Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021

Tuesday 8th June 2021

(5 months, 3 weeks ago)

Lords Chamber

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Home Office

Motion to Agree

Moved by

Baroness Pinnock Portrait Baroness Pinnock
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That a Humble Address be presented to Her Majesty praying that the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021, laid before the House on 31 March, be annulled because it introduces a significant policy change without being subject to sufficient parliamentary scrutiny; it affects the ability of communities to have a say in important changes to their local areas; and it does not present an effective or sustainable solution to the housing crisis (SI 2021/428).

Relevant document: 52nd Report from the Secondary Legislation Scrutiny Committee, Session 2019-21 (special attention drawn to the instrument)

Baroness Pinnock Portrait Baroness Pinnock (LD)
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My Lords, I draw the attention of the House to my relevant interests as a member of Kirklees Council and as a vice-president of the Local Government Association.

I thank the Minister for taking part in this debate. I am sure he will give a clear explanation of what he believes this piece of secondary legislation will do. However, until today, none of these significant changes has been the subject of political debate either in this House or in the other place. As a negative instrument, this piece of secondary legislation would have sailed into law without any further ado. My colleagues and I between us have extensive experience of planning matters, particularly as they impact individuals and local communities. We believe that legislating for significant changes to planning law in this way, by stealth and without public scrutiny, is totally inappropriate in a democracy.

The report of the Secondary Legislation Scrutiny Committee drew this conclusion:

“Given that the changes made by this Order are permanent and may have a considerable impact on high streets and the development of key infrastructure, such as schools, colleges, universities, prisons and ports, the instrument again raises the question whether it would have been more appropriate to make these changes in a Bill, enabling Parliament to scrutinise the changes and their potential impact more fully. This is particularly apposite as the instrument also puts the Government’s approach to protecting historic statues, including those which may be controversial, on a statutory footing.

This Order is drawn to the special attention of the House on the ground that it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House.”

I concur completely.

Those are the reasons why I have tabled a fatal Motion against this statutory instrument. To be clear, I am not opposed to the process enabled by the general permitted development order, which permits some planning changes without a full planning application process. The process of permitted development has been successfully used for some time. The Government, though, have gradually increased the number of planning changes that can be made without full local consideration of the impact on communities. With this SI, there is a considerable extension of permitted development rights to include, for instance, major extensions to schools and prisons. Permitted development explicitly removes the right of the voice of local people, often those directly affected, to be heard and considered. People care deeply about the place they live in and want to be able to voice an opinion.

This instrument permanently extends permitted development rights in four further ways. There is an extension of the right to change shops, offices and commercial buildings to residential use. This has been enabled by the changes made by an SI last year that altered the planning use classes, whereby all shops except small local ones, offices, cafes, gyms and some commercial properties were moved to the same planning use class and thus more easily given permitted development rights to move to residential use.

Some minor caveats are proposed. Prior approval of the local planning authority has to be given in some instances. Those relate to noise and transport impact—but just those related to rights of access—and ensuring space standards and even adequate light. Who would have thought that that needed to be controlled? Of course, it is good to regenerate town centres by enabling more residential use. Some of us have been arguing that for several years but this order is not the way to go. Shop fronts could be changed to residential and the cohesive attraction of a high street completely lost. These changes are permanent and apply equally to conservation areas, which have special protection under planning law. A full planning application would enable such issues to be more readily and openly resolved.

In a further insult to leaseholders who are currently fighting the Government’s complete intransigence on safeguarding them from developers’ fire safety failings, the Government note that prior approval to consider fire safety issues will not be part of the instrument and will be added later. Fire safety as regards changes to residential use is seen as an afterthought. Yet, changing offices to residential use will have considerable implications for fire safety.

The instrument also enables schools, colleges, universities and prisons to expand by as much as 25%. That is a large extension for, say, an average high school of 1,000 pupils. Just think of the consequences in terms of traffic and, more importantly, school admission planning. Growth in one school is often at the expense of another, which is harmed as a consequence. The idea that this huge change can be made less bad by submitting a travel plan that is unenforceable, which it is hoped will be sufficient to quell the anger of local people at a significant rise in school traffic, cannot be and is not a serious proposition.

Port facilities can be built and extended just by saying so. There will be no consideration for local people and certainly no opportunity for them to have their say.

Meanwhile, in the fourth part of this statutory instrument, statues and monuments are being protected by the requirement for a full planning application and for the Secretary of State to be informed of any changes. Statues to the respected and the notorious are to be fully protected but the rights of people to have their say on major changes in their communities are to be removed by the flick of a pen.

In my experience, earlier extensions of permitted development are not going well for the Government. The right to erect 25-metre mobile phone masts without any ability for local people to amend the outcome caused outrage in one of the villages that I represent as a councillor, as did the right to build an extra storey on to a retirement bungalow in a street of retirement bungalows. People just want the right to influence what happens in their neighbourhood or wider community. It is what you expect in a democracy.

The Motion that I am proposing is definitely not to hinder change and halt development but is aimed at ensuring that individuals and communities are engaged and involved in planning decisions that affect their lives. Any argument that suggests that this is all about the speed of planning decisions ignores factual evidence that shows that planning decisions are currently made within reasonable timescales—set by the Government—and are of the same timescale as those that require prior planning approval. I urge Members to support my Motion for the sake of good governance and the democratic process. I beg to move.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
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My Lords, I draw the attention of the House to my relevant registered interests as a vice-president of the Local Government Association, a non-executive director of MHS Homes Ltd and chair of the Heart of Medway Housing Association. I should make clear that at the appropriate time I intend to divide the House on my regret Motion.

It is extremely disappointing that this order is before us. I concur with many of the remarks of the noble Baroness, Lady Pinnock. However, sadly, it is how the Government operate, with scant regard for communities, the need to make their areas sustainable or, frankly, any understanding of what a stable community actually is. The order is another example of the Government’s inept planning policy. I have stood here so many times in recent years discussing orders, planning Bills and so on. They are just non-stop and I am sure we will be back again. The Government are completely inept in what they are doing.

Imagine if the roles were reversed. The noble Lord, Lord Greenhalgh, would be standing up and demanding, “You must let local communities have their say. How dare you do this?” I am sure that he would make the arguments that I am now giving. The Government have no interest in what local communities want to do. The noble Lord should know because he has been the leader of a council, whereas I have been only a member of a council. He knows how much councillors are the voices of their local communities and how much the local community wants to engage with its council. What we have here pushes all that to one side. It will hold back our high streets and open the floodgates for poor-quality housing in towns, cities and villages across England with no regard for what communities actually want.

What happened to localism? That word has disappeared from the Government Benches recently. There is nothing about that any more. Now Whitehall will decide and you will do as you are told. Localism was another fad from the Government—another slogan that has now gone out of fashion.

The country is in desperate need of affordable housing. We talk about it all the time. This order does nothing to achieve that. Instead, what we have here is a developers’ charter that removes powers from locally elected representatives and hands them to Whitehall-appointed boards. As the noble Baroness, Lady Pinnock, said, there is virtually no scrutiny whatever, just a negative Motion before the House. There is no legislation here. The Government are not prepared to put it in front of the House of Commons. It is only because we have tabled the regret Motion and the fatal Motion that we are actually debating these issues. The Government are running scared from debating them.

There are three main reasons why I have tabled this regret Motion and I will set them out. I believe that this order will hold back communities. First, it takes away from local people and locally elected people the ability to make their points known. Local councillors know their area best. They are the right people to decide. Instead, we are transferring powers to Whitehall-appointed boards. It shows contempt for local representatives. More than that, is the Minister actually saying that the boards and the Government know better than local councillors and local people? Surely, he is not saying that at all. Local communities know their interests and their needs and know what needs to happen in their area.

The second concern from these Benches is the risk of swathes of poor-quality housing appearing as a result of this order. We have enough poor-quality housing in this country. We have a housing crisis, as the Minister knows. We talk about it all the time in this House. This will do nothing at all to help that. We need good-quality homes and this, sadly, will do nothing to deliver on that.

The third point is about how it seems acceptable to let it go through with little scrutiny in Parliament. The risk is that we will see retail units being converted to low-quality flats. There is no guarantee that they will be what the local community actually wants. It could also decimate town centres. We all know that our high streets are in crisis. I would like the Minister to set out for us how this order will help and save our high streets. It does nothing for them at all. It adds to the risk that our high streets will become ghost towns. In these tough times for local businesses, the Government should be standing with businesses and communities and ensuring that our high streets and town centres are developed and supported, but, sadly, they are not.

To be clear, I intend to divide the House on my regret Motion when the time comes but neither I nor my Benches will be supporting the fatal Motion in the name of the noble Baroness, Lady Pinnock. I like the noble Baroness very much and I respect her views but I am also conscious of the constitutional position of this House. The House has the power to put forward fatal Motions but should use that power very sparingly. I want to express my regret, annoyance and anger at what the Government are doing here. They need to behave better on these things and should have put them in front of the House of Commons in proper legislation to have them debated.

I suspect the Government are not doing that because they know the problems they will have from their own Back Benches in the other place, in particular, if they put these proposals forward. That is why they are using this negative measure. It is regrettable that it takes away the voice of local communities and will hold back the high street. It also does nothing to improve the housing situation. I suspect that this is the way that the Government will continue on a number of issues. I will leave it there. As I said, I will put my regret Motion to the vote but will not support the fatal Motion.

Lord Alderdice Portrait The Deputy Speaker (Lord Alderdice) (LD)
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The noble Lord, Lord Lilley, has withdrawn from the debate so I call the noble Lord, Lord Berkeley.

Lord Berkeley Portrait Lord Berkeley (Lab) [V]
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My Lords, I am very pleased to take part in this short debate. I support every word that the noble Baroness, Lady Pinnock, and my noble friend Lord Kennedy have said. This is a quite extraordinary piece of secondary legislation covering permitted development rights, which I have had an interest in for many years. My remarks will cover not only what is in the order but what is not in it. I fully intend to ask the Minister one or two questions as to why.

First, regarding what is in the order, and in support of what the two noble Lords have spoken about, I note that paragraph 7.1 of the Explanatory Memorandum says that this process allows

“for local consideration of key planning matters through a light-touch prior approval process.”

Those are lovely soft words that should make everybody say, “Well, it is all right.” Actually, as the two noble Lords have said, it is not all right and is taking away local democracy where it is very important. As my noble friend said, where is localism? It is crazy.

I think there are going to be very serious problems with some of the proposed changes between commercial and residential, with very few constraints and local comments. I had a message from the noble Earl, Lord Lytton, this morning. He suggested that giving away permitted development rights without any preliminary consideration of visual effects, massing, overlooking and those kinds of amenity considerations ultimately erodes the quality of the environment. The noble Earl regrets not being able to speak but he is a real expert on these things and I think his views need to be taken into consideration.

It is extraordinary that this draft order has suddenly been brought forward. I suspect it was done to ensure that no more statues are removed without planning permission. It seems an extraordinary priority for Ministers, with all the housing problems that the noble Baroness and the noble Lord have spoken about, to worry about statues. We may need changes to schools, colleges, universities, hospitals and prisons but they all need to be done properly. I do not see any constraints within these regulations to give the local planning authorities—which actually know what they are talking about—any meaningful input to Whitehall running everything.

There is another problem that is not in the order. That is to do with permitted development rights for Highways England to demolish bridges. A number of noble Lords have spoken about this in times past. Highways England has sought and is using permitted development rights to demolish bridges which are apparently no longer fit to take 44-tonne lorries. Many of the bridges are on side roads and bridleways or footpaths or could become bridleways or footpaths subject to the comment and approval of local planning authorities.

Highways England is going around the countryside saying, “We’re going to demolish 100 or 200 of these bridges because they are too expensive to maintain.” Highways England took them on, knowing the cost of maintenance and knowing that they would never have to redesign and rebuild them to carry 44 tonnes; the agency is doing this in the hope that no one will know and that the planning authorities will not be able to do much about it.

The other part of permitted development rights included in this regulation is the development of docks, piers, harbours, water transport, canals or inland navigation undertakings. I understand that this is needed primarily to facilitate free port development. While that sounds quite reasonable, I am not convinced that free ports will necessarily see the light of day. It is probably a reasonable thing to do, but I will ask again: what role will local planning authorities have within this particular part of the regulation?

What is missing are any permitted development rights changes on the railways. As noble Lords will know, railways have permitted development rights to do lots of things, given their ownership of the tracks and stations, but my understanding over the years is that the railways have been fairly reticent about making changes if they feel that there will be a problem with the local planning authorities. They have often sought planning permission, even though they could have argued that it was not strictly necessary because of their permitted development rights. Perhaps the Minister could explain why there is nothing about railways in the order. What rights do the railways have in respect of changes that they might make to stations, tracks and signals, fencing and everything else which they could obtain through permitted development rights, but then do not necessarily do that?

On the one hand we have Network Rail bending over backwards to be helpful, but on the other it is still a railway—HS2—that is trampling over the rights of all individuals, environmental or otherwise, due to a fairly flawed hybrid Bill that went through your Lordships’ House several years ago. There is a significant incoherence and uncertainty about what the railways are allowed and not allowed to do, along with what they choose to do and choose not to do.

Finally, the noble Baroness mentioned fire and safety which, as we all know, is still the subject of massive worry for many residents. I fear that these regulations will not help those residents in any way, either historically or in the future.

I support both these Motions tabled in the names of the two noble Lords and look forward to the Minister’s response.

Lord Davies of Brixton Portrait Lord Davies of Brixton (Lab) [V]
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My Lords, I thank the noble Baroness, Lady Pinnock, and my noble friends Lord Kennedy and Lord Berkeley for setting out so clearly what is wrong with this statutory instrument. I agree with all they have said about its shortcomings, and in particular, I share the anger of my noble friend Lord Kennedy. I want to add my voice on a couple of key issues.

The Government pay lip service to the idea of localism. We know that the Conservative Party pays no heed to its manifestos, but the 2019 version says explicitly:

“Local government is the bedrock of our democracy.”

It also promises

“beautiful, high-quality homes with every community able to decide on its own design standards for new development, allowing residents a greater say on the style and design and development in their area, with local councils encouraged to build more beautiful architecture.”

Really? Are these proposals going to lead to more beautiful architecture? What nonsense. The reality is that this approach is not localism, it is that the Secretary of State knows best.

I am another ex-councillor who believes in local government, warts and all. These regulations are wrong in principle. There is no doubt that changes which are this fundamental and will have an impact on the look of our towns and cities for decades to come should be enacted in primary legislation. It is clear that in practice, these new rules will limit the role of the local planning authority in determining the appropriate uses for its particular area.

The fundamental problem is actually more than a problem—it is a catastrophe. The new rules will allow residential development in potentially unsuitable locations. That is the whole point of the proposals because otherwise this statutory instrument would not be required. What we know is that these will be the slums of the future. More specifically, the new rules will allow commercial frontages on high streets to be converted to residential use in a way that will wreak even more harm on the traditional function of town centres, already under so much pressure. Albeit that there will be a need for separate planning permission for the external treatment of buildings, we know from experience that there is always considerable room for uncertainty by gaming the system, in particular about the vacancy requirement.

We all know that developers cheerfully agree to include shops and pubs within a development and then ensure that they remain vacant until the local authority gives in to the effective blackmail. Of course we need more housing, but this is the wrong way of providing the high-quality stock that we so desperately need. History tells us how to achieve the massive new-build housing programme we need, and it was provided, surprisingly, by a former Conservative Government in the 1950s, summed up in an adequately resourced programme of council housing.

Then there is all this stuff about statues, memorials and monuments. How will the Minister present this with a straight face? We know what they are doing, they know we know what they are doing, and we know that they know, et cetera. Where is the problem that this is supposed to address? It is there only to play to the ignorance and prejudice of the base. The giveaway is in the press release by the Secretary of State on 17 January 2021 under the heading “New legal Protections for England’s Heritage”. It says:

“New legal safeguards introduced for historic monuments at risk of removal. All historic statues, plaques and other monuments will now require full planning permission to remove, ensuring due process and local consultation in every case. The law will make clear that historic monuments should be retained and explained”.

The giveaway is that the Secretary of State will be able to call in any application and ensure that the law is followed. The threat is clear: it will be the Secretary of State who decides, not the local authority and the local community. That is made even more manifest in the statement in the Explanatory Memorandum to the effect that the Government will introduce a requirement for local planning authorities to notify such planning applications to the Secretary of State. Really? Does he not have better things to do?

What needs to be understood is that saying that monuments should be retained and explained is a political statement, taking one side in a deeply contested debate. It is a view that members of the Conservative Party are fully entitled to hold, but it is wrong to write such a political statement into the law of the land.

Finally, as an aside, free ports are a pointless zero-sum gimmick, and there really is no more to say.

Baroness Bakewell of Hardington Mandeville Portrait Baroness Bakewell of Hardington Mandeville (LD)
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My Lords, I declare my interest as a vice-president of the Local Government Association. This is yet another attack on local democracy. I held elected office on Somerset County Council for 20 years and on South Somerset District Council for 10 years. I am passionate about the role of local and national democracy and the right of those who hold elected office to be able to communicate with and represent the views of those who live in the area for which they were elected.

Introducing these changes via the negative procedure to avoid proper parliamentary scrutiny is to deny communities the right to say what happens to them. Local voters may not have voted for the person elected, but it is a duty of the councillor to do their best to take account of all views, when making decisions. These decisions should involve planning permissions. I took this seriously once I was elected. Whether the application is for a school, a children’s home, housing for the disabled, housing for those who are upsizing to four bedrooms or housing for those who are struggling to make ends meet and need a roof over their heads, local input is important. I fully support the comments of my noble friend Lady Pinnock, the noble Lord, Lord Kennedy, and the previous two speakers.

I know that the Minister, who was a long-standing and well-respected councillor, understands these issues. However, the Government have been chipping away at local democratic involvement in planning processes for a while and I find the proposals before us today a step too far for me and my colleagues. I believe that my colleague, my noble friend Lady Pinnock, is likely to divide the House.

Yesterday, we debated the Environment Bill, wherein the Government are looking to local authorities to ensure diversity gain when planning permissions are granted. There is a dichotomy here between what the Government want from their planning system and what they are prepared to allow it to do. We are one of the oldest and finest democracies in the world, both nationally and locally. Our elected representatives, in the vast majority of cases, take their roles seriously. If we ignore the importance of local democratic representation, we do so at our peril. Local councillors know their areas; they know what housing is required and where it is best situated. This is not always popular with some sections of communities, but to remove it altogether is very unwise.

Given that this may be my only opportunity to speak on this SI, I will talk to it. The Government’s consultation on these changes, which are permanent and not temporary, ran from 3 December 2020 to 28 January 2021. At the start of this period, the country was getting ready for Christmas and the hope of seeing our families. This was quickly crushed. By the end of the period, we were well and truly in lockdown and councils were not meeting in public but via Zoom. This can hardly be said to be extensive consultation.

The Explanatory Memorandum is very clear on what is covered and it is chilling. I agree with the Government that permitted development has an important role to play, but what is proposed does far more than streamline the planning process; it drives a coach and horses through it. It will certainly speed up housing delivery, but just what type of housing communities it produces, if any, is another matter. Turning business premises into dwellings is not likely to lead to more employment.

No change of use is allowed if premises have been empty for the previous three months, but temporary closure due to Covid is exempt. However, it is possible for landlords to give businesses notice to quit, leave the premises empty for three months and then apply to convert them into dwellings. All homes will be required to meet the minimum national prescribed space standards. Can the Minister tell us when these were last revised and if another review is planned for the future? I am horrified that the Government are thinking of residential use on heavy industrial and waste-management sites. Although impacts have to be assessed, these can easily be simplified to allow development.

I turn now to health centres and registered children’s nurseries. I despair: to allow these vital centres of communities to be turned into homes is appalling. We have a housing crisis, but we also have a mental health crisis among children, young people and women in particular. Health centres provide a vital service and should be preserved, at all costs. Children’s nurseries are a lifeline, not only for women returning to work, but as an opportunity for young children to meet, learn how to socialise, share and play—all part of their emotional and physical development. Surely these two categories of service provision should be excluded from being taken over for housing.

The Explanatory Memorandum is helpful in listing what is going to happen and when. For instance, a developer or landowner can apply for PDR to convert an office block into housing, and can do that now. Later in the year, the Government will produce separate legislation to amend the right to introduce an additional prior approval on fire safety in relation to the building changing use. By this time, the building is likely to be half way constructed, without fire safety regulations having been considered. The right to change the use of offices, shops, takeaways, et cetera, to dwellings will attract a fee of £100 per dwelling house, up to a maximum of £5,000. If the maximum fee is reached, it will be for a conversion of potentially 50 dwellings from a single commercial property. Will they all have relevant parking?

On the subject of fees, paragraph 7.18 of the EM refers to applications attracting a fee of £96 to be introduced later by secondary legislation, which will also introduce the fee of £100. I ask the Minister whether these fees, which will be introduced later in the process, will be applied retrospectively or effective from some date in the future. It appears that this fee of £96 could cover a larger extension to a hospital or university. That seems like a snip to me; perhaps I have misunderstood the EM, so would be grateful for the Minister’s clarification. I note that all PDR developments must be completed within three years. If only this applied to extant planning permissions, we would not have a housing crisis in the first place.

Paragraph 11.1 refers to guidance being

“available in time for the new rules coming into force”.

As this SI was laid on 30 March and came into force on 1 April, I wonder where this guidance is. Has it been finalised and published? Are local authorities aware of what it actually says?

Lastly, I refer to Article 6 of the statutory instrument itself,

“Insertion of Class MA in Part 3 of Schedule 2”.

Under “Development not permitted … MA.1”, paragraph (1)(f) says,

“if the site is occupied under an agricultural tenancy, unless the express consent of both the landlord and the tenant has been obtained”.

Farming and agriculture are in a state of flux. Farmers are having their previous income, under the CAP, reduced each year and the replacement funding, under the environmental land management scheme, is by no means certain or transparent. Development land attracts a far higher price than agricultural land. I can envisage a situation in which a landlord approaches a tenant and offers a sum of money for vacant possession. A tenant, not certain of what the future holds for him or her, may accept. The landlord will then apply for PDR, which will be granted.

We will see farm buildings and land converted into dwellings. While this has happened on a small scale in the past, to the advantage of many villages—where farm buildings have provided bungalows for the local elderly to downsize—this was through the normal planning route. However, at the moment, at a time of anxiety in the farming community, there is the possibility of widespread conversions and the resultant loss of agricultural holdings. At this time, the mantra should be not only “build, build, build”, but “grow, grow, grow”. I would be grateful for the Minister’s comments on this clause.

Lord Paddick Portrait Lord Paddick (LD) [V]
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My Lords, I completely agree with the speeches of my noble friends Lady Pinnock and Lady Bakewell of Hardington Mandeville. I am not and never have been a local councillor, but my noble friend Lady Pinnock asked me, as a police officer, to speak on the protection of statues.

I agree with everything that the noble Lord, Lord Davies of Brixton, has said on this issue. The order includes a permanent change to Class B of Part 11 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, which specifies that development is not permitted if it involves the demolition of certain structures, even if development otherwise would be permitted. The exemption applies to the demolition of statues, memorials and monuments which have been in place for at least 10 years. The changes in this order mean that, in future, this will require an application for planning permission, unless they are already covered by other legislation. This permanent change in legislation is justified as a result of a change in government policy announced in a Written Ministerial Statement—a change that provided no automatic opportunity for debate in Parliament.

Paragraph 7.29 of the Explanatory Memorandum states:

“Statues, memorials and monuments which are erected to commemorate prominent individuals and events can become the subject of disagreement. Government considers that decisions to remove such public landmarks should be made following proper process in accordance with the local development plan, national planning policy and other material considerations, and consultation with the public.”

Although this all sounds very reasonable, as the next paragraph explains,

“Separately to this legislative change”

the Government have

“introduced a requirement for local planning authorities to notify such planning applications to the Secretary of State”,

to allow the Secretary of State to call in such applications for their determination, instead of determination by the local planning authority.

Quite rightly, the Government’s other legislation proposed to protect statues—to enable magistrates to commit someone to the Crown Court if they damage a memorial, in order that a harsher penalty can be imposed—is being proposed in, and will be debated fully as part of, the Police, Crime, Sentencing and Courts Bill. That is primary legislation—Clause 46 of the Bill currently before the other place. That the Bill offers more protection to statues than to emergency workers speaks volumes about this Government’s priorities.

This is a significant policy and legislative change, giving central government decisions on local planning issues because, potentially, a 10 year-old statue is in the way of what would otherwise be permitted development. But the Government have given themselves the power to overrule local democratic authorities as a result of a policy change announced in a Written Statement and implemented by means of a statutory instrument, subject only to the negative procedure. That is totally unacceptable.

This, and the other major legislative changes proposed in the order, has no place in a statutory instrument, let alone in one subject only to the negative procedure. It is all very well for the noble Lord, Lord Kennedy of Southwark, whom I greatly admire and respect, to say that a fatal Motion should only rarely be used, but this is one of those rare occasions. When my noble friend Lady Pinnock divides the House, I will be voting with her. I urge all noble Lords to do the same. Parliament is being treated with contempt, and we should not allow that.

Baroness Thornhill Portrait Baroness Thornhill (LD)
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My Lords, I too declare my interest as a vice-president of the LGA. I have a very strong sense of déjà vu, or Groundhog Day, because here we go again. This is of course a key issue for us on this side of the Chamber, because, despite overwhelming evidence from an amazingly wide range of sectors and professional bodies, apart from cutting red tape and speed, there are no compelling reasons to bring forward another raft of permitted development rights removing the need for full planning permission. Perhaps the Minister could enlighten us. This considerable disquiet has changed to a rather loud chorus of bewilderment and disbelief that these PDRs continue to be brought forward without even an attempt at an impact assessment or evaluation.

Much of the detail has already been given by my noble friend Lady Pinnock and the noble Lords, Lord Kennedy and Lord Berkeley, on the level of parliamentary scrutiny and the undue haste to bring these changes into law under the negative procedure, which leaves a debate such as this the only route for any scrutiny. We on these Benches are by no means unsympathetic to the aims that the Ministers claim for them, but these proposals will not in any way contribute to those aims—quite the reverse. Paradoxically, we are likely to see property owners taking the quick and easy option of a change of use via PDRs, when a greater involvement by the local planning authority might have helped achieve a wider and more comprehensive scheme that would further the Government’s stated objectives. Among local planning officers, there is already anecdotal evidence: “Oh my God, if only they’d come to us first, we could have made this better”.

We also believe that this continuous erosion of the ability of communities and their local elected representatives to contribute to the shaping of the places they live in is damaging to democracy and ultimately counterproductive. People already feel disempowered by the planning system—you need only attend a local planning committee to know that. Even if they are denied a role in the planning process, they will, thank goodness, find a way to make their voices heard.

Of the several aspects of this SI, I give full support and agreement to the position on statues, ably outlined by my noble friend Lord Paddick and the noble Lord, Lord Davies of Brixton. In line with our localist principles, we believe that this is a matter for local communities to decide. We have heard from my noble friend Lady Bakewell about the potential loss of health centres and nurseries, and the danger that this will be exacerbated if such facilities can be converted to residential use without permission. We have heard from the noble Lord, Lord Berkeley, extremely practical examples of how Whitehall does not always know best.

I would like to focus on further conversions to housing on the high street. The debate today shows that opening up high streets to property speculation—which is what this is—is a misguided attempt to answer current challenges that have existed for years and have been exacerbated significantly by Covid and by changes in our shopping patterns. We believe that it will only worsen the ingrained inequalities that have been so starkly exposed by the pandemic.

Back in 2019, the Housing, Communities and Local Government Select Committee produced a report on the future of the high street, which argued that the Government should suspend any further extension of PDRs, pending an evaluation of their impact on the high street. And here we are again. It is clear that this united opposition to the extension of PDRs, backed by evidence, has simply been ignored by the Government, apart from some small changes, such as that the homes created now should contain a window. It is too late for those that I brought to the attention of the House two years ago—the notorious case in Watford—but it is progress.

Changing the face and fortune of a town takes years. I know, because it was one of my primary objectives for 16 years while Mayor of Watford. Put bluntly, it is hard-going and requires building enduring partnerships with different stakeholders—easier said than done with the competing aims and demands from all those with a legitimate interest in the high street—and genuine community buy-in, as many of the changes are very significant, which is never easy to obtain and even more difficult to hold over time. Most of all, it needs a plan, resources and time. It flies in the face of all my experience that a planning free-for-all is the answer to that problem.

I am also concerned by the implication in these proposals that local authorities do not know what their high streets need and are not already working to produce good solutions. Good councils have long recognised that housing in a town centre is a good thing. They were at the forefront of recognising how repopulating town and city centres could turn urban decline into renaissance. They promoted flats above the shops, mixed-use development to create residential, leisure and community uses alongside retail, and a move to have activity in our town centres that was not just about daytime shopping and late-night drinking. It has taken years to get to that point in many a high street, including ours, and yet these proposals have the ability to undo that work.

Someone has to hold the ring for a whole place, not just think about making a fast buck from a single site. What will our high streets look like in five, 10 or 15 years’ time? How do we get there from here? We believe that these proposals undermine such strategic thinking, with a misguided attempt at a quick fix. They certainly undermine the democratic mandate of elected representatives.

These are big issues but, from my experience, PDRs have always had the potential to be controversial, and have been a source of anger and upset from affected residents. I have stood looking out of a window in a family’s beautiful home while having to explain that the significant extension their neighbour was building was legal, permitted by government rules and did not need planning permission, and that thus the council had no power to suggest amendments, let alone refuse it. I remember the look of incredulity on their faces. It was one small family home, but the impact on their enjoyment of it was huge. This is often the case, which is why council officers try to balance the needs of all parties and why obtaining planning permission has a useful and positive purpose, which appears not to be recognised by the Government.

Some of the issues the Government believe they are trying to solve are absolutely legitimate, and their views are shared by those on our Benches, but we are asking: why not allow people putting forward such schemes to apply for planning permission, as now? This would mean that genuine consultation can occur, and that planners and councillors would be able to do their jobs. It would help the Government’s professed objective of driving up quality and building beautiful. Prior approval gives officers a rotten job to deal with, knowing that they cannot really say no—after all, that is the purpose of these changes—and councillors still have to carry the can for a decision that they cannot influence or change. It is lose-lose for all but the developer/investor.

That is the crux of this issue, illustrated so well by my noble friend Lady Pinnock, the noble Lord, Lord Kennedy, and others. The Government have continually eroded the role of local democracy to decide on or even influence matters that suit the circumstances of its communities. We believe that there is more to come in the future planning Bill. All this is before we even get to the quality of the conversions, which were heavily criticised by the Government’s Building Better, Building Beautiful Commission, which concluded that they have diminished quality, delivered low levels of affordable housing and reduced developer contributions. It said that increased PDRs had “inadvertently permissioned future slums”. That was colourfully articulated by the noble Lord, Lord Davies of Brixton. There is very little time to talk about the impact on conservation areas.

We feel that these reforms lack the critical safeguards to prevent further damage to already suffering high streets by turning community amenities into often substandard homes. Those are some of the reasons why we wish to express more than mere regret at what is happening to our planning system and, more importantly, to our communities and our democracy.

Lord Greenhalgh Portrait The Minister of State, Home Office and Ministry of Housing, Communities and Local Government (Lord Greenhalgh) (Con)
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My Lords, we have had an interesting and passionate debate on this order. I am grateful to noble Lords on all sides of the House for their contributions. I will take this opportunity to respond to some of the points which have been raised.

Before I do so, I will set out briefly what is included in this statutory instrument, which introduces a number of important measures. First, it includes the new permitted development right, discussed today, to allow for the change of use from the commercial, business and service use class to residential use. Secondly, to support the ambition of Project Speed and to ensure that new investment in public service infrastructure is planned and delivered faster and better, this order introduces important measures to allow schools, hospitals and prisons to expand their existing premises, helping to deliver additional capacity for local communities more quickly. Thirdly, it includes measures relating to freedoms for development at ports, including free ports. Finally, it includes measures to support the Government’s heritage agenda by allowing for local consideration of the removal of statues and monuments, which are often important heritage assets. This issue was raised by the noble Lords, Lord Berkeley, Lord Davies of Brixton and Lord Paddick.

I turn to the points raised on the adequacy of parliamentary scrutiny by the noble Baroness, Lady Pinnock, and the noble Lord, Lord Kennedy, as well as by the noble Baroness, Lady Thornhill. The general permitted development order under which permitted development rights are granted is made principally under Section 59 of the Town and Country Planning Act 1990—the primary legislation. That Act enables the Secretary of State, through secondary legislation, to make a development order under the negative resolution procedure. Therefore, it is entirely appropriate that this statutory instrument was laid before Parliament under the negative resolution procedure. That is the procedure that Parliament approved when it passed the parent Act. As demonstrated today, the House may call attention to and debate particular legislation of interest.

The noble Lords, Lord Kennedy and Lord Berkeley, the noble Baronesses, Lady Pinnock and Lady Thornhill, and others raised community engagement and prior approval by the local planning authority, as well as the adequacy of local decision-making. The permitted development right for the change of use from the commercial, business and service use class is subject to prior approval by the local planning authority if that authority so wishes. This enables the consideration of key planning matters in consultation with the local community. Adjoining owners or occupiers are required to be notified. The council may then consider representations made on those specified matters for prior approval as set out in the legislation. That was summarised by the noble Baroness, Lady Pinnock.

Other matters the local planning authority can consider include, in conservation areas, consideration of the impact of the loss of ground floor commercial use; and, in all areas, access to the site, flood risk, the impacts of noise on future residents, any impacts on occupiers from the introduction of residential use in an area that is important for heavy industry, storage and distribution and waste management, and—this responds to the noble Baroness, Lady Bakewell of Hardington Mandeville—the impact of the loss of health centres and registered nurseries on the provision of such services. The local authority is required to take into account any representations made to it as a result of any consultation when making its decision whether to grant prior approval.

It is important to recognise that the Government are committed to delivering the new homes that the country needs. Last year around 244,000 new homes were delivered, which is the highest number in over 30 years. Permitted developments are just one mechanism under which new additional homes can be delivered, and they encourage the development of existing buildings on brownfield sites. They protect the green belt. This enables additional net extra homes.

I do not agree with the points made about a lack of focus on quality. This will not be a floodgate to poor-quality housing—I think that that is the phrase that the noble Lord, Lord Kennedy, used. On this point, 72,000 new homes have been provided. There has been the example of the one home in Watford without natural light, and we recognise the issue of space standards. That is why we have listened to the House and made sure that we have taken steps to address these problems. We have introduced a condition that all homes delivered through permitted development rights must, since April this year, meet the nationally described space standards, and we require that all homes delivered under permitted development rights should include adequate natural light in all habitable rooms.

To respond to the noble Baroness, Lady Bakewell of Hardington Mandeville, I say that the nationally described space standards were introduced in 2015. My understanding is that there are no plans to review them, since they were introduced relatively recently.

As the Minister with responsibility for fire and building safety, I also point out that all homes built through permitted development have to meet building regulations, including fire and other building safety requirements. My department, the Ministry of Housing, Communities and Local Government, has made it very clear that there are restrictions on the use of combustible materials when additional residential storeys are added.

There has, quite rightly, been a great deal of concern about the importance of high streets. On the points raised by the noble Lord, Lord Kennedy, and the noble Baroness, Lady Thornhill, I reassure the House that we are committed to boosting regeneration and supporting our high streets and town centres. The pandemic has taken its toll and magnified the problems facing town centres and high streets, and we want to support them in adapting to these changes to become thriving, vibrant hubs where people live, shop, use services and spend their leisure time. We have therefore allocated £3.6 billion through the towns fund and an additional £4.8 billion in the levelling-up fund, which, alongside the high streets task force, will give high streets and town centres expert advice to adapt and thrive, and funding to help create jobs and build more resilient local economies and communities.

This new permitted development right will simplify the planning process and enable best use of existing and underused buildings. This is not about developers gaming the system; it is about ensuring that we see active high streets, that vacant premises do not sit there unused, blighting an area, and that there is greater flexibility in planning to enable the change—in this case—to residential use. But there are protections: there is a size limit of 1,500 square metres of floor space so that we focus on the medium-sized high street for this planning flexibility. In conservation areas, it further allows for consideration of the impact of the loss of ground floor use to residential on the character or sustainability of the area.

I beg the noble Baroness, Lady Pinnock, to reconsider the use of a fatal Motion. I have been educated by the noble Lord, Lord Kennedy, that fatal Motions come along very infrequently; I can count them on the fingers of one hand. We need to recognise that the fatal Motion would also impact on the delivery of public services in our schools and hospitals. The legislation is a very important part of our ability to grow our public service infrastructure: it enables permitted development rights for larger extensions for schools and hospitals, and enables schools, colleges and universities to increase their capacity by up to 25%, enabling them to respond to the challenges the country has faced in the pandemic and provide adequate social distancing. I hope that the noble Baroness will consider not dividing the House, because any move to annul this order would affect our ability to deliver this critical public service infrastructure.

The noble Lord, Lord Berkeley, is testing my knowledge of railway policy as the Minister responsible for local government, but we will take note of the important point he raises about the permitted development rights to demolish bridges and follow it up with the Department for Transport. With regard to the reason for the omission of railways, we will liaise with the Department for Transport on how we can best support infrastructure delivery, including for railways, and the asks of Network Rail.

In conclusion, I hope that I have provided some assurance on the benefits of these measures, and that bringing them forward via secondary legislation is the appropriate route provided for in law. The diversification of our high streets and town centres will help their recovery as the country starts to open. The mix of retail, leisure and residential uses will make them attractive places to visit, live and work. The legislation will enable a wider range of commercial and retail buildings to change use to residential through a simplified planning process while still providing important protections and allowing local consideration of a range of matters to protect local facilities and uses where appropriate, and allow local communities to have a say.

As I have set out, the legislation also provides important measures that support key public service infrastructure, such as schools, hospitals, ports and heritage. I therefore ask the noble Baroness, Lady Pinnock, not to divide the House and to withdraw her Motion.

Baroness Pinnock Portrait Baroness Pinnock (LD) [V]
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I thank the Minister for his response. I am grateful for the very well-informed and passionate debate that we have had in this hour or so this afternoon.

Many Members have drawn attention to the value of engagement and decisions that are taken with a wider range of views. Unfortunately, this instrument is a continuation of the erosion of the rights of local people just to have their say on changes that affect them and their communities. There is no need for the extension of permitted development to achieve the Government’s aims. For instance, the Minister has just talked about the need to enable the expansion of schools without going through a full planning application. A response to a full planning application can be achieved within eight weeks if the right information is provided to the planning authorities. That is a drop in the ocean compared to the time it takes to organise a development or extension of a school on that scale, and it is worth doing because it engages everybody in what is happening and what the consequences will be, for good and for ill.

It is a sad day for democracy and good governance when the Government believe that this approach is acceptable. It is such an assault on democratic decision-making at a local level. I do not take these matters lightly: I have never before in my time in your Lordships’ House proposed a fatal Motion and I have done so not necessarily on the content of the statutory instrument, but on its principle, which is the erosion of local democratic rights and good governance. We cannot allow this to continue—this steady drip, drip, drip of democratic rights disappearing. It is not right, and it has to be stopped. That is why I maintain that a fatal Motion is appropriate in this case and, as such, I wish to test the opinion of the House.

Division on Baroness Pinnock’s Motion called. Division called off after 16 minutes due to technical problems.

Lord Russell of Liverpool Portrait The Deputy Speaker (Lord Russell of Liverpool) (CB)
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We have been unable to resolve the technical problem but we have worked out how to resolve the situation. I call the Government Chief Whip.

Lord Ashton of Hyde Portrait Lord Ashton of Hyde (Con)
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My Lords, with the agreement of the usual channels, we are going to defer both votes until tomorrow, so they will be on tomorrow’s Order Paper. After this, to give everyone time to move over to the next business, we will have a short adjournment.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
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I thank the Government Chief Whip. I would have been very happy for my vote to be agreed by the collecting of voices, but the Government did not take me up on that offer. Obviously, I fully understand about these technical issues and we are happy for the votes to take place tomorrow.

Sitting suspended.