a forum, together with the progress of individual neighbourhood plans or neighbourhood development orders.
I turn to the part of the noble Lord’s amendment concerning community governance reviews, which are the reviews undertaken to decide whether new parish councils should be established. The Government have already taken steps to make it simpler for neighbourhood forums to request that new parish councils are created for their communities, and have supported communities up and down the country to set up new parishes through a £1 million investment over the past three years.
I can therefore reassure noble Lords that current requirements alongside measures in the Bill, together with government amendments that we have tabled, proactively promote neighbourhood planning and, as I have said, that we are seeking to publicise the benefits of neighbourhood planning.
I would like to cover some of the points that were made by noble Lords, if I can pick up those that I am in a position to answer. Those that I cannot, I will identify and write on later. We understand that around 90% of neighbourhood plans are in parish areas, a point that I think was made.
I was asked about the number of communities that have neighbourhood planning. I can say that over 2,000 communities in England have at least started the process of neighbourhood planning. If I am able to give a more detailed breakdown on that, I will do so when I write.
The noble Lord, Lord Taylor, raised the specific issue of the need occasionally, or perhaps more than occasionally, to change the boundaries of parishes that may be quite historic, and it may therefore be appropriate if that is revisited at times. At the heart of the neighbourhood planning process is the principle that it is for communities to decide what they plan for. Therefore the boundary of a neighbourhood area does not need to comply with administrative boundaries, and neighbourhoods can bring plans forward.
Specifically on changes to neighbourhood areas, I direct the noble Lord to Clause 4, which sets out some of the procedure. I appreciate that he was aiming more widely—in the sense of how to tackle the problem—but the procedure is covered by Clause 4. If there is anything else I can pick up on that in the write-round, I will do so.
The noble Lords, Lord Tope, Lord Horam and—I think—Lord Shipley, also raised the issue of how we tackle London specifically, and perhaps it relates to a wider area. I will consider that. There are quite a few neighbourhood forums in London, but no parish councils. I accept that, and I will see whether there is anything that we can usefully contribute on that.
I think that those are the main issues that were raised. If I have missed anything I will pick it up in correspondence. We take this issue seriously, and I will seek to address in correspondence some of the specific points raised in particular by the noble Lord, Lord Greaves, in introducing this valuable amendment. With that reassurance, I ask the noble Lord to withdraw his amendment.
Lord Greaves
My Lords, I am very grateful to the Minister for the positive and constructive way in which he responded to this amendment. It gives some hope that the Government might, in addition to letting us know what they are doing, put a bit more oomph behind this process. Before I comment on the Minister’s response, I have one or two comments for other noble Lords—and I thank all noble Lords who took part.
My noble friend Lord Taylor of Goss Moor talked about changing parish boundaries. Since responsibility for local governance review passed to the local authority and no longer requires the heavy-handed involvement of the Boundary Commission—I am not sure when it was—the process has been quite easy. If a local authority wants to review parish boundaries it can do so through the local governance review, which sets out exactly how it should take place. It can do it for the whole authority area or for just one or two parishes—to tackle a particular problem, such as the one my noble friend mentioned. It does not, therefore, need a new process, just for the local authority—in this case presumably Cornwall unitary council—to agree to do it.
The noble Lord, Lord Horam, reminded me of the only time I have been to Orpington. It was an extremely long time ago, and the first time I ever knocked on a door was on behalf of a Liberal candidate: Eric Lubbock, in the by-election of 1962. Before his sad death last year he was, of course, for many years, Lord Avebury. I remember it well. I would not claim to be an expert on Orpington but I would have thought that Orpington and perhaps some other communities there, such as Biggin Hill—where I remember traipsing around on unmade roads—would be an ideal place for a parish council. It ought to happen.
I am a member of an authority and was heavily involved in setting up area committees about 20 years ago. It is important for area committees on a local authority to be given real powers and not just be talking shops. We have had area committees with real powers. In fact the political job I most enjoyed in my life was chairing the Colne and District area committee for a number of years—again, quite a long time ago.
My noble friend Lord Tope said that we knew what neighbourhoods were but drawing boundaries was always extremely difficult. I think people bring that up as an excuse for not doing it. Drawing boundaries is not difficult if you know what community you want to define, and its core. Then you have to find a way to draw the boundaries with the consent of the people who live on and around them. It is usually quite possible. People know the part of the borough, or whatever, that they live in and, if they do not, a sensible decision has to be made. However, in most cases, drawing boundaries is not difficult.
The important, and more difficult, job is deciding what the core community is to start off with. Sometimes it is the local authority ward. If the local authority ward has been long established—I was about to say “and has been there a long time”, which would be tautologous—because of the activity that has taken place on a ward boundary basis and because that is what the councillors represent, then those boundaries, which initially were pretty arbitrary, take on meaning over the years. That is the case with some of the new authorities that were set up in 1974. In some cases, wards are perfectly reasonable places but, again, it is a question of judgment. In other places where the wards have recently been redrawn, that has resulted in complete nonsense for neighbourhood and community purposes, and things have to be done differently.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in the debate on this group of amendments. Before I turn to non-government Amendments 17 and 17A, perhaps I may highlight some important issues which deliver clear social and environmental benefits. They are important matters that should be addressed through a plan-led system.
Clause 6 puts beyond doubt the Government’s commitment to a plan-led system: a system where all local planning authorities have development plan documents in place to ensure that sufficient land is allocated for housing in the right places to meet needs, with roads and other vital amenities required by communities. At Second Reading, several Peers raised the frustration that many communities face when their local planning authority has not put its own local plan in place, or the policies in the plan are out of date. The Bill makes clear the Government’s expectation that all local planning authorities must have up-to-date plans to deal with those issues.
However, as my honourable friend Gavin Barwell, the Minister for Housing and Planning, outlined during discussion in the other place, as long as authorities have policies to address their strategic housing and other priorities, we want them to have more freedom in the type of plan that is most appropriate for their area. The Government have put local and neighbourhood plans at the heart of the planning system. We put local authorities and communities at the forefront of shaping a vision for their areas and deciding how to meet their development needs. The existing regime reflects the understanding that local planning authorities, together with local communities, are best placed to set out future development for their local area.
I turn to non-government Amendments 17 and 17A. As the Minister for Housing and Planning stated in the other place, we need to guard against attempts to duplicate matters which are already addressed in national planning policy. Perhaps I may also address a couple of slightly extraneous points made by the noble Lord, Lord Beecham. I assure him that we are certainly not following any of President Trump’s policies. On climate change, which was specifically raised, although it is not central to this legislation, I reassure him that there is a very strong bipartisan approach which I pursued with the noble Baroness, Lady Worthington. We fulfilled our international commitments by signing the climate change treaty—I know because I was there—and very much follow the policy set out in the Climate Change Act 2008, passed by the then Labour Government, of setting carbon budgets.
I move now to the specific points addressed in these amendments. I thank the noble Baroness, Lady Andrews, for moving Amendment 17A on behalf of the noble Baronesses, Lady Finlay and Lady Watkins, who I know feel strongly about these issues, and enabling it to be part of the debate.
The matters addressed in these amendments relate to affordable and social housing, energy, flooding, air quality, green spaces, education, health and well-being. All are clearly addressed through the National Planning Policy Framework. I do not propose to read out all the parts of the framework that cover each issue. However, for example, paragraphs 99 to 104 of the framework require local authorities to shape and direct development to protect people and property from flooding, including through strategic flood risk assessments. Furthermore, paragraphs 120 to 124 require local authorities to safeguard people from unacceptable pollution risks; paragraphs 73 to 74 and 76 to 77 deal with the need for local authorities to provide green spaces and public leisure areas; and paragraphs 69 to 78 set out how local authorities should use the planning system to create healthy, inclusive communities. Noble Lords will be aware that legislation already protects land registered as common land areas.
Local authorities are already required by law to have regard to national planning policy and guidance when preparing their local plans. At examination, the extent to which a draft plan accords with national planning policy is one of the matters that the examining planning inspector will check. The planning regime is already set up to ensure that local authorities have regard to such important matters as those raised in this amendment.
There is no doubt about the importance of the issues raised, all of which help to create attractive and sustainable places. However, specifying them afresh in the Bill would lead to unnecessary duplication and prescription. I therefore do not believe that Amendments 17 and 17A are necessary. They would also limit the freedom for local authorities to choose the type of plan that is appropriate for their area, contrary to the intention of Clause 6.
I turn to Amendment 18, spoken to by the noble Lord, Lord Beecham. I fully recognise the importance of ensuring not only that housing is delivered but that the appropriate number of dwellings for an area is agreed at a local level. As noble Lords will be aware, housing is a key priority of the Government and we are clear that we must build more of the right homes, in the right places. To achieve this, it is essential that local planning authorities have an up-to-date plan in place which identifies, as far as possible, the housing needs of their local area. This provides the certainty communities deserve as to the number and location of new homes that will be built.
The very same concerns I expressed on the previous amendments apply here. This issue is addressed more than adequately in paragraph 47 of the National Planning Policy Framework. Local planning authorities must identify and plan to meet, as far as possible, the market and affordable housing needs of their area. Failure to include this information in a local plan may lead to the plan being found to be unsound at inspection stage. We are clear that local communities must be consulted during the plan-making process, in accordance with both legislative requirements and the local authority’s statement of community involvement. Additionally, neighbourhood plans offer a further opportunity for local communities to become involved in planning for the development needs of their area. Alongside this, the Bill includes further measures to ensure that communities are involved from the outset in wider plan-making activity in their area.
In short, I understand the concern that some local planning authorities currently have no local plan, while others do not have up-to-date plans in place. This has a negative impact on the allocation of development sites. However, measures introduced in the Bill will ensure that, in the future, plans are put in place more quickly. Clause 6 will ensure that local planning authorities set out their strategic priorities, including housing.
On government Amendment 19, I thank noble Lords for their warm welcome of this provision. Like the noble Baroness, Lady Andrews, I, too, believe that this is the first time that it has been recognised in this way in legislation. To echo what my noble friend Lord Shinkwin said, it is of great symbolic importance as well as practical effect. It sends out a powerful message, just as the Disability Discrimination Act did in 1995. I am proud of the role of my party and other parties in securing that legislation.
The important issue of the housing needs of older and disabled people was raised in the other place, particularly through my honourable friend Heidi Allen. I appreciate that the devil will be in some of the detail and we would not expect all the detail to be in the legislation, but I am certainly happy to meet the noble Baroness, Lady Andrews, the noble Baroness, Lady Greengross—she is not in her place, but she has been very interested in this legislation and has vast experience through Age Concern—and other noble Lords to see how we can take this forward in a meaningful way. I am sure that the noble Baroness, Lady Altmann, will also have a valuable contribution to make. It is important that we secure sensible legislation and sensible policy moving forward, as I am sure we can.
I reassure the noble Baroness, Lady Andrews, that there is provision for this in the National Planning Policy Framework, which we will look at. Also—another hostage to fortune—I think that there will be something in the White Paper to enable us to discuss it more fully. I am keen to ensure that, having made this commitment, we get it right. We have to deal with many challenges. Indeed, it is part of the wider issue across government of health and social care. The impact of an ageing population affects probably every government department that you can think of—it applies to DCMS, the Department for Education and other areas—so there is something to be done across government, which I hope we can take on board as well. As a bonus, the aim is to do something for this part of the community. It is important that we do that but it should have the effect of freeing up some housing that this group is in. That, too, is to be welcomed. As I say, I thank noble Lords for their welcome of the amendment.
More specifically, there is already a structure in place that recognises these needs. We have mechanisms through local authorities, the National Planning Policy Framework and building regulations. We need to build on those. The Government have listened carefully to the concerns that have been expressed by many Members in the Commons and the Lords, across parties, about these issues.
Understandably, specific questions were raised. I will try to pick up some of those details in responding by letter. I hope that I have given a broad view of where we are going, but I am, as I say, happy to engage with noble Lords on the more detailed approach as we take the policy forward. With that, I ask noble Lords not to press their amendments.
Lord Young of Cookham
“( ) In section 34 of that Act (guidance)—(a) the existing words become subsection (1), and(b) after that subsection insert—“(2) The Secretary of State must issue guidance for local planning authorities on how their local development documents (taken as a whole) should address housing needs that result from old age or disability.””
Lord Kennedy of Southwark
Before the Minister responds, on the point raised by my noble friend Lord Beecham about difficulties with the Sheffield city region, my understanding is that it is North East Derbyshire District Council and Chesterfield Borough Council in Derbyshire which wish to join. I think that Bassetlaw District Council in Nottinghamshire may also want to join. The legal action is being taken by Derbyshire County Council, which of course partly comprises the north-east Derbyshire and Chesterfield areas. The problem is with three districts in two counties, but one county council has raised the legal action on the points that my noble friend outlined.
Lord Bourne of Aberystwyth
I thank noble Lords for the debate on this part of the Bill. I will try to take Clauses 7 and 8 in that order. There were certainly some questions on which I will need to write with fuller answers, but let me first turn in general to Clauses 7 and 8.
These measures contribute to the Government’s objective of ensuring that all local planning authorities across the country have up-to-date development plan documents—the documents that collectively form the local plan. In particular, Clause 8 ensures that there is not a void and that we have a local plan. We would have been heavily criticised if we had left an obvious hole in the system where no one was preparing a development plan, but I will come to that.
The Government are committed to a plan-led system in England. We have put communities at the heart of that system, and I hope that I can leave no doubt in your Lordships’ minds that we want communities to have confidence in a system that takes account of their views, while delivering the growth that the country needs.
I also want to kill one hare that was set running, which I had not heard before. There is no agenda, let alone a secret agenda, for mergers of councils. This legislation is about neighbourhood planning. Until today, nobody had raised with me that this is about a secret agenda to merge authorities. It is not, it is to try to ensure that we have a full pattern of what is needed for the planning of the country. It is important, therefore, that where local planning authorities do not have an up-to-date plan in place, the Government should take action to resolve this situation. We would have been roundly and correctly criticised if we did not have such plans.
I turn first to Clause 7, spoken to ably by the noble Lord, Lord Kennedy—I apologise for my short absence during his speech—and my noble friend Lady Cumberlege. The noble Lord, Lord Shipley, the noble Baroness, Lady Bakewell, and other noble Lords spoke more widely about this.
We want to encourage collaboration between local planning authorities so that strategic priorities, particularly for housing, across local boundaries are properly co-ordinated and clearly reflected in individual plans. The Local Plans Expert Group which was asked by the Government to examine what measures or reforms might help to ensure the efficient and effective production of plans recommended that more could be done to encourage local planning authorities to work on joint plans. The Government agree with this recommendation, and it forms the basis for the clause.
The idea of joint planning and working collaboratively with neighbours is not new. We know of more than 40 local planning authorities, right across England, that are working on joint plans. There is no agenda about encouraging or, even less, forcing them to merge. My honourable friend the Minister for Housing and Planning referred during debates in the other place to representatives of Norwich City Council who told him about how they were working with South Norfolk Council and Broadland District Council districts to produce a combined plan across the three districts. We are also seeing joint plans being developed as a result of devolution deals, such as the Greater Manchester spatial framework.
Authorities working jointly with their neighbouring authorities can see that there are benefits to be had. For example, there may be cost reductions to individual authorities through working collaboratively on evidence or through shared examination and legal costs. A joined-up plan-making process, where key decisions are taken together, can also assist local planning authorities to plan for housing.
We know that some areas across the country are having real difficulties in addressing issues that require solutions across geographic boundaries, such as planning for housing need in areas with significant constraints, and collaboration with neighbouring authorities may help to resolve some of those issues.
Clause 7 inserts new Sections 28A to 28C into the Planning and Compulsory Purchase Act 2004 and makes consequential amendments. I wish to emphasise that this power can be exercised only where the Secretary of State considers that it will facilitate more effective planning of the development and use of land in the areas of one or more authorities. During the contribution of the noble Lord, Lord Beecham, I wrote down a reference that he gave to Clause 7(2)(a), I think. I do not think that there is a Clause 7(2)(a), but if we could discuss it afterwards, I am happy to get a full read-out on it and write to him.
New subsection 28A(5) provides that:
“The Secretary of State must, when giving a direction under this section, notify the local planning authorities to which it applies of the reasons for giving it”.
That is a clear provision which ensures that it can only be used appropriately. Presumably, like other provisions of statute, it will be subject to judicial review which, while it is not something that we want to encourage, is a backstop if people feel that any Secretary of State has got it wrong, as may happen on occasion under any Government.
New subsection 28A(3) states:
“The Secretary of State may give a direction under this section only if the Secretary of State considers that to do so will facilitate the more effective planning of the development and use of land in the area of one or more of the local planning authorities in question”.
So it is to be used sparingly.
The noble Lord asked five questions about Clause 8. The first question was about why it is needed. It is because we need a plan if there is a gap. His second question was about whether the county council is required to do it. No, it is absolutely clear in Schedule 2 that it is an invitation to the county council. The county council does not have to take up the invitation. He raised several other questions including whether county councils can subcontract this. I suspect not, but I will correct that in the letter if I am wrong. He asked how local knowledge is to be guaranteed. That is specifically the reason this is needed. The Government would look to intervene in this way if we believed it was the only remaining lever to ensure that there is a local plan. The alternative would be the Secretary of State intervening directly, which would not be very local. This is an attempt to get the vacuum filled by the most local appropriate authority, otherwise it will not be done. The most desirable outcome is that the district council does it. The whole procedure can be prevented by the district council doing it, and that is exactly what will happen in the vast majority of cases. We would be roundly criticised if we did not have such a provision.
The noble Lord, Lord Beecham, raised some fair points about the impact of this on combined authorities. Clause 8 supplements existing powers to invite the Mayor of London or a combined authority to prepare a development plan, so it is already in existing legislation for an authority in its area. Again, I will take up that point in more detail, but I think that is the provision.
The essence of this is that it is within the power of district councils to ensure that the powers introduced by the clause are never used. That is what we hope will happen. I am of the view that it would be only in the rarest of circumstances, where there is not a plan in place, that this provision would be needed.
Questions have been fairly raised about the skills and capacities of county councils and whether they can turn down this role. We anticipate that there will be discussions with them about what happens if there is no plan. They are the next nearest directly accountable authorities and have knowledge and understanding of the development needs of the area. They are familiar with the planning process and are already involved as statutory consultees in the local plan’s process, and many work with their district councils on cross-boundary issues.
As I said, we would be rightly and roundly criticised if we did not have these provisions. They are needed in order that we can cover the whole country. They are long-stop provisions which I anticipate will not be much needed. They are only on the basis—particularly in regard to Clause 8—that if there were not such provisions it would mean direct intervention by the Secretary of State and the department, which is not what we want in a neighbourhood planning process.
Baroness Cumberlege
I am comforted that there are no secret agendas for mergers, and I thank the Minister for his assurance. As to collaboration between authorities, my noble friend told us that 40 authorities have agreed to provide joint plans. Presumably that has been done without the clause in the Bill. Are the plans likely to be more sustainable because the authorities are working willingly together rather than having joint plans imposed on them by the Secretary of State? I take my noble friend’s point that the power will be used sparingly. That sounds wonderful in debates in this House, but when it comes to the actuality, if it is not written in this document, people will have no recourse to come back.
I am disconcerted by the way in which the clause is framed, its extent and the words threaded through it about the Secretary of State making directions and so on. It is not a light touch but a huge amount of interference from the Secretary of State in local matters, and that I resent.
Lord Shipley
The Minister kindly answered three of my four questions. The missing answer was on the right of a county to charge whatever fee it wishes to. It is an important issue and, if he prefers, the Minister can write to me, but in Schedule 2, lines 31 to 40 rather suggest that a county can charge a district whatever it wishes.
Lord Bourne of Aberystwyth
I shall take up those points. In response to my noble friend Lady Cumberlege, this power will be used sparingly, and the Secretary of State will have to give reasons. In preparing their joint plan, the authorities concerned can, if they wish, reject the plan—they are not obliged to adopt it. I repeat that there is absolutely no hidden agenda here. As my noble friend correctly said, it is certainly better where joint plans emerge. That is very much the view of the Government and the Secretary of State. We anticipate that that will be the case in the vast majority of circumstances. We know that, occasionally, local authorities do not necessarily have the capacity. There will be cases—even if there are not, we still have to guard against the possibility that there could be—in which the Government will have to have a backstop power in relation to these matters. That is what this is. The Secretary of State has to give reasons. The authorities concerned can turn down those reasons.
In relation to the point made by the noble Lord, Lord Shipley, I am advised that there is cost recovery for the work done. I hope that answers his question. If I am wrong on that, I will correct it in a letter.
Lord Shipley
I am happy for the Minister to write to me. Clearly, we need to define what cost recovery is, because the definition of necessary costs currently lies with the county and not the district. There has to be a system that everybody understands.
Lord Bourne of Aberystwyth
That is an entirely fair point. As I said, there is a system to ensure that costs may be recovered, but I will elucidate that, if I may, in my letter.
I apologise, but I have forgotten the point that the noble Lord, Lord Kennedy, made.
Lord Kennedy of Southwark
I was asking for information on the councils that are failing in their duties and so require the Government to take on these powers. Perhaps there are no councils in that position and the Government are taking the power preventively— I do not know. If there are, which authorities are they?
Lord Bourne of Aberystwyth
I am sure the noble Lord was listening very carefully to what I said. I said that we need backstop powers in case that situation arises. I hope that I did not indicate that there is an existing list of authorities against which we thought we were going to use this measure. It is a backstop power. When the noble Lord’s party was in power, it was responsible. I am sure that he would expect any succeeding Government to be the same and to ensure that these powers exist in case they are needed because an authority is not stepping up to the plate.
Lord Kennedy of Southwark
That makes it a bit clearer: at the moment, there are no councils against which the Government would need to think about using this power; it is a backstop power. It is good to have that clarified.
When the Minister responded to the debate on Clause 7, he also said that councils will have recourse to judicial review. I have never heard a Minister at the Dispatch Box suggest, in proposing legislation, that the backstop measure is that someone can seek judicial review. Ministers do not usually like that. I think it is an amazing thing to do and I hope it is available for people. However, I am slightly worried by the confidence the Government have in their legislation when their immediate defence is to say, “Don’t worry, you can go off and seek redress in the courts”.
Lord Bourne of Aberystwyth
I must correct that very serious accusation. I was not encouraging people to bring legal action. I was explaining, in case noble Lords were not aware of the fact, that this statute, just like any other, is justiciable on its interpretation and that people will have rights at law. That is the point I was making.
Lord Kennedy of Southwark
I was not suggesting that the Minister was encouraging people to bring legal action. But he certainly said that people would have redress through judicial review. It seemed odd to hear that from the Dispatch Box while we are discussing legislation.
Lord Bourne of Aberystwyth
My Lords, as a lawyer and somebody who sympathises when somebody has a legitimate compliant, which they may do, against any government department or local authority, I think it is absolutely right that that right is put on the record by the Government. That is all I sought to do. I do not think there is anything improper or extraordinary in that.
“( ) Section 18 of the Planning and Compulsory Purchase Act 2004 (statement of community involvement) is amended as follows.”
Lord Bourne of Aberystwyth
My Lords, before I turn to government Amendments 21, 22, 23 and 130, I shall make some introductory remarks which I hope will set the context for our discussion. We have been clear that we want to see a more collaborative and effective planning system. We have discussed the energy and passion that many communities invest in the preparation of neighbourhood plans, and we are committed to seeing that number grow. We discussed that particularly in relation to the amendment so ably moved by the noble Lord, Lord Greaves. We also recognise that not all communities may wish to prepare a neighbourhood plan. Some communities and their local planning authorities are working collaboratively on the local plan for their area, and we want to encourage that. This is also a point we discussed during our first day in Committee.
Clause 11 will clarify how communities can be involved in decisions about the wider planning of their area. It extends the matters to be set out by a local planning authority in its statement of community involvement. This will ensure that authorities include in these statements their policies for involving their communities and others in the preliminary stages of plan-making. Specifically in relation to their functions under Sections 13 and 15 of the Planning and Compulsory Purchase Act 2004, these include a local planning authority’s survey function and the preparation and maintenance of a local development scheme. The latter must set out the development plan documents that collectively make up the local plan for the authority’s area, their subject matter and geographic coverage and the timetable for their preparation and revision.
Including an authority’s policies for involving local people in the work an authority will do to survey its area will help local people understand and express views on the changes that may be taking place in the local population, which may influence the type of housing needed, for example, or in the local economy, which may influence the type of accommodation business may need. Changes such as these will drive the development needs of an area that any plan may need to address.
Requiring an authority to set out how it will involve local people when taking decisions on the development plan documents that it will prepare will encourage a discussion between the local planning authority and its community on whether communities may wish to prepare a neighbourhood plan as an alternative to one or more of the authority’s documents. The changes introduced by Clause 11 pave the way for more informed and equitable discussions between local planning authorities and their local communities about the future local growth and development of their area and the sorts of planning documents that will shape these changes.
Government Amendments 21, 22 and 23 will allow the Secretary of State to produce regulations which set out further matters which local planning authorities must address in their statements of community involvement. They will ensure that the Government can clarify further for communities, including neighbourhood planning groups and others, how they can play a role in the development of their area. For example, the amendments will enable the Secretary of State to require authorities to set out how they will provide advice to neighbourhood planning groups on the relationship between a neighbourhood plan and the plans that the authority has prepared or is preparing. This was an issue raised in the other place which my honourable friend the Minister for Housing and Planning committed to consider further. The amendment responds to that concern. It will also ensure that we can leave communities in no doubt that authorities will set out who they propose to involve and when and how they can get involved.
Government Amendment 130 amends the commencement provision in the Bill to ensure that the power to make regulations in Amendment 23 comes into force with the passing of the Act. I beg to move.
Lord Greaves
My Lords, these amendments are broadly welcome—I think. The devil will be in what the regulations say, of course, but if they are not as benevolent as the Minister is suggesting, we will have a row then. Otherwise I think they are all right.
Lord Beecham
My Lords, I am grateful to the Minister for enlightening me, if not other members of the Committee, as to the otherwise completely incomprehensible terms of Amendments 21 and 22. Not having been given a crystal ball to look into, I could not really understand what they were about, but he has partially explained them, for which I am grateful.
However, on Amendment 23, we are again in the business of secondary legislation. I do not know whether the Government have yet consulted at all on the regulations and whether there is any chance of seeing any draft regulations before Report, but it would be interesting to know whether they had embarked on a consultation with the Local Government Association, for example, about the contents of any such regulations. Again, it looks like the Government imposing a particular way of proceeding on local government, possibly without any real exchange of views about how that might best be achieved. As we know, other Committees in your Lordships’ House have expressed great concern about the increasing reliance on secondary legislation that all too often emerges without any real evidence of effective consultation about what it should contain.
Lord Bourne of Aberystwyth
I thank noble Lords for their participation in this debate. I thank the noble Lord, Lord Greaves, for his almost wholesale welcome, and I hope to avoid the punch-up—
Lord Bourne of Aberystwyth
The provisional punch-up, yes. I will certainly seek to avoid that.
I have some sympathy with the noble Lord, Lord Beecham, about the rather obscure, not to say Delphic, nature of the provisions; they took me quite a while to get through as well. With regard to more detailed information on policies and so on, we supplied some supplementary information to the Delegated Powers and Regulatory Reform Committee, which I will ensure is circulated to noble Lords to provide more detail on the thinking behind this.
We certainly want to ensure that we discuss the way forward on the issue. This provision was widely welcomed in the Commons, and it is our intention that it should be a means of ensuring that communities are properly involved. I do not think there is anything sinister here, so I am happy to share what documents we have and use them as a way forward.
Lord Kennedy of Southwark
I will make a couple of brief comments before the Minister responds, including one about payday loan shops. I should declare in this context that I am a director of a credit union—London Mutual Credit Union, which is based in London and covers four London boroughs: Southwark, Lambeth, Westminster and Camden. We are also the credit union to the Armed Forces: a number of our members are from the Armed Forces.
I was conscious that the most reverend Primate the Archbishop of Canterbury, and others, encouraged the Government to take action in the previous Parliament in respect of the interest rate, and that is very welcome. There is, however, an issue—we certainly get it because our main office is in Heaton Road in Peckham. About 10 doors along is The Money Shop. We often get 50 to 60 applications to join the credit union but also people walking in off the street. Often they have been to The Money Shop and, because of difficulties there, people have suggested that they go down to the credit union. They join, and the first thing that we do is try to find out what their problem is: how big their debt is—get it all out of them. Then, if we can, we will find them a loan. We want to pay that direct to The Money Shop, to end the problem there, not just give it to the people themselves.
There is, however, an issue with a number of these high street shops and how they operate. I would certainly like to see more action—more ability for a local authority to look carefully at its area and see whether there are enough such shops. Unfortunately, as we have all seen, the problem is not borrowing more money, it is getting a grip of your finances and controlling them. Credit unions are one type of organisation that can help with that, along with others such as money advice services.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord, Lord Beecham, for his amendment, and other noble Lords who participated in the debate, including the noble Lords, Lord Shipley and Lord Kennedy. The amendment reflects the importance of planning at the local level to address local issues. I was particularly interested to hear from the noble Lord, Lord Shipley, about the all-party parliamentary group covering betting, the experience of Newham and the local action that it has taken on fixed-odds betting terminals in betting shops.
It may be helpful, first, to remind noble Lords of the important planning changes we made in April 2015 specifically to allow local planning authorities to consider the merits of any application for such uses, and to provide the community with an opportunity to comment. Prior to April 2015, the use classes order grouped betting shops and payday loan shops with other financial or professional services in the A2 use class. This meant that any financial or professional service could change use to a betting shop or payday loan shop without a planning application. Now they would need such an application. Additionally, under permitted development rights, new betting shops or payday loan shops could be opened in any property used as a restaurant, café, pub or other drinking establishment, or hot food takeaway. These changes could be made without local authority consideration.
Responding to concerns raised at that time about the clustering of such uses on the high street, the Government made changes to the Town and Country Planning (Use Classes) Order. We took betting shops and payday loan shops out of Class A2 and made them sui generis, or a class of their own. This change was made precisely so that a planning application would be required for any additional such shop. This would allow for local consideration of any issues that might arise due to the change to such a use in that area. Local planning authorities, therefore, already have the ability to manage any additional clustering through their local plan policies. It is not for national government to set out how many betting shops or payday loan shops there should be, and where they should be.
Where a local planning authority is concerned about the clustering of such uses, it should ensure that it has an up-to-date plan with robust policies in place. We know, as has been demonstrated, that some local authorities are already putting in place detailed policies in respect of betting shops and payday loan shops that reflect their individual local circumstances, and setting out the position in respect of the numbers and location of those shops.
The National Planning Policy Framework provides local planning authorities with the policy framework to plan for a mix of uses, promoting the viability and vitality of their town centres. Such policies should be based on sound local evidence and tested at examination. Policies contained in the local planning authority’s development plan must be taken into account when determining any application for a new betting shop or payday loan shop, unless any material considerations indicate otherwise.
Noble Lords will be pleased to know that, as he committed to do in the other place, Gavin Barwell, the Minister for Housing and Planning, met yesterday with the Minister for Sport, Tourism and Heritage, who has responsibility for gambling. They were able to discuss the issues emerging from the review of gaming machines and social responsibility measures undertaken by the Department for Culture, Media and Sport. As noble Lords would expect, there was a positive discussion to consider how we can continue to work together effectively to take forward any proposals arising from the review, which I understand is likely to report later in the spring. I have not as yet had the opportunity to have a detailed discussion with my honourable friend in the other place. If there is any additional information, once again I will include it in the write-round. There is, therefore, an agenda that will continue to have our attention, recognising the concerns that are widely expressed, and of course this goes much wider than planning.
Although we consider that local planning authorities have the tools they need, we will continue to work closely with the Department for Culture, Media and Sport. However, it is not for national government to set out in guidance how many betting shops or payday loan shops there should be in an area. The tools are already with local authorities. These are local issues that should be dealt with through local planning policies. Therefore, I ask the noble Lord to withdraw his amendment.
Lord Beecham
I am slightly disappointed with the Minister’s reply. The Government are not slow to offer guidance about a range of issues when it suits them, but on this occasion they seem to be something of a shrinking violet. If the Government are concerned about this, I do not understand why they will not take the opportunity to push for change—which is all they would be doing—by offering guidance. They would not be instructing local authorities as to how many such shops there should be; they would be offering guidance in a way that guidance is offered across a range of issues.
If the Government are taking this problem seriously—I am prepared to concede that that may well be the case—I encourage the Minister, in consultation with his colleagues, to recognise that this Bill provides a way of highlighting the issue and advising and supporting local authorities in dealing with what is a growing social problem. Otherwise, ultimately we may have to resort to primary legislation, but goodness knows when that might be. This could make a contribution at an earlier stage, and, after all, I do not think that the Government would be entering into a hugely complicated issue if they were to accept the amendment. However, in today’s circumstances, I am prepared to beg leave to withdraw it but I may wish to return to this on Report.
Lord Bourne of Aberystwyth
I did not want to say that this was not an issue—that certainly was not my intention. I wanted to say that we have engaged with the Department for Culture, Media and Sport. I await a detailed discussion with my honourable friend as to how that meeting went, because I think that there are broader issues. If there are specific planning issues where I think we can make a difference, I shall be very keen to look at those, but I think that the tools are already there for local authorities and perhaps we need to get that message across. However, it is a specific subset of a planning class. They already have the powers and we certainly do not want this to be an imposition. I am not suggesting that the noble Lord was saying that; indeed, he was saying the opposite—that it was directing them.
I shall be very happy to report back further on how the discussions went, perhaps involving the noble Lord’s ally, although I have some doubts about the security of an alliance where you cannot remember the name of your ally.
Lord Beecham
If I had an ally at all, it would be the right reverend Prelate the Bishop of Bristol.
Lord Beecham
My Lords, I apologise to the noble Lord for missing the first part of his speech moving the amendment. Like other noble Lords, I strongly sympathise with the objectives but I am not sure that the amendment as drawn is viable. The noble Duke, the Duke of Somerset, has identified one or two issues with it, notably what is meant by “area”. We are not necessarily talking about a small area or even a city. There are now unitary authorities—for example, Durham and Northumberland in my part of the world—that are geographically large counties. For them, 50 homes is neither here nor there.
The objective that the noble Lord seeks to pursue is absolutely the right one, but the noble Baroness’s amendment is a better way of dealing with matters. She is looking amazed. I am always happy to congratulate the Liberal Democrats on getting something right; it usually happens in leap years, but not always. I think she has identified a better way of approaching the matter than the noble Lord, but what is important is that the noble Lord has raised the issue, which is something that has been in people’s minds for a long time.
I hope that this is an opportunity for the Minister to indicate what, if anything, the Government are considering doing to deal with what is something of a scandal. We apparently have something like 500,000 or 600,000 permissions not acted upon, at a time of huge shortage. The Government want to increase housing numbers, and there must be ways in which developers can be persuaded to get on with it or lose their permission. That could take a variety of forms, and the noble Baroness’s suggestion may more workable than the noble Lord’s. However, the main thing is that the Government should accept there is a problem and agree to do something about it in one form or another, in a way that will help to incentivise the implementation of planning permission and effectively remove the risk of permission being outstanding for long periods with nothing happening on the ground where it is most needed. I am looking forward to a sympathetic reply from the Minister on the issue, without his necessarily committing to either of the two projects.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in this part of the debate, and in particular the noble Baroness, Lady Pinnock, for so ably speaking to an amendment at short notice. I wish the noble Baroness, Lady Bakewell, well and I am sorry to hear about her indisposition. As the noble Lord, Lord Cameron, said at Second Reading and reiterated here today, there is one thing on which we are all agreed: the fact that we need more houses. I thank him very much for stressing that this was a probing amendment; I appreciate that point.
Before us are two amendments that take separate approaches to achieving essentially the same important objective of ensuring that once planning permission is granted, the development of the site should be taken forward as quickly as possible. That is absolutely right. Of course there may be circumstances that affect it, but I appreciate that it can be taken care of in legislation. This is what local authorities and the communities that they represent expect. I therefore thank noble Lords and the noble Baroness for putting forward the amendments in this group, which allows us to have an important discussion on the question of developers making good on their permissions.
Amendment 25, tabled by the noble Lord, Lord Cameron, would give local authorities the right to refuse to determine a planning application if a developer already had a live permission in that local authority’s area for 50 homes or more. The amendment targets an issue that the Government are determined to address: the gap between permissions granted and the number of new housing units that are completed. I agree with the noble Lord, Lord Beecham, that the amendment as drafted is not quite what is needed; to be fair the noble Lord, Lord Cameron, said so too. It is a question of degree—the number of 50, for example, and some of the definitions that would be needed.
We have already taken important steps to tackle delays in the delivery of housing development once planning permission is granted. For example, a key point of concern and delay for many developers is the time taken to comply with planning conditions that can be discharged at a later stage in development, something that this legislation of course seeks to address. Issues with infrastructure can also delay or prevent housing development going ahead. To help tackle this problem, we have already launched the £3 billion Home Building Fund and a separate £2.3 billion Housing Infrastructure Fund. The Home Building Fund will provide loans to small and medium-sized enterprise builders, custom builders and off-site construction, and will unlock large sites throughout England. The Housing Infrastructure Fund will provide investment funding to local authorities to help support the development of necessary site infrastructure, such as water, energy and internet, to deliver up to 100,000 new homes.
Lord Kennedy of Southwark
The noble Lord, Lord Greaves, has reminded me, as a member of the planning committee in Lewisham, that we rarely refuse applications —we always get advice on what we can or cannot do—but on a couple of occasions we have deferred applications on the basis that people have not been consulted properly. Sometimes the worst offender can be the council itself, if the housing department has not consulted properly. Some people come to the meetings and they are very cross because, as the noble Baroness said, the notice has gone through the wrong doors. People find out by rumour but those who should have been told have not been told at all. If that is proved to our committee, we will certainly defer a decision and allow a proper period for public consultation on the application.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in the discussion on these amendments. I shall deal first with Amendment 27 and then move to Amendment 62 as they relate to consultation, and then come back to Amendment 27A.
On the amendment so ably moved by my noble friend Lady Gardner of Parkes, she has vast experience of planning so one listens particularly carefully to what she has to say. From what I can gather, the vast majority of planning authorities exercise discretion in going beyond the 21 days. Most would behave in an exemplary fashion, as Pendle and Lewisham clearly do, by being flexible where flexibility is needed. I have done a deep dive in the department to see whether there have been any complaints about this but I have not found any malefactors or authorities that are not coming up to scratch. This seems a sensible amendment, so I wonder whether my noble friend will meet with officials if she has evidence of bad practice—I am sure she does have—so that we can discuss what we can do. It is important that people are properly consulted and that there is some flexibility during the periods of bank holidays. I would not wish to prescribe a period and then find that all local authorities are saying, “We do not have to exercise any discretion now”. The discretion that is exercised is important.
In response to some contributions from noble Lords, it is inevitable that some people will come along to a planning hearing and be aggrieved that it is not going the way they want. They therefore seize upon whether the procedure has been correctly followed. I agree with the noble Baroness about proper service of notice. I recall some years ago getting a proper notice delivered to me in the proper time, where the development was half a mile away and I was not sure why I was being consulted. That does not matter, but if the reverse happens clearly it does. That said, there are rules that should be adhered to. So, in the write-round, I will ensure that I draw attention to those rules, because clearly they are an integral part of the system as well.
I turn to the amendment so ably spoken to by the noble Baroness, Lady Pinnock, who is obviously on a roll now. Once again, this deals with statutory consultation but, on this occasion, in relation to statutory consultees. A couple of points cause me difficulty in responding positively to this amendment. The first is that the annual performance data for 2015-16 show that, on average, 98% of substantive responses were made by the key statutory consultees within the 21-day period or such other period as agreed. Part of the procedure is that the law provides for an extension on a case-by-case basis if the two parties agree to it. This performance appears to be consistent across small and large developments and we monitor that very closely through the annual performance returns that statutory consultees are required to provide by law.
Therefore, I am concerned that adopting the approach suggested in the amendment would lead to a worsening in the performance of statutory consultees. Extending the period to 28 days would mean that the good ones—the vast majority, I have to say—who respond within 21 days would then respond within the 28-day period, and this would slow down performance and affect housebuilding. That said, if the noble Baronesses, Lady Pinnock and Lady Bakewell, have evidence, I would be very keen to see it. However, so far as we can see, this area is working well and I would be loath to extend the 21-day period. It would be something of a kick in the teeth for those who are working hard to achieve the 21 days, and it would be seen as geared to those who do not perform as well, who appear to be a small minority.
Lord Kennedy of Southwark
I certainly accept the point that the noble Lord makes. However, as with all these things, the vast majority of people may act properly but there will always be one organisation that does not. Another example that I can think of is when you get your highway repaired and then along comes the water board the following week and digs it all up to put in a new water main. Those sorts of things drive you up the wall. Reminding these organisations how they should operate may be something that the Minister can look at. There will always be exceptions and it may well be that it is one group of people that is always acting in that way in one particular area. I accept that the vast majority act perfectly properly, but it can be extremely annoying when things are not dealt with properly.
Lord Bourne of Aberystwyth
The noble Lord makes a very fair point. However, we do not want to flex the legislation and extend the period for the very small minority that fail to meet the deadline when, as I said, the vast majority perform very well. That would send out the wrong message.
I turn to Amendment 27A, spoken to very ably by the noble Lord, Lord Taylor of Goss Moor. He was at pains to tell us that, like all the other amendments in this group, this is a very good one. We tend to agree: this is a sensible amendment. It seeks to move responsibility for any town development corporation established under the New Towns Act 1981 from the Secretary of State to the relevant local authority.
I say at the outset that I support the broad thrust of the amendment. This Government are supporting 10 locally led garden cities and towns and 14 locally led garden villages—high-quality new settlements of between 1,500 and tens of thousands of new homes. The noble Lord, Lord Taylor, has been an influential and important voice in the creation of our garden villages programme, and I thank him for his engagement.
We have seen a strong response locally to our offer of support for locally led garden cities, towns and villages, and we want to do more to help the places that are currently in our programme, and others which may become part of it in future, deliver. The Government recognise that a statutory delivery vehicle, such as a new town development corporation, may in some circumstances be a helpful means of co-ordinating and driving forward the creation of a new garden city, town or village.
The Government also recognise that, in line with our locally led approach, this statutory delivery vehicle, while enjoying significant independence to get on with the business of delivering, should be accountable not to central but to local government. I stress that. That is an argument that has been made not only by the noble Lord but by the Local Government Association and the Town and Country Planning Association.
If there is sufficient local appetite, we will consider legislating to amend the New Towns Act to enable the creation of development corporations, for which responsibility rests locally, not with central government. I reassure noble Lords that the Government recognise and support a locally-led approach to the creation of new garden towns and villages. This fits also with our devolution agenda more generally. As I have indicated, the statutory delivery vehicle of the new town development corporation already enjoys significant independence. However, I believe it should be accountable to local government, not central government.
To that end, should there be sufficient appetite we will look into making local bodies accountable for the new town development corporations, with new legislation should local areas show that they would use it. Discussions stemming from the White Paper would be the first step in exploring local appetite. I hope that with this reassurance and the statement of policy going forward, the noble Lord feels able not to press his amendment. Following the indications I have given, I also ask my noble friend Lady Gardner to withdraw her amendment.
Baroness Gardner of Parkes
I thank all those who supported what I had to say. I do not think it is at all onerous for the good authorities that are already doing what the amendment suggests, and it is important to help those who are living somewhere where they are not getting the benefit of this. However, I beg leave to withdraw my amendment.
Monday 6th February 2017
(7 years, 9 months ago)
Grand CommitteeNeighbourhood Planning Act 2017 Read Hansard Text Amendment Paper: HL Bill 86-IV Fourth marshalled list for Grand Committee (PDF, 105KB) - (6 Feb 2017)
This text is a record of ministerial contributions to a debate held as part of the Neighbourhood Planning Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, first, it is good to see the noble Baroness, Lady Bakewell, back and looking in fine fettle. I shall speak collectively about government Amendments 28, 30, 35, 39, 40 to 43 and 50 to 55. I then look forward to hearing from other noble Lords on non-government amendments in the group.
Before discussing the detail of the government amendments, it may be helpful for me to set them in context. Clause 12(1) would introduce new Section 100ZA into the Town and Country Planning Act 1990. This would provide the Secretary of State with a power to make regulations about what kind of conditions may or may not be imposed and in what circumstances.
Planning conditions, when used appropriately, can be an effective tool in ensuring we deliver sustainable development. However, there remain concerns that some local planning authorities are imposing conditions that do not meet the well-established policy tests in the National Planning Policy Framework: that conditions should be imposed only where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects. The purpose behind this power is to help remove costs and delays to the delivery of new development caused by the need to respond to unreasonable planning conditions.
The power will put on a statutory footing the national policy tests for conditions and, by reducing the number of unreasonable conditions imposed and which fail to meet the tests, help get more homes built more quickly once they have planning permission. I emphasise that in the exercise of this power, the Secretary of State must be satisfied that the regulations are appropriate for the purpose of ensuring that any condition imposed on a grant of planning permission for the development of land is, in broad terms, necessary, relevant, precise and reasonable. This will not impact on appropriate protections for important matters such as heritage, ecology and flood mitigation.
As drafted, Clause 12 allows the Secretary of State to exercise this power in respect of any grant of planning permission. This includes planning permission granted not just for a single planning application for a specific scheme, but by an order, which could be granted by the Secretary of State, the Mayor of London, local authorities or neighbourhood planning groups. Development orders can grant planning permission for a particular site or geographical area and for a variety of specified types of development. In the light of responses to the Government’s consultation on this new power, to which a response was published at the end of December last year, we have concluded that it is generally not appropriate to apply this power where planning permission is not granted following the consideration of an individual application in certain circumstances. We therefore seek to amend the clause.
The amendment would restrict new Section 100ZA from applying to order-making powers. Development orders are not granted following an individual application and often grant planning permission to an area. They therefore may need to impose a number of limitations. It is important that a local planning authority or the Secretary of State can set out in an order those conditions that frame the type of development that would be acceptable. This can include a condition that the development, including the change of use, is completed within three years. Such a condition may be unreasonable when imposed following the consideration of a planning application, but not in the very different exercise of granting planning permission by order.
Given this, and in the light of the consultation responses on this issue, we have concluded that the new power to limit conditions should not apply to orders. Consequently, should the amendment be approved, the power will not apply to grants of planning permission in the following: development orders, simplified planning zones, enterprise zones, and development control procedures—that is, where government authorisation is required. This will retain the core benefit of the power in ensuring that planning conditions are imposed only when necessary, while protecting the flexibility afforded to grant planning permissions by these powers. With these arguments in mind, I therefore beg to move the amendment.
Baroness Parminter (LD)
My Lords, I have Amendment 38 in this string of amendments. With one in six homes at risk at present, it is quite clear that homes need to be built which protect residents from increasing flood risk. I have put down this amendment because I noted that the Government, both on Report and in Committee in the Commons, were remarkably un-keen to delete this clause, so my thinking is that there is more than one way to skin a cat. If one feels as I do about the issue of flood risk, there is perhaps the potential for exemptions. I have tabled this amendment because all the evidence from around the UK shows that we need drainage standards and designs for drainage to be agreed up front. If they are not, it is not good for the housebuilder or the local authority, and it is certainly not good for the home owner.
In Scotland there is a legal requirement to have sustainable drainage on any development, but developers are not obliged to engage with Scottish Water on the design and building up front. This results in housebuilders producing their own designs, which Scottish Water then has issues with. The result is that 90% of these drainage systems are not adopted by Scottish Water. In Wales, however, developers have to have an agreement with the sewerage undertakers on a specific design before they start on-site. This system works and does not hold up developments. This shows that the designs for sewerage and sustainable drainage need to be settled at the beginning of the process, and local authorities need the powers to enable that to happen. If the prohibition on local authorities imposing pre-commencement conditions goes ahead, that cannot happen. What then will happen is that developers will not be certain about the drainage, the adoption or the maintenance, there will be commuted sum disagreements, developers will in all likelihood put the arrangements into a private company with no quality assurance on the drainage—it will probably end up being a tank somewhere in the ground rather than a scheme that enhances the environment or the area for the homeowner—and future flooding issues will be left for the local authority and the homeowner to pick up.
The Government have given us no evidence that there is a problem. The examples the Minister sent round in the letter to noble Lords were just a series of quotes, mainly from the annual reports from the housebuilders. I have gone through the government consultation and there is no indication of the scale of the so-called problem, and no single citing of a concrete example. It is therefore no surprise that only a minority—44%—of those who undertook the government consultation supported the proposal to prohibit local authorities from imposing pre-commencement conditions. Therefore, there is not majority support from the Government’s consultation for this measure to go ahead.
Of course, planning conditions imposed by local planning authorities should be reasonable and necessary. However, as the Government themselves said on 24 January in response to the EFRA Committee’s report on flood prevention,
“the robust planning approach in place is the best way to control development so that it does not add to flood risk”.
As such, pre-commencement conditions should be seen as a positive tool to deliver this, as well as to ensure that permission can be granted.
To be blunt, this approach is also putting the cart before the horse. After a battle with noble Lords, Clause 171 of the Housing and Planning Act requires the Government to review planning law on policy relating to sustainable drainage in England. That review by DCLG and Defra is currently under way and is due for completion by April. At this point I must say that I am grateful to the Minister for the offer of a meeting on that issue, which I understand is now scheduled for later this week.
The Government have provided no real evidence that there is a problem. Evidence from Scotland and Wales shows that we need to ensure that flooding conditions are settled up front, and there is a real risk here of pre-empting any decisions following the Government’s own review, which we are expecting in the next few months. On that basis, it is absolutely essential that the Government address the issue, and if they will not go as far as removing the whole clause, they should make exemptions for important issues such as dealing with flood risk; otherwise, we will be putting home owners of the future in real danger.
Baroness Hodgson of Abinger (Con)
My Lords, I speak with humility because I am not an expert in planning, but I do so because of the concern that this clause does not support the agenda of localism. My understanding is that if this clause stands, building may start before details have been agreed. Will my noble friend tell us what provision there is for local people to object to building once it commences? It seems to me that once building starts it is very hard to stop it rolling on and for local people to really have any input into whether it is acceptable. I also understand that pre-commencement conditions are one way to ensure appropriate design and quality, and that buildings are put in the right places. We have heard about drainage and flooding, but there is also the issue of whether these conditions enhance their local communities. I am concerned that this clause appears to load the dice against what local people may wish and I do not feel this is what we were elected for on our agenda of localism.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who participated in the discussion and debate on these non-government amendments—specifically my noble friends Lord True and Lady Hodgson, the noble Lords, Lord Kennedy, Lord Shipley and Lord Judd, and the noble Baronesses, Lady Parminter and Lady Andrews.
Before I address each of the amendments tabled by the noble Lords, I will make some generalised points about the position regarding pre-commencement conditions. The absence of pre-commencement conditions does not mean that one can start work automatically. The pre-commencement conditions, once agreed—or if there are none—enable the developer, for example, to raise finance and perhaps to put a construction team together with the security of knowing that he is likely to have permission, but it does not mean that the work will begin. Nor do the provisions of Clause 12 prevent local authorities with gumption—which is most of them, and many noble Lords here represent them—from agreeing conditions. It absolutely provides that conditions can be reached by agreement with the developers and this is what would happen in many cases. We make it absolutely clear that this is not preventing agreement between the parties, which I am sure would happen in the vast majority of cases.
Let me deal with the amendments in numerical order, if I may, so that I do not come to that of the noble Baroness, Lady Parminter, until later. I note that Amendment 29 was also tabled in Committee in the other place. The explanatory statement accompanying it explained that the intention, which was also made clear by the noble Lord, is to ensure a local voice in judging local circumstances and the impact of planning decisions. This intention is admirable, and it is absolutely the Government’s aim that the planning system remains centred on community involvement.
Subsection (1) is about ensuring that the well-established policy tests for conditions are adhered to. The proposed power for the Secretary of State to prescribe what kind of conditions may or may not be imposed, and in what circumstances, may only be exercised as provided by subsection (2) where such provision is appropriate for the purposes of ensuring any conditions imposed meet the policy tests in the National Planning Policy Framework. Those tests are reflected in the wording of subsections 2(a) to (d) of new Section 100ZA, which means that the Secretary of State can only use this proposed regulation-making power to ensure that any condition imposed on a grant of planning permission seeks to make the development acceptable in planning terms—in other words, that it is consistent with the National Planning Policy Framework —is relevant to the development and to planning considerations generally; is sufficiently precise to make it capable of being complied with and enforced; and is reasonable in all other respects. In other words, the Secretary of State may make provision in regulations only if such provisions are in pursuit of those policy tests.
For example, as set out in the Government’s consultation on these measures, we are considering prohibiting conditions that planning guidance already advises local planning authorities should not be imposed. These include conditions which unreasonably impact on the deliverability of a development, such as disproportionate financial burdens; which require the development to be carried out in its entirety; and which reserve outline application details. The Government have no intention of using this power to prohibit the use of any reasonable and necessary conditions that a local authority might seek to impose to achieve sustainable development in accordance with the National Planning Policy Framework, including conditions relating to important matters such as archaeology and the natural environment. The Government believe it would be detrimental to the planning process for regulations made under new Section 100ZA(1) to provide for local authorities to make exceptions to the prohibition of the use of certain conditions. To do so would create uncertainty for applicants and additional bureaucracy.
In fact, during our consultation on this measure, local authorities agreed overwhelmingly that conditions should be imposed only if they passed each of the national policy tests. As an assurance for local authorities and other interested parties, subsection (3) of new Section 100ZA includes a requirement to carry out a public consultation before making regulations under subsection (1). It is fairly clear what a public consultation is, and if a national condition is being talked of you would expect a condition on a national basis. If it is more localised—one cannot generalise: cases may differ; they will not all be the same—it will be dealt with according to the law regarding public consultations. I may write to noble Lords to reassure them on how that issue will be addressed, but the Bill makes it clear that, in talking of a public consultation, there is no intention to make this exclusive, and the local authorities will certainly be involved. That will afford the opportunity for local views to be put forward as part of the process of determining how the power will be exercised.
Lord Kennedy of Southwark
Perhaps the Minister is going to deal with this issue later, but nobody here, including me, wants to impose a single unnecessary condition on any planning application. I would not do that, and nor would other noble Lords present. However, the Minister seems to be describing quite a bureaucratic process for the local planning authority, and I wonder whether he is creating more of a problem than the one he seeks to solve. What we have yet to hear from him is the list of all these councils and planning committees throughout the country that are creating all these conditions. I do not know where they are, and if this measure is so needed, I hope he will give us an extensive list of all the offenders and what they are doing. We have yet to hear that from the Minister or any of his colleagues.
Lord Bourne of Aberystwyth
My Lords, I have covered only one amendment so far. I appreciate that the noble Lord is making a central point and I will seek to respond to it, and if there are other points that he wants to bring up towards the end of our consideration, I will be happy to deal with them.
On Amendment 31, I recognise that there are concerns around the impact on sustainable development, which is evidenced by the fact that this amendment was also put forward in Committee in the other place. However, I need to be explicitly clear that the clause is not aimed at conditions that are necessary to achieve sustainable development. I reassure the noble Lord that appropriate protections for important matters such as heritage, the natural environment and measures to mitigate the risk of flooding will be maintained. If the planning authority in question is unable to come to an agreement with the developer it is obviously the case, just as it is now, that planning permission will not be granted. What we are seeking to do is bear down on those conditions that we think are not appropriate and do not need protection.
It may help noble Lords if I give some background to the same issue when it was raised in Committee in the other place by Roberta Blackman-Woods MP, the honourable Member for the City of Durham, who was concerned about a situation where a condition prohibited by the Secretary of State makes the development acceptable in planning terms but makes it unacceptable in social, economic or environmental terms. The purpose of the planning system as set out in the National Planning Policy Framework is to contribute to the achievement of sustainable development. Sustainable development is recognised as being comprised of three distinct dimensions: economic, social and environmental. Each of these aspects is capable of being material in a planning decision. This amendment would remove a key element of new Section 100ZA(2) which ensures that the Secretary of State can make regulations only under subsection (1) in order to ensure that any conditions imposed are necessary to make development acceptable in planning terms. Subsection (2) is important as it constrains the power in subsection (1) so that it can be used only to ensure that any conditions imposed meet the well-established policy tests for conditions in the National Planning Policy Framework. To recap, paragraph 206 of the framework states:
“Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects”.
This, as well as subsections (2)(b) to (d) are key safeguards to ensuring compliance with the policy tests, and I therefore believe that the amendment could run contrary to the noble Lord’s intention.
In addition, if by removing subsection (2)(a) noble Lords are seeking to ensure that conditions cannot be overlooked because they are unacceptable for other reasons, the existing drafting of subsection (2)(d) already adequately provides for this in its requirement for conditions to be reasonable in all other respects. Finally, as noble Lords are aware, before making regulations under subsection (1), as I have said, we are required to carry out a public consultation as set out in subsection (3). I appreciate the point made by my noble friend Lord True and others that perhaps it would be of assistance if I set out in a letter following today’s Committee session exactly how we expect the public consultation to play out, but it will give anyone with an interest an opportunity to be heard and for their views to be considered.
Lord Stunell (LD)
I wonder if either in that letter or perhaps in another one the Minister could set out to what extent the provisions of Clause 12 are or are not simply putting the National Planning Policy Framework on a statutory footing. Could he also set out whether to any extent it either goes beyond the framework or reduces from it?
Lord Bourne of Aberystwyth
I thank the noble Lord, Lord Stunell, for that intervention. Obviously the National Planning Policy Framework stands independently from the Bill and I do not believe that any cross-reference is made in the legislation to the framework, but of course all planning decisions have to be made in accordance with it. I will deal with the point in the letter I will send round, but I think that all of the points which have been raised are covered in the National Planning Policy Framework as far as the Government are concerned and as far as the legislation allows.
Baroness Parminter
I am sorry to question the Minister, but can he confirm that in that consultation only 44% supported going ahead with the proposals? If so, that is a clear minority.
Lord Bourne of Aberystwyth
From memory, I think that the noble Baroness is correct, although that is a majority of those who have a view—there were quite a few who ticked “don’t know”. As I have indicated, it was a majority—admittedly a bare majority—of those who gave a view: more than half offered either complete support or supported the principle. However, I will make sure that a link to that document is available for noble Lords.
I assure noble Lords that I recognise the intention of Amendment 37. We of course have to make sure that where agreements cannot be reached, a sensible solution can be found. However, there are a number of reasons why a dedicated mediation system, as proposed by the noble Lord, Lord Kennedy, is not necessary and, indeed, may be counterproductive. As I have made clear, Clause 12 builds on best practice as set out in our planning practice guidance, which states that applicants and local authorities should engage at the earliest possible stage to come to an agreement on the conditions to be applied on a grant of planning permission. I am sure all noble Lords recognise and appreciate the importance of early and sustained engagement to help facilitate a constructive dialogue on the use of conditions. Let me hasten to underline that that is, I think, what happens in the vast majority of cases. The measures here will help to ensure that this takes place.
Existing routes are available to both local authorities and applicants in the unlikely event that there is disagreement on the conditions proposed. If a developer refuses to agree with a particular condition and the local authority deems it necessary, having considered it against the criteria set out in the National Planning Policy Framework, the authority can, and indeed should, refuse to grant planning permission. Nothing could be clearer, and that is the position the Government wish to stress. That is the intention of the legislation going forward; it is not to alter the basic provision that decisions are reached locally. Provided that they are in conformity with the National Planning Policy Framework, it is appropriate that, if the local authority cannot agree with the developer and there are relevant considerations in the framework, it should turn down the application.
At present, applicants would still have the ability to appeal to the Secretary of State against a decision to grant planning permission which is subject to conditions that they disagree with. Further to this, we consulted on our proposal to specify a default period after which the agreement of the applicant would be deemed to be given. Following the response to this consultation, we are of the view that it would be appropriate to introduce a 10-working-day default period. This could also act as a further incentive for parties to engage earlier in the process and discuss conditions that may be imposed on a grant of planning permission. We must acknowledge that adding a further formal step in the process by way of mediation could cause delays—here I find myself in agreement with my noble friend Lord True. In addition, it could actually discourage effective discussions between applicants and local authorities, who may simply wait, knowing that there is the safety net—as they may see it—of the mediation route as an alternative to meaningful engagement at an earlier stage. I hope noble Lords agree that encouraging local authorities and developers to work together to overcome any barriers to delivering the homes that the country needs is the most important step.
Lord Kennedy of Southwark
My Lords, I agree with almost everything the noble Lord, Lord True, has just said. I thank the Minister for his very full response, which is much appreciated. I agree with him—I do not want any conditions imposed, including those he termed “necessary”, “relevant”, “enforceable”, or “reasonable”. I think everybody in the Committee will be in agreement with that—there is no problem there whatever. He also said that these pre-commencement conditions are not necessary. That is good to hear, but I worry that at the end of the day this will all be either so vague that it will not make any difference or so detailed that it will threaten sustainable development. I am not clear about what I have heard from the Minister. I hope he will respond to us in his letter about where we are going because I certainly want to see development take place that is sustainable, that we learn from the lessons of the past and that we get things built properly.
I may have misheard him, but will these discussions between the planning authority and a developer or an applicant take 10 days—someone else may have said that—and if not, how long should that go on for? He is determined but, as the noble Lord, Lord True, said, the risk is that nothing is agreed and that everything goes straight off to the appeals process. That is not delivering development by consent—certainly not sustainable development and not development that is in accordance with the local neighbourhood plan, or the local development plan. I live in London, as the noble Lord, Lord True, does. Certainly, in my own ward we are developing a neighbourhood plan and we are putting hours and hours of work into that. It seems daft that if we agree something, we could then find it all just pushed to one side. I do not know what the Minister can say now, but I certainly look forward to seeing his letter.
In a moment we will debate whether Clause 12 should stand part of the Bill. I look forward to the Minister’s letter because we have still not had the list of rogue authorities. At the moment, I am convinced that the clause is a sledgehammer to crack a nut. We have had one or two problems with plugs and things but these are not massive. If there were these problems, the noble Lord would have listed them in his contribution; maybe they will be in his letter, which I look forward to.
Lord Bourne of Aberystwyth
My Lords, I thank my noble friend Lord True for his response. Yes, it is the intention of the Government and I think we have demonstrated that we are keen on consensus in this area. We want to give power to neighbourhood planning; that is the essence of this legislation. However, we do not want to hamper developers and, therefore, housebuilding—which is central to all our aims—with unnecessary pre-commencement conditions. As I have indicated, it is absolutely right that these conditions can, and in many cases should, be agreed between an applicant and the authority. But we do not want to prescribe from the centre situations where this has to be the case. I will seek to enlarge on that in the letter I am writing. I will also, in relation to the plea from the noble Lord, Lord Kennedy, seek to give further evidence of the unreasonableness of some pre-commencement conditions, because that lies at the root of why we are seeking to bring in these powers. I ask noble Lords not to move their amendments.
Lord Stunell
My Lords, I would like Clause 12 to be taken out of the Bill. It is unsatisfactory because it is written so broadly. Under subsections (1) and (2), the Secretary of State is in a position to do practically anything as long as it is a prescribed description, but subsection (9) says that,
“‘prescribed’ means prescribed by the Secretary of State”.
So there is no limitation on the Secretary of State’s capacity to change the current planning system, not simply the pre-commencement conditions, although that has been the immediate focus of the debate.
Although the clause is widely drawn, for the Minister it clearly has a much more limited intention. I asked a question to see whether I could establish exactly what that limited intention was. On the face of it, from what the Minister has told us this afternoon, it is intended simply to ensure that the National Planning Policy Framework is the bedrock on which all planning decisions are made; in other words, to make the NPPF in effect a statutory document. If that was his intention, it could have been expressed much more clearly by a clause that would be fundamentally different from Clause 12 and be something we could debate the pros and cons of much more satisfactorily. If, on the other hand, it is intended to inhibit or prevent local authorities imposing conditions that would otherwise be in conformity with the NPPF, he needs to go to greater length to explain why the Government believe the NPPF needs to be trimmed back a bit.
I hope the Minister can see that if the NPPF is the reference, it would be useful if it was referred to in some way in the Bill, particularly in this clause. It is beginning to look as though his letter will be as long as the National Planning Policy Framework, which, incidentally, comes in at 59 pages, two of which are a list of the 44 codes of practice that it supersedes, which themselves were about 1,000 pages long. By the time we have some regulations to say exactly what we mean as a result of Clause 12, we will begin to unravel the NPPF.
There is a fundamental disconnect between what is in the Bill and what the Minister says its intention is. When I saw the Government’s amendments, I thought we were going to see something helpful, but I noticed that five of the amendments in the previous group were to insert the word “relevant” before the phrase “planning conditions”. One wonders a little whether one needed that word added. It is good that it has been, but can we just have the answer to the philosophical intent of the clause relating to planning as a whole and to pre-commencement conditions?
At Second Reading I mentioned that the National Planning Policy Framework—which is now treated as though it had originally been carved in stone at the top of Mount Sinai—had quite a troubled birth, with version one going around the Government for preapproval before it went out to consultation from the Department for Communities and Local Government, in which I was at the time a junior Minister. It came back from the Treasury with red ink all over it. It could not go out until the amendments the Treasury required had been made. Of course, there was uproar when it went public. In particular, the National Trust organised a very vigorous campaign against it. It turned out that the National Trust is the good cause of choice for a large number of Conservative Party members, who proceeded to let their Conservative Members of Parliament know about their dissatisfaction. One way or another, the consultation resulted in a completely different document coming forward, which was very similar to the document that had been drawn up and altered by the Treasury in the first place.
I rather fear that Clause 12 is another NPPF, except that we are at only the middle point, where something quite sensible has been turned into something that is not nearly so sensible and is fundamentally threatening many of the safeguards that the final version of the NPPF established so clearly, in particular the three pillars of sustainability when there is consideration of a planning application. Originally, I thought that the department had had the same experience this time that it had with the NPPF—it had gone off to the Treasury, which had put some red ink on it. But I realise that the current Secretary of State in the Department for Communities and Local Government was in fact the Financial Secretary to the Treasury at the time when the NPPF went on its rounds, so it is possible that the red ink was added at a much earlier stage.
I suggest that the Minister has a quiet word with the Secretary of State to explain to the high proportion of Conservative activists who belong to the National Trust—because he will soon find that out again—how much regard the NPPF has now attracted on all sides as a short, intelligible and easy-to-read planning document, and consider either scrapping Clause 12 completely or introducing a provision stating that local authorities are not permitted to impose conditions which go beyond the National Planning Policy Framework. I would have thought that that would achieve the objective which I think the Minister is seeking. Finally, the Minister should also convey to the Secretary of State the fact that this is a Henry VIII clause that Charles III will be most unhappy about.
Lord Bourne of Aberystwyth
My Lords, I hope that that is many years from now. I thank all noble Lords who have participated in our debate on whether Clause 12 should stand part of the Bill and I welcome the noble Lord, Lord Beecham, to his place. I fully understand the circumstances that kept him away earlier. We did deal with Amendment 43A, but I will endeavour to cover a couple of points on it as we proceed.
As noble Lords will be aware, the need for new housing is paramount to deal with some of the issues we are looking at, although of course I accept that there are many other circumstances we also need to consider relating to the Bill. The Government want to ensure that, once planning permission has been granted, we can move on as quickly as possible with housebuilding. At present this does not always happen because too many planning authorities impose unnecessary pre-commencement planning conditions. I accept that they are the exception, but on occasion they require applicants to take action before any works can commence that unreasonably hold up the start of building supply. This is unacceptable to the Government when we want to address the urgent need to increase the supply of homes. I think that noble Lords realise that there is a balance to be struck and a nuance that needs to be dealt with.
I have sought to indicate that this provision does not give the Secretary of State the powers being suggested by some noble Lords. New Section 100ZA(1) set out in Clause 12(1) does give the Secretary of State the power to make regulations, but it has to be read in the light of subsection (2) which provides that:
“Regulations under subsection (1) may make provision only if (and in so far as) the Secretary of State is satisfied that the provision is appropriate for the purposes of ensuring that any condition imposed on a grant of planning permission for the development of land … is—
(a) necessary to make the development acceptable in planning terms;
(b) relevant to the development and to planning considerations generally;
(c) sufficiently precise to make it capable of being complied with and enforced, and
(d) reasonable in all other respects”.
Subsection (3) goes on to state:
“Before making regulations under subsection (1) the Secretary of State must carry out a public consultation”.
This is not the wholesale provision which some noble Lords have been suggesting would give unfettered power to the Secretary of State. However, I accept that there are material considerations in terms of reaching a balance. I thank in particular the noble Lord, Lord Stunell, who recognised that. I can confirm that, as I indicated in response to the previous group of amendments, all of the issues raised are in the National Planning Policy Framework and so would be appropriate for the agreement of conditions with the developer.
Neither the Government nor any planning authority is in a position to force people to come to an agreement. The idea that we can somehow force either the local authority, as was perhaps suggested by some noble Lords or the developer, who may walk away at the end of the day because he is not happy with what the planning authority is saying, is wrong because we cannot—the National Planning Policy Framework has to be complied with. These are matters of consent and no Government would be able to do that, short of taking wholesale powers away and rewriting the law of contract, which we are not proposing. Indeed, I do not think anyone is suggesting that we should.
I am happy to go away and consider some of the points that have been made, but I come back to the point that we have to deal with inappropriate pre-commencement conditions. That is not to say that they are inappropriate as conditions—they may be quite appropriate as conditions, and many of those cited are—but they are not appropriate as pre-commencement conditions, and that is the point I keep coming back to. This is the intention of the legislation, as demonstrated by the wording of the new section. I do not accept that it is obscure or meaningless. I accept that there are considerations here but, if I may, I refer to the Government’s response to the consultation on improving the use of planning conditions. Admittedly, views were split on this, but it is not the case that all local authorities thought that the idea is a dreadful one. The majority—a bare majority, I accept—thought it was a good idea, with 44% either in complete support or supportive of the principle with reservations about the process. That was a majority in favour of the sort of action we are looking at.
Lord Tope (LD)
My Lords, I want to say a few words in support of Amendment 47 tabled in my name. Our debate is either a little too late or a little premature, because we have reason to believe that there is going to be something on this subject in the long-awaited and I believe now imminent White Paper. It may well be that before long we will know what it is, and we will probably then have a more useful debate on the Government’s intentions or, for that matter, their lack of intentions.
The points have been made and all these amendments seek the same thing by more or less similar means. The noble Lord, Lord True, put it very well when he said that there is no reason why local authorities at any time, least of all in the current straitened circumstances, should be subsidising the development industry in the way they do. None of these amendments suggests that local authorities should make a profit out of planning and development control. What one is aiming for, as far as possible over time, is a break-even position.
I discussed this with my local planning authority, of which I am no longer a member, and found that the planning officers are longing for the return of the planning delivery grant, which if I remember rightly lasted from 2007 to 2010. There was actually a lot to be said for it, because the funding it provided for local authorities was based on performance and incentives. What one should perhaps be looking for here is not simply a grant or funding for local authorities, but for a way that is tied to incentives. All of us want to see the housing target delivered, but we know that unless we do something quite serious to increase the resourcing of planning departments and to stem the flow of planning officers from the public to the private sector, where frankly they are a lot better rewarded, we are not going to deliver on the housing targets or, to go back to our earlier debate, on neighbourhood planning, particularly in urban areas, and I speak with knowledge of London.
Incidentally, I was not too surprised to learn that 20% of all planning applications are dealt with by London boroughs, all of which are severely overstretched because they are underfunded—budget restraints affect everybody—the cost of living is so much higher, and the opportunities for qualified planners are greater in the private sector than they are in the public sector. It is reaching crisis point, and if we are to solve the housing problem, this is part of what needs to be done. That is what all these amendments seek to achieve, and we look forward to hearing from the Minister a preview of what is to be in the long-awaited White Paper.
Lord Bourne of Aberystwyth
My Lords, I thank all noble Lords who have participated in the debate, and I appreciate the build-up of the White Paper by the noble Lord, Lord Tope. I will have to be careful about what I say because as he has observed very cogently, this is perhaps premature to the housing White Paper which is expected shortly.
Lord Bourne of Aberystwyth
Yes, it is imminent. Before I respond to the specific amendments in the group, I want first to echo what has been said. The Government recognise the impressive performance of local planning authorities up and down the country. We have certainly asked much of them in terms of getting Britain building, delivering new homes and providing the employment that will drive our economy forward. There is no doubt that we will want still more from local authorities, and that is why this issue is going to be addressed in the White Paper. I think we all agree that this is a matter of great importance and I am pleased that the White Paper will set out how it can best be addressed. I hope that noble Lords will participate in the discussion on it.
I thank the noble Lord, Lord Kennedy, for his introduction, and my noble friend Lord True for talking about the current position, which I understand. Let me turn to my noble friend Lady Gardner’s amendment. As she indicated, it is perhaps slightly different from the other amendments in the group. It seeks to enable local authorities to charge fees that exceed cost recovery in respect of their planning functions. It is an interesting proposal but not one I can imagine would be immediately attractive to the applicant. We are certainly clear that the principles on handling public funds mean that when we set fees, such as those for planning applications, they should be set at cost recovery, and that is what we aim to do. Under the Local Government Act 2003, local authorities have the power to charge for discretionary services up to the level of cost recovery at present. I know many local authorities have chosen to use this power to charge, for example, for giving pre-application advice on planning applications. I think that that deals with those situations.
I turn now to the points raised by noble Lords who spoke to other amendments in the group. The points were essentially the same, but let me say something specific about the new burdens issue, which is slightly different and was picked up in Amendment 57 in the names of the noble Lords, Lord Kennedy of Southwark and Lord Beecham. It seeks a requirement to consult local planning authorities on the burdens imposed by new statutory duties before commencing those measures. This raises an important principle and one I am happy to acknowledge. I recognise it is a priority to ensure that planning departments have resources to provide the service that applicants and communities deserve. As noble Lords will probably be aware, we have a long-standing mechanism in place through the new burdens procedure, which has crossed successive Governments, to consider and make provision for funding to local authorities for any additional work arising from new statutory duties. The approach to new burdens provides that when the Government introduce new responsibilities and statutory duties on local authorities, these must be properly assessed and fully funded.
As a matter of routine we discuss new policies with the Local Government Association and value the insight that it brings to the table. All the measures in the Bill have been considered against this doctrine and we do not believe that the burdens in the Bill, if there are any, are expected to have a significant impact on local authority resources. We are committed to working with local authorities to find ways of securing the finance, people and skills they need to maintain strong planning departments. As I said, this has to be seen in the context of the imminent housing White Paper. I hope noble Lords will recognise that these amendments seek to place in the Bill powers and mechanisms that the Government already have and that these matters will, as I said, be reflected in the imminent housing White Paper. On that basis, I hope that the noble Lord will agree to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords who have spoken in this debate. I very much agree with the comments of the noble Lord, Lord True, that these issues need to be addressed. There is cross-party agreement at local government level that it is important we do that. I hope that the noble Lord, Lord Bourne, both here and outside the Committee, hears that. If costs are not recoverable and the planning officers cannot do their job, then of course all that we are debating here—the desire to move things on as quickly and efficiently as possible—risks coming to nothing or very little. The noble Lord, Lord Scriven, also highlighted the need for these costs to be covered and the issues for local government to be addressed.
The noble Lord, Lord Tope, spoke about the need to keep planning officers, and I very much agree with that. There are many noble Lords in Committee today who are members of local authorities, some in and some outside London. It is the same for planning authorities. I bet the Minister could visit any authority and he would hear the same thing, no matter which party controls or does not control it. There is real pressure on the retention of planning officers and around recovering the costs involved. It is a huge problem. I hope the noble Lord hears what we are saying and will reflect on it. I hope that he can come back to us with something, perhaps on Report.
As always, the noble Baroness, Lady Gardner of Parkes, has highlighted some issues; she understands these matters very well and picks up on them incisively. I hope we can come on to them at some point, but my first concern is getting these basic costs covered. Perhaps we can have discussions in future about whether people want to pay extra to get things done more speedily, but for now the priority is getting these costs covered and getting planning departments to function properly. Having said that, at this stage I am happy to beg leave to withdraw the amendment.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in this very important debate on Amendment 46. I would like to thank the noble Baroness, Lady Parminter, and the noble Lord, Lord Judd, who tabled this amendment on this important issue. I know from the considerable work of the noble Baroness, Lady Young—who unfortunately cannot be with us today—as chairman of the Woodland Trust and co-chair of Environmentalists for Europe, that she has a great passion for this subject and I was very pleased to meet with her a few weeks ago to discuss these issues.
I recognise the importance of ancient woodland and veteran and aged trees. We have had some very cogent examples. The noble Baroness, Lady Parminter, gave a powerful example close to her own home and the noble Lord, Lord Judd, who continues to have a distinguished role in national parks, rightly told us of the rich part they play in the heritage and history of our country.
The noble Lord, Lord Cameron, drew the parallel—or hopeful parallel, from his perspective—of Wells Cathedral, which is my favourite of all the English cathedrals. In my faith and integration role in the department, I have been visiting all the cathedrals of England in turn. I have so far visited 11, but Wells Cathedral is coming up shortly and I very much look forward to that. Many people have evoked that powerful, evocative and moving phrase: it is absolutely right that the ancient woodlands are the cathedrals of the natural world.
I thank the noble Duke, the Duke of Somerset, for drawing attention to the importance of the ecology of bees and wildlife, and echoing the educational aspect, as did the noble Lord, Lord Judd. There is another string to the bow of my noble friend Lord Framlingham: visiting prisons and saving trees. I thank him for that really engaging story.
There are number of protections already within national planning policy legislation and guidance. I have listened to the arguments today and on previous occasions from the noble Baroness, Lady Young, and I do recognise the importance of making sure these protections are made absolutely clear. As many noble Lords have said, the White Paper will be published shortly; I hope they will appreciate the aspects of it that indicate the way forward. I have listened carefully and can confirm that the Government do take this issue very seriously. We are talking about a massive asset to the country that we do not want to lose. With that reassurance, and in the light of the imminent publication of the White Paper, I respectfully ask the noble Baroness, Lady Parminter, and the noble Lord, Lord Judd, to withdraw their amendment.
Baroness Parminter
My Lords, in light of the Minister’s reassurance that the Government take this matter very seriously, on behalf of my colleagues, I am very happy to not press my amendment on this occasion. I thank noble colleagues across the Committee who have shown their strength of feeling on this issue; and it is good that the department is listening. I single out the noble Lord, Lord Framlingham, who in many ways represents the best of the House of Lords, in that people come in and speak about what they know. Every time he speaks on an issue, he does so with an expertise and commitment which is valued by all of us. Certainly, on behalf of my Benches—although I am sure on behalf of others as well—I thank all noble Lords who have shown commitment to this issue, but in particular I thank him. I beg leave to withdraw my amendment.
Lord Beecham
My Lords, I entirely sympathise with the objectives of the noble Baroness. However, I found the amendments as drafted not workable. Subsection (3) of the new clause proposed by Amendment 49 calls for a liability for a “significant additional charge” but it does not give any method of calculating that or saying how it might be achieved. On Report, an amendment inviting the Government to create such a structure subject to secondary legislation that in this case would probably be acceptable might be a way forward. In terms of subsection (4), I should have thought that if there is a retrospective planning application, it would have to be made public and subject to consultation in the ordinary ways. This subsection may be unnecessary. If subsection (3) were changed to convey a power to regulate for such a retrospective permission, that would be a way forward. Perhaps the Minister already has that in mind. The objective is right but we have yet to find quite the right wording.
Lord Bourne of Aberystwyth
My Lords, I thank my noble friend Lady Gardner of Parkes, who speaks with great authority on these areas and here with personal experience. I also thank the noble Lord, Lord Beecham, for his contribution. How we deal with unauthorised development is an important issue that concerns many people. The Government are clear that unauthorised development is unacceptable and unfair to the vast majority of people who abide by the rules. However, the retrospective planning application process is there primarily to give those who have made a genuine mistake the opportunity to rectify the situation. There are, of course, such people. It also gives local planning authorities the flexibility to invite a retrospective application where they consider that it is the appropriate course of action.
It is important to note that retrospective planning applications must be determined in exactly the same way as any other application, that is, in accordance with the development plan unless material considerations indicate otherwise. The noble Lord, Lord Beecham is therefore right in relation to subsection (4) of the new clause proposed by Amendment 49. That for which it provides would be the case anyway.
There is no guarantee that planning permission will be granted just because the development already exists. The noble Baroness cited the haystack example and there are many more in which houses have been built that occasionally people find quite acceptable, but which because they did not have planning permission and because of what planning policy indicated, have had to be demolished. Therefore, those who undertake unauthorised development put their development, their investment and perhaps their professional reputation at risk. The sale of properties built or adapted without the necessary permissions may also present considerable difficulties.
Local planning authorities can impose planning conditions on the retrospective grant of planning permission to mitigate the impact of the development. Where unauthorised development proves to be unacceptable, local planning authorities have at their disposal a wide range of enforcement powers with strong penalties for non-compliance. I note that where an enforcement notice is served, as does happen on occasion, and the person appeals on the ground that planning permission ought to be granted, they are deemed to have made an application for planning permission and must pay a fee. That fee is twice the fee that would have been payable in respect of a planning application to the relevant authority seeking permission for the matters stated in the enforcement notice as constituting a breach of planning control. I appreciate that that is only where an enforcement notice is served, but in that situation there is already a double charge. This recognises the additional work involved for the planning department in dealing with both an appeal and an application.
The effect of my noble friend’s amendment would be to make retrospective planning applications compulsory for all breaches of planning control under the Town and Country Planning Act 1990. This would be difficult to enforce and could lead to unnecessary delays where a local planning authority is clear that such an application would be refused and enforcement action taken. Clearly it would be not be helpful to delay effective enforcement action by local planning authorities where it is evident that the unauthorised development is totally unacceptable. That could well be the case in some situations.
My noble friend’s amendment would also introduce a penalty fee in addition to charges in respect of the costs over and above the double charge I have referred to which is incurred by the local planning authority in carrying out its functions connected with a retrospective planning application. This would unfairly penalise those who have made a genuine error and discourage the submission of such an application for proper consideration by the local planning authority. It is a matter which I know previous Governments have considered and to some extent grappled with, but in the interests of fairness have not decided to take forward. I appreciate that this is an important issue and I thank my noble friend for airing it and giving the Government some time to consider it, but for the reasons I have outlined, I would ask her respectfully to withdraw the amendment on this occasion.
Lord Beecham
My Lords, we on this side support the amendment. It is particularly welcome that there is a proper reference to obtaining affirmative approval for any regulations that are required. It is important to address the issue of land that is difficult to develop. My noble friend has just reminded me of the very successful redevelopment at Greenwich, which was a pretty bleak landscape. It required significant investment but it has paid off very well. We certainly need to encourage development there. It does not necessarily have to be private building development for sale. Local authorities and social housing can also be very involved in the process. Indeed, we want to see mixed communities of that kind, but this is not inconsistent with the amendments.
We need to facilitate development here, partly, as has been said, to avoid putting undue pressure on green space—whether it is green belt or not—but also because if they are not developed these sites bring down the quality of life in the surrounding community, of whatever nature that might be. So there is a triple benefit: first, for those moving into the accommodation; secondly, for the surrounding community; and, thirdly, because you are not building on areas that ought to be left as open space for the enjoyment of the community as a whole. We are very supportive of the amendment.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in this debate on Amendments 49A and 49B, particularly the noble Baronesses, Lady Bakewell and Lady Pinnock. The amendments cover two important areas.
On the new clause inserted by Amendment 49A, I agree with the noble Baroness that there should be transparency around land assets held by public bodies. Public bodies must be accountable for the assets they hold, and where land assets are no longer required to support the functions of the body, they should be released so that they can be put to good use, including the provision of much-needed new homes. I can reassure noble Lords that the proposed new clause is not required. A great deal of work is already under way to ensure that this transparency exists, and it may help the Committee if I briefly outline the measures that are either in place or being put in place.
First, information on government land assets is already made available through the Cabinet Office electronic property information mapping service, e-PIMS—that trips off the tongue. This feeds the Government Property Finder website, where anyone can search to obtain a list of government land assets locally, regionally and nationally. Where land is made surplus for development, the e-PIMS system also makes this clear.
Secondly, for land owned by local authorities, the Local Government Transparency Code 2015 requires local authorities subject to that code to publish, on an annual basis, details of all land and building assets, including undeveloped land. In 2016 we consulted on updating the transparency code. We proposed that in addition to the existing data on land and property assets published by local authorities, they should also publish, on e-PIMS, the extent of the land in hectares for each piece of land; whether that land is surplus to requirements; whether there are current or future plans to release the land for housing development; if there are plans to release the land for housing development, what the current planning status is; if there are plans to release the land for housing development, how many homes can be accommodated, and, for properties of 10,000 square feet or larger, the floor area of that property, the number of floors and the number of car parking spaces it has. We are carefully considering the responses we received and will be responding to the consultation in due course.
Thirdly, nearly three-quarters of local authorities in England are now part of the Cabinet Office and Local Government Association’s One Public Estate programme. This is expected to grow to 95% in 2018. The One Public Estate programme brings together public bodies across a local area seeking to unlock the value in land and property assets for better local services, efficiencies and local growth. In doing so, land that is made surplus can then be released. A condition of membership of the One Public Estate programme is that local authorities and their public sector partners must upload their land asset data to the e-PIMS system. Work is already under way to bring central and local land data together in the e-PIMS system. This will make land asset data across the public sector readily available to anyone in a single place, rather than having registers held by individual authorities. I hope that this reassures noble Lords that the Government are committed to ensuring transparency in the use of land assets and appropriate release across the public sector, and that they have a clear plan to make that happen.
Amendment 49B, in relation to brownfield land, is in the name of the noble Baroness, Lady Pinnock, and was spoken to by my noble friend Lady Cumberlege and the noble Lord, Lord Beecham. He cited the example of Greenwich. A development corporation is involved across the river as well—I am sure that the London Borough of Lewisham will have something to say on that, but I will move swiftly on.
I think we all agree that previously developed land, more commonly known as brownfield land, has an important role to play in delivering much-needed new homes. The Government remain committed to ensuring that 90% of suitable brownfield sites have planning permission for housing by 2020. That is our stated policy, but I appreciate that the noble Baroness is looking for more concrete action, and I will be moving on to that.
The Government already have a strong policy framework in place to encourage the reuse of brownfield land. We are also developing further policy measures in regulations, which will help unlock housing being built on suitable brownfield sites and maximise the number of dwellings built on brownfield land. It is an appropriate mechanism, as noble Lords have mentioned, in order not to have to build on the green belt, which of course we do not want to do and is not anticipated. That is why building on brownfield land is so important.
Paragraph 111 of the National Planning Policy Framework asks local authorities to encourage the reuse of brownfield land if it is not of “high environmental value”, and planning guidance reinforces the expectation that local plan policies should reflect the desirability of reusing brownfield land. Furthermore, in December 2015 our consultation on national planning policy sought views on proposals to create a presumption that brownfield land is used unless there are clear reasons why not. This consultation also set out proposals to make more efficient use of land by encouraging higher densities around commuter hubs and to encourage more starter home-led development on brownfield land. We intend to set out our response to these proposals in the imminent housing White Paper.
Our proposed changes to planning policy sit alongside other proposals to bring brownfield land back into use. The list is not exhaustive. We intend to bring regulations into force this spring requiring local planning authorities to publish and maintain brownfield registers, which was part of the Housing and Planning Act 2016. I hasten to say that I do not have personal and direct experience of the legislation, but I believe that that happened through the Act. These regulations will also enable local authorities to grant permission in principle to suitable sites on their registers. We are also committed to widening permitted development to help give new life to thousands of underused buildings, as well as accelerating the disposal of surplus public sector brownfield land for new homes.
I fully recognise that some brownfield sites have more constraints than others, and that will probably be particularly the case where land values are not so high. Greenwich had its challenges but of course the land values were greater there. Some sites may also require additional costs to bring them back into acceptable use. A number of financial measures are in place to bring such sites back into use; for example, £0.4 million has been made available to local authorities during 2016-17 to help with the costs of dealing with urgent remediation cases and, if possible, ongoing remediation projects. We have created a £3 billion home building fund to provide loans for small and medium-sized building firms, custom builders and offsite construction. Some £2 billion of that fund will be long-term funding available to developers to deliver infrastructure to support a strong future pipeline of housing supply and will help unlock between 160,000 and 200,000 homes.
We expect at least half of this £2 billion to be used to support brownfield sites, including land remediation. I am very happy if the noble Baroness wants to engage further with officials on that particular point.
Furthermore, where brownfield sites suffer from contamination, land remediation relief, offered by Her Majesty’s Revenue & Customs for remediating contaminated land, provides relief from corporation tax, comprising a deduction of 100%, plus an additional generous deduction of 50%, for qualifying expenditure incurred by companies in cleaning up land acquired from a third party in a contaminated state. That is also significant. However, we must remember that not all brownfield land is suitable for housing development, and not all our housing needs will be met by building on brownfield land alone. As I have indicated, the Government have a clear plan and vision, but I am very happy to make officials available to explain the detail should noble Lords require more information.
To conclude, the Government are already taking action to support development on brownfield land. I assure the noble Baroness, Lady Pinnock, and other noble Lords that the Government will continue to seek prioritisation of brownfield land for development. That is central to what the Government are seeking to do in relation to housing. Without giving too much away about the housing White Paper, this aim will be reflected in that. I hope noble Lords will forgive the somewhat lengthy explanations I have given in relation to these two amendments, but they are both important. I hope that, with the assurances I have given, the noble Baroness will feel able to withdraw her amendment.
Baroness Bakewell of Hardington Mandeville
I thank the Minister for his very positive response to both the amendments. I am very pleased to hear that the Cabinet Office has a snappily named website where most public land can be accessed and in which most local authorities are participating. I shall go back and check that my local authority is participating. I can understand that some local authorities will perhaps be reluctant to upload exactly what their land holdings are; if I understood the Minister, that is a requirement of membership. However, I am pleased that there is some transparency around public land and that, wherever possible, it is brought into use for other purposes. I thank the Minister for the very detailed response on the issues around brownfield land. I found that very positive. I beg leave to withdraw the amendment.
Baroness Parminter
I thank the noble Lord for raising this issue and support him in his call. I am sure the Minister will make reference to the flood review that is currently being undertaken by the DCLG and Defra. Of course, the noble Lord’s amendment not only looks at surface water flooding, which is what the current review is looking at, but puts it, rightly, in the context of the broader issues of retrofitting and other forms of flooding as well. I too hope the Government will be supportive.
Perhaps I might say a few words about the review that the Government are undertaking. Noble Lords will remember that in the Housing and Planning Bill the Government conceded that there would be this review of surface water flooding. I think it is a disappointment to Members that it is only a desk-based exercise, that there has not been a public call for evidence and that therefore engaged organisations have not had the opportunity to input their views. Indeed, no surveys have been undertaken of local planning authorities; it is purely private meetings with particular stakeholders, including the developers.
However, so as not to appear churlish, I reiterate my thanks to the Minister for agreeing to meet me and other representatives later this week to hear the findings of what we believe is the largest survey undertaken in the UK of SUDS. Of the more than 500 responses—including from lead flood authorities, local authorities and even representatives of central government—70% thought that the current planning policies were not sufficient to deliver sustainable drainage solutions. I hope the Government will consider those recommendations before they finalise their review.
Perhaps the Minister might not only comment on the noble Lord’s wish for a full review of the flooding situation but commit to agree to the findings, when we receive them later this spring, of the review of flooding by the Adaptation Sub-Committee of the Committee on Climate Change. I believe it intends to propose a number of recommendations around changes to planning policy, and I hope that the Government might be prepared to accept those. I am interested to hear the Minister’s views on how seriously they will be taking the committee’s recommendations.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord, Lord Beecham, for moving Amendment 56, and the noble Baroness, Lady Parminter, for her contribution. I am afraid I will probably have to let the noble Lord down on this occasion. I am not convinced of the need for this.
First, as has been noted, Section 171 of the Housing and Planning Act 2016 includes a requirement for the Secretary of State to,
“carry out a review of planning legislation, government planning policy and local planning policies concerning sustainable drainage in relation to the development of land in England”.
My department had already commenced work on the review prior to this section of the Housing and Planning Act coming into force by order on 1 October last year. The objective of that review is to examine the extent to which planning policy has been successful in encouraging the take-up of such drainage systems in new developments. My officials are working closely with colleagues at the Department for Environment, Food and Rural Affairs and the Environment Agency to gather evidence to inform the review. The first stage of the review—to survey local plan policies related to sustainable drainage systems—has been completed. We are now working towards the next stage of the review—to collect evidence on how sustainable drainage systems are deployed in practice.
Stakeholder involvement is a critical element throughout the review. We have been engaging with a broad range of stakeholders through two dedicated groups set up specifically to support the review. The first is a high-level project steering group comprising members of the DCLG, Defra and the Environment Agency, the Climate Change Committee, the Adaptation Sub-Committee’s secretariat, the Association of Directors of Environment, Economy, Planning and Transport, and the Local Authority SuDS Officer Organisation. A second-tier engagement group, comprising key SUDS-related stakeholders, will function largely as a sounding board of expert advice to be drawn on as the review progresses. This comprises members from organisations including the Institution of Civil Engineers; Water UK; the Wildfowl and Wetlands Trust and the Chartered Institution of Water and Environmental Management. Membership comprises representatives from local planning authorities, professional and statutory bodies, environmental non-governmental organisations, house- builders and other agencies.
We remain committed to working constructively with the Adaptation Sub-Committee of the Committee on Climate Change—an independent, statutory body established under the Climate Change Act 2008—so that the review informs their progress update on the national adaptation plan, due in the summer of 2017. Whenever I hear the mention of sandbags I always think of the organisation which the noble Baroness, Lady Worthington, led so well. She did considerable work on climate change through that particular organisation.
In addition to this review, the National Flood Resilience Review, published in September last year, assessed the resilience of key local infrastructure, such as energy, water, transport and communications, and identified ways to protect it better. The flood resilience review includes an action plan that the water, telecoms and electricity utilities will develop and implement, with long-term plans—where not in place already—for improving permanently the resilience of service provision to significant local communities from the flooding defined by the Environment Agency’s extreme flood outlines. Both of these reviews, when considered together, address the role of planning relating to sustainable drainage and the resilience of local infrastructure in response to a flood incident.
It is in that context that a requirement for a third review is unlikely to add anything new. I am happy to discuss this further with the noble Lord, but I do think it is unnecessary and I respectfully ask him to withdraw this amendment.
Lord Beecham
I will withdraw the amendment, but I would like to ask for a little clarification. Is the review concerned with new or existing development? Drainage issues are something many of us can see in our neighbourhoods. Front gardens are concreted over for car parking purposes and other things, with adverse consequences for drainage. Is that sort of issue part of the review which the Government are conducting?
Lord Bourne of Aberystwyth
My Lords, I think the noble Lord is asking about the first of the reviews—either the one on the Housing and Planning Act 2016 or the National Flood Resilience Review. In any event, I think the former of those—in connection with sustainable drainage—will certainly encompass that. I will double check that and be in touch with the noble Lord on that point. The second of the reviews is already complete. It was published in September last year, but I will ensure that he gets a link on that particular review if it is helpful.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Baroness, Lady Parminter, for moving this amendment in group 24, and the noble Lord, Lord Beecham, for speaking to it.
First, I will set the context, which is partly the Paris climate change agreement. To take credit for it, it was of course concluded at a time when there was a Conservative rather than a coalition Government—although, to be fair, it was supported by all parties. It was a step forward, and we worked closely with many countries, not least in Europe. From the outset, I remind noble Lords that the standards for new homes were strengthened by 30% in the last Parliament, when there was a coalition Government, saving £200 on energy bills compared to standards before 2010, when there was a Labour Government. To meet those standards, homes will have A-rated condensing boilers, double-glazed windows with low-energy glass, and high levels of insulation and air tightness in their construction—they are very energy-efficient homes.
A very similar amendment was debated at length during the passage of last year’s Housing and Planning Act. That Act placed a duty on the Secretary of State to undertake a review—to which reference has been made—of energy performance standards for new homes under Section 2C of the Building Act 1984. We have commenced costings analysis to underpin this review, and our aim is to publish the final review in the summer. It aims to identify what improvements are cost-effective and feasible for new homes. We plan to extend it to cover non-domestic buildings and work to existing buildings, seeking further potential reductions in carbon emissions and fuel bills. The noble Baroness asked about progress in meeting our climate change targets. Obviously, domestic compliance and measures are important, but it is not limited to them; hence we have extended it to other buildings, for example. Transport also makes a significant difference to emissions, so the Inter-Ministerial Group on Transport and looking at what we can do with regard to electric cars is significant. There have been massive changes in California in particular, which the Government have taken note of and are progressing, because that will make a significant difference.
Over recent years, we have seen reduced costs of technologies and energy efficiency measures, such as solar panels, which were discussed in detail in last year’s debates. I emphasise that it is important that we consider only the very latest information and data on costs—that is crucial. The carbon compliance standards proposed in this clause are, so far as I can see, not based on the latest data—I think some of them are some six years old—although I appreciate that that can be looked at. Obviously, we are looking at all these issues in the round. To prescribe standards without up-to-date information would be difficult. I can confirm that changes to the building regulations flowing from the upcoming review will be subject to a full consultation. That will include draft technical guidance on how to meet the changes, which will cover all homes from detached houses to high-rise flats. The noble Baroness asked specifically whether local authorities are able to set higher standards than the national ones, and I can confirm that they are able to do just that.
The new clause also proposes putting in place new powers in the planning regime to set the carbon compliance standards. This is unnecessary, as there are already powers to set such standards through the building regulations. I appreciate and understand that the noble Baroness said that this is a probing amendment, but the powers are already there. Also, the technical expertise to ascertain whether a building meets a particular energy performance or carbon compliance standard already exists in building control bodies. However, this technical knowledge is unlikely to be available within a planning department. Our position is that minimum energy performance standards should be set through the building regulations, with compliance being demonstrated through building control bodies. That is what we are looking at.
I hope I have reassured noble Lords that the proposed clause is unnecessary, although I appreciate that this was a probing amendment in the understanding that the review is moving. The review will use the latest costs and evidence, and any cost-effective changes proposed will be workable for all home types, across the range. I am happy to share information on the review with noble Lords at appropriate points as we take it forward, if that is helpful. On that basis, I therefore ask the noble Baroness to withdraw the amendment.
Baroness Parminter
I thank the Minister for his responses and the clear answers to two of my questions. The public call for evidence for the review is very welcome, as is the commitment for local authorities if they wish to set higher standards. It is helpful that those answers have been set on the record in that way. On my third point, I appreciate that housing makes up only one component of the UK’s greenhouse gases, but it is still one-quarter. When we had a Department of Energy and Climate Change, it was looking at producing an updated road map that showed how much would be delivered by savings in transport and housing. That has clearly been booted into the long grass, but at some point the Government will have to come clean on the issue. With that in mind, I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
I support the amendment in the name of my noble friend Lady Andrews. She ably outlined why the Government should give a sympathetic response to it. I was pleased to hear the noble Viscount, Lord Trenchard, talk about 549 Lordship Lane. I know the property, referred to as the Concrete House. The council has won an award for its work there: it bought it, did a good restoration and now uses it for shared ownership. I support the amendment. I am conscious of the time and I hope that the Minister will also want to respond quickly.
Lord Young of Cookham (Con)
My Lords, at this stage of our flight, the co-pilot takes over. After a very smooth passage with my noble friend at the controls, there may well be some turbulence. I am grateful to the noble Baroness for moving this amendment. She chaired English Heritage for four years, so she has a proud record in the conservation world. I applaud the way she is carrying forward that commitment by tabling the amendment to insert a new clause. She is well qualified and well informed on this issue. As she said, listed buildings are an important part of our environment: they create a sense of identity in a locality and support local economies by attracting visitors. As my noble friend Lord Trenchard said, this offers the opportunity to provide housing in some restoration projects. I also commend the intervention from the noble Lord, Lord Beith, and the work done by him in his particular field.
We all support the objectives of the amendment, but there may be alternative routes to the common destination. The noble Baroness has been a CLG Minister herself, so she may feel some empathy for someone who, having listened to a popular and powerful case for a well-argued amendment, picks up the departmental brief which has at the top, “Resist”. I have two points of my own to make. Listening to the debate, I wondered if there had ever been a case where a charitable trust had done exactly what the noble Baroness had suggested—raised all the funds and then presented the local authority with an indemnity—and the local authority had refused to go ahead with a CPO. If there was such an example it would be relevant to the case that is being made.
My other thought was that, having sat patiently through the debate on this Bill, I have noticed a recurrent criticism that we are fettering the discretion of local authorities. We are accused of not trusting them, of passing primary legislation which makes them do things. The amendment does have the words “a planning authority must”. What is the view of the LGA, which is very well represented in the Committee? Does it welcome the discretion of its members being fettered in the way that the amendment seeks to do? Having said that, the noble Baroness was quite right to remind us that local authorities have the ability to compulsorily purchase listed buildings that are in need of repair. It is an important weapon in their armoury to protect our built heritage.
If one looks at the guidance provided by the Government, paragraph 16 of the compulsory purchase guidance notes states that it specifically provides for local authorities to consider requests from community groups—which could include heritage trusts—to use their compulsory purchase powers to acquire community assets that are in danger and, under the guidance, local authorities are required to consider such requests and to provide a formal and reasoned response.
In a sense, the onus is already on the local authorities to explain why—were they presented with the sort of offer that we have just heard—they feel they cannot accept it. It is also the case, as the noble Baroness said, that heritage trusts have access to grant funds and other sources of income to enable them to carry out the preservation of listed buildings and bring them back into use. What this amendment seeks to do is, in effect, to lock in a statutory embrace the heritage trusts on the one hand with the resources and the local authorities with the CPO powers on the other. I am slightly worried that this might undermine the collaborative approach which I think works quite well at the moment. As has already been said, the CPO power exists, but I am not convinced that the relationship between the local authority and the trust would be assisted if the local authority knew that the trust had this sanction behind it to compel it to do something.
On the point made by my noble friend Lord Trenchard, Historic England is working with local authorities and giving them advice and financial and technical support in many cases where listed buildings are falling into disrepair, enabling a satisfactory solution to be arrived at. That collaborative approach is the way forward. A good example, which if it were not 7.56 pm I would share with the Committee, is Hastings Pier which was restored in exactly the way that has been outlined.
The noble Baroness has commented that absentee owners are difficult to deal with or if the owners or reputed owners do not engage with the compulsory purchase process it can proceed without them, and the acquiring authority only has to make a reasonable attempt to find them. That attempt includes information in CPO notices simply displayed on site, as well as being sent to the last known address of the owners—then they can proceed.
So far as the trust is concerned, the cost of compulsory purchase is not always easy to assess. There could be court challenges and it could end up in the High Court. The defence of a legal challenge would fall to the trust and any failure of a trust to meet its responsibility to indemnify the local authority would put the trust’s future in jeopardy and the local authority would be liable for those costs.
In a nutshell, the Government are not convinced that the noble Baroness’s amendment to compel a local authority to proceed with a compulsory purchase would have a significant effect on the use of the CPO legislation. The current process provides a balanced approach, allowing local authorities and heritage trusts to enter into mutually acceptable arrangements. It encourages collaboration between local authorities and heritage trusts, and as I have said, that approach could be jeopardised if an element of compulsion were to be introduced.
I am happy to reflect on the dilemma which the noble Lord, Lord Beith, outlined about local authorities’ reluctance to take things forward. In the meantime, with the greatest respect, I ask the noble Baroness to withdraw her amendment.
Baroness Andrews
My Lords, I am very grateful to the Minister. I detect a sympathy beneath his detailed rebuttal. I am also very grateful to Members who supported the amendment. The points the Minister made are worth reading properly and I will go on to do some research in connection with the heritage bodies about the response of local authorities and the effectiveness of the guidance. There is an argument which says that advice and guidance are fine as far as they go, but what we are looking at here is case after case across the country of deep frustration, of failure of capacity and of fairly old resources. I take the point about an element of compulsion, but there comes a point in all forms of policy where something more draconian needs to be considered as part of a conversation about what the alternatives are, otherwise we will never move away from the sort of stasis that we have had over sometimes magnificent buildings but which are a blight and an eyesore when they could be so productive in the community. We will rise to the challenge and see whether we can come back. We may be back before Report with evidence, but in the event, I certainly withdraw the amendment.
Wednesday 8th February 2017
(7 years, 9 months ago)
Grand CommitteeNeighbourhood Planning Act 2017 Read Hansard Text Amendment Paper: HL Bill 86-IV Fourth marshalled list for Grand Committee (PDF, 105KB) - (6 Feb 2017)
This text is a record of ministerial contributions to a debate held as part of the Neighbourhood Planning Act 2017 passage through Parliament.
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Lord Framlingham (Con)
My Lords, I had not intended to speak in this debate but I do so in support of the amendment, mainly because I am very fond of pubs. I am a great pub user and always have been—paying great tribute to Adnams bitter in Suffolk is, I think, in order.
Perhaps it is necessary for us to appreciate just how important the pub is in village life. The local post office is too, but we are talking about pubs. In modern terms, you either get that or you do not, but it is absolutely crucial. In my village of Mellis in Suffolk, we have a pub called the Railway Tavern. Many years ago it broke away from the brewery. That was a problem because it had to buy all its alcohol from it, which affected its profitability. That did not work and it was boarded up for a while. It was then bought, but that landlord did not make it work and it was boarded up again. Then the village got together and, with the present landlord, ran it for two to four weeks to get it going—such was the village feeling about the pub. It is now going well and Frank, the present landlord, does an extremely good job. The pub does everything: it has wi-fi, fish and chips regularly on a Friday night and quizzes. It really is the heart of the village.
Noble Lords have referred to the number of village pubs there used to be. We could all talk about our towns and villages that used to have 20 pubs and now have only one. We have reached the stage where this is very serious. Those who feel strongly about the role of the pub in towns and villages—about how crucial they are to village life—must stand up for them. If this amendment will do anything to make it a little more difficult to transform a pub quickly and commercially into something else, I am all for it. I therefore very much support the amendment.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, I thank noble Lords who have participated in the debate on Amendments 60 and 61. I also thank those noble Lords who attended the briefing session this morning on the White Paper and I urge others to pick up a copy from the Printed Paper Office. We will put on further sessions on it but as I had undertaken to hold a session before Report, I thought it was important that we did so. I am very grateful to my right honourable friend the Secretary of State and the Minister of State, Gavin Barwell, both of whom were there. As I said, we will have more sessions; in the meantime the consultation on those items we are consulting on is open until 2 May.
I thank the noble Lord, Lord Kennedy, the noble Baroness, Lady Deech, and the noble Lords, Lord Cameron and Lord Shipley, for speaking so eloquently on Amendments 60 and 61. I will concentrate first on what we have done and are doing, then look at the substance of the debate and pick up the points made by noble Lords. I do not think we have had this much interest on anything in the Bill, and certainly not since we debated ancient woodlands. These things are clearly central to our well-being and life in our country.
Noble Lords have raised a number of concerns about the loss of valued community pubs. I would therefore first reassure the Committee that we recognise the role that pubs can, and do, play in local communities. They provide valuable local hubs that strengthen community relationships and encourage wider social interaction, as well as contributing to our wider economy. The nature of the pub has changed massively in our lifetime; they are very different now from 20 or 30 years ago, when I think many were still primarily drinking establishments. Those are very much the exception now. It is now not at all unusual for people to go to a pub for a meal, and come out not having had an alcoholic drink. For a party of four or five, one person will perhaps be nominated as driver and others may just have a glass of wine with a meal. We can all see that it is very different from the way it used to be.
The importance of the pub is recognised in paragraph 70 of the National Planning Policy Framework, which requires local planning authorities:
“To deliver the social, recreational and cultural facilities and services the community needs”.
In doing so, it says that those authorities should,
“plan positively for the provision and use of … community facilities (such as … meeting places, sports venues”,
and “public houses”. Before turning to the detail of the amendments, I take this opportunity to set out the important steps we have already taken to support valued community pubs.
First, alongside Power to Change, an independent charitable trust that supports community businesses across England, we are co-funding the “More than a pub” community pub business support programme. This will provide £3.62 million of grants and loans to enable up to 80 communities to buy their pubs between 2016 and 2018. We also recently announced funding of £50,000 to support the organisation Pub is the Hub’s work on community-focused pub-based services. This will help more pubs diversify to provide essential community services, which would otherwise have been lost. As an example, the Codrington Arms in Gloucestershire recently reinstated the local post office and village shop by utilising an outhouse on the premises of the pub, which is to be applauded.
Communities can also use the powers given to them through the community right to bid to list their local pub as an asset of community value. To date—I think the noble Lord, Lord Shipley, has already given this figure—local communities all over England have listed nearly 4,000 assets, of which 2,000 are pubs, so I would say that this has been successful. Views have differed; I think the noble Lord, Lord Kennedy, indicated that he was not as impressed by that as others have been. We will continue to listen to evidence on the operation of this legislation and examples of good practice. It would be helpful if those noble Lords who said that the process is complicated or costly, which I do not accept although I do not have evidence to counter it, were able to come up with some evidence that it is costly or difficult—or even that communities are unaware of it. I would be interested in that. Separately, we scrapped the beer and alcohol duty escalators and froze beer duty in Budget 2016, having reduced it in each of the three preceding Budgets.
I would like to respond in more detail to the noble Lords’ amendments. Both Amendment 60 and Amendment 61 seek to remove the permitted development rights allowing a pub to change to a restaurant, financial or professional service or shop, or to be demolished. This would be for all pubs and mean that a planning application would be needed in all cases. Noble Lords will, I am sure, be familiar with the important changes that we made on 6 April 2015. These were precisely to remove permitted development rights from pubs which are valued community assets, so that a decision in those cases would be made at local level. From this date, permitted development rights allowing the change of use or demolition of pubs are removed in respect of pubs and other drinking establishments which the community has demonstrated it values by nominating them as an asset of community value.
Permitted development rights therefore do not apply for as long as the pub is nominated or listed as an asset of community value. This means that a planning application is then required, allowing for local consideration and providing an opportunity for the local community to put forward its views to the planning authority. To guide decisions in these cases, it is important that local planning authorities have relevant policies in place in line with the National Planning Policy Framework.
I therefore urge local communities to come forward and nominate their valued community pubs. The community in Charing did this fairly recently and successfully prevented a change of use of its pub. The noble Lord, Lord Tope, referred to an example in his community, too. I say in passing that there is separate protection for historic buildings. If a pub qualifies on that basis, that is in addition to the normal planning requirements. That would apply to quite a lot of village pubs, although I accept that not all pubs would qualify in that way.
If there are local concerns about the prospect of a pub that is not nominated or listed changing use under permitted development rights, the local planning authority can make an Article 4 direction—the noble Lord, Lord Shipley, mentioned the Wandsworth example. A direction can be made in respect of an individual pub or pubs in an area. We consider that this approach provides valuable protection while avoiding blanket regulation, which would add bureaucracy and costs to all pubs.
Although it is not a declarable interest, I should say that in another life, when I was in the National Assembly for Wales, I was the co-chair of the Cross-Party Group on Beer and the Pub. Before someone trails my biography, finds that and says, “You didn’t mention that”, I mention it now. So I speak with a bit of experience of visiting pubs—mostly in Wales, but not exclusively. There are many thriving pubs that are worthy of protection. When you have to queue at the bar to get a drink or order a meal, that cannot be because they are doing badly. There are, on the other hand, pubs—I can think of many, although of course I will not name them—where you walk in and you know straightaway that it is in trouble. The person behind the bar looks indifferent. The pub does not do food; it may do a bag of crisps, but that is about it. I cannot see why we should seek to protect such pubs. They are often in dreary buildings—it is just the feel of the place.
That said, there are many pubs of which you think, “This is an important, integral part of the community”. I have been in community pubs that do a range of things; there may be a citizens advice bureau, a visiting library or the village shop. When you speak to the people who go there in the evening, you find that some did not go until it started to do all these things. Some people past the retirement age who would not have set foot in a pub when they were younger go there and help with the meals, for example. They just generally like the life that is there. That applies to young people, too. I have seen this. The nature of the pub is changing. Some pubs are, as I said, an integral part of the village. I associate myself with what was said about the closure of a village shop, post office or pub. That often excites interest from the community, because these things are community assets. I understand the point that is being made.
Let me turn to some of the comments that have been made. The noble Lord, Lord Cameron, talked about the vital glue that holds a community together— entrepreneurial flair is needed and engendered in some communities, while there are other communities where that is just not happening. The noble Baroness, Lady Deech, talked about the cement for communities; again, I understand the point that is being made. The noble Lord, Lord Tope, correctly said that the protection as a community asset is only for five years. I find it hard to believe that successful community pubs will not know that they have to reapply. They will be aware of that. After you have made the initial application, it will not be difficult to make the reapplication five years on, if that is still appropriate. My noble friend Lord Horam talked about the historic connection of the Conservative Party with the brewing industry. My noble friend Lord Young has asked me to make it absolutely clear, as I do, that he has no connection with the brewing industry—nor do I, in a financial sense. We now have that on the record.
Lord Kennedy of Southwark
My Lords, we have discussed this group of amendments for over an hour, so I feel that we are getting close to “closing time” on it. However, I wish to make a few brief comments. I join the noble Lord, Lord Cameron of Dillington, in paying tribute to Pub is the Hub. It is a great organisation for the very reason it has kept village pubs going and offering all sorts of other services. That is an excellent initiative. I first saw a pub being used as a corner shop, post office and other things in the Republic of Ireland. Many pubs in Ireland—or bars, as they are called there—do that very successfully.
CAMRA is a great organisation. I am sorry that it appears to have irritated the noble Lord, Lord Hodgson, perhaps in a previous life. CAMRA’s website used to boast that its membership was bigger than that of any political party in Britain. It now says that its membership is bigger than all but one, that being the Labour Party. That has involved us in all sorts of other issues that I shall not enter into today. However, I noted that interesting change on CAMRA’s website.
I very much agreed with most of the comments made by many noble Lords on this issue. However, the noble Lord, Lord Hodgson, may have misunderstood our amendment. Nothing in it seeks to keep open a failing pub, and noble Lords seemed to support that. A failing pub will close. I accept the point he made about how things have changed. I grew up in south London and when I was a young boy there was a pub on every corner of almost every street in my area. Most have gone. One or two are now hotels and some have been converted into houses or shops. The noble Lord is absolutely right that life has changed in that regard. He was also right about supermarkets. Certainly, on a bank holiday weekend, you cannot get past the beer mountain as you walk in the door. Equally, people have other leisure activities, so certainly pubs have changed. However, I still think that a successful community pub, whether in a city, town or village, which works well deserves our support. There is nothing in the amendment about pubs that are not successful.
A Leicester City v Derby match has been mentioned. I am interested in the result of that match as the winner will get the pleasure of playing Millwall at The Den in the next round of the FA Cup. I know that people will watch that match with interest tonight in pubs all over Lewisham. They will perhaps do so in a traditional pub such as The Rising Sun. However, further down the road from that pub is The Talbot which serves excellent food, so different pubs cater for different uses. It is important to come back to this issue.
As regards the ACV issue, I am sure that when the Minister talks to representatives of CAMRA they will be able to give him examples of councils which, for whatever reason, do not want to use this power or have frustrated local publicity campaigns. I can give him the relevant names. I hope that the Government will consider how they can deal with that as it is an issue.
The other point is about being able to raise finance. If a pub is listed as an asset of community value, and the landlord or the owner wants to raise some finance but finds problems as a result of being listed, that is an unintended consequence. I hope that CAMRA can give examples of that and we can look at how to change it. It cannot be right that listing your local pub could cause the business problems. We need to deal with that as well.
I thank other noble Lords, including the noble Lord, Lord Bourne, for his response. I look forward to meeting CAMRA and hopefully I can talk to the noble Lord between now and Report. As I said at Second Reading, I fully intend to bring this or a similar amendment back on Report and will be very likely to push it to a vote unless we get some movement from the Government. We have raised some important issues, and as the noble Lord will have seen in today’s Grand Committee, we have support all around the House on this. Given that, I beg leave to withdraw the amendment.
Lord Bourne of Aberystwyth
If the noble Lord has information independently of CAMRA ahead of the meeting, that would be useful, to avoid delaying things, as CAMRA might not come with that information. I should also have noted a rare moment of accord—actually not that rare—with the noble Lord, Lord Beecham. Leicester City is my first team, and has been since childhood. I look forward to the occasion, after we beat Derby, when we come to Millwall. Perhaps we might share the experience over a pint of beer on that occasion.
Lord Scriven
My Lords, I have a little concern with the amendment—not with the thrust of where it is trying to go, but the way it is worded and the implications of proposed new subsection (2), which says:
“Local planning authorities must provide any necessary advice on national and local infrastructure projects as requested by neighbourhood plan makers”.
That seems to me to be a little top-down. If they have information, it should be automatically given to those making the neighbourhood plan. To paraphrase the words of a former American Defense Minister, sometimes there are the known knowns, and sometimes unknown knowns. I am sure this is not the intention of the amendment, but it needs to be a bit stronger in terms of automatically giving the right to the neighbourhood plan makers rather than them having to ask for it. I hope that those who tabled the amendment will reflect on that.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord, Lord Kennedy, for raising this matter, and the noble Lord, Lord Scriven, for his intervention on Amendment 64A. Noble Lords have raised a valid issue. Large-scale national infrastructure projects are, of course, crucial to the economic health of the nation. We must always recognise that national infrastructure will have impacts, positive and sometimes negative, on local areas. Our existing legislation provides planning policy and guidance together with any endorsed recommendations made by the National Infrastructure Commission and provides the means for ensuring that local planning authorities and neighbourhood planning groups are aware of national infrastructure projects in their area.
The importance of national infrastructure is already recognised at the local level. The National Planning Policy Framework in paragraph 21 and planning guidance provide that the local planning authorities should identify the need for strategic infrastructure in the policies in their local plans. Once adopted, local plans form part of the statutory development plan for the area, which is the starting point for planning decisions. Further to this, paragraph 162 of the framework makes it clear that local planning authorities consider and take account of the need for strategic infrastructure, including nationally significant infrastructure within their areas.
On 24 January, the Government published the National Infrastructure Commission framework document that sets out how the commission will operate, making it clear that the commission has operational independence to make recommendations as it sees fit, and on the basis of robust evidence will advise government on all sectors of economic infrastructure, operating independently and at arm’s length from government. This includes discretion to engage with stakeholders as it sees fit, and to address commission recommendations to the most appropriate bodies, including local planning authorities.
I value, as do the Government, the support of the noble Lord, Lord Adonis, as chairman of the National Infrastructure Commission, and of my noble friend Lord Heseltine as a commissioner in helping to set out national infrastructure policies. Many of the infrastructure projects that may be proposed by the National Infrastructure Commission will in due course need to seek development consent as nationally significant infrastructure projects under the Planning Act 2008. This planning regime already requires significant local engagement and consultation; applicants are required to engage and consult local communities and local authorities from the outset, with local authorities having a role in assessing the adequacy of that consultation. Once an application for consent has been accepted, it will proceed to an examination. Anyone can make representations to the examining authority on any aspect of the project; local authorities are also able to submit local impact reports that set out the impact of the proposed infrastructure in their local area.
I hope that this reassures noble Lords that sufficient mechanisms are in place so that local authorities and local communities will be able to engage with national infrastructure projects, both when they are being considered by the National Infrastructure Commission and when they come forward through the planning process. I think that the noble Lord, Lord Adonis, and my noble friend Lord Heseltine are very happy with how things are operating. As I say, they are at arm’s length; they are not an arm of the Government.
I turn to the specific part of the amendment on advice to those preparing a neighbourhood plan. As I explained during our debates last week, local planning authorities have an existing duty to advise or assist neighbourhood planning groups. Clause 5 will ensure that authorities must set out the support that they can provide in a more transparent way. When a national infrastructure project is relevant to a neighbourhood planning group, we would expect the local planning authority to advise the group accordingly.
I appreciate that this is a probing amendment, but I say to noble Lords who have participated in the debate and more widely that we do not think that this is the way forward, and I urge the noble Lord, Lord Kennedy, to withdraw his amendment.
Lord Kennedy of Southwark
I thank the noble Lord, Lord Scriven, for his contribution to the debate. I fully accept the points that he makes; he said what I want to do here but more succinctly and clearly. I also thank the Minister for his response to the amendment. I shall reflect on what he says and may or may not bring the amendment back on Report. I see the point that he makes. We are raising the issue of how the National Infrastructure Commission deals with local areas and planning authorities. I beg leave to withdraw the amendment.
Lord Beecham
My Lords, I shall speak to Amendments 69 and 75. They are pretty much self-explanatory. The former simply requires that guidance should be provided when there are temporary rights that can be granted at the same time over the same piece of land. Amendment 75 is rather more important because it provides that the section should not come into force until guidance has been published in relation to it. I assume that is the Government’s intention, and I hope they will accept that amendment.
Lord Young of Cookham (Con)
My Lords, the co-pilot is back in charge. I thank the noble Lords, Lord Shipley and Lord Beecham, for tabling their amendments to Clause 14. The noble Lord, Lord Shipley, made it clear that his amendment was probing. Before I move on to discuss these and the government amendments to this clause, it may be helpful if I begin with a brief description of Clauses 14 to 26, which introduce the new temporary possession power.
All acquiring authorities may need to enter and use land for a temporary period. For example, they may require land to store materials for a scheme or to provide access to a construction site, as the noble Lord, Lord Shipley, explained. The problem is that, currently, only certain acquiring authorities have temporary possession powers—for example, under special Acts which are needed for very large schemes such as the Crossrail Act 2008. Crucially, compulsory purchase orders cannot authorise temporary possession. There is no good reason for this difference, and it is unfair to those who do not have the powers. Clauses 14 to 26 seek to create a level playing field by giving all acquiring authorities the same power to take temporary possession of land. It may also be in the interests of those on the receiving end of a CPO to have the possibility of being deprived of their land temporarily rather than permanently.
In giving acquiring authorities this power, we shall ensure that those whose land is taken are fairly compensated and that there are appropriate safeguards in place to protect their interests. That is set out in Clause 19. For example, temporary possession will have to be authorised in the same way as compulsory acquisition. Also, in certain circumstances, owners and occupiers will be able to require the acquiring authority to acquire the land permanently instead of occupying it on a temporary basis, if that is what they want.
Government Amendments 66, 67, 70, 71, 74 with Amendments 105 and 106 and amendments to other clauses, which I shall deal with later, remove the requirement for the temporary possession to be linked directly to a scheme for the acquisition of other land either by compulsion or agreement. Decoupling is the word that the professionals have been using. The reason for this change is that there may be situations where an acquiring authority needs to take only temporary possession of land. For example, an acquiring authority may need temporary possession of land for a contractor’s compound when they have been able to buy all the land needed for their scheme by agreement, or they may need access to land temporarily to maintain a highway. That is the impact of some of our amendments.
Government Amendments 105 and 106 are consequential on Amendment 66; they simply remove definitions of terms that are no longer required. Non-government Amendments 65, 68 and 72, which were tabled by the noble Lord, Lord Shipley, also seek to remove the requirement for the temporary possession to be directly linked to a compulsory acquisition scheme. I hope, therefore, that he will agree they are unnecessary in the light of the Government’s amendments.
On Amendment 69, tabled by the noble Lords, Lord Beecham and Lord Kennedy, I agree with the noble Lord that we need to ensure that the interests of leaseholders are adequately protected in introducing this new power. However, I believe that that amendment is not needed, because we have already built in a safeguard which would deliver the same outcome that is requested, but in a more flexible way.
Amendment 69 would restrict the temporary possession power so that it could never be used when a leasehold interest would have less than a year to run after the land was handed back, even if that was the preference of the leaseholder, the freeholder and the acquiring authority. It sounds counterintuitive to prohibit that. The effect of this amendment would be that, if the land was essential to the delivery of the scheme, the acquiring authority would instead be driven to exercising the more draconian power of compulsory acquisition of the land permanently. However, as I have said, we have already built in a safeguard for leaseholders, which I believe will achieve the outcome that noble Lords are seeking. The safeguard is in Clause 17(3), which allows leaseholders to serve a counternotice preventing the acquiring authority taking temporary possession of the land. On receipt of the counternotice, if the land is essential to the delivery of the scheme, the acquiring authority can proceed as if the land were subject to compulsory acquisition and take the land permanently. In these circumstances, the leaseholder would, of course, be compensated for both the value of his lease and losses caused by reason of being disturbed from possession of the land taken. I believe this is a neater solution, which gives leaseholders the flexibility to decide what is right for them.
Amendment 73, tabled by the noble Lord, Lord Shipley, seeks to clarify what will happen when a tenant’s land is subject to compulsory purchase. As government Amendment 103 seeks to do the same thing—although our approach is different—I will speak to both amendments together. Government Amendment 103 provides that the terms and obligations under the tenancy, with the exception of the payment of rent and the length of the tenancy, will be disapplied to the extent that the temporary possession prevents reasonable compliance with them. Any expenditure which a leaseholder incurs as a result of the temporary possession would be claimed back from the acquiring authority. The noble Lord’s amendment, in contrast, provides that all the terms and obligations are unenforceable for the period of temporary possession.
The reason we have disapplied the terms and obligations only to the extent that the temporary possession prevents reasonable compliance with them is that there may be circumstances in which only a small part of land subject to a lease is also subject to temporary possession. In these situations, there may be no easy way in which to separate out the terms that relate to the land subject to temporary possession from terms that relate to the remainder of the land.
The second point of difference is the exclusion of the payment of rent and the length of the tenancy. We have done this because, again, where only a small part of a tenant’s land is required, making these terms unenforceable could result in a tenant having to pay an uncertain portion of the rent for the land not subject to temporary possession. The loss that would be compensated is not the rent payable for the existing lease, but any rent payable for alternative premises, as that is the loss that has been caused. Under the Government’s amendment, responsibility for paying the rent for the land under temporary possession remains with the tenant. However, the tenant will be entitled to claim compensation from the acquiring authority in relation to any expenditure which a leaseholder reasonably incurs as a result of the temporary possession.
The other point of difference with the noble Lord’s amendment is to do with proposed subsections (4) to (6), which make provision with regards to those who have protected tenancies under the Landlord and Tenant Act 1954. Occupiers with such a protected tenancy have a right to apply for the grant of a new tenancy, provided they remain in occupation. However, if their land is subject to temporary possession they will no longer be in occupation and will lose this right. Government Amendment 103 and non-government Amendment 73 both seek to preserve this right to renew the tenancy. However, in doing so, the government amendment imposes a requirement for the tenant to confirm in writing to both the landlord and the acquiring authority that they intend to resume occupation after temporary possession. I think it is clear that both amendments are after the same thing: greater clarity for tenants and landlords as to what happens during the temporary possession period, including the treatment of rent.
Finally, in this group, I will respond to Amendment 75, tabled by the noble Lord, Lord Beecham. The noble Lord made a very valid point, which I entirely agree with, that where the Government intend to provide guidance on the use of a new power, that guidance should be available by the time the provisions come into force. That is, of course, the Government’s intention. The particular element of the temporary possession provisions that the noble Lord has identified is in Clause 15(3)(a), which will allow both temporary possession and compulsory acquisition powers to be obtained concurrently for the same piece of land.
Although this so-called doubling-up of temporary and permanent powers can be authorised, it will not give acquiring authorities carte blanche to double up in all cases. It would not be fair to claimants if there was not a very good reason for an acquiring authority to make an order which included this doubling-up. It would not be wise to anticipate precisely what might be in the guidance at this point, but as I have just said, there would be a high bar to justify doubling-up. The most likely circumstances would be linear transport projects where the final design is not complete by the time compulsory powers are obtained. We know of a handful of orders in the last dozen years where this has been authorised, such as the Docklands Light Railway and the Nottingham tramway.
As for compulsory acquisitions, each case would be considered on its individual merits at a public inquiry before an inspector, and considered by the relevant Secretary of State, before a decision was made whether doubling-up was justified in the public interest.
I hope that I have been able to reassure the noble Lord, Lord Beecham, with a firm undertaking that the Government will be seeking views on the draft guidance and will publish it before these provisions come into force. I apologise to the Committee for a somewhat lengthy oration on these amendments, but there are quite a few of them. When the time comes, I will move government Amendments 66, 67, 70, 71, 74, 103, 105 and 106. In the meantime, I ask the noble Lord to withdraw Amendment 65 and for noble Lords not to press Amendments 68, 69, 72, 73 and 75.
Lord Shipley
I am grateful to the Minister for his reply. I draw his attention to two facts. First, the Government have brought 34 amendments for consideration this afternoon, this Bill having passed in the other place. Secondly, some of them were tabled quite late, and after I tabled my amendment. I understand the need for all this to be brought together for Report, so I beg leave to withdraw the amendment.
Lord Young of Cookham
(a) has a power conferred by an Act to acquire land compulsorily (with or without authorisation from another person), or(b) is or has been, at any time, otherwise authorised to acquire land compulsorily.”
Lord Young of Cookham
Lord Young of Cookham
Lord Young of Cookham
Lord Young of Cookham
My Lords, we now move to the second group of amendments on temporary possession. Clause 15 deals with the procedure for authorising temporary possession of land, requiring it to be authorised by the type of authorising instrument that would be required for the permanent acquisition of land—for example, a compulsory purchase order.
Government Amendments 76 to 79 remove redundant wording in Clause 15(2) as a consequence of government Amendment 66 to Clause 14(1). Government Amendments 80 to 82 amend Clause 15(3) to clarify that the same land may be subject to both temporary possession and compulsory acquisition powers concurrently. We debated the need for guidance relating to the clause a moment ago on Amendment 75, tabled by the noble Lord, Lord Beecham, so I shall not repeat what I said about that. Government Amendments 83 to 85 and 87—the last also, happily, endorsed by the noble Lord, Lord Shipley—all remove redundant provisions in the context of the previous amendments. For example, Amendment 87 refers to “relevant land”: this is no longer needed because the concept of relevant land is removed by Amendment 66. I beg to move.
Lord Shipley
My Lords, Amendment 86 is in my name, and I want to ask the Minister a question. Clause 15 sets out the procedures for authorising temporary possession. It is not clear from the clause whether it is intended that there be a time limit for the life of a temporary power—for instance, three years for service of a notice post the confirmation of a compulsory purchase order. Do the three-year and five-year standards for compulsory purchase orders in statutory instruments apply, and does the power apply to post-construction maintenance during a defect period?
The Government’s amendments to remove superfluous words are helpful. I am not sure whether Amendment 87, which deletes subsection (7), is right—I am having second thoughts about it. I think it is right, but as the relevant land is the land required for the scheme, it seems appropriate to make it clear that temporary possession can be taken after action to secure the land required permanently. I would be grateful for the Minister’s comment.
Lord Young of Cookham
I may need to write to the noble Lord, Lord Shipley, about the specific issue he has raised on Amendment 87 and subsection (7) relating to relevant land. As I said, this is no longer needed, because the concept of relevant land has been removed by Amendment 66, with which we have just dealt. However, I will make some inquiries following his representations.
The noble Lord, Lord Shipley, has proposed in Amendment 86 that Clause 15(6) should be omitted. This is intended to be helpful clarification. It confirms that the authorising instrument—for example, a CPO—does not need to include the dates for any particular period of temporary possession. It would be difficult for an acquiring authority to do that, because it would not know the date of the confirmation at that stage. The cross-reference to Clause 16 points users to the provisions which specify the dates of temporary possession. The Government believe that there is no need for users of this legislation to be deprived of this clarification. He also asked a question about whether CPO powers would expire after a certain period. Again, I will write to him about this when I have made some inquiries. In the meantime, I hope that he will not move his Amendment 86.
Lord Young of Cookham
Lord Young of Cookham
Lord Shipley
My Lords, I shall speak to Amendments 89, 91, 92, 93 and 94 in my name. These five amendments relate to Clause 17, which makes provision for a person affected by temporary possession to serve a counternotice to limit the total period which the temporary possession can last to 12 months in the case of a dwelling and six years in any other case. Leaseholders can also serve a counternotice providing that the acquiring authority may not take temporary possession. Having received the counternotice the acquiring authority must decide whether to accept it, withdraw the notice or proceed to take the land permanently.
As drafted, Clause 17 seems unnecessarily complex. The hope is that the Government might be able to simplify it without losing any of its statutory force. Regarding Amendment 89, Clause 17 applies wherever an acquiring authority gives notice of intended entry on to land for a temporary period to a person who is either the freeholder of the land affected or a leasehold owner. The clauses that follow seem to have a different counternotice procedure, depending on whether it is a freeholder or a leaseholder. So in connection with Amendment 89, is there a need to distinguish between leaseholders and freeholders? This amendment and the consequential amendments seek to avoid that and therefore to simplify the clause.
Amendment 91 refers to Clause 17(3), which allows a leaseholder to give the acquiring authority a counternotice to prevent it taking temporary possession of the land. It appears that this right is not available to freeholders, who can serve only a counternotice limiting the period of temporary possession. Surely, this right should be available to freeholders. This amendment therefore seeks to clarify the matter by stating:
“The owner may give the acquiring authority a counter-notice which provides that the authority may not take temporary possession of the owner’s interest”.
We then have consequential Amendments 92, 93 and 94. Clause 17(10) states that nothing in that clause,
“prevents an acquiring authority acquiring land compulsorily after accepting a counter-notice or withdrawing a notice of intended entry”.
My question is: should a permanent acquisition be available for temporary land unless a counternotice has been served requiring a permanent rather than temporary acquisition? Clause 17(8) is relevant in this respect. Amendment 94 would therefore leave out lines 38 to 40 on page 15. The concern is that landowners could potentially face a period of six years of temporary possession with the acquiring authority then deciding to acquire the land permanently. In the interests of fairness, the land should surely have been acquired permanently in the beginning. Scheme promoters should know how they wish to use the land and whether it needs to be permanently acquired from the outset.
Lord Young of Cookham
My Lords, I thank the noble Lord, Lord Kennedy, for tabling his Amendment 88. I appreciate that his aim in doing so was to make things clearer, an ambition which I fully support. However, on this occasion I do not think that an amendment is necessary because subsection (7) provides that Clause 16 must be complied with,
“in relation to each subsequent period of temporary possession”.
That makes it clear that acquiring authorities can serve more than one notice. Having said that, this is the sort of thing that could usefully be covered in guidance. We will update our compulsory purchase guidance in light of the reforms in the Bill, and in the light of what the noble Lord has said, I will ask for this matter to be looked at again.
Amendments 89 and 91 to 93 deal with the counternotice provisions in Clause 17. These provisions are an improvement on the current temporary possession regimes, which have no counternotice procedure in them. I thank the noble Lord, Lord Shipley, for tabling his amendments. No one would be keener than I to simplify all this, if it were possible so to do. I doubt whether it would be realistic wholly to redraft this clause between now and Report but I endorse his sense of direction. He is quite right to say that there is a difference between the treatment of leaseholders and that of freeholders. This is because the Government believe that there could be a greater impact on leaseholders than freeholders when their land is subject to temporary possession, as the leaseholder may be left with a useless lease at the end of the temporary possession period—for example, when there is only a short period left to run on the lease. We considered this in debate on Amendment 69.
Clause 17(3) affords leaseholders additional protections in these circumstances by giving them the option to serve a counternotice, as the noble Lord, Lord Shipley, said, providing that an acquiring authority cannot take temporary possession of their land at all. However, no such issues arise for freeholders. The justification for the temporary possession of the land will have been carefully considered on its individual merits at a public local inquiry before an independent inspector and confirmed only where it is in the public interest.
Lord Beecham
I would not say that I was unduly disturbed, but I would be grateful if the Minister would comment on it.
Lord Young of Cookham
I am sorry for doing a disservice to the noble Lord.
Amendment 90, tabled by the noble Lords, Lord Beecham and Lord Kennedy, seeks to limit the period of temporary possession of land not occupied by dwellings to three years rather than the six years proposed in Clause 17(2). It is a matter of judgment whether one draws the line at three, six or nine years. The limit of six years is designed to give those affected greater certainty on the total period that non-dwelling land can be subject to temporary possession. Restricting the period to three years, as suggested, would limit the usefulness of this new power, as the lower the upper limit, the more likely it is that an acquiring authority would, on a cautionary basis, decide to take the more draconian and unnecessary route of compulsory, permanent land acquisition instead.
As I said, there needs to be a balance between giving acquiring authorities the power they need to deliver their schemes and ensuring that the interests of those whose land is taken are protected. We consider that an upper limit of six years strikes the right balance. It is an upper limit and, of course, in many cases temporary possession will be for far less time and the issue will not arise. Where possession will need to be for infinitely longer, acquiring authorities might go for compulsory acquisition in the first instance. I assure noble Lords that we can and will keep this under review as the new power begins to take effect. The regulation-making power in Clause 24 will allow the Government to make changes if required. With those assurances and explanations—and with apologies for trying to take a short cut—I ask the noble Lord to withdraw his amendment.
Lord Kennedy of Southwark
My Lords, I thank the noble Lord for his response in respect of Amendment 88. He is entirely correct that the intent of our amendment is just to get clarity as we debate the legislation. With compulsory purchase, I am conscious that there is the risk of lawyers getting involved at a later date and arguing about what something does or does not mean—although I know my noble friend is of course a lawyer, and I would not wish to deprive him of any work. I may be reading it incorrectly but Clause 16(7) appears to refer just to the one, single case. All my amendment sought was to add that you can have more than one. I may well be wrong about this, and the Bill may be perfectly correct, but I would not mind if the noble Lord and his officials looked at it once more before we get to Report. It may well be that guidance is all we need, but we are trying to get absolute clarity so that we do not get any problems in the future on this. Other than that, we are in complete agreement on this clause as it stands.
Lord Beecham
My Lords, speaking as a lawyer, although happily not practising, I see no need to amend the term “injury” to “damage”. Legally, injury embraces damage of all kinds. I would not go to extremes to defend the Government on this or any other occasion, but if the Minister felt disinclined to accept the amendment, I would not dissent from his judgment.
Lord Young of Cookham
I am grateful for this growing cross-party alliance on how to deal with one of the amendments. I shall deal with as much as I can in writing, but some government amendments are tucked into this group which I need to address.
I thank the noble Lord, Lord Shipley, for tabling his amendments, which, as he said, deal with compensation for temporary possession. Clause 19 provides that claimants will be entitled to compensation for any loss or injury which they sustain as a result of the temporary possession. Where the claimant is operating a trade or business on the land, they will be entitled to compensation for disturbance of that trade or business.
I turn to Amendment 95, for which the noble Lord has explained his reasons. I think this comes down to a difference in approach to drafting. The Government have used the term “loss or injury” instead of “loss or damage”, as the noble Lord has suggested. Both terms have been used previously. In this instance, the Government have opted to follow the precedent of Section 20 of the Compulsory Purchase Act 1965.
The important point is that both formulations have the same meaning. I am reinforced in my view by the recent intervention by the noble Lord, Lord Beecham.
On the second part of this amendment, adding,
“as a result of the temporary possession of the land”,
is unnecessary because subsection (1) makes the same point.
Lord Young of Cookham
Lord Young of Cookham
Lord Young of Cookham
“Impact of temporary possession on tenancies etc
(1) Subsection (2) applies where an acquiring authority takes temporary possession under section 14(2) of land subject to a tenancy.(2) A person is not to be treated as being in breach of—(a) any term of the tenancy, or(b) any other obligation associated with the tenancy or the land subject to temporary possession,to the extent that the person cannot reasonably comply with the term or other obligation as a result of the temporary possession.(3) Subsection (2) does not affect terms or obligations about—(a) the length of the tenancy, or(b) the payment of rent.(4) Subsection (5) applies where—(a) an acquiring authority takes temporary possession of land subject to a tenancy to which Part 2 of the Landlord and Tenant Act 1954 (security of tenure for business tenants) applies immediately before the period of temporary possession,(b) the tenancy expires during the period of temporary possession, and(c) prior to the period of temporary possession the tenant notifies in writing both the acquiring authority and the landlord that the tenant intends to resume occupation of the land after the period of temporary possession.(5) For the purposes of Part 2 of the Landlord and Tenant Act 1954 the tenant is to be deemed to continue to occupy the land in accordance with the tenancy mentioned in subsection (4)(b), and any tenancy which succeeds that tenancy, despite the period of temporary possession.(6) But if the tenant notifies in writing both the acquiring authority and the landlord that the tenant no longer intends to resume occupation of the land after the period of temporary possession subsection (5) ceases to apply.(7) In this section, “tenancy” includes a sub-tenancy.”
Lord Beecham
My Lords, I support the amendment in the name of the noble Baroness, Lady Parminter, and speak to Amendment 104A which requires the Secretary of State and Welsh Ministers to make provision for the reinstatement of land at the end of a period of temporary possession. This is not drafted particularly for the benefit of the residents of Aberystwyth or places in the vicinity; it stems from the report of the Delegated Powers and Regulatory Reform Committee which draws attention to a number of issues, only some of which are embodied in this amendment.
In dealing with the issue mentioned in Amendment 104A, the committee regarded it as inappropriate to leave the discussion of whether or not to include provisions about reinstatement in the regulations to the Secretary of State and Welsh Ministers. Hence, it recommended that the clause should be amended to impose the duty referred to in the amendment. However, that was not the end of the committee’s concerns. In particular, it also took issue with Clause 24(2)(a), which it regarded as,
“inappropriately wide and should be redrafted to reflect the narrow policy intention referred to in the DCLG document which explained the power to modify provisions”.
In particular, the committee felt that the power goes much further than the declared objective in the policy document and,
“it would enable the regulations to make substantial changes to Clauses 14 to 26 in a wide range of cases, for example, by excluding the provisions about compensation”.
I confess that the document, only having reached us at the end of January, shortly before the amendments were drafted, ought to have been subject to an amendment specifically dealing with that issue. I do not expect the Minister to respond immediately, but I hope that, before Report, he will indicate whether the Government would be minded to accept the redrafting recommendation referred to by the Delegated Powers Committee. If not, I give notice that we will remedy the omission this evening and table an appropriate amendment.
The committee was clear about the issue that I have raised, but it also makes a more general point about the Secretary of State and Welsh Ministers exercising this novel power, which could potentially have far-reaching consequences without first being required to consult interested parties. It therefore considered a consultation duty even more important, in view of the provision dispensing with the House’s hybrid instruments procedure. That raises issues about secondary legislation that have so often been raised. As I say, I would not expect the Minister to respond to something of which he did not have notice by way of an amendment tonight. I hope that the matter can be resolved en route to Report, but reserve the right to table amendments if it cannot be.
Lord Young of Cookham
My Lords, I shall deal first with the point that the noble Lord, Lord Beecham, has just made. Of course, I have read the report of the Delegated Powers and Regulatory Reform Committee, and there are three relevant recommendations relating to this Bill, two of which he mentioned. We take this very seriously; we are considering all three recommendations very carefully, and intend to respond before Report, so I hope that the nuclear option mentioned by the noble Lord may not be necessary.
I turn to Amendments 104, 104A and 129B. Clauses 14 to 26 of the Bill set out the broad framework for how the temporary possession power will work, establishing protections and providing for the payment of compensation. Further technical provisions will be necessary for the implementation of the temporary possession power. Clause 24 gives the Secretary of State the power by regulations to make further provision in relation to the authorisation and exercise of temporary possession powers where necessary. We will respond on that—and in the meantime we set out in the policy document what we propose to do. There is something there about reinstatement.
On Amendment 104, certain special kinds of land, including land held inalienably by the National Trust, are afforded additional protection under the compulsory acquisition process. This additional protection provides that a compulsory purchase order may be subject to special parliamentary procedure when an objection is sustained to the relevant order by, for example, the National Trust, or when exchange land for that to be acquired cannot be given, perhaps because no suitable land is available. I agree with the noble Baroness, Lady Parminter, that National Trust land should benefit from additional protection under the temporary possession regime; this is also true of those other special kinds of land. The Government have set out their intention to do precisely that in a policy document; we propose to do that through regulations made under Clause 24. Paragraphs 48 to 51 of that document set out more details.
The Government’s proposed approach under temporary possession differs from that under compulsory acquisition. Where the temporary possession of special kinds of land is happening without any associated compulsory acquisition, the special parliamentary procedure would not apply. Instead, the temporary possession will be allowed only when the confirming authority is satisfied that it would not cause serious detriment to the owners and users. Such serious detriment could include, for example, irreparable damage to the land concerned, or blocking access to other land or assets. When both temporary possession and compulsory acquisition of a special kind of land is included in the same order, and the compulsory acquisition is subject to special parliamentary procedure, the temporary possession land would also be subject to the special parliamentary procedure. However, I have listened with great interest to the case made by the noble Baroness, Lady Parminter, who raises an important issue, and the Government will, therefore, give further careful consideration to it before confirming our approach, to which I have just referred.
Lord Young of Cookham
Lord Kennedy of Southwark
My Lords, I will be brief. In this group, I have Amendments 116, 117, 118 and 119. The first three seek to leave out “highway” on page 24, lines 14, 16 and 17, and insert “transport project”. We thought that would make the issue clearer. New Sections 6D(3), 6D(4)(a) and 6D(4)(b) in Clause 27 use “transport project” and I therefore did not understand why later in the same clause it was referred to as a highway scheme. Can the Minister explain why that is the case and if my amendments are not necessary? If they are, I hope he will accept them as it is odd to move from the wider and encompassing definition of transport project to the narrower definition of “highway”.
Amendment 119 seeks to provide further clarity by removing “announced”. In these sorts of schemes you get into arguments about when things were announced so we thought it would be much clearer to put,
“first proposed in consultation with the public”.
There will be an actual date on which a consultation is started and when papers and a clear plan are sent out. We thought this would be much better as we do not want disputes later because everyone is arguing about when the scheme was formally announced. That is the purpose behind the amendment and I look forward to the Minister’s response.
Lord Young of Cookham
My Lords, we have moved on to the no-scheme principle. The problem with this principle is that since it was first established it has been interpreted in a number of complex and often contradictory ways. Clause 27 is intended to clarify the position. It creates a statutory no-scheme principle and sets out a series of clear rules to establish the methodology of valuation in the no-scheme world. It also extends the definition of the scheme to include a relevant transport project in circumstances where land acquired in the vicinity for a regeneration or redevelopment scheme is facilitated or made possible by that project. We are extending the scheme because we want to ensure that an acquiring authority should not pay more for the land it is acquiring by reason of its own or someone else’s public investment.
I am grateful to the noble Lord, Lord Shipley, for explaining the need for Amendment 107. The Committee will have observed that it is similar to government Amendment 108, so I am pleased to say that I am in complete agreement with the noble Lord. It is entirely correct that increases, as well as decreases, in the value of the land caused by the prospect of the scheme should be disregarded.
Amendment 109 was also proposed by the noble Lord, Lord Shipley. He argues that the words “in particular” should be omitted from the introduction to the rules defining the no-scheme world as they imply that some other rules might also be in play. He argues that the rules set out in new Section 6A should be an exclusive list. The Government’s expectation is that in the vast majority of cases the application of the rules as set out will be sufficient to establish the no-scheme world. There may, however, be rare cases in unforeseen circumstances where the Upper Tribunal considers that the application of the rules alone would not give a fair result. Retaining the phrase “in particular” gives the tribunal sufficient flexibility in these rare cases to fall back on the underlying no-scheme principle set out in new Section 6A(2) and its own common sense to arrive at a fair outcome. While I appreciate the noble Lord’s point about the need for clarity, the Government’s view is that the Upper Tribunal should retain this flexibility in order to reach a fair outcome in such unforeseen circumstances.
With Amendment 111, tabled by the noble Lord, Lord Shipley, and government Amendment 112 we now move to consideration of the rules themselves. The noble Lord, Lord Shipley, argues that Rule 4 is unnecessary and should be omitted. The Government’s view is that it remains necessary in order to complement Rule 3. Rule 3 assumes that there is no prospect of the same scheme or any other project to meet the same or substantially the same need as the scheme underlying the compulsory purchase. Rule 4 assumes that there is no prospect of any other scheme taking place on the land concerned. As currently drafted, this is too wide, so Amendment 112 restricts Rule 4 to disregarding only those schemes that could be undertaken only by the exercise of statutory functions or compulsory purchase powers. This means that the prospect of schemes brought forward by the private sector would still be considered as part of the no-scheme world. This is a fine point of valuation practice. In the light of what the noble Lord said, I think that the Government should further consider this issue very carefully with the expert practitioners who may conceivably have been briefing the noble Lord to find a solution.
Amendments 116, 117 and 118 were tabled by the noble Lord, Lord Kennedy. New Section 6D(6) specifies that when the scheme to be disregarded under Rule 3 is a highway scheme, the reference to “any other project” includes another highway scheme to meet the same need as the actual scheme. This provision reflects the planning assumption in Section 14(5)(d) of the Land Compensation Act 1961. It is important that the assumptions for the no-scheme world and the planning assumptions that should be applied in that no-scheme world should be consistent. The current Section 14 was substituted by the Localism Act 2011. A similar provision was added to the original version of Section 14 by the Planning and Compensation Act 1991. The noble Lord put forward a powerful case that this clarification could apply equally to other transport projects. If it did, Section 14 would also need to be amended to keep the two sets of assumptions in step. I think that this is another issue which the Government should reflect on with expert practitioners.
Turning to the definition of the scheme that must be disregarded before compensation may be assessed, government Amendments 113, 114 and 115 make some small adjustments in the context of the extension of the scheme to relevant transport projects. These have arisen from discussions between the Government and the Greater London Authority and Transport for London, which have only recently been concluded. I am very happy to give details if noble Lords would like them, but as they are relatively small adjustments, I propose to skip that part of the text.
I now return to the amendments tabled by the noble Lord, Lord Kennedy. Amendment 119 seeks to clarify new Section 6E(3) which disapplies Section 6E for land bought after a relevant transport project was announced but before this Bill was published. If such land were to be included in a redevelopment or regeneration project in the vicinity of that relevant transport project, it would be valued as if the relevant transport project was not part of the scheme to be disregarded.
The noble Lord’s amendment is much more specific than the Bill as currently drafted. The Government’s view is that such precision may not be necessary. The provision refers to an event that has already happened, and it is quite possible that a project may have been announced in some other way than that specified by the announcement. If so, it would be unfair to restrict this provision because the announcement did not fit within the somewhat narrow definition proposed.
However, having said that, it might be possible to clarify, perhaps in guidance, exactly what is meant by an announcement. That is certainly something that I would like to reflect on. I invite the noble Lord, Lord Shipley, to withdraw Amendment 107.
Lord Shipley
My Lords, I beg leave to withdraw Amendment 107. I look forward to reading carefully in Hansard what the Minister has said, with a view to potentially coming back to this on Report.
Lord Young of Cookham
Lord Young of Cookham
Lord Young of Cookham
“(a) section 333ZA of this Act, and(b) paragraph 19(1) of Schedule 11 to this Act or Part 12 of the Highways Act 1980,”
Lord Young of Cookham
My Lords, we now move on to Clause 31, which deals with the joint acquisition of land by the Greater London Authority and Transport for London, and whose purpose I will briefly explain.
At the moment, for the GLA to bring forward a comprehensive redevelopment scheme in London involving both transport and other development, two compulsory purchase orders are needed: one promoted by the Greater London Authority for the regeneration or housing elements of the scheme, and the other promoted by Transport for London for the transport or highways elements of the scheme. This division makes no sense. It adds complexity and delay to the process and causes confusion among those most affected. Clause 31 removes this unnecessary division and allows the Greater London Authority to promote joint compulsory purchase orders with Transport for London and vice versa. It inserts new Section 403A into the Greater London Authority Act 1999, which enables either the Greater London Authority or Transport for London, or both, to acquire all the land needed for a joint transport and regeneration or housing scheme on behalf of the other.
The government amendments make two changes to the provisions as currently drafted. Amendments 120, 121 and 123 enable the Greater London Authority to promote a joint compulsory purchase order with Transport for London using Transport for London’s compulsory purchase powers as a highway authority under the Highways Act 1980 in addition to its general compulsory purchase powers under the Greater London Authority Act 1999.
Government Amendment 124 delivers the second change. New Section 403B of the Greater London Authority Act 1999 will enable a mayoral development corporation to promote a joint compulsory purchase order with Transport for London for a joint transport, including a highway, and regeneration project as an alternative to the Greater London Authority itself. Having set up a mayoral development corporation to regenerate an area, such as at Old Oak Common, the GLA would not normally seek to use its own powers in that area. I hope the Committee will agree with me that these are sensible provisions. With that explanation, I beg to move government Amendment 120.
Lord Kennedy of Southwark
My Lords, I have Amendments 122, 125 and 126 in this group. I will speak to them very briefly and look forward to the noble Lord’s response to the points I raise. Amendments 122 and 125 seek to make the situation clearer and to avoid the suggestion that a beneficial interest may exist, by removing the words,
“on behalf of the other”.
We do not think those words are necessary, and I propose to remove them in Amendments 122 and 125.
Amendment 126 would insert a new subsection into Clause 32, which would ensure that the GLA, TfL or a mayoral development corporation has the power to acquire land compulsorily for purposes under the Housing and Planning Act if it was previously able to do that under Sections 403A and 403B of the Greater London Authority Act 1999. I hope that we again get a positive response from the Minister accepting that I have highlighted an important issue to which, if nothing else, the Government will respond on Report.
Lord True (Con)
I see the wisdom of what is proposed in these amendments, reinforced by government Amendment 124, where an MDC is involved. I take it that it means only one compulsory order so that TfL is able to acquire land to advance housing projects, et cetera.
This may be my ignorance or otiose, but it appears that the way that this is drafted, based on the Greater London Act, TfL could exercise this new authority only in concert with the GLA or an MDC. However, there are other development authorities and planning authorities in Greater London: the London boroughs. I can envisage circumstances where there is neglected land alongside on a red route where TfL is the highways authority and a borough has an interest, but it may be too small to attract the interest of the Mayor of London. I simply raise the question to seek elucidation. It may not be necessary. Will it be possible when this is liberalised for TfL to use this power in concert with a borough without needing to go via the GLA or to set up a mayoral development corporation?
TfL gets cross when I say this in your Lordships’ House, but it is not always the most nimble authority when it comes to development. Some boroughs might be able to encourage it a little. I do not expect an answer now, but perhaps my noble friend will consider the need for such flexibility if TfL is to be given this new partnership power to acquire.
Lord Young of Cookham
My noble friend Lord True invites me to go way beyond my negotiating remit by extending to London boroughs the powers under the clause, which is intended to remove an existing duplication. However, I will of course consider his suggestion.
Lord Kennedy of Southwark
The noble Lord, Lord True, makes an interesting point. I am a member, although not the leader, of another London borough council. I think he makes a valid point which the Government could look at.
Lord Young of Cookham
It is indeed a valid point, but it goes wider than the narrow issue before us. As a former member of a London borough, albeit in 1968, I have an interest in enabling the boroughs to fulfil their full potential. I shall make some inquiries and write to my noble friend.
I thank the noble Lord, Lord Kennedy, for tabling Amendments 122, 125 and 126. They deal with two different clauses—Clauses 31 and 32—but as Amendment 126 is consequential on Amendments 122 and 125, I shall deal with them together.
I shall briefly explain what Clause 31 does. The Housing and Planning Act 2016, which will be fresh in the memory of many Members of the Committee, extended the statutory power to override easements and restrictive covenants when undertaking development to all bodies having compulsory purchase powers. Clause 32 amends this power to ensure that it operates as intended for the GLA and Transport for London and brings land acquired by their landholding subsidiary companies within the scope of the powers so that development on that land is not hindered.
I turn to the noble Lord’s Amendments 122 and 125. The Government’s intention in bringing forward the measure in Clause 31 is to allow the Greater London Authority or a mayoral development corporation and Transport for London to use their powers more effectively by allowing them to promote joint orders, as I explained. The amendments the noble Lord is proposing go beyond that and are not quite as innocuous as the noble Lord implied. They would effectively allow both organisations to acquire land for purposes for which they have no statutory power. For example, they would allow Transport for London to acquire land compulsorily for housing or regeneration purposes. This raises broader issues about competence. For those reasons, the Government do not think they are appropriate. It is a key principle of a compulsory purchase system that acquiring authorities should be allowed to acquire land by compulsion only for purposes associated with their statutory functions. Housing is not a statutory function of Transport for London.
The noble Lord’s Amendment 126 relates to the power to override easements in the Housing and Planning Act 2016 and appears to be consequential on Amendments 122 and 125 being acceptable, which, for the reason I have outlined, I am afraid they are not. I know it will come as a disappointment, but I invite the noble Lord, Lord Kennedy of Southwark, not to press Amendments 122, 125 and 126, for the reasons that I have given.
Lord Young of Cookham
Lord Young of Cookham
Lord Young of Cookham
“403B Acquisition of land by MDC and TfL for shared purposes(1) This section applies where a Mayoral development corporation and Transport for London agree that the purposes for which they may acquire land compulsorily under—(a) section 207 of the Localism Act 2011, and(b) paragraph 19(1) of Schedule 11 to this Act or Part 12 of the Highways Act 1980,would be advanced by one or both of them acquiring land for a joint project.(2) The purposes for which the Mayoral development corporation may acquire land compulsorily under section 207 of the Localism Act 2011 are to be read as if they included the purposes for which Transport for London may acquire land compulsorily.(3) The purposes for which Transport for London may acquire land compulsorily under paragraph 19(1) of Schedule 11 to this Act or Part 12 of the Highways Act 1980 are to be read as if they included the purposes for which the Mayoral development corporation may acquire land compulsorily. (4) The Mayoral development corporation and Transport for London may agree that one of them is to acquire land on behalf of the other.(5) Where subsection (4) applies, a compulsory acquisition is to proceed under—(a) section 207 of the Localism Act 2011 if it is agreed that the Mayoral development corporation will acquire the land, or(b) paragraph 19(1) of Schedule 11 to this Act or Part 12 of the Highways Act 1980 if it is agreed that Transport for London will acquire the land.(6) Subsection (7) applies where—(a) the Mayoral development corporation and Transport for London both propose to acquire land compulsorily for a joint project, and(b) the proposed compulsory acquisitions require authorisation by different confirming authorities.(7) The proposed compulsory acquisitions are to be treated as requiring the joint authorisation of the confirming authorities.(8) The Mayoral development corporation or Transport for London may acquire land by agreement for the same purposes as those for which that body may acquire land compulsorily by virtue of subsection (2) or (3).(9) The joint project mentioned in subsection (1) is to be treated as the scheme for the purposes of the no-scheme principle in section 6A of the Land Compensation Act 1961 (impact of scheme to be disregarded when assessing value of land for compulsory purchase).””
Lord Kennedy of Southwark
My noble friend Lord Beecham and I fully support the amendment proposed by the noble Lord and look forward to a positive response from the Government on it.
The noble Lord mentioned Millwall Football Club. A couple of weeks ago, when the noble Lord, Lord Young, was speaking to an order on overview and scrutiny committees in combined authorities, I put it on record that I did not think the council got it quite right, to say the least. Thankfully the CPO has now been withdrawn and the council has made it clear that whatever goes ahead in future will do so only with the involvement and agreement of the club, local businesses and the local community. I was very pleased with that, and pay tribute to my overview and scrutiny colleagues for their work to prise information out of the council to enable them to convince the mayor and the cabinet that that was the way to proceed. I also pay tribute to the campaigners, fans, supporters and the club. We certainly had a lot of unhelpful publicity in recent weeks, but overview and scrutiny, in particular, did a very good job.
Lord Young of Cookham
My Lords, the noble Lord, Lord Cameron, argued eloquently for a comprehensive review of the compulsory purchase system, supported by the noble Lord, Lord Kennedy. I listened to the very pertinent questions that the noble Lord, Lord Cameron, said needed to be addressed, including international comparisons, looking at marriage values of freehold and leasehold and all the other issues, and I read the first line of his amendment, which states that by the end of next year we have to complete a review and bring forward proposals. It seems to me a mammoth task to embrace all the questions that he has raised—of course there may be others—within a very challenging timescale.
The advice that I have is that, were we to undertake this review, it would take three years and we would end up with 250-plus clauses. I do not know about other members of the Committee, but 24 CPO clauses seems to me quite a lot. Then there would be a number of schedules. There is no realistic prospect of doing that within the timescale that the noble Lord suggests. However, I recognise that there is a strong desire among many for the compulsory purchase system to be simplified. We have heard speeches to that effect during our proceedings. As my honourable friend the Minister for Housing and Planning said in the other place, he has some sympathy with that, but, as I said a moment ago, a comprehensive review would be a huge undertaking. While the Government do not rule it out completely, we would need very careful consideration before we took it forward, and there would need to be clear consensus on its terms of reference and objectives.
I appreciate that this does not go nearly as far as the noble Lord has suggested, but the Government have been tackling specific issues within the CPO regime which practitioners have identified as causing problems, and we have tried to do this in the Bill by introducing the temporary CPO processes and rationalising the Greater London Authority and TfL powers, as well as by clarifying the no-schemes valuation process. We hope that that will make a real, practical difference on the ground and allow the compulsory purchase system to operate more effectively.
It is relevant to mention briefly the White Paper published yesterday, Fixing Our Broken Housing Market, because it flags up two further areas, which I am sure that the noble Lord would want to add to his list. First, there is the role that the CPO could play in helping to kickstart development on stalled housing sites. The White Paper sets out our intention to consult on new guidance encouraging local authorities to use their existing compulsory purchase powers to support the build-out of stalled sites. Secondly, the White Paper sets out the Government’s intention to investigate whether auctions, following the taking of possession of the land, are sufficient to establish an unambiguous value for the purposes of assessing compensation payable to the claimant when the local authority has used its compulsory purchase powers to acquire the land. Furthermore, the White Paper also makes it clear that we will continue to keep compulsory purchase under review and notes the Government’s willingness to consider representations on how the process might be reformed further to support development.
As I said, we have an open mind on the need for further reform—but I hope that, in the meantime, noble Lords will agree that we should not delay progress on delivering the reforms that we already have in hand, including those in the Bill. So although I have enormous sympathy with the noble Lord’s amendment, it would be unrealistic to expect the Government to support it.
Lord Cameron of Dillington
My Lords, I thank the Minister for his response and the noble Lords, Lord Kennedy and Lord Beecham, for their support. The Minister seemed to hint that he is willing to accept the principle of the amendment; that is how he started off. I accept that it might take longer than we had anticipated. To be honest, until I came to write my few words, I did not know how many questions I was going to find in the maelstrom of information that there is out there. I believe that it really would be worth doing, if only to consolidate the legislation list that I read out. As the Minister rightly said, there are probably even more questions than those that I discovered. I look forward to further conversations on this point and hope that, sooner rather than later, the Government will address this area with seriousness. I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, Amendment 128 is grouped with 129, both of which stand in my name.
Amendment 128 seeks to clarify the application of Section 31 of the Housing Act 1985 to TfL or its subsidiaries to dispose of their surplus land for housing development where that is considered appropriate as long as the price obtained is,
“having regard to all the circumstances of the case … the best that can reasonably be obtained”.
The amendment uses the wording of Section 31 of the Housing Act 1985 and contains a restriction in paragraph 29 to Schedule 11 of the GLA Act 1999 to ensure that the powers to sell and develop land for housing are consistent in this context. Amendment 129 is similarly worded and seeks to ensure that there is consistency between the TfL and the GLA in this regard. I look forward to the Minister’s response. I beg to move.
Lord Young of Cookham
My Lords, this will be my last contribution to this exchange. I am happy to end on a more consensual note than was the case on some of the earlier contributions.
Amendments 128 and 129 in the name of the noble Lord seek to make new provision in the Greater London Authority Act 1999, which would amend the powers of Transport for London and the GLA to dispose of land.
Amendment 128 seeks to give Transport for London the flexibility to dispose of land for housing, even if a higher value use was available, provided the best consideration reasonably obtainable for housing use had been achieved. To support this aim, Amendment 128 would also remove the requirement for TfL to,
“act as if it were a company engaged in a commercial enterprise”,
when disposing of land for housing.
Amendment 129 would make related provision in respect of the GLA. It would enable the GLA to dispose of land for housing without obtaining the Secretary of State’s consent, even if a higher value use was available, provided that the best consideration reasonably obtainable for housing use had been achieved.
I am very sympathetic to the intention of these amendments of providing flexibility to ensure that we can prioritise land for housing development. However, the legal issues involved are not entirely straightforward, and I think the public interest would be best served if a meeting was held between the Government, the GLA and TfL before Report to consider this further. With the reassurance that I will facilitate such a meeting, I hope that the noble Lord might be prepared to withdraw the amendment.
Lord Kennedy of Southwark
I thank the noble Lord very much for that positive response to these two amendments. On that basis, I am very happy to withdraw the amendment and look forward to a very fruitful meeting between the various parties.
Lord Beecham (Lab)
My Lords, in moving Amendment 129A which stands in my name, I wish to speak also to the proposition that Clause 38 should stand part of the Bill. Both these provisions stem again from the report of the Delegated Powers and Regulatory Reform Committee. My amendment refers specifically to a requirement for the Secretary of State to consult Welsh Assembly Ministers—the noble Lord might be included for this purpose—before making regulations under Clause 38, or Section 38 as it will be when the Bill is enacted. The committee refers to the wording of Clause 38, which confers power on the Secretary of State to make such provision as he,
“considers appropriate in consequence of any provision”,
in the Bill. That is a very wide-ranging power. It includes, as the committee points out, Acts of Parliament of course, but also measures or Acts of the National Assembly of Wales. A justification of a kind is provided in the accompanying memorandum, which the committee quotes as concluding that,
“it is considered prudent for the Bill to contain a power to deal with these in secondary legislation”.
But as the committee points out,
“the Bill makes no provision for any procedure in the Assembly when the power is used to amend primary or secondary legislation enacted by the Assembly or Welsh Ministers … there is not even a duty to consult Welsh Ministers when amending Welsh legislation”.
That is an extraordinary position to have got into. The committee goes on to point out:
“Clause 2 of the Wales Bill provides that the UK Parliament will not normally legislate with regard to devolved matters without the consent of the Assembly”.
However, that appears to be feasible under this Bill as it presently stands. As the committee notes:
“The Constitution Committee have raised similar concerns”,
and it therefore considers that the power should be amended to impose,
“an obligation to consult Welsh Ministers”.
That is what my Amendment 129A does.
There is a proposal to remove the whole of Clause 38—
Lord Bourne of Aberystwyth
With respect to the noble Lord, Lord Beecham, that is in a different group.
Lord Beecham
I beg your pardon—it is grouped with this on the paper I have here. I will not make that point now but will deal with it when we get to that group. I beg to move Amendment 129A.
Lord Thomas of Gresford (LD)
My Lords, I speak in support of the noble Lord, Lord Beecham, on Amendment 129A. I also speak, as a member of the Delegated Powers and Regulatory Reform Committee, to express our surprise that there was no provision even for consultation, with the Welsh Assembly, when proposed changes to an Act or secondary legislation are made. As I understand it, if it is an Act, there would normally be a legislative consent Motion; if it is secondary legislation, a consent Motion. That was the original provision, and I assume it is still the same. The noble Lord, Lord Bourne, fortunately, is an expert in this field.
I can only assume that this is an accidental omission, as I cannot see any policy in it. It seems to me ludicrous that a Secretary of State could, with a stroke of the pen, without any consent in Wales and without any consultation, simply amend the Act. I shall speak further on the clause stand part debate in a moment.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord, Lord Beecham, for moving this amendment and the noble Lord, Lord Thomas of Gresford, for speaking in relation to this issue as well. To deal with the situation in its entirety, I will need to look back to the provisions in the Wales Act 2017. The noble Lord, Lord Thomas of Gresford, may recall that we had a similar issue there—I think he was in his place when we discussed it. The noble and learned Lord, Lord Judge, will certainly recall it
To put this in context, first, I make the point that any amendments here—this anticipates what we will be discussing in the next debate—have to be consequential, which limits it to matters that arise in the legislation and are consequential. Secondly, in these cases there are always minor issues. I think this has universally been the case—I have yet to be shown an example otherwise, and I have checked quite a few. In the context of the Wales legislation, it was anticipated that occasionally the wrong terminology would be used. For example, parish councils exist in England, but they are community councils in Wales, and this is about things of that nature, which one would not wish to have to bring back for primary legislation. That is not the sort of issue that should be in primary legislation.
In the context of the Welsh position, it is also worth noting that not only is there power in the Wales Act to amend legislation in the National Assembly for Wales, but it also operates in the other direction, giving the National Assembly—effectively, Labour Welsh Ministers —the opportunity to amend our legislation. I appreciate that not all noble Lords were steeped in the process of the Wales Bill. In practice, as is confirmed by an exchange of letters between the Secretary of State for Wales and the First Minister, Carwyn Jones, on which I hope to expand in a letter to noble Lords summing up what has happened in today’s Committee, where we identify an issue that needs a minor amendment, we notify both the First Minister and the Presiding Officer, the Speaker in the National Assembly, who, if she wishes —it is a she at present—can draw it to the Assembly’s attention. Of course, under devolved arrangements, it is a matter for her and the National Assembly as to what they do. So it is a reciprocal arrangement.
I anticipate that the noble and learned Lord, Lord Judge, will say that, from a legal purist’s point of view, that is not ideal, but from a pragmatic point of view of dealing with minor amendments—if noble Lords can find anything major that is dealt with in legislation of this nature, I should be very interested to see it, because that would be an outrage. It is a tidying-up exercise. I hope that we can translate this to the Bill. I am happy to look at this point and deal with it in correspondence, but it is a common-sense approach to what is a relatively minor issue. With that, I ask the noble Lord to withdraw his amendment. I am happy to discuss it with him and other noble Lords afterwards, but I put the substance of how this operates in the context of Wales, because I think there is a read across, and we would do something identical, mutatis mutandis, under the Bill.
Lord Thomas of Gresford
My Lords, if that is the case and it is the practice to write to the First Minister and Presiding Officer of the Assembly, why not have that in the Bill so that there can be no slipup, if that will inevitably happen and is required to happen? It seems common sense that it should be in the Bill. An exchange of letters outlining a practice is in no way a safeguard against the arbitrary use of the power by the Secretary of State, widely drawn as it is.
Lord Bourne of Aberystwyth
My Lords, the noble Lord knows as well as I do the difference between convention and provision in statute. If everything that had been discussed in Committee on the Bill will put in statute, it would be a much longer and more complex piece of legislation. This is about finding the appropriate place to deal with it. As I said, I am happy to share the correspondence and discuss it further, but I do not think it should appear in the Bill.
Lord Beecham
I obviously cannot proceed to a vote on the amendment, but the Minister seems to ignore the explicit statement of the Delegated Powers Committee that,
“the power conferred by clause 38 of this Bill is inappropriate to the extent that it allows the Secretary of State to amend Assembly legislation without at least an obligation to consult Welsh Ministers”.
If that is the practice, I agree with the noble Lord, Lord Thomas, that it should be codified and expressed in the Bill. What is the problem?
Lord Bourne of Aberystwyth
My Lords, with respect, it is asking not for that but for an obligation to consult, and I have said that that is a reasonable request. It is effectively what is happening under the Wales legislation. I have said that we anticipate doing exactly the same, mutatis mutandis, under the Bill, so that, via the Presiding Officer, we are consulting.
Lord Thomas of Gresford
Can the Minister tell us whether there is any provision in a Welsh Bill intended to amend English legislation, or legislation at Westminster, where no consultation is required, in the same way—mutatis mutandis?
Lord Bourne of Aberystwyth
I am sorry, I have made the position clear. I am not sure what point the noble Lord is seeking to make. I am happy to discuss this further. I invite the noble Lord, Lord Beecham, to withdraw the amendment on that basis, but I do not think I can go further than that at the moment.
Lord Beecham
My Lords, there is a certain irony in a Henry VIII clause applying to Wales, given that the Tudor monarchy was based on Welsh lineage. I am also reminded of the lines of TS Eliot in The Hollow Men:
“This is the way the world ends
Not with a bang but a whimper”.
The Bill is ending in the reverse order. We have had a generally mild and constructive discussion for the past four days in Committee, but we end with something of a bang, because if the Government stick to their position, what is being perpetrated in the clause will lead to significant disagreement.
It is particularly important that the Government should listen to advice from the noble and learned Lord, Lord Judge. Others of us have our own views—we perhaps have a political approach, even those of us who are lawyers of a senior vintage, if I may put it that way. To hear the noble and learned Lord’s critique must surely give the Government pause for thought. It is simply unacceptable to insist on a procedure that leaves so much power in the hands of the Government effectively to ignore the obligations which ought to apply in relation to the Welsh Assembly, in this case, but in general to the operation of secondary legislation. In the few years that I have been here, that has time and again been shown to be defective as a mechanism for sustaining proper parliamentary consideration at the appropriate time of important measures with significant implications for various aspects of public policy.
I hope that the Minister will take this back and respond constructively, or secure permission to do so, to the views of this Committee and those of the Delegated Powers and Regulatory Reform Committee and, it appears—for I had not noticed its report—to take the views of the Constitution Committee into account. Obviously, he cannot give us any firm commitments tonight but I hope that, after consulting his colleagues, he will be able to satisfy the House by indicating that. Otherwise, it will undoubtedly have to go to Report and, if necessary, a vote at Report. I hope that we can avoid that because, on the whole, the Bill has proceeded in a fairly consensual way. Most of us have endeavoured to work with the grain of the Government’s policy. It would be a shame if that were in contrast with a rigid decision to stick with very unsatisfactory drafting right at the end of the Bill.
Lord Bourne of Aberystwyth
My Lords, first, I thank the noble Lord, Lord Beecham, very much for his constructive approach and say that it is certainly not my intention not to engage on this between Committee and Report. I think that I indicated that on the previous amendment, which he so eloquently moved. I am very happy to engage with noble Lords.
I would like to say one or two things in response to the debate, and I thank the noble and learned Lord, Lord Judge, who has been totally consistent on this issue and obviously speaks from great experience. Contrary to what my noble friend Lord True thought there is a history to this, not just from going back as far as Henry VIII. Successive Governments have indulged in this. I appreciate that that does not make it right, but I have done a little research with my team. The Housing and Regeneration Act 2008, the Local Democracy, Economic Development and Construction Act 2009 and the Greater London Authority Act 1999, just in this area, have powers wider than those in the Bill. My noble friend Lady Cumberlege referred to how important the Localism Act is; I quite agree but there are wider powers in that Act, which was passed under the coalition Government. I appreciate that that does not make it right, but I want to establish the point that a certain degree of consistency would be welcome on these issues.
That said, I am very happy to engage positively in looking at how we move forward on this matter. I very much echo what the noble Lord, Lord Beecham, said about the way that the Committee has proceeded in a consensual way for the most part. We have not always agreed on issues but we have certainly disagreed agreeably as we have gone through the Bill. I am certainly happy to engage with noble Lords between now and Report in looking at this matter.
We have to keep this in perspective. However, if noble Lords can provide examples of where this provision has been misused in relation to any of that legislation, which, as I say, goes back a considerable way, or examples of where any Government have used it improperly, that would strengthen the case for looking at it further. This measure also does not give the Secretary of State the power that has been suggested; it is subject to an affirmative resolution, which means that it has to be presented to both Houses with a full explanation and carried by both Houses. That said, I understand the points that have been made during the debate. I thank those who have participated: the noble Lord, Lord Thomas of Gresford, my noble friend Lord True and the noble Lords, Lord Stunell and Lord Shipley, as well as my noble friend Lady Cumberlege and the noble and learned Lord, Lord Judge, who put their names to this measure. I also thank the noble Lord, Lord Beecham. Given the assurance I have just provided, I ask noble Lords not to press this measure.
Baroness Cumberlege
My Lords, I thank my noble friend for his response and the noble Lord, Lord Beecham, for his comments. We are trying to get a consensus. During our first debate in Committee, I was described as the hard cop. I really am hard as regards this issue. We have to think very carefully about including a clause such as this. The noble and learned Lord, Lord Judge, said that it was simply not justified, that there had been no attempt to justify it and that there was no control over it. He suggested that this clause could enable a future Secretary of State to repeal a whole Act of Parliament in the future. However, I totally endorse what the noble Lord, Lord True, and other noble Lords have said about the integrity of my noble friend the Minister in the Lords.
My noble friend has said that we ought to look at past experience. I am not interested in past experience. I am interested in the future. I am interested in this Bill and what could be done by a Secretary of State who does not have much integrity. Such a Secretary of State could wipe out the whole of this Bill. That is not respectful to Parliament. We are parliamentarians. We shape, discuss and put forward amendments. We agree and we disagree. In the end, we hope that we produce legislation that is good for this country. My noble friend and I had a very brief conversation outside the Grand Committee in which he talked about successive Governments. I say gently that just because a person has a bad habit does not mean that that habit should be condoned. It should be checked and better behaviour should be encouraged. I encourage the Government to mend their errant ways and follow the path of the righteous. To be righteous is to respect Parliament and not introduce these sorts of dangerous clauses. The noble and learned Lord, Lord Judge, used the words “dangerous” and “unjustified”. Nobody has spoken in favour of this clause. When I read in Hansard the words used by judges and learned people who know the whole system and have worked in Parliament with the Constitution Committee and so on, it sends shivers down my back.
Thursday 23rd February 2017
(7 years, 8 months ago)
Lords ChamberNeighbourhood Planning Act 2017 Read Hansard Text Amendment Paper: HL Bill 101-I(Rev)(a) Amendment for Report, supplementary to the revised marshalled list (PDF, 61KB) - (23 Feb 2017)
16:12 - Division on Amendment 18 - Ayes: 113 / Noes: 107 - Amendment 18 agreed.
This text is a record of ministerial contributions to a debate held as part of the Neighbourhood Planning Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Baroness Cumberlege (Con)
My Lords, I should first declare my interests. I have a legal case pending. I have taken advice from the Clerk of the Parliaments and I have been told that the sub judice rule does not apply in my case. My other interests are in the Register of Lords’ Interests.
It is good to be back in your Lordships’ Chamber. We spent four days banged up in Grand Committee—perhaps that is not parliamentary language, but sometimes it felt like that—where we probed, examined and debated the Neighbourhood Planning Bill. Now that we are on Report we can go further and are allowed to vote on issues of importance.
Although the Bill may appear modest, it affects every community in England. It reflects the foundations of our society, now and in the future. It is not only about building houses, although we know that they are very much needed. It is about building homes, strengthening communities and ensuring that we create better lives for future generations. The public, parishes and local community groups have been inspired by the Localism Act and have set about producing their neighbourhood plans. Throughout our debates we have agreed that this is not a nimbys’ charter. On the contrary, neighbourhood plans have been drawn up by good people suggesting sites for new homes, conscious of the public good.
During the course of the deliberations, the Government’s White Paper was published, as was promised by my noble friend the Minister. In the White Paper we are told on page 17 that the Government is making it easier for communities to get involved and shape plans for their area. A little earlier it says that they are to be put in charge. This is very good news—but the Bill as drafted does not echo these admirable sentiments. On the contrary, it creates a gulf between these fine words and the reality.
In my community—and daily we hear of others— the cherished neighbourhood plan, created, lovingly researched and compiled, is cut to ribbons, first by the examiner, later by the inspector on appeal and lastly by a Secretary of State who cannot resist the temptation to meddle in business which is not his domain. His duty should be to uphold the neighbourhood plan except in the most extreme circumstances.
Throughout all stages of the Bill I have been clear and consistent. As I see it, the Secretary of State for Communities and Local Government is charged to produce policies which he and the Government believe are right for the country. His policy is to build houses speedily and where they are required and to cut the red tape that thwarts developers from developing. He should demand that sites already granted planning permission should be used and that affordable homes must make up a large part of the building programme. That is his remit and I applaud it, but thereafter it is the local planning authorities that should fulfil the desires and petitions of the Secretary of State in the best way they can with the benefit of knowledge of their local area. Furthermore, individual parishes, town councils and community forums, which have even more intimate knowledge of the communities they care about, should then be given specific parameters such as the number of houses required in their parish or bailiwick. They have a key role in determining where, when and what homes are needed. That fulfils their part in the local plan which, as I have said, is encouraged in the White Paper.
Planning is a somewhat opaque discipline. I have said previously that it is unlike medicine, which I know a bit about and which has centuries of scientific research and data to build on. Planning relies on policies, opinions and a plan-based system. I have to say that it is a system which has worked reasonably well in the past. Through my amendments, for which I am grateful to have strong cross-party support, I seek to make the responsibilities of both central and local government crystal clear: each should respect the remit of the other. I have tried to work with my noble friend and his department to see whether we can reach some sort of agreement on this, but, although I have refashioned all my amendments, they are again up for debate because I honestly believe that the Government do not trust the people and are seeking to micromanage local planning matters.
If each side would just stick to their knitting, these amendments would not be needed. If planners fail to deliver, the wrath of the Secretary of State is justified. Where the Secretary of State interferes with the neighbourhood plan he gets, and deserves to get, the wrath and indignation of those of us who have drawn up plans and had them approved by their local community through a referendum. Subsection (1) of my proposed new clause sets out clearly that when the Secretary of State or those appointed by him are exercising their functions under the Town and Country Planning Act 1990 they,
“must seek to uphold any relevant neighbourhood plan”.
In addition, they would have a duty not to override the provisions in the plan unless the land is needed for a national infrastructure proposal. By that I mean that the land is needed for, say, an airport expansion, a major highway scheme or a rail scheme of national importance—we discussed HS2 earlier.
In subsection (2) I have provided that, if that is the case, the Secretary of State should set out his requirement for further housing but that he,
“must have regard to the policies of the neighbourhood development plan”.
In our case, not only were our policies ignored—worse, they were reversed by the Secretary of State. We did not want street lighting because we are in a rural village. We have always opposed street lighting but he has insisted that it should be in place. We did not want five-bedroom houses. I know that they are very lucrative for the developer, but we actually have too many. He has planned them in. We wanted a break between our village and the next, but the parish boundary was ignored. No wonder we are furious.
Ancient boundaries should be respected. Communities want to keep their historic identity. Under subsection (3) of the proposed new clause, if more houses are required, it is not for the Secretary of State to decide where they should be sited but the local planning authority, with the local community. The Secretary of State should not meddle in the minutiae of local planning. He should stick to strategy. That is his remit.
My noble friend Lord Bourne has been very generous and considerate to all noble Lords who took part at Second Reading and in Committee. He has looked at our amendments, he has given his time and he has been very diligent in trying to meet some of our concerns—as has his department. His department has been very courteous and considerate throughout. But I urge my noble friend not to give up now but to think a little bit more about how our system works and where the responsibilities lie. Perhaps he would like to think again about my amendments and see what he can bring back at Third Reading. I beg to move.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, I will say a few words which I think will help the House in the context of my noble friend’s amendment. I am very grateful to her for the time that she has spent with me and my officials and for her championing of neighbourhood planning. However, contrary to the advice that she has had, I cannot say anything about her neighbourhood plan. I wish I could because there are things that I would deploy but the matter is sub judice and subject to appeal.
As I said, my noble friend has been extremely generous with her time on this important matter, meeting me five times in recent days to scrutinise the current framework for neighbourhood examinations, and has put her arguments forward for their reform. I am grateful to my noble friend and the noble Lords, Lord Kennedy, Lord Shipley and Lord Stunell, for the time they have given to work with my department to identify possible solutions to address their concerns. They brought practical experience and wisdom, for which my department has been most grateful.
I will take the opportunity to set out what we are already doing in response to these concerns because that is relevant to this amendment and others. I also want to be clear that I am continuing to look further at this matter and will keep noble Lords informed. It may be helpful if I put this in context. We are consulting in the housing White Paper on what changes may be needed to ensure that consultation and examination procedures for all types of plan-making are appropriate and proportionate. This provides an opportunity for communities and others with direct experience of the examination process to inform any reforms. I take this opportunity to encourage contributions to our consultation. Building on our discussions with my noble friend, we are also considering what additional material to support this consultation could be made available on our website.
I have also been talking directly to examiners to understand what action they will take now, independently of government, to ensure that communities and others have confidence in the examination process. Indeed, I had the first of these meetings yesterday with representatives of the Royal Institution of Chartered Surveyors, which manages the neighbourhood planning independent examiner referral service, and with a number of examiners. The referral service is one of the main providers of examiners used by local planning authorities. I am pleased to inform noble Lords that, in response to our discussions, RICS has committed to producing procedural practice guidance on examination by the autumn for the examiners it works with. The guidance will provide clarity and reassurance that an open and transparent process will be consistently applied to the examination of neighbourhood plans. I will endeavour to supply additional detail to noble Lords who have participated in discussions on the Bill as to how that will pan out.
We will also amend planning guidance to clarify our expectations of local planning authority engagement with neighbourhood planning groups before and during the examination process. We have already made amendments to the Bill in Committee that will enable the Secretary of State to, for example, require authorities to set out how they will provide advice to neighbourhood planning groups on the relationship between a neighbourhood plan and the plans that the authority has prepared or is preparing.
My noble friend and other noble Lords have also highlighted the technical knowledge needed to prepare a neighbourhood plan and the challenges that groups can face without access to specialist skills. We confirmed in the housing White Paper that we will make further funding available to neighbourhood planning groups from 2018 to 2020 and we are continuing to develop the tools and support available to neighbourhood groups. We are already doing more to promote the availability of these tools and resources.
Lord Kennedy of Southwark (Lab)
My Lords, I start my remarks by making my usual declarations. I refer the House to my register of interests and declare that I am an elected councillor in the London Borough of Lewisham and a vice-president of the Local Government Association. I too pay tribute to the noble Baroness, Lady Cumberlege, who has led on this issue with considerable skill right from the start of our deliberations. We are all grateful to her for that.
Everyone who has spoken, with the exception of the noble Lord, Lord Porter, has voiced support for neighbourhood planning. It is right for the Government to set out the policy and parameters—the broad aims of what they want—but it must surely be the job of the local community, local councillors, the parish and local planners working together to set out in the context of that overall policy what should happen locally. The noble Baroness’s amendment would do just that, with a number of sensible safeguards that should give comfort to the noble Lord, Lord Bourne of Aberystwyth. The amendment would place a duty on the Secretary of State to uphold neighbourhood plans, with the proviso that they can be overridden only in exceptional circumstances. The proposed new clause sets out clearly the responsibilities and how matters of national concern would not be frustrated by the neighbourhood planning process, which is a very important part to have in it.
Subsection (2) of the proposed new clause makes it clear that where it has been deemed necessary by the Secretary of State to override the local plans in the requirement to build additional homes, it must be done with regard to the local plan. Again this is a very sensible proviso, as surely we want any changes made locally to be done as sensitively as possible, and not to have some sort of fire sale where everything is up for grabs and no account is taken of the views of local people and the work that has gone into producing the local plan. It should not just be ignored in that respect.
Finally, subsection (3) of the proposed new clause makes it clear that it is the responsibility of the local planning authority, with the local community, to decide where it is best to have any additional required development. That is, as always, making sure the Secretary of State is setting out the broad policy parameters, but it is the local community, local councillors and the planning authority deciding the detail in the context of that broad policy aim.
I agree with many of the comments of the noble Earl, Lord Caithness. The noble Baroness made her case very well. I welcome the points made by the Minister in his helpful comments at the start of the debate, but I am not sure he has gone far enough. The noble Baroness referred to coming back at Third Reading. The Minister talked about policy and guidance and what they are doing in the department, but—perhaps he will come to this in a moment—I did not hear him say what, if anything, he will bring back at Third Reading. I look forward to hearing that.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in the debate on this amendment, particularly my noble friend Lady Cumberlege, who is rightly acknowledged to have worked with great skill, diligence and good humour on this subject. It has been a pleasure to engage with her in this area and to make some progress on the issues we have been looking at.
It may be helpful if I say a little bit to put the Bill in context before I turn to the amendment. It is almost five years to the day since the people of Upper Eden in Cumbria went to the polls to vote on the first neighbourhood plan. Since then, we have witnessed what some have called a quiet revolution around England with more than 2,000 communities taking the initiative to shape the future of their area through neighbourhood planning. During the passage of the Bill, we have listened to some passionate arguments seeking a stronger voice for communities in local planning decisions. Communities are at the heart of this Bill, and I have been keen to respond to that.
Last year, the Government committed to this legislation to give additional strength to neighbourhood planning because neighbourhood plans are a powerful tool that bring with them responsibilities, and it takes significant commitment and determination to produce a plan. I am very keen on this issue, hence my earlier comments about ensuring that there is proper preparation and help in putting together a neighbourhood plan, which I think is where some of the problems arise. I cannot say anything specifically about the situation of my noble friend because it is sub judice, but in general, I think having that assistance at a very early stage will help communities. We will do our level best to ensure that all communities going through this process are aware of the help that is available. As I have indicated, I am happy to continue to engage with my noble friend on this subject, and I will keep noble Lords informed of the progress of those discussions, which have been ongoing and fruitful in many respects. Much of what we are doing here we are able to do without legislative intervention.
There is no doubt about the importance of the issues raised by the amendment moved by my noble friend Lady Cumberlege and supported by the noble Lords, Lord Shipley and Lord Kennedy. However, it would fundamentally change our planning system by removing the ability of those taking decisions to exercise their judgment when considering the planning merits of the case and the evidence for and against a specific development proposal, and the Government could not support that. We need to remember that the essence of planning decisions, particularly those on individual proposals for development, requires choices to be made. There must be freedom for decision-makers to make such choices according to the circumstances of the individual case. I certainly support the ambition behind the amendment to reinforce the primacy of the development plan, which incorporates the neighbourhood plan but is not limited to it. However, this amendment would elevate the policies in a neighbourhood plan above any other policies in the development plan, regardless of the relative weight the decision-maker considers should be afforded to individual policies in the development plan. Furthermore, the amendment makes no allowance for whether the policies in a neighbourhood plan have been kept up to date to ensure that they remain relevant.
To reiterate the point I made in Committee, the law is already clear that decisions on planning applications must be made in accordance with the development plan unless material considerations indicate otherwise.
Lord Mawson (CB)
My Lords, I was not going to speak in this debate, but having listened to the noble Baroness, having spent a large part of my working life in housing estates in the East End of London and having been responsible as a clergyman for dealing with the families of people who suffered from the social and economic devastation of a lot of the housebuilding of the 1960s and 1970s, which has been an absolute disaster, I worry a great deal when I hear politicians on all sides talking yet again about building more and more houses without talking about communities and place making. I am speaking to enforce absolutely what the noble Baroness has said. It is really important that we do not yet again allow the machinery of government, which has not changed since those days, to continue to be in real danger of repeating, with the best will the world, all the same mistakes with developers—many of whom I worked with and who are good people, actually. It is really important that we talk about place making and communities, and not just about building houses.
Lord Bourne of Aberystwyth
My Lords, I thank my noble friend for moving the amendment in the second group, and the noble Lords, Lord Kennedy and Lord Mawson, for their participation.
I can reassure my noble friend that the Government agree that development is about far more than just building homes—a point that the noble Lord, Lord Mawson, has just made very forcefully. It is about creating communities, and the essence of this piece of legislation, as we all affirmed when it was going through Committee, is not just about building more houses, although clearly as a nation we need to do that, but about ensuring that it is done at an appropriate local level and giving strength to communities. That is the essence of this legislation.
The recent housing White Paper is clear that communities need roads, rail links, schools, shops, GP surgeries, libraries, parks, playgrounds and a sustainable natural environment. Without this infrastructure, no new community will thrive, and no existing community will welcome new housing if it places further strain on already stretched local resources. I agree with that general point. It is very central to the legislation.
A key benefit of neighbourhood planning is that it enables local communities to provide a long-term strategy for housebuilding so that they can manage when and where homes are built in their local area. Depending on the local situation, the process may include consideration of the likely impact of proposed site allocation options or policies on physical infrastructure, such as the local roads network, and on the capacity of existing services, which could help shape decisions on the best site choices. That provision of local infrastructure could well justify phasing the delivery of development. It may also require neighbourhood planning groups to consider phasing the delivery of development to ensure that they have a realistic plan for delivering their housing policy within required timescales with the right facilities available for the community.
At this point, I must thank the noble Lord, Lord Kennedy. We are beginning to know each other so well in these exchanges that he is able to speak not only for the Opposition but for the Government—I know he is after my job, but there are limits. Neighbourhood planning groups are already able to phase development. We would encourage that, although it has to be appropriate to the circumstances of the local community. It must be backed up by clear evidence as to why there should be a restriction on when a specific site or sites should come forward for development. It should be evidence based, and we would all accept that. This is because we want as a nation to ensure the proposals are deliverable.
I agree with all the sentiments expressed in the debate, but I remind noble Lords that this facility is available at the moment. Provided it is evidence backed, it makes sense and is what local neighbourhood groups should be doing. The Government firmly believe that these matters are best dealt with by local communities and their local planning authority working together, as they are best placed to make decisions that affect their local area. With that reassurance, I ask my noble friend respectfully to withdraw her amendment.
Baroness Cumberlege
My Lords, I thank the noble Lord, Lord Kennedy, for his support throughout this. It seems to me that phasing is common sense. It does not have to be something that is scientific; it is very specific. I agree with my noble friend that it is up to local people. I am anxious to ensure that there is freedom with the Act, within planning appeals and applications, and that there should be an opportunity for phasing when the local community feels that that is right.
The noble Lord, Lord Mawson, has had real experience of huge developments across the country. He brings a very special quality to those developments in that he understands communities in a way that many of us do not; he knows the real detail. I have heard him speak on many occasions, and he is ensuring that what is happening works well. The noble Lords, Lord Kennedy and Lord Mawson, are right that we have to learn from the past and from when things have gone wrong.
I am grateful to my noble friend Lord Bourne and think that he does feel that there should be opportunities for this phasing to take place, where the local communities want it. I would like some more assurance, perhaps by letter or however he wants to communicate with me, that we can ensure that phasing is available to local communities. Phasing is not part of the way in which some of these neighbourhood plans are now being drawn up, because it is felt not to be appropriate. If we could have some commitment from the Government that it is appropriate, it would give a lot of comfort to a lot of people.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in this part of the debate. I shall deal briefly with the noble Lord’s slightly off-piste points about the housing White Paper. It is open for consultation until 2 May. My honourable friend Gavin Barwell, the Minister of State in the other place, is going round the country publicising it. There is rightly a lot of interest in it as it deals with a lot of things, including the issue, which is part, but not the whole, of the solution—that is, building more council housing. In the last year for which records are available, we have already built almost as much as was built in the 13 years of the Labour Government, as the official statistics will bear out. That is not to say that we should not do more. Many issues are dealt with in that radical White Paper, which I know the noble Lord approves of.
I once again thank my noble friend Lady Cumberlege for tabling these amendments. As a department, we have worked with her on much of what is in them. I thank the noble Lords who have participated in this debate. I thank the noble Lords, Lord Kennedy, Lord Shipley and Lord Mawson, for their important contributions.
Throughout our debate today, and those in the other place, many who have spoken have drawn on their own direct experience of working with communities in support of neighbourhood planning. Noble Lords will know, as I have said, that I cannot comment on the specific situation mentioned by my noble friend because the issue is sub judice. However, I can comment more generally.
We have provided communities with the tools to shape the development and growth of their local area. My noble friend has rightly challenged us to ensure that this opportunity is reflected in communities’ experience on the ground. We are very much in agreement that communities should not feel divorced from decisions about the neighbourhood plan that they have worked so hard to prepare, and that they should be alerted at an early stage if there are fundamental flaws with it. If that is not happening, then clearly a better dialogue is needed. I am a strong believer in dialogue. We have engaged in productive dialogue with noble Lords on this area, particularly with my noble friend, between Committee and Report. We are open to finding an appropriate solution. Part of that solution is ensuring that communities have access to the support and technical advice necessary to prepare a neighbourhood plan. Indeed, that is central. We have touched on this already today in considering the first group of amendments, when I set out what we were doing with regard to neighbourhood planning.
In Grand Committee, I set out the significant increase in grants and the range of technical support and advice now available through the Government’s support contract. As I have already said today, this support includes a “health check” of a neighbourhood plan before it is submitted by an experienced examiner prior to the plan going forward to the local planning authority. Priority groups can access this without charge. Other groups will be subject to charge but can, of course, pay for that out of the allocation that they get from the Government, as it were, in relation to registering as a neighbourhood group, so those grants can be used to pay for a health check. I encourage neighbourhood groups to do just that. I think it is the start of the process of understanding what admittedly can sometimes be very opaque language which is not always accessible to any of us, frankly, except people who are expert in planning law. My noble friend made that point forcefully and correctly.
On the details of my noble friend’s Amendment 3, local planning authorities are already under a duty to provide support to neighbourhood planning groups. Measures in the Bill will ensure that this advice is clearly set out in one place, in their statement of community involvement—there is a government amendment to that effect. We expect authorities to work collaboratively with neighbourhood planning groups and seek to resolve any issues to ensure that the draft neighbourhood plan has the greatest chance of success at independent examination.
While I am sure my noble friend did not intend it, the amendment would significantly expand the assistance authorities must provide to include matters unconnected to preparing a neighbourhood plan or neighbourhood development order—for example, environment impact assessments. We could not support that. I am sure that that would be an unintended consequence of the amendment.
Noble Lords have heard concerns about the neighbourhood planning examination procedure. I and my officials have welcomed the opportunity to discuss this further with my noble friend and with the noble Lords, Lord Kennedy, Lord Shipley and Lord Stunell. We are consulting in the housing White Paper, which has been given a good build-up by the noble Lord, Lord Kennedy, on what changes may be needed to ensure that consultation and examination procedures for all types of plan-making are appropriate and proportionate. This provides an opportunity for communities, and others, with direct experience of the examination process to inform any reforms. This consultation runs up to 2 May.
My noble friend has raised a matter of great importance but one that requires careful consideration. We need to guard against introducing changes that may have unintended consequences. For the same reason, while I welcome my noble friend’s championing of this issue, I fear that the practical effect of the amendment, as drafted, would be to introduce a number of changes that the noble Baroness almost certainly did not intend and which the Government cannot support.
By way of example, an examiner can only recommend modifications to a neighbourhood plan or a neighbourhood development order that are necessary for the plan or order to meet a set of basic conditions set out in the legislation and other legal tests—or to correct errors. There are currently seven basic conditions. The amendment as drafted refers to only four basic conditions, with no description of which ones are to be considered. Therefore, the examiner would not know which four of the seven current basic conditions they need to provide recommendations on following the examination of the plan. One consequence could be that development could be permitted through a neighbourhood development order that has a negative impact on, for example, a listed building or the character or appearance of a conservation area because the examiner was unclear what was within their remit to make recommendations on, and what was not. As I say, I am as close to certain as I can be that that was not intended.
With the assurances I gave previously on the continuing discussion on how we can improve the planning process and what we have already done on ensuring that health checks are there and that the RICS will produce the guidance, and so on, I respectfully ask my noble friend to withdraw her amendment.
My noble friend’s Amendment 4 also seeks to improve the neighbourhood planning examination process. While the Government take very seriously the need for all those with an interest in a neighbourhood plan to have confidence in the process for examining a plan, we cannot support this amendment. By requiring an examiner to recommend alternative sites for housing and other developments, the amendment as drafted could reduce the opportunities for the wider community to influence decisions on where development will be. Therefore, counterintuitively, this would not be supportive of local decisions or of localism. This could risk undermining public support for a plan which will still need to be successful at referendum before it can come into force. It also requires an examiner to take decisions based on what may well be incomplete or otherwise imperfect information; for example, further assessments may be necessary to determine whether the development of alternative sites may have significant environmental effects or whether the sites can be delivered.
The amendment, as drafted, would significantly extend the matters that an examiner can consider and therefore also matters on which they base their recommendations for modifications. It would enable examiners to modify neighbourhood plans and neighbourhood development orders “for other reasons”— as set out in proposed new paragraph 10(3A)—which would significantly extend the matters that an examiner can consider and base their recommendations for modifications on. Currently, as I have said, examiners can only recommend modifications that they consider necessary to ensure that a neighbourhood plan or an order proposal meets the basic conditions and other legal test, or to correct errors.
Again I am mindful of the discussions we have enjoyed hitherto and therefore suspect that my noble friend did not necessarily intend to broaden the discretion of examiners in this way. The Government cannot support this, and I respectfully ask my noble friend not to move Amendment 4, as well as to withdraw Amendment 3.
Lord Porter of Spalding
Like my noble friend Lord Lansley, I will speak to Amendment 8, not to support it but as an opportunity to highlight the fact that county councils would probably be very unwilling to pick up the planning authority responsibility on the basis that they do not have sufficient funds at the moment to deliver adult social care. Why, therefore, would they try to take on planning, which is already subsidised by council tax payers by about 30%? That would leave county councils with less resources to provide the services they currently need to provide, which are already not given sufficient resources.
I cannot understand the Government’s obsession with getting a local plan in place. When we drafted the National Planning Policy Framework it was a stand-alone document that would give pro-development councils sufficient protection where development took place in their own area. A local plan is needed purely so that councils can reduce the amount of development they will take, not increase it. If the Government’s intention is to try to speed up planning and build more homes—something that everybody supports—that will not necessarily be assisted by having a local plan in place. I do not see the attraction, yet we keep going back to focus on local plans. They are not necessary in a pro-development area. Pro-development councils will get sufficient protection from the NPPF; that is how we drafted it.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lords who participated in the debate on the amendments in this group. I turn first to Amendment 5. I thank the noble Lord, Lord Beecham, for raising an issue that is, I acknowledge, of some importance. I checked the NPPF and he is right that social housing does not have a separate section, although it is covered by affordable housing. He is wrong in relation to education; it features in paragraph 72, which covers education facilities in schools and so on. However, let me turn to the substance of the amendment. I thank my noble friend Lord Lansley for his participation. There is a fundamental difference in approach. We believe that these matters are more properly addressed in national planning policy, independently of where the list takes us, whereas I think the noble Lord wants them to be included in the Bill. The Government could not support that. We believe it is best left to local authorities to decide their priorities, and I therefore ask the noble Lord to withdraw his amendment.
I turn now to Clause 9 and the amendments relating to the provision to ensure that the Secretary of State could, in extremis, ask county councils to step into a void to help prepare a local plan. I stress the word “ask”—this is not an imposition; they would be invited. The Secretary of State currently has the power to intervene in a development plan document, so there is nothing new here. Noble Lords seem to think that this is some radical departure from previous practice, but that is not the case—it could happen now. All the Bill does is provide the Secretary of State with a further, more local option for getting a plan in place.
In February 2016 we consulted on our proposed criteria for making decisions on whether to intervene in plan-making. Those criteria are: where the least progress in plan-making had been made; where policies in plans had not been kept up to date; where there is higher housing pressure; and where intervention would have the greatest impact in accelerating local plan production. We also proposed that decisions on intervention be informed by the wider planning context in each area, specifically the extent to which authorities are working co-operatively to put strategic plans in place and the potential impact that not having a plan has on neighbourhood planning activity. We also made it clear that authorities would have an opportunity to put forward any exceptional circumstances before we took a decision on whether to take intervention action. In other words, there is necessarily a dialogue here: this is not something that just happens out of the blue. The housing White Paper—an important document which has already been mentioned—confirmed that the Government intend to make a decision on intervention on the basis of these criteria. As I have indicated, that consultation closes on 2 May. If noble Lords or others want to influence the process, there is an opportunity to do so.
As I said, this proposal supplements the Secretary of State’s existing intervention powers to provide a more local solution and provides an important backstop to ensure that communities are not disadvantaged because their district council has not put a plan in place. It would happen only in the rarest of circumstances, but we believe that it adds to the range of powers that the Secretary of State has and offers an alternative to the direct power he would have at a more local basis. I stress again that it is only an invitation: a county council is quite open to say no and would be reimbursed for the costs if, in extreme circumstances, we should get to that position. It is for county councils to decide whether they wish to accept the Secretary of State’s invitation. Where they choose not to, the only remaining alternative would be for the Secretary of State to intervene more directly. On that basis, and with the reassurance that this is included in the consultation on the White Paper, I ask noble Lords not to press their amendments and that Clause 9 stand part of the Bill.
Lord Lansley
Before my noble friend sits down, will he undertake to at least look at defining rather better the circumstances in which he and the Government think it appropriate to invite a county council to take on these planning powers? The broader intervention powers that are currently available do not necessarily translate well to the circumstances in which a county council could, in effect, create a capacity to do this. There would have to be a pretty substantial problem with a district planning authority for a considerable period, and the county council would have to go to a lot of trouble and expense to put a plan in place. Therefore, it must be only in extremis. Schedule 2 does not explain that it is in extremis. My noble friend has said it, but he has not explained it. Perhaps he might yet, in Schedule 2, set out rather better why it will be only in exceptional circumstances.
Baroness Scott of Bybrook (Con)
My Lords, I cannot help but stand up at this moment. It seems to me that the solution to this whole problem is unitary authorities.
Lord Bourne of Aberystwyth
My Lords, in response to that last intervention, the answer is no. However, if my noble friend would like to table a debate on that issue, I am sure we would be only too delighted to respond.
I am very grateful to my noble friend Lord Porter for his advertisement of the LGA’s position on this. He is, I know, immensely pleased with what is in the White Paper on planning fees.
In response to the point on reimbursement, I do not think it is opening up a can of worms. Reimbursement is something everybody understands. However, when it comes to opening cans of worms, the noble Lord opposite is an expert.
Let me respond to the very valid points from my noble friend Lord Lansley. The power will be used only in extremis but I come back to the point that it is already an existing power for the Secretary of State to take. It is not new and did not come out of the blue. It will be used only in extremis and there will be discussions on that. All we are doing is extending the range of options the Secretary of State has. At the moment, he can intervene directly. This power would mean that he could intervene directly or ask a county council—I repeat: ask—whether it can carry out the plan using its local knowledge and expertise. If a county council has not got that local knowledge or expertise, I am sure that no Secretary of State would want to ask it and would take the power directly.
As I said, noble Lords and others can raise this issue as part of the consultation on the White Paper. We have no intention of altering the position in the Bill but it is open as to how this plays out in the regulations that will follow. The consultation is now open and I know all noble Lords will wish to advertise that. It would be good if people could respond to that by the deadline of 2 May.
Lord Shipley
My Lords, there was a brief debate a moment ago about who would pay the bills where a county council undertook the work. I raised this matter in Committee. On page 47, lines 31 to 40, the Bill makes it absolutely clear that the lower-tier planning authority must reimburse the upper-tier county council. The difficulty with this paragraph to the schedule is that nothing is said about who decides what is a reasonable level of costs, what is included in the costs and what costs the county council might be entitled to ask for.
Therefore, for the avoidance of later difficulty—presumably the Government plan to deal with this matter in guidance, or possibly in regulations more formally—it might be helpful to have the Minister’s reaction now as to who determines what is a reasonable charge for the district council to pay.
Lord Bourne of Aberystwyth
My Lords, I am grateful to the noble Lord, Lord Shipley, and I apologise to my noble friend Lord Porter and the noble Lord, Lord Kennedy. It is indeed the district council that pays for this—that is absolutely right—on the basis that they have been funded for it. Perhaps I may write to the noble Lord, Lord Shipley, on the issue of determining what is reasonable—it may be a matter of dispute but it happens all over the place—place a copy in the Library and send a copy to all Peers who have participated in the debate.
Lord Kennedy of Southwark
We do not want the county council network deciding on arbitration.
Lord Beecham
My Lords, I am still recovering from the shock of the support of the noble Lord, Lord Lansley, for anything I have said in this Chamber, particularly on this occasion. However, I am grateful for his support.
I am not sure where the Minister is leading us on situations where county councils are involved or invited to become involved, because it is not clear what happens if they decline.
Lord Bourne of Aberystwyth
My Lords, it is very clear. The option is available at the moment for the Secretary of State to take direct control. That is the only other alternative to getting a more local solution. That is why this has been included.
Lord Beecham
That is an option of what might be called undemocratic centralism, which is not to be relished.
The Minister made a correction regarding education, which I said was not included in the national policy framework. He is right to say that it is found in paragraph 72. As it describes providing healthy communities, I assumed that it was to do with health matters but clearly it extends beyond them. However, I still believe that the noble Lord, Lord Lansley, and I were right in suggesting that these matters should be referred to in the local plan. I cannot see any difficult in doing that. I regret that the Minister does not seem to be persuaded of the validity of that argument. However, in the circumstances, I beg leave to withdraw the amendment.
Lord Shipley
My Lords, my name is attached to all three amendments in this group; I will try not to repeat what other noble Lords have said because I think there is a degree of unity on a number of aspects. The aims of Amendment 6 are very important. Maybe the wording can be looked at, and maybe the Government can come back at Third Reading. The amendment would give people in local authorities confidence that the Secretary of State is not simply going to operate within the appeals system, which rides roughshod over a local planning authority and an area with a neighbourhood plan.
My noble friend Lady Pinnock made a very forceful case for Amendment 6A. I remain very concerned by the Government’s decision to have a three-year housing supply requirement where there is a neighbourhood plan area, but a five-year housing supply requirement where there is not. Can the Minister say something further about this? Had the proposals in this amendment applied, then in some of the instances my noble friend mentioned, a three-year housing supply requirement may have resulted in a different outcome to the planning application.
Amendment 40 is terribly important. I am very grateful to the noble Baroness, Lady Cumberlege, for her support for this amendment because it is extremely well drafted—I do not claim any personal credit for that at all. It defines what the problem is and what the solution may be. My noble friend Lady Parminter made it clear that it is a problem when a local planning authority goes against an adopted neighbourhood plan. I listened very carefully to the Minister’s reply to the first amendment. He made it clear—if I heard it right—that a local planning authority could make a decision which was contrary to the adopted neighbourhood plan, which forms part of the local development plan. I support my noble friend Lady Parminter in that the Government should monitor where this happens. However, I want to add one thing. Where the local planning authority owns the land in question, the Secretary of State should have an automatic right to call that application in. In other words, there is a subtle difference. Monitoring and notifying the local authority if it does not own the land and seeing whether the law needs to be changed is one thing, but where it does own the land, that should be a matter for automatic call in. I would be grateful for the Minister’s observations on that.
Lord Bourne of Aberystwyth
My Lords, I thank all noble Lords who have participated in a far-ranging debate on many important issues covered in this group. I turn first to Amendment 6, in the name of my noble friend Lady Cumberlege and the noble Lord, Lord Shipley. This is an area of importance. Planning inspectors are appointed by the Secretary of State to decide planning appeals on his behalf. They are not, as perhaps the impression was created at times, random individuals making arbitrary decisions. I wholly accept that there is an element of mystique here and that it would be good if we were able to demystify it. It is a bit like debates we have had recently in relation to judges: these people are taking decisions at arm’s length, based on a body of law and in accordance with legal procedure. They are properly qualified and should be supported. Planning inspectors make decisions in accordance with the national planning policy and the development plan, which includes, of course, any in-force neighbourhood plan, unless material considerations, which we touched on earlier, such as those relating to nationally significant infrastructure projects, indicate otherwise.
Amendment 6 would create a situation where all appeals which are contrary to the local development plan must be dismissed. Amendment 6A would prejudice proper consideration at appeal of how national and development plan policies should be applied. I do not accept that it is helpful for planning inspectors to be told, in advance of any deliberations, what their conclusion should be. I accept that that is probably not the intention of the amendment, but it is dangerously close to the effect the amendment would have. Nor should we tell planning inspectors how to exercise their discretion in terms of the weight attached to particular matters in the consideration of an appeal. I would also guard against what would appear, to some extent at least, to be the inconsistency of arguing, as at times we have been, understandably and correctly, for proper local planning procedures and localism and then, when we do not like it, saying that the centre needs to intervene and this is what the Minister must do. We have to consider a proper balance here. That said, I understand some of the issues that have been raised and I assure my noble friend Lady Cumberlege and the noble Lord, Lord Shipley, that the White Paper commits us to taking forward a proper procedure and giving proper weight to planning appeals. I accept that there is something to look at here and we are continuing to look at these issues with my noble friend.
I turn to Amendment 6A and some of the questions raised by the noble Baroness, Lady Pinnock, in relation to brownfield land and the green belt. She will know, because we discussed this in Committee, that there is a lot in the housing White Paper about the green belt. A lot of things are currently being processed in relation to brownfield land and I assure noble Lords that we are bringing in regulations this April—it may be later but I will correct that, if I am wrong, in a letter to noble Lords—for brownfield registers, which every local authority must complete and which will include appropriate brownfield sites identified for possible housing. We expect that housing to be delivered and there will be percentages, which, again, I will outline in the letter, that have to be delivered within this Parliament, up to 2020. So there is much happening there. We have provided loan funding for developers, through the home building fund, which has an emphasis on brownfield land as well.
Furthermore, as the White Paper makes clear, constraints on development on green belt land remain constant. The White Paper, which I do not have in front of me, says that before even looking at green belt land you have first to consider denser provision of housing which may be appropriate. We know that London, for example, is the least densely occupied capital city in western Europe. I think that Madrid is four times as densely populated. Denser housing does not sound attractive but in terms of where we are it could well be an attractive option that we should look at. Also, building on brownfield land is identified in the White Paper, as is co-operation with other local authorities to see whether something can be done if there is not sufficient housing supply in one area. So we do regard green belt land as sacrosanct. If I may, I will pick up more details on that in a letter to noble Lords, because I had not anticipated this and some of my figures may not have been absolutely accurate in relation to brownfield and green belt land.
Lord True
Before my noble friend sits down, I will say that I am grateful for the measured tone of his response. As this is Report I will not take up the point raised by the noble Lord, Lord Shipley—although I would not always assume that the Secretary of State will be friendlier to local interests than a local authority that owns the land.
The Minister gave a partial response on the point about the accountability of inspectors. He referred to the mystique of the system and said, quite rightly, that inspectors are highly professional. The difference between the inspectorate and the judiciary is that the judiciary is subject to testing by a higher instance, but in this case it is a one-off shot. It need not necessarily be in the context of the time between now and Third Reading, but it would be helpful to have some reflections from my noble friend on how one might shine a little more accountability on the system, because there is divergence of practice. My local authority had considered publishing league tables but we thought that it would not encourage an enthusiastic or friendly approach from some of the inspectors named. If might be interesting if the Minister could reflect on how there could be greater accountability.
Lord Bourne of Aberystwyth
I thank my noble friend very much for that point and I apologise for not picking it up in my earlier response. I will go away and reflect on it. Certainly, it would be helpful if we could give more information about how this process operates—how people are qualified, what the training is and so on. Perhaps we could do that on the website. I will look at that and I thank my noble friend also for the constructive discussions we have so far had on the issue of permitted development, which I know is of concern to him.
Baroness Cumberlege
My Lords, I thank those noble Lords who have taken part in this debate. I particularly value the support from the noble Lord, Lord Shipley.
It was interesting that the noble Baroness, Lady Pinnock, talked about green belt land. My experience has been with areas of outstanding natural beauty, which in a way have a synergy with green belt land, and it seems that those areas are not designated easily. It takes a lot of effort to get the designation and they should therefore be treated with real respect. I was also interested in what she said about the urban green spaces. In my area I know that they are much cherished by local people, who are forced to live in small and crowded accommodation. They can go to those spaces and there is some relief—relief for all generations but particularly for young children and, I think, for boys who want to kick about a football and all the rest. If we build on all those areas, we will have much more trouble with our future generations.
I was interested in what my noble friend Lord Bourne said about London and how it is not a very densely populated city. We should rejoice in that and think of all the wonderful parks we have, and the gardens shared by inhabitants in the area. When you fly over London, you see in its centre these wonderful green areas. I am sure that my noble friend does not think we would want to build over them all. For me, they are precious—but more precious are the small, green urban spaces, which really affect the people who live in difficult circumstances and find in them a relief or a way out.
The noble Baroness, Lady Parminter, was so right: we need the evidence and to know what is going on. It is so easy to continue with policies that are really not assessed. We need some assessment to ensure that what we are doing is the right thing. My noble friends Lord Porter and Lord True were interesting on the role of the inspector. The system is strained and once we get real strain, we get confusion. That is not good for government; government needs clarity.
I very much accept the view that the amendments I tabled can be mightily improved and I appreciate that those who are in the business as council leaders and so on feel that the language is too strong. Perhaps we should avoid “must” and say “have regard to”. We need to make sure that what we are doing allows some flexibility.
The noble Lord, Lord Shipley, again talked about how we have had some difficulties with the three-year supply, the five-year supply and all the rest. In summing up, my noble friend Lord Bourne said that there were issues which needed demystifying. We need to do that and to think about the role of inspectors. I look forward very much to what the Minister can tell us in more detail about their role and whether guidance is considered inappropriate—although we use it in a lot of other instances. I accept that inspectors are professional people and clearly need to come to their own conclusions—but not in a vacuum. We need to consider carefully what happens when these appeals are allowed outside the neighbourhood plan and are called in by the Secretary of State. What has been carefully crafted is then blown to pieces. So I am grateful to my noble friend for the assurances he has given and I look forward to further negotiation on this aspect of the Bill. I beg leave to withdraw the amendment.
Lord Swinfen (Con)
My Lords, I, too, support these amendments. They appear to be drafted in favour of the person who has made the planning application, but let us not forget that council officers also need family holidays, and they may not be there to consider the application and to give it the proper consideration that it requires—or not all of them, or not the relevant individual. So this amendment, although simple, is very sensible.
Lord Bourne of Aberystwyth
My Lords, I thank my noble friend Lady Gardner of Parkes for tabling these amendments and the noble Lords who participated in the debate: the noble Lords, Lord Beecham and Lord Tope, and my noble friend Lord Swinfen.
In relation to Amendment 9 relating to public holidays, as I indicated in Committee, I have sympathy with it. It seems to be a common-sense provision. I am more concerned about Amendment 10 in relation to August and Christmas. It makes assumptions about holidays which, while often true, may not always be true. There are other holiday periods. So I am more concerned about that, but I am very happy to talk to my noble friend about it.
I will undertake to implement the provision in relation to public holidays by the end of this year. I would like to be able to talk to local authorities about it. With the firm undertaking that we will implement this in relation to public holidays later this year, which we can do by secondary legislation, and my offer to talk to my noble friend about August and Christmas, which I want to have a discussion about because the amendment raises wider issues, I hope that she will withdraw her amendment.
Baroness Gardner of Parkes
Will the Minister clarify when he will talk to me about this? Is he planning to talk prior to Third Reading or at a later stage?
Lord Bourne of Aberystwyth
My Lords, I had not given it much thought; obviously I have quite a lot on between now and Third Reading. On the basis that my noble friend has the undertaking that we will definitely do what she wants us to do in relation to public holidays by the end of the year, the discussion is less urgent because this would not be something that we would do at Third Reading. However, if my noble friend particularly wants to meet before Third Reading—we do not have a date for Third Reading yet, with any certainty—I would be happy to do so.
Lord Swinfen
Before my noble friend sits down, what is the difficulty? Surely all the planning authority has to do is to stick a red marker on the planning application that says, “One extra day is allowed”. It is a matter of practicality and a bit of common sense.
Lord Bourne of Aberystwyth
The difficulty relates to the other amendment. It is only fair that we inform local authorities and have a discussion with them by the end of the year. I do not think that that is unreasonable. If my noble friend is asking about the other provision, it raises other concerns. The other provision is a common-sense provision, but I would like to make sure, in accordance with my approach, that we have an appropriate dialogue with those who are affected.
Baroness Gardner of Parkes
I welcome what the Minister said. It sounds as if he is thinking kindly of Amendment 9, which is so clear-cut that I cannot imagine anyone opposing the idea. But the holiday issue is important to families and, as has been said, to officials in the various authorities. Will the Minister clarify whether, if he brings this out in secondary legislation, we could hope for it to be looked at a bit more rapidly? As he knows, I have been quite disappointed at how long things have taken in relation to the Housing and Planning Act 2016. It went on interminably without us ever seeing any regulations. So if he proposes to deal with this through secondary legislation, I would like an assurance that it will be fairly soon—and if we could have a quick word before Third Reading, that would be helpful, too. Perhaps he could confirm that.
Lord Bourne of Aberystwyth
My Lords, I have given an undertaking to take this away and implement it by the end of the year. It could be that we could expedite it before that, but I have given a very firm undertaking to act on it. I do not think that I have been slow at all. I note what my noble friend said about the Housing and Planning Act, but that was not discussions that we had; I was not involved in that legislation.
I am also very happy to take away the other issue and have a look at it to see whether there is anything we can do in relation to it. However, as I think my noble friend will accept, there are other considerations about when people go away—Easter and so on—so there are broader concerns. My noble friend is right that it is a common-sense provision; it may be that we can expedite it more quickly than the end of the year, but that is the undertaking I will give. I am very happy to meet her in short order when we can both find time in our diary to have the discussion, if that is acceptable to her.
Baroness Gardner of Parkes
I am sorry to have made a bit of an issue out of all this, but the Minister has been very good in clarifying what he has said. I pin my hopes on him doing what he said and beg leave to withdraw the amendment.
Baroness Cumberlege
My Lords, we have had examples of new developments that were produced centuries ago, in the 1800s or whatever, I think we should look to today. Poundbury near Dorchester is a very interesting new development. Of course, it has a very distinguished landowner, and I am sure he or his people negotiated extremely well with the local authority. My nephew lives there, so I know it quite well. There is a variety of housing there, which is a good start for a community. It was phased—it was grown over time. Critically, it has employment; it is not a dormitory. It has Dorset Cereals and all sorts of different employment opportunities. It is not all on an industrial estate that is marked “Industrial Estate” on a map. It weaves through the whole of that village and community—that growing little town. We must think seriously about this issue in our planning; otherwise, as I have said before—I apologise for repeating it—we are going to have a Secretary of State not for communities but for dormitories. We should avoid that. We should be building proper communities, and proper communities have employment.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in the debate. I thank the most reverend Primate the Archbishop of York for his very helpful tour d’horizon. Something occurred to me regarding what he said and the recent work on the bridge at Tadcaster. He rightly talked about the mixture of tenures that is in the White Paper, affordable housing and a sense of place and community. We have broad support for this amendment. I thank him most particularly.
I thank the noble Baroness, Lady Parminter, for moving the amendment so effectively in the absence of the noble Lord, Lord Taylor, who, unavoidably, is not in his place today. I am sympathetic to the case she made and to the points made by the noble Lord, Lord Best, about the importance of garden villages and towns. We have of course initiated a programme extending to 10 garden towns and 14 garden villages. I thank my noble friend Lady Cumberlege, who rightly said that there are examples such as Poundbury that should act as signposts for what we can accomplish.
I think there was general support for this measure. I understand the points made by the noble Baroness, Lady Young—I applaud her for the work she has been doing on ancient woodlands—who said that it has to be done with consideration and sensitivity. I support the concept, as do the Government, as outlined in the White Paper. We are strongly of the view that this should be put in local control, so I am very sympathetic to the amendment. I would like to discuss the matter further between now and Third Reading with the noble Lord, Lord Taylor, and indeed the noble Lord, Lord Best, because they have great experience in this area—with an undertaking that I would really like to do something on this, as would the Government, and return to it at the next stage.
This has been a particularly enlightening debate. There was clear support across the Chamber for taking action; there are lessons that need to be learned, but strong examples of what can be achieved. I hope that, with that assurance, the noble Baroness will withdraw the amendment. However, I would be very happy to discuss the issue further with the noble Lords, Lord Taylor and Lord Best, and indeed any other noble Lord, with a view to coming back on Third Reading with at least a report on the discussions, and perhaps firmer action based on them.
Baroness Parminter
I thank noble Lords from all Benches, including the most reverend Primate, for supporting this very important amendment. It is quite radical: the Treasury is allowing an uplift in land values to deliver thriving communities every bit as good as those in other parts of the country, to which the noble Lord, Lord Best, referred. Garden villages and towns will be an important tool in delivering the housing that we need in future, as will good-quality neighbourhood plans. They can work together in the right places—a point well articulated by my noble friend Lord Teverson. I am most grateful to the Minister for his commitment to further discussion with my noble friend Lord Taylor and the noble Lord, Lord Best, between now and Third Reading. We hope that will result in a firm commitment to an amendment. On that basis, and on that basis alone, I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, Amendment 11 in my name and that of the noble Baroness, Lady Parminter, deletes the proposed new powers for the Secretary of State to set conditions on the granting of planning permission. This matter was discussed at some length in Grand Committee, and I did not feel then and still do not feel that the noble Lord, Lord Bourne, has made a convincing case for why the powers should be granted. We have had little evidence to date that they are necessary. If there was a major problem, I suspect we would have heard a lot more about it outside the Chamber. I see little evidence and, if I was wrong, I would expect to have had emails, letters and requests for meetings from builders, trade bodies and others trying to convince me and tell me why I was wrong and why they needed the changes. I do not recall one organisation getting in touch about the problems and why the powers need to be taken by the Government.
Planning conditions and pre-commencement planning conditions imposed by a local authority must always be reasonable, necessary and help to deliver sustainable development; there is no point delivering development that is unsustainable. We would just be creating a problem down the line for others to deal with because we did not have the foresight or ability to face up to the challenges before us.
I think it was the noble Lord, Lord True, who is not in his place, who said in Committee in the Moses Room that he feared the department was bringing out a dreadnought to deal with problems on the local public pond. I agree, and I have heard nothing so far from the Minister—perhaps I will in a moment—to convince me otherwise.
Far too much planning legislation from this Government has been about centralising power, agreeing what can or cannot be done by regulations and with the power to impose conditions. I remind the House that this is the sixth piece of planning legislation in six years. It is just not the case that local authorities are against development; there is no evidence to support that. There is ample evidence to suggest that local authorities are best placed to make decisions about sustainable development, consulting local people within the framework. The framework is quite properly set out by the Government, but it must be a framework, not a straitjacket that prevents local authorities playing their full role. I beg to move.
Lord Young of Cookham (Con)
My Lords, the co-pilot is in charge of this part of the Bill. I am grateful to the noble Lord, Lord Kennedy, for revisiting an issue that we spent some time on in Committee. Amendments 11 to 14, tabled by the noble Lords, Lord Kennedy and Lord Beecham, and the noble Baroness, Lady Parminter, either remove subsection (1) from new Section 100ZA, and corresponding subsections (2) and (3), or apply exemptions to how the power is to be exercised. I will deal with Amendments 12 and 14 separately, but Amendments 11 and 13 together, as they deal with leaving out the whole of the wider power.
Amendments 11 and 13 would remove a key measure from the Bill, which is designed to put on the statute book what is already best practice in the appropriate use of planning conditions. The power under subsection (1) would allow the Secretary of State to ensure that certain conditions were not imposed, in certain circumstances, where this is appropriate to ensure that conditions meet the policy tests for conditions as set out in the National Planning Policy Framework.
Conditions which fail to meet the tests in the framework can cause unjustifiable delays and costs to the delivery of new development. The noble Lord, Lord Kennedy, asked for further evidence of the misuse, or potential misuse, of preconditions. This issue has arisen frequently during our debates. It is not a recent issue, and the claims date back several years. The Home Builders Federation has seen instances where unnecessary or unreasonable pre-commencement conditions have been imposed on development—for example, full details of a play area which, while commendable as a condition in general, could easily be discharged at a later stage. This is not just an issue with larger housebuilders. Small builders have also expressed dissatisfaction with the use of conditions. Research by the National House Building Council in 2014 found that 33% of small and medium-enterprise builders identified the planning process and conditions as the largest constraint to delivery. As well as issues with the time to discharge, 29% of respondents thought that the extent of conditions was an issue. If we are serious about increasing housing supply, we need to do all we can to support the builders.
Government planning guidance provides examples of specific circumstances where conditions should not be used, such as conditions which place disproportionate and unjustifiable financial burdens on an applicant. Removing subsection (2), as proposed by Amendment 13, would remove an important constraint on the regulation-making power in subsection (1). Subsection (2) ensures that the Secretary of State may make provision in regulations only if such provision is in pursuit of the policy tests. In effect, it places each of the policy tests in paragraph 206 of the framework on a statutory footing.
As with subsection (2), leaving out subsection (3), as proposed by Amendment 19, would also remove an important constraint and safeguard on the power in subsection (1). Subsection (3) requires that before making regulations under subsection (1), we must carry out a public consultation. This would afford the opportunity for local views to be put forward as part of the process for determining how the power will be exercised.
The Government published draft regulations in December to illustrate the proposed use of the regulation-making powers in Clause 13. The draft regulations have informed our debate by clarifying how the power might be used.
In Committee concerns were raised about the potential for Clause 13 somehow to act as an anti-localist measure. I should clarify that we intend to use the powers in Clause 13 to restrict local authorities’ ability to impose those conditions in regulations, already identified in planning practice guidance, which fail to meet the well-established policy tests in the NPPF. A reasonable local authority would not seek to impose such conditions.
We recognise that an opportunity for users of the planning system to comment on the proposed regulations would be beneficial. Therefore, subject to the Bill receiving Royal Assent, we will consult on the draft regulations.
I can also confirm that, following the recommendations of the Delegated Powers and Regulatory Reform Committee, and in the light of concerns raised by noble Lords, about the intended use of the power in the Bill, we have tabled a government amendment that would apply the affirmative procedure to the exercise of the power in new Section 100ZA(1). This will ensure the necessary parliamentary scrutiny of how the power is exercised.
The effect of Amendments 11 and 13 would be to miss this opportunity to elevate best practice on the use of planning conditions. I hope that I have justified why the regulation-making power is integral to ensuring a robust and sustainable planning system. Therefore, with the reassurances I have provided on further safeguards on the exercise of this power, I ask the noble Lord to withdraw his amendment.
On Amendment 12, I reiterate what my noble friend said in Committee. There are good intentions behind the amendment, which is intended to ensure a local voice in judging local circumstances and the impact of planning decisions. That is absolutely the Government’s aim. The Government intend to use the power in new Section 100ZA to prevent the use of unreasonable and unnecessary conditions which are already well established in the Government’s planning practice guidance as not meeting the tests set out in the National Planning Policy Framework.
In response to the Committee debate held on 6 February, my noble friend wrote to noble Lords, providing further information on the policy objectives for the power to make regulations under subsection (1) of the new Section 100ZA. It will not restrict the ability of local authorities and neighbourhood groups to prepare local plans and neighbourhood plans and it will not restrict their ability to determine applications for development in accordance with those plans.
Subsection (1) of the clause will ensure that the well-established policy tests for conditions are adhered to. These tests are reflected in the wording of subsections (2)(a) to (d) of the new Section 100ZA and constrain the use of this proposed regulation-making power and ensure that conditions imposed on a grant of planning permission make the development acceptable in planning terms; are relevant to the development and to planning considerations generally; are sufficiently precise to make it capable of being complied with and enforced; and are reasonable in all other respects. In other words, the Secretary of State may make provision in regulations only if such provisions are in pursuit of these policy tests.
While I am confident that the constraints referred to above are sufficient, I do understand the concerns expressed about the use of this power, and that it may somehow prevent local authorities being able to use their discretion in carrying out their planning duties. However, we believe that it would be detrimental to the planning process for regulations made under the new Section 100ZA(1) to provide for local authorities to make exceptions to the prohibition of the use of certain conditions. I cannot foresee a situation where a local authority would want to make a local exception to regulations under subsection (1), especially if this would have the effect of allowing the imposition of the types of conditions that are already well established in government guidance as being contrary to the national policy tests. In fact, during our consultation on this measure, local authorities agreed overwhelmingly that conditions should be imposed only if they passed each of the national policy tests.
As a further assurance for local authorities and other interested parties, subsection (3) of new Section 100ZA includes a requirement to carry out a public consultation before making regulations under subsection (1), so this will provide an opportunity for local views to be put forward and given full consideration in advance of making regulations. In addition, the Government have tabled an amendment that would require any regulations under subsection (1) to be approved by each House of Parliament. I hope that, for the reasons I have set out, noble Lords will not press that amendment.
The Government’s position on Amendment 14 remains as it was in Committee on the Bill, and in another place, where it was tabled. I am not sure that the noble Lord, Lord Kennedy, particularly pressed Amendment 14. If the House will permit, I might skip the relevant pages because they are broadly similar to an argument deployed by my noble friend in Committee.
I emphasise finally that if subsection (2) was left out of the clause, it would remove a vital constraint on the power in subsection (1) so that it can only be used to ensure that any conditions imposed meet the well-established policy tests for conditions in the National Planning Policy Framework. In effect, subsection (2) places each of the policy tests in paragraph 206 on a statutory footing. As noble Lords are aware, further safeguards on the use of this power are provided. Before making regulations under subsection (1) we are required to carry out a public consultation, as set out in subsection (3), and the Government have now brought forward an amendment which would require the approval of both Houses of Parliament. I hope that, for the reasons I have set out, the noble Lord will withdraw his amendment.
Lord Beecham
My Lords, I can reassure the Deputy Speaker that I shall not take long. The amendment deals with restrictions on planning conditions set out in Clause 13, and in particular the new provision which will incorporate into the Town and Country Planning Act new Section 100ZA which deals with restrictions on the power to impose planning conditions.
Amendment 15 is basically a simple amendment that adds something to the conditions that will apply to those regulations. For example, the Bill refers to them as having to be,
“necessary to make the development acceptable in planning terms …relevant the development … sufficiently precise to make it capable of being complied with and enforced … reasonable in all other respects”.
The amendment simply adds,
“sustainable development and public interest”,
to the criteria for making those regulations. I hope that the Minister will feel able to accept that and I beg to move.
Lord Young of Cookham
My Lords, I am grateful to the noble Lord for moving his amendment. I do not think there is any disagreement between us on the objectives that planning decisions should be acceptable to local people and that planning development should be sustainable.
Amendment 15 covers similar ground to that of the previously discussed Amendment 14, in that it is also intended to ensure that these measures do not have an adverse impact on sustainable development. Sustainable development is at the very heart of the planning system, as reflected in the National Planning Policy Framework, and I can assure noble Lords that Clause 13 will contribute to this goal.
My noble friend has written separately on this matter, as promised, to the noble Lord, Lord Kennedy, in Committee, giving reassurance of our commitment to see that development that takes place is sustainable and in line with the well-established policy tests in the NPPF. Clause 13 will not impact on local authorities’ ability to seek to impose any necessary conditions and appropriate protections for important matters such as heritage, the natural environment and measures to mitigate the risk of flooding. That ability will be maintained, as well as the ability of local people to make representations to the local planning authority on how a development proposal will affect them.
If the amendment were introduced, it would add to the list of constraints on the Secretary of State’s regulation-making power in subsection (2) of new Section 100ZA by explicitly requiring the Secretary of State to take account of sustainable development and the public interest in deciding whether it is appropriate to exercise the power in subsection (1), as the noble Lord explained.
As my noble friend said in Committee, and I say again now, both sustainable development and the public interest are already relevant planning considerations in the NPPF, and I can reassure the noble Lord that these matters are already captured in subsections (2)(a) and (b) of the clause we are discussing. This includes the need to consider the presumption in favour of sustainable development which drives planning policy, plan-making and decision-taking—and local views, which are already central to the planning system.
In terms of taking account of the public interest, and that planning decisions and conditions are acceptable to local people, we continue to ensure that the planning system is centred on community involvement. It gives statutory rights for communities to become involved in the preparation of the local plan for the area, and any neighbourhood plans—including strengthening their powers in this area through the Bill—and to make representations on individual planning applications, and on planning appeals, in the knowledge that the decision-maker will give these representations full consideration. I hope that, for the reasons I have set out, the noble Lord might feel able to withdraw his amendment.
Lord Beecham
My Lords, Amendments 16 and 17 in this group are connected to issues of major concern. They seek to protect communities from extremely controversial decisions in areas with which we are becoming increasingly familiar; for example, fracking and other processes which impact on the environment. Fracking, I guess, is currently the most controversial of these. Similar concerns around minerals, waste development and the like are covered in Amendment 17. The intention here is to make it clear that the regulations which are otherwise authorised by this part of the Bill would not extend to these very controversial areas. In other words, there would have to be primary legislation to embark on changing the position on these particularly controversial areas. Some danger, I think, is sensed at the moment about the Government’s enthusiasm for fracking; their overriding of local authority concerns, for example, in Lancashire, is very controversial. These amendments are designed to constrain the exercise of those powers, which we may see more of under the Bill, in such decisions taken by government over the wishes of local communities, and effectively outside the normal planning process. I hope the Government will rethink their position on these matters. I beg to move.
Lord Young of Cookham
My Lords, I am, again, grateful to the noble Lord, Lord Beecham, for explaining the reasons behind his amendment and understand the concerns he has expressed about those confronted with substantial developments involving minerals and other raw materials.
Amendment 16 would allow exemptions to be made to any regulations brought forward under new Section 100ZA(1) for certain types of development. In this case, the amendment relates specifically to the environmental impact assessment of development. As the noble Lord explained, environmental impact assessments are demanded of development likely to have significant effects on the environment. These assessments are a way of ensuring that local planning authorities, in deciding such applications, are in full knowledge of the likely significant effects, and take these into account during the determination process.
I recognise that the noble Lord’s amendment appears to stem from a wider concern about the measures—that they might in some way weaken existing environmental protections. I confirm that the Government intend to use the power in new Section 100ZA to prevent the use of unreasonable and unnecessary conditions, which are already well established in the Government’s planning practice guidance as not meeting the tests set out in the NPPF.
A local authority will still be able to impose planning conditions necessary to be able to grant planning permission for environmental impact assessment development, provided that those conditions meet these six tests. The Secretary of State may make provision in regulations under new subsection (1) only if he is satisfied that such provisions are in pursuit of these policy tests.
That is why, as set out in the draft regulations we published in December, we are proposing to prohibit the types of conditions set out in guidance as failing to meet the policy tests. I hope this will reassure the noble Lord, Lord Beecham. I should like to be very clear that our guidance currently advises that these types of conditions should not be applied to any grant of planning permission, whether an environmental impact assessment is required or not. We cannot foresee a situation where a local authority would want to impose such conditions on any planning permission. As a further means of assurance, we propose that these regulations will be subject to the affirmative resolution of both Houses of Parliament, which will ensure appropriate levels of scrutiny.
Amendment 17 is similar. It exempts minerals or waste development from new subsection (1). The arguments for rejecting Amendment 17 are broadly similar to those against Amendment 16: the Bill will not impact the ability of local planning authorities to impose planning conditions to ensure the necessary protections to achieve sustainable development, provided they meet the well-established policy tests.
I also emphasise that our guidance currently advises, as I have just said, that these types of conditions should not be applied to any grant of planning permission, as they clearly do not meet the national policy tests in the NPPF. We cannot foresee a situation where a local authority would want to impose such conditions on the grant of any planning applications. We therefore do not see a need to make exceptions, as the amendments seek to do, for EIA development, minerals and waste applications, or any other type of development. With those reassurances in mind, I hope the noble Lord will withdraw his amendment.
Lord Beecham
My Lords, I am grateful to the Minister for his reply. I am partly reassured by reference to the affirmative procedure being applied in these cases, which allows greater parliamentary scrutiny. In those circumstances, I beg leave to withdraw the amendment.
Lord Shipley
My Lords, I agree that Amendments 18 and 25 are important, although the comments of the noble Lord, Lord Lansley, largely related to Amendment 25, and perhaps to some others that we will deal with later, on the subject of pre-commencement conditions. Those comments were very similar to ones that I recall him making in Committee. I repeat what I said on that occasion, which is that I find the case exaggerated. I do not find the evidence base that the Government came up with for the problems requiring this solution to be as great as they imagine it to be, and I have heard nothing further to convince me that that is the case.
Clause 13 is simply one clause, but almost a third of the amendments tabled to date relate to it. Twenty-four amendments to Clause 13 have been tabled by noble Lords, and that suggests to me that there is something structurally wrong with it. Therefore, I hope that the Minister will feel that there is a great deal of merit in Amendments 18 and 25.
In response to another comment from the noble Lord, Lord Lansley, I would just say that I do not think that a local planning authority should have to negotiate a written agreement with a developer on a matter which is in conformity with the National Planning Policy Framework. It seems that there is a basic principle there that the Government should surely support, and it is spelled out in Amendment 18. I think that a local planning authority should have the right to impose a condition if it is in line with the National Planning Policy Framework. Therefore, I hope very much that, when he replies, the Minister will tell us that he agrees with the wording of the amendment.
Lord Young of Cookham
My Lords, I am grateful to all noble Lords who have taken part in this debate—particularly to the noble Lord, Lord Stunell, who may have endeared himself to me by saying that I could be trusted above every other noble Lord in the Chamber. However, I am not sure what the reaction of other noble Lords might have been to that. He also implied that I might not be in government for ever. That is a question which my wife sometimes asks me. I first joined the Government in 1979 and have left it four times, each time thinking it was the last time but each time, back I come. If the noble Lord, when he was a Minister in the DCLG, was given a one-line zinger to deal with any amendments, he was more fortunate than I am this afternoon.
Perhaps I may try to address some of the issues, which to some extent go broader than Amendments 18 and 25. First, I reassure noble Lords that this clause will not stop local authorities seeking to impose planning conditions that address any specific issue—the natural environment, heritage, archaeology or flood mitigation—where those conditions meet the policy tests in the National Planning Policy Framework. Those protections remain in place and changes to the Bill are not needed to maintain this position.
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
I must advise the House that if Amendment 19 is agreed to, I am not able to call Amendment 20 for reasons of pre-emption.
Lord Young of Cookham
I am grateful to the noble Lord, Lord Kennedy, for speaking to his amendments. He said that the Government had not set out the purpose of the clause. In response to the noble Lord, Lord Stunell, in the debate that we have just had, I set out the two main objectives of Clause 13. I hope that, on reading Hansard, noble Lords might find that that was a succinct explanation of why we believe that the clause is necessary. The policy was announced in the Budget last year and confirmed in the Queen’s Speech, and we have set out the case on several occasions during the passage of the Bill.
There are a substantial number of amendments in this group and if I am to do justice to them all, I am afraid that it may take a moment or two—although less time than when the speaking note was originally drafted. I will begin with Amendment 19, tabled by the noble Lord, Lord Kennedy, and the noble Baroness, Lady Parminter, which would remove subsection (3) of new Section 100ZA. This amendment would therefore remove an important constraint and safeguard on the power in subsection (1), much the same as Amendments 11 and 13, which we have already discussed. Subsection (3) requires that, before making regulations under subsection (1), the Secretary of State,
“must carry out a public consultation”.
This would afford the opportunity for local views to be put forward as part of the process for determining how the power will be exercised.
Lord Young of Cookham
“(6A) Before making regulations under subsection (6) the Secretary of State must carry out a public consultation.”
Lord Young of Cookham
“(8A) The Secretary of State must issue guidance to local planning authorities about the operation of this section and regulations made under it.(8B) The Secretary of State may, from time to time, revise guidance issued under subsection (8A).(8C) The Secretary of State must arrange for guidance issued or revised under this section to be published in such manner as the Secretary of State considers appropriate.”
Lord Young of Cookham
“( ) In section 333 of the Town and Country Planning Act 1990 (regulations and orders) after subsection (3ZA) insert—“(3ZAA) No regulations may be made under section 100ZA(1) unless a draft of the instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament.””
Tuesday 28th February 2017
(7 years, 8 months ago)
Lords ChamberNeighbourhood Planning Act 2017 Read Hansard Text Amendment Paper: HL Bill 101-II(Rev) Revised second marshalled list for Report (PDF, 104KB) - (27 Feb 2017)
16:17 - Division on Amendment 35 - Ayes: 278 / Noes: 188 - Amendment 35 agreed.
This text is a record of ministerial contributions to a debate held as part of the Neighbourhood Planning Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Baroness Deech (CB)
My Lords, my name is attached to this amendment. I have no interest to declare in every sense of the word. I became interested because the area where I live has seen a great deal of development. Houses have been pulled down; big new estates have arrived. The very few local pubs have served as stabilising factors and community centres. They are places where people can meet to get to know each other and, in particular, they act as a sort of verbal noticeboard to find out what is going on in the community. Communities would be much impoverished were these pubs to be closed down more readily.
All this amendment is asking is that pubs should not be treated more casually than other demolitions and changes of use. There can be no harm in this. I hope that the Government will see the truth of it.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, I thank noble Lords who have participated in this debate, in which there has been a great deal of passion and much agreement. There is not anything that divides us on the basic tenet that we want to protect pubs. Where there is a difference is on the best way of doing that. There is no disagreement about the diagnosis, only about the remedy. One or two noble Lords were, perhaps, in error—or have expressed themselves ambiguously—on one point. If you are converting a pub to residential accommodation, you need planning permission; that is already the case and this would not alter that.
I thank the noble Lords, Lord Shipley, Lord Tope, Lord Scriven, and Lord Kennedy, and the noble Baroness, Lady Deech, for speaking so effectively to the amendments. I reaffirm that the Government do recognise the importance that local communities place on valued community pubs. I have experience of this because, in another life, I was co-chair of the All-Party Beer and Pub Group in the National Assembly for Wales— one of my more pleasant jobs there—and met regularly with CAMRA and the British Beer and Pub Association. I was pleased to set out in Committee the range of support that we are providing to some communities to enable them to purchase their local pubs and to enable other pubs to diversify. I take the point made by the noble Lord, Lord Bilimoria, that this is a package of arrangements. It is not a silver bullet; we have to look at the problem more holistically.
Our package of fiscal measures—scrapping the beer and alcohol duty escalators and freezing beer duty at Budget 2016—has supported all pubs. These measures have made a considerable difference and have been widely welcomed across the House and in communities up and down the country. Some noble Lords have made the point that some pubs are not viable and no amendment we pass will make them so. There are others which we should seek to protect. There are things we can do today, but whatever we do will ameliorate and help the situation, not solve it with a silver bullet.
As I said I would in Committee, I have continued to give consideration to the issue of pubs and assets of community value, to try to do something that will address this across a range of pressure points and issues. I have met with the Campaign for Real Ale—an excellent organisation for which I have great respect—and the British Beer and Pub Association. I have to say to the noble Lord, Lord Bilimoria, that it was clear from our meeting that they are much more of the view that we should have a review than that we should press this amendment. I was intent on listening to their views to see how the current arrangements work.
I am very keen to respond to the concerns that have been raised today, and it is clear that a delicate balance needs to be struck. Indeed, the evidence put forward by the Campaign for Real Ale does not necessarily point to permitted development rights as having the most significant impact on pubs. I am keen that we should look at this issue and the evidence available to us. It is clear from these conversations that the majority of pubs that change use do so following local consideration of a planning application in relation to residential development rights—or, in this case, non-rights.
Figures provided by CAMRA estimate that 90% of pubs changing use do require planning permission. Where this is the case, for example for the change of use to residential, there are strong policy protections for pubs. Paragraph 70 of the National Planning Policy Framework requires local planning authorities to deliver the social, recreational and cultural facilities and services that the community needs, including pubs. That is why it is important for local planning authorities to have relevant, up-to-date, local policies in place to support their decision-making.
In respect of the change of use or demolition of pubs under permitted development rights, as noble Lords will know, the current arrangements already provide protections for pubs that are valued by the community. As has been indicated in this debate, permitted development rights for change of use or demolition are removed from those pubs that are listed as an asset of community value for the period of the listing. I have had a look at the process of nominating as an asset of community value. It is not complicated and there is no fee attached to it. Communities have responded positively, and more than 4,000 assets have now been listed, of which over half are pubs; a “very large number” as the noble Lord, Lord Shipley, said.
That is a sign of success, not failure, but I agree that we have to see how we can do better. My starting point would be to look at the impediments to other pubs being listed as assets of community value. For example, it may be that some local authorities are not looking at this in the way they should. I thank the noble Lord, Lord Scriven, for coming up with some evidence, which we have certainly had a look at. That, together with other evidence I have heard, has persuaded me that we do need to consider the issue.
While we recognise the intent of the amendments, we cannot support them as such. However, that is not to say that there is no room for improvement. Clearly, there is. I believe that there is scope for improvement in the assets of community value area. I am pleased therefore to be able to offer—as an alternative to pushing this to a vote—that the Government will undertake an open and transparent review of the current arrangements in respect of assets of community value and the planning regime for pubs, including looking at permitted development rights. The review would start no later than straight after the local elections, with a clear commitment to report within six months—that is, to come back in the autumn with a view to taking action on whatever the review throws up.
We all want to protect assets of community value. The review would therefore look at the process of nominating and listing pubs as assets of community value—at how communities can better be supported to take advantage of the community right to bid and have a say in the future of their pubs, while appropriately safeguarding the rights of owners. We would invite detailed comments from communities, pub owners, local authorities and interested parties on where changes, improved guidance and other support would be helpful. This could include looking at whether there was a case for changing the planning rules—that would be part of the review.
For example, from my discussions it is clear that across the country there are inconsistencies of approach. The evidence brought forward by the noble Lord, Lord Scriven, demonstrated that and, of course, there are other examples of local authorities not applying the rules in the way they should. While decisions on whether to list a pub as an asset of community value are rightly matters for individual local authorities, we can look at whether further guidance for communities and local authorities would be helpful. In one case I heard about, a local authority did not want to list a pub because it served alcohol—which seems rather to miss the point of what we are seeking to do. So I would be keen to put a spotlight on cases like that and make sure that we get some sense into the system.
Alongside this, the review would consider the impact of the removal of permitted development rights for change of use—including the impact on owners. I would also be keen to look at issues around the raising of finance, which the noble Lord, Lord Kennedy, and others have raised. It is inconsistent; some financing bodies do not regard listing as an impediment while others do. The objective is to ensure we get best practice here. The review would enable us to look at this on a fairly short timescale and on a much broader front. This is not just about planning issues; it is broader than that. It is also about the assets of community value approach, which does work extremely well in many parts of the country. In the borough of the noble Lord, Lord Kennedy—indeed, on his doorstep—the Ivy House, where he is, perhaps, an occasional rather than a frequent imbiber, appears to be working very successfully. So there are examples that we can use to inform this review of where the approach is working extremely successfully.
I would be content to put on the face of the Bill that we will have a statutory review within the timescale I have indicated. I do not think I can be fairer than that. This would look at things across the range and come up with evidence not just on the narrow area of planning permission but around the assets of community value scheme—which all parties have signed up to as a valuable process—to see if we can find a way forward.
I have been pleased to engage with noble Lords on these issues. We have had some good discussions and we share the aim of doing something positive. However, I believe that a review within this tight timescale would be the answer. I therefore ask the noble Lord and other noble Lords not to press their amendments.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords who have spoken in this debate. I am very grateful to them all. I agree very much with the comments of the noble Lord, Lord Scriven. His analysis of the problems experienced in Sheffield was very telling and highlighted that action needs to be taken. The noble Lord, Lord Bilimoria, was right when he spoke about the variety of food and drinks sold in pubs. I live in Lewisham and the pubs there have different offerings depending on their clientele. The amendment simply asks that those who want to convert pubs apply for planning permission, and I am delighted to have the noble Lord’s support.
The most reverend Primate the Archbishop of York spoke about the need to protect profitable pubs and I very much concur with what he said. My noble friend Lord Berkeley made an important point about the value of pubs to the community, and he mentioned in particular Cornwall, where he lives. The noble Lord, Lord Tope, highlighted the loss of local pubs by the conversion of an asset through permitted development and not because they are failing businesses. I am also very grateful to have the support of the noble Lord, Swinfen. I thank, too, the noble Lord, Lord Framlingham, for his supportive remarks. Like him, I have no shares in pubs, although I have spent quite a lot of money in them over the years.
I return to my earlier remarks about the visit to the House by representatives of the Royal Voluntary Service. They talked about how they would take people to a pub not just to have a drink but to meet their friends and family. They emphasised how that was an important part of getting people involved in their community.
The noble Lord, Lord Marlesford, was right: this is a modest proposal which simply allows the community to have a voice. The noble Baroness, Lady Deech, made an important point about the need to show that pubs are treated no less favourably or more casually than any other business.
That brings me to the comments of the noble Lord, Lord Hodgson of Astley Abbotts, with whom I did not agree. It was an interesting intervention but it did not address the substance of my amendment in any way. This amendment is not about propping up failing businesses. If a business is failing and cannot pay its way, meet its liabilities and return a modest profit, it will close. Nothing in my amendment seeks to change that, and it would have no effect whatever on the type of issue that the noble Lord raised. Not one word of my amendment would keep open a pub or business that was failing and not meeting its liabilities. It would simply close a loophole and ensure that, specifically on change of use, a planning application would have to be made and the local community would get to have its say. It would do nothing more and nothing less, and really should cause the Government no problems whatever.
I thank the noble Lord, Lord Bourne of Aberystwyth, for his remarks. I have great respect for him. He is an effective Minister and an effective operator in this House. He deals with all noble Lords with great skill and courtesy, as has been evident as he has taken the Bill through this House, and I am very grateful to him, as we all are. I have considered all the issues in today’s debate and in Grand Committee very carefully. I do not do anything by halves but clearly we are at the point of calling time on this debate, and I now want to test the opinion of the House.
Lord Judd (Lab)
My Lords, I should declare an interest as an honorary officer of the Campaign for National Parks. I am glad that the noble Baroness has introduced her amendment and is standing by it here on Report because this is a worrying development. A growing number of people deliberately defy the regulations that are meant to operate. It is not just a matter of building something for which they do not have permission and looking for retrospective approval; a more sinister element is that they get approval with conditions attached—for example, compliance with national parks’ general policy. However, the people then try to do what they want with the building and do not observe the conditions. There is an indication that they are doing this believing, for example, that the national park authority will be hesitant about pursuing them because it is worried about its budget, the costs and all the rest if that person appeals.
We must take seriously the prospect that the quality of an area can change within a short period because, once one person has done it, there is an invitation for all sorts of other people to do it too. I am glad that the noble Baroness is making a stand.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in this debate on Amendment 38. I particularly thank my noble friend Lady Gardner of Parkes, who has vast experience of not just national politics but, in particular, London politics. I know she feels very strongly about this issue. I have great respect for her and for the way she has presented the case. I am conscious that she has raised it on a number of occasions, most recently in Grand Committee.
Other noble Lords participated in the debate and sympathise with the general thrust of what my noble friend is seeking to achieve. They include the noble Lord, Lord Beecham, and the noble Lord, Lord Campbell-Savours, who stunningly remembers being on a planning committee 43 years ago. It is hard to appreciate that, but he clearly has vast experience in this area. There were also the noble Baronesses, Lady Pinnock and Lady Maddock, and my noble friend Lord True, who talked about good neighbourliness, which goes to the essence of it. The noble Lord, Lord Judd, sympathised with the thrust of what is being said here.
At the outset, I remind noble Lords that one thing that we are seeking to achieve in this legislation and more generally as a Government—supported, I think, by noble Lords from around the House—is localism, and therefore we have to be a little careful about resisting the temptation every time something goes wrong to weigh in and say, “That is not the right way to do it”. I appreciate that there is more to it than that, but we need to keep that sense of perspective in our minds.
The ideal is, of course, that everybody should seek planning permission before they start work. That is what the majority expect and, indeed, what the majority of people do. Sadly, as my noble friend Lady Gardner of Parkes has experienced, that does not always happen. We therefore need a way to deal with these cases. Where a local authority considers that a planning application is the appropriate way forward, it can invite a retrospective planning application. Otherwise, local authorities have at their disposal a wide range of enforcement powers.
My noble friend’s amendment calls for changes to the retrospective planning application process. I am afraid that the Government’s position on this has not changed. I think I said in Committee, and I say again now, that there are many cases where there is a genuine error, so we need this process to deal with that situation rather than a harsher regime. The retrospective planning application process is there primarily to give those who have made a genuine mistake the opportunity to rectify the situation, but I appreciate that the examples that get into the media are much higher profile than that. We have had the haystack case, the palace in Kirklees and so on. Different considerations will apply there.
Local authorities have other tools at their disposal. Local planning authorities have flexibility, but planning applications have to be determined in the same way as any other application. My noble friend did not receive notification of the planning application. That is a mistake under the current law, and we need to look at proper enforcement. If she is able to bring forward evidence of the process not being followed, I would be very keen to look at it with officials, and I undertake to do so. I am sure that there are things that we can be doing better in relation to that with a view perhaps to looking to the future rather than this legislation. She has highlighted an important problem.
There is no guarantee that planning permission will be granted just because the development already exists. We have seen examples where that has not been the case, so we know that there are local authorities that are tough and are probably doing the right things in relation to some development. In some cases, the impact of the development may be mitigated by imposing planning conditions on the retrospective grant of planning permission. Otherwise, local planning authorities have a wide range of enforcement powers, with strong penalties for non-compliance, at their disposal. Where an enforcement notice is served and the person appeals on the ground that planning permission ought to be granted, the person is deemed to have made an application for planning permission and must pay a fee. That fee is twice the fee that would have been payable in respect of a planning application to the relevant authority seeking permission for the matters stated in the enforcement notice. This is in recognition of the additional work and would obviously act as a disincentive in that situation.
My noble friend’s amendment would make retrospective planning applications compulsory for all breaches of planning control. As I say, we cannot accept that because we see situations where that would be inappropriate, as I think successive Governments have done. It would be difficult to enforce and could lead to delays and additional burdens. My noble friend’s suggestion of a penalty fee in addition to charges in respect of the costs incurred by the local planning authority would unfairly penalise those who had made a genuine error, and discourage the submission of such an application for proper consideration by the local planning authority.
That said, I recognise that my noble friend has brought forward a very important issue. As I say, if she is able to come forward with some evidence of local planning authorities not doing what they should be doing and not enforcing the law, I would be very keen to see that; if other noble Lords have experience of it, I would be very keen to see that too. I can give that undertaking. However, while thanking my noble friend for bringing forward an important issue which clearly has resonance around the House, for the reasons I have outlined and in the light of the undertakings I have given, I respectfully ask her if she would withdraw her amendment.
Baroness Gardner of Parkes
My Lords, I thank those who have spoken. I have been very impressed by how clear they have been and by how many have had direct experience of exactly what I have brought forward, which encourages me to think that we have a case that should be looked at. On my last amendment, the Minister remarked helpfully that he would be willing to look at the issues raised, particularly in terms of secondary legislation that was possibly going to come forward later in the year. If he could similarly assure me that this would be the case here, and the matter would not be just dropped and forgotten, I would be very happy to accept that assurance. It is an important issue, and ordinary people feel justifiably aggrieved when something like that happens and they did not even have the opportunity to know that it was going to happen before suddenly getting the letter which says “We have granted permission”. You did not even know anything was going to be considered, and it has gone through the whole retrospective permission without anyone being notified.
Perhaps the Minister could do something to ensure that people considering retrospective permissions see that the correct consultation takes place and that people know that these matters are being considered. It is very upsetting for people when they suddenly find out that it is all a fait accompli. A very telling point indeed was made that if someone is doing this as a deliberate policy, they will do it again and again. A lot has come out in the debate today and I just hope that the Minister will say that he will look thoroughly into these issues in terms of possible regulations or secondary legislation on the subject at a later date.
Lord Bourne of Aberystwyth
My Lords, I shall respond to my noble friend’s suggestion. There is certainly no intention to postpone action on this where action is needed, but I would first like to see the evidence of what the problem is before identifying possible solutions to it. I certainly give her the undertaking that I very much look forward to her bringing forward evidence, but some of this seems to relate not so much to not having the legal process there but to the legal process not being enforced. If we see evidence of that, we can look at how it can be properly enforced, but I am very happy to engage in discussion with my noble friend. I think she knows me well enough to know that that would not be with a view to postponing action but with a view to amassing the evidence so that we can look at this.
Baroness Gardner of Parkes
I thank the Minister for that undertaking, which is very valuable. It is up to us now, particularly those who have spoken today and who clearly have direct experience of this. I would be very grateful if they would bring forward cases that they have come across so that the Minister has a fairly good list of things, ranging over different parts of the country, because the practice varies from place to place. He has given a very fair answer to my debate and for that reason I beg leave to withdraw the amendment.
Baroness Andrews (Lab)
My Lords, I could not agree more with the noble Baroness, Lady Parminter. There is a strong argument for consistency of vocabulary and for the notion of significance in planning and the treatment of national assets. Paragraph 132 of the NPPF states that:
“The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction … As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification”.
This new status has taken many years to achieve. I remember having discussions in the department about how to increase the protection of ancient woodlands at least a decade ago. Thanks to the Minister and his officials, we have now got to the point where we recognise that there is an equivalence between a natural and a built asset. When we are dealing with the question of loss—even more than damage, in terms of ancient woodlands—it is fair to look at what equivalence can be made in relation to the NPPF. It is not just the use of language but the significance we attach to the notion of damage, and how extensive or irreparable it is, and to what it means to be wholly exceptional.
The formula which my noble friend Lady Young has come up with is quite sensible. It will save time and grief for planning authorities and people who have to deal with balancing these issues. Greater clarity and some consistency would be a help rather than an obstacle to achieving the objective and facilitating development.
Lord Bourne of Aberystwyth
I thank the noble Baroness, Lady Young of Old Scone, for her kind words and for raising again the important issue of protecting our ancient woodlands and veteran and aged trees. She should not underestimate the role she has played in putting this on the agenda. She made a very powerful case, as did other noble Lords. I thank noble Lords who have participated in the discussion, including my noble friend Lord Framlingham, the noble Lord, Lord Berkeley of Knighton, and the noble Duke, the Duke of Somerset. The noble Lord, Lord Judd, spoke with great force and passion as he always does on these issues; his generous words were most kind. I agree with the noble Baroness, Lady Parminter, about ensuring that we have watertight protection, and with the noble Baroness, Lady Andrews, who talked about consistency of vocabulary and these “irreplaceable assets”.
In Committee we had a range of passionate and compelling speeches including from many noble Lords who have spoken to this amendment. The noble Baroness, Lady Parminter, the noble Lord, Lord Judd, the noble Duke, the Duke of Somerset, and my noble friend Lord Framlingham all spoke then, and again today, about protecting these irreplaceable natural resources. The noble Baroness, Lady Young, so evocatively—almost hauntingly—described them as the “cathedrals of the natural world”. I do not know whether she has ever thought about taking up another career as a wordsmith, but there is a Daphne du Maurier role to be carved out there. For somebody such as me, who is particularly attracted to cathedrals, that haunting image certainly brings it to life.
We have responded positively and are now consulting on the housing White Paper. This is not part of the legislation but part of the housing White Paper; we have succeeded in getting it in there and are very much committed to this. At the end of the consultation the Government will, we hope, clarify the protections for ancient woodlands and aged and veteran trees along the lines we have been talking about in this debate. The proposed change would put policies on ancient woodland and aged and veteran trees alongside other national policies. I am pleased that the proposal was warmly welcomed by the Woodland Trust and I thank the Trust for its role in helping on this. I believe we are making massive progress.
A consultation on the White Paper is open until 2 May. I encourage noble Lords and, through them, other sympathetic organisations, to contribute to the consultation, so that we can achieve something along the lines that noble Lords have been discussing. We are holding engagement sessions with a variety of groups alongside the consultation, so that everyone has the opportunity to contribute their views. The consultation will enable us to work together with these parties on appropriate protection for these irreplaceable assets and habitats.
Lord Kennedy of Southwark
My Lords, I will speak very briefly because I want to ensure that the noble Lord, Lord True, can get off quickly to his budget meeting tonight. I certainly support the noble Lord and the noble Lord, Lord Tope, in their amendment and I am sorry that I did not actually sign up to it; that was an omission on my part. I am also very glad to be part of this south London, all-party coming together, certainly on behalf of Labour-controlled Lewisham. We would be very much in support of the amendment in front of us here. The noble Lord has set out a compelling case, and I hope that the noble Lord, Lord Bourne, can respond positively to that. I know that he will certainly try his best and I look forward to his response.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lords who have participated in the debate on this important amendment. I thank in particular my noble friend Lord True, who has been very committed to this issue. He has been a tireless advocate of change in relation to permitted development rights for office to residential and has been extremely generous with his time, both with me and with officials, particularly in sharing with us his experience in Richmond. There is no clearer indication of his commitment to his borough than that he is here this evening prior to going to the meeting on the all-important budget.
I also thank the noble Lord, Lord Tope, for giving his perspective from Sutton. I appreciate that this is largely a London issue. I do not know whether it is a particular issue in the borough of the noble Lord, Lord Kennedy, but it seems to be more focused on London than elsewhere—perhaps for understandable reasons.
Before turning to the detail of the amendment and what I am proposing, I will say a few words about why the Government see permitted development rights that support the delivery of new housing as an important tool in helping to address the current housing challenges the country faces. That is true of the Government, it is true of the department and it is true of the Minister, my honourable friend Gavin Barwell, although he does not believe that it comes without the need to act in particular instances. I do not think he sees this as a totally monochrome issue.
Lord Young of Cookham
“(2) The temporary possession of the land must be authorised by the type of instrument (the “authorising instrument”) that would be required if the acquiring authority proposed to acquire that land compulsorily for the purposes for which it proposes to take temporary possession of that land.”
Lord Young of Cookham (Con)
My Lords, the co-pilot is back in charge and I am hoping for a smoother flight than the one I had on Thursday, when I encountered some turbulence as we flew over Clause 13. I listened with some interest to the debate we just had as a former councillor of the south London Borough of Lambeth; that was a very long time ago. We now move on to Part 2 of the Bill and amendments to the compulsory purchase provisions. Noble Lords will have noted that there are a large number of government amendments. These are mainly to ensure that the temporary possession provisions in the Bill work as intended and are fair to all, but they also respond positively to issues raised by noble Lords in Committee.
Amendments 41 to 43 amend Clause 16, which sets out the procedure for authorising temporary possession. In Grand Committee the noble Baroness, Lady Parminter, spoke eloquently to the amendment tabled by the noble Baroness, Lady Andrews, and herself about the need to ensure that land held inalienably by the National Trust is appropriately protected in the context of the new temporary possession power. As I indicated we would, the Government have considered the matter further, and I am happy to tell both noble Baronesses that we are now in agreement that the special interest of inalienable National Trust land, and its irreplaceable nature, requires particular protection.
Amendment 42 is the principal amendment in this group. It makes provision for any inalienable National Trust land which is required temporarily to be subject to the same additional protection as National Trust land which is to be acquired by compulsion. This means that where the National Trust sustains an objection to the taking of temporary possession of any of its inalienable land, the authorising instrument will be subject to special parliamentary procedure, in the same way as it would if the land was being acquired by compulsion.
The other amendments are technical and consequential. Amendment 41 clarifies that temporary possession must be authorised by the same type of instrument as would have been used if the land in question had been compulsorily acquired for the same purposes for which temporary possession is needed. Amendment 42 works by an exception to Clause 16(3)(c), which provides that where an authorising instrument authorises temporary possession then, for the purposes of the procedures for authorising and challenging it, temporary possession is treated in the same way as compulsory acquisition. Amendment 42 is therefore drafted so that it disapplies special parliamentary procedure for special kinds of land except for National Trust land held inalienably. As confirmed in the Government’s policy paper published in December 2016, special kinds of land other than National Trust land will be subject to the serious detriment test in the temporary possession regulations made under Clause 26. Amendment 43 clarifies Clause 16(3)(c) by removing a potential ambiguity allowing the clause to be interpreted in two different ways.
I now move to Clause 17 and Amendment 45. In Grand Committee, the noble Lord, Lord Shipley, raised the issue of whether there would be a time limit on acquiring authorities exercising their power of temporary possession after it had been authorised. This is an important matter and I am grateful to the noble Lord for raising it. Amendment 45 addresses the issue by providing that acquiring authorities must serve a notice of intended entry within three years from the date on which the compulsory purchase order authorising temporary possession becomes operative. Where temporary possession is authorised by a different type of authorising instrument—for example, a development consent order—the time limit for serving the notice of entry is within five years of it becoming operative. These limits are in line with those where land is being acquired by compulsion.
Amendments 47, 50, 50A, 50B, 50C, 51, 52 and 61A deal with the power to override easements and other third-party rights over land taken for temporary possession. Where land is taken by compulsion, acquiring authorities have this power, which is necessary to ensure that there are no impediments to the scheme going forward. These third-party interests are typically rights to allow underground services such as water, gas, electricity and telecommunication belonging to one property to pass beneath the land of neighbouring properties; there are also rights of light and of way and covenants restricting development to certain uses or density. Land needed for a temporary period may also be subject to easements or restrictive covenants, so to avoid problems such as those with insurance or litigation it is necessary for acquiring authorities to have the power to override these rights when they take temporary possession of land. That is what these amendments do. The provisions are modelled on the corresponding provisions for schemes where land is acquired by compulsion as set out in Sections 203 and 205 of the Housing and Planning Act 2016. Amendment 51 is the principal amendment, as it contains the power to override a relevant right or interest. Amendment 47 sets out the compensation provisions.
Baroness Parminter
My Lords, I sincerely thank the Minister for the consideration that he and the ministerial team have given to the comments and concerns that I raised in Committee. I offer those thanks on behalf of myself and the noble Baroness, Lady Andrews, who is no longer able to be in her place. In particular, I welcome Amendments 42 and 55, which specifically address the concerns that we had about the impact of the temporary possession proposals on the special land that the National Trust holds for the good of the nation. I am delighted with the way that the Minister has retained the status quo for the National Trust’s inalienable land. I thank him most sincerely.
Lord Young of Cookham
I am grateful to all noble Lords who have taken part in this debate, particularly to those who welcomed the amendments tabled by the Government to meet concerns expressed earlier on.
If I may respond briefly to the very important issues raised by the noble Lord, Lord Campbell-Savours, no one is more anxious than I am to see more houses being built. In view of his interest, he might like to come along on Thursday, when we have a debate on the White Paper, which will be a broader debate about housing. I will make three quick points about the question that he raised. First, Clause 29, the no-scheme principle, makes no fundamental changes to the principle of compensation. It seeks to clarify where we are by looking at past cases and setting out some clear rules, Rules 1 to 5, so that we can, in future, fairly assess the compensation that people are entitled to if they are affected by a CPO.
The second point, which really arises from that, is that we have always paid the market value. For as long as I have been involved in this type of legislation, when somebody’s land or property has been acquired, we have always paid the market value. That is the right thing to do in a fair society; otherwise, one is verging towards confiscation. If you are going to take away something at less than its value from an individual who does not want to part with it, that is approaching what could be called confiscation.
Lord Campbell-Savours
The Minister talks about its value, but its value prior to the planner signing it off and designating it as land for housing is agricultural. That is what it is.
Lord Young of Cookham
The compensation is based on the existing use value. Sometimes that might have a hope value, and in some of the circumstances he has outlined, it might not be zoned for housing, but the market value might be slightly above agricultural value because of so-called hope value. That gets priced in. The important point is that we pay market value. What the noble Lord wants to do is to acquire it at below market value to facilitate the building of more houses. I understand that, but that is not the principle on which people have been compensated for the last 40 or 50 years; they have always had the market value.
Thirdly, the no-scheme principle says that if the value of your property has suddenly gone up because of something that the public sector is building—a station or whatever—then that is disregarded for the purpose of assessing its value. That is what we do: that is what the no-scheme principle implies, so you do not get the benefit of the public investment that has accelerated the value of your land. I hope that I have satisfied the noble Lord. Although he is smiling, I suspect that I might not have. On the rather slender hook of Amendment 62, he has hung a very substantial debate, perhaps more appropriate to the Second Reading of this Bill many months ago. Of course, however, I would be happy to have further discussions with him if he has any continuing concerns about how land is acquired compulsorily.
“( ) The acquiring authority may use land as described in subsection (1) even if this involves—(a) interfering with a relevant right or interest, or(b) breaching a restriction as to the user of land arising by virtue of a contract.”
“(A1) The appropriate national authority must by regulations make provision about— (a) the reinstatement of land subject to a period of temporary possession, and(b) the resolution by an independent person of disputes about reinstatement.”
““relevant right or interest” has the meaning given by section 20(11).”
“CHAPTER 3CONSEQUENTIAL PROVISIONConsequential provision
(1) The Secretary of State may by regulations make provision in consequence of any provision of this Part.(2) Regulations under subsection (1) may amend, repeal or revoke any enactment.(3) In subsection (2)“enactment” includes—(a) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978, and(b) an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales.”
Lord Bourne of Aberystwyth
My Lords, I will speak collectively to government Amendments 64, 72, 76, and 77. I listened carefully to the concerns raised during Grand Committee and am grateful to the noble and learned Lord, Lord Judge. He is not in his place but was most generous with his time in meeting with me between Committee and Report to discuss the matter further. I know that other noble Lords have focused on this area: the noble Lords, Lord Pannick, Lord Kennedy and Lord Beecham, and my noble friend Lady Cumberlege have all raised concerns on this.
These government amendments narrow the scope of the consequential power in Clause 40 to apply it to only Part 2 of the Bill—the part related to compulsory purchase and not the part related strictly to neighbourhood plans. We expect it to be most needed in relation to compulsory purchase and therefore have responded to concerns raised in Grand Committee.
The Government have also ensured that the new consequential power which applies to Part 2 of the Bill allows provision “in consequence of this Bill”, rather than provision which the Secretary of State,
“considers appropriate, to be made in consequence of this Bill”.
This change of words may appeal to those who thought that the original language was too subjective.
I do not wish to pre-empt any points that noble Lords may wish to make on this but I do want to address the concerns raised. We have responded to those concerns and significantly narrowed the scope of this provision in the Bill. I beg to move.
Baroness Cumberlege (Con)
My Lords, I declare an interest. As noble Lords are aware, I have a legal case pending. I took advice from the Clerk of the Parliaments and was told that the sub judice rule does not apply in my case. My other interests are in the Lords register.
I am very grateful to my noble friend Lord Bourne for adding his name to my Amendment 68. As he explained, it will delete the Henry VIII clause pertinent to the compulsory purchase and compensation part of the Bill and will narrow the scope of this clause. We had a robust debate in Committee and I was extremely grateful to the noble and learned Lord, Lord Judge, for speaking to the amendment there with such lucidity, force and wisdom. Again, he put his name to my amendment here but sends his apologies to the House because he has a long-standing engagement.
I am delighted that the noble Lord, Lord Pannick, is here this evening and will support the amendment, as will the redoubtable noble Lord, Lord Kennedy. Best of all, my noble friend Lord Bourne, the Minister, put his name to the amendment as well. I am sure that, having reached this agreement, he put in a huge amount of time and energy in negotiating to achieve what we have achieved this evening.
Lord Beecham
My Lords, I join other noble Lords in thanking the Minister and, indeed, in congratulating him on these substantive changes, which are ultimately, I suppose, a concession to the powerful arguments advanced, in particular by the noble and learned Lord, Lord Judge, and by the noble Lord, Lord Pannick, and other Members across the House.
It would have been good to see a similar approach from Ministers when we discussed the Housing and Planning Bill at great length last year. It is not a personal criticism of them; the Minister at that time, the noble Baroness, was not allowed to move in the direction in which Ministers on this Bill have been able to move, which I very much welcome.
For clarification, may I assume that my Amendments 71 and 75 are effectively covered by the welcome amendments that the Government have brought forward? That is right, and that is a repetition in the case of the previous amendments. However, I am not entirely clear about Amendment 67 in my name, which requires the Secretary of State to consult the Welsh Ministers before making regulations under Section 38. That proposal was dismissed on the previous occasion, although it had been a matter of strong concern to the Delegated Powers and Regulatory Reform Committee, to which the Government’s official response was extremely negative. I do not know whether the Minister can offer any assurance that, whether or not is contained in the amendment, the Government will consult Welsh Ministers. There was rather a general statement that this happens automatically. The purpose of including it in the Bill was to make sure that more than just custom and practice would apply in this case. It would therefore be helpful if the Minister indicated whether the government amendments cover my amendment or, in the event that they do not, whether he will again confirm explicitly that there will be consultation with Welsh Ministers before making regulations under Section 38. It would be preferable to include that in the Bill but, at the very least, a ministerial assurance would carry some weight. In those circumstances, if that were the position, I would withdraw my amendment.
Lord Bourne of Aberystwyth
My Lords, perhaps I may respond, particularly to the points raised by the noble Lord, Lord Beecham, in relation to Wales. I will pick them up at the end of this part of the review of other noble Lords’ amendments. I once again thank those who have participated in the debate, including my noble friend Lady Cumberlege, who set out a horrifying “Yes Minister” position. I am sure that one or two officials in our department will be listening but it is not regarded there as a training manual—although it possibly is the case in other departments. However, I give fair warning to anybody who thinks it is that it is not. The point was well made.
I am grateful for the welcome given by the noble Lord, Lord Pannick, to the position exhibited in the government amendments, as well as by the noble Lords, Lord Beecham and Lord Shipley. It was certainly the subject of my fruitful discussion with the noble and learned Lord, Lord Judge, who was instrumental in putting a strong case.
I confirm to the noble Lord, Lord Shipley, that the wording is the usual wording. I hope he is reassured by that.
Lord Kennedy of Southwark
My Lords, this is the last amendment on Report. We had a short debate in Grand Committee on 8 February. The amendments I tabled then and have tabled now are to help the discussion taking place between the department, the Government, Transport for London and the Greater London Authority in respect of the powers that those authorities think they need to dispose of land and help build more housing.
I am hoping the Minister will be able to respond to this and update us on where we have got to in discussions so far. I do not believe any agreement has been reached, as yet. I hope we are going to get somewhere and that we will not reach the end of this process with nothing having been agreed. That would be most disappointing. I got a fairly positive response from the Minister in Grand Committee. I will leave it there. I hope the Minister can respond positively and tell us that, although nothing has yet been agreed, the discussions are ongoing. We all hope that we will get some resolution before we reach the end of this process. I beg to move.
Lord Young of Cookham
My Lords, I am grateful to the noble Lord, Lord Kennedy, for the bridge-building way in which he moved the amendment. Amendments 65 and 66 seek to make new provision in the Greater London Authority Act 1999 which would amend the powers of Transport for London and the Greater London Authority to dispose of land.
Amendment 65 seeks to give Transport for London the flexibility to dispose of land for housing, even if a higher value use was available, provided the best consideration reasonably obtainable for housing use had been achieved. To achieve this, Amendment 65 would disapply the requirement for TfL to,
“act as if it were a company engaged in a commercial enterprise”.
Amendment 66 would remove the requirement for the GLA to obtain the consent of the Secretary of State to the disposal of land for housing, even if a higher value use was available, provided the best consideration reasonably obtainable for housing use had been achieved.
In Grand Committee, I promised to facilitate a meeting between the Government, the GLA and TfL before Report to discuss how we should respond to the concerns the noble Lord had raised. I confirm that that meeting has taken place.
We have been working with TfL to assess the impact of making the proposed amendment, but unfortunately we remain concerned about the potential impact of Amendment 65 on TfL’s overall receipts targets and consequently on public finances more generally. Given these ongoing concerns, I cannot accept the noble Lord’s amendment, but I can assure him that the Government will continue to work with TfL to address those concerns and ensure that TfL is able to meet both its housing and its receipts targets.
On Amendment 66, the noble Lord will be aware that the Government made a commitment in the housing White Paper to consult on extending the ability of local authorities to dispose of land at less than best consideration without seeking consent to do so from the Secretary of State.
Land disposals by local authorities are governed by a separate regime from those undertaken by the GLA. I do not believe it would be right in this Bill to reduce the protections established by the current requirement for consent of the Secretary of State for disposals by the GLA at less than best consideration. The White Paper did not specifically reference this GLA consent requirement, but I reassure the noble Lord that the scope of the consultation announced in the White Paper will extend to the GLA consent regime.
With the reassurance that we will continue to work with TfL and the GLA to find appropriate solutions to the very real concerns the noble Lord has raised, I hope he will be prepared to withdraw the amendment so that we can end Report on a consensual note.
Lord Kennedy of Southwark
I am happy not to press my amendments at this stage, but will just say that I do not know whether these discussions are ongoing. Is the noble Lord suggesting that there may be some light and that this may come back at Third Reading or is he suggesting that it is more likely that this will be addressed in a White Paper? Or could it be either? Some clarification on that would be useful. Important points have been raised. The Mayor of London has specific targets for building homes in London, and we all want to see that happen—but if you want to get it done, these things need to be addressed. With that, I beg leave to withdraw the amendment.
“( ) section (Consequential provision);”
Wednesday 15th March 2017
(7 years, 8 months ago)
Lords ChamberNeighbourhood Planning Act 2017 Read Hansard Text Amendment Paper: HL Bill 106-I Marshalled list for Third Reading (PDF, 74KB) - (14 Mar 2017)
This text is a record of ministerial contributions to a debate held as part of the Neighbourhood Planning Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
“Engagement by examiners with qualifying bodies etc
In Schedule 4B to the Town and Country Planning Act 1990 (process for making neighbourhood development orders), in paragraph 11 (regulations about independent examinations) after sub-paragraph (2) insert—“(3) The regulations may in particular impose duties on an examiner which are to be complied with by the examiner in considering the draft order under paragraph 8 and which require the examiner—(a) to provide prescribed information to each person within sub-paragraph (4);(b) to publish a draft report containing the recommendations which the examiner is minded to make in the examiner’s report under paragraph 10;(c) to invite each person within sub-paragraph (4) or representatives of such a person to one or more meetings at a prescribed stage or prescribed stages of the examination process;(d) to hold a meeting following the issuing of such invitations if such a person requests the examiner to do so.(4) Those persons are—(a) the qualifying body,(b) the local planning authority, and(c) such other persons as may be prescribed.(5) Where the regulations make provision by virtue of sub- paragraph (3)(c) or (d), they may make further provision about—(a) the procedure for a meeting;(b) the matters to be discussed at a meeting.””
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, before I speak to these important government amendments, I wanted to take the opportunity to express my thanks once again to noble Lords for their careful and thorough scrutiny of the Neighbourhood Planning Bill. The Government have listened carefully to the issues that have been raised throughout these debates and have brought forward amendments to address key issues.
The Bill that we now have before us is, I believe, a better Bill as a result of the scrutiny of this House and the wealth of experience that noble Lords have been kind enough to share. I thank noble Lords for their diligent and constructive approach at each stage. I am aware that a vast number of noble Lords has contributed to the debate during the Bill’s passage, but I particularly thank noble Lords on the Benches opposite, and certainly the noble Lords, Lord Kennedy of Southwark, Lord Beecham and Lord Shipley.
I thank my ministerial team in the department, my right honourable friend Sajid Javid, and particularly my honourable friend Gavin Barwell for their help and support. Furthermore, I thank my noble friend, co-pilot and Whip, Lord Young of Cookham, who adeptly led on the compulsory purchase elements of the Bill. Finally, I thank my officials, led by Simon Gallagher, Susan Lovelock, Darren McCreery and Robyn Skerratt, and the wider team, including my private office, and special thanks too to Grace Smith and Alanna Reid.
I now turn to the government amendments in this group. We had important discussions in Grand Committee and on Report about neighbourhood planning, and in particular the process for the examination of neighbourhood plans. My noble friend Lady Cumberlege led this discussion, and I am personally grateful for the way she did it. I should note that she was not the only participant making those arguments, and I thank my noble friends Lord Caithness and Lord Mawson and the noble Lords, Lord Kennedy, Lord Shipley and Lord Stunell, for their contributions. But I particularly thank my noble friend Lady Cumberlege for her continued generosity with her time, and for her commitment to working with my department constructively to ensure that the practice of neighbourhood planning continues to be in line with our collective aspiration to empower communities to develop neighbourhood plans. I am very conscious of the great pressure she has been under and the grace and generosity that has characterised her contribution to these important issues.
I want to set the amendment in the context of a number of important steps that the Government are taking to meet the concerns raised. I do so because the issues are too broad to be addressed through legislation alone. Noble Lords will recall that much of what needs to be done to address this important issue does not require legislative intervention.
First, we will amend planning guidance once we have taken into account the responses to the Housing White Paper consultation, to which I will return, to clarify our expectations of local planning authority engagement with neighbourhood planning groups before and during the examination process. Secondly, amendments to the Bill tabled in Grand Committee enable the Secretary of State, for example, to require authorities to set out in their statements of community involvement how they will provide advice or assistance to neighbourhood planning groups prior to examination. Thirdly, my noble friend Lady Cumberlege has raised the important role that local planning authorities play in supporting neighbourhood planning in their communities, so it is important that they have the necessary resources. This month, we have written to local planning authorities outlining the arrangements for our continued funding to them to support neighbourhood planning next year under the new burdens doctrine.
Lord Beecham (Lab)
My Lords, I join the Minister and the noble Lord, Lord Shipley, in paying tribute to the noble Baroness, Lady Cumberlege, for her very thoughtful and constructive—and somewhat exhaustive —approach to the deliberations on the Bill. It has been a pleasure to work with both the Ministers, but particularly, if I may say so, with the noble Lord, Lord Bourne. I make that point having discovered recently that he, like me, is a great fan of Leicester City; in my case, it is my second team. I rather hope we might be playing in the same league next season and I hope that will be the Premiership. In that event, perhaps the noble Lord would care to accompany me to a match, when naturally Newcastle will expect to beat my other team.
The substantive issue this afternoon is not the fate of either of those teams but the drawing to conclusion of the Bill. It has been a pleasure to work in such a constructive way with both Ministers, but principally, on the major part of the Bill, with the noble Lord, Lord Bourne. He has listened carefully and been very constructive in his approach. Indeed, the whole experience has been a vast improvement on the dreadful time we had with the Housing and Planning Act last year. That is no reflection at all on the noble Baroness, Lady Williams, who struggled mightily to retain her sanity and promote ours during the course of that legislation.
I have one or two questions about Amendment 1. Proposed new sub-paragraph (3)(d) says that a meeting should be held following the issuing of invitations, which are outlined in proposed new sub-paragraph (3)(c). Is that a meeting with an individual, or is it envisaged as a public meeting in which other interested parties would be involved? There might be a number of people who make submissions; there might be only one or two. Would that meeting be just with those who make the contact, or will it be on a broader basis? The definition of “persons” is slightly mysterious. It talks about,
“the qualifying body … the local planning authority”—
that is obvious—
“and ... such other persons as may be prescribed”.
Can the Minister indicate what is envisaged by that rather muffled description?
Then there is the question of the regulations. Will the regulations themselves be subject to consultation? The noble Lord, Lord Shipley, referred to consultation. Will the specific regulations in relation to this amendment be subject to consultation in the way that the Minister has described generally the consultation which will take place on other matters?
Having said that, and while I wait with anticipation to hear the Minister’s response, again I congratulate him and the noble Lord, Lord Young, on the way they have conducted this matter. I look forward to that degree of co-operation continuing over the secondary legislation that will follow. It is very important that the Bill should go forward into practice in a way that, frankly, we have not yet seen adequately with the Housing and Planning Act 2016. I hope that we can learn from that experience and carry the Bill forward in the constructive way that Members of all sides have sought to treat it.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in the debate on these two amendments. First, I thank once again my noble friend Lady Cumberlege for the gracious way that she has approached this, and for her kind words in welcoming the amendment and the flow chart. I suspect that her kind words about the role of the officials in the flow chart will have its cost in terms of drinks and cakes; nevertheless, I thank her very much indeed for those kind comments. I can confirm to her and to other noble Lords that the regulations will be subject to the negative procedure which, given the weight of business we will have as a consequence of the EU withdrawal process, is welcome news.
I thank the noble Lord, Lord Shipley, once again for his kind words and very much agree that this is a better Bill because of the scrutiny that has come from all parts of the House. I agree that there is support for the neighbourhood planning principle from all parts of the House and it is important that we see that to safe haven. Clearly, it is not just about the Bill. I very much agree with him on the plain English guide—I know that he made that point before very forcefully. We will certainly do what we can with the website and the flow chart. I would welcome participation and views from noble Lords as to how we can improve them. I will pass on the thanks that he gave to the RICS for the practitioners’ guide. I am sure we all hope that that will be in plain English, as it is extremely important.
I turn to a point raised by the noble Lords, Lord Shipley and Lord Beecham, and my noble friend Lady Cumberlege in relation to the timing of the regulations. Clearly, as the consultation ends on 2 May, I cannot anticipate how many responses we will have in relation to this matter. I hope that it will be quite a lot. We intend to move quickly and not to delay things, but we need to make sure that the system works well. I hope your Lordships will understand that we would want some time to take account of those views. In relation to the very fair point made by the noble Lord, Lord Beecham, about continuing the process of consultation and getting it right by discussing it with others, I would anticipate discussing the shape of what we are going to do with my noble friend and with the noble Lords, Lord Beecham, Lord Shipley and Lord Kennedy, and others, but that would not be to slow the process down. We have to get the balance right there, but I would be very happy to do that.
I thank the noble Lord, Lord Beecham, for his generous invitation to St James’. An invitation from me would be to the King Power Stadium, if we are indeed in the same league next year. As he may know, I am in Newcastle on Friday of this week and when I said that I am visiting the two cathedrals, many people told me that there are actually three cathedrals—the third being St James’. I do not think I have time for it on this occasion, but I look forward very much to locking horns over football for once, rather than over politics. I am sure that would be a game we would both enjoy.
In relation to the points made by the noble Lord, Lord Beecham, about who is included under new sub-paragraph (3)(d) in Amendment 1, we want to make sure that there is an open, fair and transparent procedure. In relation to meetings, therefore, I do not think we would want to stipulate that a group should be of a particular size. It would not be just individuals, but if somebody wanted to come along from the neighbourhood group with a fair number of people, we would be looking to that. We are not prescribing anything; it is important that it is an open and transparent process. In relation to other bodies that may be prescribed, I think that other amenity groups might have an interest in the area—I will write to the noble Lord if I am wrong on this—and it could conceivably be the National Trust, if it had property there. I anticipate it would be that sort of thing.
I have dealt with the noble Lord’s point in relation to the consultation on the regulations, which will, as I say, have the negative procedure. I thank again those noble Lords who have participated in the debate on these amendments.
Lord Mawson (CB)
My Lords, I have just come out of a meeting this afternoon. I chair the regeneration and communities committee on the Olympic Park. I have been involved with the Olympic Park from the very beginning; I think this is year 18. We have been on a very long journey. Along with a colleague I wrote the document for Hazel Blears that eventually led to the setting up of the Olympic Park Legacy Company, which of course now is a corporation. So one has watched and been involved in all the detail of what is now happening in Stratford in east London, which is a very exciting cluster development. This afternoon we have seen a new school at Here East, businesses and housing all coming together.
There are one or two cautionary lessons. First, local authorities can be very good if you have the right leadership in place to drive them, but if you do not then very different things can go on. It is all about the people, not structures. I know from experience that local authorities, if they are not so good, can be warring factors and can play lots of politics around these things that do not deliver the best quality but sometimes undermine that.
Secondly, we have learned that it is important to have the right serious business partners on the board of the corporation who, together with public sector leaders and leaders in the social enterprise sector, buy into a narrative over a long period of time; and that getting the top, middle and bottom of these institutions to buy and act out that narrative is important as well.
Ultimately, it is all about people and relationships. Our experience suggests that giving local control is very important, but I suggest that it is not just about local authorities—it is about the relationships between people in business, the public sector and, particularly, the community sector. Sometimes local authorities can talk as though they represent and understand the local community, but I have found over the years that that might not actually be true. It is about the right relationships, the right people and the right experience around the table.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in the debate on Amendment 2. I thank particularly the noble Lord, Lord Taylor of Goss Moor, for moving it, supported by the noble Lord, Lord Best. I thank them both and indeed other noble Lords for their time and commitment on this issue and for the opportunity to discuss this matter. We have discussed it both in Committee and on Report, and I have been heartened to hear the support for the measure from across the Chamber.
This amendment seeks to support the creation of locally led garden towns and villages by enabling the responsibility for any development corporation created under the New Towns Act 1981 to be transferred to a local authority or authorities, covering all or part of the area designated for the new town or village. On the point made by my noble friend Lord Porter, I think the definition is broad enough to include unitary authorities; that is certainly the intention. On a different point about combined authorities that was made by the noble Lord, Lord Beecham, of course we can create mayoral development corporations in relation to the new combined authorities—we did so with Teesside a couple of weeks ago—so that could well be part of the deal with the new authority. However, along with other noble Lords, I would want to think carefully in conjunction with the combined authorities as to whether they wanted to take that power on. I think I am right in saying, although I may be wrong, that the designated garden towns and villages do not come within the purview of what at the moment is projected as a combined authority, but it is a point well made. Therefore, I would like to go away to ponder this and give a fuller response to the noble Lord, if I may, copying it to noble Lords who participated in the debate and putting a copy in the Library.
The aim of the amendment is entirely consistent with those of the Bill. The Government certainly support it and I thank in particular the noble Lord, Lord Best, for his pre-emptive congratulations on the Government’s support. The amendment is very consistent with the approach of the Government, the department and the recently published White Paper in relation to the importance of localism.
I take the point of the noble Lord, Lord Mawson, about the importance of ensuring that all local authorities have the right attitude to these things. We hope that is accomplished through elections but the broad principle of it being done locally must be right. That has been echoed throughout the contributions on this legislation as it has gone through the House: local is better. We know that a number of local authorities—for example, those in north Essex—are interested in taking advantage of the new opportunity that the amendment would provide to support a new generation of locally led garden towns and villages, the 21st-century heirs to Letchworth and Welwyn.
I also welcome the support of the Local Government Association and the kind words of my noble friend Lord Porter for the principle behind the amendment. I am very pleased that it commands wide support throughout the House. This is a simple principle; making it work in practice will require detailed modifications to the New Towns Act, which my department will develop. We will want to keep in close contact with the noble Lords, Lord Taylor and Lord Best, both of whom I thank very much for the impetus and enthusiasm they have given this and the expertise they bring to the table. I pause at this stage to pay tribute to their work as effective champions of this issue throughout discussions on the Bill.
In conclusion, I am very pleased to support the noble Lord’s amendment, which will help to fulfil an important White Paper commitment.
Lord Taylor of Goss Moor
My Lords, I shall respond very briefly. I thank the noble Lord, Lord Best, for all his support and encouragement, not only on this Bill but previously. I should also thank my noble friend Lady Parminter, who was in the Chamber but has had to go, for moving an amendment for me on Report that enabled this matter to be brought forward.
We have had a promise from the Minister to come back on the point made by the noble Lord, Lord Beecham. I should make it clear that the intention is absolutely that more than one local authority can be involved. We need to explore the mechanism for that and hear what the Minister has to say, but the ability for more than one authority to come together is here. I therefore imagine that in practice nothing would stand in the way of the point that was raised.
On the point of the noble Lord, Lord Porter, about unitary authorities, the intention is that they should be covered. Indeed, having worked very hard to support the creation of a unitary authority in Cornwall, I would be horrified if I had managed in any way to get the drafting wrong on that point, but I believe it is covered.
I absolutely take the point of the noble Lord, Lord Mawson, and thank him for his support. In my comments, I talked about the fact that although the mechanism is here for local authorities to take a leadership role, the expectation is absolutely for a partnership approach. I thought quite hard about how one might look at the structures of a corporation. It is very important that this is not a 1950s or 1960s view, whereby a local authority chief executive is appointed and gets on with the job. The world has moved on since then. My view has always been that you need, as we see in Europe and in the States, a master developer and a master planner; you need expertise and business experience.
I chair a joint strategic board for the Carclaze garden village, which has been many years in gestation. The key thing has been to bring together the local authority, the private sector-led development body and the landowner in a partnership. That partnership has been incredibly successful. It took the development through the recession after 2008. The developer is Egyptian-owned, so the partnership took it through the storms of the Arab spring in terms of its financing. It is now in front of planning, and I think will be delivered. That has been possible only because we have built a really strong partnership between all parties, including the private sector, so there is a very deep experience of people creating fantastic places for business reasons, as well as the very important experience of the council representing people and understanding the processes of local government. There has been a great partnership with the HCA as well.
I could not agree more with the noble Lord’s comments. That is why, although this provision uses the powers of the New Towns Act, it is very much in a 21st century setting—and that is not just about localism; it is about partnership between all the stakeholders. I also make the point that it is about holding people to promises, because too often people see wonderful designs at the stage when something is proposed, but the moment when it is allocated or an outline is commissioned, it is traded and traded and, somehow, it gets watered down and not delivered. That experience is important for business, too.
Lord Beecham
My Lords, I support the amendment and I hope the Government will react sympathetically to the objectives that noble Lords outlined. We certainly are at one with them. I speak from my experience in Newcastle. It is important that the Government should see the logic of the case that is made in the amendment, and I hope they will treat it accordingly.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in the debate on Amendment 3 in relation to office-to-residential conversion. I particularly thank my noble friend Lord True and the noble Lord, Lord Tope, for bringing before us again the issue of permitted development rights for change of use. This enables me to set out in more detail the proposal that I put before noble Lords on Report in a very sketchy form, and to which I promised to return. At the time, I spoke about the potential benefit of allowing greater flexibility over whether the permitted development right for the change of use from office to residential should apply to those areas that are delivering the homes that their communities need. I am sure noble Lords will agree that it is in everybody’s interest to ensure that we do not put future housing delivery at risk. In fairness, that point was made by the noble Lord, Lord Tope.
The housing White Paper sets out compelling evidence of why it is crucial that we fix our broken housing market—one of the greatest barriers to progress in Britain today. Noble Lords will know that in the year to March 2016, over 12,800 homes came from the change of use from offices to residential alone. However, as I said on Report, I recognise that while the national picture is positive in terms of the contribution of permitted development rights to housing delivery, in some places there have been concerns about the local impact.
We can all agree that some authorities are high performers in delivering new housing. I am therefore pleased to confirm our future approach to Article 4 directions to remove the permitted development right for the change of use from office to residential where the local planning authority is delivering 100% or more of its housing requirement. As we have set out in our recent housing White Paper, we will introduce a new housing delivery test which will measure an area’s local housing delivery against its housing requirement. It is proposed that the housing delivery test will be measured as an average over a three-year rolling period and data will be published alongside the net additions statistics in November each year. We propose that housing delivery will be assessed against an up-to-date local plan, London Plan or statutory spatial development strategy—or in their absence, published household projections—and that the first housing delivery data will be published in November this year. This will indicate to local authorities whether this additional Article 4 flexibility would apply to directions they brought forward after this date.
We are committing today that, following the publication of the housing delivery data, where an authority is meeting 100% of its housing delivery requirement and can continue to do so after removal of the right, and where it is able to demonstrate that it is necessary to remove the right to protect the amenity and well-being of a particular area—that might address the point that the noble Lord, Lord Tope, raised; there is still that continuing obligation although it may conceivably be a larger area than at present, but there is not the necessity to satisfy that test—the Secretary of State will not seek to limit a direction applying to that area.
When considering whether to bring forward an Article 4 direction regarding office-to-residential conversion, the local planning authority must demonstrate that it can continue to meet its housing requirement when the right is removed. This provides an important safeguard to ensure that local areas will continue to deliver the homes that communities need. For instance, we know that in the year to March 2016, the homes delivered under the right made a significant contribution to housing delivery in some areas.
Importantly, the Article 4 direction must continue to meet the test set out in the National Planning Policy Framework. As I say, the local planning authority must still provide robust evidence to demonstrate that removing the permitted development right is necessary to protect the amenity and well-being of the area where the right is to be removed. This could include impact from the loss of office space. I hope that is helpful to the noble Lord and to other noble Lords who have participated in the debate on the Bill. Where these tests are met, we would look more generously at the area across which the direction would apply and not seek to limit the direction. Of course, housing delivery changes over time. Therefore, local planning authorities should review their housing delivery annually and, if it falls below 100% in subsequent years, we would expect them to review the direction and cancel or modify it as necessary. The local authority may then be able to bring forward a further direction at a later date on the back of improved delivery where it had dipped below the housing delivery test.
This approach reflects the intent of the noble Lords’ amendment. It allows areas that are meeting their housing requirements local flexibility in having a greater say over where the right will apply as long as they can demonstrate that removal of the right is necessary and that they will continue to meet their housing need. It enables local planning authorities to determine such cases in accordance with their local plan, any neighbourhood plan and other material considerations. At the same time, it provides safeguards should housing delivery decline. Moreover, it does so within the existing Article 4 processes, with which local planning authorities are familiar.
Lord Bourne of Aberystwyth
My Lords, in moving to this last amendment to be debated, I should note that this is a minor and technical amendment to correct a drafting inconsistency between Clauses 27(2) and 42(3).
In Clause 27, the Secretary of State has the power to make regulations concerning the temporary possession of land under subsections (1), (2) and (3). The Welsh Ministers, however, have the power to make regulations only under subsections (1) and (3) because none of the legislation referenced in subsection (2) is devolved. Therefore, Clause 42(3) specifies that regulations made by the Welsh Ministers under Clause 27 must follow the affirmative resolution procedure. Amendment 4 thus removes the redundant reference to Clause 27(2). I beg to move.
“(3) The regulations may in particular impose duties on an examiner which are to be complied with by the examiner in considering the draft plan under paragraphs 10 and 11 and which require the examiner—(a) to provide prescribed information to each person within sub- paragraph (4);(b) to publish a draft report containing the recommendations which the examiner is minded to make in the examiner’s report under paragraph 13;(c) to invite each person within sub-paragraph (4) or representatives of such a person to one or more meetings at a prescribed stage or prescribed stages of the examination process;(d) to hold a meeting following the issuing of such invitations if such a person requests the examiner to do so.(4) Those persons are—(a) the qualifying body,(b) the local planning authority, and(c) such other persons as may be prescribed.(5) Where the regulations make provision by virtue of sub-paragraph (3)(c) or (d), they may make further provision about—(a) the procedure for a meeting;(b) the matters to be discussed at a meeting.”
Tuesday 25th April 2017
(7 years, 6 months ago)
Lords ChamberNeighbourhood Planning Act 2017 Read Hansard Text Amendment Paper: HL Bill 121-I Marshalled list for consideration of Commons reason and amendments (PDF, 67KB) - (24 Apr 2017)
This text is a record of ministerial contributions to a debate held as part of the Neighbourhood Planning Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Bourne of Aberystwyth
That this House do not insist on its Amendment 12 to which the Commons have disagreed for their Reason 12A.
Commons Reason
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, I wish to update the House following the consideration of the Lords amendments to the Neighbourhood Planning Bill in the other place on 28 March. There are two matters before your Lordships’ House that will be discussed today: pubs and planning conditions. I shall be brief in relation to those two areas.
I turn first to planning conditions. As highlighted during the Bill’s passage, the power to make regulations prescribing what kind of conditions may or may not be imposed and in which circumstances is already constrained in the clause. To reiterate, new Section 100ZA(2) already provides that the Secretary of State may make regulations under subsection (1) only if he considers that these regulations are appropriate to ensure that conditions imposed on a grant of planning permission meet the policy tests in paragraph 206 of the National Planning Policy Framework, which states:
“Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects”.
The amendment originally proposed by the noble Lord, Lord Stunell, sought to restrict the Secretary of State from using this power under subsection (1) to prevent a local planning authority imposing a condition that would otherwise conform to the National Planning Policy Framework. At the heart of the amendment sits a test of whether the regulations prevent a local planning authority imposing a condition that meets the National Planning Policy Framework and, in particular, those policy tests in paragraph 206.
It is right that the Government do not intend to use the power to prevent local authorities imposing planning conditions that accord with the National Planning Policy Framework. However, the specific amendment is unnecessary, as subsection (2) has the effect already that any regulations made under these powers must be consistent with the long-standing policy tests for conditions. Indeed, the subsection makes it clear to those reading the legislation that the power seeks to ensure conformity with those tests. The position of the other place during the consideration of the amendment was that it agreed with the Government that the amendment was unnecessary, and there was no Division on this point. Therefore, I ask noble Lords not to insist on the amendment.
On consideration of the other matter, planning protection for pubs, I am sure I need not remind noble Lords of the amendment introduced by the noble Lord, Lord Kennedy of Southwark. I thank him and others who have worked so constructively with me on this issue, in particular, my noble friends Lord Framlingham, Lady Cumberlege and Lord Hodgson and the noble Lords, Lord Shipley, Lord Tope, Lord Scriven, Lord Berkeley and Lord Cameron of Dillington, the noble Baroness, Lady Deech, and the most reverend Primate the Archbishop of York. The Government have carefully reflected on the points raised during the Bill’s passage about the importance local communities place on valued community pubs. I hope noble Lords will agree that we have reflected the will of this House in bringing forward our amendment in lieu, which sets out the detail of the changes we will make to protect and support pubs.
We will amend the Town and Country Planning General Permitted Development (England) Order 2015 to remove all existing permitted development rights for the change of use or demolition of A4 drinking establishments, including pubs. This will include the rights to change to a restaurant or café, financial or professional service, a shop or a temporary office or school. We believe that this is best achieved by retaining the A4 drinking establishments use class for pubs, wine bars and other types of bar. Our intention in doing so is to allow pubs to develop within this use class—for example by opening the pub garden—without facing uncertainty about whether planning permission is required. I hope noble Lords will recognise the benefit of the Government’s approach.
Separately, we have listened to points made in this House about the need for pubs to be able to expand their food offer to meet changing market needs and support their continued viability. Therefore, as part of our support for pubs, we will introduce a new permitted development right to provide them with an additional flexibility. The right will allow the pub to expand its food offer beyond what is ancillary to the pub business without planning permission being required but, importantly, it will not allow the pub to become a restaurant with only a token or ancillary bar.
The changes we are bringing forward address the long-standing call that proposed development which would result in the local pub ceasing to operate should be considered locally, allowing the community to comment on the future of its local pub. It is important that local planning authorities have relevant planning policies in place to support their decision-taking. Noble Lords will be reassured to know that both the Campaign for Real Ale and the British Beer and Pub Association have welcomed our proposed approach and personal commitment to helping our pubs survive and prosper. Noble Lords will be keen to see regulation as soon as possible, to prevent any further loss of pubs without local consideration. I can therefore commit to laying secondary regulation immediately after Royal Assent, to come into force before the end of May.
Noble Lords will be reassured to know that the regulations will contain provision to guard against opportunistic use of the permitted development rights before they are withdrawn. Under the current regulations, a developer must first make a request to confirm whether the pub is nominated or listed as an asset of community value. Where a request has been made fewer than eight weeks before the order comes into force, the order will not allow development to take place. I therefore ask noble Lords not to insist on Amendment 22 and to agree with our amendment in lieu. On that basis, I ask the noble Lords to withdraw the points they made earlier in relation to these two matters and to agree with the two Motions put forward by the Government.
Lord Stunell (LD)
I thank the Minister for what he has said. I remind the House that the matters in Clause 12 have been debated at each stage of the Bill. There is widespread understanding that this is a good Bill and it has a lot of support, but to many noble Lords Clause 12 seemed out of place. It either gives new powers to the Secretary of State to regulate, as he sees fit, the decisions of local planning authorities—which it is feared could be at the expense of the National Planning Policy Framework—or it is of nil effect because the NPPF already provides the boundaries and constraints. The critics have tended to the first view and the Government to the second. The critics, including me, feared that this Government, or a future one, might use this regulatory power in a way that undermined the capacity of local planning authorities to use the NPPF as it was intended. The Government have, quite understandably, taken the contrary view, which the noble Lord, Lord Bourne of Aberystwyth, has just put.
This House accepted my amendments limiting the Secretary of State’s ability to regulate. That came not just from this quarter of the House—it had widespread cross-party support. Indeed, beyond cross-party, the most reverend Primate the Archbishop of York also contributed to the debate on Report and supported us in the Lobby. Therefore, this is not in any way a party political or partisan issue; rather, it is about firmly entrenching the right of local planning authorities to set planning conditions in accordance with the NPPF and without fear of being second-guessed or overruled by the Secretary of State’s regulatory power. Putting it another way round, it establishes, or was intended to establish, the primacy of the NPPF as the touchstone of legitimacy in judging planning conditions rather than the latest fad of the spads in the DCLG. That is what my amendment did. The Minister—the noble Lord, Lord Young—was very helpful on Report, as far as his brief would allow, but not sufficiently eloquent to persuade your Lordships of the Government’s point of view, and the amendment was passed.
I thank the noble Lord, Lord Bourne, for the work he put in subsequent to that and the discussions that we had. We clearly did not have a full meeting of minds, which was probably as much my fault as his. However, gradually, the essence of the argument made across parties at each previous stage of the Bill has seeped into our proceedings and on to the record.
The noble Lord, Lord Bourne, referred to the letter that he circulated, and we see it in the reasons before us for rejecting your Lordships’ original view on this matter. It is extremely important that it is clear that it will always remain lawful and legitimate for conditions to be imposed by local planning authorities provided they conform to the requirements of the National Planning Policy Framework. Indeed, that is the reason before us for the Commons rejecting the amendment. I remind your Lordships that the reason states:
“Because section 100ZA already has the effect that the regulations must be consistent with the tests for planning conditions in the National Planning Policy Framework”.
That is clearly the Government’s view and the view of the other place. I hope it will turn out to be the view of all future Governments and Ministers and, in the case of dispute, that the courts will share that benign view and interpretation of Clause 12. I believe that the Government’s declared intentions would be far clearer with the amendment that was originally proposed. However, on this occasion, with grateful thanks to those around the House who supported the original amendment on Report and valiantly joined me in fighting the fight, I will not press the matter any further.
Lord Kennedy of Southwark (Lab)
My Lords, as this is my first contribution on these matters, I refer Members to my declaration of interests in the register. I declare that I am an elected councillor in the London Borough of Lewisham, a vice-president of the Local Government Association and the vice-chair of the All-Party Parliamentary Beer Group.
In respect of Motion A, I am disappointed that the other place did not accept the amendment from the noble Lord, Lord Stunell, although I accept the point made by the noble Lord, Lord Bourne, that the other House did not divide on the issue. I hope that the noble Lord, with his colleagues in the department, will keep this matter under review so that, if it turns out that the provision needs to be strengthened, we can return to it at a later date. The noble Lord, Lord Stunell, made a very important point about the primacy of the NPPF.
In respect of Motion B, I am delighted that the Government have listened to the campaign both inside and outside Parliament. I pay tribute to two Members of the other place—Charlotte Leslie, the Conservative Member of Parliament for Bristol North West, and Greg Mulholland, the Liberal Democrat Member for Leeds North West—for their campaigning over a number of years to bring about this change.
I also thank all the Members of your Lordships’ House who supported me in the debate and in the Division Lobbies. I particularly want to thank those Conservative Members who voted with me and those who kindly abstained, as that played an important part in getting a large majority when I tested the opinion of the House. I also thank the noble Lord, Lord Bilimoria, for his generous support in the debate, as well as others, such as the noble Lord, Lord Cameron of Dillington, the noble Baroness, Lady Deech, and the most reverend Primate the Archbishop of York. I am also grateful for the support that I received from the noble Lords, Lord Shipley and Lord Scriven, and others.
The amendment proposed by the noble Lord, Lord Bourne, corrects a loophole that was of great harm to successful pubs, and it protects and helps them. In the previous debate I was very clear that the intention behind what I proposed was never to keep open a pub that was not a successful business but to support successful businesses.
I like pubs and I like a pint. Like the noble Lord, Lord Framlingham, I probably should have bought a few shares in the odd pub or brewery; I have certainly spent enough money on beer over the years.
I also pay tribute to the fantastic work done by Tim Page, the chief executive of CAMRA, Amy O’Callaghan, its senior campaigns officer, and all the members of CAMRA in branches across the country who emailed and phoned us and Members of the other place.
This amendment is important, and I am grateful to the Government and the noble Lord, Lord Bourne, for listening. It is an example of the House of Lords doing its job well. By winning the argument on the original amendment, we created the conditions for the Government to think again and we have a great solution today that I am delighted to support.
Lord Bourne of Aberystwyth
My Lords, I thank all noble Lords who participated in this debate on Motions A and B; I will not detain the House long. I genuinely thank all noble Lords who participated in the discussion on this important piece of legislation. I also thank my right honourable friend in the other place, Sajid Javid, and my honourable friend Gavin Barwell, the Minister for Housing, who have been very supportive and helpful.
Turning first to Motion A, I thank the noble Lord, Lord Stunell, for his generosity of spirit. I agree that there is a difference between us on the way that this is to be interpreted. I believe that the National Planning Policy Framework provides the necessary security, but I am most grateful for his generous words and the very fair summary that he gave.
Turning to Motion B, I first raise a metaphorical glass to my noble friend Lord Hodgson on his birthday. Perhaps there will be an opportunity for people to exhibit support for this new position after the debate. I thank him for what he said about our having harnessed the support of both CAMRA and the British Beer & Pub Association, as well as this House. I also thank my noble friend Lord Framlingham for his extremely kind words and the noble Lord, Lord Shipley, for his support of this amendment. He has been a pleasure to work with throughout this legislation—always fair and always with good advice.
I join the noble Lord, Lord Kennedy, in thanking Charlotte Leslie and Greg Mulholland in the other place for their help, and I thank the noble Lord for what he has done in this legislation and what he does for pubs on a continuing basis; it has not gone unnoticed and has certainly helped the sector greatly. I thank all noble Lords very genuinely, as the noble Lord, Lord Kennedy, said, for having demonstrated the House of Lords at its best in looking at and amending this legislation, and in moving forward very sensibly, not least in respect of matters raised by my noble friend Lady Cumberlege. On that note, I commend Motion A.
Lord Bourne of Aberystwyth
That this House do not insist on its Amendment 22 and do agree with the Commons in their Amendments 22A and 22B in lieu.
Commons Amendments in lieu
“Permitted development rights relating to drinking establishments
(1) As soon as reasonably practicable after the coming into force of this section, the Secretary of State must make a development order under the Town and Country Planning Act 1990 which—
(a) removes any planning permission which is granted by a development order for development consisting of a change in the use of any building or land in England from a use within Class A4 to a use of a kind specified in the order (subject to paragraph (c)),
(b) removes any planning permission which is granted by a development order for a building operation consisting of the demolition of a building in England which is used, or was last used, for a purpose within Class A4 or for a purpose including use within that class, and
(c) grants planning permission for development consisting of a change in the use of a building in England and any land within its curtilage from a use within Class A4 to a mixed use consisting of a use within that Class and a use within Class A3.
(2) Subsection (1) does not require the development order to remove planning permission for development which has been carried out before the coming into force of the order.
(3) Subsection (1) does not prevent—
(a) the inclusion of transitional, transitory or saving provision in the development order, or
(b) the subsequent exercise of the Secretary of State’s powers by development order to grant, remove or otherwise make provision about planning permission for the development of buildings or land used, or last used, for a purpose within Class A4 or for a purpose including use within that class.
(4) A reference in this section to Class A3 or Class A4 is to the class of use of that name listed in the Schedule to the Town and Country Planning (Use Classes) Order 1987 (SI 1987/764).
(5) Expressions used in this section that are defined in the Town and Country Planning Act 1990 have the same meaning as in that Act.”
“( ) section (Permitted development rights relating to drinking establishments);”
Lord Bourne of Aberystwyth
My Lords, I omitted to thank my noble friend and co-pilot, who has more air miles than most, for his support on this. I beg to move.