Localism Bill

Lord Beecham Excerpts

Monday 17th October 2011 Lords Chamber

[Baroness Gardner of Parkes]

My Lords, I should like to clarify that I am not speaking about what I would call a repeat amendment, where someone is coming back for another planning application; I am speaking purely about cases where someone has built premises in contravention of the planning permission they have been granted.

This has happened to me in both London and the country. I supported the application in the country, only to find that an extra metre and a half had been built on a wall, cutting off totally our view of the village green, which was a very pretty part of the place. When I rang the council to ask why nothing had happened about this, they said, “Oh, we gave him retrospective permission for it”. The same happened in London, where I actually phoned the council during the construction and said that it was not being built according to plan. “Oh of course it is”, they said. Eighteen months later the council came back and said, “You’re quite right, it was not. However, we felt that as people had already moved into it, we should give them retrospective permission”.

This is quite unfair to people who have a right of legitimate comment on the original planning application but have no idea when the council is considering a whitewash for something that should not be. That is the purpose of the amendment. I beg to move.

[Lord Beecham]

My Lords, I would have thought that this amendment is unnecessary. If an application for retrospective consent is a fresh application, it would, or should, be notified to those occupiers—not necessarily those who objected before, who might be living anywhere. However, surely it should be treated as an application de novo, and therefore the normal processes would apply. So those affected on a retrospective application would receive notice. I should think, unless the Minister disagrees, that the amendment is otiose.

[Lord Shutt of Greetland]

My Lords, I believe that the noble Lord is right on this. I thank my noble friend Lady Gardner of Parkes for bringing this forward. It is important that we get this absolutely clear. This word retrospective largely means that something happened for which there was no permission. Someone spots it and says, “Look here, you’d better put in a planning application”. That’s the position. In all instances where there is a change, there are requirements in place for local planning authorities to publicise and consult on those applications—that is, the retrospective ones. This is true when a new revised planning application is submitted, and where the holder of a planning permission wishes to delete or vary one or more of the conditions to which their existing planning permission is subject. The Government therefore believe that this amendment is a solution to a problem that does not exist. I hope that my noble friend will feel able to withdraw it.

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[Lord True]

My Lords, I was not able to be present for this discussion in Committee. I would like to associate myself very strongly with the remarks made by both my noble friends because they are good localist arguments. Having campaigned in all integrity on the basis of the promises that were put forward by my party in respect of a community right of appeal, like many colleagues in the Liberal Democrat party I remain in a state of puzzlement as to why this worthy and desirable policy, very sensibly circumscribed in the amendment spoken to by my noble friend, has disappeared. It is something that some of us will want to return to on a future occasion, and I hope sincerely that the leadership of my party and that of my fellow party in the coalition will think again on this matter.

[Lord Beecham]

Heaven forfend that I should trespass on the griefs of the coalition about unfulfilled promises. It is already late enough and one could go on for many hours about unfulfilled promises, but I shall resist the temptation.

We cannot support either of these amendments. There is a balance to be struck between what is purely local and where there are other considerations which might well be of significance in regard to major areas of public policy, including that to which the noble Lord, Lord Reay, refers and about which he is exercised—it is right that he should be, if those are his views. There is a legitimate role for the Secretary of State to determine, at any rate, some appeals beyond those which the amendment would refer.

The amendment in the name of the noble Baroness, Lady Parminter, in addition to the general principle, also creates difficulties. A community right of appeal is an arguable proposition. Whether a community right of appeal could be said to be legitimately exercised by,

“a ward councillor for the area; … any parish council covering or adjoining the area of land to which an application relates; or … any overview and scrutiny committee for the area”,

as proposed in new subsection (2B) that Amendment 232ZB would insert into Section 78 of the 1990 Act, is indeed arguable. I cannot see that those matters are a very persuasive definition of a community right of appeal, even assuming one was in favour of a community right of appeal, which, on balance, I am certainly not—whatever the coalition parties thought they were going to implement.

In these circumstances I offer once again an unusual degree of support to the Minister if he declines to support these amendments.

[Lord Shutt of Greetland]

My Lords, I thank noble Lords who have spoken. I should like, first, to respond to Amendment 232ZB in the name of the noble Baroness, Lady Parminter, because it helps to set the scene. The amendment intends to give a new right of appeal for local councillors. Before going into detail it would be useful to start by setting out what we are seeking to achieve in the reforms and how communities can shape the area in which they live. The purpose of our planning reforms is to put the local plan at the heart of the system. In fact, the draft national planning policy framework explicitly says so. It is the plan where councils and communities weigh up and integrate different goals and long-term needs so that it sets the framework within which individual planning applications are assessed and decisions taken. We want planning decisions to be taken by local communities, not more appeals undertaken by unelected inspectors in Bristol.

Everything that we are currently undertaking in the Bill—removing unelected regional structures and the top-down targets which constrained local councils, stopping inspectors arbitrarily rewriting plans without a council’s consent and removing unnecessary central government monitoring regimes and interfering in local timetables—gives control, choice and responsibility for local planning back to councils and communities. Other reforms which introduce neighbourhood planning and ensure appropriate consultation with local people before proposals are submitted have also been to that end, so that local people will, in future, have a real say. They will encourage developers to work with the local community to develop proposals all can support, rather than setting them against each other.

Given this, I have considerable sympathy with the noble Baroness’s intentions here. She desires, as I do, to ensure that local communities and the plans agreed between them and their councils should remain at the heart of planning decisions and she is concerned that, in some cases, that does not always happen because of the way the system works. I do not think that her amendment is a solution here. We consider that this would risk adding unnecessary uncertainty and delay at this crucial time of recovery and growth. Applicants will have invested considerable time, money and effort in preparing their proposals and should expect a council’s decision to be a corporate one. However, I recognise that there are issues that we need to address.

First, I understand that local councils have often felt pressure to approve applications which have not been consistent with the plan. One reason is that officers may advise elected members that if they do not approve development, even where it is outside the plan, they may lose at appeal and have to pay costs. Therefore I can reassure the House that we will revise the costs award circular which governs this process so that where a council refuses a development proposal on the grounds that it is contrary to an up-to-date development plan and there is no issue of conflict with national planning policy, there should be no grounds for an award of costs against the council in question.

Secondly, in some cases applications are made and approved which fall outside the development plan. This is an important flexibility in the system. However, we must also be clear that if an application is outside the terms of the plan it should be approved only if locally elected representatives have considered the views of the local community and concluded that such a departure would be acceptable in planning terms. For this reason, we will consult on requiring departure applications to have compulsory pre-application consultation with the local community so that elected members are fully aware of local views before they decide an application. This will mean that local councils will have a clear understanding of local views when they deal with key applications, should have no fear of costs being awarded against them when they have followed the right procedures and will be able to decide cases in the long-term interests of local communities. These changes to the system will strengthen its resilience and ensure that our reforms achieve their objective of putting the local plan and the views of the local community at the heart of the system.

I pay tribute to the noble Baroness, Lady Parminter, for raising these issues so vigorously. By doing so, she has done a service to the House. Given our proposals to strengthen community influence and the involvement in planning as a whole, which I have outlined, I hope she will agree that our measures are strong and effective ways to ensure that community views are heard in the process, especially where a development might depart from an up-to-date plan, and that she will not press her amendment.

Turning to Amendment 232ZA, as the noble Lord, Lord Reay, said in Committee, planning is a matter of getting the balance right. I agree. We are committed to a system of fewer appeals and want development proposals to be determined locally. However, in the few cases where appeals are made, the Secretary of State, as decision-maker, must be entitled to take other material considerations into account, as can councils, on finely balanced matters of judgment—for example, where a local policy is out of date because it does not reflect the changing circumstances of the local area or more recent national policy. In such instances the law allows councils to consider other material considerations in making the right decisions for their communities. They should not be restricted and neither should the Secretary of State’s decision be fettered. Amendment 232ZA would therefore be unduly restrictive in this regard.

However, I understand the intention behind the noble Lord’s amendment. We shall take the measures that I outlined earlier so that councils and communities feel confident, if challenged at appeal, in defending planning decisions made in accordance with an up-to-date plan and where there is no conflict with national policy. I reassure the noble Lord that judicial review proceedings can already be brought if a decision was unlawful or due process was not followed. I hope therefore that he will be willing to withdraw the amendment.

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[Lord Jenkin of Roding]

My Lords, my estimate as to when we would reach the end of Report took me up to midnight, so I reckon that I have 25 minutes in which to speak. Like my noble friend Lord Attlee, I have two speeches. One was a very short speech which said, “I think this is a good idea”. The other one was a rather longer speech which said, “I think that this is a very good idea”. The Explanatory Notes to the Localism Bill estimated at paragraph 491 that the charge to local authorities would amount to £21 million per annum. I have seen an estimate of the net value of all the changes in the Bill as having a range of between £20 billion and £35 billion. There have been changes and many amendments to the Bill. However, local authorities are worried that they will still have to meet expenses substantially in excess of the Government’s estimate of £21 million. The purpose of this measure, which is not, of course, a full post-legislative assessment—I have no doubt that the Government will want to do that anyway—is to place a very firm date on when there should be an estimate of the actual costs that will be incurred by local authorities.

I have here a three-page speech but I will not read it out. However, it seems to me that given that so much of this Bill has affected the way that local authorities are to carry out their duties, it is only fair for the Government to be prepared to have that estimate examined so that there can be a proper assessment of what local authorities have to pay and what will otherwise fall on council tax payers. I will read no more of my speech but I think this is a very just proposal which is supported by the local authorities. I beg to move.

[Lord Beecham]

My Lords, it is fitting that the noble Lord, Lord Jenkin, should effectively conclude Report stage after his many distinguished contributions to the Bill’s proceedings thus far and, indeed, his previous very substantial record in government. I have a couple of questions. I entirely endorse the thrust of the noble Lord’s amendment. I hope that it will be acceptable to the Government. This is more a matter of process. We are not entirely clear how the new system of post-legislative scrutiny will work and what pieces of legislation will be included in it. I hope that this will be one of them. I do not know whether the Minister can indicate whether that is so but in any case it is understood from the impact analysis that the Government intend to draw up the finer details of the review methodology in the months ahead, as they put it. Since the relevant document was written some time ago, that will presumably be done through a soon to be formed Localism Bill review steering group. Has such a group been formed or will it be formed? Who will be involved in it if it has not already been set up? When is it likely to report? How will it work? These are the crucial procedural questions. The noble Lord, Lord Jenkin, rightly refers to the financial aspect and we entirely endorse the view that as this will effectively be a new burden on local government, it will presumably be within the new burdens doctrine. It will be good to have an assurance on the record that any additional costs of that kind will be met by central government.

[Lord Shutt of Greetland]

My Lords, Amendment 249 would mean that the department has to produce a post-legislative impact assessment setting out the additional expenditure incurred by relevant authorities as a direct consequence of this Bill. An established process is already in place for post-legislative scrutiny of Acts. As set out in Cabinet Office guidance, departments are required to submit a memorandum to their departmental select committees three to five years after Royal Assent of an Act. This memorandum sets out a preliminary assessment on how the Act has worked out in practice, relative to objectives and benchmarks identified during the passage of the Bill.

In addition, each of the individual impact assessments for the specific policies in the Bill is accompanied by a post-implementation review plan. The amendment to insert a further requirement to produce a post-legislative impact assessment is therefore unnecessary. Inevitably, putting the provisions of this Bill into practice will mean local authorities taking on some new responsibilities. However, the Government are committed to ensuring that any additional burdens on councils are funded in accordance with the new burdens doctrine. The impact of the Bill has been assessed in the usual way, and the necessary funding will be made available.

I regret that I am not cited on the localism group referred to by the noble Lord, Lord Beecham. Obviously, I shall have to drop him a line on that point. I hope that my noble friend Lord Jenkin will feel able to withdraw his amendment.