Monday 24th April 2023
(1 year, 6 months ago)
Lords ChamberLevelling-up and Regeneration Act 2023 View all Levelling-up and Regeneration Act 2023 Debates Read Hansard Text Watch Debate Amendment Paper: HL Bill 84-XI(a) Amendments for Committee (Supplementary to the Eleventh Marshalled List) - (24 Apr 2023)
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)
My Lords, Amendment 261 tabled by the noble Baroness, Lady Taylor of Stevenage, proposes two fundamental changes to Clause 104, which modernises the procedure for serving completion notices in England. While I appreciate the intention, I remind your Lordships that completion notices—when served by a local authority or the Secretary of State—must provide the recipient with an opportunity to complete development. It is a “use it or lose it” power. Removing this opportunity for the developer to use the permission, as this amendment does, raises the prospect that compensation from the loss of the permission will be necessary as it is a revocation of a planning permission. I believe this would make completion notices less appealing to local planning authorities.
The second proposed effect of the amendment relates to the removal of finished parts of a development where a site could not be completed in full. Local planning authorities already have the power to require the removal of unfinished developments by order under Section 102 of the Town and Country Planning Act 1990.
The noble Baroness, Lady Pinnock, brought up one or two important issues. In the clauses already in the LURB, we have introduced two further provisions to ensure a better buildout rate of planning permissions in this country. First, the Government will require housing developers to report annually to local authorities on their actual delivery of housing. This will enable them to identify where sites in their area are coming forward too slowly. It will also help to inform whether to sanction a developer for failure to build out their schemes promptly. Secondly, the Government have introduced a new power that will allow local planning authorities to decline to determine planning applications made by developers that failed to build out at a reasonable rate earlier permissions on any land in the authority’s area.
To strengthen the package further, we will publish data on developers of sites over a certain size in cases where they fail to build out according to their commitments. Developers will be required to explain how they propose to increase the diversity of housing tenures to maximise development schemes’ absorption rate, which is the rate at which homes are sold or occupied. The NPPF will highlight that delivery can be a material consideration in planning applications. This could mean that applications with trajectories that propose a slow delivery rate may be refused in certain circumstances. We will also consult on proposals to introduce a financial penalty against developers that are developing out too slowly.
I disagree with the noble Baroness, Lady Pinnock, on houses that are not what a particular local authority wants. I believe that is up to the local authority. If the local authority has a local plan saying that it needs specific types of housing in the area, it needs to make sure that the planning applications that go through will have that in them. Local authorities know their area best, so it is up to them to make sure that their local plan is up to date and reflects what is required.
Baroness Pinnock (LD)
I thank the Minister for the information she has provided about sanctions and so on. I wait to see how firm those sanctions are. On the issue of local planning authorities having the power, basically, to dictate to a commercial enterprise what is developed on a site that the commercial enterprise owns, I would love to hear what powers the LPA will have in that regard.
Baroness Scott of Bybrook (Con)
The whole system is designed, after the LUR Bill, to be plan led. Therefore, planning applications should be in accordance with, first, national policies and, as importantly, local policies. If local policies say that you need, for example, houses for older people or disabled people, one should be agreeing only those planning applications that have those types of tenure within the developments that are coming forward through planning. If the system is plan led, I would have thought that the inspector should stick to the locally produced plan. On that basis, I hope this reassures the noble Baroness opposite that Amendment 261 is not necessary.
Amendment 269, tabled by the noble Lord, Lord Best, seeks to ensure that the development of large housing sites—defined as sites of 500 or more dwellings or more than five hectares in size where the predominant use will be housing, or designated as a large housing site within a development plan—is diversified in such a way that it provides a mix of new housing that reflects local needs, including social housing, in line with a local authority’s local plan requirements and national development management policies. While we agree with the sentiment of this amendment, we believe that there are better ways of achieving its objectives. The Government are of the view that diversification is best achieved by making this a stronger material planning consideration in the assessment of any housing application, and by requiring a buildout and diversification statement in all prescribed applications. We believe that this is best achieved via a new national development management policy, as that can be applied more flexibly compared to legislation and therefore address the different planning circumstances and housing needs that occur across the country, and that such a measure should not necessarily be limited to larger housing sites.
That is why the Government announced in December 2022—as part of the consultation Levelling-up and Regeneration Bill: Reforms to National Planning Policy—that developers will be required to explain how they propose to increase the diversity of housing tenures to maximise a development scheme’s absorption rate, which is the rate at which homes are sold or occupied. We invited views on the design of this policy, which will help to inform our thinking as part of our fuller review of national planning policy later this year. In these circumstances, while I very much agree with the objective of this amendment, there is a better way to achieve it via national planning policy, and I believe that it should be applied to a greater range of housing sites. This will ensure faster buildout rates and the diversification of those housing sites.
Government Amendment 261A will amend Clause 105 to strengthen the existing powers and hold developers more to account for unreasonably slow delivery or non-implementation of planning permissions. Currently, Clause 105 gives local planning authorities the power to decline to determine planning applications made by a person connected to an earlier planning permission on that same land which was not begun or has been carried out at an unreasonably slow rate. This amendment will enable authorities to exercise the power where an applicant is connected to an earlier permission on any land in their area which has not begun or has been built out unreasonably slowly. This change will send the message to developers that local planning authorities, as well as the communities they serve, expect new residential developments to come forward at a reasonable rate before new planning permissions are considered. This amendment will give greater powers to local areas to tackle cases of slow buildout.
Lord Best (CB)
I am encouraged by the tone with which these issues are being approached. As regards the placing of penalties upon those who are not getting on with the job by refusing future applications from that firm, I can see some hazards here, not least if the delay is happening in one area and the applications for further schemes are somewhere completely different. Is this new power of withholding permission for new applications because you have been so slow in building out the ones you already have to be transferred from one local authority to another, or is it confined to a local authority acting only with regard to interests within its own boundaries?
Baroness Scott of Bybrook (Con)
I believe it is in one local authority, but I will check that. I will let the noble Lord know and make sure that everybody else in the Committee is aware.
Baroness Taylor of Stevenage (Lab)
I am grateful to noble Lords who have taken part in the debate and to the Minister for yet another thorough and thoughtful answer in response to the amendments.
When I moved my amendment last week, I said that I was pleased to see that the government amendment seemed to be complementary to my amendment, and therefore it was good to hear that some new steps are coming forward as regards placing some more requirements on developers in this respect. The Minister outlined some of those, such as publishing data on developers and diversity, the proposal on slow delivery and how it results in turn-downs, and financial penalties that we would be able to impose from local government, and so on. However, it would be good to see the details of those and how they are going to be incorporated. I assume they may go into the National Planning Policy Framework, but again, to echo the point we made several times, so far we have not seen that.
I remind noble Lords that the Local Government Association has said that it did not believe that “tangible powers” had been brought forward in the Bill to enable councillors to encourage developers to build out. I hear what the Minister said about secondary applications from those builders, but local authorities need powers to deal with current applications, where the buildout is slow too, so I hope some more thought might be given to that. The noble Lord, Lord Best, referred to the fact that builders may operate across different areas, which is a good point. However, if we take action on developers in the first instance, perhaps they will be encouraged not to go and apply elsewhere if they think that there will be action and that financial penalties will be imposed where they are too slow to build out.
I reiterate our strong support for Amendment 269 in the name of the noble Lord, Lord Best. On the issue of diversification in larger developments, I take the Minister’s point that that might also apply to other developments in terms of making sure they include all types of accommodation. We have had long debates in your Lordships’ House around supported accommodation, but it can also apply to student accommodation—I have a particular passion for social housing. That is important. I also wanted to make the point that those types of accommodation being requirements, whether it is through the local planning authority or as part of the National Planning Policy Framework, would also help encourage the development of specialist builders and help us to get a wider picture across the country with specialist builders who have great experience in developing for those particular areas.
The noble Baroness, Lady Pinnock, spoke about the viability issue, which I am sure has and will be the subject of discussions. On the Islington example she gave, those questions have arisen across the country. It is important we continue to debate that as part of the Bill, because I believe it is an opportunity to try to crack some of these issues around viability that we have been trying to wrestle with.
The noble Baroness, Lady Pinnock, gave examples of the huge failure to build out, which means that 2.8 million permissions have been granted since 2011 but only 1.6 million homes have been built. We desperately need those homes, so we need to do whatever we can to push that forward and end the delays in the system—from land banking but also from other issues.
I come back to the issue of diversification of property. If we are not going to have a proper diversification strategy built in, we need a proper definition of affordable housing, because the current definition just does not work; that has been a theme throughout discussion of the Bill. As the noble Lord, Lord Best, said, the affordable housing definition does not work for lots of people in our communities, as we have discussed many times in this House. For the moment, I beg leave to withdraw the amendment.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment enables a local planning authority to refuse to determine an application for planning permission in certain cases where there was a previous application relating to land within the authority’s area and the development was not begun or has been carried out unreasonably slowly. The current power in the Bill would only be available if the previous application related to all or part of the same land.
Baroness Hayman of Ullock (Lab)
My Lords, this has been an interesting debate; I thank the noble Baroness, Lady McIntosh of Pickering, for bringing it forward. I also thank the licensing committee and its members for their considerable work on this. Listening to the debate, one thing that comes over very clearly is that it is time to review the status and look at the current situation. As the noble Baroness, Lady McIntosh, said, we now have the change of use from office to residential space in town centres, and my noble friend talked about the many empty town centre premises. There will be a lot of change in ways that we have not seen before and new challenges, especially for the night-time economy, as has been discussed.
As I said, the agent of change principle has been with us for some years now, which, again, is why it is time to look at this. We know that it is in the National Planning Policy Framework, but what strikes me from the debate is the question of whether it is fit for purpose. I have a number of questions for the Minister following on from this. Is the agent of change principle having a meaningful impact at the moment? Does the licensing guidance reflect the principles in the NPPF itself? We need to ensure that the NPPF is fit for purpose, as well as the agent of change principle within it. The question on my mind is: will the NPPF, when we get to see it, reflect the likely focus of future planning decisions? How will it all fit together?
As my noble friend Lady Henig said, this is an opportunity to enshrine this principle in legislation. We need to make sure that we get this right—that it is fit for purpose and does what it is supposed to do: work to protect both sides. It is important that the Minister is able to assure us on that matter.
My noble friend Lady Henig also asked about the current status of the consultation that took place in 2017 on the housing White Paper in relation to this issue. Not to have heard back from that consultation in 2017, six years ago, is a bit concerning. Since then, as my noble friend Lord Brooke mentioned, we have had the pandemic and so much has changed, so is that consultation even still relevant? Perhaps the Government need to revisit that completely. I would appreciate the Minister taking that back to her department.
Baroness Scott of Bybrook (Con)
My Lords, Amendment 266, tabled by my noble friend Lady McIntosh of Pickering, tackles the important issue of the agent of change principle in planning and licensing—that is, the principle that existing businesses should not be negatively affected by restrictions on them resulting from new development in their area. National policies and guidance already provide strong support for that principle, and we will continue to make sure that authorities have the tools needed to deliver it. The Government therefore do not consider the amendment necessary.
I agree with my noble friend that preventing this happening is important to so many businesses, especially in the night-time economy, where these issues most regularly occur. That is why we amended the National Planning Policy Framework in 2018 to embed these principles, with paragraph 187 of the current framework saying:
“Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established”.
In answer to the noble Baronesses, Lady Henig and Lady Hayman of Ullock, that came after the consultation, so it was partly a response to it. The framework goes on to highlight that, where there could be “a significant adverse effect”, the onus should be put on the agent of change proposing the new development to provide suitable mitigation before it has been completed.
We are also introducing national development management policies through the Bill. In future, and subject to further appropriate consultation, these will allow us to give important national planning policy protections statutory weight in planning decisions for the first time.
We believe that the proposed requirement for a noise impact assessment to be undertaken for relevant development would duplicate existing guidance for local planning authorities. Planning practice guidance published by the department is clear that the agent of change will need to clearly identify the effects of existing businesses that may cause a nuisance to future residents or users of the development proposed.
The guidance also sets out that the agent of change is expected to define clearly any mitigation that is proposed to address any potential significant adverse effects, in order to try to prevent future complaints from new residents or users. Many local planning authorities also make this assessment of effects a part of their local lists of information required to be submitted alongside relevant planning applications. After such assessment of the effects, reasonable planning conditions can be used to make sure that any mitigation by the agent of change is completed, as agreed with the local planning authority when planning permission is granted.
Importantly, the Government agree that co-ordination between the planning and licensing regimes is crucial to protect those businesses in practice. This is why in December 2022 the Home Office published a revised version of its guidance, made under Section 182 of the Licensing Act 2003, cross-referencing the relevant section of the National Planning Policy Framework for the first time. Combined with our wider changes in the Bill, we will make sure that our policy results in better protections for these businesses and delivers on the agent of change principle in practice.
I hope I have demonstrated that the Government’s policies embed the agent of change principle and that we will continue to make sure it is reflected in planning and licensing decisions in future.
Baroness Taylor of Stevenage (Lab)
My Lords, Amendment 267 in the names of the noble Lord, Lord Young, and the noble Baroness, Lady Thornhill, was music to my ears; Amendment 287 from the noble Baroness, Lady Pinnock, is very similar. I have never understood why the public purse—the hard-pressed local government public purse at that—has to subsidise the development industry even for the very largest and most profitable developments. We have long spoken about a “polluter pays” principle in discussions on the environment; perhaps it is time we had a “profiter pays” principle in planning.
This issue has long been debated in local government. It is the subject of general incredulity that, at this time of financial crisis for local government, it is still allowed to continue. The Local Government Association has lobbied consistently on this point, stating in its recent response:
“We welcome the proposal to increase planning application fees, as it has for a long time been our position that there is a need for a well-resourced planning system. However, the Government should go further by allowing councils to set planning fees locally.”
I do not think it is a surprise to any noble Lords that local authority planning departments are at full stretch already. The noble Lord, Lord Young, referred to how they will respond to the 47 clauses in this Bill, never mind the issue of street votes—they will have plenty of work to do, that is for sure. It is an area of specialism where there are considerable shortages of professionals. In spite of a great deal of work being done to encourage young people to consider planning as a career and increase the number of routes into the profession, there remain difficulties in recruitment and retention. This is even worse in areas surrounding London, where it is almost impossible for local authorities to compete with the packages offered to planning officers in London.
This is exacerbated by the pressure of work; I know that many noble Lords in the Chamber will have sat through contentious planning application hearings, and I do not think any of us would be surprised to learn that our officers subject themselves to considerable stress. Therefore, it is only right that the industry makes a fair contribution to the cost of processing applications where it will reap substantial developer profit. This will enable local authorities to ensure that their planning teams are resourced adequately.
We also strongly support Amendment 283 in the name of my noble friend Lady Young, and so ably moved by the noble Baroness, Lady Parminter. She is absolutely right that statutory consultees, often hard-pressed themselves, should be able to recover the costs from applicants. I understand that of the £50 million bill for this, cited by the noble Baroness, Lady Parminter, 60% was incurred by Natural England and the Environment Agency as the two statutory consultees dealing with the greatest number of planning consultations. It was as far back as 2018 that the top five statutory consultees came together to form a working group to identify potential alternative funding mechanisms to address the increasingly critical and unsustainable position. They made recommendations to DLUHC in March 2019. This work highlighted the need for a change in primary legislation to provide a broad enabling power under which statutory planning consultees could pass on the costs incurred in providing statutory advice to applicants, either as part of the existing planning fees or as an additional separate charge.
We welcome the inclusion of a power in the LURB to enable statutory consultees to recover costs incurred in providing advice on nationally significant infrastructure projects. That alone, though, makes only a modest contribution to addressing the challenge of establishing the sustainable funding model. I believe for Natural England, approximately 70% of the statutory consultation work will continue to be reliant on grant in aid. Will the Government introduce a power that will help us? If not, the Government are, in effect, committing to rely on the Exchequer as the primary means of funding the essential role that statutory consultees play in support of the operation of the planning system.
There is also the danger that we will create an inconsistent funding model between NSIP cases and non-NSIP cases that are of a comparable size or impact, such as large-scale housing developments. That could result in the need to prioritise resources for NSIP work over non-NSIP work, create inconsistency in service levels and potentially disadvantage large housing developments, which would be the exact opposite direction to the way we want to go. I hope that the strength of my noble friend Lady Young’s amendment will be taken into account.
Consideration should also be given to other statutory agencies. We have seen similar pressures on colleagues in the National Health Service, for example, where they have to comment on planning applications. There is also pressure on the resources of county councils to respond to matters relating to highways, flood risk, education and adult and children’s care provision—to name just a few—which is required on almost every major application and some smaller applications. It is simply not right that those costs should fall on public agencies whose funding is limited. If they were adequately recompensed, their ability to respond to applications in a timely manner might be improved.
Government Amendment 285C is similar to that proposed by my noble friend Lady Young—I hope we can at least agree on that—but, as the noble Lord, Lord Young, pointed out, this may not refer to charging for local authorities. We would want to see both local authorities and statutory consultees able to charge something like the recovery of the costs they incur in relation to the planning system.
Baroness Scott of Bybrook (Con)
My Lords, Amendments 267 and 287 have been tabled by my noble friend Lord Young of Cookham and the noble Baroness, Lady Pinnock, respectively. I assure your Lordships that the Government understand the concerns about stretched resources in local planning authorities. However, we do not believe that enabling local planning authorities to vary fees and charges is the way to answer resourcing issues, and it does not provide any incentive to tackle inefficiencies. Local authorities having different fees creates uncertainty and unfairness for applicants and, if set too high, could risk unintended consequences by discouraging development.
Baroness Pinnock (LD)
My Lords, the Grenfell fire tragedy of June 2017 has rightly ensured that many of us in this Chamber have put our minds to the outrageous way in which the construction industry failed to meet existing building safety regulations and how material manufacturers knowingly sold flammable cladding materials to be put on high-rise blocks of flats. That is not me saying that; the inquiry into the Grenfell fire said that.
We have over the past six years in this House tried two ways, so far, to address those issues, first through the Fire Safety Act and then through the longer, more detailed Building Safety Act. Right from the outset, I and others have said quite clearly that, whatever happens in putting right the wrongs of 20 years or more, the leaseholders are the innocent victims in this situation. They have done everything right in their lives and nothing wrong, and they should not be asked to pay a penny piece towards putting right the wrongs that have been done to them, which were concealed from them when they entered into a contract for their property.
We have, with the Government, tried hard to put this right. We have heard from the noble Earl, Lord Lytton, and the noble Lord, Lord Young of Cookham, who have been on this route march, as it seems, from the beginning, trying to find the answer to the question, “As the leaseholder must not pay, who must?” The noble Lord, Lord Young of Cookham, asked the right question—of course, he always does—which is, “Has the Government done enough?” Some of us, including him at the time, said we did not think so, and so it is proving.
Not only we in this Chamber but thousands of leaseholders are saying that the Government have not done enough. Not only is the construct in the Building Safety Act of the waterfall of responsibilities failing to ensure that remediation takes place promptly or at all, but, meanwhile, as we heard from the noble Earl, Lord Lytton, many leaseholders have awful tales to tell about anxiety caused, mental health that has broken down, financial burdens that cannot be met, ensuing bankruptcy and life chances blunted—and no responsibility of theirs.
Why would any of us involved in legislation allow thousands of our fellow country men and women to be put in this position, where they are being seriously adversely affected, in emotional, financial and social ways, and not do anything—or enough—about it? The noble Lord, Lord Young of Cookham, rightly said again that the Building Safety Act, despite our best efforts, excluded certain groups of leaseholders: those living in blocks under 11 metres, enfranchised leaseholders and, indeed, some buy-to-let leaseholders. That is clearly not acceptable, because those leaseholders are suffering immensely; the noble Lord, Lord Young of Cookham, gave a vivid example of that.
So the challenge to the Government and to the Minister, which I hope she will take up and respond to, is: what, then, can be done? The Government have tried to put in place a series of funding mechanisms and responsibilities, but that is clearly failing to help thousands upon thousands of leaseholders.
The Minister was unfortunately—or fortunately, for her—was not part of the long discussions on what became the Building Safety Act. We were promised at the time that leaseholders would not be expected to pay, but that is clearly not bearing out in practice. Therefore, I hope the Minister will go back to her department and ask those fundamental questions. The Government’s purpose, as expressed by the Secretary of State Michael Gove, was that it was morally reprehensible for leaseholders to pay. If that is the case, let us put that into practice and find a route through, so that no leaseholder pays anything. They have done nothing wrong and they should not be expected to pay.
In his proposed new schedule to the Bill, the noble Earl, Lord Lytton, has made a very detailed proposal about the polluter pays principle. I concur with the principle that those who cause the damage—the construction companies and the materials manufacturers—must pay. We have to find to find a way for that to work in practice. I am hoping that the Minister will come up with some answers.
Finally, the noble Baroness, Lady Hayman of Ullock, has once again raised the issue of second staircases in high-rise buildings and houses in multiple occupation, which we debated during the progress of what became the Fire Safety Act and also the Building Safety Act. Most of us said that, yes, that was the expert advice from the fire service chiefs and that is what we should do; but, unfortunately, that was not accepted by the Government.
I agree with the noble Baroness’s amendment, but I go back to the key to all this. My view—and that of all who have spoken, through all the outcomes that followed the Grenfell fire tragedy—is that, however the remediation of these buildings, of all heights, is resolved, when it comes to the leaseholders, whether enfranchised or unenfranchised, whatever happens, they must not pay. I look forward to the Minister’s response.
Baroness Scott of Bybrook (Con)
My Lords, in his Amendments 274, 318, 320 and 325, the noble Earl, Lord Lytton, returns us to subjects that we debated extensively this time last year in what was then the Building Safety Bill. I say to the noble Earl, with the greatest of respect, that this House and the other place considered his arguments carefully last year and rejected them. I really do not think that this Bill is an appropriate place to try to reopen these issues.
Last year, the Government opposed the noble Earl’s scheme and proposed an alternative, the leaseholder protection package, which was agreed by your Lordships and the other place. As your Lordships will be aware, the leaseholder protections in what is now the Building Safety Act 2022 have been in force since June 2022 and form part of the Government’s response to the need to fix defective buildings, alongside a number of other measures that my right honourable friend the Secretary of State set out recently in a Statement in the other place, which was repeated for your Lordships.
Those protections are complex. I would be very happy to have a meeting with interested Peers to discuss the Government’s actions in detail if that would be helpful. If any noble Lord would like to do that, they can get in touch with me or my office and we would be very happy to set that up. But, as I said, the protections are complex and it is true that it has taken time for the various professionals working in this space to get to grips with them. None the less, there is now progress on getting work done, getting mortgages issued on affected flats and moving the conversation forward with the insurance industry to ensure that remediation can be undertaken and that building insurance premiums, which had been excessively high, reflect this reduction in building risk.
I want to be clear with your Lordships: the leaseholder protections are working. The first remediation contribution order to get money back for leaseholders has been made by the tribunal and is being enforced now. In response to my noble friend Lord Young of Cookham, I can say that there have been a further 12 applications for remediation orders to the First-tier Tribunal and nine for contribution orders; that is up to the end of December—we do not have any further updated figures.
The Government’s recovery strategy unit is litigating against large freeholders, and leaseholders have the peace of mind that the remediation bills they were facing—sometimes for more than the value of their home—are no more. I emphasise to your Lordships that changing the basis on which leaseholders are protected would set back by months the progress of remediation work, which is finally happening at pace, and would create further uncertainty in the market.
In addition to the inevitable delay to remediation that would be caused if the noble Earl’s proposals were adopted, I must emphasise that the objections set out by my noble friend Lord Greenhalgh, when he spoke from this Dispatch Box last year, are still relevant. The building-by-building assessment process that he proposes would be both costly and time-consuming, which would not be in anyone’s interest.
While the noble Earl says that his scheme seeks to avoid litigation, our experience shows that the level of complexity and the sums at stake in this field mean that litigation is inevitable—and will necessarily take place in the High Court, rather than the expert tribunal already dealing with disputes under the leaseholder protections, increasing costs and the time taken to resolve cases. I should also make it clear that the Government’s package of measures in this space goes much further than the leaseholder protections set out in the Building Safety Act.
At this point, I would like to answer a few questions. Both my noble friend Lord Young and the noble Earl, Lord Lytton, brought up the point of “under 11 metres”, which I know has been an issue raised. I think I have said many times at this Dispatch Box that the views of the independent experts are clear: there is no systematic risk in buildings under 11 metres. However, we continue to look at these on a case-by-case basis and provide any help to those leaseholders accordingly. If my noble friend Lord Young of Cookham would like to let me have the letter that was sent to him, I would be happy for the team to look at it.
Earl Howe (Con)
My Lords, all the amendments in this group relate to the enforcement clauses in the Bill and it may be helpful if I begin by explaining briefly the rationale for the package of enforcement measures that the Bill contains. The Government recognise that effective enforcement is vital to maintain public confidence and trust in the planning system. The noble Baroness, Lady Thornhill, made that point very powerfully. Local planning authorities already have a wide range of enforcement powers, with strong penalties for non-compliance, to tackle breaches of planning control. The Bill’s measures are intended to strengthen those powers so that local planning authorities are better able to take the robust action their communities want to see.
Amendments 275 to 279 inclusive all deal with Clause 107 on enforcement time limits. Amendments 275 and 277, tabled by the noble Baroness, Lady Hayman of Ullock, seek to retain the current four-year time limit for commencing enforcement action against breaches of planning control where the breach has a significant impact on the local environment. Amendments 276 in the name of the noble Earl, Lord Lytton, seeks to retain the four-year time period after which enforcement action cannot be brought where there has been a breach of planning control consisting of the change of use of any building to use as a single dwelling house. Amendment 278 in the name of the noble Earl would require consultation to take place and a report to be published before Clause 107 can come into force. The noble Earl’s further amendment, Amendment 279, seeks to add to the Bill confirmation that breaches of planning control which are currently immune from enforcement action will remain immune following the passing of the Act.
Let me give the Committee some background on the need for Clause 107. Currently, Section 171B(1) of the Town and Country Planning Act 1990 imposes a four-year time limit on local planning authorities beginning enforcement action against a breach of planning control consisting of building, engineering, mining or other operations. Section 171B(2) imposes the same four-year time limit for a breach of planning control consisting of a change of use of any building to use as a single dwelling house. All other breaches of planning control are subject to a 10-year time limit. However, we have heard from key stakeholders the very point made by the noble Baroness, Lady Thornhill, that there are some cases where the current four-year time limit is not long enough and the opportunity to commence enforcement action is inadvertently missed.
For example, a person may not initially raise concerns with a local planning authority, assuming a neighbouring development has the correct permissions or will not cause disturbance. Should the development prove disruptive, they may then try to come to an agreement with the person responsible for it. However, by the time they raise their concerns with the local planning authority, the opportunity to commence enforcement action may have passed.
We have also heard that having two timescales for enforcement can unnecessarily complicate cases. For example, where a new building has been constructed on land, enforcement action could be taken against the construction of the building itself, subject to the four-year rule, or against the material change of use of the land brought about by the construction of the building and its subsequent use, subject to the 10-year rule. This uncertainty can lead to lengthy and resource-intensive appeals and court cases debating the starting point for immunity.
Clause 107 seeks to address all these issues by making the time limit 10 years for all breaches of planning control in England. This will create greater certainty and consistency for all parties involved in the planning enforcement process and ensure that the opportunity to commence enforcement action is not inadvertently missed. To be very clear, Clause 107 is not about delaying the enforcement process unnecessarily. The expectation will remain that local planning authorities should act promptly to investigate and remedy breaches of planning control as quickly as possible.
Amendment 278 is about consultation. As I have already explained, we have engaged with key stakeholders during the preparation of the Bill. This package of enforcement measures is what the profession identified would most help it carry out its job more effectively. On the noble Earl’s Amendment 279, we will make transitional provisions in regulations to ensure that breaches of planning control that are currently immune from enforcement action will remain immune following the passage of the Bill. I hope that, with these reassurances, he will agree that these amendments are not required.
Amendment 280, tabled by the noble Baroness, Lady Taylor of Stevenage, seeks to probe how technology can be used to support the new planning process. The Government share this ambition. We are keen to modernise the planning process and make better use of technology; amendments in Chapter 1 of Part 3 of the Bill, on planning data, are designed to do just that.
The new enforcement warning notices that we are introducing through the Bill may be served in a number of ways, including by electronic means, but I do not think it would be appropriate to make this the only means of serving such a notice. Enforcement warning notices are a planning enforcement tool. It is therefore vital that, if a local planning authority is beginning enforcement action, those against whom action is being taken receive the notices. Some do not use or have access to digital communication tools, and we must ensure that they are not disadvantaged. There is also the issue that an enforcement warning notice may be served on someone who has not engaged with the local planning authority and so the authority would not have an email address for them. I hope that, with this explanation, the noble Baroness will agree that this amendment is unnecessary.
Amendment 281, tabled by the noble Baroness, Lady Taylor, is about local authority resources. The measures in the Bill are designed to make the existing framework easier to use for enforcement officers. Where we are introducing new powers such as enforcement warning notices, their use is discretionary. As such, I do not think these measures will create significant additional burdens or resource pressures for local planning authorities.
However, we recognise that many local planning authorities already face capacity and capability challenges and we are taking steps to address this issue. We are currently consulting on proposals to increase planning application fees. In the enforcement context, this includes a proposal to double the fee for retrospective applications, in recognition that they often create additional work for officers over and above what is required for a regular application. To ensure that local planning authorities are well equipped and supported to deliver their existing requirements as well as the changes set out in the Bill, we have already started to work alongside the sector to design targeted interventions to support the development of critical skills and to build capacity across local planning authorities. With these reassurances, I hope the noble Baroness will agree that Amendment 281 is unnecessary.
I turn to Amendment 281A, tabled by the noble Baroness, Lady Hayman, and spoken to by the noble Baroness, Lady Taylor. The level of fine for failure to comply with a breach of condition notice is currently level 4 on the standard scale—a maximum of £2,500. The purpose of Clause 112 is to make fines for this offence unlimited, bringing them into line with the levels of fine for other planning enforcement offences. Amendment 281A would introduce a new sentencing requirement for this offence which would not apply to sentencing for other planning enforcement offences. It would not be reasonable to create a more punitive sentencing regime for the offence of non-compliance with a breach of condition notice than for other planning enforcement offences.
This amendment would also cut across the national approach to sentencing set out in the Sentencing Code which courts refer to when sentencing offenders. It is for the courts to determine the appropriate level of fine for an offence, taking into account its seriousness and the financial circumstances of the offender, including for this offence. Therefore, while I appreciate the sentiment behind this amendment, I feel that it is not appropriate for those reasons.
Amendment 281B, tabled by the noble Baroness, Lady Taylor, would ensure that relief from enforcement action under Clause 113 cannot be granted for any planning conditions relating to the type or volume of affordable housing. While I appreciate her concern about the power being used to restrict conditions about affordable housing, I reassure her that this is not the intention. Clause 113 has been brought forward to provide a statutory route to provide relief in future from planning conditions that unnecessarily impede economic activities during periods of disruption and uncertainty. This is in response to the experience during the height of the Covid pandemic to enable key business sectors to respond and recover from its impacts where we discouraged enforcement through policy.
Here, we focused exclusively on conditions related to the operative use of land or premises, such as construction working hours or delivery times. We would expect these types of conditions to provide relief from enforcement action in future. Conditions related to affordable housing were not in scope. More importantly, affordable housing provision is primarily secured through Section 106 planning obligations, rather than by condition. The concern that affordable housing provision could be affected by the use of this power is therefore misplaced. It does not affect Section 106 agreements.
Amendment 281C, tabled by the noble and learned Lord, Lord Hope of Craighead, seeks to limit the use of the power under Clause 113 to periods of emergency or serious disruption. I recognise that the Delegated Powers and Regulatory Reform Committee has recommended that this power should be limited to periods of emergency or serious disruption. We are carefully considering its recommendations and will respond to the committee before Report. However, I reassure the noble and learned Lord that I believe the committee has made some valid points on the scope of the power. It is intended to be used in emergencies and periods of disruption, and it will not be used lightly. We recognise that planning conditions are an important way of making development acceptable to communities and we want them to continue to be used.