Localism Bill

Earl of Lytton Excerpts

Monday 17th October 2011 Lords Chamber

[Lord Lucas]

My Lords, in former times it was the custom of some generals after a victory to allow a limited period for rape and pillage before good order was restored. The thought has been raised in this House and outside that this is what the Government intend with this Bill. Along with my noble friend Lord Cormack, I find myself worried. I do not understand how this transition is to be managed: how we are to get from a position where there are not valid local plans in a large number of local authorities to the position where there are, without there being a succession of undesirable planning permissions given. The core of this Bill is to allow localities to determine what happens in their areas. It would be most unfortunate if we had a period where an awful lot of bad will was created by the exact opposite happening, just because some superior authority had failed to get the ducks in a row.

[The Earl of Lytton]

My Lords, I rise briefly first to declare an interest as a practising chartered surveyor and as someone who is involved with planning, although I am not a chartered town planner.

There seems to me to be three particular issues here. One of them, as has already been touched on by the noble Lord, Lord Cormack, is the corpus of knowledge that is currently involved in the planning system. If we uproot that, we will cause delay, doubt, risk and uncertainty. There are economic implications, so we must try to avoid that. We have seen some of the public pronouncements that are based on questions of doubt about what is intended here. A great deal of clarification is needed.

Secondly, the noble Lord, Lord Howarth of Newport, referred to the effect on economic growth. Yes, planning is a huge driver of economic growth in so many ways. While I would not wish to suggest that it is the be-all and end-all of economic growth, it is clearly something that is tangible that the general public can relate to. We must not lose sight of the fact that it is going to be one of the significant factors, if for instance what we are told about the lack of completions on housing is true.

My last point is to do with neighbourhood plans. I must declare another interest here as the president of the National Association of Local Councils, whose member parish and town councils may be those very bodies that are having to draw up a neighbourhood plan. A neighbourhood plan has to be in conformity with the principal authority’s local plan, and if the principal authority’s local plan is not in place, or is in disarray or is out of date, then we have a problem. This has a knock-on effect. I ask the Minister to give the House some reassurance that there is going to be some sort of seamless transition that will take place. I do not wish to add to what has already been said about the timescale over which that is to be done; and there may be different timescales for different bits for all I know, but the transition does have to be, to some degree, seamless. With regard to my first point about the economics of doubt, it is very important that we get this right.

[Lord McKenzie of Luton]

My Lords, like all noble Lords who have spoken in this debate today, we support the need for transitional provisions that have clarity as to their meaning as well as a reasonable timescale that reflects the capacity both of local planning authorities and of the inspectorate. Like the noble Lord, Lord Greaves, I believe that this is probably the most serious issue left unresolved from Part 5 of the Bill. We hope that we will get a clear message from the Minister today. We added our name to the original amendment of the noble Lord, Lord Best, which bit the dust by being pre-empted, and we support the thrust of the amendments of the noble Lords, Lord Best and Lord Greaves.

It is imperative that we avoid a lacuna, with the prospect of all or most local plans being absent, silent or indeterminate or having policies that are out of date under the current NPPF formulation. Under the presumption in favour of development, this would lead to an emphasis on approving development proposals unless the adverse impacts of development would significantly and demonstrably outweigh the benefits when assessed against the framework policies. I assert that 50-odd pages of framework cannot be an effective substitute for all the local plans and the thousands of pages of guidance that currently exist.

--- Later in debate ---

[Lord Greaves]

My Lords, it has been drawn to my attention that there is a typo in my proposed new Section 80A(3). It refers to subsection (2)(a) instead of (2)(b). The misprint will be obvious to anybody reading it. I am sure that it was my fingers that got it wrong and not the Public Bill Office.

The amendment tackles the problem of the democratic deficit and creates the opportunity for more democratic legitimacy in unparished areas where neighbourhood areas and neighbourhood forums may be set up. It does this by amending the Town and Country Planning Act 1990, covered by Schedule 9 to this Bill, which then affects the sections of the Local Government and Public Involvement in Health Act 2007 that cover community governance reviews. It is slightly complicated, but I think that what is set out is clear.

I remind noble Lords that in parished areas, the body that will be responsible for neighbourhood planning—for the creation of a neighbourhood plan or of neighbourhood development orders—is the parish council. In unparished areas, the local planning authority can, on request, designate a neighbourhood area; and no fewer than 21 people in that area can be designated as a neighbourhood forum. Clearly in that situation there is a democratic deficit in the formation and accountability of the neighbourhood forum compared with parished areas where there is an elected local authority—the parish council—responsible for carrying out the work.

This is a modest proposal. It does not force anything on anybody. It seeks to give a neighbourhood forum—where it exists and is recognised by the local planning authority for the purposes of neighbourhood planning, and where it believes that it would be advantageous to convert into an elected parish council—an easier and quicker means of doing that than exists at the moment. The Government recognise the problem. After the summer the Minister wrote a number of letters to various Members of the House setting out the views of the Government on this. I want to quote from the letter to my noble friend Lord Shipley, because when I was digging this out I could not find the letter to me, which I think includes the same stuff. My noble friend Lord Shipley apologises for not being present at this debate on a topic which he has raised repeatedly. He has had to go to another gathering in order to make a speech.

The Minister wrote to my noble friend as follows:

“In these neighbourhood areas, we have sought to recognise the democratic legitimacy of parish councils by ensuring that, within an area that includes any part of a parished area, only the parish council has a mandate to undertake a neighbourhood plan. We would therefore encourage communities to use the opportunity of preparing a neighbourhood plan to consider whether they wanted to apply to become a parish, town or community council—with the extra powers and responsibilities that brings”.

Community councils, of course, are parish councils in Wales. The letter continues:

“However, we do not want to force communities to become parish or community councils before they undertake neighbourhood planning—hence our neighbourhood forum provisions”.

The problem with the way that the Government want to go ahead on this is that where a neighbourhood forum and a neighbourhood wish to consider setting up a parish council, the process under a community governance review—under the Local Government and Public Involvement in Health Act 2007—is fairly cumbersome. More to the point, the principal local authority—the district or unitary council responsible for the community governance review—can put a stop to it if it wants to do so. In the best of all worlds, it will not be carrying out local community governance reviews very frequently. It may say, “Well, we have just done one and we are not going to do another for five years”, or something like that, or it may, as has happened with a number of local authorities, simply be hostile to the idea.

This amendment puts forward a means by which a neighbourhood forum can require a community governance review covering just its area, which has to take place fairly quickly. It also provides for a presumption that, unless there are some very good reasons, it will be approved. That is the purpose of this amendment. What I would really like to come out of this debate today is for the Government to tell us how they intend to tackle this problem, which they have recognised, and how they will make sure that there are more community governance reviews for more parish and town councils, particularly in urban areas where they do not exist at the moment, and where local people, through the neighbourhood forum, actually want them. They should not be compulsory by any means, but there should be a means by which a lot more could be created. I beg to move.

[The Earl of Lytton]

My Lords, I support the principle behind the amendment of the noble Lord, Lord Greaves. I cannot speak to the wording, even less to the typos I am afraid, but noble Lords will of course know of my interest in parish and town councils. At present a parish council is the only community-based organisation that combines a democratic base, truly local roots and a statutory status. So it has a special cachet from that point of view, and indeed many communities aspire to that status. Crucially it is independent of other local government bodies in having its own power to precept, and that of course gives it a financial independence as well.

The noble Lord, Lord Greaves, has touched on this, and it is certainly no reflection on the borough—which I think has an exemplary record towards communities in its area—of the noble Lord, Lord True, who I see is no longer in his place, but some local authorities have been obstructive to the formation of new parish and town councils, and I do not think that there is any point in overlooking that. That has happened on occasions despite an authentic and well-argued local desire having been put forward.

I would put one caveat in here and that is that the geographical template for new parishes in unparished areas needs to be a reasonably good fit. I am concerned not so much about the precise geography as about the cohesion and the identity which is to some extent reflected, as it must be, in geography. Size is clearly not the main issue because, up and down the country, we have very large and very small parish and town councils. One feature that they benefit from is that they serve the needs of the community and have grown up to reflect that community, whether large or small, over very many years.

I welcome the sentiment behind this amendment, which I see as a way of effectively creating, to some extent, the possibility of a fast-track route to parish and town council creation. It enables neighbourhood forums that wish to to migrate to the statutory basis where they can join and become one of the family of democratic structures that form the first tier of local government. I welcome the principle behind this amendment and I hope that the Minister will be able to give a positive response.

--- Later in debate ---

[Lord Beecham]

My Lords, I am pleased to see that the noble Lord, Lord Newton, takes the same attitude to temptation as St Augustine did to chastity. There is another line about temptation that we might want to consider:

“The last temptation is the greatest treason:

To do the right deed for the wrong reason”.

It seems that this amendment is in fact the other way round: it is doing the wrong thing for the right reason, potentially.

I noticed the typing error that the noble Lord, Lord Greaves, referred to in subsection (2)(a), but I think there may be another typographical error, or perhaps an error in drafting. Subsection (5) says:

“A community governance review … shall have a presumption that a new parish will be created”—

and I will come back to that point. Subsection (6) goes on to say:

“The provisions of this apply only insofar as they do not prevent action being taken on the request made under this section”.

It is not clear to me what that means. Does it mean the provisions of the previous subsection, or does it mean the provisions of the whole clause? I am at a loss to understand what that implies.

However, I agree very strongly with the noble Lord, Lord Newton, that there is no case for there to be a presumption that a new parish should be created on the simple fact that a request has been made by a neighbourhood forum that might constitute 21 people, of whom a majority of 11 against 10 would therefore trigger not only the whole process but a presumption as to its outcome. It seems a ridiculous proposition given that we are presumably talking about areas of several hundred people, if not thousands of people, possibly, in an area the size of an urban ward or a significant rural community.

The clause also requires the commencement of a review within three months. That might be all right if there was to be one review, but supposing there was a rash of applications from these neighbourhood forums, is a local authority obliged to commence reviews on all of them in that timescale? It does not seem at all realistic. There certainly should be a method of facilitating a legitimate demand—or a widespread demand, let us not prejudge the issue—for the creation of parish councils or town councils. They have a perfectly proper place in our system of local government and that should be facilitated, but this clause really goes much too far in that direction.

Nor is it the case that, once created, all of these bodies are trouble-free. Your Lordships will be aware, from the debate about the standards boards and the need for codes, that most of the complaints that arose under the existing procedure actually came from parish councils. The noble Lord, Lord Shipley, who is not in his place at the moment, will no doubt have told your Lordships of the case in Newcastle where a council inherited three parishes on local government reorganisation, and one inner-city area opted for a parish council. That particular grouping did not seem to perform very effectively, to the extent that Councillor Shipley’s colleagues in his political group decided that they would go in and in effect take it over, which they did—by perfectly legitimate democratic means, I should say. These places are not without their problems, although they can certainly contribute to an enriched local democracy.

However, there is one other issue in which, again, the drafting is perhaps defective—certainly it raises an issue—and that is subsection (2), which says:

“A request may be made to create a new parish council for … the area of the neighbourhood area together with the area of an adjacent parish council”.

Is it not conceivable that there may be more than one existing parish council? Certainly there are contiguous parish councils in my authority; there will be in other authorities, particularly urban authorities, I suspect. You may well find a community between the two wishing to align with both rather than one, and creating an entirely new structure. For a variety of reasons, I suspect I may find myself—unusually—agreeing with the Minister when she replies and, I hope, says that she may want to take this away and look at it, but that she cannot agree the amendment as it stands. Certainly that would be my position.

[The Earl of Lytton]

Before the noble Lord sits down, perhaps I may ask him if he would comment on the fact that although it is true that parish and town councils provide a disproportionate amount of the subject matter for standards committees, it is also true that because there is no other body of a sort which has recourse to a committee dealing with standards, there is no other basis to judge whether that statistic is large or small, or whether it is characteristic of dealing with community affairs. What I am trying to get at is that it is perhaps not a specific criticism of parish councils as a construct.

[Baroness Hanham]

My Lords, I am going to leap in because I think, with the greatest respect, that the noble Earl is out of order. On Report, we normally get the Minister to wind up after the Opposition. But I hear what he says.

The amendment has its faults, and the noble Lord, Lord Greaves, has already recognised that. But having said that, we are not unhappy about the principle of neighbourhood forums investigating opportunities to create town or parish councils for their area, and we accept that that gives greater democratic legitimacy. The noble Lord is also correct that there were a great many standards inquiries on parishes, but we also accept that they have responsibilities, duties, income and powers that would bring benefit to these neighbourhood proposals.

This is why we have already committed, in the Open Public Services White Paper, to look and see how to make it easier for neighbourhood forums and others to have a parish or town council for their area. In doing so we are looking at streamlining the community governance review process, to which the noble Lord, Lord Greaves, referred in rather uncomplimentary terms, but we need to strike the right balance so that neighbourhood forums or communities that want a parish council can get one relatively quickly. The noble Lord, Lord Greaves, was correct that this is not a speedy process at the moment, but if we speed up the process there will have to be safeguards to ensure that parish areas reflect community identity and interests.

The listening phase—which I have written down here, by which I assume consultation is meant—on the Open Public Services White Paper has just finished, and we are looking at cross-government implementation plans being announced in November. Building stronger neighbourhoods, including making it easier for people to set up parish councils, will be a priority for us in those plans.

While I do not want to pre-empt this work that has got to be done, I can reassure the noble Lord, Lord Greaves, that we will consider the issues raised in this amendment in conjunction with that. I hope that, as I said, that process will not be terribly long in coming to conclusions. I hope that with those reassurances, the noble Lord is willing to withdraw his amendment.

--- Later in debate ---

I agree with noble friend that something must be done; a solution must be found. My noble friend has convened a meeting tomorrow to discuss this issue, and I am fascinated to know what we are going to discuss. However, I give her notice that if none of these amendments is acceptable to the Government, then I would want to table an amendment at Third Reading to give the Government the power to amend the party wall Act, so that it can be extended to cover precisely the problem that we have been discussing. There is no doubt about it: something has to be done. I hope we shall find a way that this House can achieve that.

[The Earl of Lytton]

My Lords, I rise to plead guilty as charged I am afraid. I am indeed a professional practitioner in matters of party walls, and I am indeed the chairman of the professional panel set up by the Royal Institution of Chartered Surveyors on boundaries and party wall issues, which was responsible for the recent guidance note to which the noble Baroness, Lady Gardner, and the noble Lord, Lord Jenkin, referred.

I am also a paid-up member and a former national council chairman of something that is known as the Pyramus and Thisbe Club—that delightfully named organisation which is peopled by specialists who have a particular interest in party wall matters. Noble Lords will realise straight away that it is named after Shakespeare’s characters in “A Midsummer Night’s Dream” who whispered, conversed and conducted their courtship through a chink in a party wall. I have to say that most of the things that go on through chinks in party walls are anything other than courtship, as we have already heard. A further charge to add to the sheet is—

[Lord Jenkin of Roding]

There is, I believe, a committee of surveyors called the Pyramus and Thisbe group which draws its name entirely from what the noble Earl has just referred to.

[The Earl of Lytton]

Yes, indeed. It is actually called the Pyramus and Thisbe Club, and it has London and regional representation. It expanded quite considerably after the Party Wall etc. Act 1996 became law. Noble Lords—and certainly the noble Baroness, Lady Gardner—will remember that I took that Bill through its stages in this House in a previous parliamentary incarnation. I make no apology for saying that I have always thought that Section 10 of that Act—which is the dispute resolution process—was a model for our time. It is a form of alternative dispute resolution, and I thought it was well worth applying to a much larger range of inter-neighbour issues, as opposed to people having to go through the courts.

Let us leave aside for one minute the point that the noble Lord, Lord Jenkin, mentioned about the state of the housing market and the huge pressures that that brings to bear on scarce urban space, about which I will make a comment later. Many of the things that noble Lords have referred to are, of course, true. Subterranean development can have very significant implications for neighbouring properties both during the course of construction and in the subsequent effects, often several years later. The planning and building regulations regime provides only a partial protection. Sometimes it provides none, and the common law gives rise to actions often only once damage has become apparent, sometimes long after the original developer has gone from the scene.

I turn to the question of whether the Party Wall etc. Act 1996 can be usefully amended. At this juncture I would say that that legislation is, of course, very narrowly framed. It came out of the old London Building Acts, which had broadly similar provisions. That legislation risked being abolished under the terms of the repeal of the London Building Acts with the abolition of the GLC. It was saved from that in no small part by the prompting from the noble Lord, Lord Lucas. I am very grateful to him. From his knowledge and experience at the time, he was one of the mainsprings for making sure that that legislation was preserved. I pay him tribute for that. But widening its scope would have to be considered very carefully. It is a very finely drafted construct. There are many professional and technical understandings that are interwoven right the way through the Act. To amend one particular bit through an amendment to this Localism Bill would, I am afraid, have other consequences that might be less desirable—possibly the law of unforeseen consequences. That said, I would welcome the opportunity to see whether that Act can be amended to deal with this issue.

On security for expenses, we have this issue with the technically challenging nature of very deep excavations. They often create larger risks than those just arising from works for which notice would have to be served under the party wall provisions. So there is an issue about how you extend that scope, and make sure that it remains cohesive. There must be very few surveyors involved in this area of work who have not come across a building site where the contractor or the developer—or sometimes both—have gone bust, possibly leaving a building site with a large hole in the ground, and creating huge ongoing liabilities for adjoining properties. Enabling a default mechanism where this can be addressed is in the public interest. But then comes the question: if you are going to empower something to be done about it, how do you pay for it? This brings into question the matter of an insurance-backed warranty of some sort.

Again, this is a very difficult area. It depends how the provision is constructed, how it is worded, and how it benefits other people, who are not necessarily identified from inception as being beneficiaries of this. Overseas-based developers, non-resident owners and possibly eastern European builders do go to make a bit of a heady mix in the more valuable and economically important parts of our inner cities. Clearly these matters need to be dealt with by technicians who are competent and know what they are doing, know what they are looking at, can identify issues of boundaries and know something about construction. However, there is no generally applicable or enforceable code of practice for this type of development. The noble Lord, Lord Jenkin, referred to Camden. The London Borough of Camden probably has the most competent of all the codes of practice that I have seen.

However, the whole process is permissive at the moment. It is actually dogged by having poor enforcement procedures. It needs to have something better than it has. It operates by a process of consensus. With those who wish to play fast and loose with the system, often the consensus does not exist. That is a criticism of the whole process.