Levelling-up and Regeneration Bill

Baroness Thornhill Excerpts

Consideration of Commons amendments
Monday 23rd October 2023 Lords Chamber

Moved by

[Baroness Thornhill]

At end insert “and do propose Amendments 44C, 44D and 44E as amendments to Amendment 44B—

44C: In subsection (4)(a), leave out “does not materially affect the policy or”

44E: At end insert—
“(5) Except in the case where no consultation or participation has taken place or is to take place in accordance with subsection (4), the Secretary of State may not make or revoke a direction under subsection (1), or modify a national development management policy, unless the Secretary of State has laid the proposal before Parliament, and either—
(a) the consideration period has expired without—
(i) a Committee of either House of Parliament making a recommendation relating to the proposal during that period, or
(ii) either House of Parliament making a resolution that the proposal should be modified or that the making or revoking of the direction should not be proceeded with, or
(b) the making or revoking of the direction or the modification of the development management policy has been approved by resolution of each Houses of Parliament before the end of the consideration period.
(6) Before making or revoking a direction under subsection (1), or modifying a national development management policy, the Secretary of State must carry out an appraisal of the sustainability of the policy set out in the proposal.
(7) In subsection (5)—
“the consideration period”, in relation to a policy, means the period of 21 sitting days beginning with the first sitting day after the day on which the statement is laid before Parliament, and “sitting day” means a day on which the House of Commons sits;
“the proposal” means (as the case may be)—
(a) the policy that the Secretary of State proposes to designate as a national development management policy under subsection (1),
(b) the proposal to revoke a direction under subsection (1), or
(c) the proposed modification to the national development management policy.
38ZB Review of national development management policies
(1) The Secretary of State must review a national development management policy whenever the Secretary of State thinks it appropriate to do so.
(2) A review may relate to all or part of a national development management policy.
(3) In deciding when to review a national development management policy the Secretary of State must consider whether—
(a) since the time when the policy was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy was decided,
(b) the change was not anticipated at that time, and
(c) if the change had been anticipated at that time, any of the policy set out would have been materially different.
(4) In deciding when to review part of a national development management policy (“the relevant part”) the Secretary of State must consider whether—
(a) since the time when the relevant part was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the relevant part was decided,
(b) the change was not anticipated at that time, and
(c) if the change had been anticipated at that time, any of the policy set out in the relevant part would have been materially different.
(5) After completing a review of all or part of a national development management policy the Secretary of State must do one of the following—
(a) amend the policy;
(b) withdraw the policy's designation as a national development management policy;
(c) leave the policy as it is.
(6) The Secretary of State may amend a national development management policy only if the consultation and publicity requirements and the parliamentary requirements set out in subsections (3) and (5) of section 38ZA have been complied with in relation to the proposed amendment, and—
(a) the consideration period for the amendment has expired without the House of Commons resolving during that period that the amendment should be modified or should not be proceeded with, or
(b) the amendment has been approved by resolution of the House of Commons—
(i) after being laid before Parliament under section 38ZA(5), and
(ii) before the end of the consideration period.
(7) In subsection (6), “the consideration period” means the period mentioned in section 38ZA(7).
(8) If the Secretary of State amends a national development management policy, the Secretary of State must—
(a) arrange for the amendment, or the policy as amended, to be published, and
(b) lay the amendment, or the policy as amended, before Parliament.””

[Baroness Thornhill (LD)]

My Lords, I have listened to what the noble Earl has said today and what he put in his recent letter to us, and also to what was said by the Minister in the other place last week. The Minister will forgive me if I am not placated by the meagre shift from no consultation at all if we can get away with it to Motion L, which is as little consultation as possible so that we can say we have listened. That is what it feels like, sadly. It is hugely disappointing to see that, while the Government’s amendment in lieu does indeed put public consultation for new NDMPs on a legal footing that cannot be negotiated away, there is still no agreed consultation and scrutiny process enshrined in the legislation. For us, that is the key point.

The scope, level and duration of the consultation that this and successive Governments can use is not defined in the Bill, nor in the accompanying regulation. Most importantly, the Government’s amendment in lieu makes no specific mention of parliamentary scrutiny, which both Houses and the relevant Select Committee had called for. As the noble Earl has said, we understand that individual parliamentarians or committees can indeed participate in consultations, like any other citizen. However, without specific provision, the Bill does not require any parliamentary oversight of approval before NDMPs can come into force.

It is worth reminding ourselves that NDMPs are a new and very radical departure from the current system. I am surprised because, if NDMPs are going to do the heavy lifting in order to streamline and simplify the system, as is often quoted and claimed by Ministers, surely they need to be heavily scrutinised and tested. If they are going to do the job that the Government want them to do and work effectively, I cannot understand why the Government would risk them going forward into law without being test-driven properly through Parliament.

We have all seen the impact of what has been happening recently, with ministerial announcements on the hoof and the very recent arrival of the “refreshed”—I believe that is the word—NPPF. It has thrown the planning system into chaos, with plans withdrawn or paused, and planners not knowing what to do or what to take account of. Similar things will happen again if we do not know what these NDMPs contain. They are currently a blank piece of paper.

In response, my modest amendment is necessary to ensure that the national planning policies for residential and other kinds of development—because, after all, they will take precedence over local policies and will be applied directly by the Secretary of State on called-in applications—are given a similar level of parliamentary attention as infrastructure policies, as surely they should be. My question to the Minister is: why not?

The reality of this offered consultation is undefined in the Bill and is not provided for by the regulations. It is completely at the Secretary of State’s discretion. We on these Benches, the RTPI, the CPRE, and some of the more than 30 professional bodies and groups that form the Better Planning Coalition believe that, given the new and radical nature of NDMPs, that is both unwise and unacceptable. I beg to move.

[Lord Ravensdale (CB)]

My Lords, I declare my interests as a director of Peers for the Planet and as a project director working for Atkins. I will speak to Motion M1. I thank the Minister for the time he set aside to explain the government position on this and attempt to reach a resolution.

Planning has dominated much of the national conversation in recent months. We heard in all three party conferences about the need for planning reform and for clarity and consistency in the planning system to help unblock critical infrastructure and homes, and to empower local authorities to play their part in the net-zero transition. Planning is absolutely central as an enabler to net zero, as was set out eloquently by many noble Lords on Report—so I will not repeat those arguments. I know that the Government get this; they are relying in the Bill on a plan-led system and on incorporation of climate considerations in local plans, and, perhaps in the future, on national development management policies.

There are three issues to highlight with this plan-led approach. First, the Committee on Climate Change has found that:

“Most local plans do not acknowledge … the challenge of delivering Net Zero and need significant revision”.


Most local plans are long out of date—some were made in the last millennium—and only around 40% have been adopted in the last decade. We know all about current pressures on local authorities and their ability to devote and manage resources in these areas. Secondly, we are yet to see the national development management policies and any climate provisions they may contain; they are still a blank sheet, as the noble Baroness, Lady Thornhill, set out. Thirdly, even if all local authorities had a robust local plan, backed up by NDMPs, there will still be an absence of a statutory duty for decision-makers. No matter how robust a local plan informed by national policy may be, it will still be for the individual decision-maker to weigh up all material considerations, with no duty to attribute any planning weight to climate change in the decision-making process. Therefore, rather than a golden thread running through the planning system, we have a somewhat worn and frayed thread that is severed as soon as we get to the decision-making process.

The way to address this and to achieve the ends the Government want is to introduce a new duty that raises the importance of climate change in the hierarchy of considerations but which would still retain flexibility for decision-makers. My amendment would not duplicate existing policy and statutory requirements but rather expand the existing climate duty, which has existed in relation to planning since 2008 and which has been rolled forward in this Bill to decision-making. The amendment would not remove local discretion, as the Government fear, but rather retain the ability of planning authorities to tailor planning decisions to individual circumstances. It would retain the flexibility of planning balance and judgment, which is now well established, and not mean that other planning matters could not be taken into account.

Rather than causing issues of litigation, as the Minister said, the amendment would provide clarity and set a clear direction of travel for planners and developers, leading to greater progress for new developments towards our climate goals. It is derisked by being based on an established duty, the meaning of which has been tried and tested in the courts. It does not raise any novel legal issues, because the principle of special regard is well understood in planning. Therefore, it really should be uncontroversial. It has broad, publicly stated backing across built environment businesses, local government, built environment professionals, including 22 past presidents of the Royal Town Planning Institute, and environmental NGOs.

To finish, I have a number of questions for the Minister. First, can he clarify and expand on what he said earlier about whether the draft NDMPs will include provisions setting out the way in which they will ensure that plan-making and planning decisions consider and contribute to climate change and environment targets? Secondly, can he provide assurances that changes will be proposed to the NPPF to make it clear that planning decisions should take into account the climate impacts of development proposals? The current NPPF does not include that level of clarity. I give notice that I may test the opinion of the House depending on the responses from the Minister.

--- Later in debate ---

explicitly in line with the objectives and provisions of the Climate Change Act 2008. I hope that background will assist the noble Lord in deciding what he wishes to do with his amendment.

[Baroness Thornhill (LD)]

I thank the Minister for his response to Motion L1, and particularly for reinforcing the weight and importance of NDMPs, so much so that he said that he felt they needed their own specific processes, not to be misunderstood with national planning statements and infrastructure policy. But at the heart of this problem is the unknown nature of the NDMPs and a very firm belief from these Benches and the Labour Benches, for which I thank them, that these very weighty and important NDMPs are important enough to warrant upfront formal parliamentary oversight. Therefore, I wish to ask your Lordships whether they agree.

Levelling-up and Regeneration Bill

Baroness Thornhill Excerpts

Committee stage
Tuesday 18th April 2023 Lords Chamber

[Baroness Thornhill (LD)]

Can I put the question the other way around? The noble Lord used phrases like “councils can choose” and “in conjunction with their local authority”. Can I ask about councils that choose not to provide supportive housing for people in need, that choose not to provide places for ex-offenders, and that rely on councils with a conscience to do those things? It seems to me that councils can choose to do very little if they want, including building homes, and certainly to not provide for the other groups that we have heard about—that is what worries me. We need more compulsion across all councils to provide for all of the population.

[Earl Howe (Con)]

In those circumstances, local plans can be checked against the assessment of need and can be shown to be defective where that is deemed to be the case—so it is not as if there is no oversight of what local authorities are doing. What we do not want to do—and I hope the noble Baroness agrees—is to get perilously close to a one-size-fits-all, top-down target mode of acting. We are trying to strike a balance between showing local authorities how to do the job that they are there to do and have been elected to do, while at the same time not being guilty of dictating or second-guessing local circumstances.

We do already have a clear policy in place on these issues, and we are proposing to clarify and strengthen this further. I hope my noble friend will feel comfortable in not moving his amendments when they are reached.

Before I finish, I will respond briefly to the noble Earl, Lord Lytton, on his points about buildout. In large part, he was anticipating the debate we look set to have in a later group, which begins with Amendment 261 to Clause 104, in the name of the noble Baroness, Lady Taylor of Stevenage. However, I just say that the Bill already contains provisions to tackle slow buildout by developers. Clause 105 gives local planning authorities powers to determine planning applications made by a person connected to an earlier permission on that same land which was not begun or has been carried out unreasonably slowly. Developers should know that planning authorities expect new residential developments to come forward at a reasonable rate.

--- Later in debate ---

We support Amendment 274A in the name of the noble Baroness, Lady Thornhill, which makes provision for small sites to be used for affordable development. My noble friend Lady Hayman’s amendment— Amendment 504GJA—inserts a new clause after Clause 214 to ensure that information on rogue landlords and property agents is made public. With renters now spending huge sums of money to secure rental properties— some of it just as a finder’s fee—it seems only fair that they should be able to access data that is already held to reassure themselves that the landlords and property agents they are dealing with are bona fide and will not put their money at risk or deliver the associated risks of them being housed in substandard properties. This will also help ensure that the majority of landlords who act in good faith do not see the market undermined by rogue landlords and agents who do not act in the interests of their tenants. I beg to move.

[Baroness Thornhill (LD)]

My Lords, I think I could possibly make the shortest speech with regard to the amendments that have just been discussed and just go #MeToo. In fact, I want to say—and I hope that the Minister takes this as a compliment—that I feel that among the people who work within the local government parameters in the House, and particularly with housing, there is an amazing consensus about what needs to be done. What we will argue about is how quickly it needs to be done and why it has not all been done yesterday. Therefore, the noble Baroness should perhaps take heart from our belief that we know she understands where we are coming from. We probably sense that she is sometimes as frustrated as we are, considering her own background.

On the rogue landlord register, will the Minister tell us, if there is to be such a thing and if it is to be effective—which is the really important point about data and who goes on any register—whether it will be public? The question should really be: why not?

It is a pleasure today to speak to Amendment 274A, tabled in my name. In short, it would introduce new requirements to encourage the development of small sites. My motivation is twofold: I was the elected mayor of the smallest geographical council area in the country, so we never had large sites. Every single attempt to meet the needs of our community was always on small sites, and those can be particularly problematic to build out. We also have a demonstrable shortage of affordable homes, as we have all said—again, there is a huge consensus on this—which, as we know, is well evidenced.

Secondly, as shown by reports from the Barker report to the Letwin report, as well as by recent evidence from across the housing and construction sector, small and medium-sized builders have been really squeezed out of building homes over the past decades, yet they can and should be part of the solution to the housing shortage—and indeed they want to be. I see this amendment as a simple, straightforward way of achieving that, and I believe that the Government wish to see more SME builders contributing to resolving our housing problem. We can do this by changing how we deal with small sites, while at the same time bringing forward affordable housing as a sort of Brucie bonus.

As I said, I have chosen to focus on small sites because, in my view, the case for enabling easier and more streamlined development of these small areas of brownfield land is a strong one. We are currently underutilising such sites, which are often the areas of blight in neighbourhoods. They are the disused garage sites or the place where the old industrial warehouse building was. They really blight certain areas.

I recently came across some interesting research by Pocket Living, an award- winning SME developer in London that specialises in delivering affordable homes. Its research shows that there is currently the potential to deliver 110,000 homes on brownfield sites across the country. Despite their potential, these sites are not being developed—they are just not coming forward. Less than a quarter of small brownfield sites suitable for housing are coming forward, and half of councils allocated fewer than 15% of their potential small brownfield sites.

Why are they not being better utilised? In short, the planning system itself is a major barrier—no surprise there—and does not take into account the complexities of complying with many local plan requirements on a small site. Most of those come with a price tag attached that prices out a lot of SME builders; we know this because they tell us that this is their main reason for not being in the market. I deduce from that that we need to treat them differently if we want them to contribute more. Small sites are by their very nature tight and constrained, and they cannot possibly achieve every development management policy set out in the London plan, the local plans or even neighbourhood plans—I am looking at my noble friend Lord Stunell. At present, small sites take an average of 60 weeks to gain a planning determination, which is almost five times the statutory period. This is not beneficial to our economy, our pipeline of affordable housing or the millions of young people unable to get on the housing ladder due to a lack of appropriate housing supply.

The amendment seeks to encourage councils to bring forward small sites for development, and in reality it would say that we are tilting the balance in favour of development on small sites below 0.25 hectares where it is believed that high levels of affordable housing can be demonstrated. Therefore, as the pay-off it would provide a fast-track route for viability assessment and would incentivise a more streamlined delivery across the country. The sites would need to be a specific size and contain more than 50% affordable housing. The important pay-off for communities is that it is used for this in order to get their fast-track permission.

This change could potentially free up tens of thousands more sites for development in suitable locations, particularly in urban areas where this kind of development is most needed. It would also give the SME housebuilders a vital boost. Since 1988, the number of SMEs actually in operation and building has decreased by 80%—I was staggered by this figure. I welcome the inclusion of the small sites reform within the most recent NPPF consultation but believe there is an option right here and now, through Amendment 274A, to act sooner and faster to get homes delivered and to give that boost to our SME sector.

This amendment also has huge support from across the development sector and housebuilding industry. I am grateful that a coalition of more than 40 high-profile organisations are supporting it, including Barratt Homes, Optivo, the National Housing Federation and a range of SMEs. Small sites have incredible potential to improve both the supply and the diversity of market stock, but without policy intervention it is an underutilised resource just sitting there, looking a mess. I look forward to the Minister’s response.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Thornhill. I will not say anything more on Amendment 274A because the case for it has clearly been overwhelmingly and comprehensively made. I will briefly focus on Amendment 208 and the final amendment in this group—which is something of an alphabet soup.

First, on the role of SMEs and small sites in local plans, I have come across many cases where I have been pleased to see that Green councillors around the country have been able to look at that classic development we see now: a new block of what is almost invariably labelled as luxury flats, in the basement of which is a single, fairly extensive shop that is one of a handful of supermarket chains—one more piece of dominance in our economy of what is already an oligopoly in our food supply. But what sometimes has been possible, and should be encouraged and supported through the development of local plans, is dividing that space into three. You can then have a small independent greengrocer or a small independent hardware-homeware shop that stocks that kind of thing that you suddenly find yourself needing, which can be almost impossible to find in our residential retail deserts where you just see identical supermarkets again and again. Maybe the third of those shops could be something we urgently need to see—earlier today I was at an event with the University of Manchester talking about scaling up the green transition—namely a repair shop, where, when something is broken, you can go and get expert help to fix it instead of throwing it into the rubbish: the circular economy in action. That kind of simple, clear thinking about what we need in our communities, building not just homes but communities, can really work.

I also want to draw on the work of my noble friend Lady Jones of Moulsecoomb from her London Assembly days. She produced a report, The End of Industry in London?, in 2015. In the previous seven years London had lost the equivalent of 750 football pitches of sites where many small industrial businesses were based. That was in a situation where flipping industrial land into residential land could see a doubling of the price. I would be surprised if, since that report was published, we have not seen a continuation or even an acceleration of that trend. We need those small independent businesses as part of our thriving, strong, local economies.

Finally, on Amendment 504GJA—if I have that right—this is important and it is, in a piecemeal way, already being done. Here in London there is the London Rogue Landlord and Agent Checker, but Green London Assembly member Siân Berry did some research on this and found that only 3% of tenants had used it, although 20% of tenants had complaints that were relevant to it. If we had a situation where this was expected and everyone knew, wherever they moved in the country, that this resource would be there for them—something that could be publicised around the country and was built into the requirements for all local authorities—that would be a useful and practical tool to help us know how much private renters are being exploited. I have just come from the debate on the economic crime Bill and the problems of fraud and the way in which people are literally being robbed of cash, such as their rental deposit. We need to tackle these issues and this is a practical step towards that.

Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020

Baroness Thornhill Excerpts

Wednesday 23rd September 2020 Lords Chamber

[Baroness Thornhill (LD)]

My Lords, very briefly and swiftly I shall give the local government perspective of the impact of this SI.

This pandemic has merely highlighted and exacerbated a growing problem—namely, that, with a significant reduction in social housing over many years, many low-waged earners are now privately renting and, as a direct consequence, are spending a higher percentage of their wages simply on putting a roof over their head.

Pre-Covid, the most common reason for people turning up homeless to their local council was eviction from a private tenancy. That figure is still at 74% nationally. In the longer term, we must reverse this decline and provide significantly more social, not affordable, housing. Just 6,000 homes for rent were built last year.

Local authorities, with government help from the Everyone In initiative, have taken 15,000 homeless people off the streets, but there is not the appropriate accommodation to house them permanently. Adding to this number by enabling further evictions will exacerbate an already difficult and unsustainable situation. Councils are using hotels and hostels, which is a temporary solution. In the last financial year, councils’ net expenditure on temporary accommodation was £140 million over budget. It is crucial that we prevent by whatever means possible any further homelessness.

To reduce evictions from the private sector, the Government should urgently bring forward their proposal to end Section 21 no-fault evictions and commit to maintaining the local housing allowance at the 30th percentile in the longer term. They should provide assurances to councils about the continuation of the much-needed discretionary housing payments for at least the next financial year and, finally, address the £2 billion local authority funding gap.

Business and Planning Bill

Baroness Thornhill Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 6th July 2020 Lords Chamber

[Baroness Thornhill (LD)]

My Lords, I declare my interest as a vice-president of the Local Government Association. I knew that there would be many speakers and much said, so I will confine my comments to just three quite small but specific aspects of the Bill.

First, the term “local authority”, as used in the Bill, gives the role and responsibility for these now infamous pavement licences to district councils. In two-tier areas this is often the responsibility of the county council, which is the highways authority. While some, such as my former authority, have agreements in place where the county has devolved this function to district councils, for many this is new ground. They have to try to introduce a whole new function very quickly. While they clearly have the best local knowledge, they do not have the policies, the application forms or the processes to do this—and, as we have heard, their capacity has been much diminished. Would it therefore be possible for the Bill to allow all local authorities to administer these licences, enabling local agreements for county or district councils to carry out this function, depending on what suits them best, instead of a default solely to district councils?

Secondly, as my noble friend Lord Paddick articulated very well, things go wrong—we have seen that they surely do. There is a summary review power in the Bill. This, plus existing legislation, ought to give the police and councils sufficient powers to act should problems arise—but I am not confident about this, and I will flag up a reason that I believe warrants further exploration.

In my experience of working in partnership to tame a town centre described by a tabloid as “Ibiza on acid”, the real issue is what has come to be known as the cumulative impact problem, where there are several licensed premises within a compact area. The way the legislation is framed—this Bill is framed the same way—makes it difficult to use available powers to the desired effect. The whole process of reviewing the licence or pursuing a closure under anti-social behaviour legislation is predicated on proving that an individual premise is responsible for the anti-social behaviour, which, as we have heard from many noble Lords, often takes place outside in the street much later on. In my experience, the reality is that reviews often do not happen because of the difficulty of proving that the specific nuisance comes from specific premises. Yet the areas where there have been serious issues in recent days have been, in the main, exactly these sorts of areas. As we have heard from several noble Lords, Clause 11 will exacerbate this problem, so I am not reassured by the summary review power.

Finally, there are some legal uncertainties about whether the regulations in the Coronavirus Act that allow local authorities to hold decision-making meetings remotely until May 2021 preclude council meetings, including licensing hearings and planning meetings, being heard physically if they so wish and can do so safely. Some clarity is sought. Similarly, as mentioned by my noble friend Lady Kramer, the mayoral development corporations, Transport for London and others were not included in the definition of a local authority in either the enabling provisions or the subsequent regulations. They therefore cannot hold meetings remotely, which they might wish to do—in fact, urgently need to do as backlogs mount up. These are small but significant issues that I hope can be amended and clarified during the passage of the Bill, which I support.