Grand Committee
Neighbourhood Planning Bill
Monday 6th February 2017
(7 years, 9 months ago)
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The Deputy Chairman of Committees (Lord Brougham and Vaux)
Good afternoon, my Lords, and welcome to the third day of the Grand Committee on the Neighbourhood Planning Bill. I apologise for the Clock, but the mini-clock that shows the length of speeches is correct. Do not worry about that. There may be a Division in the Chamber. If there is and the Bell rings, we will adjourn and resume after 10 minutes.
Clause 12: Restrictions on power to impose planning conditions
Amendment 28
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, first, it is good to see the noble Baroness, Lady Bakewell, back and looking in fine fettle. I shall speak collectively about government Amendments 28, 30, 35, 39, 40 to 43 and 50 to 55. I then look forward to hearing from other noble Lords on non-government amendments in the group.
Before discussing the detail of the government amendments, it may be helpful for me to set them in context. Clause 12(1) would introduce new Section 100ZA into the Town and Country Planning Act 1990. This would provide the Secretary of State with a power to make regulations about what kind of conditions may or may not be imposed and in what circumstances.
Planning conditions, when used appropriately, can be an effective tool in ensuring we deliver sustainable development. However, there remain concerns that some local planning authorities are imposing conditions that do not meet the well-established policy tests in the National Planning Policy Framework: that conditions should be imposed only where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects. The purpose behind this power is to help remove costs and delays to the delivery of new development caused by the need to respond to unreasonable planning conditions.
The power will put on a statutory footing the national policy tests for conditions and, by reducing the number of unreasonable conditions imposed and which fail to meet the tests, help get more homes built more quickly once they have planning permission. I emphasise that in the exercise of this power, the Secretary of State must be satisfied that the regulations are appropriate for the purpose of ensuring that any condition imposed on a grant of planning permission for the development of land is, in broad terms, necessary, relevant, precise and reasonable. This will not impact on appropriate protections for important matters such as heritage, ecology and flood mitigation.
As drafted, Clause 12 allows the Secretary of State to exercise this power in respect of any grant of planning permission. This includes planning permission granted not just for a single planning application for a specific scheme, but by an order, which could be granted by the Secretary of State, the Mayor of London, local authorities or neighbourhood planning groups. Development orders can grant planning permission for a particular site or geographical area and for a variety of specified types of development. In the light of responses to the Government’s consultation on this new power, to which a response was published at the end of December last year, we have concluded that it is generally not appropriate to apply this power where planning permission is not granted following the consideration of an individual application in certain circumstances. We therefore seek to amend the clause.
The amendment would restrict new Section 100ZA from applying to order-making powers. Development orders are not granted following an individual application and often grant planning permission to an area. They therefore may need to impose a number of limitations. It is important that a local planning authority or the Secretary of State can set out in an order those conditions that frame the type of development that would be acceptable. This can include a condition that the development, including the change of use, is completed within three years. Such a condition may be unreasonable when imposed following the consideration of a planning application, but not in the very different exercise of granting planning permission by order.
Given this, and in the light of the consultation responses on this issue, we have concluded that the new power to limit conditions should not apply to orders. Consequently, should the amendment be approved, the power will not apply to grants of planning permission in the following: development orders, simplified planning zones, enterprise zones, and development control procedures—that is, where government authorisation is required. This will retain the core benefit of the power in ensuring that planning conditions are imposed only when necessary, while protecting the flexibility afforded to grant planning permissions by these powers. With these arguments in mind, I therefore beg to move the amendment.
Baroness Parminter (LD)
My Lords, I have Amendment 38 in this string of amendments. With one in six homes at risk at present, it is quite clear that homes need to be built which protect residents from increasing flood risk. I have put down this amendment because I noted that the Government, both on Report and in Committee in the Commons, were remarkably un-keen to delete this clause, so my thinking is that there is more than one way to skin a cat. If one feels as I do about the issue of flood risk, there is perhaps the potential for exemptions. I have tabled this amendment because all the evidence from around the UK shows that we need drainage standards and designs for drainage to be agreed up front. If they are not, it is not good for the housebuilder or the local authority, and it is certainly not good for the home owner.
In Scotland there is a legal requirement to have sustainable drainage on any development, but developers are not obliged to engage with Scottish Water on the design and building up front. This results in housebuilders producing their own designs, which Scottish Water then has issues with. The result is that 90% of these drainage systems are not adopted by Scottish Water. In Wales, however, developers have to have an agreement with the sewerage undertakers on a specific design before they start on-site. This system works and does not hold up developments. This shows that the designs for sewerage and sustainable drainage need to be settled at the beginning of the process, and local authorities need the powers to enable that to happen. If the prohibition on local authorities imposing pre-commencement conditions goes ahead, that cannot happen. What then will happen is that developers will not be certain about the drainage, the adoption or the maintenance, there will be commuted sum disagreements, developers will in all likelihood put the arrangements into a private company with no quality assurance on the drainage—it will probably end up being a tank somewhere in the ground rather than a scheme that enhances the environment or the area for the homeowner—and future flooding issues will be left for the local authority and the homeowner to pick up.
The Government have given us no evidence that there is a problem. The examples the Minister sent round in the letter to noble Lords were just a series of quotes, mainly from the annual reports from the housebuilders. I have gone through the government consultation and there is no indication of the scale of the so-called problem, and no single citing of a concrete example. It is therefore no surprise that only a minority—44%—of those who undertook the government consultation supported the proposal to prohibit local authorities from imposing pre-commencement conditions. Therefore, there is not majority support from the Government’s consultation for this measure to go ahead.
Of course, planning conditions imposed by local planning authorities should be reasonable and necessary. However, as the Government themselves said on 24 January in response to the EFRA Committee’s report on flood prevention,
“the robust planning approach in place is the best way to control development so that it does not add to flood risk”.
As such, pre-commencement conditions should be seen as a positive tool to deliver this, as well as to ensure that permission can be granted.
To be blunt, this approach is also putting the cart before the horse. After a battle with noble Lords, Clause 171 of the Housing and Planning Act requires the Government to review planning law on policy relating to sustainable drainage in England. That review by DCLG and Defra is currently under way and is due for completion by April. At this point I must say that I am grateful to the Minister for the offer of a meeting on that issue, which I understand is now scheduled for later this week.
The Government have provided no real evidence that there is a problem. Evidence from Scotland and Wales shows that we need to ensure that flooding conditions are settled up front, and there is a real risk here of pre-empting any decisions following the Government’s own review, which we are expecting in the next few months. On that basis, it is absolutely essential that the Government address the issue, and if they will not go as far as removing the whole clause, they should make exemptions for important issues such as dealing with flood risk; otherwise, we will be putting home owners of the future in real danger.
Lord Kennedy of Southwark (Lab)
My Lords, I will make my usual declarations as we start this the third day in Committee on the Neighbourhood Planning Bill. I am an elected councillor in the London Borough of Lewisham and a vice-president of the Local Government Association.
This first group of amendments is concerned with Clause 12 and Schedule 3. Government Amendments 28, 35, 40 and 42 all seek to add the word “relevant” before “grant of planning permission”. Perhaps the noble Lord can tell us a little more about why this is deemed necessary and it was not in the Bill in the first place. All the amendments tabled by myself and my noble friend Lord Beecham, who will be with us later—he is attending a funeral at the moment—are probing in nature. They seek to understand the Government’s thinking so that we can be clearer on the objectives, challenge the Government and provide alternative solutions.
Amendment 29 tabled in my name and that of my noble friend seeks to put in the Bill a provision for the Secretary of State to allow local planning authorities to make exceptions to the power being taken by the Government in Clause 12(1)(a) to (c). It is becoming clear how inappropriately named this Bill is—it is a complete misnomer. In this clause the Government are again taking more powers to order local authorities to do things. I can see nothing “localist” about that and nothing that supports neighbourhood planning in any way, so Amendment 29 would allow in a small way some discretion for local planning authorities to make exceptions. But of course, the clause is in the Bill because the Government believe that local planning authorities are holding up the planning process with lots of irrelevant conditions. As I have said many times before, I am a member of a planning committee and I have never had a developer come before the committee and say, “The conditions you are attempting to impose on us are holding up the development”. I agree with the noble Baroness, Lady Parminter, that the Government have provided no evidence for this whatever. It is just not the case, and if there are delays, the Government should be looking at how local government can recover the full costs of its fees so that it can afford more resources in its planning departments.
Amendment 31 seeks to remove lines 37 and 38 on page 10 of the Bill. This extraordinary provision again seeks to give additional powers to the Secretary of State. Amendment 21 seeks to add two specific points which are important, in that account should be taken of the public interest and the sustainability of any development. I hope that all noble Lords agree that these are important considerations in making regulations and therefore should be included. Amendment 33 seeks to amend the Bill so that consultation should include local authorities. I am sure the Minister will tell us that of course the Government intend to consult local authorities, and I will be pleased to hear that, but it would be useful if he set out on the record clearly and specifically whom they intend to consult, because leaving it to chance, very broad and off the record is not the best way to ensure that the relevant bodies and organisations can come forward with their views.
These proposals also need some kind of appeals process built into them. This taking of new powers is a considerable step forward on the Government’s part, and an appeals process would allow a local authority to make its case by bringing in relevant local factors, hence my tabling Amendment 34. Amendments 36 and 37 address the need to seek a bridging agreement to pre-commencement conditions. This is a controversial part of the Bill and we are seeking to delete the provision or, if it remains, a way of dealing with the situation when agreement cannot be reached. A determination through a mediation process may be a way forward. As noble Lords will know, mediation is of course an established way to resolve problems. Again, it would be useful if the Minister told us today what he envisions will happen when the authority and the developer cannot reach agreement.
Lord True (Con)
My Lords, I first declare an interest as leader of a local authority—a London borough council. I must apologise to my noble friend the Minister and to other Members of the Committee. I was unable to take part in Second Reading because we had a full council meeting that day and I could not stay until the end of proceedings. I am also afraid that when the Bill was in Committee last week, I was abroad on an unbreakable work engagement and so was unable to take part in the first two days. However, I have read the debate carefully and rise to speak with due humility. Having read the proceedings, I hope my noble friend Lady Cumberlege will not be disinclined to intervene—I enjoyed reading a large number of her interventions.
I say to the Committee how grateful I am to my noble friend the Minister for his openness and, through him, the willingness of his officials to discuss difficult issues. That needs to be put on record immediately. As my noble friend knows, I am a little concerned about where these proposals are intended to go—we could be bringing out a Dreadnought to deal with problems on the local public pond which, frankly, could be sorted out. I am grateful for the elucidation that my noble friend set out, but we need to understand a good bit more about how these regulations might work. For example, there is a requirement that the applicant must give written consent agreement. How many pages of regulations will there be to say in what terms that will be? Will it have to be legally sanctioned? When will it have to be delivered, et cetera? It says also that the Secretary of State must carry out a public consultation before an order is made. How long will that take? With whom will it be? Will it be in an individual area or across the nation?
We all want to get development going more quickly. But my concern is that, in some circumstances—perhaps the noble Baroness opposite pointed to one when she talked about fear of flooding—pre-commencement conditions actually enable development to happen more quickly and with more consent, rather than, as is assumed, every council necessarily trying all the time to deter. I want to look very carefully at the detail of these proposals.
I am puzzled by the statement in subsection (2)(a) of the new section, to which the noble Lord opposite has referred, that the condition must be,
“necessary to make the development acceptable in planning terms”.
Make it acceptable to whom—to the local community, to the neighbourhood, to the people who will be affected or to the planning inspectorate in Bristol?
On the other hand, I cannot follow the noble Lord opposite—even though I understand where he is coming from—in proposing in his Amendment 37 setting up a mediation process. I spoke about this on the previous planning legislation we had before us, in which the Government set up a sort of national arbitration service concept. If one does not define this very closely, there is a risk that everything would automatically go to some sort of statutory arbitrator. That in itself could also clog up the system. With all the good will in the world, it may be that the amendment in the name of the noble Lord opposite is as guilty of causing potential obstacles as overregulation would.
I am not going to support any proposal that this provision be struck out—I see there is an amendment to that effect. I understand the Government’s concern to get development but we have not seen enough evidence. Between now and Report, and perhaps when my noble friend replies, we might get to understand a little better where and when the steel of a Dreadnought will be seen emerging from the department. I am a passionate localist: so much in recent planning legislation is about centralism and making things harder in the guise of getting development. I do not accept the view that local authorities are always against development. I look forward to hearing more from my noble friend, today and between now and Report, on the justification for these proposals.
Lord Shipley (LD)
My Lords, I have serious concerns about Clause 12, particularly about subsections (2), (5) and (6) in new Section 100ZA on pages 10 and 11. The Government are going to have to rethink this very carefully because, as it stands, Clause 12 will cause more problems than it solves. We have heard many reasons for this, but I will go further. What discussions have been held with the Royal Town Planning Institute? I ask the Minister that because it has sent a briefing on the Bill which states, broadly speaking, that there are advantages to pre-commencement planning conditions:
“These have certain advantages to applicants who may not be in a position to finalise details of a scheme but wish to secure a planning permission as soon as possible. They have advantages to local authorities because councils may have in practice limited legal ability to enforce conditions once a scheme is underway. Conditions are useful to the development industry in general because they enable schemes to be permitted which otherwise might have to be refused”.
If they were refused it would take longer and, as the noble Lord, Lord True, said, you may get faster and better planning decisions as a consequence of having pre-commencement conditions. Refusal of planning permission should, in general, be avoided because of all the complexities which are then introduced.
In telling the Committee what discussions the Government have had with the Royal Town Planning Institute, will the Minister explain what consideration they have given to the 15th report of the Delegated Powers and Regulatory Reform Committee, which was written substantially on the subject of Clause 12? It points out that,
“the national policy framework confirms that planning conditions should only be imposed where they meet six tests. They must be: necessary; relevant to planning; relevant to the development to be permitted; enforceable; precise and reasonable in all other respects”.
So that already exists within the National Planning Policy Framework.
Paragraph 12 of the DPRRC report states that,
“the Government want to take this power because ‘there is evidence that some local planning authorities are imposing unnecessary and inappropriate planning conditions which do not meet the tests in national policy, resulting in delays to the delivery of new development’”.
There may well be such examples. If they do not meet the six tests, there is already a legal statutory requirement to demonstrate that the six tests are applied. But in paragraph 26 of the report, the DPRRC asked for,
“specific examples of pre-commencement conditions to help us understand the effect of subsection (5)”—
which my noble friend Lady Parminter talked about—because:
“None appeared to be included in the explanatory material accompanying the Bill”.
The committee had to ask the DCLG to provide a list of,
“details that developers have had to provide to local planning authorities before building works could begin”.
There are nine things on that list. With my long experience in local government, I can see a very good case for all nine of them. I will come back to this, with some practical examples of what goes wrong if you do not have pre-commencement planning conditions. But when I read that,
“installation of superfast broadband infrastructure”,
is not deemed to be required as a pre-commencement condition, I think this is wrong. We ought to have agreement on superfast broadband infrastructure, since within the next few years every part of the country is going to have it.
I will say more about this issue when we debate whether the clause should stand part of the Bill, but it seems to me that if that is the extent of the problem, the things listed are not in themselves significant problems. I am really starting to think that Clause 12 is not a good clause. We will look at this further on Report, but at present I have to say that this clause will cause more problems than it solves.
Baroness Andrews (Lab)
My Lords, I will follow the noble Lord, Lord Shipley, in his masterly demolition of Clause 12. My first point concerns the notion of relevance. Clearly, the committee really struggled with notions of relevance and found itself quoting, in paragraph 13, the memorandum, which illustrated,
“examples of the types of condition that the proposed power would prohibit. They include: ‘those which may unreasonably impact on the deliverability of a development, those which place unjustifiable and disproportionate financial burdens on an applicant, or those which duplicate requirements to comply with other statutory regimes’”.
That could probably cover every single impact of every aspect of development. These are vague and general in the extreme, so no wonder the important conclusion of the committee was that it would be,
“inappropriate for the Government to be given a power which could be used to go well beyond the stated aims of the Bill”.
Were these regulations to be enacted, the committee recommended that,
“the affirmative procedure should apply to the exercise of the powers”.
Do the Government agree that if this clause stands, the affirmative procedure will indeed be adopted?
The Delegated Powers Committee, on which I had the honour to serve for many years, does not make such recommendations lightly. This is a very serious indictment and a very serious conclusion. Do the Government intend to accept that the affirmative procedure should apply in this case?
Lord Judd (Lab)
My Lords, I find these amendments very important and significant. If we are going to tackle the issue of regulation, it is terribly important that we get it right and that we tackle the real problems, not just theoretical problems or those identified by people who are discussing the issues at a rather remote level.
Let me be very direct: I live five miles outside Cockermouth, in the Lorton Valley. There is a tremendous debate going on at the moment about development in Cockermouth. It is not about whether the houses being built are liable to flooding; that is an issue, but it does not seem that they will be. However, people who have suffered terrible flooding experiences more than once in recent years now say that there is a risk that what is being done will contribute to the flooding of other people’s homes, because the drainage arrangements necessary for the number of houses being built are inadequate. This is a real issue and in our approach to it, we need to be careful and the Government need to take the points raised in these amendments seriously. This is affecting people now, and there is real anxiety. That anxiety is accentuated because in Cockermouth and the surrounding area, people are not convinced that the arrangements being made will prevent the repetition of flooding in future years. A great building programme is going ahead before the people directly affected have been assured that arrangements are in hand to meet the challenges that have arisen.
The issues raised this afternoon are crucial. I hope the Government will think hard about whether the clause is necessary and, if they are determined to go ahead with it, ensure that it meets the real issues that are affecting real people in real situations.
Baroness Hodgson of Abinger (Con)
My Lords, I speak with humility because I am not an expert in planning, but I do so because of the concern that this clause does not support the agenda of localism. My understanding is that if this clause stands, building may start before details have been agreed. Will my noble friend tell us what provision there is for local people to object to building once it commences? It seems to me that once building starts it is very hard to stop it rolling on and for local people to really have any input into whether it is acceptable. I also understand that pre-commencement conditions are one way to ensure appropriate design and quality, and that buildings are put in the right places. We have heard about drainage and flooding, but there is also the issue of whether these conditions enhance their local communities. I am concerned that this clause appears to load the dice against what local people may wish and I do not feel this is what we were elected for on our agenda of localism.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who participated in the discussion and debate on these non-government amendments—specifically my noble friends Lord True and Lady Hodgson, the noble Lords, Lord Kennedy, Lord Shipley and Lord Judd, and the noble Baronesses, Lady Parminter and Lady Andrews.
Before I address each of the amendments tabled by the noble Lords, I will make some generalised points about the position regarding pre-commencement conditions. The absence of pre-commencement conditions does not mean that one can start work automatically. The pre-commencement conditions, once agreed—or if there are none—enable the developer, for example, to raise finance and perhaps to put a construction team together with the security of knowing that he is likely to have permission, but it does not mean that the work will begin. Nor do the provisions of Clause 12 prevent local authorities with gumption—which is most of them, and many noble Lords here represent them—from agreeing conditions. It absolutely provides that conditions can be reached by agreement with the developers and this is what would happen in many cases. We make it absolutely clear that this is not preventing agreement between the parties, which I am sure would happen in the vast majority of cases.
Let me deal with the amendments in numerical order, if I may, so that I do not come to that of the noble Baroness, Lady Parminter, until later. I note that Amendment 29 was also tabled in Committee in the other place. The explanatory statement accompanying it explained that the intention, which was also made clear by the noble Lord, is to ensure a local voice in judging local circumstances and the impact of planning decisions. This intention is admirable, and it is absolutely the Government’s aim that the planning system remains centred on community involvement.
Subsection (1) is about ensuring that the well-established policy tests for conditions are adhered to. The proposed power for the Secretary of State to prescribe what kind of conditions may or may not be imposed, and in what circumstances, may only be exercised as provided by subsection (2) where such provision is appropriate for the purposes of ensuring any conditions imposed meet the policy tests in the National Planning Policy Framework. Those tests are reflected in the wording of subsections 2(a) to (d) of new Section 100ZA, which means that the Secretary of State can only use this proposed regulation-making power to ensure that any condition imposed on a grant of planning permission seeks to make the development acceptable in planning terms—in other words, that it is consistent with the National Planning Policy Framework —is relevant to the development and to planning considerations generally; is sufficiently precise to make it capable of being complied with and enforced; and is reasonable in all other respects. In other words, the Secretary of State may make provision in regulations only if such provisions are in pursuit of those policy tests.
For example, as set out in the Government’s consultation on these measures, we are considering prohibiting conditions that planning guidance already advises local planning authorities should not be imposed. These include conditions which unreasonably impact on the deliverability of a development, such as disproportionate financial burdens; which require the development to be carried out in its entirety; and which reserve outline application details. The Government have no intention of using this power to prohibit the use of any reasonable and necessary conditions that a local authority might seek to impose to achieve sustainable development in accordance with the National Planning Policy Framework, including conditions relating to important matters such as archaeology and the natural environment. The Government believe it would be detrimental to the planning process for regulations made under new Section 100ZA(1) to provide for local authorities to make exceptions to the prohibition of the use of certain conditions. To do so would create uncertainty for applicants and additional bureaucracy.
In fact, during our consultation on this measure, local authorities agreed overwhelmingly that conditions should be imposed only if they passed each of the national policy tests. As an assurance for local authorities and other interested parties, subsection (3) of new Section 100ZA includes a requirement to carry out a public consultation before making regulations under subsection (1). It is fairly clear what a public consultation is, and if a national condition is being talked of you would expect a condition on a national basis. If it is more localised—one cannot generalise: cases may differ; they will not all be the same—it will be dealt with according to the law regarding public consultations. I may write to noble Lords to reassure them on how that issue will be addressed, but the Bill makes it clear that, in talking of a public consultation, there is no intention to make this exclusive, and the local authorities will certainly be involved. That will afford the opportunity for local views to be put forward as part of the process of determining how the power will be exercised.
Lord Kennedy of Southwark
Perhaps the Minister is going to deal with this issue later, but nobody here, including me, wants to impose a single unnecessary condition on any planning application. I would not do that, and nor would other noble Lords present. However, the Minister seems to be describing quite a bureaucratic process for the local planning authority, and I wonder whether he is creating more of a problem than the one he seeks to solve. What we have yet to hear from him is the list of all these councils and planning committees throughout the country that are creating all these conditions. I do not know where they are, and if this measure is so needed, I hope he will give us an extensive list of all the offenders and what they are doing. We have yet to hear that from the Minister or any of his colleagues.
Lord Bourne of Aberystwyth
My Lords, I have covered only one amendment so far. I appreciate that the noble Lord is making a central point and I will seek to respond to it, and if there are other points that he wants to bring up towards the end of our consideration, I will be happy to deal with them.
On Amendment 31, I recognise that there are concerns around the impact on sustainable development, which is evidenced by the fact that this amendment was also put forward in Committee in the other place. However, I need to be explicitly clear that the clause is not aimed at conditions that are necessary to achieve sustainable development. I reassure the noble Lord that appropriate protections for important matters such as heritage, the natural environment and measures to mitigate the risk of flooding will be maintained. If the planning authority in question is unable to come to an agreement with the developer it is obviously the case, just as it is now, that planning permission will not be granted. What we are seeking to do is bear down on those conditions that we think are not appropriate and do not need protection.
It may help noble Lords if I give some background to the same issue when it was raised in Committee in the other place by Roberta Blackman-Woods MP, the honourable Member for the City of Durham, who was concerned about a situation where a condition prohibited by the Secretary of State makes the development acceptable in planning terms but makes it unacceptable in social, economic or environmental terms. The purpose of the planning system as set out in the National Planning Policy Framework is to contribute to the achievement of sustainable development. Sustainable development is recognised as being comprised of three distinct dimensions: economic, social and environmental. Each of these aspects is capable of being material in a planning decision. This amendment would remove a key element of new Section 100ZA(2) which ensures that the Secretary of State can make regulations only under subsection (1) in order to ensure that any conditions imposed are necessary to make development acceptable in planning terms. Subsection (2) is important as it constrains the power in subsection (1) so that it can be used only to ensure that any conditions imposed meet the well-established policy tests for conditions in the National Planning Policy Framework. To recap, paragraph 206 of the framework states:
“Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects”.
This, as well as subsections (2)(b) to (d) are key safeguards to ensuring compliance with the policy tests, and I therefore believe that the amendment could run contrary to the noble Lord’s intention.
In addition, if by removing subsection (2)(a) noble Lords are seeking to ensure that conditions cannot be overlooked because they are unacceptable for other reasons, the existing drafting of subsection (2)(d) already adequately provides for this in its requirement for conditions to be reasonable in all other respects. Finally, as noble Lords are aware, before making regulations under subsection (1), as I have said, we are required to carry out a public consultation as set out in subsection (3). I appreciate the point made by my noble friend Lord True and others that perhaps it would be of assistance if I set out in a letter following today’s Committee session exactly how we expect the public consultation to play out, but it will give anyone with an interest an opportunity to be heard and for their views to be considered.
Lord Stunell (LD)
I wonder if either in that letter or perhaps in another one the Minister could set out to what extent the provisions of Clause 12 are or are not simply putting the National Planning Policy Framework on a statutory footing. Could he also set out whether to any extent it either goes beyond the framework or reduces from it?
Lord Bourne of Aberystwyth
I thank the noble Lord, Lord Stunell, for that intervention. Obviously the National Planning Policy Framework stands independently from the Bill and I do not believe that any cross-reference is made in the legislation to the framework, but of course all planning decisions have to be made in accordance with it. I will deal with the point in the letter I will send round, but I think that all of the points which have been raised are covered in the National Planning Policy Framework as far as the Government are concerned and as far as the legislation allows.
Baroness Parminter
I am sorry to question the Minister, but can he confirm that in that consultation only 44% supported going ahead with the proposals? If so, that is a clear minority.
Lord Bourne of Aberystwyth
From memory, I think that the noble Baroness is correct, although that is a majority of those who have a view—there were quite a few who ticked “don’t know”. As I have indicated, it was a majority—admittedly a bare majority—of those who gave a view: more than half offered either complete support or supported the principle. However, I will make sure that a link to that document is available for noble Lords.
I assure noble Lords that I recognise the intention of Amendment 37. We of course have to make sure that where agreements cannot be reached, a sensible solution can be found. However, there are a number of reasons why a dedicated mediation system, as proposed by the noble Lord, Lord Kennedy, is not necessary and, indeed, may be counterproductive. As I have made clear, Clause 12 builds on best practice as set out in our planning practice guidance, which states that applicants and local authorities should engage at the earliest possible stage to come to an agreement on the conditions to be applied on a grant of planning permission. I am sure all noble Lords recognise and appreciate the importance of early and sustained engagement to help facilitate a constructive dialogue on the use of conditions. Let me hasten to underline that that is, I think, what happens in the vast majority of cases. The measures here will help to ensure that this takes place.
Existing routes are available to both local authorities and applicants in the unlikely event that there is disagreement on the conditions proposed. If a developer refuses to agree with a particular condition and the local authority deems it necessary, having considered it against the criteria set out in the National Planning Policy Framework, the authority can, and indeed should, refuse to grant planning permission. Nothing could be clearer, and that is the position the Government wish to stress. That is the intention of the legislation going forward; it is not to alter the basic provision that decisions are reached locally. Provided that they are in conformity with the National Planning Policy Framework, it is appropriate that, if the local authority cannot agree with the developer and there are relevant considerations in the framework, it should turn down the application.
At present, applicants would still have the ability to appeal to the Secretary of State against a decision to grant planning permission which is subject to conditions that they disagree with. Further to this, we consulted on our proposal to specify a default period after which the agreement of the applicant would be deemed to be given. Following the response to this consultation, we are of the view that it would be appropriate to introduce a 10-working-day default period. This could also act as a further incentive for parties to engage earlier in the process and discuss conditions that may be imposed on a grant of planning permission. We must acknowledge that adding a further formal step in the process by way of mediation could cause delays—here I find myself in agreement with my noble friend Lord True. In addition, it could actually discourage effective discussions between applicants and local authorities, who may simply wait, knowing that there is the safety net—as they may see it—of the mediation route as an alternative to meaningful engagement at an earlier stage. I hope noble Lords agree that encouraging local authorities and developers to work together to overcome any barriers to delivering the homes that the country needs is the most important step.
Lord True
My Lords, I will briefly intervene—it will be brief because I am enormously grateful for the very full answer given by my noble friend. I am grateful for what he said about clarifying “public consultation” and I agree with a number of things he said.
This point was made by others on the first day in Committee, and I will not go over it again, but this is a Neighbourhood Planning Bill. It is about getting things built, but built with consent, which is the trick one has to take. My concern is if a developer says, “I am not agreeing to any conditions of that sort—you can us refuse permission and we will see you in Bristol”. That is not empowering local people in any way. As my noble friend Lady Hodgson said, the risk is that that will happen, because if the developer decides that it does not want to agree, it is almost fast-tracked to the inspector whatever the local authority does, and that is not necessarily building consent into the system.
Perhaps the Government can wrestle with this point over the next few weeks. There really does not have to be any form of incentive in the law for responsible developers not to co-operate. For example, many local authorities have to deal with developers which have not discharged previous planning conditions—they have just ignored them and nothing is done. Someone comes along and says, “I am going to build here”. You see these people and say, “You have not discharged your previous conditions, so let us write something in here to make sure that you are okay this time”. They then say, “We are not agreeing, we are not signing on there”, so it goes through, but does the inspector always take account? I beg my noble friend, as he considers these things further, not to rig the system too far.
The second cautionary thing I would say, having listened very carefully to what my noble friend said about the phrase “acceptable in planning terms”—which does trouble me—is that I understand from my noble friend that the Government cannot rock along and say, “We’ll have a 24-hour casino on that site, thank you very much”, and that it is about restricting the proposed ambit of the planning. This seems eminently justiciable because it does not refer to the national framework at all, as my noble friend pointed out. So if a little local campaign group is armed with a neighbourhood plan or the local development plan, and the Government come in and say, “We are putting forward this regulation to make it acceptable in planning terms and, by the way, by that we mean the NPPF”, the Little Ditchcombe Action Group might say, “It is not acceptable in planning terms, or in accordance with what we have in the neighbourhood plan that we have agreed, or what has been put in the local development plan”, and you could find yourself in the courts—I do not mean my noble friend in particular.
We need to be very careful about how this phrase is defined—many a lawyer and many a judge would have a high old time and earn a few bob in deciding what that phrase means. It is only the second cautionary thing I would say and I very much welcome the spirit and terms of the clause. I accept the way in which my noble friend said that the Government were coming at it, but they need to be careful. There should not be too many more eggs in the developer’s basket and there should be as much definition as possible—please—before Report. With that, I will stop detaining the Committee.
Lord Kennedy of Southwark
My Lords, I agree with almost everything the noble Lord, Lord True, has just said. I thank the Minister for his very full response, which is much appreciated. I agree with him—I do not want any conditions imposed, including those he termed “necessary”, “relevant”, “enforceable”, or “reasonable”. I think everybody in the Committee will be in agreement with that—there is no problem there whatever. He also said that these pre-commencement conditions are not necessary. That is good to hear, but I worry that at the end of the day this will all be either so vague that it will not make any difference or so detailed that it will threaten sustainable development. I am not clear about what I have heard from the Minister. I hope he will respond to us in his letter about where we are going because I certainly want to see development take place that is sustainable, that we learn from the lessons of the past and that we get things built properly.
I may have misheard him, but will these discussions between the planning authority and a developer or an applicant take 10 days—someone else may have said that—and if not, how long should that go on for? He is determined but, as the noble Lord, Lord True, said, the risk is that nothing is agreed and that everything goes straight off to the appeals process. That is not delivering development by consent—certainly not sustainable development and not development that is in accordance with the local neighbourhood plan, or the local development plan. I live in London, as the noble Lord, Lord True, does. Certainly, in my own ward we are developing a neighbourhood plan and we are putting hours and hours of work into that. It seems daft that if we agree something, we could then find it all just pushed to one side. I do not know what the Minister can say now, but I certainly look forward to seeing his letter.
In a moment we will debate whether Clause 12 should stand part of the Bill. I look forward to the Minister’s letter because we have still not had the list of rogue authorities. At the moment, I am convinced that the clause is a sledgehammer to crack a nut. We have had one or two problems with plugs and things but these are not massive. If there were these problems, the noble Lord would have listed them in his contribution; maybe they will be in his letter, which I look forward to.
Lord Bourne of Aberystwyth
My Lords, I thank my noble friend Lord True for his response. Yes, it is the intention of the Government and I think we have demonstrated that we are keen on consensus in this area. We want to give power to neighbourhood planning; that is the essence of this legislation. However, we do not want to hamper developers and, therefore, housebuilding—which is central to all our aims—with unnecessary pre-commencement conditions. As I have indicated, it is absolutely right that these conditions can, and in many cases should, be agreed between an applicant and the authority. But we do not want to prescribe from the centre situations where this has to be the case. I will seek to enlarge on that in the letter I am writing. I will also, in relation to the plea from the noble Lord, Lord Kennedy, seek to give further evidence of the unreasonableness of some pre-commencement conditions, because that lies at the root of why we are seeking to bring in these powers. I ask noble Lords not to move their amendments.
Lord Kennedy of Southwark
My Lords, I oppose Clause 12 standing part of the Bill. We have just heard how controversial this clause is. It is nothing to do with neighbourhood planning; it is all about the Secretary of State and the Government taking additional powers at the centre and issuing instructions to local authorities. Nothing I heard in the previous debate changed my mind on that. What lies at the heart of all this? It is a misguided notion that planning departments and planning committees—local authorities—are holding up development, not approving applications and generally being the root of the problem. That is nonsense. As I said before, I have served on a planning committee for many years and our planning department is certainly not sitting there deliberately not approving developments. The Committee has still not been given the evidence of all these problems; we await the letter.
No noble Lord present would dispute that we have a glut of planning permissions already approved in certain parts of the country. This is certainly the case in London and the south-east. I can walk around Lewisham, where I live, and see many applications that I have approved as a member of the committee and very little has happened. Once, in my own ward, nothing happened except a sign going up saying, “Permission to build x houses”.
We do have a problem with land-banking—people holding on to land, looking at its value but not moving forward. Again, I have never known a developer come forward to any committee I have sat on, either in Lewisham or when I was a member of Southwark Council, to suggest that the conditions the council was seeking to impose were somehow going to hold up its development. It was never suggested, in either authority, that we were a hindrance to development. I just do not see that that is the problem that the Government suggest it is. I contend further that some conditions can be positive in enabling things to get under way and agreed quickly, with the local authority and the developer or builder concerned moving forward in a collaborative way.
Baroness Parminter
My Lords, I gave notice of my intention to oppose Clause 12 and I support the words of the noble Lord, Lord Kennedy. Indeed, the response from the Minister to what I thought was a reasonable proposal to bring forward an exemption for conditions that are clearly reasonable has strengthened my resolve to support any move to delete the whole clause.
The reasons for that are twofold. I do not want to repeat what I said earlier, but one thing pre-commencement conditions do is overcome the situation at the moment whereby developers are paying the cost when it comes to pre-commencement conditions but the benefits are borne by other people—normally the local community or the environment, or through biodiversity benefits. Without pre-commencement conditions, of course the developer will say, “We don’t want to bear these costs”. Pre-commencement conditions account for those benefits—those externalities—and allow local planning authorities to ensure that those benefits that accrue to others can be accounted for.
In the Minister’s letter on what the unreasonable pre-commencement conditions are, will he also include a list of what are, in his mind, reasonable conditions? It seems to me that drainage is very much a reasonable condition, given that the benefits are accrued by home owners and the community but the costs are borne by the developer.
The second reason I am now more minded to support the opposition to Clause 12 builds on the point made by the noble Lord, Lord True. The Minister says that we will want local authorities, if they have the gumption, to turn these applications down. But let us consider a housing application for, say, 20 homes in a rural area. Let us say that a fairly reasonable, as I would see it, pre-commencement condition is attached for sustainable draining solutions but the developer does not agree. Those houses have agreement in the local plan and the neighbourhood plan. Is the Minister saying that this Government want local authorities to turn down applications that have the support of the local plan and the neighbourhood plan because they cannot get agreement on a perfectly reasonable proposal —in this case for drainage—that is part of a pre-commencement condition? That is what the Minister said. This is the nuclear option. If the local authority does not get agreement from the developer for sustainable drainage systems, the only option it has is to turn it down. That will increase delays and conflict in the system, which the Bill is rightly trying to stop. If we want to build homes, it seems to me that this nuclear option will not deliver what the Government want. Therefore, I support the proposal that Clause 12 should not stand part of the Bill.
Baroness Cumberlege (Con)
My Lords, I too oppose the question that Clause 12 stand part of the Bill. I have been tedious beyond endurance and I thank the Committee for its patience. At each stage I have tried very hard to ensure that there is a separation between the powers of the Secretary of State and the responsibilities of local authorities, working with their local communities. I share the deep concern of the Delegated Powers Committee, which the noble Baroness, Lady Andrews, and the noble Lord, Lord Shipley, mentioned. It has deep reservations. We must be careful not to brush away the work of that committee and the recommendations it makes, because it is the watchdog for our legislative processes and thoughts and what we bring forward. I was interested that my noble friend the Minister said that he will take real cognisance of what it has been saying and will try to meet those concerns.
One of the things that surprises me in all of this is that the legislation that the Neighbourhood Planning Bill is based on is the Localism Act. We know that this concept has been warmly welcomed by so many who have embraced neighbourhood plans, and we know that there are many more in the pipeline. In reply to an amendment last Tuesday, the Minister told the Committee that the Secretary of State’s,
“current policies for intervention strike the right balance between the national interest and local autonomy”.—[Official Report, 31/1/17; col. GC 176.]
I have to say that in my area the experience was to the contrary. There was no planning issue of national importance and yet the Secretary of State intervened, with devastating results.
However, I am encouraged by my noble friend’s reply to the noble Baroness, Lady Andrews, when the Committee met last Thursday. He quoted his honourable friend Gavin Barwell as having said that,
“as long as authorities have policies to address their strategic housing and other priorities, we want them to have more freedom in the type of plan that is most appropriate for their area. The Government have put local and neighbourhood plans at the heart of the planning system. We put local authorities and communities at the forefront of shaping a vision for their areas and deciding how to meet their development needs. The existing regime reflects the understanding that local planning authorities, together with local communities, are best placed to set out future development for their local area”.—[Official Report, 2/2/17; col. GC 261.]
I say amen to that. That is absolutely what we want. That is what we are trying to achieve through this Bill.
I have referred almost exclusively to the Secretary of State and sometimes the ministerial team. But this is not personal and I want to get on the record how much I appreciate my noble friend Lord Bourne’s approach to the handling of the Bill. He has said he will listen and—I have to say, with great patience—he has. He has said time and again, “We will work with noble Lords in an inclusive way”, and he has and is doing so. He has asked for positive engagement. We are willing. Like Barkis, we are more than willing. I sense my noble friend is also willing to negotiate worthwhile amendments to improve the Bill. I welcome that and I look forward to his useful amendments when we come to Report.
I turn to Clause 12 specifically. As I have previously said, seeking that a whole clause should not stand part of the Bill gives noble Lords an opportunity to see the clause as a whole. My concern with the totality of this clause is that, contrary to what I am trying to achieve and what my honourable friend Gavin Barwell has said in another place, it does nothing to separate the powers of the Secretary of State from the responsibilities of the local planning authorities. My noble friend Lord True, whom I thank for his kind comments, and the noble Lord, Lord Kennedy, said that the clause does not mention neighbourhood planning at all. In addition, the whole clause is about the Secretary of State’s determination to control the work of local planners. The tenor of this clause is therefore that the Secretary of State does not trust the people. He does not trust local planners, who know the area best.
New subsection (1) gives the Secretary of State unlimited powers to waive conditions that may be very inappropriate to particular areas and populations. Again, therefore, we see the heavy hand that continues through nine new subsections, and the point of the Bill is quietly buried; it has nothing to do with neighbourhood planning. Surely the imperative is for local planning authorities to deliver the strategic policies of the Secretary of State, but apparently that is not enough.
I very much respect people who are on local authorities at the moment. When I read about them and look at what they are doing, it seems that they are working their socks off to deliver what is needed. But apparently, this is not enough, and the Secretary of State says that he must come in and tell them what to do and how. Therefore, as the Minister is fully aware, in our area there is total disillusionment with the neighbourhood planning process and fury at the intervention—the interference—in the minutiae of local planning from above.
The Minister went through all the new subsections in Clause 12, and I thank him for his full explanation. However, he did not address the issue: why is this clause necessary? Why does the Secretary of State risk antagonising local planners on a whim, removing planning conditions? Why does this require intervention by the Secretary of State? Planning pre-commencement conditions are important. They ensure the quality of development and its empathy with the local area. The noble Baroness, Lady Parminter, put it so well, saying that this is the essence of planning.
I was involved in a case years ago, in which 171 identical houses were to be built along a snake-like road. We turned that down, fought appeals and won them. We now have a development that has open spaces and all sorts of different housing: bungalows, terraced housing, and detached four-bedroom houses. It is a lovely area, and so different to what it would have been like if we had agreed to the original application. Conditions are important, because those are the ones we put in and which we eventually managed to get.
It is therefore about the quality of development. I pay tribute to the forensic way the Minister took us through the different new subsections. However, it is not good enough. We are losing the whole principle of neighbourhood planning and localism. I very much look forward to the letter that my noble friend will send, and I sense that there is already some rethinking on how this clause and the new subsections need to be amended. However, I urge him to go further. Can he be brave, and in his letter give us some hope that this clause may be deleted altogether? It is irrelevant in the Bill.
Lord Shipley
My Lords, I have come to the conclusion that Clause 12 should be deleted from the Bill. I now see no grounds for it being continued with, because the evidence has not been satisfactorily produced. It comes down to this: developers want to build and sell houses, and residents want to enjoy living in them. Sometimes those two objectives are not compatible because builders can often not do what residents expected of them.
Lord Lansley (Con)
I apologise for interrupting the noble Lord, but I am confused. I thought the Committee was talking about pre-commencement planning conditions—which are required to be discharged before the building commences—not other conditions that may have to be complied with during the course of building.
Lord Shipley
I do not know whether the noble Lord has read paragraph 26 of the report of the Delegated Powers and Regulatory Reform Committee, but it says:
“We wanted to see some specific examples of pre-commencement conditions to help us understand the effect of subsection (5)”.
This was commented on by my noble friend Lady Parminter. The DCLG gave a list, setting out,
“details that developers have had to provide to local planning authorities before building works could begin”,
the first of which is,
“full details of a play area”.
I cannot see what the problem is with a builder telling the local planning authority where the play area will be and what will be on it. Secondly, there is a complaint—
Lord Lansley
It is not my job to defend what the DCLG is saying, but if that is treated as a pre-commencement planning condition then it would be objectionable. If it was simply a condition applied to the consent, to be pursued in the course of building, it would be perfectly okay.
Lord Shipley
As the noble Lord might understand, the problem is that once building has started it is much more difficult to get agreement on some of these details. The point that the Delegated Powers and Regulatory Reform Committee has drawn to our attention is that there is nothing to prevent a builder telling us what the full details of the play area are planned to be. Indeed, if I was buying the property I might want to know that, because I might have children who would be interested in using it.
The details of all lighting on the development, including siting, design and lux levels, are seen as unnecessary pre-commencement conditions. They are not. As I mentioned, the installation of superfast broadband infrastructure is central to a housing development. There are others. I noticed,
“the full details of soft landscaping”.
Yes please: these are important. When a developer has sold all the houses on a site, it is much more difficult to get the soft landscaping put in to the standard that it should be. Also,
“precise location of bin collection points for specific plots”,
is seen to be an unnecessary pre-commencement condition. If you are living there, it may be that no one told you that you would have to take your wheelie bin 50 metres to the collection point because the bin lorry cannot turn round. Some of these are real-life examples. We need to be very careful when criticising local planning authorities for having set conditions that they think matter.
Because this is based on the complaints of housebuilders, will the Minister, when he replies in the letter we will be sent, copy in the replies to the letter the department sent to all the local authorities about these complaints to get their view on whether they felt builders’ complaints were justified? I very much hope that the department has taken on board the views not just of builders, but of the local authorities concerned.
I do not wish to detain the Committee any further, but the case for Clause 12 is no longer proven. As things stand, I do not think this can form part of the Bill any longer.
Lord Lansley
First, I apologise to the Committee: like my noble friend I was unable to attend the Committee last Thursday because I was abroad, but last Tuesday, while noble Lords were meeting here, I chaired a workshop that the Cambridgeshire Development Forum —once again, I declare my position as its chair—held with planning officers from Cambridge City and South Cambs councils. It considered a wide range of issues. I thought it important to talk to planning officers directly, not least to inform some of my contributions to our debates.
I want to speak because built into the structure of Clause 12—I address my remarks in particular to new subsection (5)—is the intention that best practice should be consolidated in a way that is likely to help us in our objective of building more houses more successfully and more speedily. What it comes down to is this: my colleagues on the forum and I spent a lot of time last year finding out some ways the planning process could be improved. Of 30 areas this was just one—it was not necessarily even the most important one, but it was important. There was a recognition among those in the development sector locally that there are issues with the way planning conditions are constructed. Conditions are imposed that are often non-compliant with the test that they should be imposed only where they are necessary and relevant to planning and to the development to be permitted, and where they are enforceable, precise and reasonable. None of us wants to end up with unnecessary appeals because of excessive or inappropriate conditions. That delays everything and increases costs for everybody.
I am prompted also by the speech of the noble Lord, Lord Shipley. He talked about conditions generally. Here we are talking specifically about pre-commencement planning conditions. There is a considerable problem, which I can see in the evidence the Government have given, in that if one has too many unnecessary pre-commencement planning conditions, the risk is that the discharge of those conditions will add to the delay. In fact, when one asks developers, as I have, it is often the issues associated with the discharge of those conditions that create more problems for development than agreement to them in the first place.
However, best practice is very clear. Joint working is what everyone should aim at, so as to reach the point where the committee making the decision can see what the agreement between the developers, the applicants and the local planning authority is likely to look like. It is a necessary part of informing members of the character of the decision they should be making. What we do not want is to allow some of the things that inhibit best practice—arising, for example, from planning officers’ inexperience. It was made clear that inexperienced planning officers simply load in conditions because they think that is the way to cover their backs. Experienced planning officers get their conditions right in the first place, so we want to encourage a process in which experienced officers negotiate and agree conditions with applicants.
We want to encourage applicants, which this legislation would do, to take the initiative and propose draft conditions. Obviously, those conditions should in large measure be standard conditions, and the structure of the legislation will encourage the use of such conditions, which should expedite matters. It will also inhibit the prospect of some of kind of last-minute ambush in the committee, because the conditions must necessarily be agreed with the applicant or the application must be referred back. If they are not agreed they can be refused, so I am not sure I understand the argument that authorities would be hesitant about refusing an application where a pre-commencement planning condition has been sought that is supported by planning policy in the NPPF. Why would they not refuse it when it is their job to pursue the appropriate response to an application that does not meet those criteria?
Baroness Parminter
The noble Lord is challenging my view. There is a real risk that a local authority will not refuse an application for 20 homes in a rural area, to use the example I quoted earlier. It will have the approval of the local plan and the neighbourhood plan, but the sustainable drainage option proposal that it can get the developer’s agreement to is for a weak tank underneath the ground, whereas what it actually wants is a sustainable solution that will enhance the housing development in the way described by the noble Baroness, Lady Cumberlege—one that is to the long-term benefit of the area and will increase biodiversity. The developer will not agree to that; it will agree only to a tank under the ground, which is perfectly reasonable under the standards we have at the moment. The local authority might want to go that step further but it cannot. Should the entire application then be turned down—as I say, it has the approval of the local plan, the neighbourhood plan and local people—because the developer will not agree to the sustainable drainage option? That will increase the delay. Local authorities will not do this because of the risks. They will say, “Okay, we will accept the weaker proposals”.
Lord Lansley
The noble Baroness has constructed her own example, and I understand the point she is making. It seems to me that this legislation does not change the situation at all. At present, if it cannot agree the condition it is looking for with the applicants, it will refuse the application and the applicants will go to appeal. I do not see why on earth the situation will be any different after this legislation is introduced. To that extent, I do not see how the legislation causes any harm. On the contrary, it promotes on the part of the applicants the need to draft planning conditions with a view to seeking agreement. Moreover, this promotes not only best practice, as I said, but an expectation on the part of both the applicants and the local planning authority—both officers and members—that the conditions should be standard and/or drafted at the point at which the decision is made.
Another issue is conditions being drafted after the committee meeting has taken place, which can cause considerable delay. What new subsection (5) is driving towards is for best practice to be encapsulated in legislation and for there to be an expectation via a written agreement that the parties to the application and the local planning authority will get together and produce an agreement to put before the committee. That is entirely laudable and I am very sorry that Members of the Committee want to throw this rather important and useful baby out with the bathwater.
Lord True
My noble friend makes a strong point but I do not agree with him, I fear. I am not going to repeat the points I made on the previous amendment. The problem with new subsection (5) is that it effectively gives a veto to the developer and therefore a power, which may or may not be a good thing.
However, my noble friend made a good point in relation to, for example, a play area. We all understand that the wonderful civil servants who work for my noble friend are trying to do a reductio ad absurdum of what might happen, so they find a council that has said, “Oh yes, the play area has to have one of those spring things instead of a see-saw”. We all know that that would be ridiculous. Maybe it has happened. But there are things on that list, as the noble Lord, Lord Shipley, said, that are actually quite important and germane. Anyone who has been on a planning committee trying to secure development in suburban or rural areas will know that lighting is one of the most fiercely contested things that local residents care about most. It is also one of the most difficult things to control.
No doubt some things on that list are silly. Perhaps my own authority is one of the bad authorities. We have occasionally have had a run-in with the people who want to put in boxes for broadband, not because we are against it but because they come and say, “We want to bang this box right in front of a grade 1 listed building”, instead of agreeing to put it a little further down the road, and they rush off and have dinner with the Chancellor and the Chancellor says, “This is ridiculous. We must have legislation”. This is the way the world works. We all know that.
Somewhere in the middle of all this is a sensible via media. Saying that you cannot develop until you put a Big Ears statue in would be completely ridiculous. But some of these other things are best dealt with at an early stage. Drainage is obviously a good one, as are sustainability and lighting. The problem with this goes back to my analogy right at the start—the old Dreadnought thing. Time and again, we poor local authorities face legislation in the dock—always local authorities, never the statutory undertakings, never the builders with the land banks. Only the local authority is to blame because the local authority is perhaps trying to reflect some of the opinions of its local people by whom it is elected. We are always put in the dock and the Dreadnought is brought out to deal with the silly local authority which says, “I must have a Big Ears statue before I give any permission to 150 homes”. Of course the Government want to deal with that.
I have an open mind on this clause, as I said, although I hear what my noble friend Lady Cumberlege has said and I do care about neighbourhood planning. Surely there must be a way through that is not just nationalising this massive power to deliver for the exceptions that are causing problems. Surely it must be possible between now and Report, with the spirit that my noble friend the Minister has displayed, to find a way to give the Government a power to deal with the authority that wants Big Ears before there can be a development, without actually taking away the ability of local authorities and neighbourhoods to protect what they think is important and have development with consent. That is all I ask for. If Clause 12 can find a way to do that, let us look at it. At the moment, it does need amendment. We will see what happens between now and Report.
Lord Beecham (Lab)
My Lords, I apologise to the Committee for being absent during the discussion of the previous group, and the very beginning of this group. I am afraid I have had to return from a funeral; otherwise, what I am about to say now I would have said in the debate on Amendment 43A, to which I added my name.
As the Committee will recall, Amendment 43A reflects the recommendation of the Delegated Powers Committee in paragraph 22 of its recently produced report, which came out on 27 January, dealing with the way the Government propose to exercise the delegated powers contained in the Bill, as set out in a document published last December under the intriguing title Further Information on How the Government Intends to Exercise the Bill’s Delegated Powers. Five areas were identified in respect of which the intention is to rely on secondary legislation. For this afternoon’s purposes, we are of course dealing essentially with the planning conditions in Clause 12. However, there are other issues: Clauses 1 to 5 are on neighbourhood planning, Clauses 6 to 11 are on local development documents, Clause 13 is on the planning register and Clauses 14 to 36 are on compulsory purchase. Therefore, although the Delegated Powers Committee drew attention to a series of matters, today we are dealing with the relevant provisions under Clause 12, which I suspect is in any event probably one of the more controversial clauses.
As we have heard, the Bill vests the Secretary of State with powers by regulation to prevent authorities imposing particular types of planning conditions in any circumstances at all or only in particular circumstances, as prescribed by the Government, and to stipulate that no conditions at all are to be imposed on particular types of grants of permission. The Government’s explanation of this was that,
“there is evidence that some local planning authorities”—
number and identity not disclosed—
“are imposing unnecessary and inappropriate planning conditions which do not meet the tests in national policy, resulting in delays to the delivery of new development”.
It is of course interesting that the Government make no mention of the hundreds of thousands of houses for which planning permission has been given but of which not a brick has been laid. They concentrate only on other potential problems.
The Government have admitted that,
“the power to prescribe the circumstances where conditions may or may not be imposed and to set out the descriptions of such conditions is wide”.
They concede that, but conclude that a delegation is appropriate. The committee expressed concern that the power would,
“allow the Secretary of State to prescribe conditions in relation to any type of planning conditions when the key aims of the Bill are to facilitate the building of new homes”,
and expressed surprise that no reason for this was given. Some of us would argue that even in respect of new homes it goes too far, but to make it more general and part of any planning permission seems beyond the scope of what the Bill is supposed to be about.
The committee stated at paragraph 16:
“We consider it inappropriate for the Government to be given a power which could be used to go well beyond the stated aims of the Bill”,
and recommended that it should apply,
“only to planning conditions for housing developments”.
It went on to criticise the proposed replacement of the existing power to provide guidance discouraging the imposition of unreasonable conditions with a power to prohibit such conditions completely, without any opportunity for the relevant planning authority to justify those conditions. Furthermore, the Government have expressed their intention to exercise the Bill’s delegated powers, including draft regulations specifying five types of condition that will be prohibited. The committee points out that there would be,
“nothing to prevent the Secretary of State from using the new power to prohibit many more conditions”,
so we are not necessarily just being confined to five areas. This would give carte blanche to introduce further prohibitions in the future.
Unsurprisingly, and in common with so much legislation, including the Housing and Planning Act, which we spent so much time on last year—the fate of which may be somewhat altered, one hopes, by the housing White Paper that is about to emerge—the committee states that,
“the negative procedure is not an adequate level of Parliamentary scrutiny for the exercise of these new powers, which could substantially restrict the ability of local planning authorities to attach conditions to the grant of any type of planning permission”.
It recommends that the affirmative procedure should apply to proposed new Section 100ZA(1).
The committee goes on to express concerns in relation to proposed new Section 100ZA(5) to (7), which deal with pre-commencement conditions: the controversial provisions which forbid planning permission being subject to such conditions without—extraordinarily —the written consent of the applicant. That is a significant change in the law and a significant move away from the local planning authority to individual developers. But no illustrations of such conditions are included in what passes for the explanatory material provided with the Bill. Although, as I understand it, the committee was provided with some at its request. It is extraordinary that in a matter as controversial as this, the explanatory material completely overlooked the issue. Under the Government’s scheme, in only one case will it be possible to impose such a condition: when the applicant fails to reply within 10 days of receiving notice of a proposed condition. The committee was concerned that there is no duty to consult before making regulations in relation to these provisions and said that,
“the Secretary of State should be required to consult not only developers but also local planning authorities and other interested parties”.
It recommends in paragraph 30 of its report that,
“the Secretary of State should be required to consult before making regulations under subsection (6)”.
If the suggested amendment is made, the Delegated Powers Committee will be content with the negative procedure. If not, it recommends the affirmative procedure.
I do not know what the Minister’s response was—I take it this issue would not have been raised in the opening debate—but I understand he has indicated that there will be a further response to the Delegated Powers Committee. However, I hope he is able to take back the view—which I think will be widely shared by this Committee, across any political divide—that it is simply not good enough to rely again on the use of a negative procedure on important matters of this kind. It has happened far too often and has been the subject of many reports, Bills and committees in your Lordships’ House, and yet the Government seem to ignore all the doubts and objections and continue to use—or propose to use—the negative procedure for dealing with highly controversial matters. The Minister is not able, alas, to change this with the stroke of his pen, but I hope he will convey what I think will be the view of many in this Committee, across the political divide, that this is not a satisfactory way to proceed, particularly as we are dealing with a significant change in the planning regime.
I hope the Minister will take back the strong views that have been expressed and that by the time we get to Report, we will see some Government amendments. Otherwise, I envisage that there will be amendments on Report from across the House seeking to test the House’s opinion on whether the Government should be allowed to get away with what many of us consider—and clearly what the Delegated Powers Committee considers—to be an abuse of process.
Baroness Pinnock (LD)
My Lords, this afternoon we have heard a lot of concerns expressed by those who serve or have served our local authorities about the practical consequences of this clause. I want to draw attention to a press release that was on the Planning Portal website, which was published on behalf of the British Property Federation jointly with the Planning Officers Society about this very issue during the passage of the Bill in the other place. I will not read the whole press release because I am sure the Minister will be able to read it for himself, but it draws out some particularly important points, which have perhaps not been reflected in the debate so far.
The press release says:
“The British Property Federation and the Planning Officers Society have advised that current legislative proposals set out in the Neighbourhood Planning Bill do not allow enough flexibility … They have warned that current legislative proposals set out in the Neighbourhood Planning Bill do not allow enough flexibility to account for local circumstances. There is a risk that the measures will delay the planning process further by pushing contentious decisions into the time-consuming negotiation of section 106 requirements”.
The British Property Federation chief executive said:
“Streamlining the use of planning conditions could herald a welcome acceleration for development, and we support government efforts to ensure that their abuse doesn’t pose an unnecessary barrier to delivering the new homes and real estate that are essential to people’s everyday lives. However, clear and appropriate conditions are an essential part of achieving good place making, and developers and planning officers are in agreement that a more flexible approach, with best practice guidance and a clear appeals route, would better serve this objective. With local authority resources already stretched, now is not the time to risk making a time-consuming process even more onerous”.
That sums up the case that Members across the Committee are making. It is being made on behalf of both the developers and the planners—we have heard from Committee Members who see it from a local authority, practical planning perspective. I hope that the Minister will closely reflect on what is being said.
Lord Cameron of Dillington (CB)
My Lords, I hesitate to intervene. I am not an expert on planning and I have never served on a local planning authority, but I have been involved from the other side, the side of the applicant—not big developments but small developments in villages and so on—so I probably see this slightly differently.
I am on my feet because I cannot quite see why all the conditions and the problems that have been mentioned by noble Lords—drainage, lighting and so on—cannot be dealt with, as the noble Lord, Lord Lansley, suggested, in the pre-decision planning conditions. In other words, in the normal planning agreement, you work with the planning authority to determine under exactly what conditions the planning permission will be granted, but surely Clause 12 is not about planning conditions; it is about a situation when all the conditions have to be implemented before the building starts. That is where the delay seems to be, and the clause seems to me quite reasonable.
I realise that the problem is probably the financing of planning departments, which do not have the resources to deal with all the issues prior to giving or not giving planning permission. To some extent, pre-commencement conditions are added after the council has decided on an application because there may not have been the resources to deal properly with the application before that point. The local planning authority also may not have the resources to check during the building of the development that all the conditions that had originally been agreed to are being met. In other words, the only way in which this can be done simply is to do it pre-commencement, so that applicants have to apply before they can start building. It is a cheap route out of a particular problem.
I am not an expert on planning, as I said, but it seems to me that there is a difference between ordinary planning conditions and pre-commencement planning conditions. As someone who has applied, I know that sometimes pre-commencement planning conditions delay the scheme and can be, as the noble Lord, Lord Lansley, described, an ambush—suddenly new conditions are added after the planning conditions and all the terms have been agreed to. However, I am not sure why all noble Lords’ concerns are so targeted against the pre-commencement conditions.
Lord Stunell
My Lords, I would like Clause 12 to be taken out of the Bill. It is unsatisfactory because it is written so broadly. Under subsections (1) and (2), the Secretary of State is in a position to do practically anything as long as it is a prescribed description, but subsection (9) says that,
“‘prescribed’ means prescribed by the Secretary of State”.
So there is no limitation on the Secretary of State’s capacity to change the current planning system, not simply the pre-commencement conditions, although that has been the immediate focus of the debate.
Although the clause is widely drawn, for the Minister it clearly has a much more limited intention. I asked a question to see whether I could establish exactly what that limited intention was. On the face of it, from what the Minister has told us this afternoon, it is intended simply to ensure that the National Planning Policy Framework is the bedrock on which all planning decisions are made; in other words, to make the NPPF in effect a statutory document. If that was his intention, it could have been expressed much more clearly by a clause that would be fundamentally different from Clause 12 and be something we could debate the pros and cons of much more satisfactorily. If, on the other hand, it is intended to inhibit or prevent local authorities imposing conditions that would otherwise be in conformity with the NPPF, he needs to go to greater length to explain why the Government believe the NPPF needs to be trimmed back a bit.
I hope the Minister can see that if the NPPF is the reference, it would be useful if it was referred to in some way in the Bill, particularly in this clause. It is beginning to look as though his letter will be as long as the National Planning Policy Framework, which, incidentally, comes in at 59 pages, two of which are a list of the 44 codes of practice that it supersedes, which themselves were about 1,000 pages long. By the time we have some regulations to say exactly what we mean as a result of Clause 12, we will begin to unravel the NPPF.
There is a fundamental disconnect between what is in the Bill and what the Minister says its intention is. When I saw the Government’s amendments, I thought we were going to see something helpful, but I noticed that five of the amendments in the previous group were to insert the word “relevant” before the phrase “planning conditions”. One wonders a little whether one needed that word added. It is good that it has been, but can we just have the answer to the philosophical intent of the clause relating to planning as a whole and to pre-commencement conditions?
At Second Reading I mentioned that the National Planning Policy Framework—which is now treated as though it had originally been carved in stone at the top of Mount Sinai—had quite a troubled birth, with version one going around the Government for preapproval before it went out to consultation from the Department for Communities and Local Government, in which I was at the time a junior Minister. It came back from the Treasury with red ink all over it. It could not go out until the amendments the Treasury required had been made. Of course, there was uproar when it went public. In particular, the National Trust organised a very vigorous campaign against it. It turned out that the National Trust is the good cause of choice for a large number of Conservative Party members, who proceeded to let their Conservative Members of Parliament know about their dissatisfaction. One way or another, the consultation resulted in a completely different document coming forward, which was very similar to the document that had been drawn up and altered by the Treasury in the first place.
I rather fear that Clause 12 is another NPPF, except that we are at only the middle point, where something quite sensible has been turned into something that is not nearly so sensible and is fundamentally threatening many of the safeguards that the final version of the NPPF established so clearly, in particular the three pillars of sustainability when there is consideration of a planning application. Originally, I thought that the department had had the same experience this time that it had with the NPPF—it had gone off to the Treasury, which had put some red ink on it. But I realise that the current Secretary of State in the Department for Communities and Local Government was in fact the Financial Secretary to the Treasury at the time when the NPPF went on its rounds, so it is possible that the red ink was added at a much earlier stage.
I suggest that the Minister has a quiet word with the Secretary of State to explain to the high proportion of Conservative activists who belong to the National Trust—because he will soon find that out again—how much regard the NPPF has now attracted on all sides as a short, intelligible and easy-to-read planning document, and consider either scrapping Clause 12 completely or introducing a provision stating that local authorities are not permitted to impose conditions which go beyond the National Planning Policy Framework. I would have thought that that would achieve the objective which I think the Minister is seeking. Finally, the Minister should also convey to the Secretary of State the fact that this is a Henry VIII clause that Charles III will be most unhappy about.
Lord Bourne of Aberystwyth
My Lords, I hope that that is many years from now. I thank all noble Lords who have participated in our debate on whether Clause 12 should stand part of the Bill and I welcome the noble Lord, Lord Beecham, to his place. I fully understand the circumstances that kept him away earlier. We did deal with Amendment 43A, but I will endeavour to cover a couple of points on it as we proceed.
As noble Lords will be aware, the need for new housing is paramount to deal with some of the issues we are looking at, although of course I accept that there are many other circumstances we also need to consider relating to the Bill. The Government want to ensure that, once planning permission has been granted, we can move on as quickly as possible with housebuilding. At present this does not always happen because too many planning authorities impose unnecessary pre-commencement planning conditions. I accept that they are the exception, but on occasion they require applicants to take action before any works can commence that unreasonably hold up the start of building supply. This is unacceptable to the Government when we want to address the urgent need to increase the supply of homes. I think that noble Lords realise that there is a balance to be struck and a nuance that needs to be dealt with.
I have sought to indicate that this provision does not give the Secretary of State the powers being suggested by some noble Lords. New Section 100ZA(1) set out in Clause 12(1) does give the Secretary of State the power to make regulations, but it has to be read in the light of subsection (2) which provides that:
“Regulations under subsection (1) may make provision only if (and in so far as) the Secretary of State is satisfied that the provision is appropriate for the purposes of ensuring that any condition imposed on a grant of planning permission for the development of land … is—
(a) necessary to make the development acceptable in planning terms;
(b) relevant to the development and to planning considerations generally;
(c) sufficiently precise to make it capable of being complied with and enforced, and
(d) reasonable in all other respects”.
Subsection (3) goes on to state:
“Before making regulations under subsection (1) the Secretary of State must carry out a public consultation”.
This is not the wholesale provision which some noble Lords have been suggesting would give unfettered power to the Secretary of State. However, I accept that there are material considerations in terms of reaching a balance. I thank in particular the noble Lord, Lord Stunell, who recognised that. I can confirm that, as I indicated in response to the previous group of amendments, all of the issues raised are in the National Planning Policy Framework and so would be appropriate for the agreement of conditions with the developer.
Neither the Government nor any planning authority is in a position to force people to come to an agreement. The idea that we can somehow force either the local authority, as was perhaps suggested by some noble Lords or the developer, who may walk away at the end of the day because he is not happy with what the planning authority is saying, is wrong because we cannot—the National Planning Policy Framework has to be complied with. These are matters of consent and no Government would be able to do that, short of taking wholesale powers away and rewriting the law of contract, which we are not proposing. Indeed, I do not think anyone is suggesting that we should.
I am happy to go away and consider some of the points that have been made, but I come back to the point that we have to deal with inappropriate pre-commencement conditions. That is not to say that they are inappropriate as conditions—they may be quite appropriate as conditions, and many of those cited are—but they are not appropriate as pre-commencement conditions, and that is the point I keep coming back to. This is the intention of the legislation, as demonstrated by the wording of the new section. I do not accept that it is obscure or meaningless. I accept that there are considerations here but, if I may, I refer to the Government’s response to the consultation on improving the use of planning conditions. Admittedly, views were split on this, but it is not the case that all local authorities thought that the idea is a dreadful one. The majority—a bare majority, I accept—thought it was a good idea, with 44% either in complete support or supportive of the principle with reservations about the process. That was a majority in favour of the sort of action we are looking at.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords who have spoken in this debate, which has gone on for well over an hour. I place on record my appreciation of the Minister and the open and collaborative way he deals with noble Lords at all times in Committee, in the Chamber and in our deliberations outside. I get on very well with the noble Lord. I have great respect for him and we work very well together. Our job is to raise points and ask questions and I appreciate the way he comes back to us. However, he has not yet really provided evidence of why the clause is necessary or responded to the concerns he has heard from around the Committee. He needs to do that. His response to Amendment 34 in a previous debate highlighted why the clause is not necessary. He listed a whole load of powers that the Government already have at their disposal. I am sure he will go away and look at that.
I agree with the contribution made by the noble Baroness, Lady Cumberlege, who is a mainstay of the Committee. I agreed with the noble Lord, Lord Lansley, when he talked about unnecessary conditions. I do not want to see any unnecessary conditions being imposed or holding up development. I want to see joint working. Very few applications come before members of any planning committee. Most are done under delegated powers by officers. I do not want to do anything that would hold up development. The noble Lord, Lord True, highlighted real problems with Clause 12, as did other Members of the Committee. I hope that the Minister will come back before or on Report with some way forward.
My noble friend Lord Beecham highlighted the issue with the Delegated Powers Committee. The Minister has said he will address his concerns before Report. The noble Baroness, Lady Pinnock, was right when she talked about good place-making and the call for developers and local authorities to achieve it. We have all learned the lesson from the past that there is no point in not doing that. The noble Lord, Lord Cameron of Dillington, asked whether it was necessary that these were pre-commencement conditions. Once again, we do not want anything to hold up development. The noble Lord, Lord Stunell, may have given the Minister an indication of a way forward in dealing with the clause.
The noble Lord, Lord Bourne, said that there was nothing in the clause to give the Secretary of State any powers that noble Lords have suggested. I respect the noble Lord and the point he is making, but he has to look carefully at the clause and find an alternative way of saying what the Government are trying to achieve. There is genuine concern that it is overbearing and goes too far—that localism is being pushed out of the way and that a lot of people are not going to be listened to. I accept that that is not the intention and I do not doubt for a minute that the Minister will look very carefully at the concerns. My particular concern is that, however well-intentioned, this clause risks local authorities having less influence and less ability to build what they want locally. It risks poorer-quality development and housing and buildings that are not sustainable. I do not think anyone in this Committee wants that. I hope that the Minister will reflect, as he said he would, and come back to us before Report in one of his series of letters. I withdraw my opposition to Clause 12 standing part of the Bill.
Lord Kennedy of Southwark
“Local authorities and development management services
(1) A local planning authority may set a charging regime in relation to its development management services.(2) In setting the amount of a charge under subsection (1), a local planning authority must secure that, taking one financial year with another, its income from charges does not exceed the cost to the authority of delivering the development management services for which the charges are imposed.”
Lord Kennedy of Southwark
My Lords, Amendment 45, which is in my name and that of the noble Lords, Lord Scriven and Lord Shipley, and the noble Baroness, Lady Cumberlege, seeks to add a new clause to the Bill. The purpose of the new clause is to make provision for local planning authorities to recover the costs they incur in delivering their development services. This is needed by local government, which very much supports the proposal, and the amendment draws all-party support. Local government already subsidises this process by well over £100 million per annum, which is not right at any time, but particularly at this time of reduced budgets and pressure on local services. The fact that the Government are allowing councils to increase their council tax by up to 5%, particularly to deal with the issue of social care, shows how unsustainable the present situation is.
Amendment 57 in my name and that of my noble friend Lord Beecham, seeks to ensure that the costs of the new planning duties are calculated and adequately funded. In opening this debate I will leave my remarks there; there are other amendments in this group, which I am sure will be spoken to, and I may also have a few questions for the Minister when I respond. I beg to move.
Lord True
My Lords, before other supporters of the amendment speak, I will briefly signal my view that this matter needs to be addressed. I spoke about it at some length on the previous legislation, and supported the relevant amendments.
As an example, it costs my authority over £1 million a year on a budget of about £150 million, which is a significant amount of money, effectively to subsidise aspirations to development. People want to appropriate an advantage—which is perfectly reasonable in a free society—but impose costs, obligations and sometimes potentially loss on their neighbours. It seems entirely reasonable that this service, which is a good public service and done well, should be paid for by those who by definition can afford it. If you are whacking in a development, whether it is an extension or a major development, you can certainly afford to cover the cost. I ask for no more than the covering of the cost of providing that service. I so much agree with what my noble friend Lord Lansley said earlier. We want good planning officers to enable this thing to happen. Unless we have proper resourcing, it is simply not possible to attract and keep good planning officers.
What is happening here, with all the other pressures on local authorities, is that a sector—those who wish to assert property rights and seek pecuniary or personal advantage by so doing—are being subsidised at the expense of money that is squeezed away from other sectors, whether it is the provision of education, social services, or whatever. I cannot believe that this Government—a Conservative Government—would wish in the longer term to subsidise this small part of the profit-making sector at the expense of broader public social services. Although it is above my pay grade—and although I hope that my noble friend Lord Bourne is immensely influential in the Government, it is probably above his pay grade too—I hope that at some time the cry that this is entirely unreasonable will be heard.
I also have great sympathy with Amendment 57 in this group. Where new burdens are added, please can the costs be considered or covered? Clause 13—to which no amendment is tabled; there would have been one had I been here last week—adds a burden. We had burdens on the housing and planning legislation last year, such as compiling new information and making returns. This means officers being employed—young men and women coming into offices up and down the country, doing time and sending returns to the Government. That is a cost on public funds. I would rather that no additional burdens on local authorities came out of government regulation, but if there are, please can we consider support, particularly in this highly pressed planning sector?
I therefore have sympathy for all the amendments in this group, and I am sure that there will be much give and take about what wording is correct and how it might be done, by whom or when. I beg the Government to allow this service for those who seek to make profit and personal gain and improvement—to which I have no objection in principle at all—to be charged at cost.
Baroness Gardner of Parkes (Con)
My Lords, although my Amendment 48 is in this group, it takes rather the opposite view—or perhaps comes at it from a different angle—than the rest of the amendments in the group. As I see it, the other three amendments in this group all aim to recoup the costs, but not a penny more. That sounds like an admirable situation, but my amendment is about something quite different. We have heard in the Housing and Planning Bill that there are many developers wanting to do some major work who would be prepared and willing to pay for additional services at an extra speed to progress things. I understand from a number of local authorities that this would be welcomed. They could not afford to suddenly be burdened with huge, extra costs because someone was going to do a big development, but they would be quite willing to provide additional expertise if an additional fee could be charged.
When I spoke to the clerk who grouped these amendments, I asked whether it was appropriate for these amendments, which we are linking together, to be the two sides of the same coin. She said that it was appropriate and that, in fact, it might be an advantage for these two points to be considered together. I do not have strong views on this, but I do know it was aired very definitely in the debate on the Housing and Planning Bill last year, and I thought the case was reasonably well made. It seems to me that if it was possible, it would still be up to the local authority to decide whether or not to use that technique. I certainly think it is worth considering.
Lord Scriven (LD)
My Lords, I wish to speak to Amendment 45, to which I have added my name. As it is the first time I have spoken, I would also like to draw the Committee’s attention to my details in the register, particularly as a member of Sheffield City Council.
I have seen the effect of not having adequately funded planning departments and development services. At the moment, most authorities have to subsidise up to 30% and in so doing—particularly in the light of the financial position that local authorities find themselves in—many planning departments are under great stress and many planning officers have far more cases in their case load, which can slow down the planning process and, at times, lead to not the best decisions. That is not because the officers are bad or not looking at detail, but because they are so widely spread that they do not have the time to deal with each particular planning application.
This is not just about local government holding out the begging bowl and asking for these fees. Even the builders and the developers are asking that such money as is suggested in these amendments is allowed to be charged by local authorities. The British Property Federation survey of October 2015 found that two-thirds of private sector respondents would be willing to pay an increased fee which would help keep an effective service. It is not just local authorities but builders and developers who have said that.
As has already been said by the noble Lord, Lord Kennedy of Southwark, in 2015-16, about £195 million has not been recuperated, which is a huge amount for local authorities and planning services. I hope therefore that the Minister will look at this. I think it will help, not just to speed up the planning service but to lead to better and more timely decisions.
Lord Tope (LD)
My Lords, I want to say a few words in support of Amendment 47 tabled in my name. Our debate is either a little too late or a little premature, because we have reason to believe that there is going to be something on this subject in the long-awaited and I believe now imminent White Paper. It may well be that before long we will know what it is, and we will probably then have a more useful debate on the Government’s intentions or, for that matter, their lack of intentions.
The points have been made and all these amendments seek the same thing by more or less similar means. The noble Lord, Lord True, put it very well when he said that there is no reason why local authorities at any time, least of all in the current straitened circumstances, should be subsidising the development industry in the way they do. None of these amendments suggests that local authorities should make a profit out of planning and development control. What one is aiming for, as far as possible over time, is a break-even position.
I discussed this with my local planning authority, of which I am no longer a member, and found that the planning officers are longing for the return of the planning delivery grant, which if I remember rightly lasted from 2007 to 2010. There was actually a lot to be said for it, because the funding it provided for local authorities was based on performance and incentives. What one should perhaps be looking for here is not simply a grant or funding for local authorities, but for a way that is tied to incentives. All of us want to see the housing target delivered, but we know that unless we do something quite serious to increase the resourcing of planning departments and to stem the flow of planning officers from the public to the private sector, where frankly they are a lot better rewarded, we are not going to deliver on the housing targets or, to go back to our earlier debate, on neighbourhood planning, particularly in urban areas, and I speak with knowledge of London.
Incidentally, I was not too surprised to learn that 20% of all planning applications are dealt with by London boroughs, all of which are severely overstretched because they are underfunded—budget restraints affect everybody—the cost of living is so much higher, and the opportunities for qualified planners are greater in the private sector than they are in the public sector. It is reaching crisis point, and if we are to solve the housing problem, this is part of what needs to be done. That is what all these amendments seek to achieve, and we look forward to hearing from the Minister a preview of what is to be in the long-awaited White Paper.
Lord Bourne of Aberystwyth
My Lords, I thank all noble Lords who have participated in the debate, and I appreciate the build-up of the White Paper by the noble Lord, Lord Tope. I will have to be careful about what I say because as he has observed very cogently, this is perhaps premature to the housing White Paper which is expected shortly.
Lord Bourne of Aberystwyth
Yes, it is imminent. Before I respond to the specific amendments in the group, I want first to echo what has been said. The Government recognise the impressive performance of local planning authorities up and down the country. We have certainly asked much of them in terms of getting Britain building, delivering new homes and providing the employment that will drive our economy forward. There is no doubt that we will want still more from local authorities, and that is why this issue is going to be addressed in the White Paper. I think we all agree that this is a matter of great importance and I am pleased that the White Paper will set out how it can best be addressed. I hope that noble Lords will participate in the discussion on it.
I thank the noble Lord, Lord Kennedy, for his introduction, and my noble friend Lord True for talking about the current position, which I understand. Let me turn to my noble friend Lady Gardner’s amendment. As she indicated, it is perhaps slightly different from the other amendments in the group. It seeks to enable local authorities to charge fees that exceed cost recovery in respect of their planning functions. It is an interesting proposal but not one I can imagine would be immediately attractive to the applicant. We are certainly clear that the principles on handling public funds mean that when we set fees, such as those for planning applications, they should be set at cost recovery, and that is what we aim to do. Under the Local Government Act 2003, local authorities have the power to charge for discretionary services up to the level of cost recovery at present. I know many local authorities have chosen to use this power to charge, for example, for giving pre-application advice on planning applications. I think that that deals with those situations.
I turn now to the points raised by noble Lords who spoke to other amendments in the group. The points were essentially the same, but let me say something specific about the new burdens issue, which is slightly different and was picked up in Amendment 57 in the names of the noble Lords, Lord Kennedy of Southwark and Lord Beecham. It seeks a requirement to consult local planning authorities on the burdens imposed by new statutory duties before commencing those measures. This raises an important principle and one I am happy to acknowledge. I recognise it is a priority to ensure that planning departments have resources to provide the service that applicants and communities deserve. As noble Lords will probably be aware, we have a long-standing mechanism in place through the new burdens procedure, which has crossed successive Governments, to consider and make provision for funding to local authorities for any additional work arising from new statutory duties. The approach to new burdens provides that when the Government introduce new responsibilities and statutory duties on local authorities, these must be properly assessed and fully funded.
As a matter of routine we discuss new policies with the Local Government Association and value the insight that it brings to the table. All the measures in the Bill have been considered against this doctrine and we do not believe that the burdens in the Bill, if there are any, are expected to have a significant impact on local authority resources. We are committed to working with local authorities to find ways of securing the finance, people and skills they need to maintain strong planning departments. As I said, this has to be seen in the context of the imminent housing White Paper. I hope noble Lords will recognise that these amendments seek to place in the Bill powers and mechanisms that the Government already have and that these matters will, as I said, be reflected in the imminent housing White Paper. On that basis, I hope that the noble Lord will agree to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords who have spoken in this debate. I very much agree with the comments of the noble Lord, Lord True, that these issues need to be addressed. There is cross-party agreement at local government level that it is important we do that. I hope that the noble Lord, Lord Bourne, both here and outside the Committee, hears that. If costs are not recoverable and the planning officers cannot do their job, then of course all that we are debating here—the desire to move things on as quickly and efficiently as possible—risks coming to nothing or very little. The noble Lord, Lord Scriven, also highlighted the need for these costs to be covered and the issues for local government to be addressed.
The noble Lord, Lord Tope, spoke about the need to keep planning officers, and I very much agree with that. There are many noble Lords in Committee today who are members of local authorities, some in and some outside London. It is the same for planning authorities. I bet the Minister could visit any authority and he would hear the same thing, no matter which party controls or does not control it. There is real pressure on the retention of planning officers and around recovering the costs involved. It is a huge problem. I hope the noble Lord hears what we are saying and will reflect on it. I hope that he can come back to us with something, perhaps on Report.
As always, the noble Baroness, Lady Gardner of Parkes, has highlighted some issues; she understands these matters very well and picks up on them incisively. I hope we can come on to them at some point, but my first concern is getting these basic costs covered. Perhaps we can have discussions in future about whether people want to pay extra to get things done more speedily, but for now the priority is getting these costs covered and getting planning departments to function properly. Having said that, at this stage I am happy to beg leave to withdraw the amendment.
Baroness Parminter
“Planning: duty to have regard to the protection of ancient woodland and veteran and aged trees
In section 197 of the Town and Country Planning Act 1990 (planning permission to include appropriate provision for preservation and planting of trees), after paragraph (b) insert—“(c) to refuse permission for any development which may result in the loss or deterioration of ancient woodland, and the loss of aged or veteran trees found outside ancient woodland, unless the need for, and benefits of, the development in that location are wholly exceptional;(d) to refuse permission for a development in respect of which there is insufficient provision made for the preservation of woodland and planting of trees; and(e) to impose any such conditions and make any such orders as are necessary to protect woodland and trees.(2) The local planning authority must—(a) ensure that all planning applications are compatible with the protection and enhancement of the environment; and(b) ensure that the protection and enhancement of the environment is identified as a strategic priority in the authority’s area under section 19 or 35 of the Planning and Compulsory Purchase Act 2004.(3) In this section—(a) “ancient woodland” means an area that has been continuously wooded since the year 1600; (b) “veteran and aged trees” means trees which because of their age, size or condition are of exceptional value culturally, in the landscape or to wildlife.””
Baroness Parminter
My Lords, I am moving this amendment because of the unavoidable absence abroad of the noble Baroness, Lady Young of Old Scone. The amendment is in my name and those of the noble Baroness and the noble Lord, Lord Judd.
The Bill offers an important opportunity to amend the way the planning system deals with ancient woodland and reduce the controversy created by planning proposals involving ancient woodland, which is often much loved in its locality, thereby reducing the delay that such controversy can cause. Ancient woodlands are important but their importance is still not well understood. They are woods that have remained under continuous woodland cover for at least 400 years, and in some cases for centuries, or even tens of centuries, longer. They are a complex network of species, soil, history and culture and each of them is unique, distinctive and irreplaceable. Once ancient woodland is destroyed or damaged, it cannot simply be planted again; this complex amalgam of ecosystem, culture and history is lost for ever.
However, ancient woodland has a lot less protection under planning policy than ancient buildings. Ancient woodland is increasingly threatened by planning decisions, particularly housing developments, where planners and developers see that the lesser level of protection given to ancient woodland by the National Planning Policy Framework compared with that given to ancient buildings is a reason not to give ancient woodland any protection at all. There are currently 600 ancient woodlands under threat from planning proposals. There is one that I am particularly familiar with in my locality, the proposed development of the Dunsfold Aerodrome, where the proposed access road will lead to the direct loss of ancient woodland. Yet the local plan of my local authority, Waverley, states that,
“the loss of ancient semi-natural woodland will be resisted”.
So clearly the wording in the NPPF gives developers hope that even a pretty strong local plan could be worth ignoring.
We are already at the point where so much ancient woodland has been destroyed that it covers just over 2% of Great Britain’s land surface. The amendment aims to give the same level of protection to this irreplaceable ancient woodland as is currently given to ancient buildings. Ancient woodlands, as my noble friend, Lady Young, said so memorably at Second Reading, are the cathedrals of the natural world.
We know the Secretary of State is not keen to put further protections into the Bill, and we understand that. However, we were very heartened by the words of the Minister at Second Reading that the Government might consider other routes, such as making amendments to the National Planning Policy Framework. Indeed, if the Daily Telegraph is to be believed, then imminently—perhaps even as imminently as tomorrow—we may see a White Paper making such a firm commitment, and we would be delighted to see such a commitment. In the absence of that White Paper today, though, the Bill still provides the potential to give ancient woodlands the protection that they deserve and so desperately need, and which we know local communities want to see. I beg to move.
Lord Judd
My Lords, I rise with great enthusiasm to support the noble Baroness in moving this amendment. I emphasise that I am very involved in the kindred area of national parks, and am vice-president for the Campaign for National Parks.
There is room for hope. As we wait for the White Paper, we hope it will have within it the same kind of undertakings that the Government have given on the national parks regarding their indispensability, their importance to the culture and the values of our society and the recreational and spiritual regeneration of those who are able to take part in what they provide.
I worry often about our highly quantitative society. There is a desperate need to reassert the qualitative dimensions of our society. Woodlands are rich in the heritage and history of our country. There are trees that have witnessed the whole evolution of our democracy and society over centuries. They are a real link with where we are, where we have come from and what we want to be, as our history is indispensable in understanding society and life and its challenges.
Other dimensions make the woodlands so important, particularly the ancient trees. Of course we want to build houses. Of course we want a thriving economy. But for what? Is it just to be able to say that our economy has grown and that people own houses to a greater extent than before? Or is it so that people can enjoy a richer, fuller society? Our young people need to have a sense of imagination and vision. Just think about what imaginative teachers are able to do with young children if they have ancient trees in their midst and can use the experience of the ancient trees in their whole approach to history, understanding and learning.
In my life, I have too often come across evidence of the absence of vision and space for too many of our youngsters in society, who grow up in a restricted material environment that denies them the opportunity to flourish as individuals and to become richer, fuller people. I must not yet again tell the story, which profoundly moved me at one point in my life, about a youngster—a seven or eight year-old—from an inner-city area saying that what was so exciting about being in a youth centre beside Windermere in the Lake District was that she had never seen far before in her life. What do we want our children to be? Automatons or living creatures with imagination? How will we sustain our democracy and our future unless we have people with vision and potential? Trees are crucial to this.
When I saw that my noble friend Lady Young was considering this amendment, with the able support that she has had from our Liberal friends, I felt that I must become involved, because this is an imperative. I hope that the Minister will hear the message and say that the Government will look with good will at the challenge. In a few hours, a whole story with its links and roots in history can be uprooted, thrown away and destroyed—something that has been there for hundreds of years. We must not go down in history as a society that has lost all sense of root, destiny and continuity and is just living in the instant in a material sense. I cannot think of an amendment that is more appropriate to the kind of discussions that we have been having this afternoon.
Lord Cameron of Dillington
My Lords, I would like to add my voice in support of this amendment and to repeat the point made by the noble Baroness about the comparison of ancient woodlands to, say, a grade 1 listed building. I will take an example local to me, which is Wells Cathedral in the county of Somerset. It is irreplaceable. However much money you have, you cannot replace it. If you destroy it, whatever you put in its place could never be the first English Gothic cathedral built on a Saxon minster. That is the real wonder of Wells, apart from its magnificence and splendour as a building. Similarly, we cannot replace an ancient woodland. Whatever is put in its place, it will never be a pre-industrial 500 year-old to 10,000 year-old woodland with all the naturally developed species and habitats that tell the tale of the specific centuries it has lived through. Even if a newly planted woodland were to survive for 500 years in this fast-moving world, it could never be the same as one which may never have been planted at all, but just emerged from the residue of the last Ice Age or the wastelands of a Viking, Saxon or Norman wilderness. Such woodlands are irreplaceable and this amendment needs to be supported.
The Duke of Somerset (CB)
My Lords, I understand that Amendment 46 is not central to the thrust of the Bill but it will definitely improve it, although perhaps as a bit of a side issue. The amendment seeks to do more than just preserve ancient trees, of which we have heard so much about and which are extremely important; in subsection (1)(d) it also provides for new plantings. The need for trees on development sites is extensive in order to improve the otherwise sterile environment that is often found on a new estate.
Trees improve the townscape by breaking up angular building forms. They bring colour in season, they screen unsightly views and enrich biodiversity and habitats. They benefit insects, birds and mammals, and provide a source of nectar for bees which are currently under much pressure from chemicals. They also provide berries for wildlife. Trees conserve energy by providing shelter and shade from the wind and the sun. They absorb pollution and particulates and thus improve air quality, which is an increasing urban problem leading to ill health and sometimes death. Trees can provide educational tools for schools in order to develop environmental awareness and conservation skills. The list of benefits is long and worthy—from the abstract by reducing human stress, to the practical by absorbing and mitigating the risks of flooding and erosion, as we have heard.
However, trees have to be managed and there are health and safety aspects to be addressed. For example, branches can sometimes shed without warning, but these are not too difficult to manage. If we had more trees, children might even rediscover the joys of climbing them and they might learn to respect and not to vandalise their own communities by damaging the young plants. This alone can foster strength in communities and reconnection with neighbours.
If carried, this amendment would add greatly to the Bill in an inexpensive and non-critical way. I commend it to the Committee.
Lord Framlingham (Con)
My Lords, as someone who has lived all his life with trees, I feel that this afternoon’s debate has suddenly taken off. We are talking about buildings and planning, which is interesting but some could think a tad dry from time to time, but trees come into the picture and one wonders why. However, we should be talking about trees and buildings because they should live together. Look at New Palace Yard and the catalpa trees; look at Tate Britain and the plane trees.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in this very important debate on Amendment 46. I would like to thank the noble Baroness, Lady Parminter, and the noble Lord, Lord Judd, who tabled this amendment on this important issue. I know from the considerable work of the noble Baroness, Lady Young—who unfortunately cannot be with us today—as chairman of the Woodland Trust and co-chair of Environmentalists for Europe, that she has a great passion for this subject and I was very pleased to meet with her a few weeks ago to discuss these issues.
I recognise the importance of ancient woodland and veteran and aged trees. We have had some very cogent examples. The noble Baroness, Lady Parminter, gave a powerful example close to her own home and the noble Lord, Lord Judd, who continues to have a distinguished role in national parks, rightly told us of the rich part they play in the heritage and history of our country.
The noble Lord, Lord Cameron, drew the parallel—or hopeful parallel, from his perspective—of Wells Cathedral, which is my favourite of all the English cathedrals. In my faith and integration role in the department, I have been visiting all the cathedrals of England in turn. I have so far visited 11, but Wells Cathedral is coming up shortly and I very much look forward to that. Many people have evoked that powerful, evocative and moving phrase: it is absolutely right that the ancient woodlands are the cathedrals of the natural world.
I thank the noble Duke, the Duke of Somerset, for drawing attention to the importance of the ecology of bees and wildlife, and echoing the educational aspect, as did the noble Lord, Lord Judd. There is another string to the bow of my noble friend Lord Framlingham: visiting prisons and saving trees. I thank him for that really engaging story.
There are number of protections already within national planning policy legislation and guidance. I have listened to the arguments today and on previous occasions from the noble Baroness, Lady Young, and I do recognise the importance of making sure these protections are made absolutely clear. As many noble Lords have said, the White Paper will be published shortly; I hope they will appreciate the aspects of it that indicate the way forward. I have listened carefully and can confirm that the Government do take this issue very seriously. We are talking about a massive asset to the country that we do not want to lose. With that reassurance, and in the light of the imminent publication of the White Paper, I respectfully ask the noble Baroness, Lady Parminter, and the noble Lord, Lord Judd, to withdraw their amendment.
Baroness Parminter
My Lords, in light of the Minister’s reassurance that the Government take this matter very seriously, on behalf of my colleagues, I am very happy to not press my amendment on this occasion. I thank noble colleagues across the Committee who have shown their strength of feeling on this issue; and it is good that the department is listening. I single out the noble Lord, Lord Framlingham, who in many ways represents the best of the House of Lords, in that people come in and speak about what they know. Every time he speaks on an issue, he does so with an expertise and commitment which is valued by all of us. Certainly, on behalf of my Benches—although I am sure on behalf of others as well—I thank all noble Lords who have shown commitment to this issue, but in particular I thank him. I beg leave to withdraw my amendment.
“Retrospective planning permission
(1) Where there has been a breach of planning control, as defined under section 171A of the Town and Country Planning Act 1990 (“the 1990 Act”), the person or body who has caused the breach must make a retrospective planning application for planning permission under section 73A of the 1990 Act (planning permission for development already carried out).(2) In respect of a retrospective planning application, the person or body who has caused the breach of planning control is liable for the payment of fees or charges to the local planning authority in respect of the costs incurred in carrying out the functions connected with the retrospective planning application.(3) The person or body who has caused the breach of planning control is liable for the payment of a significant additional charge, connected to the retrospective nature of the planning application, in addition to the fees and charges the person or body is liable for under subsection (2).(4) In carrying out the functions connected with a retrospective planning application, the local planning authority must consult the people residing in the local area to which the retrospective planning application relates.”
Baroness Gardner of Parkes
My Lords, I feel very strongly about the issue of people constructing buildings without permission. I have twice been affected by this personally and I think there are examples worth quoting.
One example was my home in a country village, a lovely little one in Oxfordshire with stone walls, where I lived opposite Iris Murdoch’s home. When Iris moved and sold the house, the person who bought it sold off the barn. I had a view from my house right down to the centre of the village where some person had bought the field to keep sheep there to retain the village’s history. One day, I looked out and an extra four-foot wall had suddenly gone up on top of the existing wall. Under planning law, you have no right to a view, therefore there was nothing we could do and we were just stuck with it. However, I was so disappointed that the only way you could see that lovely view was to go up to the little attic and look down from there, where it was still visible.
The other experience I had, which is a much worse example, was in London. My home was in central London and backed on to a listed square. They applied to increase their building by one floor by taking what was then a little roof and turning it into a whole floor. All the local residents went to great trouble to make sure that the angle of light was still fine for the rights to light into our house, which was just three stories high. It went up, and it was fine. The next thing that happened, about a year or two later—I lived there for 35 years—was that I suddenly saw another attic being built which was not following the agreed rights to light that all the experts had said were perfect for the situation. The wall was going straight up. I phoned Westminster Council and found that in fact I knew the chairman at the time. I explained to him how awful it was that our rights to light were being taken away. “Oh”, he said. “What a fuss you’re making. Of course it’s being built strictly in accordance with the planning permission”. I thought that was hard to believe. About 18 months later he phoned me: “I owe you an apology. Unfortunately, it was not built in accordance with the planning permission, but the people have moved in and are living in it now, and we don’t feel that it would be fair not to let them stay”.
Over the years I lived there, the whole terrace of these listed houses virtually put on another floor, which always went straight up the wall and took the light away. Just before I moved from that house, about two years ago, the nice man who lived in the last extra floor—the original one, which had the correct rights of light—said, “I’m just going to bring my house into line with everyone else’s”. It would not have made a scrap of difference to where I was living because about three or four of those represented the space that went along my back wall, and he was the only remaining one. However, I found it hard to believe that something could be done and there could be no comeback whatever. When Barbara Castle entered the House of Lords—my history is that I was a candidate against her in Blackburn in 1970—I had an amendment down in whatever Bill it was to this effect, on retrospective permission. She got up and proposed that it should be made a criminal offence. The House was not going to go that far. However, it should be prevented.
I know that there was that case of the man who built a whole house and hid it with a haystack for six years, then thought that it was outside the statute of limitations and that he had got away with it. However, the court ruled that if you had never made it visible to people, this was not right, and I believe he was obliged to take it down. I am not suggesting that we go that far. However, the nitty-gritty point in this amendment— I have been advised so by planning officers who have dealt with many of these cases—is that unless there is a punitive fee for going for retrospective permission, there is no encouragement to go for any permission ever. It will not cost you a penny more, and you will get away with a lot of things.
I understand also from discussions we have had recently that often little changes have to be made when a building is in the process of being constructed. Sometimes a piece does not quite work out because it cannot fit in or for some other reason, and people have to look at that. I am not including that in my idea of what should come under this legislation. However, if you think you can get away with doing something which structurally alters the position for neighbours and other people and which would probably not be approved if it went for planning permission—or it might have, but there was no encouragement to go for it—why would you try to do things in the right way? This is an important issue and I beg to move.
Lord Beecham
My Lords, I entirely sympathise with the objectives of the noble Baroness. However, I found the amendments as drafted not workable. Subsection (3) of the new clause proposed by Amendment 49 calls for a liability for a “significant additional charge” but it does not give any method of calculating that or saying how it might be achieved. On Report, an amendment inviting the Government to create such a structure subject to secondary legislation that in this case would probably be acceptable might be a way forward. In terms of subsection (4), I should have thought that if there is a retrospective planning application, it would have to be made public and subject to consultation in the ordinary ways. This subsection may be unnecessary. If subsection (3) were changed to convey a power to regulate for such a retrospective permission, that would be a way forward. Perhaps the Minister already has that in mind. The objective is right but we have yet to find quite the right wording.
Lord Bourne of Aberystwyth
My Lords, I thank my noble friend Lady Gardner of Parkes, who speaks with great authority on these areas and here with personal experience. I also thank the noble Lord, Lord Beecham, for his contribution. How we deal with unauthorised development is an important issue that concerns many people. The Government are clear that unauthorised development is unacceptable and unfair to the vast majority of people who abide by the rules. However, the retrospective planning application process is there primarily to give those who have made a genuine mistake the opportunity to rectify the situation. There are, of course, such people. It also gives local planning authorities the flexibility to invite a retrospective application where they consider that it is the appropriate course of action.
It is important to note that retrospective planning applications must be determined in exactly the same way as any other application, that is, in accordance with the development plan unless material considerations indicate otherwise. The noble Lord, Lord Beecham is therefore right in relation to subsection (4) of the new clause proposed by Amendment 49. That for which it provides would be the case anyway.
There is no guarantee that planning permission will be granted just because the development already exists. The noble Baroness cited the haystack example and there are many more in which houses have been built that occasionally people find quite acceptable, but which because they did not have planning permission and because of what planning policy indicated, have had to be demolished. Therefore, those who undertake unauthorised development put their development, their investment and perhaps their professional reputation at risk. The sale of properties built or adapted without the necessary permissions may also present considerable difficulties.
Local planning authorities can impose planning conditions on the retrospective grant of planning permission to mitigate the impact of the development. Where unauthorised development proves to be unacceptable, local planning authorities have at their disposal a wide range of enforcement powers with strong penalties for non-compliance. I note that where an enforcement notice is served, as does happen on occasion, and the person appeals on the ground that planning permission ought to be granted, they are deemed to have made an application for planning permission and must pay a fee. That fee is twice the fee that would have been payable in respect of a planning application to the relevant authority seeking permission for the matters stated in the enforcement notice as constituting a breach of planning control. I appreciate that that is only where an enforcement notice is served, but in that situation there is already a double charge. This recognises the additional work involved for the planning department in dealing with both an appeal and an application.
The effect of my noble friend’s amendment would be to make retrospective planning applications compulsory for all breaches of planning control under the Town and Country Planning Act 1990. This would be difficult to enforce and could lead to unnecessary delays where a local planning authority is clear that such an application would be refused and enforcement action taken. Clearly it would be not be helpful to delay effective enforcement action by local planning authorities where it is evident that the unauthorised development is totally unacceptable. That could well be the case in some situations.
My noble friend’s amendment would also introduce a penalty fee in addition to charges in respect of the costs over and above the double charge I have referred to which is incurred by the local planning authority in carrying out its functions connected with a retrospective planning application. This would unfairly penalise those who have made a genuine error and discourage the submission of such an application for proper consideration by the local planning authority. It is a matter which I know previous Governments have considered and to some extent grappled with, but in the interests of fairness have not decided to take forward. I appreciate that this is an important issue and I thank my noble friend for airing it and giving the Government some time to consider it, but for the reasons I have outlined, I would ask her respectfully to withdraw the amendment on this occasion.
Baroness Gardner of Parkes
I thank the Minister for his reply which I will read carefully. I may perhaps come back at the next stage with different wording that might resolve some of the points he has raised. Meanwhile, I beg leave to withdraw the amendment.
“Public land registerRegister of public land
(1) Every local planning authority must keep a register of all public land in its area, for the purpose of identifying land in their area which could be used for development.(2) The register must be kept in such manner as is prescribed by the Secretary of State by regulations made by statutory instrument.”
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, Amendment 49A would create a register of public land. Quite properly, local authorities are required to compile and keep an up-to-date register of brownfield land within their area. This ensures that the land is reused in an orderly manner for housing development. Most of the land is brought into use without too much difficulty, but occasionally it may be contaminated and require additional and expensive work to bring it up to a suitable state for housing. Given the extreme shortage of suitable land and the enormous pressure for housing in the country, it seems sensible to bring all the spare land in an area into use as quickly as possible. Requiring local authorities to compile and keep up-to-date registers of public land within their boundaries would mean that they would have an accurate picture of where the land is and whether it is being used productively or is just lying fallow. They can then work with the relevant agencies to bring the land into use for housing.
I shall give the example of a Royal Marines base not a million miles away from where I live but in a different local authority area. This base has been in the community for some considerable time, but recently the MoD decided to close it and move the personnel elsewhere. Here is a perfect site for housing. All the infrastructure, including water, sewerage and electricity, is in place, as well as a decent internal road system. There is unlikely to be a gas supply, given its location, but I could be wrong. No doubt some of the infrastructure would need to be updated, but the site would be much more preferable to digging up a greenfield area. That is just one example, but there will be others involving other agencies such as the NHS. Some of this publicly held land will not be as visible as a military base, but it could nevertheless be released for housing. Some of these parcels of land will be small, but could accommodate half a dozen houses, while others will be larger and suitable for 300 to 400 homes. The land supply shortage in some areas is so desperate that it really is time that all possible avenues were explored fully.
Local authorities with housing provision responsibilities are the logical and obvious partners to compile and keep up to date a brownfield register in order to be able to act quickly when redundant land becomes available. I realise that this amendment will not find favour in all quarters, but I look forward to the Minister’s response. I beg to move.
Baroness Pinnock
My Lords, the purpose of Amendment 49B in my name is to draw attention to and, if possible, seek a remedy for the significant delays and difficulties in getting some brownfield sites developed.
Brownfield or previously used land is well defined in the National Planning Policy Framework. The definition includes a wide range of previous uses. Some of these sites pose no particular problems or costs for developers. The sites I am concerned with are those that have suffered considerable contamination as a result of an earlier industrial use in a less-regulated age. Remediation of these sites can be very costly and a big disincentive to developers. There are a great number of brownfield sites. The CPRE research in 2016 estimated that these cover an area sufficient for 1.1 million homes. Those figures may be disputed but that is not my point. My point is that there are demonstrably large areas of previously used land available for development, many of them with current planning permissions, but the sites remain undeveloped.
Using brownfield land has a double benefit. It saves greenfield sites from development and uses existing derelict land in urban areas. This derelict land often attracts problems other than the visual depression it can bring to an area. I am probably one of the few people in this Room who actually lives near some derelict land. I can tell you, it is something we have been trying to resolve for years but cannot because it is heavily contaminated. When the Bill was debated in the other place, Andrew Mitchell MP raised this very issue and hoped that it could be addressed before the Bill’s passage was concluded.
The question is: how can brownfield sites be effectively prioritised? The Royal Town Planning Institute report of last year said:
“Previously-developed brownfield land in built-up areas must continue to play a vital role for a range of purposes including housing. But a ‘brownfield first’ policy will fail to deliver its full potential if there is insufficient available funding for the treatment and assembly of land. New proactive remedial programmes are needed to remove constraints on development and to make places where people want to live which are accessible by sustainable modes of transport”.
Unfortunately, the Government are currently providing disincentives for brownfield development. Not only is there a lack of support for remediation but there are incentives for developers to use greenfield sites, such as the five-year housing supply rule, which enables developers to cherry pick greenfield and green belt sites while ignoring brownfield sites.
The further consequence of the costs of land remediation is that when the land is developed, obviously the costs are greater and so developers are able to argue that any planning gain for the local community is not financially viable. Therefore, affordable housing is lost on those sorts of sites—the very sites where, often, affordable housing is needed. I ask the Minister to respond positively to this plea on behalf of areas across the country, including my own, where land values are lower than in the south-east and where, therefore, the costs of remediation can be prohibitive to development.
Baroness Cumberlege
My Lords, I have not put my name to this amendment but I strongly support what the noble Baroness, Lady Pinnock, has said. I ask my noble friend the Minister whether he can think of ways in which we could introduce for developers—which I absolutely understand see that brownfield sites are more expensive for various reasons—some sort of incentive to make sure it is worth their while to develop these sites. I say to my noble friend that this makes such sense given that we have a problem finding sites for development. These are the obvious ones to use, except for the cost. I wonder whether we could build in incentives for developers to come in and use these sites.
Lord Beecham
My Lords, we on this side support the amendment. It is particularly welcome that there is a proper reference to obtaining affirmative approval for any regulations that are required. It is important to address the issue of land that is difficult to develop. My noble friend has just reminded me of the very successful redevelopment at Greenwich, which was a pretty bleak landscape. It required significant investment but it has paid off very well. We certainly need to encourage development there. It does not necessarily have to be private building development for sale. Local authorities and social housing can also be very involved in the process. Indeed, we want to see mixed communities of that kind, but this is not inconsistent with the amendments.
We need to facilitate development here, partly, as has been said, to avoid putting undue pressure on green space—whether it is green belt or not—but also because if they are not developed these sites bring down the quality of life in the surrounding community, of whatever nature that might be. So there is a triple benefit: first, for those moving into the accommodation; secondly, for the surrounding community; and, thirdly, because you are not building on areas that ought to be left as open space for the enjoyment of the community as a whole. We are very supportive of the amendment.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in this debate on Amendments 49A and 49B, particularly the noble Baronesses, Lady Bakewell and Lady Pinnock. The amendments cover two important areas.
On the new clause inserted by Amendment 49A, I agree with the noble Baroness that there should be transparency around land assets held by public bodies. Public bodies must be accountable for the assets they hold, and where land assets are no longer required to support the functions of the body, they should be released so that they can be put to good use, including the provision of much-needed new homes. I can reassure noble Lords that the proposed new clause is not required. A great deal of work is already under way to ensure that this transparency exists, and it may help the Committee if I briefly outline the measures that are either in place or being put in place.
First, information on government land assets is already made available through the Cabinet Office electronic property information mapping service, e-PIMS—that trips off the tongue. This feeds the Government Property Finder website, where anyone can search to obtain a list of government land assets locally, regionally and nationally. Where land is made surplus for development, the e-PIMS system also makes this clear.
Secondly, for land owned by local authorities, the Local Government Transparency Code 2015 requires local authorities subject to that code to publish, on an annual basis, details of all land and building assets, including undeveloped land. In 2016 we consulted on updating the transparency code. We proposed that in addition to the existing data on land and property assets published by local authorities, they should also publish, on e-PIMS, the extent of the land in hectares for each piece of land; whether that land is surplus to requirements; whether there are current or future plans to release the land for housing development; if there are plans to release the land for housing development, what the current planning status is; if there are plans to release the land for housing development, how many homes can be accommodated, and, for properties of 10,000 square feet or larger, the floor area of that property, the number of floors and the number of car parking spaces it has. We are carefully considering the responses we received and will be responding to the consultation in due course.
Thirdly, nearly three-quarters of local authorities in England are now part of the Cabinet Office and Local Government Association’s One Public Estate programme. This is expected to grow to 95% in 2018. The One Public Estate programme brings together public bodies across a local area seeking to unlock the value in land and property assets for better local services, efficiencies and local growth. In doing so, land that is made surplus can then be released. A condition of membership of the One Public Estate programme is that local authorities and their public sector partners must upload their land asset data to the e-PIMS system. Work is already under way to bring central and local land data together in the e-PIMS system. This will make land asset data across the public sector readily available to anyone in a single place, rather than having registers held by individual authorities. I hope that this reassures noble Lords that the Government are committed to ensuring transparency in the use of land assets and appropriate release across the public sector, and that they have a clear plan to make that happen.
Amendment 49B, in relation to brownfield land, is in the name of the noble Baroness, Lady Pinnock, and was spoken to by my noble friend Lady Cumberlege and the noble Lord, Lord Beecham. He cited the example of Greenwich. A development corporation is involved across the river as well—I am sure that the London Borough of Lewisham will have something to say on that, but I will move swiftly on.
I think we all agree that previously developed land, more commonly known as brownfield land, has an important role to play in delivering much-needed new homes. The Government remain committed to ensuring that 90% of suitable brownfield sites have planning permission for housing by 2020. That is our stated policy, but I appreciate that the noble Baroness is looking for more concrete action, and I will be moving on to that.
The Government already have a strong policy framework in place to encourage the reuse of brownfield land. We are also developing further policy measures in regulations, which will help unlock housing being built on suitable brownfield sites and maximise the number of dwellings built on brownfield land. It is an appropriate mechanism, as noble Lords have mentioned, in order not to have to build on the green belt, which of course we do not want to do and is not anticipated. That is why building on brownfield land is so important.
Paragraph 111 of the National Planning Policy Framework asks local authorities to encourage the reuse of brownfield land if it is not of “high environmental value”, and planning guidance reinforces the expectation that local plan policies should reflect the desirability of reusing brownfield land. Furthermore, in December 2015 our consultation on national planning policy sought views on proposals to create a presumption that brownfield land is used unless there are clear reasons why not. This consultation also set out proposals to make more efficient use of land by encouraging higher densities around commuter hubs and to encourage more starter home-led development on brownfield land. We intend to set out our response to these proposals in the imminent housing White Paper.
Our proposed changes to planning policy sit alongside other proposals to bring brownfield land back into use. The list is not exhaustive. We intend to bring regulations into force this spring requiring local planning authorities to publish and maintain brownfield registers, which was part of the Housing and Planning Act 2016. I hasten to say that I do not have personal and direct experience of the legislation, but I believe that that happened through the Act. These regulations will also enable local authorities to grant permission in principle to suitable sites on their registers. We are also committed to widening permitted development to help give new life to thousands of underused buildings, as well as accelerating the disposal of surplus public sector brownfield land for new homes.
I fully recognise that some brownfield sites have more constraints than others, and that will probably be particularly the case where land values are not so high. Greenwich had its challenges but of course the land values were greater there. Some sites may also require additional costs to bring them back into acceptable use. A number of financial measures are in place to bring such sites back into use; for example, £0.4 million has been made available to local authorities during 2016-17 to help with the costs of dealing with urgent remediation cases and, if possible, ongoing remediation projects. We have created a £3 billion home building fund to provide loans for small and medium-sized building firms, custom builders and offsite construction. Some £2 billion of that fund will be long-term funding available to developers to deliver infrastructure to support a strong future pipeline of housing supply and will help unlock between 160,000 and 200,000 homes.
We expect at least half of this £2 billion to be used to support brownfield sites, including land remediation. I am very happy if the noble Baroness wants to engage further with officials on that particular point.
Furthermore, where brownfield sites suffer from contamination, land remediation relief, offered by Her Majesty’s Revenue & Customs for remediating contaminated land, provides relief from corporation tax, comprising a deduction of 100%, plus an additional generous deduction of 50%, for qualifying expenditure incurred by companies in cleaning up land acquired from a third party in a contaminated state. That is also significant. However, we must remember that not all brownfield land is suitable for housing development, and not all our housing needs will be met by building on brownfield land alone. As I have indicated, the Government have a clear plan and vision, but I am very happy to make officials available to explain the detail should noble Lords require more information.
To conclude, the Government are already taking action to support development on brownfield land. I assure the noble Baroness, Lady Pinnock, and other noble Lords that the Government will continue to seek prioritisation of brownfield land for development. That is central to what the Government are seeking to do in relation to housing. Without giving too much away about the housing White Paper, this aim will be reflected in that. I hope noble Lords will forgive the somewhat lengthy explanations I have given in relation to these two amendments, but they are both important. I hope that, with the assurances I have given, the noble Baroness will feel able to withdraw her amendment.
Baroness Bakewell of Hardington Mandeville
I thank the Minister for his very positive response to both the amendments. I am very pleased to hear that the Cabinet Office has a snappily named website where most public land can be accessed and in which most local authorities are participating. I shall go back and check that my local authority is participating. I can understand that some local authorities will perhaps be reluctant to upload exactly what their land holdings are; if I understood the Minister, that is a requirement of membership. However, I am pleased that there is some transparency around public land and that, wherever possible, it is brought into use for other purposes. I thank the Minister for the very detailed response on the issues around brownfield land. I found that very positive. I beg leave to withdraw the amendment.
“ In section 90(3)(effect of deemed planning permission) after “except” insert “section 100ZA and”.”
Lord Beecham
“Review of sustainable drainage
Before exercising his or her powers under section 41(1), the Secretary of State must carry out a review of the impact on communities’ resilience to flooding of planning legislation, government planning policy and local planning policies concerning sustainable drainage in relation to the development of land in England.”
Lord Beecham
My Lords, I will speak to Amendment 56. Some Members of the Committee may recall my account of the surreal experience I enjoyed some 13 or 14 years ago when I was telephoned at home on a Saturday morning by my noble friend Lord Prescott, at that point Secretary of State for the Environment, as York was being submerged by flood waters. He inquired of me as to where sandbags may be obtained for the purpose of dealing with this—surrounded as he was by the cream of the Civil Service, who apparently did not know. That is an extreme example of the then Government’s lack of foresight—I expect it has not entirely gone away—in dealing with what is a growing problem in the context of climate change, about which we have already heard a little this evening. It is imperative that there is a thorough review, not only of planning new development but, in my submission, of the condition of already developed land. Even now, for example, we are finding front gardens paved over in a way that simply contributes to the problem of excess water and, ultimately, places undue pressure on the drainage system in established areas, as well as making it more difficult to develop new homes in particular.
This is not a particularly radical amendment—far from it. It asks only for a proper review by the Secretary of State. I imagine that the Government might not be unsympathetic to that. It is not a matter, I suspect, that we will necessarily want to place in legislation. Of course, it may be one of the little revelations to emerge from the forthcoming White Paper—perhaps the Minister cannot tell me but we will find out in a day or two. If it is not, it should be. If it is not, there is even more purpose in raising the matter this evening. I suspect that the Minister will be sympathetic to this because it is a growing problem in many parts of the country. Alas, even now, insufficient money is being devoted to dealing with flood prevention generally, as well as the more detailed local applications of dealing with the issue in existing properties and developments. In the light of that and looking forward to a warm response to the Minister, I beg to move.
Baroness Parminter
I thank the noble Lord for raising this issue and support him in his call. I am sure the Minister will make reference to the flood review that is currently being undertaken by the DCLG and Defra. Of course, the noble Lord’s amendment not only looks at surface water flooding, which is what the current review is looking at, but puts it, rightly, in the context of the broader issues of retrofitting and other forms of flooding as well. I too hope the Government will be supportive.
Perhaps I might say a few words about the review that the Government are undertaking. Noble Lords will remember that in the Housing and Planning Bill the Government conceded that there would be this review of surface water flooding. I think it is a disappointment to Members that it is only a desk-based exercise, that there has not been a public call for evidence and that therefore engaged organisations have not had the opportunity to input their views. Indeed, no surveys have been undertaken of local planning authorities; it is purely private meetings with particular stakeholders, including the developers.
However, so as not to appear churlish, I reiterate my thanks to the Minister for agreeing to meet me and other representatives later this week to hear the findings of what we believe is the largest survey undertaken in the UK of SUDS. Of the more than 500 responses—including from lead flood authorities, local authorities and even representatives of central government—70% thought that the current planning policies were not sufficient to deliver sustainable drainage solutions. I hope the Government will consider those recommendations before they finalise their review.
Perhaps the Minister might not only comment on the noble Lord’s wish for a full review of the flooding situation but commit to agree to the findings, when we receive them later this spring, of the review of flooding by the Adaptation Sub-Committee of the Committee on Climate Change. I believe it intends to propose a number of recommendations around changes to planning policy, and I hope that the Government might be prepared to accept those. I am interested to hear the Minister’s views on how seriously they will be taking the committee’s recommendations.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord, Lord Beecham, for moving Amendment 56, and the noble Baroness, Lady Parminter, for her contribution. I am afraid I will probably have to let the noble Lord down on this occasion. I am not convinced of the need for this.
First, as has been noted, Section 171 of the Housing and Planning Act 2016 includes a requirement for the Secretary of State to,
“carry out a review of planning legislation, government planning policy and local planning policies concerning sustainable drainage in relation to the development of land in England”.
My department had already commenced work on the review prior to this section of the Housing and Planning Act coming into force by order on 1 October last year. The objective of that review is to examine the extent to which planning policy has been successful in encouraging the take-up of such drainage systems in new developments. My officials are working closely with colleagues at the Department for Environment, Food and Rural Affairs and the Environment Agency to gather evidence to inform the review. The first stage of the review—to survey local plan policies related to sustainable drainage systems—has been completed. We are now working towards the next stage of the review—to collect evidence on how sustainable drainage systems are deployed in practice.
Stakeholder involvement is a critical element throughout the review. We have been engaging with a broad range of stakeholders through two dedicated groups set up specifically to support the review. The first is a high-level project steering group comprising members of the DCLG, Defra and the Environment Agency, the Climate Change Committee, the Adaptation Sub-Committee’s secretariat, the Association of Directors of Environment, Economy, Planning and Transport, and the Local Authority SuDS Officer Organisation. A second-tier engagement group, comprising key SUDS-related stakeholders, will function largely as a sounding board of expert advice to be drawn on as the review progresses. This comprises members from organisations including the Institution of Civil Engineers; Water UK; the Wildfowl and Wetlands Trust and the Chartered Institution of Water and Environmental Management. Membership comprises representatives from local planning authorities, professional and statutory bodies, environmental non-governmental organisations, house- builders and other agencies.
We remain committed to working constructively with the Adaptation Sub-Committee of the Committee on Climate Change—an independent, statutory body established under the Climate Change Act 2008—so that the review informs their progress update on the national adaptation plan, due in the summer of 2017. Whenever I hear the mention of sandbags I always think of the organisation which the noble Baroness, Lady Worthington, led so well. She did considerable work on climate change through that particular organisation.
In addition to this review, the National Flood Resilience Review, published in September last year, assessed the resilience of key local infrastructure, such as energy, water, transport and communications, and identified ways to protect it better. The flood resilience review includes an action plan that the water, telecoms and electricity utilities will develop and implement, with long-term plans—where not in place already—for improving permanently the resilience of service provision to significant local communities from the flooding defined by the Environment Agency’s extreme flood outlines. Both of these reviews, when considered together, address the role of planning relating to sustainable drainage and the resilience of local infrastructure in response to a flood incident.
It is in that context that a requirement for a third review is unlikely to add anything new. I am happy to discuss this further with the noble Lord, but I do think it is unnecessary and I respectfully ask him to withdraw this amendment.
Lord Beecham
I will withdraw the amendment, but I would like to ask for a little clarification. Is the review concerned with new or existing development? Drainage issues are something many of us can see in our neighbourhoods. Front gardens are concreted over for car parking purposes and other things, with adverse consequences for drainage. Is that sort of issue part of the review which the Government are conducting?
Lord Bourne of Aberystwyth
My Lords, I think the noble Lord is asking about the first of the reviews—either the one on the Housing and Planning Act 2016 or the National Flood Resilience Review. In any event, I think the former of those—in connection with sustainable drainage—will certainly encompass that. I will double check that and be in touch with the noble Lord on that point. The second of the reviews is already complete. It was published in September last year, but I will ensure that he gets a link on that particular review if it is helpful.
Baroness Parminter
“Carbon compliance standard for new homes
(1) The Secretary of State must, within one year of the passing of this Act, make regulations which require a local planning authority to refuse planning permission for the building of any new home which would not achieve the carbon compliance standard.(2) For the purpose of subsection (1), “carbon compliance standard” means an improvement on the target carbon dioxide emission rate, as set out in the Building Regulations 2006, of—(a) 60% in the case of detached houses;(b) 46% in the case of attached houses; and(c) 44% in the case of flats.”
Baroness Parminter
My Lords, we clearly need new homes but we need to future-proof them. With homes accounting for nearly a quarter of our total greenhouse emissions in the UK, we need new homes to contribute cost-effectively to meeting our greenhouse gas targets, but also to lower fuel bills for home owners and avoid the costs of retrofitting. That would also enhance quality of life. All the evidence is that the frail and elderly, and indeed young children, face significant hardships and challenges from insufficiently heated homes. The Minister knows the strength of feeling on this matter from across the Chamber during the passage of the Housing and Planning Act. This is therefore a probing amendment to ask what the Government are doing on this extremely important matter in advance of the review that was alluded to at the time of the Housing and Planning Act. Given the time, I am not going to revisit the arguments that we went through on the Housing and Planning Act. However, since then there have been a number of places—Oxford, Cambridge, Wales and Scotland—where homes have been built and large developments put up showing where zero-carbon homes can be delivered at scale.
I have three questions for the Minister. First, following the Housing and Planning Act, what are the Government’s plans to meet our carbon emission reduction targets if they do not introduce zero-carbon homes? We have seen no indication in the industrial strategy or in any other government plans of how the Government intend to meet their carbon emission reduction targets if we do not deliver the savings on new buildings, which, as the Minister knows, the climate change committee says are absolutely fundamental.
Secondly, can the Minister confirm that the Government will not prevent local councils requiring higher building standards? There is some lack of clarity about whether local authorities can carry on insisting in their local plans on higher standards. Prior to the withdrawal of the zero-carbon homes standards, places such as Brighton required in their local plans higher building standards. Will the Government confirm that they will not prevent local authorities including a requirement for higher building standards?
Thirdly, and again another standing cycle, the cost optimality review of building regulations is imminent—I believe it will be completed some time in the summer. Will the Minister say a few words about that? When will it be forthcoming? In particular, will there be public engagement and a public call for evidence so that all interested parties can play their full part in making sure that we move forward?
Higher regulatory standards in this area should not be considered as burdensome red tape but as an essential requirement to reduce both energy poverty and the threat of catastrophic climate change. There should be no exemptions. The big volume housebuilders have the scale and resources to take it forward and the smaller housebuilders are fleet of foot and able to cope. Unless we do something soon on housebuilding requirements, this Government are not going to be able to live up to the commitments that they so proudly and rightly trumpeted following their achievements at Paris last year. I beg to move.
Lord Beecham
My Lords, we support the amendment of the noble Baroness. It is regrettable that having started off by beginning to tackle this issue, the coalition Government, it must be said, reduced the carbon standard requirements instead of building on what was a sensible approach. I hope that the Government—
Baroness Parminter
Just to confirm, it was the Chancellor of the Exchequer, George Osborne, who, after we had moved out of coalition with our partners, withdrew the zero-carbon home standards.
Lord Beecham
I am happy to accept that plea from the noble Baroness and put the entire blame on the Government. In all fairness, it is usually the case. Of course, George Osborne is now history and perhaps some of his policy decisions can be reviewed—I certainly hope so in this particular context. It is outrageous that we lag so far behind most European countries on environmental provision and space standards for properties. I hope that the White Paper—tomorrow or whenever it comes—is going to address those issues. If it does not then they will certainly be raised when we eventually come to discuss the White Paper. I am happy to support the amendment.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Baroness, Lady Parminter, for moving this amendment in group 24, and the noble Lord, Lord Beecham, for speaking to it.
First, I will set the context, which is partly the Paris climate change agreement. To take credit for it, it was of course concluded at a time when there was a Conservative rather than a coalition Government—although, to be fair, it was supported by all parties. It was a step forward, and we worked closely with many countries, not least in Europe. From the outset, I remind noble Lords that the standards for new homes were strengthened by 30% in the last Parliament, when there was a coalition Government, saving £200 on energy bills compared to standards before 2010, when there was a Labour Government. To meet those standards, homes will have A-rated condensing boilers, double-glazed windows with low-energy glass, and high levels of insulation and air tightness in their construction—they are very energy-efficient homes.
A very similar amendment was debated at length during the passage of last year’s Housing and Planning Act. That Act placed a duty on the Secretary of State to undertake a review—to which reference has been made—of energy performance standards for new homes under Section 2C of the Building Act 1984. We have commenced costings analysis to underpin this review, and our aim is to publish the final review in the summer. It aims to identify what improvements are cost-effective and feasible for new homes. We plan to extend it to cover non-domestic buildings and work to existing buildings, seeking further potential reductions in carbon emissions and fuel bills. The noble Baroness asked about progress in meeting our climate change targets. Obviously, domestic compliance and measures are important, but it is not limited to them; hence we have extended it to other buildings, for example. Transport also makes a significant difference to emissions, so the Inter-Ministerial Group on Transport and looking at what we can do with regard to electric cars is significant. There have been massive changes in California in particular, which the Government have taken note of and are progressing, because that will make a significant difference.
Over recent years, we have seen reduced costs of technologies and energy efficiency measures, such as solar panels, which were discussed in detail in last year’s debates. I emphasise that it is important that we consider only the very latest information and data on costs—that is crucial. The carbon compliance standards proposed in this clause are, so far as I can see, not based on the latest data—I think some of them are some six years old—although I appreciate that that can be looked at. Obviously, we are looking at all these issues in the round. To prescribe standards without up-to-date information would be difficult. I can confirm that changes to the building regulations flowing from the upcoming review will be subject to a full consultation. That will include draft technical guidance on how to meet the changes, which will cover all homes from detached houses to high-rise flats. The noble Baroness asked specifically whether local authorities are able to set higher standards than the national ones, and I can confirm that they are able to do just that.
The new clause also proposes putting in place new powers in the planning regime to set the carbon compliance standards. This is unnecessary, as there are already powers to set such standards through the building regulations. I appreciate and understand that the noble Baroness said that this is a probing amendment, but the powers are already there. Also, the technical expertise to ascertain whether a building meets a particular energy performance or carbon compliance standard already exists in building control bodies. However, this technical knowledge is unlikely to be available within a planning department. Our position is that minimum energy performance standards should be set through the building regulations, with compliance being demonstrated through building control bodies. That is what we are looking at.
I hope I have reassured noble Lords that the proposed clause is unnecessary, although I appreciate that this was a probing amendment in the understanding that the review is moving. The review will use the latest costs and evidence, and any cost-effective changes proposed will be workable for all home types, across the range. I am happy to share information on the review with noble Lords at appropriate points as we take it forward, if that is helpful. On that basis, I therefore ask the noble Baroness to withdraw the amendment.
Baroness Parminter
I thank the Minister for his responses and the clear answers to two of my questions. The public call for evidence for the review is very welcome, as is the commitment for local authorities if they wish to set higher standards. It is helpful that those answers have been set on the record in that way. On my third point, I appreciate that housing makes up only one component of the UK’s greenhouse gases, but it is still one-quarter. When we had a Department of Energy and Climate Change, it was looking at producing an updated road map that showed how much would be delivered by savings in transport and housing. That has clearly been booted into the long grass, but at some point the Government will have to come clean on the issue. With that in mind, I beg leave to withdraw the amendment.
Baroness Andrews
“Compulsory acquisition: payments from charitable trusts involved in conservation
In a case where—(a) a local planning authority has the power to compulsorily acquire a listed building or a building in a conservation area; and (b) a charitable trust whose objectives include the conservation of such property has given an obligation by deed to the local authority to pay to the local planning authority the costs of such acquisition;the planning authority must exercise its powers to compulsorily acquire the relevant building.”
Baroness Andrews
My Lords, I declare an interest as deputy chair of the National Heritage Lottery Fund and chair of the Heritage Lottery Committee for Wales. We live in a time when every national and local asset needs to work for its living. Across the United Kingdom there are abandoned, and often derelict, properties, many of high heritage value and well loved by the community, that could be providing much-needed homes and spaces for businesses and enterprise and injecting new economic activity into communities. In other words, the amendment is a step towards enhancing the means by which these liabilities can be turned into assets. I am grateful for the help I have received from the Heritage of London Trust Operations, Diana Beattie and Colin John, and Ian Morrison of the Architectural Heritage Fund. They have much fine work to their credit.
What opportunity is this amendment seeking to create? Many of the buildings I am talking about are already on the Historic England buildings “at risk” register. They range from rare surviving industrial buildings such as mills or colliery buildings to historic theatres, cinemas, schools, piers, magnificent town halls, hospitals and domestic buildings such as a concrete house in Lordship Lane. Buildings such as these have been at the heart of communities. They occupy a very important, familiar and well-loved place. When they are abandoned, the cost of saving them and putting them to use rises exponentially and they deteriorate fast. Owners cannot be traced and local authorities find it impossible to acquire them. Year after year they look worse and become more dangerous, and the community feels their loss even more acutely.
This problem has been in the “too difficult” box for too long. It is no exaggeration to say that when these buildings come back into life, they galvanise the entire area: they can act as a catalyst and a confidence builder. I think particularly of Middleport Pottery in Stoke, the last surviving example of a pottery using the transfer method. After a long struggle by the Prince’s Regeneration Trust and English Heritage to keep it alive, it is now bringing in apprentices and its order books are full.
The amendment, which to my knowledge is the first of its kind to be proposed in primary legislation, is designed to tackle this problem. It confronts the fact that both the country’s heritage and its economic performance are, as the Architectural Heritage Fund puts it,
“suffering from an embedded culture of impunity for private property owners who are not upholding their responsibilities”.
At the moment, the system colludes with both negligent property owners and risk-averse local authorities. Owners are sitting on their property waiting for land values to increase and for the degree of deterioration which, in many cases, justifies demolition. Some of these owners cannot afford to put the building right; some refuse to do anything and they disappear. There are many ways in which a recalcitrant owner can resist a CPO. Some owners fail to respond and disappear. They are particularly threatened by any attempt by a community organisation to engage with them. That is frustrating, since to win a CPO case the public body has to be able to show that it has tried and failed to resolve the future of the property by negotiation with the owner. But the owner may be in a tax haven overseas and the property in the hands of a nominee. Alternatively, the owner may launch a series of frivolous appeals or put forward new and ludicrous planning proposals. He can try to block a CPO by claiming that he is about to start work—but the work is never begun, or sometimes it is started and then the owner just walks away.
The 2015 locality investigations under the Community Assets in Difficult Ownership project illustrate how easy it is for ownership to become a block on action. Local authorities have powers to act, of course, including compulsory purchase powers, but many feel that the process is simply too complex, too expensive and too slow. The costs are high because in addition to the compensation to be paid, the CPO may also have to be fought through the courts or at a lengthy public inquiry. There is every incentive for the owner to prolong the case. The risks arise from the possibility of the case being lost, the delays and the unpredictable costs; and sometimes by the time the CPO is confirmed, the other policy objectives which drove the process may have changed.
Another issue is that community organisations lack specialist knowledge and advice, which is a particular problem when what is needed is investment to establish the viability of a project in the first place, so it is all the more to the credit of organisations like the Heritage of London Trust, because when such bodies undertake a project like saving St. George’s Garrison Church, it is very hard work and a triumph when it is achieved. We have other outstanding local authorities like Great Yarmouth, which has made tremendous progress in bringing its buildings back to life.
The new clause is very simple and I commend it to the Minister. In effect, it means that where a charitable body that could be a buildings preservation trust or any form of charitable body, such as a community interest trust with conservation objectives, has given a deed of obligation to the local planning authority to pay the costs of acquisition, which are set by the district valuer, the local authority must exercise a CPO. The deed would be in effect a form of contract, even though I understand that it can be a unilateral undertaking such as those attached to planning applications. The costs of acquisition will involve all the transaction costs, thus removing any risks associated with taking over the building itself. In some cases of extreme negligence, the costs have been assessed as nil. Clearly, no sensible charity would enter into such an obligation without having the capacity to cover the costs, and a local authority will do its due diligence as well. Once the deed of obligation is in place, the local authority is then required to exercise the compulsory purchase order that will enable the conservation charity to acquire the building, which will then be restored and brought to life. Ultimately, the decision will rest with the Secretary of State, who will decide on the basis of the risks removed and the possibilities raised.
The amendment would achieve two things. It would first break the logjam of no one wanting to undertake any initiative because of the costs of acquisition. Secondly, it would provide a greater degree of certainty for community groups to enable them to undertake creative projects for the benefit of all. The amendment is carefully crafted and has been the subject of a great deal of legal advice and consultation with conservation and heritage bodies. It is also central to the principles of this Bill, and to localism as a political construct. It would free up resources for housing and enterprise and for vital community development at the heart of communities. It would serve our heritage in the best possible way by making it part of the future, and it comes with the moral backing of all the national heritage bodies.
The housing White Paper is imminent, and I will be amazed if there is no reference in it to this issue. We know the scale of the challenges facing the country, including those of Brexit, so this is a very timely and plausible proposition. I very much hope that the Minister agrees with me, and I beg to move.
Viscount Trenchard (Con)
My Lords, although I have taken no part in the previous stages of the Bill, with the leave of Members of the Committee I feel that I should now intervene in support of this amendment which has been so sensibly and compellingly moved by the noble Baroness, Lady Andrews. Councils in their development plans published so far are still some way away from delivering the Government’s target of 1 million new homes by the end of this Parliament. That is why the green belt is now about to be sacrificed as never before to make way for new housebuilding on a large scale, even if many of the new settlements are euphemistically called “garden villages”. I greatly regret that this is happening while there remains a very significant amount of land designated as brownfield sites, wasteland and former industrial sites.
The amendment draws attention to another excellent source of buildings which can be restored and converted to provide new homes. Up and down the country, there are a great number of listed buildings and buildings within their curtilage which have fallen into a serious state of disrepair. Councils have the power to place compulsory purchase orders on such properties, but most councils never use their powers because they lack the legal expertise to act, they have better claims on their funds, and there are risks that initiating a purchase will drag on for a considerable time, diverting their human resources as well as their available funds.
The example of 549 Lordship Lane, acquired by Southwark Council and restored by Heritage of London Trust to provide five attractive and affordable homes, is typical of the many opportunities which this amendment is designed to unlock. Councils will be compelled to use their compulsory purchase powers where the costs have already been guaranteed by a committed charitable trust. They would quickly develop the necessary legal and other professional skills and be emboldened actively to approach charities seeking to commit funds to restore derelict buildings, thus removing eyesores which blight the landscape and alleviating pressure on the green belt. To place a duty on councils to exercise their powers under the circumstances covered by the amendment, it follows that there would be an increased need to assist councils by the creation of a central advisory body to help them obtain access to the relevant expertise. Perhaps the Minister might tell the Committee whether he thinks the Government could assist with this. It is to be welcomed that heritage organisations are already working together to provide an evidence base which will justify and promote interventions of the kind the amendment is designed to enable. I hope that the Minister will recognise the benefits that the amendment would provide, and I look forward to hearing his response.
Lord Beith (LD)
My Lords, I declare an interest as president of the North of England Civic Trust and of the Historic Chapels Trust. Both organisations restore historic buildings and put them to use in very much the way that the noble Baroness, Lady Andrews, described. I welcome her amendment, because it draws attention to a particular problem: the reluctance of local authorities to use their compulsory purchase powers when listed buildings are in advancing disrepair, which in the end will lead them to a state where it is claimed that they can no longer be put right.
I have experienced that in Northumberland, with a notable building called Surrey House, which was a 17th-century building rebuilt in the 18th century, in which the Earl of Surrey was alleged to have stayed on the eve of the Battle of Flodden. I have not yet seen the evidence for that claim, but it is widely made. I imagine he got a good night’s sleep, because he had a pretty good day the following day—from his point of view. There was an application to demolish the building in 1970, and the whole thing dragged on for year after year. The local authority then was a local authority of 26,000 people, and was very ill-resourced to tackle something like this. I thought the problem might be resolved when we moved to a unitary system, where we had a much larger local authority, but it still felt the same constraint. It might go to the extent of urgent works notices, it would be reluctant to go to the extent of a full repairs notice, and it would be extremely unwilling to go to the extent of compulsory purchase.
The lack of legal expertise and the fear of uncertain court costs that may result act as a very severe deterrent to local authorities to use their powers. The result is that you have a meaningless sanction, where owners know that local authorities are reluctant to take the ultimate sanction against them; they can just play the system. It is appalling that this should happen in the type of case particularly covered by the amendment, where there is a charitable organisation in position, ready even, to guarantee the costs of restoring the property. We should not allow that situation to continue.
More generally, even if the Minister is reluctant to accept the amendment in the terms in which it appears, I hope he will recognise that there is a problem here. We have left the system for dealing with neglected historic buildings without a realistic sanction. The sanction has effectively been destroyed by the reluctance of many authorities to take these difficult steps. I wish they had not been so weak in this respect, although I understand some of the reasons, particularly with very small authorities. Unless we do something about it, we will continue to waste wonderful buildings which should be retained and can be of great service to the community.
Lord Kennedy of Southwark
I support the amendment in the name of my noble friend Lady Andrews. She ably outlined why the Government should give a sympathetic response to it. I was pleased to hear the noble Viscount, Lord Trenchard, talk about 549 Lordship Lane. I know the property, referred to as the Concrete House. The council has won an award for its work there: it bought it, did a good restoration and now uses it for shared ownership. I support the amendment. I am conscious of the time and I hope that the Minister will also want to respond quickly.
Lord Young of Cookham (Con)
My Lords, at this stage of our flight, the co-pilot takes over. After a very smooth passage with my noble friend at the controls, there may well be some turbulence. I am grateful to the noble Baroness for moving this amendment. She chaired English Heritage for four years, so she has a proud record in the conservation world. I applaud the way she is carrying forward that commitment by tabling the amendment to insert a new clause. She is well qualified and well informed on this issue. As she said, listed buildings are an important part of our environment: they create a sense of identity in a locality and support local economies by attracting visitors. As my noble friend Lord Trenchard said, this offers the opportunity to provide housing in some restoration projects. I also commend the intervention from the noble Lord, Lord Beith, and the work done by him in his particular field.
We all support the objectives of the amendment, but there may be alternative routes to the common destination. The noble Baroness has been a CLG Minister herself, so she may feel some empathy for someone who, having listened to a popular and powerful case for a well-argued amendment, picks up the departmental brief which has at the top, “Resist”. I have two points of my own to make. Listening to the debate, I wondered if there had ever been a case where a charitable trust had done exactly what the noble Baroness had suggested—raised all the funds and then presented the local authority with an indemnity—and the local authority had refused to go ahead with a CPO. If there was such an example it would be relevant to the case that is being made.
My other thought was that, having sat patiently through the debate on this Bill, I have noticed a recurrent criticism that we are fettering the discretion of local authorities. We are accused of not trusting them, of passing primary legislation which makes them do things. The amendment does have the words “a planning authority must”. What is the view of the LGA, which is very well represented in the Committee? Does it welcome the discretion of its members being fettered in the way that the amendment seeks to do? Having said that, the noble Baroness was quite right to remind us that local authorities have the ability to compulsorily purchase listed buildings that are in need of repair. It is an important weapon in their armoury to protect our built heritage.
If one looks at the guidance provided by the Government, paragraph 16 of the compulsory purchase guidance notes states that it specifically provides for local authorities to consider requests from community groups—which could include heritage trusts—to use their compulsory purchase powers to acquire community assets that are in danger and, under the guidance, local authorities are required to consider such requests and to provide a formal and reasoned response.
In a sense, the onus is already on the local authorities to explain why—were they presented with the sort of offer that we have just heard—they feel they cannot accept it. It is also the case, as the noble Baroness said, that heritage trusts have access to grant funds and other sources of income to enable them to carry out the preservation of listed buildings and bring them back into use. What this amendment seeks to do is, in effect, to lock in a statutory embrace the heritage trusts on the one hand with the resources and the local authorities with the CPO powers on the other. I am slightly worried that this might undermine the collaborative approach which I think works quite well at the moment. As has already been said, the CPO power exists, but I am not convinced that the relationship between the local authority and the trust would be assisted if the local authority knew that the trust had this sanction behind it to compel it to do something.
On the point made by my noble friend Lord Trenchard, Historic England is working with local authorities and giving them advice and financial and technical support in many cases where listed buildings are falling into disrepair, enabling a satisfactory solution to be arrived at. That collaborative approach is the way forward. A good example, which if it were not 7.56 pm I would share with the Committee, is Hastings Pier which was restored in exactly the way that has been outlined.
The noble Baroness has commented that absentee owners are difficult to deal with or if the owners or reputed owners do not engage with the compulsory purchase process it can proceed without them, and the acquiring authority only has to make a reasonable attempt to find them. That attempt includes information in CPO notices simply displayed on site, as well as being sent to the last known address of the owners—then they can proceed.
So far as the trust is concerned, the cost of compulsory purchase is not always easy to assess. There could be court challenges and it could end up in the High Court. The defence of a legal challenge would fall to the trust and any failure of a trust to meet its responsibility to indemnify the local authority would put the trust’s future in jeopardy and the local authority would be liable for those costs.
In a nutshell, the Government are not convinced that the noble Baroness’s amendment to compel a local authority to proceed with a compulsory purchase would have a significant effect on the use of the CPO legislation. The current process provides a balanced approach, allowing local authorities and heritage trusts to enter into mutually acceptable arrangements. It encourages collaboration between local authorities and heritage trusts, and as I have said, that approach could be jeopardised if an element of compulsion were to be introduced.
I am happy to reflect on the dilemma which the noble Lord, Lord Beith, outlined about local authorities’ reluctance to take things forward. In the meantime, with the greatest respect, I ask the noble Baroness to withdraw her amendment.
Baroness Andrews
My Lords, I am very grateful to the Minister. I detect a sympathy beneath his detailed rebuttal. I am also very grateful to Members who supported the amendment. The points the Minister made are worth reading properly and I will go on to do some research in connection with the heritage bodies about the response of local authorities and the effectiveness of the guidance. There is an argument which says that advice and guidance are fine as far as they go, but what we are looking at here is case after case across the country of deep frustration, of failure of capacity and of fairly old resources. I take the point about an element of compulsion, but there comes a point in all forms of policy where something more draconian needs to be considered as part of a conversation about what the alternatives are, otherwise we will never move away from the sort of stasis that we have had over sometimes magnificent buildings but which are a blight and an eyesore when they could be so productive in the community. We will rise to the challenge and see whether we can come back. We may be back before Report with evidence, but in the event, I certainly withdraw the amendment.