Housing and Planning Bill

Lord Borwick Excerpts

Wednesday 23rd March 2016 Lords Chamber

[Lord Borwick (Con)]

My Lords, I rise to speak to Amendment 102D. I declare many different property interests, both directly and through companies in which I have registered an interest. They comprise land directly held by me and by companies, and also land held under options in Sussex, London, Oxfordshire and Scotland. Many of these companies are in the process of developing land and some have planning applications outstanding. I am also a trustee of many charities with property interests.

I support Clause 145. It will do an enormous amount of good, even as drafted, but I am aware that some objectors have concerns with it. It seems they are worried that a “designated person'” will not only be able to process the application, but will have the delegated authority to actually make the planning decision. That would be concerning. So it may be worthwhile to explicitly state that it is not the Government’s intention to allow a designated person to decide the outcome of an application. The actual decision should be reserved for the democratically elected councillors, all as part of greater localism.

The Minister may say that this is clear enough from the existing drafting of Clause 145, but if so I would ask why so many different people have misunderstood it. My amendment, which is supported by noble Lords from three different parties, would save time in the long term. If there is confusion among objectors and developers now, they will simply waste time by misunderstanding the existing clause.

I respect the opinions of many noble Lords who would prefer that this whole Bill does not pass, but if it is to pass, they want it to be as clear as possible. I want it to pass, but I also want it to be as clear as possible. I therefore want to amend Clause 145 to make it explicitly clear that a designated person shall not have any power to determine a planning application.

[Lord True]

This is a useful amendment. Perhaps I am tempted to intervene by the rodomontade of my noble friend Lord Deben, who certainly seemed to me an admirable candidate to be a designated person advising on green applications. He would do it better than most, and I look forward to the opportunity that he was extolling.

I also speak as a leader of a blooming local authority which has tried to be creative. I remind my noble friend that my education department is now a social enterprise. I have no problem with privatisation. I do not follow that route at all—my problem with this is that I do not like law made in a hurry. The process here is bad; there is not enough opportunity for consideration.

[Lord Borwick]

Nine days?

[Lord True]

No—if the noble Lord had been here earlier, he would have heard that this came in at a very late stage in the Commons and was dealt with quickly, and this was the first opportunity your Lordships have had to discuss it. All I am saying is that that is inappropriate at this time and place.

The noble Lord, Lord Campbell-Savours, is on to a very pertinent point. I am not going to go into all the issues; we have not had long enough to discuss planning fees. Local authorities should be properly funded for performing this important function. Funding other bits of sticking plaster—effectively, in some ways, that is what it is—to do that is not going to answer that core problem of under-resourced statutory function.

My problem with this comes down to the point of decision. At the end of the day, that decision must be independent. We have a court system in this country which is full of privatisation. People are advised by private solicitors. Their cases are pleaded by self-employed barristers. There is nothing wrong with private operators. When we get to the point of decision and recommendation, the planning committee, as noble Lords who have attended or been members of planning committees will know, is like a jury in effect, although it has a quasi-judicial effect. Under this provision, one of the parties—the applicant—will very often be a powerful figure who will, in effect, be summing up for the jury. That is what is in the documents here: it is solely for the designated person to make a recommendation to the local planning authority how, in their professional opinion, the application might be termed. So a piece of paper goes to the planning committee with the word “recommended” on it in bold. Under this provision, the private operator, who has a link with one party, is the person who does that summing up to the jury. To my mind, that is the difficulty. I have no problem with private operators being involved, as long as the poor bloomin’ local authority is allowed to properly function in doing what it seeks to do.

I am sorry if I am now in the third minute of my speech. I know that brevity is the soul of wit although sometimes, as shown in parts of the speeches by the noble Lord, Lord Greaves, within longiloquence there can also be pearls of wisdom.

I am concerned about this provision. It allows another local authority to be designated to do the job for local authority No. 2. We are told that that is because one of those authorities may be inefficient. Now, any Government can do this, not only my noble friend’s Government but perhaps Mr Jeremy Corbyn’s Government or that of—I cannot remember; was it Mr Farron? The point is that any Government with a policy preference could say to a local authority that was compliant or friendly, or perhaps did not worry too much about the green side or the affordable side, “We will have an experiment. We will give the work of the authority that is being too green or too difficult with developers to another authority that does not worry too much about green issues, and let them do it”. So there is a risk of moral hazard there—political moral hazard, if you like—from the involvement of any Government. If this measure goes forward, that part needs to be thought about.

My next point comes from long experience of trying sometimes to get things done on a bloomin’ local authority in the public interest. Getting development done is difficult, and one of the reasons why is the suspicion among the public of the planning system. We are an incredibly uncorrupt country, with many high-quality public servants in many local authorities and central government. Still, how many times do people come up to me and say, “Oh, there’s something going on in your planning department. The thing is rigged”? They feel that the system is unfair and rigged against them. If we had a system where the powerful, as conceived, were trying to get something done and were advantaged by having someone working for them who could get to the point of giving the summing-up to the jury, that would increase suspicion of the planning system and would not improve it.

I say to my noble friend: I wish this had been thought out a little more. Perhaps this is too swift a timescale to do it on. However, if we are to go forward with involving much more private activity and competition—I am not against the principle of that, unlike those opposite—can we please think about those very vulnerable points in the process? I would not be quite as dramatic as the noble Lord, Lord Campbell-Savours; I think, rather, that it might sink or swim. Still, the points that I have tried in my rather halting way to put forward are extremely important.

We also have to be careful about the scope of the secondary legislation. When I look at Clause 145(4), I am surprised that the Delegated Powers Committee did not take issue with the wording:

“The regulations may … apply or disapply … any enactment about planning”.

That seems to be the ultimate Henry VIII power, even in respect of an experiment.

I say to my Front Bench: please be cautious. Do not be put off entirely from looking for experiment, as noble Lords opposite were saying. But please think about that process at the point of decision, the nature of engagement of the Government and of powerful parties and how that might be perceived, and the moral hazard and indeed the actual hazard that might arise.