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“Revision of local development documents
In section 26 of the Planning and Compulsory Purchase Act 2004 (revision of local development documents), after subsection (7) insert—“(8) Within an interim period after the occurrence of a relevant event, the authority must review every local development document in the light of that event.
(9) If the authority finds that any modifications of the document are required as a consequence of the review they must prepare a revised document containing those modifications.
(10) The following are relevant events—
(a) issuing any consolidated guidance to which a local planning authority must have regard under section 19(2);(b) the coming into effect of the abolition of regional strategies under section 97 of the Localism Act 2011.(11) During this interim period, local development documents adopted under section 23 shall be regarded by the Secretary of State as being in general conformity with consolidated guidance as referred to in section 26(10)(a).
(12) The Secretary of State may by regulations make provision in connection with the exercise by any person of functions under this section.
(13) Regulations made under subsection (11) may, in particular, make provision as to an expedited procedure including—
(a) requirements for giving appropriate notice and publicity to any document made under this section;(b) requirements for the appropriate inspection by the public of any document made under this section;(c) the nature and extent of appropriate consultation with and participation by the public in any document made under this section;(d) the making of appropriate representations about any document made under this section;(e) the appropriate procedures to be adopted for the consideration of any such representations.(14) Regulations made under subsection (11) may, in particular, make provision as to—
(a) the determination of when the interim period in this section may cease, at least three years after the coming into force of this section;(b) the completion of any local development plan documents not adopted under section 23 within the interim period.””
Lord Best
My Lords, we are on the planning parts of the Localism Bill and my amendment addresses the transitional period between the old system and the new. The old planning system had regions, regional spatial strategies and many planning policy statements; the new arrangements have no regions, no regional spatial strategies and, instead of planning policy statements, one national planning policy framework, with its special ingredient of a presumption in favour of development. We have discussed this a great deal over recent days. There was a wonderful speech from the noble Lord, Lord Deben, in the previous session on the Localism Bill, in the debate led by the noble Lord, Lord Rooker, who also made a wonderful speech. My position on that issue is on the side of the Government and not on the side of the National Trust and the CPRE. However, we are not going into that today but will look at the transitional period between the old planning system and the new.
In Committee, I brought forward an amendment to deal with those aspects of the local development frameworks used by local authorities that made reference to regional spatial strategies that are no more. The problem I was addressing with that amendment was that, without the regional spatial strategy to which the local development frameworks referred, the validity of the whole local development framework was called into question. My amendment sought to allow local authorities, even though there was no continuing regional spatial strategy, to continue to operate as if there had been in respect of those pieces of the regional spatial strategy that they had transmitted into their own local development framework.
For example, Woking Council had important policy decisions in its framework that related to sustainability in Woking. However, it did not put them into its own local development framework but referred to the south-east of England plan which covered those points for it. Under the new regime there is no longer a south-east plan, and Woking Council’s own local plan becomes invalid. At that stage in Committee we found ourselves with a need for my amendment because of the gap between the old system and the new, which it was suggested we could remedy by allowing a continuation of the reference to the regional spatial strategy. That amendment received short shrift from the Government at the time and I felt that it had not been fully appreciated when we discussed it. I was going to bring it back last week but it was bounced by an earlier government amendment which, by pre-emption, meant that mine could not be taken.
However, I have now brought forward Amendment 204EA, which looks at the question of the interregnum between the old system and the new system which includes the presumption of development provided projects accord with the necessary sustainability requirements. It has been said that all the existing local development framework plans and all the existing plans in the pipeline will become invalid and have to go back to square one—that they will all require evidence to be heard in public, extensive consultation, the use of an inspector and about a year’s delay before anything can happen, unless we can have in that interregnum a fast-track, speeded-up process to expedite the approval of local development frameworks and local plans.
There is widespread anxiety that if we do not fill this gap there will be a free-for-all, with planners able to lean on the fact that there is a presumption in favour of development and to come out with all kinds of unsuitable developments. I am not saying whether or not I believe that to be true, but there is a widely held view that there will be great difficulty if councils do not have time to settle into the new system and there are not arrangements in place. The procedures for that are set out in my amendment to carry us forward from the old to the new.
Lord Greaves
I have the other amendment in this group, Amendment 204F, which has a very similar purpose. I very much support the amendment of the noble Lord, Lord Best, and what he said in his speech. In our view this is one of the important remaining issues in the planning parts of the Bill. The two amendments are about the pragmatic position of the local planning authorities. Some are faced with old plans under the pre-2004 legislation; some with emerging new plans—local development frameworks—under the 2004 Act; and some with adopted core strategies—new plans—under that Act. All of those are now up in the air as a result of the Government’s wish to do away with a great deal of the previous planning guidance and instructions which local authorities had in regional strategies and in the planning policy statements. Instead those will be replaced by a much shorter document, the national planning policy framework, but that is going to take some time to approve.
The Government originally said that local authorities would have six months in which to adapt their local plans, whatever state they were in, to the new guidance. Frankly, they have not thought through the practical problems that this would have caused. They are now doing so, and that is extremely welcome. I am taking a lot of advice from planning authorities, from the planning world and, indeed, from Members of this House. We understand that it is now their intention to include clear guidance on how to adapt their local plans, and pursue their new local plans, in line with the NPPF. My first question is to ask the Minister if she will confirm that that is the route they are taking. The amendment of the noble Lord, Lord Best, would put a great deal of the detail of how this is to happen on the face of the Bill, and this would be our first choice. Transitional provisions have appeared in quite some detail in previous planning legislation. In our view this would be the best place for it, but for various practical and other reasons, the Government do not want to do that.
My amendment would put a duty on the Secretary of State to issue regulations which would set out the transitional arrangements. It states:
“The Secretary of State may by regulations specify transitional arrangements concerning the timetable and procedures involved in the introduction of changes to local development schemes and the preparation and adoption of local development documents”.
Regulations are stronger than guidance so we would prefer to have it in regulations rather than simply in guidance. Wherever it is, it needs to be clear and well understood. It needs to give local planning authorities the necessary flexibility and time to get it right.
There have been fears that local planning authorities will be left with no defences against any kind of inappropriate development as a result of some of the wording in the draft national planning policy framework, particularly the suggestion that in the absence of a plan the default position on planning applications would be to approve. The noble Lord, Lord Best, said that that might be opportunistic and unplanned development. My description of it might be a bit cruder than that but I am happy to align myself with his more elegant wording there.
The timetable from transition is crucial. Six months is clearly ludicrous. We have heard rumours of 18 months but in practice it needs to be a lot more than that. The noble Lord suggested three years. We would perhaps go along with that. We clearly do not want it to be seven years or more, which is the position now following the 2004 Act, where half or more of the authorities have still not got their new local plans in place. My second question is about the timescale.
Thirdly, do the Government believe that the inspectorate will be able to deal in a practical way with the huge congestion that there will be in all this work of getting the local plans in line with the new planning guidance? How much work will be needed locally and at the inspectorate simply to get a certificate of conformity for approved core strategies? In determining planning applications during the transitional period, what reliance will local planning authorities be able to put in the mean time on approved core strategies under the 2004 Act which have not yet been certificated as compliant with the new NPPF? What reliance can they put on old, pre-2004 local plans which are still being used by many authorities as the basis for planning? As material considerations in planning application decisions, what reliance can be put on emerging core strategies which are perhaps near inspection but not there yet? What will be the relationship between these existing local plans and the emerging NPPF? Finally, what will be the relationship between the adopted NPPF and all these various kinds of uncertificated local plans?
This is absolutely crucial if there is not to be a free-for-all but a smooth transition from the existing, old system to the new one. This is not in any way trying to undermine the new system but rather to make sense of converting from one system to another, which will take a number of years.
Baroness Whitaker
My Lords, I would like to add my support to Amendment 204EA—supported also by the RTPI, which I think is very significant—and particularly subsection (14) of the new clause, which specifies the three-year minimum for transition. I completely understand why the Government have eliminated the regional tier but there remain instances where regional decisions are particularly valuable—I would say irreplaceable—such as matters to do with housing shortages, the issue of Gypsy and Traveller sites, which we discussed at the last Committee meeting, and the lack of planning expertise at a local level which could result in really unattractive developments. If we are not to go backward in all of these areas we need a transitional period as the amendment specifies for local authorities to work out how to co-operate where it is really essential.
Lord Avebury
My Lords, I would like to follow the noble Baroness, Lady Whitaker, in what she said, and to point out that in the case of Gypsies and Travellers we have an additional difficulty in that the NPPF and the equivalent document on planning for Gypsy and Traveller sites are mutually incompatible. The Government say that these difficulties will be ironed out in a new version of the amalgamated documents which will be published at some time in the future. Meanwhile there is a policy vacuum which is being only partially filled by the Secretary of State’s dictum that all previous work on planning for Traveller sites has been torn up and local authorities are free to decide how many pitches for Gypsy and Traveller sites will be provided in their area, if any.
The result of this new-found freedom, according to research by the Irish Traveller Movement in Britain, is that roughly 50 per cent of the needs which emerged from the regional spatial strategies, the Gypsy and Traveller accommodation needs assessments, the public inquiries following those GTANAs and the redistribution between local authorities in the region—to accommodate the fact that some councils had done nothing whatever to meet the needs—have not been met. Perhaps I may just interpolate an aside here. In the new process the local authorities will only have to consider their local needs and will not have to co-operate with neighbouring authorities; and if authorities have steadfastly avoided making provision for Gypsies and Travellers in the past they will be able to demonstrate zero need because there are no Gypsies and Travellers in their particular area.
I see no way in which under the proposed system—and subject to what we do not know yet about the guidance that will be issued by the CLG—there will be any mechanism for adjusting that. I would like to know from my noble friend where we have got to in this process. Are we still in the position where every local authority will make up its mind irrespective of what any of the neighbours are doing? Will there be no contribution to the provision of sites for Gypsies and Travellers where a local authority can demonstrate that it has not had a need in the past because it has been successful in excluding Gypsies and Travellers from its area?
We in the Liberal Democratic Party made a reservation to the abolition of regionalism in our manifesto. We said that the numbers emerging from the regional spatial strategies with regard to Gypsies and Travellers should be preserved and should be the basis on which planning for Gypsies and Travellers would be effected under the new system. If we had done that we would have avoided the process that is currently being undergone all over the country as local authorities start again from scratch to consider their local needs and come up with figures which, as I say, are only 50 per cent of what had been provided where the regional process had been completed, as for example in the east of England. This will result in a severe shortage of sites in the whole country and there will be a proliferation of unauthorised sites, which is the chief source of friction between Gypsies and Travellers and the settled population. I do not know whether that is intentional but it will be the result of following the Government’s present policies.
Lord Howarth of Newport
My Lords, I support the thrust of the amendments tabled by the noble Lords, Lord Best and Lord Greaves. It is not just helpful but necessary to have a transition period in recognition of the fact that not only do very significant numbers—nearly half of local planning authorities—not have local development frameworks, but, because of the abolition of the regional spatial strategies and possibly other factors, even those local planning authorities that do have local plans will find that the local plans that they have had hitherto are now out of date.
We need a transition period probably of three years, certainly not less than two, to provide time for proper consultation to take place. That is extremely important to win back the confidence of the public because it has been shaken on the basis of considerable amounts of misinformation having been provided. If the public had the opportunity to read the draft national planning policy framework, they would gain a lot of reassurance. The fact of the matter is that many people are disturbed and worried about what the new planning regime portends, so consultation will be particularly important. I would not want to see a truncated process of consultation in the interests of hurrying the process along unduly.
Time will also be needed to assist the process of co-operation between local planning authorities that will no longer be brought together under the umbrella of a regional development agency to facilitate that co-operation. We know that there are tensions—indeed, conflicts of interest—and interests that are very difficult to reconcile between different local planning authorities, so time must be allowed for that process to run its course. The inspectorate will need time, which is why I think three years rather than two years would probably be appropriate, as the noble Lord, Lord Tope, suggested in the debate last Thursday.
Will the Minister take this opportunity not only to say what the Government’s view is about a transition period but what supplementary guidance they may be minded to offer? While the Government are entirely entitled to revisit the planning policy statements, those statements are of pretty recent origin and represent a huge amount of work that has been put in by all the relevant expert interests. It would be a shame to discard them altogether. I wonder whether the Government are minded to look at a way in which planning policy statements, appropriately modified and updated to reflect the Government’s current policies, could none the less be made part of the system again so that we do not waste all that good will, expertise and very useful practical guidance that went into the development of those statements.
If the Government allow a three-year transition period, they will not abort the development that is so badly needed if we are again to have growth in this country because, unfortunately, the lack of confidence and available finance mean that there is not a lot of development in the pipeline. Even where the necessary confidence and funding exist, there are large numbers of extant planning permissions, so I do not think that a transition period would in any way obstruct the sustainable development that we all want to see in the interests of creating more jobs and homes and ensuring that our economy is modernised and made more powerful and effective. If the noble Baroness is able to indicate the Government’s thinking in this regard, more particularly whether their thinking is positive, it would be hugely welcome.
Baroness Andrews
My Lords, I spoke briefly on the topic in Committee and I was very glad that it reappeared on the Marshalled List, in the name of the noble Lord, Lord Best, as I thought that pre-emption might possibly mean that we would not have the opportunity to discuss what is a really important element of the Bill. I commend both the amendments. The questions raised by the noble Lord, Lord Greaves, were absolutely pertinent, and I hope that the noble Baroness will be able to answer them in some detail. They go to the heart of what local authorities are trying to do at the moment.
The only thing that I want to say is that we should reflect on what is happening on the ground. These may sound like extremely technical issues, but in fact local authorities, a few of which I have seen in the past week, are wrestling with all manner of different states of maturity in relation to their planning policies: some have completed LDFs, but they do not know what will constitute an up-to-date LDF because of the need to accommodate with the national planning policy framework; some have not completed their LDFs but are quite close to doing so, but they are finding, for example, that their original planning assumptions on housing are being challenged by local people and local developers. Developers are challenging some of the decisions based on the premises that preceded this situation. There is genuine confusion on the ground and a real problem with uncertainty. We all know that the most crucial elements in delivering a proper planning system are certainty and clarity.
The noble Lord was right to raise the issue of planning guidance. When we reflect back on PPS5, one of the reasons why it was such a successful planning statement was that it had a great deal of clear and useful planning guidance, so there is a precedent.
On the transitional period, I know that the Government must have at the back of their minds the fact that almost half of local authorities have not yet completed their LDF in the time available. It was a very difficult challenge that the previous Government imposed on local authorities to take on board for the first time the notion of spatial planning. Too many demands were made on the nature of the conceptualisation and on the nature of the documents, so we cannot easily extrapolate from the time that that took to the time it will take to accommodate the transitional changes. I would ask for a transitional period, but possibly not for as long as two years. I know that clarity and speed are really important and that people need to get on with it and remove the uncertainties.
Finally, we need to bear in mind the fact that all this is happening at a time when local authorities are losing planning staff, conservation staff and some of their most important expertise while being faced with a bank of rolling fog around how to go forward. Anything that the noble Baroness can say to reassure local authorities, and not least noble Lords, will be extremely welcome if it deals with some of these difficult issues on the absence of transitional arrangements.
Lord Cormack
My Lords, I associate myself with the remarks of the noble Baroness, Lady Andrews, who talked about clarity and speed. I think that both the noble Lords, Lord Best and Lord Greaves, have performed a service by tabling these amendments. They are a prescription not for foot-dragging but for orderly progress, and it is essential to have that. Clarity, yes; speed, up to a point; but orderly progress is absolutely essential. There has to be a transitional period. I am sure that my noble friend the Minister will accept that. Whether or not she accepts the amendments, it is incumbent on the Government to explain to us that there will be proper transition and that we are not plunged from one situation into another. The fact that so many authorities do not have plans gives us all cause for concern. There has to be proper time to put those plans together.
The noble Baroness, Lady Andrews, was right to indicate that this is not the easiest of times for local authorities. Many have laid off staff and have not replaced conservation officers and people who did a vital job. In my local authority of South Staffordshire, which had an admirable record on these matters, the absolutely first-class conservation officer took early retirement in the early part of last year and has not been replaced. The local authority is trying to replace the work that he did, but without him it is not easy. For every possible reason, therefore, I ask the Minister to let us have a period of orderly transition and progress, so that if we are trying to create a better situation, we do not confound our own efforts by over-haste. Once again, there is good sense in the motto that I have quoted in this House before: festina lente.
Lord Lucas
My Lords, in former times it was the custom of some generals after a victory to allow a limited period for rape and pillage before good order was restored. The thought has been raised in this House and outside that this is what the Government intend with this Bill. Along with my noble friend Lord Cormack, I find myself worried. I do not understand how this transition is to be managed: how we are to get from a position where there are not valid local plans in a large number of local authorities to the position where there are, without there being a succession of undesirable planning permissions given. The core of this Bill is to allow localities to determine what happens in their areas. It would be most unfortunate if we had a period where an awful lot of bad will was created by the exact opposite happening, just because some superior authority had failed to get the ducks in a row.
The Earl of Lytton
My Lords, I rise briefly first to declare an interest as a practising chartered surveyor and as someone who is involved with planning, although I am not a chartered town planner.
There seems to me to be three particular issues here. One of them, as has already been touched on by the noble Lord, Lord Cormack, is the corpus of knowledge that is currently involved in the planning system. If we uproot that, we will cause delay, doubt, risk and uncertainty. There are economic implications, so we must try to avoid that. We have seen some of the public pronouncements that are based on questions of doubt about what is intended here. A great deal of clarification is needed.
Secondly, the noble Lord, Lord Howarth of Newport, referred to the effect on economic growth. Yes, planning is a huge driver of economic growth in so many ways. While I would not wish to suggest that it is the be-all and end-all of economic growth, it is clearly something that is tangible that the general public can relate to. We must not lose sight of the fact that it is going to be one of the significant factors, if for instance what we are told about the lack of completions on housing is true.
My last point is to do with neighbourhood plans. I must declare another interest here as the president of the National Association of Local Councils, whose member parish and town councils may be those very bodies that are having to draw up a neighbourhood plan. A neighbourhood plan has to be in conformity with the principal authority’s local plan, and if the principal authority’s local plan is not in place, or is in disarray or is out of date, then we have a problem. This has a knock-on effect. I ask the Minister to give the House some reassurance that there is going to be some sort of seamless transition that will take place. I do not wish to add to what has already been said about the timescale over which that is to be done; and there may be different timescales for different bits for all I know, but the transition does have to be, to some degree, seamless. With regard to my first point about the economics of doubt, it is very important that we get this right.
Lord McKenzie of Luton
My Lords, like all noble Lords who have spoken in this debate today, we support the need for transitional provisions that have clarity as to their meaning as well as a reasonable timescale that reflects the capacity both of local planning authorities and of the inspectorate. Like the noble Lord, Lord Greaves, I believe that this is probably the most serious issue left unresolved from Part 5 of the Bill. We hope that we will get a clear message from the Minister today. We added our name to the original amendment of the noble Lord, Lord Best, which bit the dust by being pre-empted, and we support the thrust of the amendments of the noble Lords, Lord Best and Lord Greaves.
It is imperative that we avoid a lacuna, with the prospect of all or most local plans being absent, silent or indeterminate or having policies that are out of date under the current NPPF formulation. Under the presumption in favour of development, this would lead to an emphasis on approving development proposals unless the adverse impacts of development would significantly and demonstrably outweigh the benefits when assessed against the framework policies. I assert that 50-odd pages of framework cannot be an effective substitute for all the local plans and the thousands of pages of guidance that currently exist.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I am very grateful that this matter has been raised again and that the noble Lord, Lord Best, has not been done out of his speaking part. It seems that the central issue is the maintenance of up-to-date local plans. They are absolutely essential to set out communities’ aspirations for the development of their areas. We are clear that the early review of plans will be the way forward to help manage transitions and deal with local issues arising from, ultimately, the revocation of regional strategies and the introduction of the national planning policy framework.
All of this has been about transitional arrangements. First, these need to be thought through very carefully. Secondly, my honourable friend at the other end has committed us to having transitional arrangements in policy and, where necessary, in guidance. Therefore, consideration to this is already being given. However, I am bound to say that this point has also been raised in the consultation on the NPPF, so the request of the noble Lord, Lord McKenzie, that we should come back at Third Reading may not be one on which I can deliver, because consideration may not have been given to what the full-blown transitional arrangements are going to be.
It has been said that not all local authorities have local development plans. In fact 46 per cent do not and they have had more than eight years to produce them. The worry is that if you time limit a transitional period in some way you are back exactly where we started before, that people do not pay the slightest attention. They think that they have got a long time to do it and they do not actually do it. It is absolutely essential that we put pressure on local authorities to get their local development plans completed and to get them up to date.
It may be helpful if I take this opportunity to clarify that the status of local plans will not change when the final national planning policy framework comes into force. Local plans will always be part of the statutory development plan and that is the first port of call for all decisions. As now, decision-makers are able to give weight to emerging plans in planning decisions and that weight will depend on how far these plans have progressed. Therefore, they are capable of being used to help planning decisions wherever they stand at the moment. Nor do our proposals change the situation for authorities who do not have a plan. Such authorities, because they do not have a plan, already have to have regard to all material considerations in their decisions. That will often include national policy. Areas without a local plan are lacking strategic community oversight, and the introduction of the national planning policy framework does not change this position.
As I have said, it is of course open to local councils to decide when they should update their local plans. It is in fact entirely a matter for them, but they are going to be under some pressure if they want to ensure that they have conformity with the national planning policy framework and that they are able to progress their plans in the most up-to-date way.
Transition is going to be helped by councils drawing on evidence that informed the preparation of regional strategies. We understand that that will need to go across. They will need to do that to support their local planning policies, supplemented as needed by up-to-date local evidence. If there are issues that councils regard as being an essential part of the development plan for the purpose of determining planning applications they must undertake an early review and work with local communities as they would be expected to do anyway.
With regard to the national planning policy framework, consultation ended yesterday and, as we said in our debate last week, this has now got to come under consideration. We have listened to the views of local government and we have said that we will put in place transitional arrangements that advantage plan making to reflect the fact that the national planning policy framework is all about putting local communities in control of planning. But the framework is policy, not legislation, as I discussed at some length on Thursday. Any transitional measures will be more appropriately delivered through policy or guidance rather than legislation. I suggested that we may not be able to come back with this at Third Reading, though it is a matter that I will take away. It looks very much as if we will be able to issue guidance within a timescale which we may be able to save.
The draft national planning policy framework offers councils the opportunity to seek a certificate of conformity with national policy, which will help them identify which of their existing local policies are consistent with the national planning policy framework. We actually expect that many elements of local plans will already conform with the direction of that because the policy framework in fact reflects all the guidance and planning policy statements.
I was asked a number of questions and I think that I have answered some of them on the way. The noble Lord, Lord Greaves, asked whether there will be regulations and guidance. There will be guidance through the NPPF, but we will need to find out when that will happen.
Lord Howarth of Newport
Will the Minister say a word or two more specifically about the status of the planning policy statements during this transition period and perhaps beyond? She will recall that in the debate last Thursday, the noble Lord, Lord Hart of Chilton, an experienced member of the planning bar, made the point, as did other noble Lords, including me, that the higher the level of generalisation in the national planning policy framework short document, the greater the risk of litigation. He thought that where there was litigation, the courts would take into account the planning policy statements, even if the Government have removed their formal status as policy documents, in default of other clear guidance. Therefore, de facto, the planning policy statements are going to have a status. They are still going to be a force on this scene. Would it not therefore be preferable for the Government to recognise that and embrace them in some appropriate form, given that the high level and major planning policy document will be the national planning policy framework?
Baroness Hanham
They are already going to be able to take into account the emerging NPPF as a policy statement. I should like to go back to the question of whether the PPS and PPG are going form part of it. I suspect that this is all part of the consultation about how much background is going to be needed and how those planning policy statements are going to be included. I will come back to that by Third Reading because I do not have the direct answer at present.
The noble Lords, Lord Greaves and Lord Best, asked about the timescale. I have already said that I do not think we will be putting in a firm timescale. We expect the changes to take place as soon as possible, and we hope that local councils will get a move on with them. I think I said that the transition is going to be helped by drawing on evidence that informed the preparation of the regional strategy, and part of that will be the PPS and PPG. The NPPF will supersede the PPS and PPG, but they stay in place unless and until the Government revoke them.
The noble Baroness, Lady Whitaker, and the noble Lord, Lord Avebury, asked me about Gypsies. As both of them will know, the draft PPS on that has just been issued for consultation, but local authorities are already required to provide Gypsy sites and, under the duty to co-operate, they are required to work across boundaries to ensure that they have sufficient provision for them.
Lord Avebury
Is the noble Baroness aware that, according to the research conducted by the Irish Traveller Movement in Britain, the revised plans of local authorities following their liberation from the previous regional planning process are to provide 50 per cent of the number of pitches that had been calculated as necessary under the regional planning system? Does she intend to make any comment on that? Will she answer my question about how the Government are dealing with the mismatch which I pointed out between the NPPF and the separate document on planning for Traveller sites? Will that be accommodated by the publication of one single document that will incorporate the NPPF and the Traveller sites, or will there be a revision of the document on Traveller sites that will be compatible with the revised NPPF?
Baroness Hanham
My Lords, I will have to write to the noble Lord on that. I do not know whether these are going to be consolidated. I do know, and have said before, that there is a requirement on local authorities to provide sites and for them to work co-operatively with other local authorities to see that they have sufficient sites for their needs. The noble Lord says there will be 50 per cent less. I will need to come back on that.
I hope that I have more or less dealt with all the questions I have been asked. I sense that I will not totally satisfy noble Lords on the transitional period. I hope there will be an acceptance that a laid-down transitional period has not proved very helpful in the past, and it may not be helpful in the future, but that we are committed to guidance of some sort.
Lord McKenzie of Luton
Before the noble Baroness sits down, I may have missed it and she may have covered it, but we could now have a situation where a local planning authority has a core strategy in place consistent with the existing regional spatial strategy, and that regional spatial strategy, for a period, is not going to be revoked because of the environmental assessment. If in the interim the NPPF is introduced with its presumption in favour of sustainable development, those two will not be identical. Which is going to prevail in the interim in those circumstances?
Baroness Hanham
My Lords, while the regional strategies are there and before they have been revoked, the plan will have to have regard to them. They will also have to have regard to the emerging NPPF in determining a planning application. Unless they conflict wildly, that should work very well. There is going to be a short period only before the regional strategies are revoked. I do not think there will be any inconsistency. Local authorities are going to want to keep only part of the regional strategies in their local development plan and they ought to be able to work in conjunction with the NPPF for the short space of time, if that is necessary.
With the explanations I have given, I hope that the noble Lord, Lord Best, will feel able to withdraw his amendment. I am afraid I said that the NPPF consultation ended yesterday; in the interests of accuracy, it ends today.
Lord Greaves
Before my noble friend the Minister sits down, would she consider the possibility that not giving any indication at all to local planning authorities of the time they have got to get themselves sorted out—I completely share her view that they need to get on with the job—might prolong the process rather than speed it up? In that context, I do not think she answered the question of what the Government are going to do to assist the Planning Inspectorate to cope with what everybody thinks is going to be a very substantial increase in its workload in the short run.
Baroness Hanham
Discussions are going on with the Planning Inspectorate at the moment to see what is required to make the examination process quicker. Under the new way of working, local authorities will be able to have single areas examined one at a time instead of the whole policy having to be dealt with. It is well understood that the Planning Inspectorate will be put under pressure and we hope and expect that that will be able to be worked around.
I have said all that I can say about a transitional period. The transitional arrangements will come about as a result of the consultation on the NPPF. The noble Lord thinks that a set period might be a good idea. However, as I said, with the experience of the previous set period, which does not seem to have put any pressure on local authorities, we would need to consider very carefully whether there is any value in having that.
Lord Best
My Lords, we have clearly come a long way since the Committee stage of the Bill and I am very grateful to Members of the House from all sides, who were extremely supportive of these measures to cover this transitional period.
The noble Lord, Lord Greaves, was right in expecting that the best we could hope for was not something in the Bill, but some firm guidance. I fully appreciate that the consultation period finishes only today. Therefore mulling over what others have said and taking it into account may take a little time. However, it would be very helpful before we get to Third Reading if the Minister were able to share her thoughts and put a bit more flesh on the bones of how these transitional arrangements may work. In particular, as the noble Lord, Lord Greaves, has said, perhaps she could give us a little more specificity—if I have got that right—and be a little more definite on the timescales that local authorities will be expected to adopt—indeed, timescales that are reasonable in the circumstances and allow sensible things to happen.
I must acknowledge a very helpful meeting with Greg Clark down the other end. I am expecting the outcome of this to be positive and helpful, even if it comes in the form of guidance and is not in the Bill. Perhaps I may reserve the right to bring this back at Third Reading if by that stage we find that very little progress—I do not think that that will happen—has been made. At this stage, I beg leave to withdraw the amendment.
Earl Attlee
(a) for “providing infrastructure to support” substitute “supporting”, and(b) after “land” insert “in a way that does not make development of the area economically unviable”.(2A) In the Table in section 205(3) (which describes the provisions of the Part) for “Section 216” substitute “Sections 216 to 216B”.
(2B) In section 211(4) (particular provision that may be included in regulations about setting rates, or other criteria, by reference to which the amount of levy chargeable is to be determined) after paragraph (a) insert—
“(aa) to have regard, to the extent and in the manner specified by the regulations, to actual and expected costs of anything other than infrastructure that is concerned with addressing demands that development places on an area (whether by reference to lists prepared by virtue of section 216(5)(a) or otherwise);(ab) to have regard, to the extent and in the manner specified by the regulations, to other actual and expected sources of funding for anything other than infrastructure that is concerned with addressing demands that development places on an area;”.”
Earl Attlee
My Lords, in speaking to Amendment 204GA, I shall also speak to government Amendments 204GB to 204GD, 204HA to 204HB, 204JA to 204JC, and refer to Amendments 204H and 204J.
We set out our commitment to consider whether the existing restrictions on the use of the CIL—community infrastructure levy—receipts are drawn in precisely the right way to best support and enable new development and growth. We have considered this alongside our changes at Clause 103, through which we will place control over a meaningful proportion of levy receipts with the neighbourhoods and communities that accept new development and growth. We are consulting on our proposals to use the powers to require local authorities to pass on a proportion of levy receipts raised from development in an area where there is a parish or community council for that area.
Where no parish or community council exists, we will use existing guidance to require local authorities to apply an equivalent amount to addressing the demands of hosting new development in the area and to engage with the community in determining how that proportion of the funds will be spent.
Amendments 204HB and 204JC extend the permitted uses of this proportion of the funds to allow it to be used to support development by providing infrastructure or addressing any other demands that development places on the area. First, any body to which funds are passed under new Section 216A will benefit from these wider spending powers. Secondly, where a charging authority does not have to pass funds under Section 216A, we will have the power to specify that they can use a proportion of the CIL funds in this way. It is our intention to specify the same proportion for this purpose as we will for Section 216A, providing a consistent approach in both parished and unparished areas. The remainder of the funds will be retained by the local authority and must be used to support development of the wider area by funding the provision, improvement, replacement, operation or maintenance of infrastructure.
Our amendments will allow receipts raised from new development to be applied to the range of costs that it creates. They strike the right balance between enabling funds to be directed to the localised demands that development places on the areas that host it and the cumulative burdens that development creates across the local authority and wider area. The levy is to support new development. While the provision of infrastructure is essential to physically unlock new development, it is not the only matter that needs to be addressed to make development acceptable and sustainable to the communities that are asked to host it.
At the neighbourhood level, the impacts of development are more localised, direct and diverse. The impacts will, for the most part, be concerned with local infrastructure, but communities often identify other unfunded pressures on local services as the reason why new development is not acceptable. If communities are to accept and welcome growth, they must be satisfied that they will not suffer as a result of doing so. By placing a meaningful proportion of the contribution that new development makes under the control of the community that hosts it, and by giving that community the flexibility to spend those funds on the matters that it identifies need to be addressed, we will ensure that communities share in the benefits of growth rather than suffer as a result of it. When residents see and understand that development is making a fair contribution towards meeting the demands that it places on their communities, they will be more likely to accept and, indeed, welcome it.
Our amendments will enable the levy to support new development more effectively. The levy will mean that more development can go ahead by providing a valuable contribution towards delivering the infrastructure needed to unlock and enable it, and by ensuring that communities have reasons to say yes to growth. In making our changes we have taken the opportunity to make economic viability an explicit component of the purpose of the instrument. This will mean that local authorities must ensure that charges are reasonable and do not prejudice the delivery of their local plans, including matters such as affordable housing.
My noble friend Lord Jenkin has tabled Amendments 204H and 204J, which are concerned with restricting spending of the levy to matters publicly identified by the local authority that charges it. It may be helpful to the House if I use his amendments as a peg to provide further reassurance. I fully understand my noble friend’s concern to ensure that use of the levy should be transparent; indeed, it must be if developers and communities are to see and understand how the contributions are being used to support development and manage its impacts. That is why we are strengthening, through the levy and the town and country planning regulations, the requirement for local authorities to report openly and regularly on levy income and expenditure.
Our experience from the front runners scheme, which is supporting more than 33 local authorities to implement the levy, is that local authorities are in any case choosing to publish a list of their spending intentions. This demonstrates that a flexible approach to infrastructure lists is working and that a more prescriptive approach is not needed at this time. The legislation already allows for regulations to require them to do so, should we wish to in the future.
I appreciate my noble friend’s concerns, but I hope that he will be reassured by the steps that we are taking to improve transparency and accountability of levy income and expenditure, agrees that our changes are the right means to achieve that, and will be willing not to pursue his amendments. I beg to move.
Lord Jenkin of Roding
My Lords, I am most grateful to my noble friend for the care with which he has set out these quite significant changes to the whole process of charging and applying the community infrastructure levy—or CIL, as he called it. We have moved a long way from the original intention of the CIL. In the Planning Act 2008, Section 205 states:
“In making the regulations the Secretary of State shall aim to ensure that the overall purpose of CIL is to ensure that costs incurred in providing infrastructure to support the development of an area can be funded … by owners or developers of land”.
It was perfectly clear to those of us who debated those provisions during the passage of the Planning Act 2008 what the previous Government were looking at. For instance, if you build a large housing estate, that is going to involve the building of roads. It may well involve the provision of a new school, and a number of other capital infrastructure measures that are necessary to support the community that will be enlarged by the main application when it is allowed and when it takes place.
It is quite clear from what my noble friend has said that we are moving a long way from that. It has caused a good deal of concern among those who are anxious to champion the promotion of more infrastructure. The British Property Federation, referring to what he called a “raft of new amendments”, has said:
“The upgrading of the country’s infrastructure is vital for our future economic success and the contribution from CIL will be a critical part of that at a time when public funding is heavily constrained”.
The letter that I had from my noble friend Lady Hanham, dated 7 October—just a few days ago—makes it perfectly clear that, under the new arrangements proposed, the CIL is not limited to providing infrastructure. Having set out the proposals, she writes:
“We have concluded that spending at the local authority level must continue to be directed to the provision of infrastructure”.
I will press a little further on that in a moment. She continues:
“However, at the neighbourhood and community level the demands and concerns amongst local people that new development creates are more diverse, direct and localised”.
She then refers to the amendments which my noble friend has just spoken to. She goes on:
“We believe this change is vital if we are to genuinely change attitudes to new development and secure sustainable growth”.
Changing attitudes is quite a long way from building capital infrastructure. It has changed the nature of what the CIL was originally introduced to achieve.
It may be that, in the new planning regime, it will be desirable to provide means whereby local communities can feel that they are getting some benefit. This may not take the form of schools or roads but may be some other form of benefit that will compensate them for the impact of the development to which they might otherwise have been opposed. I have always quoted the example of the French electricity system; if you want to build a new power station, in order to reconcile the local population to having to put up with that—after all it involves substantial interference in their normal lives, not only during the building but during the operation—they get electricity at a cheaper rate. That seems to me to be a very sensible thing to do. I am therefore not opposed to the idea that we need to provide something that will secure the consent, as my noble friend was saying, of the local community to the development that is being imposed upon them and to which they might have been quite vigorously opposed.
However, one point that I want to emphasise is still unclear, and I would welcome it if my noble friend could clarify this when he winds up. If councils in spending the CIL are confined to providing infrastructure, which is what I understood him to say and what my noble friend Lady Hanham said in her letter, spending at the local authority level must continue to be directed to the provision of infrastructure. That is fine, but then we are faced with the proposition that a “meaningful proportion” of the proceeds of the CIL, which is charged on the developer, can be devolved to the local parish or community, which, as I understand it, is free to spend it on anything it thinks would improve the condition of the community. What is a “meaningful proportion”? As I understand it, a local authority will be perfectly free to say, “We don’t think any more roads are necessary or that we need to build a new school, or anything like that, and therefore 100 per cent of the CIL for this particular development is going to be devolved to the local parish or community to spend as it wishes”.
I made the point previously in Committee that the CIL must not simply be used as a way of filling the gaps in local authority spending. It is not intended for that. It is intended to balance the provision of a planning application for a new structure of some sort with the infrastructure that is necessary for it. I have of course accepted that that must include the operation, maintenance and upkeep of the infrastructure, a matter that we discussed at length in Committee, but is there no limit to what the devolved body, parish, community or whatever it is can spend of the “meaningful proportion” that is delegated to it?
There is a good deal of concern about this among various bodies. The County Surveyors’ Society, which I understand is now called ADEPT, the British Chambers of Commerce, the British Property Federation, the Chartered Institution of Highways and Transportation and the local government tactical advisers group have all expressed the concern that this seems to be slipping away to the point at which it is simply providing inducements—I will not use the word “bribes”—to persuade a local community that it would be to its advantage to cease to oppose a planning application. I hope that my noble friend will be able to give me some reassurance that it is not intended to go as far as that, but there will have to be some specific measures.
I come to my two amendments, on which my noble friend has given his views. Amendment 204H would make a minor change to replace “may” with “must”, and would compel planning authorities to outline the infrastructure that they actually intend to support through CIL. If local authorities are going to have to confine their spending of CIL to infrastructure, I see no reason why they should not be instructed by the Act to outline the infrastructure they intend to support. Amendment 204J is also intended to link the evidence base used to justify an area’s CIL charging schedule to the levy’s actual expenditure. As I think my noble friend recognised, these are both intended to add to the transparency of the application of what CIL is: a tax on development. So far as local authorities are concerned, I see no reason why both these amendments should not be applied to them.
That leaves the “meaningful proportion” that is to be spent by other people. At the moment I feel that it is wide open for them to decide more or less what they would like to spend it on. I cannot believe that that is a wise way to spend the proceeds of what is in fact a tax. I hope that my noble friend can reassure me on this, but I have to tell him that there is a good deal of apprehension out there. He has told me that he has come under a lot of pressure from local authority and other community interests, which are saying that this sort of thing is necessary in order to reconcile people to new development in their area. But there must be some sort of limit on it, and I am not sure that the government amendments moved by my noble friend and the explanation set out in my noble friend’s letter of 7 October give that reassurance. I hope that my noble friend will be able to allay my anxieties.
Lord Shipley
My Lords, I agree with my noble friend Lord Jenkin on the need to be clearer on the gain to neighbourhoods and parishes from the community infrastructure levy. Whether that is done in the Bill, through guidance or by other means, it will be extremely important that local people in neighbourhood areas where development is taking place understand what the community gain might be as a consequence of that development.
My point is a parallel issue which relates to the duty to co-operate. It is implicit in the Bill that there is a duty to co-operate between councils on the community infrastructure levy. However, I am not certain that it is sufficiently explicit and in urban areas where there are boundaries between different local authorities, a development that could take place wholly in one council area might well impact upon the infrastructure and the well-being of one or more neighbouring council areas. To what extent should we make it explicit that there should be a duty to co-operate between local authorities on the community infrastructure levy where a development is taking place very close to a boundary? That will need to be clear, certainly by Third Reading, otherwise there could be a great deal of strain between local authorities over what a duty to co-operate over sustainable development actually means and how it is delivered on the ground.
Lord McKenzie of Luton
My Lords, we share some of the concerns expressed by the noble Lord, Lord Jenkin, and have some sympathy with his amendments. When we discussed this issue at Committee I thought we had established that, as previously structured, CIL gave quite a lot of scope for supporting local communities beyond what one might think of as the very strict interpretation of infrastructure, but this seems to be taking us a step further. The letter that I had from the noble Baroness was, I think, generally circulated and says:
“We are proposing amendments that would allow local authorities and parish and community councils to use this proportion of the funds to support development by providing infrastructure or addressing any other matter necessary to address the demands that new development places on the local area”.
This is potentially a very wide extension of what it was anticipated that CIL would be used for.
The noble Lord, Lord Shipley, raises a different point about what happens with adjoining authorities and how that fits together with the duty to co-operate. We also need to consider how this sort of formulation fits together with Clause 130, which we are going to discuss in due course. The noble Lord, Lord Jenkin, said that he would not go so far as to call this a bribe, but it is potentially a substantial inducement to an area to accept development and we need to reflect on that as well. Having expressed concerns about the possible dilution of funding for infrastructure, which is needed up and down our country, I pose the question that we raised when we covered it in Committee—my apologies to the Minister if he covered it—about the prospect of CIL being used for affordable housing. I am not sure where that discussion has gone, but there have been some real questions asked about the extension of CIL which takes it beyond its original intent. The new intent is not necessarily bad, as the noble Lord, Lord Jenkin, said, but we need to reflect on what it means for the funding that is available for infrastructure in an area.
Earl Attlee
My Lords, I thank all noble Lords who have contributed to this short debate. Responding first to my noble friend Lord Jenkin, yes, we have moved a long way with the community infrastructure levy. My noble friend talked about Section 205 and the restrictions on the application of CIL. He is accurate in terms of history but he will recognise the need to develop good policies as time goes on. He kindly organised a meeting between me, him and the Institution of Civil Engineers, which I found useful.
My noble friend referred to local needs and to changing attitudes. We need to change attitudes because, quite often, the knee-jerk reaction can often be “no”, and that is not helpful for development. Local authorities are best placed to determine the infrastructure need in terms of logistics and so on, but local communities are best placed to determine their much more local needs.
My noble friend asked what a meaningful proportion of CIL is. We are consulting on the matter and have invited views on the question. We have not taken a view on this and will carefully consider the representations made during the consultation period before determining the proportion of funds that should be directed to neighbourhoods that host new development. However, we are clear that the level must be sufficient to give neighbourhoods a meaningful contribution to meeting the impacts of development in their area. This needs to be balanced with the central purpose of the levy, which is to ensure that some or all of the costs of supporting new development are met by the developers.
My noble friend also asked whether there was any limit on how a meaningful proportion must be used. Our changes allow for a proportion of CIL receipts to support development of parish and neighbourhood areas by providing either infrastructure or anything else that is concerned with meeting the demands that the development places on the area. However, the spending must support development of the area. It may not be used to fill gaps in local authority resources. I am happy to give that reassurance.
We are making this change because new development creates local demands that are concerned with matters other than infrastructure. For instance, the provision of new dwellings will increase the population of an area and new or extended office premises will increase the number of people working in an area. Increased numbers of residents or people coming into an area to work will create demands on services in the area, including transport, training, education, health, social and other services, community assets and utilities.
My noble friend Lord Shipley asked about cross-boundary needs in urban areas. It is a good question but I shall have to write to him before Third Reading.
The noble Lord, Lord McKenzie, asked about affordable housing. When setting a CIL charge a local authority must have regard to the viability of development in its area. In considering this viability, the local authority must take into account requirements normally provided for through Section 106—for instance, affordable housing—that will arise from the development. My noble friend will recall that we have tightened up on the use of Section 106.
The statutory framework for CIL provides for protection for affordable housing. This was, no doubt, in the minds of the previous Administration when they implemented the levy. However, we acknowledge that the guidance does not set this out as clearly and robustly as it could. We will revisit the guidance to make it clear that the imposition of a levy must not harm the delivery of affordable housing or other local policies set out in the local plan. I have asked my officials to work with the National Housing Federation to develop appropriate changes and we will reflect on the outcome in updated guidance from the Secretary of State. We are consulting on whether to allow CIL receipts to be used to fund affordable housing. We have asked for views on whether this approach could support local delivery of affordable housing by improving outcomes and offering better value for money. We will determine whether to make the change once we have received and considered the responses.
Inspiration has arrived to answer the question of my noble friend Lord Shipley, who asked to what extent authorities should be required to co-operate in using CIL receipts. This legislation allows authorities to pool resources to deliver infrastructure that supports their areas. We have the power to make statutory guidance about the duty to co-operate, and this could cover matters such as CIL.
The noble Lord, Lord McKenzie of Luton, asked about how CIL money could be used to perhaps bribe communities—
Lord McKenzie of Luton
I do not believe I said that. I was referring to how it was not described by the noble Lord, Lord Jenkin, to touch upon the fact that if these are inducements for communities to accept development, we need to reflect on the issues we are going to discuss in relation to Clause 130. I was not arguing in favour of bribing communities.
Earl Attlee
My Lords, I am struggling to read my inspiration here. However, I intend to make a substantive speech in our debate on Clause 130, which I think the House will find very helpful.
Earl Attlee
My Lords, I will consider any input that is brought to me or other Ministers.
Earl Attlee
“(za) in subsection (1) (levy to be used to fund infrastructure, or pay compensation under section 219)—(i) for “section” substitute “sections 216A(1), 216B(2) and”, and(ii) for “funding infrastructure” substitute “supporting development by funding the provision, improvement, replacement, operation or maintenance of infrastructure”,(zb) in subsection (2) (meaning of “infrastructure” in subsection (1)) for “subsection (1)” substitute “this section (except subsection (3)) and sections 216A(2) and 216B(2)”,(zc) in subsection (4)(a) (power to specify facilities that are to be, or not to be, funded) for “that are to be, or not to” substitute “whose provision, improvement or replacement may or is to be, or may not”,”
“(ab) things within section 216A(2)(b) that may or are to be, or may not be, funded by CIL passed to a person in discharge of a duty under section 216A(1),(ac) things within section 216B(2)(b) that may or are to be, or may not be, funded by CIL to which provision under section 216B(2) relates,”,(aa) in subsection (4)(b) (power to specify criteria for determining areas in relation to which infrastructure may be funded) for “in relation to which infrastructure may be funded” substitute “that may benefit from funding”, (ab) in subsection (5)(a) (power to require authorities to list projects that are to be, or may be, funded) for “projects that are” substitute “what is”,(ac) in subsection (5)(c) (power to make provision about funding projects not on list) for “projects” substitute “anything”,”
Earl Attlee
(c) in subsection (6)(c) (regulations may permit funding of administrative expenses in connection with infrastructure) after “infrastructure” insert “or anything within section 216A(2)(b) or 216B(2)(b)”, and(d) in subsection (6)(e) (regulations may make provision for the use of funding where the projects to be funded no longer require funding)—(i) for “the projects” substitute “anything”, and(ii) for “require” substitute “requires”.”
Earl Attlee
(a) the provision, improvement, replacement, operation or maintenance of infrastructure, or(b) anything else that is concerned with addressing demands that development places on an area.”
The Chairman of Committees (Lord Brabazon of Tara)
My Lords, I should point out that if this amendment is agreed to, I cannot call Amendment 204J.
Earl Attlee
“216B Use of CIL in an area to which section 216A(1) duty does not relate
(1) Subsection (2) applies where—
(a) there is an area to which a particular duty under section 216A(1) relates, and(b) there is also an area to which that duty does not relate (“the uncovered area”). (2) CIL regulations may provide that the charging authority that charges CIL received in respect of development of land in the uncovered area may apply the CIL, or cause it to be applied, to—
(a) support development by funding the provision, improvement, replacement, operation or maintenance of infrastructure, or(b) support development of the uncovered area, or of any part of that area, by funding anything else that is concerned with addressing demands that development places on an area.(3) Provision under subsection (2) may relate to the whole, or part only, of the uncovered area.
(4) Provision under subsection (2) may relate—
(a) to all CIL (if any) received in respect of the area to which the provision relates, or(b) such part of that CIL as is specified in, or determined under or in accordance with, CIL regulations.””
“( ) Where a local authority has a scheme or process of neighbourhood engagement and localised planning that promotes and enables the involvement of the residents and businesses of its area, within their local neighbourhoods, and that process has been agreed by the Secretary of State to—
(a) meet the objectives set out in section 61F, 5(a)(i) and (ii) of the Town and Country Planning Act 1990 as amended by Schedule 9 to this Act, and(b) constitute a sufficient process of local engagement to enable the making of neighbourhood development orders and neighbourhood plans on the basis of informed involvement and consent,that local authority may make such orders or plans on behalf of local residents without the establishment of neighbourhood forums or the holding of a referendum.”
Lord True
My Lords, in moving this amendment I should remind the House that I lead a London borough council, and one that under successive administrations has been and is a localist council. We are actually slightly unusual in having a regional plan that is going to stay in place, and also an adopted core strategy. We are now very actively involved with local communities in trying to create what we call “village plans”, but for the sake of this argument I will call “neighbourhood plans”. I do not think we need to be told by a government Bill how to go about this. I hope that does not sound too vainglorious.
I am a strong supporter of giving people the opportunity, and where opportunity is not given the right and the power, to directly influence decisions affecting their lives. Nothing in the amendment before the House detracts from that. My noble friend has been an absolutely admirable listener on this Bill. The Government have made major changes, on shadow mayors, EU fines, referendums, the right to challenge and on assets of community value. I do not ask for sweeping change on neighbourhood planning. I support the Government’s wish to have local involvement in the planning system. Most other council leaders also support that and many already practise it. In many of our views, planning led from the bottom up is essential. My amendment does nothing to stop the Government’s objective there.
I also recognise the Government’s wish to have back-stop—as I think it should be—regulation to enable local public engagement with planning where that is not happening. That may be necessary where communities are systematically excluded from having a voice in planning. Of course they should have a voice, and that inspiration behind the Bill is right. My amendment does nothing to stop that. The amendment proposes a system that allows the Secretary of State to permit local variety and discretion—that is, more localism and, I would argue, more trust in the best-performing local authorities.
On neighbourhood planning so far in the Bill, the Government have set down one model in the rather compendious schedules. Surely councils that are engaged in local neighbourhood planning can be approved, indeed encouraged, to go on doing so in their own way. My amendment also seeks to allow that, if other local authorities have a scheme for neighbourhood planning to do the job in ways that do not coincide in every dot and comma with what is in these labyrinthine schedules, they can be given the go-ahead and frankly be spared the constant potential challenge to react to a parallel national regulatory model at the same time. We have to go on from where we are now and from where we started. With a more permissive approach, we might even learn something from the differing approaches of differing councils and communities, with different sizes and places, run by people often with different views. A more permissive approach goes with the spirit of the Bill and in no way against it.
If there is in place a solid, reputable process in which hundreds, perhaps thousands, of local people have become engaged, why in principle should that local authority and those local communities be caught up with having to consider or fend off demands to set up a neighbourhood forum from what may be groups of as few as 21 people? As we argued in Committee, these may sometimes even be malcontents who have lost out in community debates, perhaps people who even court rejection by the council as a device to gain publicity. That is not necessary in the ideal world. I fear we may confuse the means of how to do this with the ends, on which I sense there is wide agreement in the House.
I set out in Committee a number of detailed aspects in the Bill’s area planning procedures that I do not understand. In particular, I do not understand why, under new Section 61G(2) that Schedule 9 to the Bill will insert into the 1990 Act, a local authority can designate neighbourhood areas only where a would-be forum asks for one. Why on earth can a council, informed by its knowledge of local events and the surveys it has done with local people, not go ahead and designate its own neighbourhood areas? I do not see why urban neighbourhood planning has to be done through forums that, by definition, are made up of the few rather than the many in any given area. I have argued in various places that the default position should be that everyone in an area is part of a neighbourhood planning process. The best body for facilitating that is the elected authority, of whatever size or nature, if it operates well.
I have not tabled again the amendments that I tabled in Committee that dealt with a number of those issues. I hope that my noble friend the Minister may even now be able to reflect on them and clarify some of those detailed points as we move towards Third Reading. They are embraced within the case for allowing different approaches made in the amendment.
Lord Greaves
My Lords, I enthusiastically support the amendment moved by the noble Lord, Lord True. I do not want to repeat everything he said about the common sense of building on existing successful systems and structures rather than trying either to set up a separate parallel structure, as the noble Lord suggested may well happen, or alternatively closing down something that exists or trying to transform it into a template imposed from on high.
I have been involved in the idea of getting people in communities to take a much greater involvement in local affairs generally, and in planning specifically, for about 40 years now. Forty years ago, when some of us started to talk like this, we met total opposition, and indeed hostility, from almost everybody else in British politics outside the Liberal Party at that time. Opinion has so changed that we have won the argument over those years. The last Labour Government talked about double devolution—central government devolving powers, and perhaps even resources, to local authorities and the local authorities devolving them to “communities”. It never actually happened very much but there was a lot of talk about it.
In the present Government we have had the idea of the big society coming from the Conservatives and, separately really but perhaps as part of that—I have never really been quite sure—the idea of neighbourhood planning, which is a very strong part of this Bill. Always, mechanisms are difficult because there are always the questions: “What is a community?” and “Who are the big society?”. Many of us have argued for a long time that, on a democratic basis, the default position is: “The many, not the few”, as the noble Lord, Lord True, said. A neighbourhood is a clearly definable entity, unlike a community which is much more difficult to define as you may have several communities in a neighbourhood. In a neighbourhood you start off from the basis that everybody who lives there is a member of that neighbourhood and you build it from the bottom upwards. Of course, some do not want to take part in it but that is up to them.
As regards who in the neighbourhood area takes part, lots of councils of pretty well all dispositions have been working hard on this idea in their patches. In a truly localist way, they are approaching the matter in different ways that are appropriate to their area, the ideas of the people who live in that area and, indeed, the people on the local authority, so the systems that exist in many parts of the country are different. There are obviously similarities but, basically, each area has built its own system according to its own circumstances: the noble Lord waxes lyrical about Richmond; my noble friend Lord Tope could wax equally lyrical about Sutton; and I could go on for ever about attempts to do all this in Pendle, some of which have been very successful. Many others could make similar remarks, but the systems are all different.
However, the real problem arises when central government comes along and, in order to do something which is very worth while, imposes a national template on very different systems. Where there is nothing at all, that is a good way to tackle this matter as at least you get people going. However, where measures exist on the ground, it is counterproductive and, indeed, ridiculous to force people to spend a lot of time either closing something down in order to start something else up or, indeed, trying to adjust and adapt to the new rules and regulations coming from on high. Therefore, I very much support this amendment. If nothing else, I hope that the Government will be rather more flexible in carrying out this measure than seems to be the case at the moment.
Lord Newton of Braintree
My Lords, I had hoped to be here the other night when I thought that we would reach my noble friend’s amendment. I was sorry that I was not able to be present, but then the amendment was not reached. We have now reached it and I am per contra glad to be here to add my support for what my noble friend has proposed. However, I am very conscious that the word on the street is that everybody wants to see the back of this wretched Bill today, even though it is less wretched than it was before my noble friend started amending it, and I do not want to delay the House. Indeed, I may shortly put myself beyond temptation in order to avoid doing so later.
Meanwhile, the House is already aware that I think this Bill is misnamed. Certainly, as it started, it was not a Localism Bill but a centralism Bill because “localism” meant what the Secretary of State said that it meant, not what local authorities decided that it meant. This debate is essentially on that very point.
I do not pretend to wish to defend the detail of the amendment, any more than my noble friend did. However, its fundamental thrust is that, where satisfactory local arrangements to achieve the Government’s objective exist, the Government should not stamp on them and insist that they are replaced with a template—I repeat the word used by the noble Lord, Lord Greaves—imposed from the centre. I cannot see any sense in that. It is the opposite of localism and common sense, and the Government need to look at it again.
Lord Lucas
My Lords, I entirely support my noble friend’s amendment for two principal reasons. One is that local authorities can game the system anyway—all they do is get their councillors to get a group of 20 members round locally and kick off the process that is in the Bill. That will be an expensive and tiresome way of doing it and will result in councils being divided up on ward boundaries, which is not perhaps the right way of doing it because wards have been created for equality of size and electoral convenience rather than to encompass natural communities.
My other reason for supporting the amendment is that it is the best hope—despite all the other hopes that I shall express later in respect of my amendments—of getting the Bill to work in cities. As it stands, the Bill has very little to offer a city community. What a city wants, by and large, is the local application of the policies of its council rather than a hand in planning, where in a built-out environment there is very little to offer. Co-operation and working with the council to establish the area that is a neighbourhood will be a great deal easier if that comes from the council rather than a community that does not exist and has no momentum or reason to create itself. The whole process of creating neighbourhoods will happen much better in cities when guided by councils. If we consider not just relatively easy parts, such as Lavender Hill, but areas where communities are at loggerheads, how the system set out in the Bill will work when it will merely become a vehicle for neighbourhood power struggles rather than anything really creative, is beyond me. The department needs to get a grip on the question of cities, particularly inner-cities, and how we are to bring the benefits of the Bill to them.
My noble friend’s amendment seems to address this most constructively, and I hope that the department, even at this stage, will start to pay some attention to that. We all had a wake-up in our holidays and reappeared here when we suddenly discovered that communities in cities were not as strong as we might have liked to hope. This is the “Department for Communities” and it ought to be doing something, but it is not, I am sad to say.
Lord McKenzie of Luton
My Lords, I got more supportive of the amendment the longer the debate went on. I was almost there when the noble Lord, Lord True, had finished his introduction. Let me say, first, that a world in which the noble Lord, Lord Newton, is beyond temptation is not something that I wish to contemplate.
We accept entirely the thrust of the proposition of the noble Lord, Lord True. If you have robust engagement with communities that works and delivers, why tear that up and replace it with something else? However, there is a conundrum. What will the process be by which we say that not only is the existing process sufficient but we have to withdraw from parish councils the other opportunities that are provided in the Bill in respect of the creation of neighbourhood forums? One might read the proposition in the noble Lord’s amendment to say that that has to be decided between local authorities and the Secretary of State. Of course, that would leave out the voices of the community.
I agree with what the amendment is trying to achieve, but—perhaps the noble Lord has simply truncated his presentation and has thought this through—how you decide whether what is working locally is sufficient such that you will not apply those other provisions in the Bill is a question that needs to be answered. One could not disagree with the proposition that, if you have good engagement at the moment in a variety of different circumstances across the country—particularly important is the issue of urban communities, as the noble Lord, Lord Lucas, said—that should be preserved. How you do it and how you switch off the other mechanisms is key.
Baroness Hanham
My Lords, once again we have had an interesting debate on this part of the Bill and I am grateful to those who have taken part. I am also grateful to the noble Lord, Lord McKenzie, for putting his finger on one of the conundrums. One would have to decide how you work out how a local authority is doing it better than anyone else. That is perhaps something that will have to be decided anyway in the course of the process that has been laid out.
This amendment would allow a local authority to make a neighbourhood plan or order without a referendum being held or a neighbourhood forum being established. The basis on which this decision would be made is whether the local authority has an adequate process of neighbourhood engagement—I am not quite sure that that is how my noble friend put it, but I think that that is what it means—to enable the formation of neighbourhood plans. It is, as he suggested, a permissive approach. Whether this process is adequate will be determined, as the noble Lord, Lord McKenzie, has said, by the Secretary of State—which is not a terribly localist aspiration.
The effect of the amendment would be to give a very significant degree of power to the Secretary of State. I wonder whether that is entirely what is wanted. The Secretary of State would be allowed to control the neighbourhood planning process and bypass the referendum stage, because he would have to agree whether a local council is well advanced in what it was doing. I fully appreciate, however, the noble Lord’s concerns about the delay in holding a referendum on a neighbourhood plan or the way that it can be demonstrably shown that the local planning authority and the community at large are content for the neighbourhood plan or order to come into force.
Lord True
My Lords, of course I am extremely grateful for what my noble friend has said. As I have said in my opening remarks, she has been an outstanding listener on this Bill and the whole House recognises that and is very grateful. Of course, I accept her assurance as being absolutely something that one can rely on.
I do not wish to trouble the scorers any longer: On this Bill I have troubled them almost as much as my noble friend Lord Newton of Braintree. I am grateful for the support of all noble Lords who spoke. There is a principle of concern here. The answer in brief to the noble Lord, Lord McKenzie, who asked how we would get out of this problem, is “What a pity we got into it”. Localism was going along very happily in many parts of the country until the Government came along, plonked down a Bill and said: “This is how you do localism, boys and girls”. I drafted my amendment to try to give content and relief to the Secretary of State, who seemed to want to designate a system to allow him at least to take a view on whether what was going on was satisfactory.
I would rather have an alternative to a back-stop power. I have always thought that a problem in many sections of the Bill is that a back-stop piece of legislation that should have guaranteed certain rights has become potentially all-embracing. I am not trying to push the Secretary of State into anything: it is a way of trying to find a solution. The Secretary of State has already come into the question.
Without further ado, I again thank my noble friend for what she said, thank other noble Lords who spoke and express the hope that we can find a solution to what other noble Lords have agreed is a real conundrum. I beg leave to withdraw the amendment.
Lord Greaves
“Community governance review in area of a neighbourhood forum
In the Local Government and Public Involvement in Health Act 2007, after section 80 insert—“80A Community governance request by a neighbourhood forum
(1) This section applies to a neighbourhood area where a neighbourhood forum makes a request for a parish council to be created.
(2) A request may be made to create a new parish council for—
(a) the area of the neighbourhood area, or(b) the area of the neighbourhood area together with the area of an adjacent parish council.(3) A request under subsection (2)(a) must be made jointly by the neighbourhood forum and the parish council.
(4) Following a request under this section the principal council must commence a community governance review relating to the area of the request within three months of receipt of the request.
(5) A community governance review under this section shall have a presumption that a new parish will be created.
(6) The provisions of this apply only insofar as they do not prevent action being taken on the request made under this section.
(7) In this section “neighbourhood area” and “neighbourhood forum” have the meanings given by section 61F of the Town and Country Planning Act 1990.””
Lord Greaves
My Lords, it has been drawn to my attention that there is a typo in my proposed new Section 80A(3). It refers to subsection (2)(a) instead of (2)(b). The misprint will be obvious to anybody reading it. I am sure that it was my fingers that got it wrong and not the Public Bill Office.
The amendment tackles the problem of the democratic deficit and creates the opportunity for more democratic legitimacy in unparished areas where neighbourhood areas and neighbourhood forums may be set up. It does this by amending the Town and Country Planning Act 1990, covered by Schedule 9 to this Bill, which then affects the sections of the Local Government and Public Involvement in Health Act 2007 that cover community governance reviews. It is slightly complicated, but I think that what is set out is clear.
I remind noble Lords that in parished areas, the body that will be responsible for neighbourhood planning—for the creation of a neighbourhood plan or of neighbourhood development orders—is the parish council. In unparished areas, the local planning authority can, on request, designate a neighbourhood area; and no fewer than 21 people in that area can be designated as a neighbourhood forum. Clearly in that situation there is a democratic deficit in the formation and accountability of the neighbourhood forum compared with parished areas where there is an elected local authority—the parish council—responsible for carrying out the work.
This is a modest proposal. It does not force anything on anybody. It seeks to give a neighbourhood forum—where it exists and is recognised by the local planning authority for the purposes of neighbourhood planning, and where it believes that it would be advantageous to convert into an elected parish council—an easier and quicker means of doing that than exists at the moment. The Government recognise the problem. After the summer the Minister wrote a number of letters to various Members of the House setting out the views of the Government on this. I want to quote from the letter to my noble friend Lord Shipley, because when I was digging this out I could not find the letter to me, which I think includes the same stuff. My noble friend Lord Shipley apologises for not being present at this debate on a topic which he has raised repeatedly. He has had to go to another gathering in order to make a speech.
The Minister wrote to my noble friend as follows:
“In these neighbourhood areas, we have sought to recognise the democratic legitimacy of parish councils by ensuring that, within an area that includes any part of a parished area, only the parish council has a mandate to undertake a neighbourhood plan. We would therefore encourage communities to use the opportunity of preparing a neighbourhood plan to consider whether they wanted to apply to become a parish, town or community council—with the extra powers and responsibilities that brings”.
Community councils, of course, are parish councils in Wales. The letter continues:
“However, we do not want to force communities to become parish or community councils before they undertake neighbourhood planning—hence our neighbourhood forum provisions”.
The problem with the way that the Government want to go ahead on this is that where a neighbourhood forum and a neighbourhood wish to consider setting up a parish council, the process under a community governance review—under the Local Government and Public Involvement in Health Act 2007—is fairly cumbersome. More to the point, the principal local authority—the district or unitary council responsible for the community governance review—can put a stop to it if it wants to do so. In the best of all worlds, it will not be carrying out local community governance reviews very frequently. It may say, “Well, we have just done one and we are not going to do another for five years”, or something like that, or it may, as has happened with a number of local authorities, simply be hostile to the idea.
This amendment puts forward a means by which a neighbourhood forum can require a community governance review covering just its area, which has to take place fairly quickly. It also provides for a presumption that, unless there are some very good reasons, it will be approved. That is the purpose of this amendment. What I would really like to come out of this debate today is for the Government to tell us how they intend to tackle this problem, which they have recognised, and how they will make sure that there are more community governance reviews for more parish and town councils, particularly in urban areas where they do not exist at the moment, and where local people, through the neighbourhood forum, actually want them. They should not be compulsory by any means, but there should be a means by which a lot more could be created. I beg to move.
The Earl of Lytton
My Lords, I support the principle behind the amendment of the noble Lord, Lord Greaves. I cannot speak to the wording, even less to the typos I am afraid, but noble Lords will of course know of my interest in parish and town councils. At present a parish council is the only community-based organisation that combines a democratic base, truly local roots and a statutory status. So it has a special cachet from that point of view, and indeed many communities aspire to that status. Crucially it is independent of other local government bodies in having its own power to precept, and that of course gives it a financial independence as well.
The noble Lord, Lord Greaves, has touched on this, and it is certainly no reflection on the borough—which I think has an exemplary record towards communities in its area—of the noble Lord, Lord True, who I see is no longer in his place, but some local authorities have been obstructive to the formation of new parish and town councils, and I do not think that there is any point in overlooking that. That has happened on occasions despite an authentic and well-argued local desire having been put forward.
I would put one caveat in here and that is that the geographical template for new parishes in unparished areas needs to be a reasonably good fit. I am concerned not so much about the precise geography as about the cohesion and the identity which is to some extent reflected, as it must be, in geography. Size is clearly not the main issue because, up and down the country, we have very large and very small parish and town councils. One feature that they benefit from is that they serve the needs of the community and have grown up to reflect that community, whether large or small, over very many years.
I welcome the sentiment behind this amendment, which I see as a way of effectively creating, to some extent, the possibility of a fast-track route to parish and town council creation. It enables neighbourhood forums that wish to to migrate to the statutory basis where they can join and become one of the family of democratic structures that form the first tier of local government. I welcome the principle behind this amendment and I hope that the Minister will be able to give a positive response.
Lord Lucas
My Lords, I have an amendment which covers very much this area—Amendment 210AC—which I do not now have to speak to, I am delighted to say. I agree with everything that has been said. I will add just one rider to it. It seems to me that where a community has got itself together and has gone to the lengths of putting together a neighbourhood plan, dealing with the criticisms of it and then winning a referendum, that should count for something in the arguments with its local authority about whether it should be a parish. At the moment it does not, and I think that it should.
Lord Newton of Braintree
My Lords, I cannot resist the temptation, so clearly I am going to have to go shortly. Meanwhile, I have been tempted. Perhaps I may ask a possibly elementary and perhaps even naïve question. How does all this relate to the fact that, in my understanding, and certainly in my neck of the woods, the concept of parish is basically an ecclesiastical one? Indeed I am slightly surprised to find that the Bishops’ Bench is empty during this debate. Is the parish essentially an ecclesiastical concept? Whether it is or is not, this clearly raises the possibility of parishes being extended in a rather curious way, by a proposition coming from an adjacent district—albeit requiring the consent of the parish council—which creates a parish council that then, by definition, extends into more than one parish. I find this very curious. If we are going down this path, which I do not object to in principle, at the very least we need some different terminology, because it would not be a parish council as normally understood in my kind of area.
My second point—noble Lords will be glad to hear that it is my last one—is that subsection (4) states that there must be a community governance review if there is a request for one, and that if there is a review, there must be a presumption that a new parish will be created. Why? Why cannot a review come to the conclusion that the world is all right as it is and that no change is needed? Whatever the merits of the intended fundamental thrust of this amendment, the amendment needs a lot of looking at.
Lord Brooke of Sutton Mandeville
My Lords, I add the briefest of footnotes to the remarks of my noble friend Lord Newton of Braintree, if only to make the point that Essex and Wiltshire can be different. In fact I am not sure whether or not I am going to illuminate the matter that he has just raised. I live in the ecclesiastical parish of Tisbury and, simultaneously, in the local government parish of Sutton Mandeville, and on the principle of “render unto Caesar”, I took my title from the latter rather than the former. It is possible to live in several parishes at the same time.
Lord Beecham
My Lords, I am pleased to see that the noble Lord, Lord Newton, takes the same attitude to temptation as St Augustine did to chastity. There is another line about temptation that we might want to consider:
“The last temptation is the greatest treason:
To do the right deed for the wrong reason”.
It seems that this amendment is in fact the other way round: it is doing the wrong thing for the right reason, potentially.
I noticed the typing error that the noble Lord, Lord Greaves, referred to in subsection (2)(a), but I think there may be another typographical error, or perhaps an error in drafting. Subsection (5) says:
“A community governance review … shall have a presumption that a new parish will be created”—
and I will come back to that point. Subsection (6) goes on to say:
“The provisions of this apply only insofar as they do not prevent action being taken on the request made under this section”.
It is not clear to me what that means. Does it mean the provisions of the previous subsection, or does it mean the provisions of the whole clause? I am at a loss to understand what that implies.
However, I agree very strongly with the noble Lord, Lord Newton, that there is no case for there to be a presumption that a new parish should be created on the simple fact that a request has been made by a neighbourhood forum that might constitute 21 people, of whom a majority of 11 against 10 would therefore trigger not only the whole process but a presumption as to its outcome. It seems a ridiculous proposition given that we are presumably talking about areas of several hundred people, if not thousands of people, possibly, in an area the size of an urban ward or a significant rural community.
The clause also requires the commencement of a review within three months. That might be all right if there was to be one review, but supposing there was a rash of applications from these neighbourhood forums, is a local authority obliged to commence reviews on all of them in that timescale? It does not seem at all realistic. There certainly should be a method of facilitating a legitimate demand—or a widespread demand, let us not prejudge the issue—for the creation of parish councils or town councils. They have a perfectly proper place in our system of local government and that should be facilitated, but this clause really goes much too far in that direction.
Nor is it the case that, once created, all of these bodies are trouble-free. Your Lordships will be aware, from the debate about the standards boards and the need for codes, that most of the complaints that arose under the existing procedure actually came from parish councils. The noble Lord, Lord Shipley, who is not in his place at the moment, will no doubt have told your Lordships of the case in Newcastle where a council inherited three parishes on local government reorganisation, and one inner-city area opted for a parish council. That particular grouping did not seem to perform very effectively, to the extent that Councillor Shipley’s colleagues in his political group decided that they would go in and in effect take it over, which they did—by perfectly legitimate democratic means, I should say. These places are not without their problems, although they can certainly contribute to an enriched local democracy.
However, there is one other issue in which, again, the drafting is perhaps defective—certainly it raises an issue—and that is subsection (2), which says:
“A request may be made to create a new parish council for … the area of the neighbourhood area together with the area of an adjacent parish council”.
Is it not conceivable that there may be more than one existing parish council? Certainly there are contiguous parish councils in my authority; there will be in other authorities, particularly urban authorities, I suspect. You may well find a community between the two wishing to align with both rather than one, and creating an entirely new structure. For a variety of reasons, I suspect I may find myself—unusually—agreeing with the Minister when she replies and, I hope, says that she may want to take this away and look at it, but that she cannot agree the amendment as it stands. Certainly that would be my position.
The Earl of Lytton
Before the noble Lord sits down, perhaps I may ask him if he would comment on the fact that although it is true that parish and town councils provide a disproportionate amount of the subject matter for standards committees, it is also true that because there is no other body of a sort which has recourse to a committee dealing with standards, there is no other basis to judge whether that statistic is large or small, or whether it is characteristic of dealing with community affairs. What I am trying to get at is that it is perhaps not a specific criticism of parish councils as a construct.
Baroness Hanham
My Lords, I am going to leap in because I think, with the greatest respect, that the noble Earl is out of order. On Report, we normally get the Minister to wind up after the Opposition. But I hear what he says.
The amendment has its faults, and the noble Lord, Lord Greaves, has already recognised that. But having said that, we are not unhappy about the principle of neighbourhood forums investigating opportunities to create town or parish councils for their area, and we accept that that gives greater democratic legitimacy. The noble Lord is also correct that there were a great many standards inquiries on parishes, but we also accept that they have responsibilities, duties, income and powers that would bring benefit to these neighbourhood proposals.
This is why we have already committed, in the Open Public Services White Paper, to look and see how to make it easier for neighbourhood forums and others to have a parish or town council for their area. In doing so we are looking at streamlining the community governance review process, to which the noble Lord, Lord Greaves, referred in rather uncomplimentary terms, but we need to strike the right balance so that neighbourhood forums or communities that want a parish council can get one relatively quickly. The noble Lord, Lord Greaves, was correct that this is not a speedy process at the moment, but if we speed up the process there will have to be safeguards to ensure that parish areas reflect community identity and interests.
The listening phase—which I have written down here, by which I assume consultation is meant—on the Open Public Services White Paper has just finished, and we are looking at cross-government implementation plans being announced in November. Building stronger neighbourhoods, including making it easier for people to set up parish councils, will be a priority for us in those plans.
While I do not want to pre-empt this work that has got to be done, I can reassure the noble Lord, Lord Greaves, that we will consider the issues raised in this amendment in conjunction with that. I hope that, as I said, that process will not be terribly long in coming to conclusions. I hope that with those reassurances, the noble Lord is willing to withdraw his amendment.
Lord Greaves
My Lords, I am grateful to everybody who has taken part. I have to point out to my noble friend Lord Newton of Braintree that there is a fundamental difference between a parochial church council and a civil parish. If he would like to do some historical research he will find that a not very great Liberal Government in the middle of the 1890s—perhaps in 1894, but I would not stick to that—introduced the concept of civil parishes against the hysterical opposition of Conservatives, particularly in your Lordships’ House, who thought that the idea of elected parish councils in the countryside was the nearest thing to communist revolution they could think of. But it was forced through, and it was just about the only good thing which that short-lived Liberal Government managed to do before they lost power.
Having made the party political plug, if I can comment very briefly, the point is —and I am grateful for the support from the noble Earl, Lord Lytton—I accept the nitpicking complaints about the amendment from the noble Lord, Lord Beecham. If he were to investigate the Local Government and Public Involvement in Health Act 2007 he would find out what is in this section which this amendment is referring to. In my opinion, it is all together far too long-winded and bureaucratic in terms of community governance reviews. On standards, it is often little rural parishes which cause the most bother.
However, I am extremely grateful for the Minister’s comments, which are extremely positive. I look forward with enthusiasm and anticipation to the Government’s proposals in November, which some might say is a pleasant change for me, although it is not entirely. I thank her very much for what she has said. On that basis, I beg leave to withdraw the amendment.
Baroness Hanham
“(a) it is established for the express purpose of promoting or improving the social, economic and environmental well-being of an area that consists of or includes the neighbourhood area concerned (whether or not it is also established for the express purpose of promoting the carrying on of trades, professions or other businesses in such an area),”
Baroness Hanham
My Lords, I will move Amendment 205ZA and then sit down for the other amendments to be moved or spoken to. I will respond to them subsequently. Government Amendment 205ZA makes it clear that neighbourhood forums should always have a purpose which seeks to promote the overall economic, social and environmental well-being of the neighbourhood area. We do not want to impose any further unnecessary restrictions on organisations which want to put themselves forward to create neighbourhood forums. It continues to make it clear, however, that a forum may also have an explicit purpose of promoting the development of business in a neighbourhood area should that be appropriate given the local context. I beg to move.
Amendment 205ZB (to Amendment 205ZA)
Lord Brooke of Sutton Mandeville
My Lords, I have Amendments 205ZB and 205ZC in this group, to which I will speak. I immediately welcome the Government’s amendment moved by my noble friend the Minister, which leads this group, and express appreciation for it in response to what was said in Committee. It still does not go quite as far as I wished, as expressed in Amendment 205ZC on the Marshalled List, which I moved in Committee on behalf of the Heritage Alliance. Amendment 205ZB addresses that. I shall not rehearse everything I said on the previous occasion, except to explain why I have put it down again and to repeat the final sentence of my speech in Committee.
On that latter occasion, I said that the amendment’s essence was to make sure that there is a consideration of cultural well-being in addition to the considerations that the Government have placed in this part of the Bill. As to why I have repeated this amendment, last Monday night I said that I understood and concurred with the Government in their emphasis on economic growth in their planning policy, but I retain a concern that we shall not have fully done our job of scrutiny on this Bill unless the Government have made their peace more fully with the heritage lobby.
Since last Monday, I have spoken to the Minister and the noble Baroness, Lady Andrews, to air my concern about this issue. I received their encouragement to bring it back to your Lordships’ House. I recall the treatment, perhaps due to their funding decisions towards the heritage, meted out to DCMS Ministers in the previous Government at the annual dinners of English Heritage. Of course I realise that in such an instance the Government are the Government are the Government. But it is not DCLG Ministers who will carry the can in terms of criticism of the Government’s planning policy within that heritage arena but rather their DCMS colleagues if some planning cruces are left unimproved.
The Government will know better than I how they can resolve this matter but the acceptance of Amendment 205ZB would be a helpful sign that they understood the problem. The Minister may well say that the word “environmental” embraces “cultural”. But environmental is much more of a portmanteau word; the old contradistinction between the Department of the Environment and the Department for Culture, when in 1992 the responsibility for the built environment was separated at the creation of the new department, itself makes the separate culture point. That is reinforced as a cultural emphasis when I say that I have no emotional capital tied up in the words of my first amendment but I hope that the Minister can recognise the significance of the issue. I should add that within the Heritage Alliance, this view is particularly held by the Theatres Trust, which falls into the area of responsibility of DCMS. I beg to move.
Lord Cormack
My Lords, I strongly support the amendment moved by my noble friend Lord Brooke of Sutton Mandeville. I had the pleasure of taking a small deputation to see my noble friend the Minister a couple of weeks ago. It included the chief executive of the National Churches Trust as well as the chief executive of the Heritage Alliance. We discussed a range of issues as we also had a representative from the National Trust present. We had an extremely constructive and amicable meeting, for which I am very grateful to my noble friend. But I do not think that she could fail to have been impressed by the quiet passion expressed by those I took with me on that occasion. A very special concern was expressed by the chief executive of the Theatres Trust. My noble friend has just referred to that.
This is not just a semantic point. There is real substance in his argument and it is not sufficient for any Government or Minister to assert that environmental embraces cultural. Because of the demarcation to which my noble friend referred when he talked about the establishment of the Department of National Heritage, as it originally was, the Government have decided that there is a distinction, but it is not a distinction without a difference. When the Minister replies to this debate, I hope that she will at the very least promise to come back at Third Reading on this issue. I hope that it is not an issue on which we have to divide the House because these matters transcend all party and petty differences. We are concerned about establishing a new system that will be in place, I hope, for a long time. I trust that it will bring real benefit. But it will not bring the real benefit that we all desire unless there is sufficient recognition of the points made so succinctly and admirably by my noble friend. I hope that the Minister will be able to give us at least some comfort when she comes to reply.
Lord Lucas
My Lords, perhaps I may address my amendment in the group before we get too far into the speeches. I am addressing a rather different subject, which is to try to make sure that the wording in the Bill will encompass people who are part of the community because they volunteer in it and not because they work in it. I am thinking particularly of, say, a scout leader who has come into an area to create a new scout group. He may not be from the area but he will be an expert community organiser. In the process of this, he will have become someone who really knows and understands the community, and will be a valuable part of the forum. I very much hope that people like that will be included.
Lord Deben
My Lords, I hesitate to disagree with my noble friends on this subject but I would hope that the Minister will be careful before she automatically goes down the tempting line of adding cultural to the environment. The reason for that is very clear. First, I have to declare an interest: the division between the Department of the Environment and the Department for Culture was a huge mistake. But it was not made on the basis of a difference: it was made on the basis of personalities. It was set up in that way to provide particular jobs for particular people, which is why culture and sport were put together. As it was done by a Prime Minister whom I strongly supported, I do not think that people can complain about my point.
I do not think that the idea that there is an eternal justification for this distinction based on the division in government is acceptable. I understand the reason for it but it has some very dangerous aspects to it. Let me give a simple example. I have fought for a long time to protect the countryside in Suffolk—its environment and its beauty. Part of that is stopping the sea taking it away. One of the things that the previous Government did, which was wholly unacceptable, was to downgrade the nature of the heritage contribution to the environment by making the points that they scored when they came to discuss the issue of coastal defence. Without any discussion with the heritage lobby, they lowered the importance of heritage within the environment.
I cannot consider the environment without considering culture. I believe that “environment” is a word which covers our cultural heritage as much as it does—I am afraid I am going to insult people—woolly animals. One of the problems is that the environment is often talked about as if it is about woolly animals. It is not—it is about the whole ambience in which we live. To exclude culture from the environment, or to suggest that there is a distinction, seems to me to have very serious import. I would hope that a future Government would reunite the environment with culture. That is where it should be. It is much closer to that than, for example, the media, which seem to me to have only a tangential effect on it. Much of the media seems to me neither cultural nor environmental. I do not see that the media should therefore necessarily be in the same box. To be told that the future of legislation should be based on a mistaken decision in the past about divisions between Ministries seems to me to be a fault.
One of the problems the Government have got themselves into—I am sure my noble friend Lord Cormack will agree with this—is that some of the language that has been used in the context of planning has led people to believe that our commitment to our environment, be it the cultural environment or the natural environment, has been less than strong. I think that has subsequently been put right and has been remedied not only by my noble friend but by the Prime Minister and others. However, I beg my noble friend to be very careful about this. I know that the House wishes to move on, but I have stayed—I have not had temptation—for this amendment, because I think we have to stand firm on the statement that the environment is not just about the natural environment but that the urban environment, the cultural environment and the spiritual environment all fit in. If she gives way on this, I would argue that there ought to be amendments about the spiritual environment. We have had this before. If we are going to start dividing the environment up, I would find it unacceptable to leave the spiritual side of life out of the Bill. I am able to accept it because the word “environment” carries that meaning for me just as much as it implies the natural environment and the cultural environment.
I hope that the Government will take this very seriously and that those who lobby my noble friend Lady Hanham are told very clearly that if they have not managed to establish the idea that great poetry, plays, architecture and heritage are part of the environment, then they need to present their case more effectively.
Lord McKenzie of Luton
My Lords, I shall work back through the amendments, starting with Amendment 205A, which is tabled in the name of the noble Lord, Lord Lucas. I doubt whether the wording is actually necessary, as it is probably encompassed by what is already in the Bill, but I do think it is an admirable amendment and its thrust is certainly something we support. With regard to the amendments tabled by the noble Lord, Lord Brooke, I was persuaded by the points that have just been made by the noble Lord, Lord Deben.
I should like to ask the Minister for clarification concerning the Government’s amendment, the thrust of which was to dispel a concern that business neighbourhood forums were going to be focused on business to the exclusion of the environment and other social and economic aspects. I think the wording has now changed, so that it ensures that neighbourhood forums always have a purpose which seeks to promote the overall economic, social and environmental well-being of the neighbourhood area. The original formulation—which is the one used in the amendments of the noble Lord, Lord Brooke—was that it should relate to individuals who want to live in the area. There may not be a great distinction in those formulations, but I should be grateful if the Minister could help us on that. Amendment 205ZA, which deals with concerns about the focus of neighbourhood business forums, is to be welcomed.
Baroness Hanham
My Lords, I thank all noble Lords who have spoken. With regard to Amendment 205ZA, I hope I have made clear that we do not want to impose further restrictions on the purpose of a neighbourhood area, but we do want to make clear that a forum may also have an explicit purpose of promoting the development of business in a neighbourhood area. This picks up that point and makes it clear that it is possible to have business areas as well as neighbourhood areas which are mostly residential. A business area can also include residents and often does. However, there are places such as business parks where there is not a resident to be seen, and therefore it is appropriate that there should be business areas in such cases.
Amendment 205ZB has generated the most emotion. I have some sympathy with my noble friend Lord Deben and what he said about adding “cultural”. We had quite a long debate at the previous stage about the definition of sustainable development. At one stage I recall myself saying that if we were not careful we would have a whole string of additions to sustainable development. The cultural and spiritual aspects were both discussed, and we were in danger of developing a wider and wider concept of the environment.
We still have to decide what we will do about the definition of sustainable development. However, I am not anxious to have extra elements added in to it. This is specifically because the national planning policy framework is very clear about the preservation of historic regions, areas and buildings. These have to be taken into account and looked at by a neighbourhood forum. It cannot simply ignore them and they will probably already have been identified in the local development plan. There are sufficient ways of making sure that culture is protected. The noble Lord, Lord Cormack, is correct that the question of theatres, opera houses and other cultural buildings was also raised. There is enough to protect all of these and make sure that they are taken into account in any question about the development of a neighbourhood plan.
Amendment 205ZC explicitly promotes the purpose of business. Amendment 205A would specify that neighbourhood forums shall be open to employees, owners of businesses premises, and, as was specifically raised by my noble friend Lord Lucas, volunteers. We do not think that this amendment is necessary as the wording in the Bill, which was amended in the Commons, is sufficiently broad to include individuals who work in businesses carried on in the neighbourhood area, who own businesses, or other organisations operating in the area or who otherwise work in the neighbourhood area. That very specifically also includes volunteers. It must be right that an organisation which is helping in an area or providing volunteers for it should have a say. We do not think that the amendment is necessary and I hope my noble friend will take that reassurance.
The word “businesses” in the context of this amendment is used in the broadest of terms. It includes commercial, industrial and professional activities, the public and third sectors as well as the agricultural and fishery sectors, but ensures that membership is open only to those with a local connection. This encompasses practically everybody, but they have to be specifically related to the neighbourhood area. By specifying these categories in the Bill, Amendment 205A would reduce the scope we have provided for in terms of the diverse range of people who can become members of a neighbourhood forum.
I hope that, with those explanations, noble Lords will feel able not to press their amendments.
Lord Brooke of Sutton Mandeville
My Lords, I am not entirely clear whether under our procedure I am allowed to say a word about my amendment to my noble friend’s amendment. However, I would be speaking after the Minister and I am not clear whether I am allowed to or not.
The Deputy Chairman of Committees (Lord Colwyn)
The noble Lord may speak at this point.
Lord Brooke of Sutton Mandeville
In that case, I shall give way to the noble Lord, Lord McKenzie, who I think wants to intervene.
Lord McKenzie of Luton
I am conscious that the Minister has spoken, but can she deal with one point, which may be just a matter of drafting? The existing Bill refers to,
“furthering the social, economic and environmental well-being of individuals living, or wanting to live, in an area”.
The amendment would change that to,
“it is established for the express purpose of promoting or improving the social, economic and environmental well-being of an area”.
The reference to “individuals” has slipped out. This may be a point of drafting rather than one of substance, and I am trying to see what it is if there is one. Can the Minister give us an assurance on that?
Baroness Hanham
I think my inspiration has arrived in this note. We have used the phrase “well-being of an area” because it is already used in the Local Government Act. We want the purpose to relate to the area rather than to the well-being of individuals within the area. It is not a mistake and the word “individuals” has been taken out, but by definition individuals would make up an area. You cannot deal with one without taking account of the other.
Lord Brooke of Sutton Mandeville
My Lords, from what the Minister has just said, I understand the purpose of her amendment and the change in emphasis from the original text to which it gave reference. My noble friend Lord Deben and I have, on one or two occasions both in this House and the other place on matters of some importance, differed in a most agreeable way in the course of respective debates. I can remember defending Westminster Abbey and its Dean and Chapter against him, and I now find him defending the Department of the Environment against me. I am not suggesting for a moment that I am trying to put the tanks on his lawn with my amendment, but I will remind him of something in terms of what he has said about the 1992 division of responsibilities. It is not for me to comment on whether it was done for personnel reasons, not least because I was a totally incidental participant in that process. But I will say that one of the great virtues of the separation made in 1992 is that it removed the need for Chinese walls within the Department of the Environment. Previously the department had been involved both in making listing decisions and in listing building consents. The great advantage of the separation—I can remember it when my noble friend Lord Deben was the Secretary of State for the Environment—was that we did not have one department making all the same decisions. That was extraordinarily useful.
I understand the desire of the House to move on. I am most grateful to my noble friend Lord Cormack for his intervention. I do not know whether we can move the Minister at all between now and Third Reading, but in the mean time, I beg leave to withdraw my amendment.
Lord McKenzie of Luton
“( ) A neighbourhood forum designated under this section is to be taken for the purposes of section 6(3)(b) of the Human Rights Act 1998 and section 149(2) of the Equality Act 2010 to be exercising a function of a public nature when exercising functions under this Act.”
Lord McKenzie of Luton
I hope to be brief in moving this amendment because I think a point here was left outstanding. This brings back an amendment that was introduced by the noble Lord, Lord Greaves, in Committee. In responding to the amendment, I think the noble Baroness confirmed that plans could not be approved under these provisions unless they were compatible with the Human Rights Act, but she said that neighbourhood forums do not exercise a public function and therefore we have the anomaly originally pointed out by the noble Lord, Lord Greaves, that parish councils are subject to the equality duty while neighbourhood forums are not. This remains an issue of concern because the impact assessment for these provisions points out that certain communities are much less likely to engage and therefore be involved in this process than others. I do not think we dealt with the question of whether there is a technical problem in bringing neighbourhood forums within the scope of the equality duty, notwithstanding that they apparently do not exercise public functions. Otherwise, there is an issue about doing all we can to ensure that all communities have a chance to become engaged in these neighbourhood planning opportunities. I beg to move.
Lord Greaves
My Lords, the noble Lord, Lord McKenzie, has quite rightly said that I brought this amendment forward at the Committee stage. I apologise to him because I had intended to add my name to his amendment at this stage, but in the hustle and bustle of the Bill, I failed to do so. The noble Lord has set out the position clearly and I do not have anything to add other than to support his remarks.
Baroness Hanham
My Lords, I am not going to be able to take this any further, so the response I made in Committee is the one I am going to give to the noble Lord again. Neighbourhood forums are not public bodies and therefore by definition they are outside the requirements of the Equality Act. Their purpose is to form themselves in order to make a neighbourhood plan and subsequently, when they have done that, to disband, so they will have a shortish life. By definition they are expected to be widely inclusive in terms of who is on them, and that will be checked by the local authority. The neighbourhood planning proposals cannot be approved unless they are compliant with human rights obligations. Built into this is an expectation of equality both in terms of who should be on the neighbourhood forum and in the way that plans have to be compatible with human rights obligations. It is a requirement, but it is not an absolute legislative requirement because it cannot be one. I hope that, with my explanation, the noble Lord will feel able to withdraw his amendment.
Lord Greaves
My noble friend has just said something I have not heard before, which is that the expectation is that neighbourhood forums will be short-lived. They will be set up for a particular purpose and they will then close down. I wonder if she would like to comment on that because it is something that we would like to take away and think about, particularly in light of the comments made on earlier amendments by the noble Lord, Lord True.
Baroness Hanham
My Lords, I do not think we have ever said anything different. The neighbourhood forums are to come together within a neighbourhood area and their prime purpose is to put forward the neighbourhood plan. They were never expected to be longstanding or permanent organisations and the shortest time, I think, is up to five years. That has been the situation all along and if there is anything different from that—noble Lords have been drawing their breath and sucking their teeth at that response—I will write to the noble Lord.
Lord McKenzie of Luton
My Lords, I thank the noble Baroness for those two answers, effectively. The latter one is rather illuminating. Will the noble Baroness drop me and other noble Lords a line to confirm that notwithstanding that the Equalities Act does not ab initio apply to neighbourhood forums, it cannot be brought within its scope, so that we have that added reassurance of the thrust of that equality duty? Having said that, I beg leave to withdraw the amendment.
Baroness Hanham
My Lords, I will certainly write to the noble Lord, but my response will be in Hansard and I do not anticipate that it will change.
Baroness Hanham
Baroness Hanham
Amendment 205C ensures that a neighbourhood area for which there is a parish council can be modified only with the consent of that council. We have listened to the cogent arguments put forward by the noble Lords, Lord Greaves and Lord Tope, and brought forward this amendment to meet those concerns. I am grateful to the noble Lords for raising this issue. The amendment is entirely consistent with the localist thrust of the Bill and will ensure that changes cannot be imposed on parishes in a top-down manner.
Amendment 206A is intended to make it clear that neighbourhood development plans are flexible and that the policies can apply to all or part of a neighbourhood area. That is to say that they do not need to have policies that apply across the whole neighbourhood area. That had always been our intention, but this amendment addresses concerns raised in Committee that the provisions about flexibility were not clear on this point. This flexibility is important. We want communities to be able to use neighbourhood planning in ways which reflect their aspirations and their vision for the future. We want to make clear, therefore, that there are no unnecessary, top-down restrictions: neighbourhood development plans can be as simple or as ambitious as the community wants to make them. They can include policies covering the whole area, or could have just one or two policies focused on a specific site, such as a high street or valued green space.
Amendment 210B seeks to emphasise the central importance that the Government place on effective consultation in neighbourhood planning. Therefore, rather than leaving consultation requirements to secondary legislation, this amendment would require a qualifying body to submit a consultation statement to the local planning authority prior to independent examination. Amendment 210B also makes it clear that this consultation statement should set out who has been consulted in developing the neighbourhood plan or order and a summary of the key issues raised through that consultation. It responds to concerns raised by several Peers and partner organisations in Committee that the Bill did not contain explicit consultation requirements for neighbourhood planning or the need for evidence to show that the views of others had been listened to and considered in the development of the neighbourhood planning proposals. Further detailed consultation requirements will be set out in secondary legislation. I beg to move.
Lord Jenkin of Roding
My Lords, the noble Baroness, Lady Gardner of Parkes, was here a moment ago. I am not sure why she is not here, but the rest of us can speak to our amendments when we get to them. I do not think that we can move hers.
Earl Attlee
If it might help the House, the noble Lord, Lord Berkeley, can move Amendment 206 without any difficulty.
Amendment 206
Lord Berkeley
“(c) in the case of planning permission for the construction of a basement at an existing property, provision requiring the applicant to undertake full consultation with owners of adjoining properties and with any others who would be adversely affected by the construction.”
Lord Berkeley
I am grateful to the noble Earl. This amendment is in my name as well as that of the noble Baroness, Lady Gardner of Parkes. Let us hope that she comes back to your Lordships’ Chamber before we get to the end of this. I feel that these amendments are very important. I have had several close experiences of party wall failures. I am going to talk not about fracking—that comes in a later amendment—but about people extending their basements in rows of terraced houses and things like that. I have had one experience which persuaded me of the need for changes to the legislation. The amendments put down by the noble Baroness will achieve this.
My experience was to do with a garden wall in London. The people next door wished to build a house against the garden wall and to go down to build a basement. They had to go about five feet down and said that they had to take five feet of the garden in order to achieve this, which, of course, is allowed under party wall legislation. They put up a temporary fence, knocked everything down and dug the hole. Then they went bust and the hole stayed there for two years. By that time I had sold the house to somebody who, luckily, was a professional architect and knew what he was talking about. In the end, he took the neighbours to court but had to get two separate court orders; one before they would construct the basement up to ground level and reinstate the garden and another before they completed the wall up to the requisite height. Five years later the wall is still not finished—if you push the top of it, it moves, which is interesting. Having had to go to court twice and suffered two burglaries as a result, I think it demonstrates that something needs to be done. I certainly support these amendments which the noble Baroness, Lady Gardner of Parkes, has put forward and co-ordinated. I am sure that she will wish to speak after me, but in the mean time I beg to move.
Baroness Gardner of Parkes
I am very grateful to the noble Lord, Lord Berkeley, for starting this debate. I will speak to Amendments 206, 224 and 227. Amendment 206 is the one about consultation. I have a somewhat sceptical view about consultation because when I was building my house, we consulted all the neighbours and they all objected just the same, so it is of limited value. However, Dr Thompson, who has done a lot of work and held public meetings on this issue, quoted me an example of someone who consulted their neighbours and agreed that they would have all the cars washed every day and would have everything swept and cleaned. Apparently the whole basement development went through without a hitch. That person has now moved into the basement and the people next door to her have started to do theirs. Apparently, it is absolutely chaotic and they have not consulted or agreed anything, so consultation might be of value but it is of limited value.
It is far more important to deal with the other items which I am covering in Amendment 224. One is the question of precedent. I should declare an interest in that, when I die, my children, in order to get the best value for my home, will definitely want to be able to say that they could have a basement under it, because in that part of London a hotel has just been built with six storeys underground. Other people are building to a lesser extent, but at least half the people in the streets adjoining my house in London have already either got permission or done their basements. Because you cannot go up, the only way you can continue to live in a place with an expanding family is to go down so there is a definite need and a case for basements. That is why I have included in subsection (1) of Amendment 224 the issue of precedents. If an area is already full of basements, why should you not have the same right?
More importantly, subsection (2) refers to a bond or security. When my husband was alive, he represented St John’s Wood as a councillor and I certainly know of a basement there that was under construction for three years. There was another one in Brompton Square. After three years, the people each went bankrupt and with that, the people in the houses on either side of them were faced with a terrible situation. They could do nothing: their houses could fall into the hole or fill with water, as the basement was filling with water. It is quite alarming. A bond or security could be an answer in this kind of situation. It should be easy to find cover as part of your buildings insurance. Subsection (3) refers to “a qualified structural engineer”. Some of the better London boroughs already impose such conditions. They apply them to any such planning consent and the work has to be both planned and supervised. The three subsections in Amendment 224 are important.
Even more important is Amendment 227, which relates to amendments to the Party Wall etc. Act. I am grateful to the noble Lord who gave me some marvellous papers from the RICS, on its practice standards for UK party wall legislation. They were very interesting. The noble Lord is an expert on the subject. If the party wall legislation were updated to cover these matters, there is already a great deal of provision for security in there, which would also cover the consultation issue. As far as I can see, basements are more or less a big city issue. I do not know whether it is a big issue in big cities outside London, but in London it has certainly become one. It is important that something should be done about it.
Lord Jenkin of Roding
My Lords, I support my noble friend’s amendment, which was moved by the noble Lord, Lord Berkeley.
I say at once that I was extremely grateful to my noble friend Lady Hanham for acceding to my request that I should take a deputation from two of the community bodies interested in this subject. We met my noble friend on 31 August. The community bodies included representatives of some of the householders who have been so appallingly affected by these basement developments—“subterranean developments”, they seem to be called. So impressed was my noble friend by what she heard and read that she instructed her officials—I hope I quote her correctly—“to find a solution”. The delegation therefore left in some considerable hope that something might be done to meet their concerns.
In passing, I asked them whether they had tried to raise this issue in the other place. Their answer was rather revealing: they had tried but they could not find any Member of another place who was prepared to take up the issue. There was no delegation to see a Minister in the other place. It has been left to this House to pursue the issue and to gain the assurance from my noble friend that her department should find a solution.
I have four amendments in this group. The first two were tabled for Committee and have been carried through to Report. One was intended to provide a code of practice and the other to provide some form of recompense for the massive disturbance that householders face. However, I have subsequently received a letter from my noble friend explaining that those amendments were not acceptable. In the letter of 9 August she said:
“With regard to your proposals relating to the Secretary of State issuing guidance, in the spirit of localism, I believe it is best to leave it to local authorities to issue guidance”.
Relying on that, I then tabled Amendment 230 to provide that the local authority shall issue guidance.
However, my noble friend also was not keen on the idea of compensation. She said she believed that,
“the introduction of such a provision would set an unwelcome precedent for this to be adopted more generally”.
I have therefore tabled a second amendment.
The Earl of Lytton
My Lords, I rise to plead guilty as charged I am afraid. I am indeed a professional practitioner in matters of party walls, and I am indeed the chairman of the professional panel set up by the Royal Institution of Chartered Surveyors on boundaries and party wall issues, which was responsible for the recent guidance note to which the noble Baroness, Lady Gardner, and the noble Lord, Lord Jenkin, referred.
I am also a paid-up member and a former national council chairman of something that is known as the Pyramus and Thisbe Club—that delightfully named organisation which is peopled by specialists who have a particular interest in party wall matters. Noble Lords will realise straight away that it is named after Shakespeare’s characters in “A Midsummer Night’s Dream” who whispered, conversed and conducted their courtship through a chink in a party wall. I have to say that most of the things that go on through chinks in party walls are anything other than courtship, as we have already heard. A further charge to add to the sheet is—
Lord Jenkin of Roding
There is, I believe, a committee of surveyors called the Pyramus and Thisbe group which draws its name entirely from what the noble Earl has just referred to.
The Earl of Lytton
Yes, indeed. It is actually called the Pyramus and Thisbe Club, and it has London and regional representation. It expanded quite considerably after the Party Wall etc. Act 1996 became law. Noble Lords—and certainly the noble Baroness, Lady Gardner—will remember that I took that Bill through its stages in this House in a previous parliamentary incarnation. I make no apology for saying that I have always thought that Section 10 of that Act—which is the dispute resolution process—was a model for our time. It is a form of alternative dispute resolution, and I thought it was well worth applying to a much larger range of inter-neighbour issues, as opposed to people having to go through the courts.
Let us leave aside for one minute the point that the noble Lord, Lord Jenkin, mentioned about the state of the housing market and the huge pressures that that brings to bear on scarce urban space, about which I will make a comment later. Many of the things that noble Lords have referred to are, of course, true. Subterranean development can have very significant implications for neighbouring properties both during the course of construction and in the subsequent effects, often several years later. The planning and building regulations regime provides only a partial protection. Sometimes it provides none, and the common law gives rise to actions often only once damage has become apparent, sometimes long after the original developer has gone from the scene.
I turn to the question of whether the Party Wall etc. Act 1996 can be usefully amended. At this juncture I would say that that legislation is, of course, very narrowly framed. It came out of the old London Building Acts, which had broadly similar provisions. That legislation risked being abolished under the terms of the repeal of the London Building Acts with the abolition of the GLC. It was saved from that in no small part by the prompting from the noble Lord, Lord Lucas. I am very grateful to him. From his knowledge and experience at the time, he was one of the mainsprings for making sure that that legislation was preserved. I pay him tribute for that. But widening its scope would have to be considered very carefully. It is a very finely drafted construct. There are many professional and technical understandings that are interwoven right the way through the Act. To amend one particular bit through an amendment to this Localism Bill would, I am afraid, have other consequences that might be less desirable—possibly the law of unforeseen consequences. That said, I would welcome the opportunity to see whether that Act can be amended to deal with this issue.
On security for expenses, we have this issue with the technically challenging nature of very deep excavations. They often create larger risks than those just arising from works for which notice would have to be served under the party wall provisions. So there is an issue about how you extend that scope, and make sure that it remains cohesive. There must be very few surveyors involved in this area of work who have not come across a building site where the contractor or the developer—or sometimes both—have gone bust, possibly leaving a building site with a large hole in the ground, and creating huge ongoing liabilities for adjoining properties. Enabling a default mechanism where this can be addressed is in the public interest. But then comes the question: if you are going to empower something to be done about it, how do you pay for it? This brings into question the matter of an insurance-backed warranty of some sort.
Again, this is a very difficult area. It depends how the provision is constructed, how it is worded, and how it benefits other people, who are not necessarily identified from inception as being beneficiaries of this. Overseas-based developers, non-resident owners and possibly eastern European builders do go to make a bit of a heady mix in the more valuable and economically important parts of our inner cities. Clearly these matters need to be dealt with by technicians who are competent and know what they are doing, know what they are looking at, can identify issues of boundaries and know something about construction. However, there is no generally applicable or enforceable code of practice for this type of development. The noble Lord, Lord Jenkin, referred to Camden. The London Borough of Camden probably has the most competent of all the codes of practice that I have seen.
However, the whole process is permissive at the moment. It is actually dogged by having poor enforcement procedures. It needs to have something better than it has. It operates by a process of consensus. With those who wish to play fast and loose with the system, often the consensus does not exist. That is a criticism of the whole process.
Lord McKenzie of Luton
My Lords, before I speak to our Amendment 226 in this group, I have a few general comments about the contributions of other noble Lords. Some compelling points have been made about the need to address this issue. I suspect, although it may not be the case, that this is largely a London issue because, as the noble Lord, Lord Jenkin, said, it is particularly associated with very high land value. I can honestly say that I have not encountered it in Luton to date, but it may apply to other areas of the country. I see that the noble Baroness, Lady Parminter, has clearly experienced it. We are interested in hearing the Minister’s view on whether the way forward is to deal with a combination of codes of practice, party wall legislation changes, and issues around insurance or bonds.
Our Amendment 226 would amend Amendment 225 from the noble Lord, Lord Jenkin, and my noble friend Lord Berkeley, with its code of practice for subterranean development. It is simply to ensure that the importance of promoting good health and safety and minimising the risk of injury or ill health to workers and the public is part of any addressing of the issue. I was prompted to bring it forward by simply looking at the text of the amendment of the noble Lord, Lord Jenkin, about the code of practice. He talks about “noise and vibration”, and,
“dust, dirt and the risk of an infestation of vermin”—
all things that one can imagine are an integral part of excavation. It is important that we focus on the safety of people working in that environment as well as the convenience of neighbours and the owners of the property itself.
Construction is still a pretty unsafe working environment. It has got a lot better over the last decade, although I do not have the very recent figures on fatalities and fatal accidents. Most concerns arise in small house-building and refurbishment projects, the sorts of projects that one would envisage being involved here. Although I am advised that no special codes or regulations need to be introduced to deal with this—the CDM regulations of 2007 and the guidance around them are sufficient—in considering all these matters we should have uppermost in our minds the safety of people who undertake what can be quite dangerous work. In so far as protecting the public is concerned, I was advised that on one occasion the development was subterranean to such an extent that the skip on the road outside went through the road. Obviously there were risks of injury to the public from that. That is the purpose of my amendment, which I hope is entirely non-contentious.
Lord Lucas
My Lords, I hope that my noble friend will find a way forward in this area. It seems so consonant with what we are doing in the Bill to give those who are polluted some comeback or control over those who pollute. That seems a good principle to push forward on.
Baroness Hanham
My Lords, I must say at the outset that it was only because I became a Minister that I stopped being on the planning committee of my borough, the Royal Borough of Kensington and Chelsea, where we dealt with an enormous number of subterranean developments. My patience ran out when we had one that went down three floors. When I asked why it had to go so far down, they said that the person who owned the house wanted a high diving board.
I am not at all unsympathetic to this particular discussion. After my noble friends Lord Jenkin and Lady Gardner came to see me originally with some representatives from Kensington and Chelsea, and Westminster, I thought carefully about what we would do here. The fact is that this Bill will not solve the problems. There are too many elements to this to help by legislation. There is legislation all over the place that governs this. I was concerned to see what could be done within the legislation that is there at the moment and whether codes of practice, guidance and all the elements could be brought together and given to local authorities to help them. For that reason, I asked my noble friend Lord Jenkin and the people who came to see me to agree to be a small working party to discuss with officials the ideas that they had for amending this, with the officials bringing together what can already be done. Could we, through some discussion and feeling our way, find a solution that did not require primary legislation, or has this been going on for so long that it is well beyond that? We want something quick that guides local authorities in what they can and cannot do.
The local authorities that have to deal with this are becoming quite adroit, but the effect on people who live roundabout is absolutely atrocious. I know of one person who complained that a basement extension was being dug up on either side of his house and opposite it, too. Once basements are developed you cannot see them and they are all gone, but it is during this development process, which can take anything up to two years, when the trouble starts.
I hope that my noble friend Lord Jenkin will not bring back an amendment at Third Reading. We have an awful lot already and the Bill managers are becoming slightly anxious. I feel that we can resolve the problem more quickly than this. There are already endless Acts covering this. I am concerned that those Acts are not properly understood or implemented by local authorities. There are building and environmental regulations. Construction method statements are required. There are party wall implications, construction design and management regulations, the control of pollution Acts and the Party Wall etc. Act. As a result of the meeting that we had prior to this being brought up this time, we are already working with the Basement Information Centre to see about guidance on the construction of basements and how those could be developed to cover the issues we have raised. Defra is looking to prove an updated version of the British Standard so as to give it statutory force under the Control of Pollution Act. The Royal Institution of Chartered Surveyors publishes guidance on the Party Wall etc. Act, as the noble Earl, Lord Lytton, said. I would accept, immediately with gratitude, his help with this. We already have a meeting tomorrow if the noble Lord is free, and we will take it into account.
The party wall issue is clearly another very major area, and the noble Earl, Lord Lytton, has pointed out the difficulties with bringing this into more legislation when there may be ways of making it clearer and more acceptable by guidance. We and the department are going to review the guidance on the Party Wall etc. Act so that it reflects matters better. The Health and Safety Executive is developing guidance for builders, and all the issues which the noble Lord, Lord McKenzie, has raised will come under health and safety; they must do. We do not underestimate the disturbance and distress that poorly executed work on subterranean developments can cause.
I want the small group that we have now, working with our officials, to go through what has been picked up on now, what the legislation is, what guidance is needed and where local authorities need to be given a better helping hand with a code of conduct, and to see whether we can do this without having to go to primary legislation again. I think we can probably do this, and I would like to be given the opportunity to try. I cannot complete this between now and Third Reading, so I am going to have to rely on the noble Lord, Lord Jenkin, perhaps not moving this at Third Reading, but with my commitment to try to see this through. I fully and totally understand the concerns around this. I am not surprised that it has provoked discussion to get it into the Bill. By the time we have had a consultation on legislation, if it is possible to have that, we are going to be way off down the line.
I will personally take a lead in this to see what can be done, what guidance can be provided and what extra clout can be given, one way or another, either through the Party Wall etc. Act or by strengthening the guidance. I would like an opportunity to be able to do that, but having said that I am very grateful to the noble Lords who have spoken. I gather that the noble Lord, Lord Berkeley, had to leave to chair another meeting, but his amendment was very much along the lines of the others moved in this debate.
I hope noble Lords will feel able to withdraw their amendments. I hope to see all those noble Lords reasonably frequently for the next weeks while we try to sort this out. I look forward to seeing the noble Earl, Lord Lytton, as part of that.
Baroness Gardner of Parkes
My Lords, I have listened with interest to the Minister’s reply, and I am sure we would all like to go along with whatever she says because she has clearly thought about it seriously. However, I do not think that it in any way answers the problems that people have.
The noble Lord, Lord Jenkin, talked about unnecessary inconvenience, but that is not the big issue. Every bit of building work is always an extreme inconvenience for everyone else around it. In the street where my house is in London I have gone through eight years of all the office blocks being demolished and replaced with giant blocks of flats. It meant that the whole street was congested and you could not move. It was extremely inconvenient, but I do not expect compensation for that. We have to encourage development and any necessary construction. I am not so concerned about compensation for disturbance, but I am concerned about people who find themselves left with a hole in the ground beside them when the people who have dug it have gone bankrupt. It should be simple to set up some sort of insurance, and I would like to speak to the noble Earl, Lord Lytton, whose views I greatly respect, because he said there might be complications with this. I thought that insurance was a pretty common feature in building. Most builders have insurance. We should discuss that at some further time.
Baroness Hanham
“(4) A local planning authority must make a neighbourhood development plan or order unless—
(a) one or more of the relevant ward members expresses disagreement;(b) the local planning authority receives a petition signed by a minimum of 5% of voters in the areas covered by the plan or order; or(c) the local authority thinks it expedient to hold a referendum.”
Lord Best
My Lords, I will also speak to Amendments 208 to 210. These amendments are about the referenda for approving and adopting the neighbourhood plans. One of the major changes to the Localism Bill has been the extensive change to the requirements for referenda with the removal of Chapter 1 from Part 4, but neighbourhood plans are still subject to referenda.
I understand that if local people are at loggerheads with their local authority but feel very strongly that their particular neighbourhood plans should proceed, it is no doubt necessary before imposing the plan on everybody else to find out what the whole community thinks of it. However, if the local authority accepts the neighbourhood plan, and it is acceptable to the parish council or the town council, there is no real democratic deficit. A number of elected politicians are involved, and where everyone at the local level, the local authority level and the parish level thinks it is a good idea, it does not seem very wise to proceed with a referendum that brings in people who have had very little to do with working through the neighbourhood plan.
The Government are setting up 126 front runners, as they call them, with some funding to see how things work. I have seen one of these and talked to the group that is bringing forward its neighbourhood plan. The group is in the parish of the Cerne valley, north of Dorchester in Dorset, and it is doing great things. I strongly approve of the idea of people in the neighbourhood working out a plan for their area. This is all about a culture change. Instead of everybody being against development, people are thinking through the fact that there has to be some development and deciding where it is best sited. People reject some of the sites the house builders might have liked but bring on stream others and bring together their plan.
There are lots of difficulties, hassle and arguments at the local level, but I say good for them. Finally, at the end of a long and tortuous business, I am sure they will have a neighbourhood plan and it will be agreed with the parish council. If the local authority, the district council in this case, says that that is fine, for goodness sake let us not put this out to a referendum that brings in all kinds of people who have had absolutely nothing to do with the process and have not come to any of the meetings. It is always so much easier for people to say no to something than to say yes. If you want to keep your head below the parapet you do not say you are in favour, you stay at home. The people who get up the petition and want to say no are very glad to put their heads above the parapet and will bring out some votes. I fear that an awful lot of hard work in the Cerne valley, or wherever it may, can be lost when, as I said, all kinds of people who have had little to do with the process turn out for a referendum.
My amendment contains a couple of safeguards. I have to admit that I am having second thoughts about my own safeguards. I am just about to talk against my own amendment at this point. However, fearing that it might be unacceptable not to keep the referendum ingredient in the Bill, I have included two ways in which a referendum would legally be required. One would be a petition is signed by 5 per cent of villagers who say that they want to have a proper referendum in which more than 50 per cent would have to vote in favour of the proposed measure. The amendment suggests that if 5 per cent did that, a referendum would go ahead.
The other safeguard is that if one of the ward councillors—there might be three ward councillors for the parish—was opposed to the idea of the plan being taken forward, a referendum would have to be held. I have talked to people at the local level—I met a number of people in Dorset last Friday—who thought that my amendment was great up to the point where it referred to the 5 per cent petition. I was told that that could comprise 125 people in one of the parishes concerned, who all go to the local shop and sign any petition that is put under their noses. Local people were also not in favour of one recalcitrant councillor who wishes to curry favour—perhaps he is in a different party from the majority in that particular patch—saying that a referendum must be held. They did not think that it was a bright idea for my amendment to include those safeguards.
I should have been emboldened by the comments of the noble Lord, Lord True, who is, indeed, a true believer in localism but who does not see the need for a referendum in circumstances such as I have described. He favours a much more permissive regime involving consultation with local people. I had a very good meeting with Greg Clark during the summer. His view at that point was that if the neighbourhood plan is acceptable to the council and the council agrees to prepare a local development order that embraces the plan—I think the noble Baroness reiterated this today—that can go ahead without the need to go through the rigmarole of a referendum. That is a significant point. In these circumstances it would be enormously helpful if that could be clarified.
The noble Baroness said that she would look again at the amendment in the name of the noble Lord, Lord True. I wonder whether the proposals in my amendment might be wrapped up in his to determine whether there is a way in which we can make it clear to people that once a neighbourhood plan is devised and agreement is reached with a district council, parish council or town council, and everyone is okay with this, a referendum will not be needed. At the moment people’s understanding, fear and anxiety is that a referendum will have to be held in all cases. I am preparing myself for reassurance. I beg to move.
Lord Beecham
My Lords, I do not know about other noble Lords but, having heard the noble Lord speak to his amendments, I find myself more confused than I was when I read them. Therefore, it is an extremely good idea that these matters should be taken away and discussed further and perhaps enlightenment will dawn on me by the time we get to Third Reading. However, I agree with the noble Baroness and the noble Lord, Lord Best, that if we can avoid a plethora of unnecessary referendums, so much the better. In that light, I would be happy for the Minister to consider the matter further and for it to be perhaps slightly reshaped at Third Reading.
Baroness Eaton
My Lords, I declare an interest as a vice-president of the Local Government Association, which has offered its broad support for the neighbourhood planning reforms. Indeed, a lot of the thinking on the reforms has come from the innovative and creative local planning schemes which councils have introduced over many years. I do not know of a single council that does not want a more flexible and consensual planning system—indeed, the most consensual possible—and common sense tells us that this benefits communities. The Government have made great strides forward, shredding down the national planning policy framework and confirming that residents will be firmly at the heart of local developments. However, within these new parameters we need to ensure that the planning system can move as fluidly and quickly as possible. I hope that this amendment, to which I am happy to attach my name, clarifies that in certain cases referendums on planning issues might be locally appropriate, as we have heard. The noble Lord, Lord Best, said that discussions with the Minister have suggested a mechanism whereby, if there is consensus, this process will go straight ahead without a referendum. I think that would be well received.
The Local Government Association has estimated that the cost of holding a local referendum on a planning issue will be in the region of £5,000. This is a very significant figure when you consider the sheer number of referendums that could take place around neighbourhood planning issues. It would not be a case of a one-off cost of £5,000 as many costs would arise for local authorities. When the public sector, particularly local government, is so tightly squeezed, that hardly seems a wise use of public resources and public money. I share the request of the noble Lord, Lord Best, for clarity. We would all be much happier if this process was made much simpler and referendums were rarely used in neighbourhood planning. Certainly, councils across the country would support that. I support the noble Lord, Lord Best.
Lord True
My Lords, I wish to respond to the noble Lord, Lord Best, as he referred to me. It follows from my arguments on my own amendment that I think there are many cases where a referendum is not necessary. Indeed, my amendment suggested that local authorities should be able to proceed without the need for referendums. Therefore, I was interested to hear about the discussions that the noble Lord mentioned. As he knows, I am not axiomatically against all referendums. There is a place for a referendum in some circumstances to empower those who are disempowered or, indeed, to resolve a genuine heated dispute in a community.
However, for the reasons the noble Lord implied, I could not support Amendment 207 because it would give too much potential power to an individual councillor. This may not be the case only as regards councillors from a minority party. In my authority five out of 18 wards are split wards with minority representation. Frankly, there are wards where everybody is nominally of the same party but they cannot stand each other, although that does not apply in my authority, of course. Therefore, there is scope for a lot of potential mischief. The threat of provoking a referendum, which would cost money unless someone does something for someone else behind closed doors, is probably better avoided. In other respects I have a lot of sympathy with the amendment. In the context of the discussions, I encourage the noble Lord to follow the direction in which he has begun to move.
Baroness Hanham
My Lords, we have returned somewhat to the discussion that we had on Amendment 205 at the beginning of the evening. I am happy that noble Lords still remember what was said on that amendment. At the outset I confirm what I said when responding to Amendment 205. Where there is agreement on the neighbourhood plan between the neighbourhood forum and the local council under the local development plan, a referendum does not have to take place. As long as they are all in agreement and are all working to the same end, the local authority can accept that the neighbourhood plan conforms with the local development plan and therefore does not require a referendum.
Lord Best
My Lords, I am very grateful for the support of the noble Baroness, Lady Eaton, and the noble Lord, Lord True. I am grateful, too, to the Minister for her clarification.
The distinction that we have been drawing out in the course of our discussions today is between the local authority saying, “The neighbourhood plan is in conformity with the local plan”, and the local authority saying, “Although the neighbourhood plan makes some embellishments and has some bright ideas that the people within the locality wish to see which may change the local plan, nevertheless the local authority is happy with those changes and will issue a local development order that will embrace that neighbourhood plan”. There is a slight distinction between accepting what the neighbourhood plan says and accepting simply that it is in conformity with the local plan. We have gone a little bit further. The local authority may say, “Okay, you didn’t want to use those sites over there that were in our local plan. We fully understand. We are still going to have the housing or whatever it is that is required in the area. They will be in a slightly different place but that is what you have all negotiated and worked through. You have spent 18 months on this hard work and we are prepared to accept that as a local authority”. We have got to the point where that change to the local authority’s original intentions triggered by the neighbourhood plan will be something that does not require a referendum. The local authority accepts it at the neighbourhood level. It is, of course, approved by the parish council neighbourhood forum.
I think that we are more or less there, but I would like to be part of the further negotiations as the Minister considers these matters in detail between now and Third Reading. With that, I beg leave to withdraw the amendment.
Lord Lucas
“38AA Additional rights of qualifying bodies
(1) A qualifying body may, in the course of the preparation of a neighbourhood development plan, enter into negotiations with landowners and others with a view to them concluding agreements with the local authority that, in the event of the neighbourhood plan being adopted and of specified other events, specified additional contributions will be made to the community by landowners or others.
(2) Qualifying bodies may, in conjunction with neighbourhood development plans, promote referendums on or proposals for parishing in order to present integrated proposals for the development of the community.”
Lord Lucas
There is not much to say in substance about this amendment because my noble friend’s answer to the first part is yes, and to the second part, “Hard luck, we blew that out of the water earlier because we no longer have local referendums”. However, I want to explore the implications behind this amendment because my noble friend was kind enough to write to me during the Recess. There are some interesting aspects of localism and I should like to have a clear understanding of the Government’s position.
My noble friend wrote to me as follows:
“Neighbourhood planning offers an exciting opportunity for local communities—through a parish council or neighbourhood forum—to initiate meaningful negotiations with landowners over how their land may be used in a way which benefits the landowner and the community alike. It is of course of fundamental importance that any agreements reached are transparent, that any developments coming forward are acceptable within the broad ‘basic conditions’ for neighbourhood planning, and that landowners are not ‘held to ransom’ or unreasonably prevented from developing their land in any way which is acceptable in broader planning terms. The parish council or neighbourhood forum will in developing their neighbourhood planning proposals consult with a range of stakeholders, including landowners. They may also talk to the landowner about whether their land is accessible and deliverable and what types of development the landowner may consider accommodating on their land. This is important to ensure that any proposals in a neighbourhood plan or order have the support of those organisations and individuals needed to ensure delivery during the plan period. In the case of a neighbourhood development order they may also discuss what conditions may need to be built into the order, or whether there are any matters that will need to be provided for via a related planning agreement (for example the provision of services or infrastructure), to make development acceptable when considered against the basic conditions for neighbourhood planning. The responsibility for confirming what conditions or planning agreements are necessary to make the proposed development acceptable will sit with the local planning authority and the independent examiner. If a neighbourhood development order gave permission for a modest housing development, but required that to be accompanied by such extensive community benefits that the overall development would be rendered financially unviable, then the landowner would remain at liberty to apply to the local planning authority for planning permission for a less expensive scheme, in the normal way. Planning obligations need to meet strict legal tests if they are to be relevant considerations. These are set out in regulations, case law and guidance. These provide that a planning obligation may only constitute a reason for granting planning permission for the development if the obligation is necessary, directly related to the development and fairly and reasonably related in scale and kind to the development. If a planning obligation does not satisfy these tests it will not be a material consideration. Whatever negotiations and agreements do take place, it is important to note that what land is allocated in a plan or given planning permission in an order should never simply be a matter of which landowner can be persuaded to share the biggest proportion of any land value uplift with the community. It has to be about enabling any developments which the community support and which are acceptable when considered against the basic conditions”.
That is a very fair summary of the position as is. But, of course, this is localism. In a parish, words such as “fair” and, indeed, “sustainability” have altered meanings. The parish might, for instance, choose to talk to all landowners and ask them to put forward proposals for the way in which they might like to see development on their land, and for ways of mitigating any adverse effects on the neighbourhood that they perceive. The parish will then publish all proposals and invite comments from the public, which will be passed on to the landowners. The parish will then invite landowners to submit modified proposals in the light of comments, together with binding commitments to the mitigations that they have themselves—the landowners—proposed. The parish will then publish all proposals and invite the public to rank them. The most popular of the proposals will then go forward as a draft neighbourhood plan.
That is as fair as fair can be. There are no obligations on the landowners that they have not proposed themselves. All factors will be taken into consideration in the process of the parish ranking which ones they like best. I am sure that in most parishes the process will result in a large slice of the landowner’s planning gain ending up with the parish community. That is what I hope we are going to see as a result of the Bill. I hope that my noble friend will tell me that she sees no holes in my logic. I beg to move.
Lord McKenzie of Luton
My Lords, I had some reservations when I first read this amendment, but then was reassured when the noble Lord, Lord Lucas, went through the planning obligations provisions and the test that had to be met. He then worried me a bit when he went on to describe it as an auction among landowners in the parish potentially seeking out the highest bidder. I would need to read the record and I would be interested in what the Minister has to say about that. Does that not have the potential to be outwith the strict application of planning obligations and the rules that go with that? I do not assert that it is, but certainly the way in which it was expressed gave me some cause for concern that that might be the path that one was heading down. I would be happy to read the record and be reassured otherwise.
Baroness Hanham
My Lords, Amendment 210A would give new rights for qualifying bodies—neighbourhood forums and parish councils—to negotiate with landowners on infrastructure contributions and to promote proposals for parishing at the same time as they are preparing a neighbourhood plan. We discussed the issue of parishing earlier on.
The first part of Amendment 210A would allow a qualifying body—the neighbourhood forum or the parish—to negotiate with landowners for contributions to be paid to the community. The expectation is that the landowners would subsequently agree the contributions with the local authority through formal agreements—for example, Section 106 agreements. There is nothing to stop local communities talking to landowners about how their land may be used in a way which benefits the landowner and community, but the responsibility for confirming what conditions or agreements are necessary to make the proposed development acceptable must remain with the local planning authority. In determining a planning application, the authority will have regard to the provisions of the development plan, including any neighbourhood plans in force.
The amendment would cause significant confusion about when such contributions would be paid by the landowner, how they would meet the strict legal tests for planning obligations and how any of the community’s negotiations could be secured by legal agreements between the landowner and the local authority. I want to make it clear that whatever negotiations and agreements take place, what land is allocated in a plan should never be simply a case of which landowner is prepared to share the biggest proportion of land value uplift with the community. That was the point that the noble Lord, Lord McKenzie, was making. I accept the broad approach of the noble Lord, Lord Lucas, to this. However, I must reassert that it is the local planning authorities which must determine what obligations are necessary to mitigate development impacts, and that will include financial ones.
The second part of Amendment 210A seeks to empower qualifying bodies to promote referendums or proposals on parishing alongside referendums on neighbourhood planning. In my recent letter to the noble Lord, Lord Lucas, which he has quoted extensively and which I have placed in the House Library, I repeated our commitment in the public services White Paper to consider how to make it easier for local people, including neighbourhood forums, to take advantage of existing legislation which allows for the establishment of parish or community councils. Nothing would legally prevent the joint holding of referendums into a neighbourhood plan and into proposals for creating a new parish council.
With these reassurances—on the commitment from landowners and on parishing—I hope that the noble Lord will be happy to withdraw the amendment.
Lord Lucas
My Lords, I am very grateful for that explanation. Yes, I am getting a clearer idea of where these things will go and the role that the local councils will have to play in moderating these things. As the local councils have to hold the contracts, they clearly have to have a role in deciding what is reasonable. I hope that they will take an activist role in that. I beg leave to withdraw the amendment.
Lord Lucas
“Preservation of local amenities(1) The Town and Country Planning Act 1990 is amended as follows.
(2) In section 59 after subsection (3) insert—
“(4) A provision in a development order has effect subject to the provisions in a neighbourhood development order under the Localism Act 2011, which may over-ride the development order in all or any respects.””
Lord Lucas
My Lords, I will speak at the same time to Amendment 210AB. Amendment 210AC, which is in this group, was admirably covered earlier by an amendment tabled by the noble Lord, Lord Greaves. I will not need to speak to Amendment 232A, which appears later; I am sure that the reply my noble friend will give on these amendments will cover that too.
Since we have done away with local referenda, we need some way of making localism relevant within cities. Planning is not the issue that is really going to get to people in cities. It is much more, as I said earlier, aspects of the way that they are dealt with by local councils within the matters that they have within their gift. I have picked up, in Amendment 210AB, their control over the way roads are used. When an area wants to examine pedestrianisation and alternative uses for parts of the street, to allow children to play or to affect the speed limits—and, talking more of Lavender Hill, the way in which parking regulations are enforced—those aspects are the sort of things that engage the spirit of the community.
A lot that happens under permitted development orders within planning—the way in which the streetscape changes, the way in which change of use is permitted to commercial premises and the developments of shopping streets that result from that—just goes ahead under permitted development and is not within the scope of neighbourhood planning as foreseen in this Bill. Yet those are the things that engage an urban community. If we want to make something of this Bill and the virtues that it will bring in urban communities, we have to look at giving local, neighbourhood communities some power over these things. I prefer the route that my noble friend Lord True proposed. That is a better way of doing things: to have a clear and formal partnership with good local authorities that will allow these things to develop and allow a voice.
In Battersea, which is within Wandsworth—a good Conservative council; it has been that for a long time—one still does not get that sort of bite on the way that things happen locally. I cannot afford to move to Richmond, so I am rather keen that we do something that will bite on my local council and to get to the position where we have within a neighbourhood plan some things to give urban communities a hold on things that they care about. I have picked two examples of the right way to go about it. That way, we have a hope of using the Bill to create vibrant urban communities that will have a real effect on what happens locally, which is mostly an apparition of the power of the local council. I am not addicted to this way of doing it. However, it is very important that we take this chance to try to create strong, geographically based—rather than racially or spiritually based—neighbourhood communities in cities. I beg to move.
Lord McKenzie of Luton
My Lords, this is another interesting series of amendments tabled by the noble Lord. I cannot but agree with the proposition that doing what we can to build and empower strong local communities must be right. I am not sure that the prescription which the noble Lord offers is right in its totality, particularly on road traffic regulations. In my experience, if one wants to engage a community one has a consultation on pedestrianisation, a one-way system or residents’ parking and sees what the response is. If a council sought to impose something like that without proper consultation, we would certainly see the spirit of the community engendered by those events. However, if we gave each neighbourhood particular powers, for example over pedestrianisation, we would face a clear issue of the view taken by adjoining neighbourhoods. We would almost need to reinvent the duty to co-operate at neighbourhood forum level if we went down this path. The basic proposition to use the opportunities that the Bill presents to enliven, empower and engage communities in an urban setting is absolutely right, but I am not sure whether the prescription of the noble Lord is the best way to achieve it.
Baroness Hanham
My Lords, Amendment 210AA would allow neighbourhood development orders to restrict permitted development rights in a neighbourhood area in order to preserve local amenities. Neighbourhood planning has been designed as a new addition to the existing planning system. It is permissive in nature. Therefore, it adds to existing permitted development rights rather than removing rights that already exist. Neighbourhood planning is at the forefront of delivering the Government's reforms and it should not be used to stop or restrict development. Rather, it gives people a real opportunity to shape and influence the places where they live. We need to ensure that the ambitions of people for their neighbourhood are consistent with the needs and ambitions of the residents of the wider area. I listened carefully to the noble Lord, Lord Lucas, when he spoke about cities and the effect on neighbourhood planning there. I have a lot of sympathy with the fact that local communities often do not come together, but part of the neighbourhood planning ought to ensure that groups are coming together to discuss all the issues around planning.
My concern with Amendment 210AB is that it would extend the powers available to communities to control the development and planning of their local areas by amending the Road Traffic Regulation Act 1984. It would expand the local authority’s ability to make traffic regulation orders and by-laws to preserve or improve a local area’s amenities. This is not strictly related to the neighbourhood planning provisions being introduced by the Bill, but does relate to the Government’s wider commitment to extend the powers of local authorities and communities to shape their local areas.
First, I reassure the noble Lord, Lord Lucas, that I support the principle that local authorities and communities should have a greater say in safeguarding local amenities. Similarly, the planning of a neighbourhood should be a holistic process that looks beyond just land-use planning matters to the wider community well-being of an area. A community may use the opportunity of preparing a neighbourhood plan to discuss its priorities for transport in the area. However, there are two key issues with the amendment. First, because neighbourhood plans form part of the statutory development plan for a local area, they can relate only to the development and use of land. Secondly, traffic regulations and by-laws should be a measure of last resort in achieving the goals of sustainable transport that the noble Lord seeks. By-laws create criminal offences intended to prevent specific nuisances. If used inappropriately, they can have a significant adverse effect on the local environment and economy. They should be employed only when all other measures have failed. Therefore, this amendment is unnecessary.
Again, I do not want to undermine the noble Lord’s principle of making sure that local neighbourhoods have the opportunity to discuss the things that affect them. If ever there was anything that affected them, it is traffic, parking and so on. However, this cannot be dealt with under localism in this part of the Bill, which covers neighbourhood planning. As a wider objective, I do not think that anybody would have any disagreement with the idea that local neighbourhoods should be at the forefront of thinking about the wider things that matter to them. It is just not appropriate here. I hope that with those explanations, the noble Lord will withdraw his amendment.
Lord Lucas
My Lords, I am grateful to my noble friend for that explanation. It is clear that I am not going to get anywhere. However, I shall come back to this when we get our next opportunity, because I have been converted by the Government's enthusiasm for localism. I just want to see it in Battersea as well as Hampshire. I shall support my noble friend Lord True, should he choose to reappear in one form or another at Third Reading, and remain silent. I beg leave to withdraw the amendment.
Baroness Hanham
“(3) The power to make regulations under this paragraph must be exercised to secure that—
(a) prescribed requirements as to consultation with and participation by the public must be complied with before a proposal for a neighbourhood development order may be submitted to a local planning authority, and(b) a statement containing the following information in relation to that consultation and participation must accompany the proposal submitted to the authority—(i) details of those consulted,(ii) a summary of the main issues raised, and(iii) any other information of a prescribed description.”
Baroness Hanham
“(ca) the making of the order contributes to the achievement of sustainable development,”