Monday 6th February 2017
(7 years, 10 months ago)
Grand CommitteeNeighbourhood Planning Act 2017 View all Neighbourhood Planning Act 2017 Debates Read Hansard Text Amendment Paper: HL Bill 86-IV Fourth marshalled list for Grand Committee (PDF, 105KB) - (6 Feb 2017)
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, first, it is good to see the noble Baroness, Lady Bakewell, back and looking in fine fettle. I shall speak collectively about government Amendments 28, 30, 35, 39, 40 to 43 and 50 to 55. I then look forward to hearing from other noble Lords on non-government amendments in the group.
Before discussing the detail of the government amendments, it may be helpful for me to set them in context. Clause 12(1) would introduce new Section 100ZA into the Town and Country Planning Act 1990. This would provide the Secretary of State with a power to make regulations about what kind of conditions may or may not be imposed and in what circumstances.
Planning conditions, when used appropriately, can be an effective tool in ensuring we deliver sustainable development. However, there remain concerns that some local planning authorities are imposing conditions that do not meet the well-established policy tests in the National Planning Policy Framework: that conditions should be imposed only where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects. The purpose behind this power is to help remove costs and delays to the delivery of new development caused by the need to respond to unreasonable planning conditions.
The power will put on a statutory footing the national policy tests for conditions and, by reducing the number of unreasonable conditions imposed and which fail to meet the tests, help get more homes built more quickly once they have planning permission. I emphasise that in the exercise of this power, the Secretary of State must be satisfied that the regulations are appropriate for the purpose of ensuring that any condition imposed on a grant of planning permission for the development of land is, in broad terms, necessary, relevant, precise and reasonable. This will not impact on appropriate protections for important matters such as heritage, ecology and flood mitigation.
As drafted, Clause 12 allows the Secretary of State to exercise this power in respect of any grant of planning permission. This includes planning permission granted not just for a single planning application for a specific scheme, but by an order, which could be granted by the Secretary of State, the Mayor of London, local authorities or neighbourhood planning groups. Development orders can grant planning permission for a particular site or geographical area and for a variety of specified types of development. In the light of responses to the Government’s consultation on this new power, to which a response was published at the end of December last year, we have concluded that it is generally not appropriate to apply this power where planning permission is not granted following the consideration of an individual application in certain circumstances. We therefore seek to amend the clause.
The amendment would restrict new Section 100ZA from applying to order-making powers. Development orders are not granted following an individual application and often grant planning permission to an area. They therefore may need to impose a number of limitations. It is important that a local planning authority or the Secretary of State can set out in an order those conditions that frame the type of development that would be acceptable. This can include a condition that the development, including the change of use, is completed within three years. Such a condition may be unreasonable when imposed following the consideration of a planning application, but not in the very different exercise of granting planning permission by order.
Given this, and in the light of the consultation responses on this issue, we have concluded that the new power to limit conditions should not apply to orders. Consequently, should the amendment be approved, the power will not apply to grants of planning permission in the following: development orders, simplified planning zones, enterprise zones, and development control procedures—that is, where government authorisation is required. This will retain the core benefit of the power in ensuring that planning conditions are imposed only when necessary, while protecting the flexibility afforded to grant planning permissions by these powers. With these arguments in mind, I therefore beg to move the amendment.
Baroness Parminter (LD)
My Lords, I have Amendment 38 in this string of amendments. With one in six homes at risk at present, it is quite clear that homes need to be built which protect residents from increasing flood risk. I have put down this amendment because I noted that the Government, both on Report and in Committee in the Commons, were remarkably un-keen to delete this clause, so my thinking is that there is more than one way to skin a cat. If one feels as I do about the issue of flood risk, there is perhaps the potential for exemptions. I have tabled this amendment because all the evidence from around the UK shows that we need drainage standards and designs for drainage to be agreed up front. If they are not, it is not good for the housebuilder or the local authority, and it is certainly not good for the home owner.
In Scotland there is a legal requirement to have sustainable drainage on any development, but developers are not obliged to engage with Scottish Water on the design and building up front. This results in housebuilders producing their own designs, which Scottish Water then has issues with. The result is that 90% of these drainage systems are not adopted by Scottish Water. In Wales, however, developers have to have an agreement with the sewerage undertakers on a specific design before they start on-site. This system works and does not hold up developments. This shows that the designs for sewerage and sustainable drainage need to be settled at the beginning of the process, and local authorities need the powers to enable that to happen. If the prohibition on local authorities imposing pre-commencement conditions goes ahead, that cannot happen. What then will happen is that developers will not be certain about the drainage, the adoption or the maintenance, there will be commuted sum disagreements, developers will in all likelihood put the arrangements into a private company with no quality assurance on the drainage—it will probably end up being a tank somewhere in the ground rather than a scheme that enhances the environment or the area for the homeowner—and future flooding issues will be left for the local authority and the homeowner to pick up.
The Government have given us no evidence that there is a problem. The examples the Minister sent round in the letter to noble Lords were just a series of quotes, mainly from the annual reports from the housebuilders. I have gone through the government consultation and there is no indication of the scale of the so-called problem, and no single citing of a concrete example. It is therefore no surprise that only a minority—44%—of those who undertook the government consultation supported the proposal to prohibit local authorities from imposing pre-commencement conditions. Therefore, there is not majority support from the Government’s consultation for this measure to go ahead.
Of course, planning conditions imposed by local planning authorities should be reasonable and necessary. However, as the Government themselves said on 24 January in response to the EFRA Committee’s report on flood prevention,
“the robust planning approach in place is the best way to control development so that it does not add to flood risk”.
As such, pre-commencement conditions should be seen as a positive tool to deliver this, as well as to ensure that permission can be granted.
To be blunt, this approach is also putting the cart before the horse. After a battle with noble Lords, Clause 171 of the Housing and Planning Act requires the Government to review planning law on policy relating to sustainable drainage in England. That review by DCLG and Defra is currently under way and is due for completion by April. At this point I must say that I am grateful to the Minister for the offer of a meeting on that issue, which I understand is now scheduled for later this week.
The Government have provided no real evidence that there is a problem. Evidence from Scotland and Wales shows that we need to ensure that flooding conditions are settled up front, and there is a real risk here of pre-empting any decisions following the Government’s own review, which we are expecting in the next few months. On that basis, it is absolutely essential that the Government address the issue, and if they will not go as far as removing the whole clause, they should make exemptions for important issues such as dealing with flood risk; otherwise, we will be putting home owners of the future in real danger.
Baroness Hodgson of Abinger (Con)
My Lords, I speak with humility because I am not an expert in planning, but I do so because of the concern that this clause does not support the agenda of localism. My understanding is that if this clause stands, building may start before details have been agreed. Will my noble friend tell us what provision there is for local people to object to building once it commences? It seems to me that once building starts it is very hard to stop it rolling on and for local people to really have any input into whether it is acceptable. I also understand that pre-commencement conditions are one way to ensure appropriate design and quality, and that buildings are put in the right places. We have heard about drainage and flooding, but there is also the issue of whether these conditions enhance their local communities. I am concerned that this clause appears to load the dice against what local people may wish and I do not feel this is what we were elected for on our agenda of localism.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who participated in the discussion and debate on these non-government amendments—specifically my noble friends Lord True and Lady Hodgson, the noble Lords, Lord Kennedy, Lord Shipley and Lord Judd, and the noble Baronesses, Lady Parminter and Lady Andrews.
Before I address each of the amendments tabled by the noble Lords, I will make some generalised points about the position regarding pre-commencement conditions. The absence of pre-commencement conditions does not mean that one can start work automatically. The pre-commencement conditions, once agreed—or if there are none—enable the developer, for example, to raise finance and perhaps to put a construction team together with the security of knowing that he is likely to have permission, but it does not mean that the work will begin. Nor do the provisions of Clause 12 prevent local authorities with gumption—which is most of them, and many noble Lords here represent them—from agreeing conditions. It absolutely provides that conditions can be reached by agreement with the developers and this is what would happen in many cases. We make it absolutely clear that this is not preventing agreement between the parties, which I am sure would happen in the vast majority of cases.
Let me deal with the amendments in numerical order, if I may, so that I do not come to that of the noble Baroness, Lady Parminter, until later. I note that Amendment 29 was also tabled in Committee in the other place. The explanatory statement accompanying it explained that the intention, which was also made clear by the noble Lord, is to ensure a local voice in judging local circumstances and the impact of planning decisions. This intention is admirable, and it is absolutely the Government’s aim that the planning system remains centred on community involvement.
Subsection (1) is about ensuring that the well-established policy tests for conditions are adhered to. The proposed power for the Secretary of State to prescribe what kind of conditions may or may not be imposed, and in what circumstances, may only be exercised as provided by subsection (2) where such provision is appropriate for the purposes of ensuring any conditions imposed meet the policy tests in the National Planning Policy Framework. Those tests are reflected in the wording of subsections 2(a) to (d) of new Section 100ZA, which means that the Secretary of State can only use this proposed regulation-making power to ensure that any condition imposed on a grant of planning permission seeks to make the development acceptable in planning terms—in other words, that it is consistent with the National Planning Policy Framework —is relevant to the development and to planning considerations generally; is sufficiently precise to make it capable of being complied with and enforced; and is reasonable in all other respects. In other words, the Secretary of State may make provision in regulations only if such provisions are in pursuit of those policy tests.
For example, as set out in the Government’s consultation on these measures, we are considering prohibiting conditions that planning guidance already advises local planning authorities should not be imposed. These include conditions which unreasonably impact on the deliverability of a development, such as disproportionate financial burdens; which require the development to be carried out in its entirety; and which reserve outline application details. The Government have no intention of using this power to prohibit the use of any reasonable and necessary conditions that a local authority might seek to impose to achieve sustainable development in accordance with the National Planning Policy Framework, including conditions relating to important matters such as archaeology and the natural environment. The Government believe it would be detrimental to the planning process for regulations made under new Section 100ZA(1) to provide for local authorities to make exceptions to the prohibition of the use of certain conditions. To do so would create uncertainty for applicants and additional bureaucracy.
In fact, during our consultation on this measure, local authorities agreed overwhelmingly that conditions should be imposed only if they passed each of the national policy tests. As an assurance for local authorities and other interested parties, subsection (3) of new Section 100ZA includes a requirement to carry out a public consultation before making regulations under subsection (1). It is fairly clear what a public consultation is, and if a national condition is being talked of you would expect a condition on a national basis. If it is more localised—one cannot generalise: cases may differ; they will not all be the same—it will be dealt with according to the law regarding public consultations. I may write to noble Lords to reassure them on how that issue will be addressed, but the Bill makes it clear that, in talking of a public consultation, there is no intention to make this exclusive, and the local authorities will certainly be involved. That will afford the opportunity for local views to be put forward as part of the process of determining how the power will be exercised.
Lord Kennedy of Southwark
Perhaps the Minister is going to deal with this issue later, but nobody here, including me, wants to impose a single unnecessary condition on any planning application. I would not do that, and nor would other noble Lords present. However, the Minister seems to be describing quite a bureaucratic process for the local planning authority, and I wonder whether he is creating more of a problem than the one he seeks to solve. What we have yet to hear from him is the list of all these councils and planning committees throughout the country that are creating all these conditions. I do not know where they are, and if this measure is so needed, I hope he will give us an extensive list of all the offenders and what they are doing. We have yet to hear that from the Minister or any of his colleagues.
Lord Bourne of Aberystwyth
My Lords, I have covered only one amendment so far. I appreciate that the noble Lord is making a central point and I will seek to respond to it, and if there are other points that he wants to bring up towards the end of our consideration, I will be happy to deal with them.
On Amendment 31, I recognise that there are concerns around the impact on sustainable development, which is evidenced by the fact that this amendment was also put forward in Committee in the other place. However, I need to be explicitly clear that the clause is not aimed at conditions that are necessary to achieve sustainable development. I reassure the noble Lord that appropriate protections for important matters such as heritage, the natural environment and measures to mitigate the risk of flooding will be maintained. If the planning authority in question is unable to come to an agreement with the developer it is obviously the case, just as it is now, that planning permission will not be granted. What we are seeking to do is bear down on those conditions that we think are not appropriate and do not need protection.
It may help noble Lords if I give some background to the same issue when it was raised in Committee in the other place by Roberta Blackman-Woods MP, the honourable Member for the City of Durham, who was concerned about a situation where a condition prohibited by the Secretary of State makes the development acceptable in planning terms but makes it unacceptable in social, economic or environmental terms. The purpose of the planning system as set out in the National Planning Policy Framework is to contribute to the achievement of sustainable development. Sustainable development is recognised as being comprised of three distinct dimensions: economic, social and environmental. Each of these aspects is capable of being material in a planning decision. This amendment would remove a key element of new Section 100ZA(2) which ensures that the Secretary of State can make regulations only under subsection (1) in order to ensure that any conditions imposed are necessary to make development acceptable in planning terms. Subsection (2) is important as it constrains the power in subsection (1) so that it can be used only to ensure that any conditions imposed meet the well-established policy tests for conditions in the National Planning Policy Framework. To recap, paragraph 206 of the framework states:
“Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects”.
This, as well as subsections (2)(b) to (d) are key safeguards to ensuring compliance with the policy tests, and I therefore believe that the amendment could run contrary to the noble Lord’s intention.
In addition, if by removing subsection (2)(a) noble Lords are seeking to ensure that conditions cannot be overlooked because they are unacceptable for other reasons, the existing drafting of subsection (2)(d) already adequately provides for this in its requirement for conditions to be reasonable in all other respects. Finally, as noble Lords are aware, before making regulations under subsection (1), as I have said, we are required to carry out a public consultation as set out in subsection (3). I appreciate the point made by my noble friend Lord True and others that perhaps it would be of assistance if I set out in a letter following today’s Committee session exactly how we expect the public consultation to play out, but it will give anyone with an interest an opportunity to be heard and for their views to be considered.
Lord Stunell (LD)
I wonder if either in that letter or perhaps in another one the Minister could set out to what extent the provisions of Clause 12 are or are not simply putting the National Planning Policy Framework on a statutory footing. Could he also set out whether to any extent it either goes beyond the framework or reduces from it?
Lord Bourne of Aberystwyth
I thank the noble Lord, Lord Stunell, for that intervention. Obviously the National Planning Policy Framework stands independently from the Bill and I do not believe that any cross-reference is made in the legislation to the framework, but of course all planning decisions have to be made in accordance with it. I will deal with the point in the letter I will send round, but I think that all of the points which have been raised are covered in the National Planning Policy Framework as far as the Government are concerned and as far as the legislation allows.
Baroness Parminter
I am sorry to question the Minister, but can he confirm that in that consultation only 44% supported going ahead with the proposals? If so, that is a clear minority.
Lord Bourne of Aberystwyth
From memory, I think that the noble Baroness is correct, although that is a majority of those who have a view—there were quite a few who ticked “don’t know”. As I have indicated, it was a majority—admittedly a bare majority—of those who gave a view: more than half offered either complete support or supported the principle. However, I will make sure that a link to that document is available for noble Lords.
I assure noble Lords that I recognise the intention of Amendment 37. We of course have to make sure that where agreements cannot be reached, a sensible solution can be found. However, there are a number of reasons why a dedicated mediation system, as proposed by the noble Lord, Lord Kennedy, is not necessary and, indeed, may be counterproductive. As I have made clear, Clause 12 builds on best practice as set out in our planning practice guidance, which states that applicants and local authorities should engage at the earliest possible stage to come to an agreement on the conditions to be applied on a grant of planning permission. I am sure all noble Lords recognise and appreciate the importance of early and sustained engagement to help facilitate a constructive dialogue on the use of conditions. Let me hasten to underline that that is, I think, what happens in the vast majority of cases. The measures here will help to ensure that this takes place.
Existing routes are available to both local authorities and applicants in the unlikely event that there is disagreement on the conditions proposed. If a developer refuses to agree with a particular condition and the local authority deems it necessary, having considered it against the criteria set out in the National Planning Policy Framework, the authority can, and indeed should, refuse to grant planning permission. Nothing could be clearer, and that is the position the Government wish to stress. That is the intention of the legislation going forward; it is not to alter the basic provision that decisions are reached locally. Provided that they are in conformity with the National Planning Policy Framework, it is appropriate that, if the local authority cannot agree with the developer and there are relevant considerations in the framework, it should turn down the application.
At present, applicants would still have the ability to appeal to the Secretary of State against a decision to grant planning permission which is subject to conditions that they disagree with. Further to this, we consulted on our proposal to specify a default period after which the agreement of the applicant would be deemed to be given. Following the response to this consultation, we are of the view that it would be appropriate to introduce a 10-working-day default period. This could also act as a further incentive for parties to engage earlier in the process and discuss conditions that may be imposed on a grant of planning permission. We must acknowledge that adding a further formal step in the process by way of mediation could cause delays—here I find myself in agreement with my noble friend Lord True. In addition, it could actually discourage effective discussions between applicants and local authorities, who may simply wait, knowing that there is the safety net—as they may see it—of the mediation route as an alternative to meaningful engagement at an earlier stage. I hope noble Lords agree that encouraging local authorities and developers to work together to overcome any barriers to delivering the homes that the country needs is the most important step.
Lord Kennedy of Southwark
My Lords, I agree with almost everything the noble Lord, Lord True, has just said. I thank the Minister for his very full response, which is much appreciated. I agree with him—I do not want any conditions imposed, including those he termed “necessary”, “relevant”, “enforceable”, or “reasonable”. I think everybody in the Committee will be in agreement with that—there is no problem there whatever. He also said that these pre-commencement conditions are not necessary. That is good to hear, but I worry that at the end of the day this will all be either so vague that it will not make any difference or so detailed that it will threaten sustainable development. I am not clear about what I have heard from the Minister. I hope he will respond to us in his letter about where we are going because I certainly want to see development take place that is sustainable, that we learn from the lessons of the past and that we get things built properly.
I may have misheard him, but will these discussions between the planning authority and a developer or an applicant take 10 days—someone else may have said that—and if not, how long should that go on for? He is determined but, as the noble Lord, Lord True, said, the risk is that nothing is agreed and that everything goes straight off to the appeals process. That is not delivering development by consent—certainly not sustainable development and not development that is in accordance with the local neighbourhood plan, or the local development plan. I live in London, as the noble Lord, Lord True, does. Certainly, in my own ward we are developing a neighbourhood plan and we are putting hours and hours of work into that. It seems daft that if we agree something, we could then find it all just pushed to one side. I do not know what the Minister can say now, but I certainly look forward to seeing his letter.
In a moment we will debate whether Clause 12 should stand part of the Bill. I look forward to the Minister’s letter because we have still not had the list of rogue authorities. At the moment, I am convinced that the clause is a sledgehammer to crack a nut. We have had one or two problems with plugs and things but these are not massive. If there were these problems, the noble Lord would have listed them in his contribution; maybe they will be in his letter, which I look forward to.
Lord Bourne of Aberystwyth
My Lords, I thank my noble friend Lord True for his response. Yes, it is the intention of the Government and I think we have demonstrated that we are keen on consensus in this area. We want to give power to neighbourhood planning; that is the essence of this legislation. However, we do not want to hamper developers and, therefore, housebuilding—which is central to all our aims—with unnecessary pre-commencement conditions. As I have indicated, it is absolutely right that these conditions can, and in many cases should, be agreed between an applicant and the authority. But we do not want to prescribe from the centre situations where this has to be the case. I will seek to enlarge on that in the letter I am writing. I will also, in relation to the plea from the noble Lord, Lord Kennedy, seek to give further evidence of the unreasonableness of some pre-commencement conditions, because that lies at the root of why we are seeking to bring in these powers. I ask noble Lords not to move their amendments.
Lord Stunell
My Lords, I would like Clause 12 to be taken out of the Bill. It is unsatisfactory because it is written so broadly. Under subsections (1) and (2), the Secretary of State is in a position to do practically anything as long as it is a prescribed description, but subsection (9) says that,
“‘prescribed’ means prescribed by the Secretary of State”.
So there is no limitation on the Secretary of State’s capacity to change the current planning system, not simply the pre-commencement conditions, although that has been the immediate focus of the debate.
Although the clause is widely drawn, for the Minister it clearly has a much more limited intention. I asked a question to see whether I could establish exactly what that limited intention was. On the face of it, from what the Minister has told us this afternoon, it is intended simply to ensure that the National Planning Policy Framework is the bedrock on which all planning decisions are made; in other words, to make the NPPF in effect a statutory document. If that was his intention, it could have been expressed much more clearly by a clause that would be fundamentally different from Clause 12 and be something we could debate the pros and cons of much more satisfactorily. If, on the other hand, it is intended to inhibit or prevent local authorities imposing conditions that would otherwise be in conformity with the NPPF, he needs to go to greater length to explain why the Government believe the NPPF needs to be trimmed back a bit.
I hope the Minister can see that if the NPPF is the reference, it would be useful if it was referred to in some way in the Bill, particularly in this clause. It is beginning to look as though his letter will be as long as the National Planning Policy Framework, which, incidentally, comes in at 59 pages, two of which are a list of the 44 codes of practice that it supersedes, which themselves were about 1,000 pages long. By the time we have some regulations to say exactly what we mean as a result of Clause 12, we will begin to unravel the NPPF.
There is a fundamental disconnect between what is in the Bill and what the Minister says its intention is. When I saw the Government’s amendments, I thought we were going to see something helpful, but I noticed that five of the amendments in the previous group were to insert the word “relevant” before the phrase “planning conditions”. One wonders a little whether one needed that word added. It is good that it has been, but can we just have the answer to the philosophical intent of the clause relating to planning as a whole and to pre-commencement conditions?
At Second Reading I mentioned that the National Planning Policy Framework—which is now treated as though it had originally been carved in stone at the top of Mount Sinai—had quite a troubled birth, with version one going around the Government for preapproval before it went out to consultation from the Department for Communities and Local Government, in which I was at the time a junior Minister. It came back from the Treasury with red ink all over it. It could not go out until the amendments the Treasury required had been made. Of course, there was uproar when it went public. In particular, the National Trust organised a very vigorous campaign against it. It turned out that the National Trust is the good cause of choice for a large number of Conservative Party members, who proceeded to let their Conservative Members of Parliament know about their dissatisfaction. One way or another, the consultation resulted in a completely different document coming forward, which was very similar to the document that had been drawn up and altered by the Treasury in the first place.
I rather fear that Clause 12 is another NPPF, except that we are at only the middle point, where something quite sensible has been turned into something that is not nearly so sensible and is fundamentally threatening many of the safeguards that the final version of the NPPF established so clearly, in particular the three pillars of sustainability when there is consideration of a planning application. Originally, I thought that the department had had the same experience this time that it had with the NPPF—it had gone off to the Treasury, which had put some red ink on it. But I realise that the current Secretary of State in the Department for Communities and Local Government was in fact the Financial Secretary to the Treasury at the time when the NPPF went on its rounds, so it is possible that the red ink was added at a much earlier stage.
I suggest that the Minister has a quiet word with the Secretary of State to explain to the high proportion of Conservative activists who belong to the National Trust—because he will soon find that out again—how much regard the NPPF has now attracted on all sides as a short, intelligible and easy-to-read planning document, and consider either scrapping Clause 12 completely or introducing a provision stating that local authorities are not permitted to impose conditions which go beyond the National Planning Policy Framework. I would have thought that that would achieve the objective which I think the Minister is seeking. Finally, the Minister should also convey to the Secretary of State the fact that this is a Henry VIII clause that Charles III will be most unhappy about.
Lord Bourne of Aberystwyth
My Lords, I hope that that is many years from now. I thank all noble Lords who have participated in our debate on whether Clause 12 should stand part of the Bill and I welcome the noble Lord, Lord Beecham, to his place. I fully understand the circumstances that kept him away earlier. We did deal with Amendment 43A, but I will endeavour to cover a couple of points on it as we proceed.
As noble Lords will be aware, the need for new housing is paramount to deal with some of the issues we are looking at, although of course I accept that there are many other circumstances we also need to consider relating to the Bill. The Government want to ensure that, once planning permission has been granted, we can move on as quickly as possible with housebuilding. At present this does not always happen because too many planning authorities impose unnecessary pre-commencement planning conditions. I accept that they are the exception, but on occasion they require applicants to take action before any works can commence that unreasonably hold up the start of building supply. This is unacceptable to the Government when we want to address the urgent need to increase the supply of homes. I think that noble Lords realise that there is a balance to be struck and a nuance that needs to be dealt with.
I have sought to indicate that this provision does not give the Secretary of State the powers being suggested by some noble Lords. New Section 100ZA(1) set out in Clause 12(1) does give the Secretary of State the power to make regulations, but it has to be read in the light of subsection (2) which provides that:
“Regulations under subsection (1) may make provision only if (and in so far as) the Secretary of State is satisfied that the provision is appropriate for the purposes of ensuring that any condition imposed on a grant of planning permission for the development of land … is—
(a) necessary to make the development acceptable in planning terms;
(b) relevant to the development and to planning considerations generally;
(c) sufficiently precise to make it capable of being complied with and enforced, and
(d) reasonable in all other respects”.
Subsection (3) goes on to state:
“Before making regulations under subsection (1) the Secretary of State must carry out a public consultation”.
This is not the wholesale provision which some noble Lords have been suggesting would give unfettered power to the Secretary of State. However, I accept that there are material considerations in terms of reaching a balance. I thank in particular the noble Lord, Lord Stunell, who recognised that. I can confirm that, as I indicated in response to the previous group of amendments, all of the issues raised are in the National Planning Policy Framework and so would be appropriate for the agreement of conditions with the developer.
Neither the Government nor any planning authority is in a position to force people to come to an agreement. The idea that we can somehow force either the local authority, as was perhaps suggested by some noble Lords or the developer, who may walk away at the end of the day because he is not happy with what the planning authority is saying, is wrong because we cannot—the National Planning Policy Framework has to be complied with. These are matters of consent and no Government would be able to do that, short of taking wholesale powers away and rewriting the law of contract, which we are not proposing. Indeed, I do not think anyone is suggesting that we should.
I am happy to go away and consider some of the points that have been made, but I come back to the point that we have to deal with inappropriate pre-commencement conditions. That is not to say that they are inappropriate as conditions—they may be quite appropriate as conditions, and many of those cited are—but they are not appropriate as pre-commencement conditions, and that is the point I keep coming back to. This is the intention of the legislation, as demonstrated by the wording of the new section. I do not accept that it is obscure or meaningless. I accept that there are considerations here but, if I may, I refer to the Government’s response to the consultation on improving the use of planning conditions. Admittedly, views were split on this, but it is not the case that all local authorities thought that the idea is a dreadful one. The majority—a bare majority, I accept—thought it was a good idea, with 44% either in complete support or supportive of the principle with reservations about the process. That was a majority in favour of the sort of action we are looking at.
Lord Tope (LD)
My Lords, I want to say a few words in support of Amendment 47 tabled in my name. Our debate is either a little too late or a little premature, because we have reason to believe that there is going to be something on this subject in the long-awaited and I believe now imminent White Paper. It may well be that before long we will know what it is, and we will probably then have a more useful debate on the Government’s intentions or, for that matter, their lack of intentions.
The points have been made and all these amendments seek the same thing by more or less similar means. The noble Lord, Lord True, put it very well when he said that there is no reason why local authorities at any time, least of all in the current straitened circumstances, should be subsidising the development industry in the way they do. None of these amendments suggests that local authorities should make a profit out of planning and development control. What one is aiming for, as far as possible over time, is a break-even position.
I discussed this with my local planning authority, of which I am no longer a member, and found that the planning officers are longing for the return of the planning delivery grant, which if I remember rightly lasted from 2007 to 2010. There was actually a lot to be said for it, because the funding it provided for local authorities was based on performance and incentives. What one should perhaps be looking for here is not simply a grant or funding for local authorities, but for a way that is tied to incentives. All of us want to see the housing target delivered, but we know that unless we do something quite serious to increase the resourcing of planning departments and to stem the flow of planning officers from the public to the private sector, where frankly they are a lot better rewarded, we are not going to deliver on the housing targets or, to go back to our earlier debate, on neighbourhood planning, particularly in urban areas, and I speak with knowledge of London.
Incidentally, I was not too surprised to learn that 20% of all planning applications are dealt with by London boroughs, all of which are severely overstretched because they are underfunded—budget restraints affect everybody—the cost of living is so much higher, and the opportunities for qualified planners are greater in the private sector than they are in the public sector. It is reaching crisis point, and if we are to solve the housing problem, this is part of what needs to be done. That is what all these amendments seek to achieve, and we look forward to hearing from the Minister a preview of what is to be in the long-awaited White Paper.
Lord Bourne of Aberystwyth
My Lords, I thank all noble Lords who have participated in the debate, and I appreciate the build-up of the White Paper by the noble Lord, Lord Tope. I will have to be careful about what I say because as he has observed very cogently, this is perhaps premature to the housing White Paper which is expected shortly.
Lord Bourne of Aberystwyth
Yes, it is imminent. Before I respond to the specific amendments in the group, I want first to echo what has been said. The Government recognise the impressive performance of local planning authorities up and down the country. We have certainly asked much of them in terms of getting Britain building, delivering new homes and providing the employment that will drive our economy forward. There is no doubt that we will want still more from local authorities, and that is why this issue is going to be addressed in the White Paper. I think we all agree that this is a matter of great importance and I am pleased that the White Paper will set out how it can best be addressed. I hope that noble Lords will participate in the discussion on it.
I thank the noble Lord, Lord Kennedy, for his introduction, and my noble friend Lord True for talking about the current position, which I understand. Let me turn to my noble friend Lady Gardner’s amendment. As she indicated, it is perhaps slightly different from the other amendments in the group. It seeks to enable local authorities to charge fees that exceed cost recovery in respect of their planning functions. It is an interesting proposal but not one I can imagine would be immediately attractive to the applicant. We are certainly clear that the principles on handling public funds mean that when we set fees, such as those for planning applications, they should be set at cost recovery, and that is what we aim to do. Under the Local Government Act 2003, local authorities have the power to charge for discretionary services up to the level of cost recovery at present. I know many local authorities have chosen to use this power to charge, for example, for giving pre-application advice on planning applications. I think that that deals with those situations.
I turn now to the points raised by noble Lords who spoke to other amendments in the group. The points were essentially the same, but let me say something specific about the new burdens issue, which is slightly different and was picked up in Amendment 57 in the names of the noble Lords, Lord Kennedy of Southwark and Lord Beecham. It seeks a requirement to consult local planning authorities on the burdens imposed by new statutory duties before commencing those measures. This raises an important principle and one I am happy to acknowledge. I recognise it is a priority to ensure that planning departments have resources to provide the service that applicants and communities deserve. As noble Lords will probably be aware, we have a long-standing mechanism in place through the new burdens procedure, which has crossed successive Governments, to consider and make provision for funding to local authorities for any additional work arising from new statutory duties. The approach to new burdens provides that when the Government introduce new responsibilities and statutory duties on local authorities, these must be properly assessed and fully funded.
As a matter of routine we discuss new policies with the Local Government Association and value the insight that it brings to the table. All the measures in the Bill have been considered against this doctrine and we do not believe that the burdens in the Bill, if there are any, are expected to have a significant impact on local authority resources. We are committed to working with local authorities to find ways of securing the finance, people and skills they need to maintain strong planning departments. As I said, this has to be seen in the context of the imminent housing White Paper. I hope noble Lords will recognise that these amendments seek to place in the Bill powers and mechanisms that the Government already have and that these matters will, as I said, be reflected in the imminent housing White Paper. On that basis, I hope that the noble Lord will agree to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords who have spoken in this debate. I very much agree with the comments of the noble Lord, Lord True, that these issues need to be addressed. There is cross-party agreement at local government level that it is important we do that. I hope that the noble Lord, Lord Bourne, both here and outside the Committee, hears that. If costs are not recoverable and the planning officers cannot do their job, then of course all that we are debating here—the desire to move things on as quickly and efficiently as possible—risks coming to nothing or very little. The noble Lord, Lord Scriven, also highlighted the need for these costs to be covered and the issues for local government to be addressed.
The noble Lord, Lord Tope, spoke about the need to keep planning officers, and I very much agree with that. There are many noble Lords in Committee today who are members of local authorities, some in and some outside London. It is the same for planning authorities. I bet the Minister could visit any authority and he would hear the same thing, no matter which party controls or does not control it. There is real pressure on the retention of planning officers and around recovering the costs involved. It is a huge problem. I hope the noble Lord hears what we are saying and will reflect on it. I hope that he can come back to us with something, perhaps on Report.
As always, the noble Baroness, Lady Gardner of Parkes, has highlighted some issues; she understands these matters very well and picks up on them incisively. I hope we can come on to them at some point, but my first concern is getting these basic costs covered. Perhaps we can have discussions in future about whether people want to pay extra to get things done more speedily, but for now the priority is getting these costs covered and getting planning departments to function properly. Having said that, at this stage I am happy to beg leave to withdraw the amendment.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in this very important debate on Amendment 46. I would like to thank the noble Baroness, Lady Parminter, and the noble Lord, Lord Judd, who tabled this amendment on this important issue. I know from the considerable work of the noble Baroness, Lady Young—who unfortunately cannot be with us today—as chairman of the Woodland Trust and co-chair of Environmentalists for Europe, that she has a great passion for this subject and I was very pleased to meet with her a few weeks ago to discuss these issues.
I recognise the importance of ancient woodland and veteran and aged trees. We have had some very cogent examples. The noble Baroness, Lady Parminter, gave a powerful example close to her own home and the noble Lord, Lord Judd, who continues to have a distinguished role in national parks, rightly told us of the rich part they play in the heritage and history of our country.
The noble Lord, Lord Cameron, drew the parallel—or hopeful parallel, from his perspective—of Wells Cathedral, which is my favourite of all the English cathedrals. In my faith and integration role in the department, I have been visiting all the cathedrals of England in turn. I have so far visited 11, but Wells Cathedral is coming up shortly and I very much look forward to that. Many people have evoked that powerful, evocative and moving phrase: it is absolutely right that the ancient woodlands are the cathedrals of the natural world.
I thank the noble Duke, the Duke of Somerset, for drawing attention to the importance of the ecology of bees and wildlife, and echoing the educational aspect, as did the noble Lord, Lord Judd. There is another string to the bow of my noble friend Lord Framlingham: visiting prisons and saving trees. I thank him for that really engaging story.
There are number of protections already within national planning policy legislation and guidance. I have listened to the arguments today and on previous occasions from the noble Baroness, Lady Young, and I do recognise the importance of making sure these protections are made absolutely clear. As many noble Lords have said, the White Paper will be published shortly; I hope they will appreciate the aspects of it that indicate the way forward. I have listened carefully and can confirm that the Government do take this issue very seriously. We are talking about a massive asset to the country that we do not want to lose. With that reassurance, and in the light of the imminent publication of the White Paper, I respectfully ask the noble Baroness, Lady Parminter, and the noble Lord, Lord Judd, to withdraw their amendment.
Baroness Parminter
My Lords, in light of the Minister’s reassurance that the Government take this matter very seriously, on behalf of my colleagues, I am very happy to not press my amendment on this occasion. I thank noble colleagues across the Committee who have shown their strength of feeling on this issue; and it is good that the department is listening. I single out the noble Lord, Lord Framlingham, who in many ways represents the best of the House of Lords, in that people come in and speak about what they know. Every time he speaks on an issue, he does so with an expertise and commitment which is valued by all of us. Certainly, on behalf of my Benches—although I am sure on behalf of others as well—I thank all noble Lords who have shown commitment to this issue, but in particular I thank him. I beg leave to withdraw my amendment.
Lord Beecham
My Lords, I entirely sympathise with the objectives of the noble Baroness. However, I found the amendments as drafted not workable. Subsection (3) of the new clause proposed by Amendment 49 calls for a liability for a “significant additional charge” but it does not give any method of calculating that or saying how it might be achieved. On Report, an amendment inviting the Government to create such a structure subject to secondary legislation that in this case would probably be acceptable might be a way forward. In terms of subsection (4), I should have thought that if there is a retrospective planning application, it would have to be made public and subject to consultation in the ordinary ways. This subsection may be unnecessary. If subsection (3) were changed to convey a power to regulate for such a retrospective permission, that would be a way forward. Perhaps the Minister already has that in mind. The objective is right but we have yet to find quite the right wording.
Lord Bourne of Aberystwyth
My Lords, I thank my noble friend Lady Gardner of Parkes, who speaks with great authority on these areas and here with personal experience. I also thank the noble Lord, Lord Beecham, for his contribution. How we deal with unauthorised development is an important issue that concerns many people. The Government are clear that unauthorised development is unacceptable and unfair to the vast majority of people who abide by the rules. However, the retrospective planning application process is there primarily to give those who have made a genuine mistake the opportunity to rectify the situation. There are, of course, such people. It also gives local planning authorities the flexibility to invite a retrospective application where they consider that it is the appropriate course of action.
It is important to note that retrospective planning applications must be determined in exactly the same way as any other application, that is, in accordance with the development plan unless material considerations indicate otherwise. The noble Lord, Lord Beecham is therefore right in relation to subsection (4) of the new clause proposed by Amendment 49. That for which it provides would be the case anyway.
There is no guarantee that planning permission will be granted just because the development already exists. The noble Baroness cited the haystack example and there are many more in which houses have been built that occasionally people find quite acceptable, but which because they did not have planning permission and because of what planning policy indicated, have had to be demolished. Therefore, those who undertake unauthorised development put their development, their investment and perhaps their professional reputation at risk. The sale of properties built or adapted without the necessary permissions may also present considerable difficulties.
Local planning authorities can impose planning conditions on the retrospective grant of planning permission to mitigate the impact of the development. Where unauthorised development proves to be unacceptable, local planning authorities have at their disposal a wide range of enforcement powers with strong penalties for non-compliance. I note that where an enforcement notice is served, as does happen on occasion, and the person appeals on the ground that planning permission ought to be granted, they are deemed to have made an application for planning permission and must pay a fee. That fee is twice the fee that would have been payable in respect of a planning application to the relevant authority seeking permission for the matters stated in the enforcement notice as constituting a breach of planning control. I appreciate that that is only where an enforcement notice is served, but in that situation there is already a double charge. This recognises the additional work involved for the planning department in dealing with both an appeal and an application.
The effect of my noble friend’s amendment would be to make retrospective planning applications compulsory for all breaches of planning control under the Town and Country Planning Act 1990. This would be difficult to enforce and could lead to unnecessary delays where a local planning authority is clear that such an application would be refused and enforcement action taken. Clearly it would be not be helpful to delay effective enforcement action by local planning authorities where it is evident that the unauthorised development is totally unacceptable. That could well be the case in some situations.
My noble friend’s amendment would also introduce a penalty fee in addition to charges in respect of the costs over and above the double charge I have referred to which is incurred by the local planning authority in carrying out its functions connected with a retrospective planning application. This would unfairly penalise those who have made a genuine error and discourage the submission of such an application for proper consideration by the local planning authority. It is a matter which I know previous Governments have considered and to some extent grappled with, but in the interests of fairness have not decided to take forward. I appreciate that this is an important issue and I thank my noble friend for airing it and giving the Government some time to consider it, but for the reasons I have outlined, I would ask her respectfully to withdraw the amendment on this occasion.
Lord Beecham
My Lords, we on this side support the amendment. It is particularly welcome that there is a proper reference to obtaining affirmative approval for any regulations that are required. It is important to address the issue of land that is difficult to develop. My noble friend has just reminded me of the very successful redevelopment at Greenwich, which was a pretty bleak landscape. It required significant investment but it has paid off very well. We certainly need to encourage development there. It does not necessarily have to be private building development for sale. Local authorities and social housing can also be very involved in the process. Indeed, we want to see mixed communities of that kind, but this is not inconsistent with the amendments.
We need to facilitate development here, partly, as has been said, to avoid putting undue pressure on green space—whether it is green belt or not—but also because if they are not developed these sites bring down the quality of life in the surrounding community, of whatever nature that might be. So there is a triple benefit: first, for those moving into the accommodation; secondly, for the surrounding community; and, thirdly, because you are not building on areas that ought to be left as open space for the enjoyment of the community as a whole. We are very supportive of the amendment.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in this debate on Amendments 49A and 49B, particularly the noble Baronesses, Lady Bakewell and Lady Pinnock. The amendments cover two important areas.
On the new clause inserted by Amendment 49A, I agree with the noble Baroness that there should be transparency around land assets held by public bodies. Public bodies must be accountable for the assets they hold, and where land assets are no longer required to support the functions of the body, they should be released so that they can be put to good use, including the provision of much-needed new homes. I can reassure noble Lords that the proposed new clause is not required. A great deal of work is already under way to ensure that this transparency exists, and it may help the Committee if I briefly outline the measures that are either in place or being put in place.
First, information on government land assets is already made available through the Cabinet Office electronic property information mapping service, e-PIMS—that trips off the tongue. This feeds the Government Property Finder website, where anyone can search to obtain a list of government land assets locally, regionally and nationally. Where land is made surplus for development, the e-PIMS system also makes this clear.
Secondly, for land owned by local authorities, the Local Government Transparency Code 2015 requires local authorities subject to that code to publish, on an annual basis, details of all land and building assets, including undeveloped land. In 2016 we consulted on updating the transparency code. We proposed that in addition to the existing data on land and property assets published by local authorities, they should also publish, on e-PIMS, the extent of the land in hectares for each piece of land; whether that land is surplus to requirements; whether there are current or future plans to release the land for housing development; if there are plans to release the land for housing development, what the current planning status is; if there are plans to release the land for housing development, how many homes can be accommodated, and, for properties of 10,000 square feet or larger, the floor area of that property, the number of floors and the number of car parking spaces it has. We are carefully considering the responses we received and will be responding to the consultation in due course.
Thirdly, nearly three-quarters of local authorities in England are now part of the Cabinet Office and Local Government Association’s One Public Estate programme. This is expected to grow to 95% in 2018. The One Public Estate programme brings together public bodies across a local area seeking to unlock the value in land and property assets for better local services, efficiencies and local growth. In doing so, land that is made surplus can then be released. A condition of membership of the One Public Estate programme is that local authorities and their public sector partners must upload their land asset data to the e-PIMS system. Work is already under way to bring central and local land data together in the e-PIMS system. This will make land asset data across the public sector readily available to anyone in a single place, rather than having registers held by individual authorities. I hope that this reassures noble Lords that the Government are committed to ensuring transparency in the use of land assets and appropriate release across the public sector, and that they have a clear plan to make that happen.
Amendment 49B, in relation to brownfield land, is in the name of the noble Baroness, Lady Pinnock, and was spoken to by my noble friend Lady Cumberlege and the noble Lord, Lord Beecham. He cited the example of Greenwich. A development corporation is involved across the river as well—I am sure that the London Borough of Lewisham will have something to say on that, but I will move swiftly on.
I think we all agree that previously developed land, more commonly known as brownfield land, has an important role to play in delivering much-needed new homes. The Government remain committed to ensuring that 90% of suitable brownfield sites have planning permission for housing by 2020. That is our stated policy, but I appreciate that the noble Baroness is looking for more concrete action, and I will be moving on to that.
The Government already have a strong policy framework in place to encourage the reuse of brownfield land. We are also developing further policy measures in regulations, which will help unlock housing being built on suitable brownfield sites and maximise the number of dwellings built on brownfield land. It is an appropriate mechanism, as noble Lords have mentioned, in order not to have to build on the green belt, which of course we do not want to do and is not anticipated. That is why building on brownfield land is so important.
Paragraph 111 of the National Planning Policy Framework asks local authorities to encourage the reuse of brownfield land if it is not of “high environmental value”, and planning guidance reinforces the expectation that local plan policies should reflect the desirability of reusing brownfield land. Furthermore, in December 2015 our consultation on national planning policy sought views on proposals to create a presumption that brownfield land is used unless there are clear reasons why not. This consultation also set out proposals to make more efficient use of land by encouraging higher densities around commuter hubs and to encourage more starter home-led development on brownfield land. We intend to set out our response to these proposals in the imminent housing White Paper.
Our proposed changes to planning policy sit alongside other proposals to bring brownfield land back into use. The list is not exhaustive. We intend to bring regulations into force this spring requiring local planning authorities to publish and maintain brownfield registers, which was part of the Housing and Planning Act 2016. I hasten to say that I do not have personal and direct experience of the legislation, but I believe that that happened through the Act. These regulations will also enable local authorities to grant permission in principle to suitable sites on their registers. We are also committed to widening permitted development to help give new life to thousands of underused buildings, as well as accelerating the disposal of surplus public sector brownfield land for new homes.
I fully recognise that some brownfield sites have more constraints than others, and that will probably be particularly the case where land values are not so high. Greenwich had its challenges but of course the land values were greater there. Some sites may also require additional costs to bring them back into acceptable use. A number of financial measures are in place to bring such sites back into use; for example, £0.4 million has been made available to local authorities during 2016-17 to help with the costs of dealing with urgent remediation cases and, if possible, ongoing remediation projects. We have created a £3 billion home building fund to provide loans for small and medium-sized building firms, custom builders and offsite construction. Some £2 billion of that fund will be long-term funding available to developers to deliver infrastructure to support a strong future pipeline of housing supply and will help unlock between 160,000 and 200,000 homes.
We expect at least half of this £2 billion to be used to support brownfield sites, including land remediation. I am very happy if the noble Baroness wants to engage further with officials on that particular point.
Furthermore, where brownfield sites suffer from contamination, land remediation relief, offered by Her Majesty’s Revenue & Customs for remediating contaminated land, provides relief from corporation tax, comprising a deduction of 100%, plus an additional generous deduction of 50%, for qualifying expenditure incurred by companies in cleaning up land acquired from a third party in a contaminated state. That is also significant. However, we must remember that not all brownfield land is suitable for housing development, and not all our housing needs will be met by building on brownfield land alone. As I have indicated, the Government have a clear plan and vision, but I am very happy to make officials available to explain the detail should noble Lords require more information.
To conclude, the Government are already taking action to support development on brownfield land. I assure the noble Baroness, Lady Pinnock, and other noble Lords that the Government will continue to seek prioritisation of brownfield land for development. That is central to what the Government are seeking to do in relation to housing. Without giving too much away about the housing White Paper, this aim will be reflected in that. I hope noble Lords will forgive the somewhat lengthy explanations I have given in relation to these two amendments, but they are both important. I hope that, with the assurances I have given, the noble Baroness will feel able to withdraw her amendment.
Baroness Bakewell of Hardington Mandeville
I thank the Minister for his very positive response to both the amendments. I am very pleased to hear that the Cabinet Office has a snappily named website where most public land can be accessed and in which most local authorities are participating. I shall go back and check that my local authority is participating. I can understand that some local authorities will perhaps be reluctant to upload exactly what their land holdings are; if I understood the Minister, that is a requirement of membership. However, I am pleased that there is some transparency around public land and that, wherever possible, it is brought into use for other purposes. I thank the Minister for the very detailed response on the issues around brownfield land. I found that very positive. I beg leave to withdraw the amendment.
Baroness Parminter
I thank the noble Lord for raising this issue and support him in his call. I am sure the Minister will make reference to the flood review that is currently being undertaken by the DCLG and Defra. Of course, the noble Lord’s amendment not only looks at surface water flooding, which is what the current review is looking at, but puts it, rightly, in the context of the broader issues of retrofitting and other forms of flooding as well. I too hope the Government will be supportive.
Perhaps I might say a few words about the review that the Government are undertaking. Noble Lords will remember that in the Housing and Planning Bill the Government conceded that there would be this review of surface water flooding. I think it is a disappointment to Members that it is only a desk-based exercise, that there has not been a public call for evidence and that therefore engaged organisations have not had the opportunity to input their views. Indeed, no surveys have been undertaken of local planning authorities; it is purely private meetings with particular stakeholders, including the developers.
However, so as not to appear churlish, I reiterate my thanks to the Minister for agreeing to meet me and other representatives later this week to hear the findings of what we believe is the largest survey undertaken in the UK of SUDS. Of the more than 500 responses—including from lead flood authorities, local authorities and even representatives of central government—70% thought that the current planning policies were not sufficient to deliver sustainable drainage solutions. I hope the Government will consider those recommendations before they finalise their review.
Perhaps the Minister might not only comment on the noble Lord’s wish for a full review of the flooding situation but commit to agree to the findings, when we receive them later this spring, of the review of flooding by the Adaptation Sub-Committee of the Committee on Climate Change. I believe it intends to propose a number of recommendations around changes to planning policy, and I hope that the Government might be prepared to accept those. I am interested to hear the Minister’s views on how seriously they will be taking the committee’s recommendations.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord, Lord Beecham, for moving Amendment 56, and the noble Baroness, Lady Parminter, for her contribution. I am afraid I will probably have to let the noble Lord down on this occasion. I am not convinced of the need for this.
First, as has been noted, Section 171 of the Housing and Planning Act 2016 includes a requirement for the Secretary of State to,
“carry out a review of planning legislation, government planning policy and local planning policies concerning sustainable drainage in relation to the development of land in England”.
My department had already commenced work on the review prior to this section of the Housing and Planning Act coming into force by order on 1 October last year. The objective of that review is to examine the extent to which planning policy has been successful in encouraging the take-up of such drainage systems in new developments. My officials are working closely with colleagues at the Department for Environment, Food and Rural Affairs and the Environment Agency to gather evidence to inform the review. The first stage of the review—to survey local plan policies related to sustainable drainage systems—has been completed. We are now working towards the next stage of the review—to collect evidence on how sustainable drainage systems are deployed in practice.
Stakeholder involvement is a critical element throughout the review. We have been engaging with a broad range of stakeholders through two dedicated groups set up specifically to support the review. The first is a high-level project steering group comprising members of the DCLG, Defra and the Environment Agency, the Climate Change Committee, the Adaptation Sub-Committee’s secretariat, the Association of Directors of Environment, Economy, Planning and Transport, and the Local Authority SuDS Officer Organisation. A second-tier engagement group, comprising key SUDS-related stakeholders, will function largely as a sounding board of expert advice to be drawn on as the review progresses. This comprises members from organisations including the Institution of Civil Engineers; Water UK; the Wildfowl and Wetlands Trust and the Chartered Institution of Water and Environmental Management. Membership comprises representatives from local planning authorities, professional and statutory bodies, environmental non-governmental organisations, house- builders and other agencies.
We remain committed to working constructively with the Adaptation Sub-Committee of the Committee on Climate Change—an independent, statutory body established under the Climate Change Act 2008—so that the review informs their progress update on the national adaptation plan, due in the summer of 2017. Whenever I hear the mention of sandbags I always think of the organisation which the noble Baroness, Lady Worthington, led so well. She did considerable work on climate change through that particular organisation.
In addition to this review, the National Flood Resilience Review, published in September last year, assessed the resilience of key local infrastructure, such as energy, water, transport and communications, and identified ways to protect it better. The flood resilience review includes an action plan that the water, telecoms and electricity utilities will develop and implement, with long-term plans—where not in place already—for improving permanently the resilience of service provision to significant local communities from the flooding defined by the Environment Agency’s extreme flood outlines. Both of these reviews, when considered together, address the role of planning relating to sustainable drainage and the resilience of local infrastructure in response to a flood incident.
It is in that context that a requirement for a third review is unlikely to add anything new. I am happy to discuss this further with the noble Lord, but I do think it is unnecessary and I respectfully ask him to withdraw this amendment.
Lord Beecham
I will withdraw the amendment, but I would like to ask for a little clarification. Is the review concerned with new or existing development? Drainage issues are something many of us can see in our neighbourhoods. Front gardens are concreted over for car parking purposes and other things, with adverse consequences for drainage. Is that sort of issue part of the review which the Government are conducting?
Lord Bourne of Aberystwyth
My Lords, I think the noble Lord is asking about the first of the reviews—either the one on the Housing and Planning Act 2016 or the National Flood Resilience Review. In any event, I think the former of those—in connection with sustainable drainage—will certainly encompass that. I will double check that and be in touch with the noble Lord on that point. The second of the reviews is already complete. It was published in September last year, but I will ensure that he gets a link on that particular review if it is helpful.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Baroness, Lady Parminter, for moving this amendment in group 24, and the noble Lord, Lord Beecham, for speaking to it.
First, I will set the context, which is partly the Paris climate change agreement. To take credit for it, it was of course concluded at a time when there was a Conservative rather than a coalition Government—although, to be fair, it was supported by all parties. It was a step forward, and we worked closely with many countries, not least in Europe. From the outset, I remind noble Lords that the standards for new homes were strengthened by 30% in the last Parliament, when there was a coalition Government, saving £200 on energy bills compared to standards before 2010, when there was a Labour Government. To meet those standards, homes will have A-rated condensing boilers, double-glazed windows with low-energy glass, and high levels of insulation and air tightness in their construction—they are very energy-efficient homes.
A very similar amendment was debated at length during the passage of last year’s Housing and Planning Act. That Act placed a duty on the Secretary of State to undertake a review—to which reference has been made—of energy performance standards for new homes under Section 2C of the Building Act 1984. We have commenced costings analysis to underpin this review, and our aim is to publish the final review in the summer. It aims to identify what improvements are cost-effective and feasible for new homes. We plan to extend it to cover non-domestic buildings and work to existing buildings, seeking further potential reductions in carbon emissions and fuel bills. The noble Baroness asked about progress in meeting our climate change targets. Obviously, domestic compliance and measures are important, but it is not limited to them; hence we have extended it to other buildings, for example. Transport also makes a significant difference to emissions, so the Inter-Ministerial Group on Transport and looking at what we can do with regard to electric cars is significant. There have been massive changes in California in particular, which the Government have taken note of and are progressing, because that will make a significant difference.
Over recent years, we have seen reduced costs of technologies and energy efficiency measures, such as solar panels, which were discussed in detail in last year’s debates. I emphasise that it is important that we consider only the very latest information and data on costs—that is crucial. The carbon compliance standards proposed in this clause are, so far as I can see, not based on the latest data—I think some of them are some six years old—although I appreciate that that can be looked at. Obviously, we are looking at all these issues in the round. To prescribe standards without up-to-date information would be difficult. I can confirm that changes to the building regulations flowing from the upcoming review will be subject to a full consultation. That will include draft technical guidance on how to meet the changes, which will cover all homes from detached houses to high-rise flats. The noble Baroness asked specifically whether local authorities are able to set higher standards than the national ones, and I can confirm that they are able to do just that.
The new clause also proposes putting in place new powers in the planning regime to set the carbon compliance standards. This is unnecessary, as there are already powers to set such standards through the building regulations. I appreciate and understand that the noble Baroness said that this is a probing amendment, but the powers are already there. Also, the technical expertise to ascertain whether a building meets a particular energy performance or carbon compliance standard already exists in building control bodies. However, this technical knowledge is unlikely to be available within a planning department. Our position is that minimum energy performance standards should be set through the building regulations, with compliance being demonstrated through building control bodies. That is what we are looking at.
I hope I have reassured noble Lords that the proposed clause is unnecessary, although I appreciate that this was a probing amendment in the understanding that the review is moving. The review will use the latest costs and evidence, and any cost-effective changes proposed will be workable for all home types, across the range. I am happy to share information on the review with noble Lords at appropriate points as we take it forward, if that is helpful. On that basis, I therefore ask the noble Baroness to withdraw the amendment.
Baroness Parminter
I thank the Minister for his responses and the clear answers to two of my questions. The public call for evidence for the review is very welcome, as is the commitment for local authorities if they wish to set higher standards. It is helpful that those answers have been set on the record in that way. On my third point, I appreciate that housing makes up only one component of the UK’s greenhouse gases, but it is still one-quarter. When we had a Department of Energy and Climate Change, it was looking at producing an updated road map that showed how much would be delivered by savings in transport and housing. That has clearly been booted into the long grass, but at some point the Government will have to come clean on the issue. With that in mind, I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
I support the amendment in the name of my noble friend Lady Andrews. She ably outlined why the Government should give a sympathetic response to it. I was pleased to hear the noble Viscount, Lord Trenchard, talk about 549 Lordship Lane. I know the property, referred to as the Concrete House. The council has won an award for its work there: it bought it, did a good restoration and now uses it for shared ownership. I support the amendment. I am conscious of the time and I hope that the Minister will also want to respond quickly.
Lord Young of Cookham (Con)
My Lords, at this stage of our flight, the co-pilot takes over. After a very smooth passage with my noble friend at the controls, there may well be some turbulence. I am grateful to the noble Baroness for moving this amendment. She chaired English Heritage for four years, so she has a proud record in the conservation world. I applaud the way she is carrying forward that commitment by tabling the amendment to insert a new clause. She is well qualified and well informed on this issue. As she said, listed buildings are an important part of our environment: they create a sense of identity in a locality and support local economies by attracting visitors. As my noble friend Lord Trenchard said, this offers the opportunity to provide housing in some restoration projects. I also commend the intervention from the noble Lord, Lord Beith, and the work done by him in his particular field.
We all support the objectives of the amendment, but there may be alternative routes to the common destination. The noble Baroness has been a CLG Minister herself, so she may feel some empathy for someone who, having listened to a popular and powerful case for a well-argued amendment, picks up the departmental brief which has at the top, “Resist”. I have two points of my own to make. Listening to the debate, I wondered if there had ever been a case where a charitable trust had done exactly what the noble Baroness had suggested—raised all the funds and then presented the local authority with an indemnity—and the local authority had refused to go ahead with a CPO. If there was such an example it would be relevant to the case that is being made.
My other thought was that, having sat patiently through the debate on this Bill, I have noticed a recurrent criticism that we are fettering the discretion of local authorities. We are accused of not trusting them, of passing primary legislation which makes them do things. The amendment does have the words “a planning authority must”. What is the view of the LGA, which is very well represented in the Committee? Does it welcome the discretion of its members being fettered in the way that the amendment seeks to do? Having said that, the noble Baroness was quite right to remind us that local authorities have the ability to compulsorily purchase listed buildings that are in need of repair. It is an important weapon in their armoury to protect our built heritage.
If one looks at the guidance provided by the Government, paragraph 16 of the compulsory purchase guidance notes states that it specifically provides for local authorities to consider requests from community groups—which could include heritage trusts—to use their compulsory purchase powers to acquire community assets that are in danger and, under the guidance, local authorities are required to consider such requests and to provide a formal and reasoned response.
In a sense, the onus is already on the local authorities to explain why—were they presented with the sort of offer that we have just heard—they feel they cannot accept it. It is also the case, as the noble Baroness said, that heritage trusts have access to grant funds and other sources of income to enable them to carry out the preservation of listed buildings and bring them back into use. What this amendment seeks to do is, in effect, to lock in a statutory embrace the heritage trusts on the one hand with the resources and the local authorities with the CPO powers on the other. I am slightly worried that this might undermine the collaborative approach which I think works quite well at the moment. As has already been said, the CPO power exists, but I am not convinced that the relationship between the local authority and the trust would be assisted if the local authority knew that the trust had this sanction behind it to compel it to do something.
On the point made by my noble friend Lord Trenchard, Historic England is working with local authorities and giving them advice and financial and technical support in many cases where listed buildings are falling into disrepair, enabling a satisfactory solution to be arrived at. That collaborative approach is the way forward. A good example, which if it were not 7.56 pm I would share with the Committee, is Hastings Pier which was restored in exactly the way that has been outlined.
The noble Baroness has commented that absentee owners are difficult to deal with or if the owners or reputed owners do not engage with the compulsory purchase process it can proceed without them, and the acquiring authority only has to make a reasonable attempt to find them. That attempt includes information in CPO notices simply displayed on site, as well as being sent to the last known address of the owners—then they can proceed.
So far as the trust is concerned, the cost of compulsory purchase is not always easy to assess. There could be court challenges and it could end up in the High Court. The defence of a legal challenge would fall to the trust and any failure of a trust to meet its responsibility to indemnify the local authority would put the trust’s future in jeopardy and the local authority would be liable for those costs.
In a nutshell, the Government are not convinced that the noble Baroness’s amendment to compel a local authority to proceed with a compulsory purchase would have a significant effect on the use of the CPO legislation. The current process provides a balanced approach, allowing local authorities and heritage trusts to enter into mutually acceptable arrangements. It encourages collaboration between local authorities and heritage trusts, and as I have said, that approach could be jeopardised if an element of compulsion were to be introduced.
I am happy to reflect on the dilemma which the noble Lord, Lord Beith, outlined about local authorities’ reluctance to take things forward. In the meantime, with the greatest respect, I ask the noble Baroness to withdraw her amendment.
Baroness Andrews
My Lords, I am very grateful to the Minister. I detect a sympathy beneath his detailed rebuttal. I am also very grateful to Members who supported the amendment. The points the Minister made are worth reading properly and I will go on to do some research in connection with the heritage bodies about the response of local authorities and the effectiveness of the guidance. There is an argument which says that advice and guidance are fine as far as they go, but what we are looking at here is case after case across the country of deep frustration, of failure of capacity and of fairly old resources. I take the point about an element of compulsion, but there comes a point in all forms of policy where something more draconian needs to be considered as part of a conversation about what the alternatives are, otherwise we will never move away from the sort of stasis that we have had over sometimes magnificent buildings but which are a blight and an eyesore when they could be so productive in the community. We will rise to the challenge and see whether we can come back. We may be back before Report with evidence, but in the event, I certainly withdraw the amendment.