Neighbourhood Planning Bill

Lord Beecham Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 28th February 2017 Lords Chamber

[Baroness Gardner of Parkes (Con)]

My Lords, I have brought this amendment back in exactly the same form it had in Committee because I thought the comments the Minister made then really deserved to be re-examined. This is an important issue that ordinary people care about very much. Everyone is very unhappy to find suddenly that something has been given retrospective permission without them having any idea that it was even up for reconsideration.

As the Minister said on that day in Committee:

“How we deal with unauthorised development is an important issue that concerns many people”.


I think that is right. He also said:

“It is important to note that retrospective planning applications must be determined in exactly the same way as any other application, that is, in accordance with the development plan unless material considerations indicate otherwise”.—[Official Report, 6/2/17; col. GC 346.]


He then referred to what the noble Lord, Lord Beecham, said about this, which was also interesting. The Minister mentioned that if somebody has deliberately concealed the fact that they are doing development, as in the famous haystack case, they can be required to demolish the property.

What I found most disappointing in what the Minister said was that the local authority concerned does have an obligation to consult people—I put the part about consultation in my amendment because local authorities are not doing so. Certainly, in the cases where I have been affected by retrospective planning permission, the first thing I have known about it is when I received a note saying, “We have granted planning permission” for whatever disastrous thing it was near me. I have met so many other people who have been in the same situation. If there is an obligation to consult the same people whom you would have consulted before, why is it not being done for retrospective permission? It all smells a little bit. Is this because someone is trying to slip something through retrospectively and feels that they will get away without any consultation or having to attach any conditions? It bears looking at again.

I think it was the noble Lord, Lord Shipley, who mentioned the serving of enforcement notices. The Minister certainly picked up the point about enforcement proceedings, but I am not suggesting going any further on those issues.

I must reiterate that my interest is declared in the register; I should perhaps have said that at the beginning.

The Minister went on to say, regarding enforcement, that,

“there is already a double charge”.—[Official Report, 6/2/17; col. GC 347.]

I had not appreciated that there was already a double charge, but apparently that is the case only if you have an enforcement notice. There is no extra charge if you have simply not applied and come back to get your permission, and the local authority has not notified those people who should be consulted. Is that because there is corruption, or is it laziness on their part? It is very important to have some way of ensuring that—it really would be good. The Minister said that it would not be helpful to delay effective enforcement action. All of these things are true, but why are they not adhering to the letter of the law as it is? Why are ordinary people suffering? They are finding that, instead of being able to insist that some reasonable condition that would suit everyone in the locality be included in the planning consent, and the planning authority would consider whether it was a justifiable condition to attach, they are simply not being consulted and are getting word after it is all over and done with.

I suggested a penalty fee in that proposal because planning officers to whom I have spoken have said to me that, at the moment, there is no disincentive whatever to going retrospectively for permission. You can be brave and just have a go and you have nothing to lose because you have no disadvantage: if you find out that you have not got permission, you go for it then and it does not cost anything more; you might have saved yourself a lot of time, trouble and bother, and you have just gone ahead with what you wanted. On the idea of a penalty fee, the Minister said:

“It is a matter which I know previous Governments have considered and to some extent grappled with, but in the interests of fairness have decided not to take forward”.—[Official Report, 6/2/17; col. GC 347.]


In speaking to other amendments in Committee, the Minister said that he would be looking very seriously at various things for secondary regulation, as to what should or should not be regulated and what should or should not be considered. However, I believe that this is the sort of instance that should be looked into. The noble Lord, Lord Shipley, has said to me that this is more complicated than I imagine. I am sure, from his wisdom and knowledge, which is very great on these subjects, that I would accept that that probably is a fact, but it does not mean that it cannot be investigated and looked into. If, as I understood from the answers in Committee, there is going to be all this consideration of future regulations, then this merits being looked at much more closely. Rather than going on and on, because we have an awful lot to get through today, I beg to move.

[Lord Beecham (Lab)]

My Lords, this matter was debated briefly in Committee. I made the point then that I had a good deal of sympathy with the intentions of the noble Baroness’s amendment requiring a retrospective planning application, although it did not seem to me that the rest of her proposals—with all due respect—had been fully thought through in terms of how they might be applied.

In particular, subsection (2) in the amendment is unnecessary, because if there was a planning application then, of course, fees would have to be paid. There is also a real problem with subsection (3)—I think I said this to her in Committee as well—which prescribes the payment of an additional charge without giving any indication of how that might be calculated. I suggested that the matter could have gone forward on the basis that that would be determined by secondary legislation, but that has not appeared in this amendment. For those reasons, I am afraid that we cannot support the noble Baroness’s amendment, although I suspect that she will not divide the House in any event. While her intention is very good, the means of carrying it through do not quite meet what is required.

[Baroness Pinnock (LD)]

My Lords, I draw attention to my interest as a councillor in the borough of Kirklees and as a vice-president of the Local Government Association.

I agree with the principle behind the amendment moved by the noble Baroness, Lady Gardner of Parkes. The issue that she has brought to our attention is important, although, in common with the noble Lord, Lord Beecham, I am not entirely clear that the amendment that she has drafted will address the fundamentals behind the issue that she is trying to address.

--- Later in debate ---

I am sure that the House will be pleased to know that we are now nearing the end. Perhaps I may tell noble Lords that this speech is a lot shorter than it was originally. Amendment 63 is the Government’s final amendment to Part 2. It is a minor and technical amendment to correct an omission in Clause 33, which inserts new Sections 403A and 403B into the Greater London Authority Act 1999. It ensures that new Section 403B is treated in the same way as new Section 403A for the purposes of paragraph 20 of Schedule 11 to that Act. I beg to move government Amendment 41.

[Lord Beecham]

My Lords, this speech will be shorter than that given by the noble Lord, Lord Young, and this speaker is, of course, somewhat shorter than him. I congratulate him on incorporating the two amendments which I had intended to move, Amendments 59 and 60, although I note that there was no attribution in his speaking on the matters which substantially cover them. Nevertheless, I am grateful to him for his clear exposition of all these amendments, for the adoption of the two that I would have spoken to and for clearly listening to the comments, criticisms and suggestions from around the House. I am happy to endorse those matters and I will not move the amendments in my name.

[Lord Shipley]

My Lords, I thank the Minister for all that he said about compulsory purchase, both temporary and non-temporary. I think that his comments demonstrate the role of scrutiny and the value of this Chamber. I had a great deal to say on compulsory purchase in Committee but now I have virtually nothing at all to say because the matter has been resolved. It demonstrates the importance of talking with expert practitioners. Perhaps I should also repeat what I said in Committee about the large number of government amendments regarding compulsory purchase although the Bill had come to us from the House of Commons as a finished Bill. In this respect at least—but also on the planning side, as we know—it did not merit the status of a finished Bill. However, I am grateful to the Minister and his colleagues in the department for all the work that they have done. As far as I am concerned, we now have a Bill—assuming that all the amendments are adopted—that will make the statutory position a great deal clearer. I shall say something further when we come on to the question of Henry VIII powers, because some powers will still apply to this part of the Bill. For the moment, however, I have nothing further to add.

--- Later in debate ---

[Lord Shipley]

My Lords, I add my thanks to the Minister for the proposed changes. The noble Lord, Lord Pannick, has said what I was going to say and I will not repeat it. The change of wording in the amendment is significant because, as he indicated, it is no longer the case that the Secretary of State has the power to consider something “appropriate”. Rather, he can make provision in consequence of any provision in this part of the Bill. This is much better. Henry VIII powers should never have been applied to the planning chapters of the Bill.

I said earlier that compulsory purchase is indeed complicated and I accept that consequential provision may be needed, which can be taken quickly if there is found to be a further flaw in the legislation that Parliament passes. That said, I seek the Minister’s confirmation that the wording now being used in relation to compulsory purchase is the standard wording used in other Bills. It has been said that there is a power in recent planning Acts for Ministers to make consequential provision. We need to be clear about that and that we are not doing something in the amendment that has not been in any other Bill or Act. I understand that to be the position but would be keen to hear the Minister confirm that there is nothing unusual in the wording of the amendment.

[Lord Beecham]

My Lords, I join other noble Lords in thanking the Minister and, indeed, in congratulating him on these substantive changes, which are ultimately, I suppose, a concession to the powerful arguments advanced, in particular by the noble and learned Lord, Lord Judge, and by the noble Lord, Lord Pannick, and other Members across the House.

It would have been good to see a similar approach from Ministers when we discussed the Housing and Planning Bill at great length last year. It is not a personal criticism of them; the Minister at that time, the noble Baroness, was not allowed to move in the direction in which Ministers on this Bill have been able to move, which I very much welcome.

For clarification, may I assume that my Amendments 71 and 75 are effectively covered by the welcome amendments that the Government have brought forward? That is right, and that is a repetition in the case of the previous amendments. However, I am not entirely clear about Amendment 67 in my name, which requires the Secretary of State to consult the Welsh Ministers before making regulations under Section 38. That proposal was dismissed on the previous occasion, although it had been a matter of strong concern to the Delegated Powers and Regulatory Reform Committee, to which the Government’s official response was extremely negative. I do not know whether the Minister can offer any assurance that, whether or not is contained in the amendment, the Government will consult Welsh Ministers. There was rather a general statement that this happens automatically. The purpose of including it in the Bill was to make sure that more than just custom and practice would apply in this case. It would therefore be helpful if the Minister indicated whether the government amendments cover my amendment or, in the event that they do not, whether he will again confirm explicitly that there will be consultation with Welsh Ministers before making regulations under Section 38. It would be preferable to include that in the Bill but, at the very least, a ministerial assurance would carry some weight. In those circumstances, if that were the position, I would withdraw my amendment.

[Lord Bourne of Aberystwyth]

My Lords, perhaps I may respond, particularly to the points raised by the noble Lord, Lord Beecham, in relation to Wales. I will pick them up at the end of this part of the review of other noble Lords’ amendments. I once again thank those who have participated in the debate, including my noble friend Lady Cumberlege, who set out a horrifying “Yes Minister” position. I am sure that one or two officials in our department will be listening but it is not regarded there as a training manual—although it possibly is the case in other departments. However, I give fair warning to anybody who thinks it is that it is not. The point was well made.

I am grateful for the welcome given by the noble Lord, Lord Pannick, to the position exhibited in the government amendments, as well as by the noble Lords, Lord Beecham and Lord Shipley. It was certainly the subject of my fruitful discussion with the noble and learned Lord, Lord Judge, who was instrumental in putting a strong case.

I confirm to the noble Lord, Lord Shipley, that the wording is the usual wording. I hope he is reassured by that.