Growth and Infrastructure Bill
17:24 - Division on Amendment 1 - Ayes: 217 / Noes: 211 - Amendment 1 agreed.
Baroness Anelay of St Johns
My Lords, this is another occasion on which it is my duty with regard to some Bills to signify the Queen’s consent in the normal manner.
I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Growth and Infrastructure Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Amendment 1
“Development orders: development within the curtilage of a dwelling house
(1) Section 61 of the Town and Country Planning Act 1990 (development orders: supplementary provisions) is amended as follows.
(2) After subsection (3) insert—
“(4) Any development order or amendment to an existing development order made after 1 January 2013 that grants planning permission for development within the curtilage of a dwelling house shall not apply within the jurisdiction of a local planning authority if that authority has resolved that it shall not.””
Lord True
My Lords, I declare an interest as leader of a suburban local authority that is also a planning authority. I thank the leaders of many other local authorities, along with the Local Government Association, who have given this amendment strong support.
This is Third Reading, so I will not go over all the arguments heard before on this issue, but I hope the House will allow me some indulgence, as this is the first time after nearly 40 years of service to my party and 20 years as an elected representative that I find myself contemplating dividing against my party. Your Lordships’ debate on Report in which Peers from all sides spoke was a devastating rejection of the Government’s wish to impose this idea, and I agreed with all that was said.
I had great sympathy for my noble friend Lady Hanham that day. I respect her hugely, as she knows, for the way she has handled this Bill. We all know that she did not cook up this idea. Indeed, I am pretty sure that if, when she was leader of Kensington and Chelsea, some bright young councillor had come to her and said, “Hey Joan, I’ve got a great modernising idea. Why don’t we take away the rights of neighbours to object to big extensions?”, that clever young man would have been sent away with a flea in his ear by his leader, yet that is the extraordinary proposition that I draw to your Lordships’ attention today.
Before the dust had settled on our debates on localism and the NPPF with the sensible liberalisation of planning therein, out popped a big new idea to sweep aside the newly entrenched localism and use Whitehall diktat to double the amount of back gardens that could be built over without planning permission and take away the rights of immediate neighbours to have a say or to object. That was not in any manifesto or in the coalition agreement. All those documents pledged to protect back gardens, and I, and perhaps others in this Chamber, looked people in the eye in 2010 and made that pledge on doorsteps. For my part, as an elected representative, I propose to stand by it.
My amendment is modest. It is a compromise. I think the Government are wrong to want to take away a neighbour’s right to comment on an extension that could be 50%, or technically in some cases a little more of a small neighbouring garden in a terrace. Back gardens are an important reinforcement of mutual value and of the character of an area. My amendment does not block the Government’s wish to do that. I say to my noble friends on coalition Benches that no one who votes for my amendment today, if I press it, will be preventing the Government from making such an order, nor would they be stopping anyone applying for an extension. It merely moderates a one-size-fits-all approach and allows local decision: localism. It states that if a local authority thinks that extending permitted development in gardens to this extent is not appropriate for its area, it may opt out. What is it about this small thing on which this great Government will not compromise? Do they not understand how people live cheek by jowl in the suburbs? I am beginning to wonder whether someone who had an extension refused got stroppy with some Minister or a top civil servant over dinner.
I did not press a similar amendment on Report for two reasons. The first was because I still hoped that the Government might listen, but late yesterday I received a letter from my noble friend making clear that they would not. Secondly, our debate on Report left open a number of questions about what in the jargon is called an Article 4 direction. My noble friend very kindly provided material on this in her letter. Having read it, I remain unconvinced that it provides a sensible answer to an unnecessary question.
I also remain puzzled by the logic of the Government’s position. My noble friend implies in her letter that Article 4 directions are quite easy and normal and can readily be used if councils do not want to extend permitted development. That might be read to imply, although crucially she does not say so and did not say so when asked directly on Report, that all such local directions to opt out would be supported by the Government. Then her bosses handed a file to my noble friend marked “resist” on an amendment that allows a faster, simpler route to the same opt-out point as Article 4 would offer. It simply does not add up. I fear that the truth is that someone deep in Whitehall, while singing the song of localism, wants to keep a hold over local authorities to modify or cancel an Article 4 direction at any time, in which case on this matter Article 4 would be mere fool’s gold.
I do not wish to detain noble Lords with detailed debate on Article 4, because the small print is a diversion from the main principles of localism and householder rights that are engaged here. I must point out that my noble friend’s letter did not mention the complication arising from rights to compensation that may come with Article 4 directions when planning approval is approved. Leeds City Council alone has calculated that its potential exposure in relation to one aspect of policy is between £1.5 million and £3 million. Nor did it mention the lost planning fees—perhaps £250,000 a year in my authority alone, according to my officers—and there will be no less work to be done, for you can be sure that time saved on planning control will be time increased on building control, as neighbours who have not had opportunities to comment on proposed extensions will ask the building inspectors to look at whether the work is being done properly. Of course, even on my noble friend’s best-case presentation of Article 4 directions, it is a process that takes many months.
When the Government commend Article 4 against the faster, simpler approach to local choice that I and my noble friends propose in this amendment, it is as though a man had stopped his car and asked for directions to a town. Instead of saying “Oh, it’s just there, over that hill—it’s about half a mile away”, a bystander deliberately points him around 10 miles of byways, consuming quantities of petrol on the way, with a possibly impassable ford lurking on the route. It seems wasteful and pointless. Every argument the Government make that Article 4 is a good way to opt out is an argument for the simpler, faster route proposed in this amendment.
I return to the fundamental arguments. The Government have suggested a world where in close suburban neighbourhoods people can put up a six or eight-metre back garden extension, and people living in the house to which they may be attached have no right to a say in this or to object. It is not hard to imagine the shock and dismay that some people will feel if they ever find out that it is happening to them. They will feel powerless and angry.
This proposal is not about growth; it is ludicrous to argue that a few back garden extensions would kick-start the economy. It is not about localism and community; it denies localism and avowedly reduces community rights—Ministers say that it does. It is not about new housing; not a single new upstairs bedroom will be built in Britain as a result of this proposal. It is not about making it easier for people to improve their homes; they have every right to do so now and still would if my amendment were passed. It is not even about property rights, for it transfers power and rights from those who lose most directly from any development and adds to the gain of the richer and more assertive, who would gain anyway.
This proposal takes away a neighbour’s right to have a say on a big and potentially overbearing extension shoved up outside their back door. What is more, it removes that vital process of moderation and conciliation that the local planning system provides in these matters. How often do those who have been upset by a planning proposal next door go away finally satisfied if a small condition is added, a modification made, or just by the simple expedient of being able to have their say before the local planning committee? Paradoxically, at this micro-level, a planning hearing can be an enabling process that allows arbitration and reconciliation, without which, in those small, precious, suburban communities, neighbour would be set against neighbour in perhaps lasting resentment.
For those who have worked hard and striven to buy and maintain a home, it is the most precious possession they have. Restricting their right to have a say in what so directly affects it will strike at their most basic instincts of what ought to be secure and what they see as fair. Good policy should surely have a sense of how things work at the human scale, and it is at that level that this proposal so conspicuously fails. To me, there is a principle of equity here, and it is on just such matters that your Lordships’ House has always been a voice of wisdom and held out a hand of protection for the rights of a citizen to come before a tribunal, as a planning committee is, and be heard. I ask your Lordships, in so close an interest for every homeowner, to consider that civilising and reconciling right.
Lord Tope
My Lords, I have added my name to this amendment proposed by the noble Lord, Lord True, feeling as strongly as he does and with as much sadness as he has expressed. Like him, I am a councillor in an outer London, suburban authority. Indeed, I am a former leader of that council. Like him, I have campaigned and been elected many times on the commitment to preserve back gardens, which is a crucial issue in most suburban authorities and no doubt elsewhere.
The noble Lord, Lord True, spoke very eloquently and very fully on the issues here. I shall try not to take so much time or to repeat too much of what he has said. He referred to the origins of this proposal last summer. It seemed a good idea when government circles were scratching around trying to find anything that would stimulate growth and this proverbial young Kensington councillor to whom he referred came up with this jolly wheeze. Frankly, it would have been much better had they listened at that time to the strong and unanimous reaction right across all parties, across local government and, indeed, across the country pointing out what a silly idea it was. Sadly, that did not happen. People somewhere in government dug in on it. As the noble Lord, Lord True, said, we went to a hastily contrived consultation lasting six weeks, ending on Christmas Eve. At Report, the Minister told us that there had been 1,000 responses. It has been 13 weeks since that six-week consultation ended. We have no idea today, and I suspect that we will have no better idea by the end of today, what those 1,000 replies said. Surely somebody somewhere could simply have divided them into for, against and not quite sure. We could at least get some indication of what that response is, unless we have no indication. If we get no indication in the reply to this debate, we are forced to conclude that a very substantial number of those 1,000 replies have been put in the against pile. For what other reason have we had no indication in the 13 weeks since the consultation closed?
I share the affection of the noble Lord, Lord True, for the Minister. We were London borough council leaders together for many years, and I know very well what her views are, even if she is not allowed to tell us from her present position. At Report, she said that the proposals were to,
“extend the localism rights”.—[Official Report, 12/3/13; col. 197.]
The only rights that are being extended here are to home owners—the right to do as they wish. It may well have sounded good when it was first suggested, but the rights being taken away are the rights of the neighbours to those home owners to have their say on those proposals—and usually there are rather more neighbours than there are home owners. So, in fact, more people are losing rights in this alleged extension to localism than are gaining them.
Among the rights being taken away is the right to have a say. The Minister expressed a hope, which we would all have, that neighbours would talk to each other. Of course that happens, and we would all want it to happen. Quite often, those discussions take place and can be resolved in an amicable way between neighbours; that is what we would all desire. But we all know that, outside that ideal world, it does not always happen that way. The rights being taken away are the rights of the neighbours to be able to appeal for arbitration from a local planning authority, and to ask the house owner who wishes to extend the property properly to take into consideration the interests, wishes and concerns of their neighbours. If they know that they do not have to apply for planning consent, there is no incentive to do so other than to wish to be a good neighbour. If they think that their neighbour is reasonably or unreasonably going to object to their plans for the extension, it is unlikely that they will voluntarily submit to such consultation.
The Local Government Association and the Minister have commented, I am sure correctly, that 90% of such planning applications are currently approved. That is a very good record, which suggests that there is not too much wrong with the present system. But why is there such a high approval rate? It is simply because of the need to have planning consent, and the opportunity that is given to neighbours to have their say and for the applicant to know that the neighbours will have their say, as well as for the role of the local planning authority not just to be able to arbitrate but to be able to mitigate, negotiate and, one hopes, to resolve any outstanding concerns.
This proposal comes as part of a Growth and Infrastructure Bill, and is supposed to incentivise growth—and I think that, to be fair, everyone would agree that it does so in a relatively small way. Presumably, it would do so not for the major developers of the land but for the small builders. I have the good fortune quite often to talk to or, more usually, to be talked at, by quite a number of small builders in my role as a councillor. When I ask them—although I do not usually need to ask them—what they wish the Government would do to make their business more successful, or indeed to keep them in business, not once have any of them said, anywhere in the list, that they wished that the Government would remove the requirement for planning consent. It simply does not happen. If you ask any small builder what they want, there is a whole range of things they would want—VAT is usually mentioned—that would come long before the need to remove the requirement for planning consent.
Are the Government seriously suggesting that somebody considering an extension to their property refrains from doing so simply because of the added cost of a planning application? I do not think that anybody is suggesting that; it would be ludicrous to suggest that the planning application fee is a serious inhibitor to going ahead with the extension to a home.
Article 4 is then pleaded in aid by the Government, who say that it can be used as a way to get around this. My noble friend Lord True has dealt with that very well and very fully, and I am not going to repeat those arguments. But I, too, had the letter from the Minister yesterday, for which I am very grateful, which dealt at some length with unanswered questions from Report about Article 4. As I said, the noble Lord, Lord True, has dealt with many of those, but it also gives us the figures for the use of Article 4, which some of us had said was little used. Well, these terms are relative. I will interpret the figures in the letter in a different way from what was intended. They show that barely one-third of local planning authorities have used Article 4 directives at all in the past three years, and that those that have done so have used them less than once in each of those three years. I would suggest that Article 4, by common consent, is not heavily used. Why? Because it is slow, bureaucratic, ineffective and inefficient, and again using the illustration of the noble Lord, Lord True, it can prove very costly in terms of compensation.
If an increasing number of local planning authorities start to use Article 4 directives when these proposals come in, will the Secretary of State continue to refrain from intervening, as he has up until now? Will he actually be content to see local authorities using Article 4 in effect to get around the proposals that the Government have just introduced? I would suggest that is highly unlikely.
As the noble Lord, Lord True, has said, today’s amendment provides a truly localist way of allowing the Government to introduce these proposals, if they are determined to do so, but also allowing local planning authorities to recognise that one circumstance does not fit all. Of course, different areas have different circumstances; the situation in rural Lincolnshire may well be very different from that in suburban Richmond or Sutton. It gives the local authority the right to choose what they do in terms of their local circumstances.
The Government proposals will set neighbour against neighbour, they will take away people’s rights to object and get a hearing, they take away the local authority’s power to arbitrate and mitigate, and they do absolutely nothing for growth. This amendment enables local authorities to decide how best to deal with these issues in accordance with their local circumstances. I am very pleased to support it.
The Earl of Lytton
My Lords, I, too, willingly added my name to the amendment tabled by the noble Lord, Lord True. I stand before your Lordships as a technician, not a politician. As a practising chartered surveyor with a specialised involvement with boundary matters, and as chair of my professional body’s panel on this matter, I can speak with some knowledge of what happens in practice. The professional panel I chair deals with boundaries, party walls, land registration and rights to light. I, too, thank the Minister for a very useful explanatory letter and a copy of the Article 4 procedural guidance. She referred to a condensed version, if I may put it that way, which the Government are intending to bring out. I have not seen that, but no matter because I shall stick with what the Minister has sent me.
The first point is that the desire to deregulate, however objectively beneficial it might seem, should not equate with no oversight whatever. That is the risk the noble Lords, Lord True and Lord Tope, have identified. It may be populist, but it is not good government.
The second point is that back garden space is an important mutual asset that underpins value and market appeal. We cannot get away from that. Of course, the situation varies according to location, as the noble Lord, Lord True, has said, so a one-size-fits-all approach does not really work. Rural village properties are totally different animals from those in London boroughs in terms of the built and human-scale environment.
The policy of deregulation does not guarantee a positive net present value, if I may use a piece of valuer’s jargon. One poor extension can blight neighbouring properties, as we have heard from the noble Lord, Lord True. Moreover, poor design and poor positioning are potent sources of neighbour disputes, and that is where people like me get drawn in. They produce serious stress not only between neighbouring householders but within families. I have seen families almost taken apart by the stress that has been occasioned. Such disputes often lead to expensive legal battles, in which I have to say the only gainer is the legal profession.
Lord Cormack
My Lords, you have only to go the Republic of Ireland to see that what the noble Earl, Lord Lytton, has just said is absolutely right. I believe we are well served by our planning laws in this country. I do not want to detain the House for more than a few moments but I remember so often, as a constituency Member of Parliament, finding constituents particularly aggrieved by specific applications. However, there was a way of sorting them out. I also remember the great leylandii problem, when we had to bring in legislation to protect people from these overpowering hedges.
My noble friend Lord True and those who have supported him have laid out an extremely powerful case, backed by technical competence and knowledge from the noble Earl, Lord Lytton. If ever there was a case for your Lordships’ House saying to another place, “Think again on this one; you have got it wrong”, this is it.
Lord Deben
My Lords, my great difficulty with the amendment is that, in the terms in which it has been proposed, what I believe to be a heresy has been expounded, which is there is an equality of rights between ownership and the right to have a say. The fundamental right is that of ownership and the protection of property; that is essential. That is why, when the Quality of Life report looked at this issue, we came up with a way out of the problem with which your Lordships’ House is faced. We said that this kind of issue was a matter not of planning but of neighbourly relations. Why not take it out of the planning system and have a situation in which people could normally do what they wanted, but if neighbours objected the local authority had the right to decide that such an objection was important enough to appoint an arbitrator? It is not a matter of planning most of the time; it is a matter of arbitration between the interests of the owner and those of his neighbours. The arbitrator should work within a context in which the owner would normally be judged as having the right to do what he wanted with his own property, but that if the neighbour’s rights were so intruded upon the arbitrator could make the decision that in this case it could not be done.
My problem with this situation is that the amendment reinforces the concept that through the blooming local authority is the only way in which the locality can have its say. I am not sure I believe that about local authorities; indeed it seems to me to be one of the issues. Localism is not “local authorityism”—it is localism. I note that very often those who speak about these issues talk as though the only way in which the locality can express itself is through the local authority. Frankly, I have seen far too much of local authorities’ fiddling powers, as they try to tell people the best way to do their developments. I remember having an argument with a charming lady on the subject of what sort of window Teulon would have put in a house that Teulon had built. The difficulty was that she was from the authority and I knew about Teulon, which is a difficult situation to be in. I recognise that there are problems of this kind.
I say to the Minister that it is not possible to support this amendment because we are still in this difficult area. I share the assessment of my noble friend Lord True of the Minister’s ability and her heart in these circumstances, so I say this delicately. She has not been enabled to give the House the kind of way through that exists—a balanced way, given by the recommendations of the Quality of Life report. Can she explain why the Government seem not to have taken that moderate path but have moved to this one? On balance, this one is better than the amendment but it has the great difficulty that if there are many cases of the sort feared by my noble friend Lord True, we will be back here legislating to put the thing back. It is a worry. Can she explain why, on this occasion and, I am afraid, all too regularly, the Government have not sought to find a way that might ameliorate the problem and lead more of us more happily through their Lobby?
Lord Marlesford
I support my noble friend Lord True. I speak from the grass-roots point of view, which will, I hope, answer the point made by my noble friend Lord Deben.
The role of the parish council is crucial in these issues. It is the grass roots of democracy and government. My noble friend Lord True is right about the need to have proper arbitration and consideration in the way his amendment will allow in the council areas that wish to take that route. My noble friend Lord Deben talks about having an arbitrator appointed by the local authority in due course. That seems a little circular, because frankly we are talking about making these matters subject to local arbitration.
My own parish council in the small village in Suffolk in which I live, which I chair, at the moment has two cases of people who wish to extend their houses. They will be considered at the grass-roots level by people who know everyone and they will both be settled very amicably. This is known. However, if you get people who are not prepared to take account of local considerations, preferences and feelings, you will soon run into frictions that could so easily be avoided.
It is for that reason that I will support my noble friend Lord True if he decides to test the opinion of the House.
Lord McKenzie of Luton
My Lords, the noble Lord, Lord True, has been clear and consistent on this matter, and he has our support. I am delighted that he also has: the support of the noble Lord, Lord Tope, who said that, given the statistics, there cannot be much wrong with the current system; the authoritative support of the noble Earl, Lord Lytton, as a distinguished technician; and the support of the noble Lord, Lord Marlesford. I should say to the noble Lord, Lord Deben, that we are not in the place that he describes. Is it not better that a local authority engages with communities and tries to get the balance that these kinds of issues throw up rather than the Secretary of State? Local authorities might not be the fount of all knowledge, but I would rather have local authorities involved in local decisions than the Secretary of State. I think that is also the view of the noble Lord, Lord Cormack.
The noble Lord, Lord True, has argued his case on the basis of localism, the lack of proper consultation, the insignificant effect on growth, the riding roughshod over neighbourhood engagement, the unpicking of the hitherto planning balance and the inadequacy of the Article 4 remedy. However, we should be grateful to the noble Baroness, Lady Hanham, as others have said, for the further information that she has provided, particularly on the Article 4 direction.
The Government, of course, have a wider agenda around permitted development rights, and like other noble Lords who have spoken we deprecate the fact that the Government have not yet felt able to publish their response to the consultation, which closed in December last year.
The amendment of the noble Lord, Lord True, is very specific and modest. It applies only to permitted development within the curtilage of a dwelling house, and it disapplies those rights only when a local planning authority resolves that they do not apply. Unless and until that happens, the permitted development rights endure. If the permitted development rights do not apply, any proposed development has to go through the normal planning process. It is, as the noble Lord said, about equity.
Of course we acknowledge the role that the construction sector can play in generating employment and growth, but that is not to say that it should be gained by tearing up sections of the planning system. We can tell from the noble Baroness’s letter that the Government will cling to the Article 4 defence. The Minister’s recent letter suggests that the process of getting an Article 4 direction is straightforward. It records that the Secretary of State has not exercised any powers of intervention since the change in 2010, which only required directions to be notified.
If in practice the Secretary of State is hands-off, why not, as the noble Lord’s amendment suggests, just leave it to the local planning authorities in the first place? Let them decide whether permitted development rights of the type described should run. However, on reading the guidance it is clear that matters are not quite as straightforward as the Government argue. We have all read the LGA briefing, which spells out why Article 4 directions are ineffective, particularly on compensation issues and loss of planning fees, as has been mentioned.
It is to be hoped that the Government will find themselves able to accept this amendment, and we look forward to the Minister’s reply. But if the noble Lord, Lord True, does not get satisfaction, we will join him in the Lobby. I believe it is right that we should seek to settle the matter today.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I thank the noble Lords who contributed to this debate, and for the measured way in which they have considered the amendment. I know very well that my noble friends, who I have called noble friends for a long time, are very committed to what the noble Lord has put forward.
I will not be able to accept the amendment. I say that at the outset so that it is quite clear. It has been generated by the Government’s proposals, on which consultation has taken place, on the changes to permitted development rights in respect of single-storey extensions. This was never meant to be part of the Bill. Noble Lords have asked why the consultation has not been published. We normally publish the results of consultation when we are about to take the matter further, and I have already made it clear that the consultation will be available as the regulations come forward. As I say, that aspect is not part of the Bill.
Our proposals, which are not part of the Bill, will make it easier for thousands of families to undertake improvements to their homes. In bringing forward these changes, we have looked across England and recognised that many people want to enlarge their homes, not by much but sufficiently to create more living space and to provide the best possible home for their family without the cost of having to relocate.
We also consulted on changes for commercial premises. Noble Lords have not really referred to this, and I say only that the proposal is that businesses will also be able to improve their premises and expand without having to relocate. This means that they can quickly respond to and capitalise on market conditions. We believe that the proposed changes will help promote economic growth and generate new business for local construction companies and small traders. That is not the full rationale behind this, but it is an important matter that we keep local businesses going. It is fair to say that approximately 30 jobs are supported for every additional £1 million spent on housing repairs and maintenance.
Permitted development is the recognition by the Secretary of State that certain types of development and their impacts are generally acceptable across the country. It accepts that a requirement to make a planning application is not always proportionate to the impacts of development. This is an important principle. We have consulted, as I have said, on the changes that would apply across England. We did not consult on a proposal whereby a local authority could just choose whether or not to adopt what has been promised to all householders across the country. That is what the noble Lords who support this amendment suggest.
We have not consulted on anything like that. We have been clear in working out the proposed changes that the planning system for permitted development rights needs to strike a balance, to which noble Lords have referred, between the rights of the homeowner and the rights of their neighbours. We consider that that is what our proposals do.
We have had reference to the National Planning Policy Framework. To be clear, there is no weakening of it. It is aimed at preventing what I believe from discussion on the Localism Bill is technically called garden-grabbing for new development. We do not believe that the proposals that we have put out to consultation will affect that. No more than 50% of the curtilage of a dwelling can be built on, providing substantial protection for rear gardens, particularly in terraced properties. Also, the building regulations and the Party Wall etc. Act, to which my noble friend Lord Lytton referred, must be complied with in the usual way, and the right to light is unaffected.
My noble friend Lord Lytton took me up on my point about the right to light being statutory. I will be pedantic, if I may. The operation or prescription of the right to light is set out in statute, although the right arises under common law, as he suggests. Between us, we have probably come to the right conclusion, which is always helpful.
To give a local authority the power to opt out of the national permitted development, as the amendment does, would establish an unwelcome precedent. It removes the certainty that the Secretary of State promises in bringing forward a new right, and makes what is intended to be a national deregulatory measure apply only on an optional basis. That is particularly so when a mechanism for responding to concerns in individual areas exists.
My noble friend Lord Deben suggested that some of the problems could be solved by setting up a local arbitration arrangement. He and other noble Lords will know that many councils already provide a mediation service, and of course they would be perfectly entitled to do so under the regulations proposed. I agree that those issues can be appropriately resolved without the formal intervention of the planning system. It just requires a bit of good will.
There are already arrangements in place to deal with some of the circumstances raised in respect of some individual local authorities, where the new rights might impact adversely on a local amenity. Many have commented on the Article 4 directions, on which I have relied as an alternative to what my noble friend suggests. Boringly, I shall make some of those comments again. There has been difference of view about how the Article 4 directions work. It has been suggested that the Article 4 direction process is very difficult to pursue. The Local Government Association briefing contends that. As has been cited and as I said in my fairly long letter, which may have been helpful in some ways, more than 270 Article 4 directions have been notified to the Secretary of State from 122 local planning authorities over the past three years. This does not suggest to me that local authorities will not introduce Article 4 directions if they think they are appropriate. A number of local authorities will.
In its briefing, the Local Government Association set out three core reasons why it believes that Article 4 directions are ineffective. Some of those reasons have been raised by noble Lords. The first focuses on the need for councils to give 12 months’ notice of an Article 4 direction proposal. Local authorities have powers in respect of householder-permitted development to make immediate directions to withdraw the permitted development rights with immediate effect. Article 4 directions that have been put on at once must then be confirmed by the local planning authority following local consultation within six months. It in effect lays down what an Article 4 would do but in a very short timescale, so you could really halt a development or the extension of a development.
Lord True
My Lords, I thank my noble friend on the Front Bench for the characteristically courteous and thoughtful way in which she has responded. My difficulty is that the response has been a response in style and that she has, unfortunately, not been permitted to respond on the substance of the matter. I did not create this situation. A pronouncement came from the Government that they intended to withdraw the rights of neighbours to object to extensions on this scale and thus oust their right to go to a tribunal, which is the planning committee. The planning committee process acts as a mode of reconciliation in itself. Compromises are made and often the matter never goes to a formal hearing. It is a way in which neighbours are reconciled in these situations.
Of course, I hear what my noble friend Lord Deben said. Arbitration is used. I certainly do not claim that a local authority is the beginning and end of all wisdom. I spend half my time as a local authority leader trying to involve local people and local communities in taking decisions for themselves. I am absolutely convinced that a local authority will have rather more knowledge of what is acceptable and appropriate in its local area than a Minister sitting in Whitehall pronouncing an order of this kind. That is my difficulty with what my noble friend said.
I am extremely grateful for all the speeches that were made so very supportively. I thought that they made a compelling case, taken together, for the Government to listen to the arguments we are putting forward. With some modesty, as a policy-maker in the past, I think that at some point Governments gain in authority when they show that they have the grace and wisdom to listen sometimes on small things.
I will not detain the House further. The Minister said that it was worrying that local authorities might wish to opt out of a pronunciamiento about planning—to have a different view. How recently it was that we debated at such length the principle of localism. While I do not contend that local authorities have the whole answer, I do not think that Whitehall having the answer is necessarily right. The House can decide only on what it has before it. I have had the temerity to raise this issue because it is clear that we have not seen the results of the consultation and it has been confirmed that the Government intend to plough forward to regulations, which are unamendable. I have had the temerity to put this before the House partly because it is a matter of great importance to people who live in small properties, cheek by jowl in the suburbs of this country, partly because Members of Parliament, who are elected and responsible to those people, as I myself am, might have a view on this matter and partly because I do not think that the Government have the full answer, any more than local authorities do.
I repeat what I said at the start. It is with the greatest reluctance, sadness, difficulty and regret, after 40 years working for my party, representing it in elected chambers and now having the great honour to be here, that I say I cannot accept the advice of my noble friend. I would like to test the opinion of the House on this matter.
The Deputy Speaker (Baroness Pitkeathley)
If Amendment 2 is agreed to, I cannot call Amendment 3 for reasons of pre-emption.
Amendment 2
“(4) Sections 106BA, 106BAA and 106BB of the Town and Country Planning Act 1990, and subsection (5) of this section, are repealed at the end of April 2016.
(5) The Secretary of State may by order amend subsection (4) so as to extend the time being specified in that subsection by up to 24 months.”
Lord Tope
My Lords, the amendment stands also in the name of my noble friend Lord Shipley. We have debated this clause extensively, under its former guise of Clause 6, at every stage of consideration of this Bill so far and it is certainly not my intention today to reopen debates on the many issues that the clause raises. They have been fully debated; I think that views still differ but, as I have said so often, we are where we are.
On Report, the Government, having listened to at least some of the concerns that were expressed, introduced a sunset clause to bring the clause to an end on 30 April 2016. I welcomed that sunset clause and the evidence that the Government had at least listened to those concerns. However, the government amendment on Report also gave the Secretary of State power to extend the provisions, if judged necessary, for in effect an unlimited period. My amendment today therefore seeks to limit any such extension, should it be deemed necessary, to no more than 24 months.
I am sure that the Minister will say that the clause was introduced in recognition of the current economic circumstances and in the expectation that they would not continue for ever. Indeed, in introducing the sunset clause for April 2016, the Minister was at pains to express that that date had been chosen not arbitrarily but because that was when it was suggested and expected that—I hesitate to say the boom would begin—circumstances would recover.
I am sure that it is the Government’s intention that these provisions should cease to exist on 30 April 2016, but concern is rightly felt that there could be circumstances—after a general election, there will be a new Government of whichever hue—in which the provisions could carry on indefinitely, which many of us feel to be wrong. Our attempt, therefore, is to limit the clause to two years. By that time, under the National Planning Policy Framework, all local authorities should have drawn up their local plan—70% have already published one—and those up-to-date plans will ensure that every planning requirement is viability-tested, which should in turn render this clause redundant.
I should like to think that the Government are able to accept the amendment. If they are not, I hope that the Minister will express her sympathy and support for its intentions and put that on record. While that is not as good as its being in the Bill, it is at least some reassurance for now and for the future. I hope that, in doing so, she will also indicate that any future Government, if they are minded to extend the provisions of this clause, will come forward with robust evidence that proves that affordable housing obligations are routinely stalling developments. I am not sure that we are convinced of that now, but, if there is to be any extension, it will certainly be incumbent on the Minister of the time to provide the evidence to convince both Houses of Parliament that it is necessary, and both Houses of Parliament should have the opportunity to decide on those matters.
I do not think that I need to detain the House any longer. The purpose of the amendment is quite clear. I beg to move.
Lord McKenzie of Luton
My Lords, I shall speak to Amendment 3, which is intended to have the same effect as Amendment 2. If it is pre-empted by Amendment 2, I would be more than happy with that outcome.
At the moment we have a sunset clause that is in rather an unsatisfactory situation. Effectively we have the right for developers to renegotiate affordable housing obligations on which the sun indeed may never set. As the noble Lord, Lord Tope, said, now is not the time to revisit our broader concerns about these provisions. On Report the Minister justified the three-year primary period of the sunset clause by quoting evidence from the OBR that showed that investment in housing is expected to stabilise in 2016, yet she argued the need for a pragmatic power to extend this if prevailing market conditions justified it.
This is a hard argument to maintain unless the Minister is anticipating a further deterioration in the housing market. By 2016, developers will have been negotiating affordable housing obligations in circumstances of recession, or of zero or little growth, for about eight years. The amendment allows for a possible further two years, so it would then have been for a full decade. Perhaps the Minister can be more specific about the nature of the catastrophe that she considers might beset the housing market that would justify retaining residual powers beyond 2018.
The March 2013 OBR report does not seem to help, as it comments on the variety of housing measures that the Government have promulgated, noting that overall, together with the Funding for Lending scheme, the measures should support significant growth in property transactions and residential investment at levels that we forecast for the next two years. The Government may have got something right; is the Minister saying that the OBR has got it wrong?
The justification for a possible two-year extension of the sunset clause is pretty thin. The opportunity to keep Clause 7 in being beyond this is not justified, unless it is intended to be held up as some sword of Damocles to ensure that future affordable housing obligations are depressed. We agree with the noble Lords, Lord Shipley and Lord Tope, that a maximum of two further years of the sunset clause is okay but not more than that. Like the noble Lord, Lord Tope, we hope that the Minister can reassure us on that so that we do not need to test the opinion of the House.
Baroness Hanham
My Lords, we have discussed this extensively at all stages of the Bill and I hear the arguments that have been made again today. Since Report, I have also had the opportunity of discussing this with representatives of the National Housing Federation and that has been helpful.
I am pleased and always have been that the principle of a sunset clause to repeal the clause in April 2016 is generally supported. However, these amendments focus on the power given to the Secretary of State to extend the provision by order beyond 2016. The noble Lord, Lord McKenzie, has referred to the date of April 2016 in the Office for Budget Responsibility’s market forecasts as a sensible and justified sunset date. We do not know whether things will have improved by then and I am sure that the noble Lord does not either. One can only hope that they will have. If they have not, we would want to retain an option to extend the measure if market uncertainty remains. We have hoped that we would dig ourselves out of the economic crisis over the past couple of years but it has not been possible. One cannot say with total confidence that 2016 will see us out of the doldrums but we expect and hope that it will.
The issue at stake is not the sunset clause, which has already been agreed, but how any future extension should be constrained. I sympathise with the wish for certainty and I hope it is reasonable to expect that there will be economic stability by 2018, and that consequently there will be little need for extension of the provision. However, while I agree that 2018, as proposed by my noble friend, seems a reasonable limit for this clause, it is as arbitrary a date as any and would limit future flexibility.
To retain flexibility is prudent. With flexibility by order the matter could be taken forward. If it had to be, the Government would have to come to both Houses, because it would be an affirmative order. My noble friend asked what evidence they would have to bring: I suggest that it would have to be the best evidence that they could find, which would presumably at least refer to the amount of affordable housing that still needed negotiation. Both Houses would have to consider this in the light of any evidence that the Government had at that stage.
I am also wary of having a fixed date of 2018, or a fixed extension period, because the clause introduces a new application and appeal process. Viability alone and not policy requirements or scheme merits is the subject of the application and appeal. The on-the-ground impact will not be known until the clause has been in operation for a little while and we have seen how the viability process works. It is essential, therefore, that we maintain flexibility to understand the impact of the measure over a little time. Along with more certainty in market conditions, this would give better ground for assessing the merits of any extension during 2015 when consideration would have to begin as to whether the extension to 2016 should be made.
The clause is drafted so that the order must insert “a later date”. It does not allow for a permanent provision. This wording reflects our intention that this clause will operate only for as long as it is required. Its intent is to be temporary. A permanent provision would require new primary legislation. Finally, it could be argued that the real future of this clause is in the hands of local authorities. If local planning authorities take account of their local economic realities and negotiate viable and flexible agreements with developers, there will be little scope for challenge.
Since we debated these provisions on Report, I have arranged a meeting for interested Peers—those who have spoken—on the draft viability guidance that will accompany this clause. I am grateful that the noble Lords, Lord Tope, Lord Shipley and Lord Best, responded to that invitation and were able to give us some thoughts on the matter. It was perhaps a little unfortunate that we did not have a bigger turnout but I am sure that everybody was busy.
Lord McKenzie of Luton
For the record, I think I was engaged on other legislation at the time.
Baroness Hanham
That would have made four.
I hope these discussions have assured noble Lords that we intend this to be a strictly dated clause, but the flexibility is needed. It will allow for adjustment of affordable housing requirements only where it is justified and clearly evidenced. In this way, we expect to deliver more housing, both private and affordable, than would otherwise come forward. I think everybody in this House agrees that that is essential.
This is not intended to be a permanent measure. We are happy with the sunset clause but think that we might need a little extra time. This is the easiest way of doing it without having to bring in primary legislation. We can extend this on an affirmative order. I hope that the noble Lord will feel satisfied and will withdraw his amendment.
Lord Tope
My Lords, I am grateful to the Minister for her reply and for the reassurances she was able to give. I draw comfort from the fact that first and foremost the answer lies with local authorities getting their local plans in place and ensuring that any agreements they negotiate or are negotiating are properly viable. I accept that in the first instance it is for local authorities to do. I thank the Minister for her confirmation of what we knew, which it is useful to have on the record, that this measure is subject to the affirmative procedure and that, should the Government of the time wish to extend, they will have to produce evidence to both Houses. I hope that both Houses will do their utmost to ensure that there is robust evidence should that eventuality arise. Most of all, I draw some comfort from my expectation that it will not prove necessary. That is, I think, a hope shared on all sides of the House. I believe that will be the case. Time will tell, but in the mean time, I beg leave to withdraw the amendment.
Lord Cavendish of Furness
“(2C) In complying with any duty under subsection (2B), if it appears that there is a conflict between any of the duties under this section, the Secretary of State shall attach greater weight to his duties under subsection (2B).”
Lord Cavendish of Furness
My Lords, in the imminent absence of my noble friend Lord Marlesford, I shall introduce Amendment 4. This amendment refers in large part to broadband, so I should declare an interest in that my family business is based in Cumbria and most certainly stands to gain from improved broadband provision.
The importance of broadband was extensively debated last week when the Communications Committee’s report Broadband for All—an Alternative Vision was so ably introduced by my neighbour and noble friend Lord Inglewood. He emphasised the special importance of broadband in rural areas, and I agree. I have long argued that renewed growth in Britain will come—indeed, is already coming—from small and medium-sized businesses, many of them rural. That came home to me forcefully last week when I was returning from your Lordships’ House. The train to Cumbria came to a frozen halt at Lancaster. The train operator kindly provided taxis for six of us to go further up the branch lines. To my amazement, all six of us, who live dotted around in the villages and hamlets near me, were all on a day trip to London selling our goods and services. This is interesting because it was completely unheard of only a few years ago. I tell the story because there is a strong danger that the anticipated broadband take-up will be underestimated. In a sense, that is very good news, but there are implications.
I am grateful to the Government for amending Clause 9 on Report. It means that the primary legislation governing national parks and AONBs will remain unchanged, which is a welcome improvement. However, my noble friend tabled this amendment because he remains concerned that Clause 9, even as amended, undermines the legal protection for national parks and areas of outstanding natural beauty, and I share his concern.
In amending Clause 9, the Government were reacting to concerns that the clause disapplied key duties on the Secretary of State to have regard to natural beauty in protected areas. The new approach, in the Minister’s own words:
“ensures that the duty that already exists under Section 109 of the Communications Act 2003 for the Secretary of State to have regard for the environment and beauty of the countryside will be deemed to meet the ‘have regard’ duties set out in protected areas legislation, when the Secretary of State comes to make regulations under Section 109”.
The aim of the changes the Government made to Clause 9 was, again in the words of my noble friend Lady Hanham, to reassure,
“the House that our intention was only to ensure that the right legal framework was put in place and that we had no wish to unpick the distinct and settled legislative framework that applies to the national parks”.—[Official Report, 12/3/13; col. 141.]
This change is welcome, as far as it goes, but it is important to note that many outside this place remain concerned about the precedent it sets for protections for our national parks and areas of outstanding natural beauty. The view of the Campaign to Protect Rural England’s legal advisers is that Clause 9 as amended by the Government replaces the special protection for national parks and AONBs with the general protection given to all countryside areas under Section 109(2)(b) of the Communications Act 2003. If the Secretary of State has had regard to the matters mentioned in that section, that will be sufficient for the purposes of Section 11A(2) of the National Parks and Access to the Countryside Act 1949. In other words, the special treatment and priority given to national parks would be lost; they would be treated in future like any other area of countryside.
At a practical level, this means that the clause, even as amended by the Government, continues to allow the introduction of proposed new regulations that will make it much easier for telecommunications companies to put up overhead wires and poles in protected areas without applying for planning permission. The CPRE continues to believe that Clause 9 is unnecessary and that new telegraph poles in national parks and AONBs should continue to require planning permission, which would not pose a barrier to broadband infrastructure rollout.
This amendment seeks to clarify that where any of the duties that the Secretary of State must have regard to under Section 109(2) of the Communications Act 2003 come into conflict when the Secretary of State is making regulations, he or she must give greater weight to the “have regard” duties for protected landscapes. The expression “greater weight” is used in Section 11A of the National Parks and Access to the Countryside Act 1949, and it is proposed to use it in this clause to underline the special status of our protected landscapes in the decision-making process for the Secretary of State.
This is an important point of principle. Our national parks and AONBs are designated as such for a reason: they are recognised as being special landscapes, and thus worthy of special protection. It has been said that the ideal for the national parks set out by the Dower report and reiterated by the Hobhouse committee in the post-war years, and held steadily since then by politicians from all parties, “is none other than the protection of these finest landscapes of England and Wales in so effective a way that their local life shall vigorously continue, while the beauty of the countryside, untouched by any damaging influence or urban encroachment, shall be maintained as a thing splendid in itself, giving poise and strength to those who appreciate it and adjusting man’s overweening ideas of his own importance through the quiet influence of the unchanging hills”.
Baroness Whitaker
My Lords, I declare an interest as the president of the South Downs Society. I support this amendment very warmly. I have very little to add to what the noble Lord said—I could not have put it better myself—but I urge the Minister to keep in mind that the national parks are one of the greatest achievements of this country, and that we should be very careful how we safeguard their value, which has provided benefit to millions.
Lord Cameron of Dillington
My Lords, I, too, support the principle behind the amendment in the name of the noble Lord, Lord Marlesford, which was ably moved by the noble Lord, Lord Cavendish. Again, as in Committee on this Bill, I come from an economic perspective. As I said then, the whole economy of our national park areas comes from the beauty of their landscapes, which we must try to preserve at all costs. Their beauty brings income from visitors, both national and international, and from the whole question of the branding of the businesses, now and in the future, that exist within their boundaries. It would be very easy to chip away at the uniqueness of this branding: little bits here and there, often for seemingly urgent reasons at the time.
In fact this clause, in its original form, was saying just that: we must have broadband within these rural areas at all costs, and we do not care too much about how we achieve it. I agree; we must have broadband at all costs, but we must pay attention as to how we achieve it. Although broadband is of great economic importance, the landscape is of greater longer-term economic importance. Therefore, we and the Secretary of State must always put the landscape first. It must be the overriding long-term priority in the management of these areas, and I hope the Minister will be able to give us some comfort.
Baroness Hanham
My Lords, we had a long discussion on Report on many of the areas that have been raised again today. As noble Lords know, the Government have brought forward a number of amendments to respond to the concerns that had been expressed, particularly on some of the issues raised on the nature of the national parks and the areas of outstanding natural beauty. I certainly hope that I said on Report that we consider these areas to be exactly what they are meant to be. They are special areas, lungs in the countryside for people, recreational areas, and clearly they have all the beauty of England. Nobody wants to despoil that.
It may be helpful if I briefly review where we got to on Report. I hope that I reassured noble Lords at that stage that we were seeking to ensure that broadband—fast broadband—was available, particularly in rural areas, because many businesses in these areas will survive and thrive only if they have access to broadband. That is what we were trying to do. As I said, nobody has any wish to impede or impose on rural areas.
I will take a moment to remind the House of the position that we reached on the broadband provisions. It is our intention, through Clause 9, to ensure that there is sufficient legal certainty in primary legislation when bringing forward our proposed changes to secondary legislation. The clause as it was when introduced to this House expressly disapplied the duties in national parks and area of outstanding natural beauty legislation to have regard to environmental considerations. However, many of the concerns that this would set an unwelcome precedent for the future were raised by noble Lords, the English National Park Authorities Association and the National Association for Areas of Outstanding Natural Beauty.
I was able to have meetings with representatives from those associations, and I am very grateful to them for coming in to talk to us. As a result of those discussions, we were able to propose an amendment to the clause that addressed their concerns while ensuring that we had the necessary legal certainty to bring forward regulations. To my noble friend who moved these amendments, I point out that the initial amendment was about having regard to duties. We satisfied those associations and the House that those amendments achieved what everybody wanted to achieve: protection for these areas, as well as recognising the need to move forward.
Clause 9 amends Section 109 of the Communications Act 2003 so that the Secretary of State must have regard both to the need to protect the environment, and in particular to conserve the natural beauty and amenity of the countryside; and the need to promote economic growth in the United Kingdom. The duty to consider the need to promote economic growth was introduced because of broadband’s pivotal role in boosting economic growth, making the country more competitive and creating jobs. This is particularly important in rural areas, which, as I have just said, are most in need of upgraded infrastructure.
I reassure the House that the introduction of this new duty does not mean that protection of the environment is a lesser duty. It is not. The Government remain convinced that protection of the environment is crucial. That is why a code of best siting practice is being developed as a safeguard to ensure that fixed broadband equipment is sensitively sited. The noble Lord drew attention to the fact that we have already said that BT would have to share its infrastructure.
As I set out on Report, a working group has been established to draft this new code. It has agreed its scope and some broad principles, which I shared ahead of Report. Its next meeting is tomorrow, where it will continue its work towards the final code being ready for publication ahead of the secondary legislation being brought forward. I remind the House that the working group is made up of communications providers, local planning authorities, Ofcom, the Office of the Telecommunications Adjudicator, English Heritage and the English National Park Authorities Association, and all members are keenly engaged in bringing this important code to fruition.
I reassure noble Lords again that all existing provisions of the national parks legislation will be unaffected by this Bill’s provisions, except for Section 11A(2) of the 1949 Act, which will be complied with through the duty in the Communications Act 2003. This was resolved by amendment on Report. The Secretary of State has to be proportionate when exercising these powers, and any regulations are subject to both consultation and parliamentary scrutiny.
The noble Lord raised several questions, some of which I think I have answered and some of which I fear I may not have done because they were rather more technical than anticipated in my brief. I will write to him on the ones that I think I have not covered, but I hope I have given him enough reassurance that we are wholly committed to the countryside and that we recognise all that it provides. Having said that, and following the long debates that we have had on this subject and the amelioration that we have been able to make to the original provisions, I hope the noble Lord will feel able to withdraw his amendment.
Lord Cavendish of Furness
My Lords, I thank the noble Baroness and the noble Lord, Lord Cameron, for their support for this amendment, and I thank my noble friend the Minister for her reply. As she said, I do not think that all the questions have been answered. She was rather surprised when I rattled them off rather quickly. I sense that her heart is exactly in the right place as regards the countryside. With the assurance that she will write to those noble Lords who have taken part, I beg leave to withdraw the amendment.
Baroness Hanham
Baroness Hanham
This last amendment is a very minor, straightforward tidying up of legislation. It follows from the new clause that we inserted on Report on the delegation of the planning powers of the Mayor of London, now Clause 28 in the Bill. That clause deletes Section 2B(8) of the Town and Country Planning Act. As a result, we will no longer need to refer to Section 2B(8) in Schedule 1 to the Bill, so the amendment removes that reference.
With the leave of the House, as this is the last opportunity I will have before the Bill is sent back to the other place—clearly, we will see it back again in some form—I place on record my appreciation of the work done in this House by all noble Lords who have taken part. I thank them for the great persistence and consistency with which they have addressed the issues. We have made significant amendments to this Bill and have put in four new clauses, so I thank all noble Lords and those who have assisted us with this Bill, including my noble friend Lord Ahmad. I beg to move.
Lord McKenzie of Luton
My Lords, we have no problem with this amendment. I reciprocate by thanking the noble Baroness and her team for the extreme courtesy with which they have handled this Bill and for the very extensive discussions that the noble Baroness has organised, some of which one could get to and some of which one could not. I also thank the Bill team for its helpful input.