Growth and Infrastructure Bill
Lord McKenzie of Luton
“(5A) Any performance standards that apply to local planning authorities in the consideration of planning applications shall also apply to the Secretary of State in the performance of his functions under this section.”
Lord McKenzie of Luton
My Lords, Amendment 19 is a probing amendment, which I hope will not detain us for long. So far as the planning guarantee is concerned, the consultation document proposes that a 26-week limit will apply to the Planning Inspectorate where it is determining applications. That is fine because, clearly, given the lack of a right to appeal, a limit of no more than a year is not appropriate.
However, paragraph 64 of the consultation document proposes that the performance standard for the inspectorate would initially be to determine 80% of cases within 13 weeks, or 16 weeks where proposals are subject to an environmental impact assessment. On what basis has this target been set? For how long is it envisaged that the initial phase will endure? What will the Government do if it emerges that the inspectorate is not meeting its targets—a point that the noble Lord, Lord Greaves, also touched on earlier? I beg to move.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I want to make absolutely clear the level of service that an applicant can expect from the Secretary of State in those very few cases where the applicant applies directly to him, and to explain why this amendment is unnecessary. As I have said several times today, the ability to apply directly to the Secretary of State would be limited to a very small number of situations where there is clear evidence that a local planning authority is not delivering an effective service. For example, in relation to the speed with which applications are dealt with, we have proposed in our consultation that the measure should apply only to authorities that have decided 30% or fewer of their major applications within the statutory period.
We will ensure through amendments to the secondary legislation that exactly the same statutory period for determining applications applies to the Secretary of State. We have proposed in our consultation to set a performance standard for the Planning Inspectorate of dealing with 80% of those applications within the statutory period unless an extended time has been agreed in writing with the applicant. That compares to the current average performance among planning authorities of deciding 57% of applications for major developments within 13 weeks.
The inspectorate will publish quarterly data on its performance so that it is clear what is being achieved. We are clear in our commitment to offering applicants the choice of a genuinely better service in those few cases where this clause has to be used in the future. The secondary legislation and performance standards set for the Planning Inspectorate are the appropriate places to set this out. I do not think that there is any need to add a specific provision in the Bill.
The noble Lord also asked about what would happen if the Planning Inspectorate did not achieve that. The fact that the inspectorate will have to make its own reports if it does not do 80% probably will be quite a serious obstacle for it to overcome if it is not achieving that.
Lord McKenzie of Luton
I am grateful to the Minister for her response. I may have missed it, but I do not think she said on what basis that 80% target has been met. If she did, will she kindly repeat it? If not, will she cover that point?
Baroness Hanham
May I write to the noble Lord on that? I am not sure about the 80% but I will write to him.
Lord McKenzie of Luton
That is fine. I am grateful for that and beg leave to withdraw the amendment.
Lord McKenzie of Luton
“( ) This section shall cease to have effect two years after it comes into force.”
Lord McKenzie of Luton
My Lords, this amendment is grouped with Clause 1 stand part and we are happy to take it on that basis. I am conscious that we had somewhat of a stand part debate earlier. Nevertheless, I wish to get something on the record as to our overall position.
We wish to see Clause 1 removed from the Bill; it is wrong on so many levels. Fundamentally, it is a denial of localism, representing as it does a shifting of powers from local planning authorities to central government. It is not, of course, the only clause in the Bill to do this. We will debate Clause 24 in due course and there are other consultations in hand relating to permitted development rights and call-in powers which demonstrate the same direction of travel.
Such consultation as there has been is being undertaken now in parallel with consideration of the Bill. It is a truncated eight-week consultation and it is not planned that we will see the Government’s response until we have completed our deliberations. The powers in the Bill, especially around designation, go way beyond the stated intent of the clause, as the Delegated Powers and Regulatory Reform Committee points out.
Of course, the clause is predicated on the proposition that delays in the planning system are holding back growth, but scant evidence has been provided for this. There is obviously clear evidence on the time being taken by local planning authorities to handle applications, but any linking of this to growth—or the lack of it—is, frankly, anecdotal. In any event this seems to ignore the existing powers of the Secretary of State in relation to call-in and the right of applicants to appeal to the Secretary of State against non-determination. We should bear in mind that an appeal against non-determination can be made up to six months after the expiry of the period that the local planning authority had for dealing with the application. This is 13 weeks for major cases and 16 weeks if the application is accompanied by an environmental statement, or whatever extended period has been agreed between the local planning authority and the applicant.
Why are these powers insufficient? As the TCPA points out, planning is not a process. It refers to the complexity of planning decisions, which often hang on fine judgments of local and national policy, and the deliberate anchoring of the system to democratically elected local authorities—the basis of our planning system since 1947. Appeal rights for non-determination, or call-in powers, still retain a role for the local planning authority.
Clause 1 means that the substantive right to have a planning decision taken by a democratically elected local authority is removed, negating one of the founding principles of the 1947 English planning system. There is no doubt that the Government are focusing on the speed of decision-making to the exclusion of quality. Paragraph 47 of the consultation document states:
“We also propose raising the bar for the speed of decisions after the first year”.
Any assertions by the Government that the clause will be used in extremis sound a little hollow. The Government cite the decline from 65% to 57%, in the year ending June 2012, in the number of applications for major developments dealt with within 13 weeks, but there is no substantive analysis of why this might be or, indeed, what might be done to improve the position.
Baroness Hanham
My Lords, I am grateful to the noble Lord for tabling this stand part debate as it gives me an opportunity to read into the record what I should like to say in reply. That is fair because it lays out for both of us the starting or finishing points— I am not sure which it is.
We have debated the merits of this clause at length. While some have argued that it breaches fundamental principles of local decision-making and somehow marks a retreat from localism, I reassure noble Lords that that is simply not the case. On the contrary, as I have sought to make very clear, this clause is necessary and appropriate, and it will be used only in exceptional circumstances.
This Government believe that planning plays a key role in facilitating investment and growth, which is why we announced an inflation-related increase in fees last year and have put locally produced plans at the heart of the system for identifying and addressing development needs. Most planning authorities are rising to the challenge of delivering an effective and positive service in what are, we acknowledge, difficult times. However, it would be wrong not to act in those few cases where planning was not being delivered effectively. Equally, though, this is a measure of last resort, and we will ensure that it is deployed in a way that is fair and proportionate.
Decisions that are unnecessarily slow, or which result in development being refused without good reason, can have a real impact by delaying or discouraging investment. That is bad for the economy and bad for communities, and we should not stand by and delay taking action in those very few cases where this is a significant problem. This clause represents an appropriate response to such situations.
Far from being an unprecedented move to centralise power, Clause 1 will ensure that action can be taken in the rare cases where planning services are failing, just as previous Administrations have sought to ensure in relation to schools, hospitals and other services that are vital for the well-being of the community. Nor should we forget that applicants for planning permission can already go to the Secretary of State for a decision where the local planning authority fails to decide within the statutory period. What we are proposing in Clause 1 merely extends that principle by saying that in those very few cases where authorities have a track record of genuinely poor performance, applicants should be able to exercise that choice from day one rather than wait for the statutory period to elapse.
I have already made it clear that, where it is obvious that more time than the statutory period is genuinely needed to decide an application, and agreements between developer and local authority are in place to extend the determination period, these applications will be excluded from the performance figures provided that there is an agreed timetable for reaching a decision, as we should not let these cases drag on unnecessarily. This will ensure that there is no risk of quality being sacrificed for speed and that there is a transparent process and timetable when applications need more time than usual. This does not by any means require a full-blown planning performance agreement in all such cases, but there should at least be a record of what has been agreed on the way forward.
We consider that sector-led support will play a key role in identifying and addressing any weaknesses in designated authorities. We will work with the Local Government Association and the Planning Advisory Service, which the Government fund, to ensure that struggling authorities get the support they need in order to improve. This is something which should, in future, also help to avoid the need for any designations altogether.
Our aim in introducing this clause is simple. It is to give applicants the choice of a better service where this is genuinely justified, while encouraging sound and timely decisions on the part of all planning authorities. As I hope the consultation shows, we have thought carefully about an approach that does this while minimising any risk of the sort of perverse outcomes that have characterised some previous performance measures.
So let us be clear. Based on the criteria that we have suggested in our consultation paper, this measure would affect only those authorities that show a wholly unacceptable level of performance—on speed, for example, those authorities that do not meet the statutory target on 30%, or fewer, of their major applications.
In addition, we are not removing powers from local authorities. We are saying that, where applicants are unhappy with the level of performance, they will now at least have an alternative. They will have the choice of applying directly to the Secretary of State.
We all understand why the Government cannot support the proposal to switch off this clause after two years—that it would be provide insufficient time for it to work and it would also remove the continuing incentive for planning authorities to deliver a good level of performance. I therefore must reject the proposal for, effectively, a sunset clause and hope the noble Lord will understand that and withdraw his amendment.
Lord McKenzie of Luton
My Lords, I thank the Minister for her reply, though I am bound to say that it did not come as a surprise. There are a range of points in relation to the clause-stand-part proposal that I do not accept, but given the hour and given that we have many more Committee days and some more on Report, I am sure we will return to each of these points. I beg leave to withdraw the amendment.
“Greater London: option to make planning application directly to Mayor of London
In the Town and Country Planning Act 1990, after the new section 62A insert—“62B When application may be made directly to Mayor of London
(1) In Greater London, a relevant application that would otherwise have to be made to the local planning authority may (if the applicant so chooses) be made instead to the Mayor of London if the following conditions are met at the time it is made—
(a) the local planning authority concerned is designated by the Secretary of State for the purposes of section 62A; and(b) the development to which the application relates (where the application is within subsection (2)(a)), or the development for which outline planning permission has been granted (where the application is within subsection (2)(b)), is of a description described in subsection (2)(c), (d), (e) or (f).(2) In this section “relevant application” means—
(a) an application for planning permission for the development of land in Greater London, other than an application of the kind described in section 73(1); or(b) an application for approval of a matter that, as defined by section 92, is a reserved matter in the case of an outline planning permission for the development of land in Greater London,in either case where the development is development—(c) for the purposes of provision of a school that is or will be the subject of an academy arrangement made under section 1 of the Academies Act 2010;(d) by an electricity undertaker which is not permitted development for the purposes of a development order made under section 57(1);(e) prescribed by the Secretary of State as an application of potentially strategic importance in an order made under section 2A(4); or(f) otherwise prescribed by the Secretary of State.(3) Where a relevant application is made to the Mayor of London under this section, the Mayor may direct that he is to be regarded as the local planning authority for the purposes of determining the application, and the Mayor may determine it accordingly.
(4) Where a relevant application is made to the Mayor of London under this section, an application under the Planning Acts referred to in section 62A(3) (“the connected application”) may (if the person making such an application so chooses) be made instead to the Mayor of London.
(5) If the connnected application is made to the Mayor of London under subsection (4) but the Mayor considers that it is not connected with the relevant application concerned, the Mayor may—
(a) refer the connected application to the local planning authority, or hazardous substances authority, to whom it would otherwise have been made, and(b) direct that the connected application—(i) is to be treated as having been made to that authority (and not to the Mayor under this section), and(ii) is to be determined by that authority accordingly. (6) Section 38(1) (delegation of functions by the Mayor) shall apply to the Mayor of London’s functions under this section.
(7) Section 2E (section 2A and planning obligations under section 106) shall apply to any direction given under subsection (3).
(8) Section 2F (representation hearings) shall apply to any application in relation to which a direction has been given under subsection (3).””
Lord Tope
My Lords, in moving Amendment 39, I shall speak also to Amendment 80, both of which stand in my name and are supported by the noble Baroness, Lady Valentine. Though on the Marshalled List her name is only attached to Amendment 39, she has assured me that she supports Amendment 80 as well.
I begin with two apologies. I should earlier have declared my interest as a councillor in a London borough. Given the subject of these amendments, I must particularly declare my interest as a London borough councillor. Secondly, I apologise on behalf of the noble Baroness, Lady Valentine, who has an important engagement this evening and was unsure whether we would get to this amendment or, if we did, at what time. I agreed that she should go and keep her important engagement rather than wait here, and promised to do my best—not to represent her views; I cannot do that—at least to put this debate on record. I should perhaps also declare on behalf of the noble Baroness, Lady Valentine, since I am speaking for her as well, that she is chief executive of London First and a board member of the Peabody housing trust.
These two amendments are the first to refer to the unique position of Greater London in these considerations. At Second Reading, the noble Lord, Lord Smith of Leigh, reminded me of the combined authority in Greater Manchester; it is not exactly the same as in Greater London, but if he wishes to bring forward proposals of a similar nature, I would certainly consider them with great sympathy. In view of the time of night, I do not want to go into great detail on this; I am not sure that, at this stage, it is necessary to do so because I am sure we will return to it on Report. However, the situation and position in London is that the Mayor of London—and here I refer to the office, not necessarily the office holder at any particular time, in which I have not so far had any interest to declare—already has the responsibilities for strategic planning in London. I am unclear whether the Government have given any consideration—and if so, what—to the position of London in relation to the provisions of this Bill.
It seems to me that if any London planning authority has the misfortune to be designated—we all hope that this does not happen, and I have made my views clear about that—it would be sensible in all respects for it to be referred to the Mayor of London and to the Greater London Authority, rather than to the planning inspectorate, which just happens to be in Bristol. I say that on a number of grounds. The first is the important democratic principle that the Mayor of London is elected by Londoners; he is accountable to Londoners and he is accountable particularly directly to the elected London assembly. Therefore, the actions he takes and the decisions he makes are directly accountable to an elected body, which is not the case with the planning inspectorate.
Secondly, the planning department in the Greater London Authority has on the whole a good relationship —certainly a relationship—with all the planning authorities in London, some more than others, as necessary. It knows the situation in London and the individuals concerned in many cases. It is by definition more local than somebody based in Bristol could possibly be. It is better placed to consider particular local circumstances, and indeed, people are able to make their representations directly to that elected and accountable body.
From the point of view of the Mayor of London with his responsibility for strategic planning in London, if a planning authority is performing so badly as to be designated, that must have implications for him and his strategic role, so again, in all respects the mayor has a particular interest in planning. For me the important principle is that if there is to be designation, at least in London it can go to an elected and accountable body rather than to an appointed body some distance from London. I have made my position clear several times, but if it is to happen, that is a far preferable situation and far more in accordance with our belief in localism.
Briefly, Amendment 80, which is much further on in the Bill, would ensure that planning applications for developments relating to school and energy infrastructure must be referred to the mayor as being of potential strategic importance. This would allow him to call in applications that are deemed to have strategic significance for the capital’s future and expedite the decision-making process, getting key projects off the ground. That would also allow the mayor to delegate his call-in powers in cases where he does not have the time personally to hold the representation hearing or he has a conflict of interest in which case the power is currently automatically lost. We need to consider the position of London in the context of a Greater London Authority and an elected mayor. Should it be deemed in the future that Greater Manchester is in that position, that will be fine. It is the principle that I am concerned with here. In England, that principle applies only to London, and I do not see that the Government have yet given any consideration to the position of London in relation to their proposals. I beg to move.
Lord Jenkin of Roding
My Lords, due to procrastination, I did not ask for my name to be added to those of the noble Lord, Lord Tope, and the noble Baroness, Lady Valentine, until the weekend, by which time the first Marshalled List was already with the printers. However, I warmly support what has been said by the noble Lord, Lord Tope, and I do not need to add very much to it.
The point I would make is that the Mayor of London—I am talking about the office and not the individual—already has very substantial strategic planning functions in London. As to the question of designation and the right of an applicant to apply under the rest of the Bill to the Secretary of State, it seems obvious that in London the application should be referred to the mayor because, by definition, we are talking about major applications. As I think my noble friend said, the mayor has extraordinarily good planning relationships not only with the boroughs but with a range of other interests, such as developers, other stakeholders and so on, who are very much concerned with planning. That has been developed to a considerable degree of expertise and skill. That is the right body to exercise the function if, as has been said, any London borough suffers the misfortune of being designated. I very much support this.
I hope that by the time we come to debate Amendment 80, my name will have been added to it. It is a very useful and important addition. The Mayor of London, with his overall economic functions, has a very considerable interest in ensuring that there is sufficient energy to supply London, particularly when one is dealing with decentralised energy—what might be local wind-power turbines and things of that sort. It would be entirely appropriate in those circumstances that he should have the right to call in applications that refer to such functions. Like my noble friend Lord Tope, I warmly support the amendment and hope that the Government may see their way to accepting it. Amendments 39 and 80 were drafted to follow the pattern of the earlier part—Clause 1—of the Bill, so I hope that the Government may feel able to accept them. It would be very much welcomed in London, and also by the London boroughs. I have already declared my interest as a joint president of London Councils. I look forward to hearing what my noble friend says from the Front Bench.
Lord McKenzie of Luton
My Lords, I listened carefully to the noble Lord, Lord Tope, who moved the amendment, and to the noble Lord, Lord Jenkin, who set out his support for it. A very good case was made. I am attracted in particular to the democratic principles underpinning this. One does not necessarily always like how the democratic process works, but we should always see the principle as sacrosanct.
I was unclear about whether, if an authority is designated, it is only in respect of strategic issues that the mayor will step in, or whether he could do so in respect of all major applications. Clearly the two are not necessarily the same. However, the proposition is worthy of very serious thought.
I was a little confused about Amendment 80. On the one hand, the proposition is that the mayor should have more powers and things to do; on the other, that he will have the right to delegate because he will not have the time to deal with some of the representative meetings involved. However, I will not dwell on that point. A decent case has been made this evening and I will be very interested to hear the Minister’s reply.
Lord Ahmad of Wimbledon
My Lords, I will explain the Government’s position on this amendment. I was amused when my noble friends referred to the distinction between the office and the person. When one thinks of the present incumbent of the Mayor of London’s office, or indeed his predecessor, it is very hard not to talk about the person in the office. One can make that claim about both the current incumbent and his predecessor.
I listened to the arguments in favour of Amendment 39. First, I will say that I concur completely with the point that the Mayor of London should play an important role in strategic decisions affecting the capital. My noble friend Lord Tope made that point very well. As a former councillor in a neighbouring borough to his, I dealt with issues in collaboration with the Mayor of London’s office. As my noble friend Lord Jenkin said, the mayor already has powers to put in place a strategic framework for planning in London, and to call in for his own decision any applications that are of potential strategic importance. Clause 1 was drafted to ensure that his power to call in such applications would remain where proposals were made directly to the Secretary of State. The question was raised about discussions with the mayor’s office. The Government have had positive discussions with the mayor’s office about how this would best be implemented. We gave the reassurance that applications of potential strategic importance would be notified to the mayor very quickly once they had been received by the Planning Inspectorate, so that he will be able to act immediately should he wish to intervene. This presents a more practical and workable approach than the one proposed in the amendments.
It is also important that we do not overcomplicate the process for applicants. As it stands, the amendment would introduce a three-way choice for those proposing major development in the capital should the borough be designated on the basis of poor performance. They could, for example, choose to apply to the borough as normal, or to the Secretary of State, or to the mayor. In the Government’s view this would complicate matters further. In other words, what constitutes the application’s potential strategic importance or falls into one of the other proposed categories could end up being extremely complicated and confusing and risk further delay should an applicant misjudge the criteria. The mayor would then have to return an application because he could not decide upon it. It is much simpler for the applicant to have a two-way choice, as we propose, and for the planning inspectorate to decide whether an application it has received is one in which the mayor could have an interest. This approach is entirely consistent with the existing situation where the authorities, not the applicant, decide whether an application is of potential strategic importance.
We would also need to make sure that the categories are generally strategic in nature and consider the views of the London boroughs and other interests. We are happy to have that debate but currently feel that the Bill is not the place to make these changes.
Reference was made to Amendment 80. While there may be a case for the changes proposed, this again can be achieved at the appropriate time by amending secondary legislation. Amendment 80 would allow the mayor to delegate decisions relating to planning applications in the capital. As I have already said, we are sympathetic to this proposal but believe that the Bill is not the best place to address it. In this regard, we propose that we look at the mayor’s planning powers as a whole package and then, in discussion with all interested parties, consider the opportunities for making any appropriate changes.
With those assurances and reassurances I hope that the noble Lord will be willing to withdraw the amendment.
Lord Beecham
Can the Minister indicate whether it is the Government’s intention to consult the Mayor of London, or indeed any body, about proposals to permit the conversion of office premises to residential premises, which I understand has not gone down too well in parts of London?
Lord Ahmad of Wimbledon
It is the standard procedure. We continue to consult the Mayor of London’s office on a raft of issues and discuss them. I am sure that the noble Lord is well aware of such practices.
Lord Tope
My Lords, mention was made of the reference which I and my noble friend Lord Jenkin made to the office and not the office holder. We did so partly out of sensitivity to Members of the opposition Benches, who may have some sensitivity towards both office holders thus far. I thought that we should be clear in our heads, as far as that is ever possible, about distinguishing the office from the office holder. Given that they are such personalities, that is what we should try to do.
I am not sure that I am greatly reassured by the Minister’s reply. The suggestion that an applicant in a major project would be confused because he might have three choices rather than two is rather demeaning to such applicants. I am sure that they could understand the difference between the local authority, the Planning Inspectorate and the Mayor of London. What choice they might make is up to them but I do not think that it is beyond their intellectual capacity to cope with that. I do not speak for the Mayor of London—perish the thought. In my view, they should still have two choices—the local planning authority or the Mayor of London. Given the role of the mayor as the strategic planning authority, I do not see a role for the Planning Inspectorate. However, that is my view. I do not know what the mayor’s view is; I am sure that he will let us know.
Clearly I am not going to push this to a vote. I urge the Minister to continue discussions—I hope that there are discussions already—with the GLA to try to reach some agreement on what should be in the Bill when we come to its later stages. I do not feel that we can go through the Bill, proposing the designation of authorities and passing responsibility to the Planning Inspectorate and the various other provisions, without recognising the role in Greater London of the Greater London Authority and, in particular, the Mayor of London. It may well be a good idea in some future legislation, primary or secondary, to give further consideration overall to the planning powers of the mayor and indeed to how planning works in the capital city. However, I think that Amendment 39 applies particularly to the provisions of this Bill. I am sure that we will return to this subject on Report, but in the mean time, I beg leave to withdraw the amendment.
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, this amendment concerns the arrangements when an application has been made to the Secretary of State in circumstances where another person is to be appointed to deal with the application. The provisions of Schedule 1 enable the Secretary of State, for so long as the application has not been determined, to revoke that appointment and to appoint another person to determine the application instead. On the face of it, this is a very wide power.
It is accepted, of course, that for these purposes the Secretary of State has to appoint an individual and it is further accepted that there may be circumstances where the individual may be unable to complete the task for a number of reasons and has to be replaced. However, the revocation of the appointment can be for any reason or, indeed, for none. Our amendment seeks to constrain the power by making it subject to the agreement of the local planning authority and the applicant. This is not the only constraint that might be adopted, but it is the one that is being proposed. Perhaps the Minister will put on the record the policy involved in the application of this power. Concerns obviously arise around the Secretary of State intervening to pre-empt a decision that is on the point of being made. What criteria does the Minister consider it appropriate to attach to this power? I beg to move.
Lord Ahmad of Wimbledon
My Lords, this provision in Schedule 1 allows a new inspector to be appointed in cases where, for example, illness or probity would prevent the original inspector considering a particular case. It is a safeguard and a check, and nothing more. The applicant would be informed of the change of inspector as a matter of course, but there should not be a requirement to do so, only with their agreement. The Secretary of State must be able to choose the most appropriate person to determine an application, just as happens currently with any planning appeal. Equally, there should not be any need to agree this with the designated authority, especially as it would not be the determining body for the application. With those assurances and clarification, I hope that the noble Lord is willing to withdraw the amendment.
Lord McKenzie of Luton
I thank the Minister for that reply. I understand the thrust of it and I understand that probity and illness are circumstances in which someone would have to be replaced, but as I said earlier, the nature of this power is quite wide and the noble Lord has not reassured me as to whether there is any constraint on its usage. Perhaps I can take this opportunity to pick up a point we touched on earlier, which is that persons who can be appointed by the Secretary of State under these provisions are not just the Planning Inspectorate; it is not limited to that body. I think that the noble Baroness is going to write to me on that point. I am sure that she has not had a chance to do so in the dinner break, so I will forgive her and return to the issue when we have the correspondence. However, it would be helpful if the Minister could say a little more about not so much where the power will be used but the constraints that could be imposed upon it. Can he have another go and help me further on this?
Lord Ahmad of Wimbledon
I think that my noble friend has already undertaken to write to the noble Lord on the other point, so I will ensure that this is covered in the letter.
Lord McKenzie of Luton
I thank the Minister for that and I beg leave to withdraw the amendment.
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, in moving Amendment 41, I will speak to Amendments 42, 43, 44, 45, 46, 47, 48 and 49. With this group, we seek to ensure that when the Secretary of State awards costs, he does so in keeping with the principles of good consultation and in a way that is beneficial to the planning process.
Ensuring that all parties to an appeal act reasonably is of course essential, but the clause risks overly penalising local authorities and working against localism. If the risk of being designated as failing is not a strong enough deterrent for local authorities to turn down inappropriate development, the risk that they might have to pay the costs of appeals certainly will be. There are concerns that the costs of appeals are inhibiting a true localism. Given that, how can increasing the number of instances in which a local authority would have to pay the other party’s costs be beneficial, especially given shrinking budgets and the huge resources that developers often have at their disposal to undertake appeals? When local authorities consider the risk of having appeal costs awarded against them alongside the risk that any decision overturned at appeal may contribute to their designation as failing, that makes it much more likely that developments, whether good or bad, will be nodded through by a local authority.
At present, costs are awarded in very few instances. The impact assessment sets out that, last year, costs were awarded in only 3.7% of cases but goes on to predict that, under Clause 2, the number of cases would rocket, with costs being awarded in as many as 20% or more of all appeal decisions. Worryingly, the Minister’s department has made no estimate of the amount that that would cost local authorities or any other party; hence, the need for amendments to allow for clear criteria and proper regulation of the procedure.
Amendments 41 to 47 specifically target the need for proper criteria to be used when assessing whether costs should be awarded. The impact assessment states that,
“this measure will lead to an increase in the number of costs awarded at least in the short term until longer term behaviour changes”.
However, there is no assessment of how long that might take. Published criteria, set out in regulations, would surely speed up the change in behaviour more effectively. Such criteria would allow the Secretary of State to define what would be deemed unreasonable behaviour and would therefore encourage, rightly, local authorities to avoid it. There is no benefit in giving the Secretary of State discretionary powers to award costs in the hope that it will change behaviour unless the instances in which costs are to be awarded are plainly set out. Furthermore, as the clause will allow the Secretary of State to award a portion of costs, he will need clear guidance in setting out the formula on which the portion of costs is to be awarded and perhaps, more importantly, how it is to be calculated.
Amendment 48 is key to this argument that we are making against the clause. New sub-paragraph (11) allows the Secretary of State to subsume to himself personally any power in connection with the award of an appeal. Can the Minister explain why the Secretary of State would require individual power to award costs, independent of the experts appointed to decide such an award? The amendment seeks to ensure that such power will be used only when it is to the benefit of all involved. It is difficult to conceive of a set of circumstances in which that might be the case; nevertheless it is important that some restraints are put on the Secretary of State’s powers under the sub-paragraph. We need to ensure that the Secretary of State is able to take such power unto himself only if parties to the appeal agree that it is appropriate in the circumstances.
Amendment 49 further constrains the power proposed in sub-paragraph (11). It seeks to ensure that the Secretary of State will make any decision under the sub-paragraph in accordance with published criteria, which would be extremely useful to assist in trying to determine what is in the Secretary of State’s mind. We want the Secretary of State to publish criteria that can be assessed to see whether he is making a fair and even-handed decision about the award of costs, and we want a requirement for him to publish his reasons for his decisions. Not only do we want open and transparent criteria that will inform decisions but we want them to be published. We also would wish to know, in particular circumstances, how they are being applied.
We would like the Secretary of State to publish his reasons. It should not be the role of local authorities, the other agencies involved or Parliament to try to work out what the reasons might have been in any particular set of circumstances. We want it to be clear and transparent. We would have thought that this was something that the Government also would want. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I sought to scribble down the noble Lord’s questions as they came in. I apologise if I miss certain questions. On anything omitted, I shall write to the noble Lord.
The award-of-costs system supports the Government’s drive to improve the planning system by seeking to reduce the poor behaviour that leads to wasted expense and unnecessary delay. Clause 2 extends existing powers to enable the Secretary of State to recover his own costs in planning appeals and makes provision to improve the handling of costs awards between parties. A timely and efficient appeals service will promote economic recovery. At the start of the debate—I hope that this shows my level of attentiveness throughout the past few hours—my noble friend said that this was a magic wand of a Bill. Certainly, what it seeks to do is remove hurdles to growth and it is our view that this is one of those elements.
Clause 2 extends the existing powers of the Secretary of State to recover costs in full or in part in all appeal procedures. It already provides, at subsections (5) and (6), for rules and regulations to lay out the circumstances in which the Secretary of State may direct that costs may be recovered—about which the noble Lord, Lord McKenzie, asked. Amendments 41 to 44 and 46 and 47 would duplicate provisions already made in the clause and are therefore not necessary.
On Amendment 45, the current award-of-costs system is already flexible enough to take account of mitigating circumstances when all claims for an award of costs are being considered. All parties will have the opportunity to present evidence, including detail of any mitigating circumstances, before a decision is made on an award of costs. We therefore consider, again, that no further change is necessary.
The noble Lord asked how the new powers of the Secretary of State would be laid out transparently. I assure him that established guidance is provided on what constitutes unreasonable behaviour and behaviour that may give rise to an award of costs. This guidance will continue to apply whether an award is made by the inspector or by the Secretary of State. We will of course ensure that clarity is provided on the circumstances in which the Secretary of State may recover his costs.
The noble Lord said that the Secretary of State seemed to be able to take a lot more powers to himself to recover costs. As I am sure the noble Lord is aware, the Secretary of State already has powers to recover his own costs. The clause simply makes it clear that he can do so in full or in part in relation to the different appeal procedures. It is right that these powers cover all types of appeal, and we will ensure that information is provided on what type of behaviour may give rise to the Secretary of State recovering his costs before any costs are recovered.
The noble Lord, Lord McKenzie, said that the proportion of appeals in which costs are awarded is estimated by the impact assessment to rise from 3% to 20%. The 20% figure was rather a high estimate; we also gave in that same assessment medium and low assumptions of 10% and 5% respectively. I guess that one can only make estimates until the reality kicks in, and I am sure that we will return to the subject at that time.
Clause 2 is about improving the efficiency of appeals handling and freeing up inspectors’ time to focus on planning issues. Subsection (7) enables the identification of categories of work connected with appeals which will be dealt with by the Secretary of State instead of by a planning inspector. It is unnecessary to seek the agreement of parties to do this in each case. Parties to an appeal can be assured that any matters dealt with directly by the Secretary of State will be handled fairly and justly. Award-of-costs decisions, which I have covered, will be made in line with current guidance on grounds for an award. As I have already assured the noble Lord, we will amend existing guidance to make it clear what type of cases this will apply to. Therefore, Amendments 48 and 49 are deemed unnecessary.
Ultimately, this is to make the whole process more efficient and effective. I am sure that all of us involved with the planning process would welcome such changes. I therefore hope that, with those reassurances, the noble Lord, Lord McKenzie of Luton, is willing to withdraw his amendment.
Lord Greaves
The Minister said several times that the purpose is to increase the efficiency of the appeal system or of appeal-handling in pursuit of economic growth. I am not sure what the direct correlation is between the efficiency of the appeal system and economic growth, except that decisions might be taken more quickly. Is the phrase, “increase the efficiency of appeal handling”, a euphemism for more applications being passed and therefore not going to appeal at all? Is that what is behind all this?
Lord Ahmad of Wimbledon
The short answer to the second question is no. This is about making things more efficient. I am sure that anyone involved with the planning process would welcome greater efficiency. If a decision is more efficient—if it is quicker—it makes the planning process more in line with requirements and, ultimately, saves costs for all involved. I commend the changes because they are simply making something more efficient. To anyone involved with the public or private sector, increased efficiency is always a welcome development.
Lord Greaves
I agree entirely with that. Whatever you are doing, doing it more efficiently is a good idea. However, I do not understand what the allocation of costs—increasing the costs on local authorities and increasing the number of cases where costs are allocated—has to do directly with efficiency. I said earlier that, in my experience, the Planning Inspectorate has not always been the most efficient organisation in the country. However, my perspective is that that is not because the Secretary of State could not get his costs back at the end of it all or that more costs might be allocated to other people in the process but that, as a bureaucracy, the Planning Inspectorate was not very efficient. Either it did not have enough people working for it or those people were not working sufficiently efficiently. The long delays that there were in planning appeals—there still are in some cases, although it has very much improved—do not suggest that the Planning Inspectorate has always been the most efficient organisation in the world.
What on earth has that got to do with the Secretary of State being able to take money off local authorities following the end of an appeal?
Lord Ahmad of Wimbledon
As I said, from my experience of life, whether in business or the public sector, it helps growth because things progress that much more quickly. My noble friend also raised a point about added costs for local planning authorities or developers. On the contrary, no local authority or developer will face an award of costs if they behave reasonably. It is in everyone’s interest that all parties behave reasonably at all stages of the planning process. If anything, making these changes will prevent delays, drive good behaviour and therefore reduce unnecessary expense and delay for everyone.
Lord McKenzie of Luton
My Lords, I am not sure that we can progress much further on this this evening. I fear that part of the rationale underlying this is an encouragement for local authorities not to risk appeals and to tick through, at least at the margins, those applications which they might otherwise have rejected.
The Minister told me that the amendments are unnecessary because they duplicate what is in the Bill, there is established guidance on it or the Secretary of State already has that power. That is all good stuff. Perhaps he might give us the reference to, or in due course pass a copy of documents relating to the definition of “reasonableness”. The Minister said that the established guidance was going to be updated to ensure that there is clarity on this. Perhaps we could have a draft of that updated guidance before we reach Report. Having said all that, I beg leave to withdraw the amendment.