Neighbourhood Planning Bill

Debate between Lord Bourne of Aberystwyth and Lord Stunell

Ping Pong (Hansard): House of Lords
Tuesday 25th April 2017 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I wish to update the House following the consideration of the Lords amendments to the Neighbourhood Planning Bill in the other place on 28 March. There are two matters before your Lordships’ House that will be discussed today: pubs and planning conditions. I shall be brief in relation to those two areas.

I turn first to planning conditions. As highlighted during the Bill’s passage, the power to make regulations prescribing what kind of conditions may or may not be imposed and in which circumstances is already constrained in the clause. To reiterate, new Section 100ZA(2) already provides that the Secretary of State may make regulations under subsection (1) only if he considers that these regulations are appropriate to ensure that conditions imposed on a grant of planning permission meet the policy tests in paragraph 206 of the National Planning Policy Framework, which states:

“Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects”.


The amendment originally proposed by the noble Lord, Lord Stunell, sought to restrict the Secretary of State from using this power under subsection (1) to prevent a local planning authority imposing a condition that would otherwise conform to the National Planning Policy Framework. At the heart of the amendment sits a test of whether the regulations prevent a local planning authority imposing a condition that meets the National Planning Policy Framework and, in particular, those policy tests in paragraph 206.

It is right that the Government do not intend to use the power to prevent local authorities imposing planning conditions that accord with the National Planning Policy Framework. However, the specific amendment is unnecessary, as subsection (2) has the effect already that any regulations made under these powers must be consistent with the long-standing policy tests for conditions. Indeed, the subsection makes it clear to those reading the legislation that the power seeks to ensure conformity with those tests. The position of the other place during the consideration of the amendment was that it agreed with the Government that the amendment was unnecessary, and there was no Division on this point. Therefore, I ask noble Lords not to insist on the amendment.

On consideration of the other matter, planning protection for pubs, I am sure I need not remind noble Lords of the amendment introduced by the noble Lord, Lord Kennedy of Southwark. I thank him and others who have worked so constructively with me on this issue, in particular, my noble friends Lord Framlingham, Lady Cumberlege and Lord Hodgson and the noble Lords, Lord Shipley, Lord Tope, Lord Scriven, Lord Berkeley and Lord Cameron of Dillington, the noble Baroness, Lady Deech, and the most reverend Primate the Archbishop of York. The Government have carefully reflected on the points raised during the Bill’s passage about the importance local communities place on valued community pubs. I hope noble Lords will agree that we have reflected the will of this House in bringing forward our amendment in lieu, which sets out the detail of the changes we will make to protect and support pubs.

We will amend the Town and Country Planning General Permitted Development (England) Order 2015 to remove all existing permitted development rights for the change of use or demolition of A4 drinking establishments, including pubs. This will include the rights to change to a restaurant or café, financial or professional service, a shop or a temporary office or school. We believe that this is best achieved by retaining the A4 drinking establishments use class for pubs, wine bars and other types of bar. Our intention in doing so is to allow pubs to develop within this use class—for example by opening the pub garden—without facing uncertainty about whether planning permission is required. I hope noble Lords will recognise the benefit of the Government’s approach.

Separately, we have listened to points made in this House about the need for pubs to be able to expand their food offer to meet changing market needs and support their continued viability. Therefore, as part of our support for pubs, we will introduce a new permitted development right to provide them with an additional flexibility. The right will allow the pub to expand its food offer beyond what is ancillary to the pub business without planning permission being required but, importantly, it will not allow the pub to become a restaurant with only a token or ancillary bar.

The changes we are bringing forward address the long-standing call that proposed development which would result in the local pub ceasing to operate should be considered locally, allowing the community to comment on the future of its local pub. It is important that local planning authorities have relevant planning policies in place to support their decision-taking. Noble Lords will be reassured to know that both the Campaign for Real Ale and the British Beer and Pub Association have welcomed our proposed approach and personal commitment to helping our pubs survive and prosper. Noble Lords will be keen to see regulation as soon as possible, to prevent any further loss of pubs without local consideration. I can therefore commit to laying secondary regulation immediately after Royal Assent, to come into force before the end of May.

Noble Lords will be reassured to know that the regulations will contain provision to guard against opportunistic use of the permitted development rights before they are withdrawn. Under the current regulations, a developer must first make a request to confirm whether the pub is nominated or listed as an asset of community value. Where a request has been made fewer than eight weeks before the order comes into force, the order will not allow development to take place. I therefore ask noble Lords not to insist on Amendment 22 and to agree with our amendment in lieu. On that basis, I ask the noble Lords to withdraw the points they made earlier in relation to these two matters and to agree with the two Motions put forward by the Government.

[Lord Stunell (LD)]

I thank the Minister for what he has said. I remind the House that the matters in Clause 12 have been debated at each stage of the Bill. There is widespread understanding that this is a good Bill and it has a lot of support, but to many noble Lords Clause 12 seemed out of place. It either gives new powers to the Secretary of State to regulate, as he sees fit, the decisions of local planning authorities—which it is feared could be at the expense of the National Planning Policy Framework—or it is of nil effect because the NPPF already provides the boundaries and constraints. The critics have tended to the first view and the Government to the second. The critics, including me, feared that this Government, or a future one, might use this regulatory power in a way that undermined the capacity of local planning authorities to use the NPPF as it was intended. The Government have, quite understandably, taken the contrary view, which the noble Lord, Lord Bourne of Aberystwyth, has just put.

This House accepted my amendments limiting the Secretary of State’s ability to regulate. That came not just from this quarter of the House—it had widespread cross-party support. Indeed, beyond cross-party, the most reverend Primate the Archbishop of York also contributed to the debate on Report and supported us in the Lobby. Therefore, this is not in any way a party political or partisan issue; rather, it is about firmly entrenching the right of local planning authorities to set planning conditions in accordance with the NPPF and without fear of being second-guessed or overruled by the Secretary of State’s regulatory power. Putting it another way round, it establishes, or was intended to establish, the primacy of the NPPF as the touchstone of legitimacy in judging planning conditions rather than the latest fad of the spads in the DCLG. That is what my amendment did. The Minister—the noble Lord, Lord Young—was very helpful on Report, as far as his brief would allow, but not sufficiently eloquent to persuade your Lordships of the Government’s point of view, and the amendment was passed.

I thank the noble Lord, Lord Bourne, for the work he put in subsequent to that and the discussions that we had. We clearly did not have a full meeting of minds, which was probably as much my fault as his. However, gradually, the essence of the argument made across parties at each previous stage of the Bill has seeped into our proceedings and on to the record.

The noble Lord, Lord Bourne, referred to the letter that he circulated, and we see it in the reasons before us for rejecting your Lordships’ original view on this matter. It is extremely important that it is clear that it will always remain lawful and legitimate for conditions to be imposed by local planning authorities provided they conform to the requirements of the National Planning Policy Framework. Indeed, that is the reason before us for the Commons rejecting the amendment. I remind your Lordships that the reason states:

“Because section 100ZA already has the effect that the regulations must be consistent with the tests for planning conditions in the National Planning Policy Framework”.


That is clearly the Government’s view and the view of the other place. I hope it will turn out to be the view of all future Governments and Ministers and, in the case of dispute, that the courts will share that benign view and interpretation of Clause 12. I believe that the Government’s declared intentions would be far clearer with the amendment that was originally proposed. However, on this occasion, with grateful thanks to those around the House who supported the original amendment on Report and valiantly joined me in fighting the fight, I will not press the matter any further.

Neighbourhood Planning Bill

Debate between Lord Bourne of Aberystwyth and Lord Stunell

Committee: 3rd sitting (Hansard): House of Lords
Monday 6th February 2017 Grand Committee

[Lord Bourne of Aberystwyth]

My Lords, I have covered only one amendment so far. I appreciate that the noble Lord is making a central point and I will seek to respond to it, and if there are other points that he wants to bring up towards the end of our consideration, I will be happy to deal with them.

On Amendment 31, I recognise that there are concerns around the impact on sustainable development, which is evidenced by the fact that this amendment was also put forward in Committee in the other place. However, I need to be explicitly clear that the clause is not aimed at conditions that are necessary to achieve sustainable development. I reassure the noble Lord that appropriate protections for important matters such as heritage, the natural environment and measures to mitigate the risk of flooding will be maintained. If the planning authority in question is unable to come to an agreement with the developer it is obviously the case, just as it is now, that planning permission will not be granted. What we are seeking to do is bear down on those conditions that we think are not appropriate and do not need protection.

It may help noble Lords if I give some background to the same issue when it was raised in Committee in the other place by Roberta Blackman-Woods MP, the honourable Member for the City of Durham, who was concerned about a situation where a condition prohibited by the Secretary of State makes the development acceptable in planning terms but makes it unacceptable in social, economic or environmental terms. The purpose of the planning system as set out in the National Planning Policy Framework is to contribute to the achievement of sustainable development. Sustainable development is recognised as being comprised of three distinct dimensions: economic, social and environmental. Each of these aspects is capable of being material in a planning decision. This amendment would remove a key element of new Section 100ZA(2) which ensures that the Secretary of State can make regulations only under subsection (1) in order to ensure that any conditions imposed are necessary to make development acceptable in planning terms. Subsection (2) is important as it constrains the power in subsection (1) so that it can be used only to ensure that any conditions imposed meet the well-established policy tests for conditions in the National Planning Policy Framework. To recap, paragraph 206 of the framework states:

“Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects”.


This, as well as subsections (2)(b) to (d) are key safeguards to ensuring compliance with the policy tests, and I therefore believe that the amendment could run contrary to the noble Lord’s intention.

In addition, if by removing subsection (2)(a) noble Lords are seeking to ensure that conditions cannot be overlooked because they are unacceptable for other reasons, the existing drafting of subsection (2)(d) already adequately provides for this in its requirement for conditions to be reasonable in all other respects. Finally, as noble Lords are aware, before making regulations under subsection (1), as I have said, we are required to carry out a public consultation as set out in subsection (3). I appreciate the point made by my noble friend Lord True and others that perhaps it would be of assistance if I set out in a letter following today’s Committee session exactly how we expect the public consultation to play out, but it will give anyone with an interest an opportunity to be heard and for their views to be considered.

[Lord Stunell (LD)]

I wonder if either in that letter or perhaps in another one the Minister could set out to what extent the provisions of Clause 12 are or are not simply putting the National Planning Policy Framework on a statutory footing. Could he also set out whether to any extent it either goes beyond the framework or reduces from it?

[Lord Bourne of Aberystwyth]

I thank the noble Lord, Lord Stunell, for that intervention. Obviously the National Planning Policy Framework stands independently from the Bill and I do not believe that any cross-reference is made in the legislation to the framework, but of course all planning decisions have to be made in accordance with it. I will deal with the point in the letter I will send round, but I think that all of the points which have been raised are covered in the National Planning Policy Framework as far as the Government are concerned and as far as the legislation allows.

--- Later in debate ---

[Lord Stunell]

My Lords, I would like Clause 12 to be taken out of the Bill. It is unsatisfactory because it is written so broadly. Under subsections (1) and (2), the Secretary of State is in a position to do practically anything as long as it is a prescribed description, but subsection (9) says that,

“‘prescribed’ means prescribed by the Secretary of State”.

So there is no limitation on the Secretary of State’s capacity to change the current planning system, not simply the pre-commencement conditions, although that has been the immediate focus of the debate.

Although the clause is widely drawn, for the Minister it clearly has a much more limited intention. I asked a question to see whether I could establish exactly what that limited intention was. On the face of it, from what the Minister has told us this afternoon, it is intended simply to ensure that the National Planning Policy Framework is the bedrock on which all planning decisions are made; in other words, to make the NPPF in effect a statutory document. If that was his intention, it could have been expressed much more clearly by a clause that would be fundamentally different from Clause 12 and be something we could debate the pros and cons of much more satisfactorily. If, on the other hand, it is intended to inhibit or prevent local authorities imposing conditions that would otherwise be in conformity with the NPPF, he needs to go to greater length to explain why the Government believe the NPPF needs to be trimmed back a bit.

I hope the Minister can see that if the NPPF is the reference, it would be useful if it was referred to in some way in the Bill, particularly in this clause. It is beginning to look as though his letter will be as long as the National Planning Policy Framework, which, incidentally, comes in at 59 pages, two of which are a list of the 44 codes of practice that it supersedes, which themselves were about 1,000 pages long. By the time we have some regulations to say exactly what we mean as a result of Clause 12, we will begin to unravel the NPPF.

There is a fundamental disconnect between what is in the Bill and what the Minister says its intention is. When I saw the Government’s amendments, I thought we were going to see something helpful, but I noticed that five of the amendments in the previous group were to insert the word “relevant” before the phrase “planning conditions”. One wonders a little whether one needed that word added. It is good that it has been, but can we just have the answer to the philosophical intent of the clause relating to planning as a whole and to pre-commencement conditions?

At Second Reading I mentioned that the National Planning Policy Framework—which is now treated as though it had originally been carved in stone at the top of Mount Sinai—had quite a troubled birth, with version one going around the Government for preapproval before it went out to consultation from the Department for Communities and Local Government, in which I was at the time a junior Minister. It came back from the Treasury with red ink all over it. It could not go out until the amendments the Treasury required had been made. Of course, there was uproar when it went public. In particular, the National Trust organised a very vigorous campaign against it. It turned out that the National Trust is the good cause of choice for a large number of Conservative Party members, who proceeded to let their Conservative Members of Parliament know about their dissatisfaction. One way or another, the consultation resulted in a completely different document coming forward, which was very similar to the document that had been drawn up and altered by the Treasury in the first place.

I rather fear that Clause 12 is another NPPF, except that we are at only the middle point, where something quite sensible has been turned into something that is not nearly so sensible and is fundamentally threatening many of the safeguards that the final version of the NPPF established so clearly, in particular the three pillars of sustainability when there is consideration of a planning application. Originally, I thought that the department had had the same experience this time that it had with the NPPF—it had gone off to the Treasury, which had put some red ink on it. But I realise that the current Secretary of State in the Department for Communities and Local Government was in fact the Financial Secretary to the Treasury at the time when the NPPF went on its rounds, so it is possible that the red ink was added at a much earlier stage.

I suggest that the Minister has a quiet word with the Secretary of State to explain to the high proportion of Conservative activists who belong to the National Trust—because he will soon find that out again—how much regard the NPPF has now attracted on all sides as a short, intelligible and easy-to-read planning document, and consider either scrapping Clause 12 completely or introducing a provision stating that local authorities are not permitted to impose conditions which go beyond the National Planning Policy Framework. I would have thought that that would achieve the objective which I think the Minister is seeking. Finally, the Minister should also convey to the Secretary of State the fact that this is a Henry VIII clause that Charles III will be most unhappy about.

[Lord Bourne of Aberystwyth]

My Lords, I hope that that is many years from now. I thank all noble Lords who have participated in our debate on whether Clause 12 should stand part of the Bill and I welcome the noble Lord, Lord Beecham, to his place. I fully understand the circumstances that kept him away earlier. We did deal with Amendment 43A, but I will endeavour to cover a couple of points on it as we proceed.

As noble Lords will be aware, the need for new housing is paramount to deal with some of the issues we are looking at, although of course I accept that there are many other circumstances we also need to consider relating to the Bill. The Government want to ensure that, once planning permission has been granted, we can move on as quickly as possible with housebuilding. At present this does not always happen because too many planning authorities impose unnecessary pre-commencement planning conditions. I accept that they are the exception, but on occasion they require applicants to take action before any works can commence that unreasonably hold up the start of building supply. This is unacceptable to the Government when we want to address the urgent need to increase the supply of homes. I think that noble Lords realise that there is a balance to be struck and a nuance that needs to be dealt with.

I have sought to indicate that this provision does not give the Secretary of State the powers being suggested by some noble Lords. New Section 100ZA(1) set out in Clause 12(1) does give the Secretary of State the power to make regulations, but it has to be read in the light of subsection (2) which provides that:

“Regulations under subsection (1) may make provision only if (and in so far as) the Secretary of State is satisfied that the provision is appropriate for the purposes of ensuring that any condition imposed on a grant of planning permission for the development of land … is—


(a) necessary to make the development acceptable in planning terms;

(b) relevant to the development and to planning considerations generally;

(c) sufficiently precise to make it capable of being complied with and enforced, and

(d) reasonable in all other respects”.

Subsection (3) goes on to state:

“Before making regulations under subsection (1) the Secretary of State must carry out a public consultation”.


This is not the wholesale provision which some noble Lords have been suggesting would give unfettered power to the Secretary of State. However, I accept that there are material considerations in terms of reaching a balance. I thank in particular the noble Lord, Lord Stunell, who recognised that. I can confirm that, as I indicated in response to the previous group of amendments, all of the issues raised are in the National Planning Policy Framework and so would be appropriate for the agreement of conditions with the developer.

Neither the Government nor any planning authority is in a position to force people to come to an agreement. The idea that we can somehow force either the local authority, as was perhaps suggested by some noble Lords or the developer, who may walk away at the end of the day because he is not happy with what the planning authority is saying, is wrong because we cannot—the National Planning Policy Framework has to be complied with. These are matters of consent and no Government would be able to do that, short of taking wholesale powers away and rewriting the law of contract, which we are not proposing. Indeed, I do not think anyone is suggesting that we should.

I am happy to go away and consider some of the points that have been made, but I come back to the point that we have to deal with inappropriate pre-commencement conditions. That is not to say that they are inappropriate as conditions—they may be quite appropriate as conditions, and many of those cited are—but they are not appropriate as pre-commencement conditions, and that is the point I keep coming back to. This is the intention of the legislation, as demonstrated by the wording of the new section. I do not accept that it is obscure or meaningless. I accept that there are considerations here but, if I may, I refer to the Government’s response to the consultation on improving the use of planning conditions. Admittedly, views were split on this, but it is not the case that all local authorities thought that the idea is a dreadful one. The majority—a bare majority, I accept—thought it was a good idea, with 44% either in complete support or supportive of the principle with reservations about the process. That was a majority in favour of the sort of action we are looking at.

Neighbourhood Planning Bill

Debate between Lord Bourne of Aberystwyth and Lord Stunell

Committee: 1st sitting (Hansard): House of Lords
Tuesday 31st January 2017 Grand Committee

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on the amendments in this group. Before I respond to the specific amendments from the noble Lord, Lord Stunell, the noble Baroness, Lady Parminter, and my noble friend Lady Cumberlege, I shall make some introductory remarks that I hope will set out the context.

It is right that unsuccessful applicants can seek to have their planning application reviewed through an impartial planning appeal process. This is a strong belief of the Government, as it has been of successive Governments. I want to get that on the record. This recognises the control the planning system places on the use of land. This should be an option even when the proposed development is not in accordance with the development plan. A planning appeal should be lodged only if issues cannot be resolved with the local planning authority and if an applicant considers, in the light of the facts, that planning permission should have been granted.

Turning to Amendment 5, tabled by the noble Lord, Lord Stunell, and the noble Baroness, Lady Parminter, I thank them for the opportunity to discuss this matter. In this case, when considering an appeal that relates to a neighbourhood plan, the Secretary of State must know the importance of that neighbourhood plan. The law is very clear that decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise. Reference has already been made to the number of call-ins that have been made by the Secretary of State for the last year for which figures are available—75 out of 16,500. This idea of a super-bureaucratic system running riot with call-ins is overstated and wildly hyperbolic.

[Lord Stunell]

Is the Minister in a position to say how many of those 75 came from neighbourhood plan areas?

[Lord Bourne of Aberystwyth]

I thank the noble Lord for that intervention. I do not have those facts in front of me but I shall endeavour to see if we can provide that information in the letter that I have promised to noble Lords. If the information is there, I will gladly supply it.

We should also be clear that the rules on call-ins were made in 2008, ran throughout the last Government and into this Government. The suggestion that this is somehow something new is wrong. I am also happy to circulate the parliamentary Statement that contained those rules to Peers who have participated. I accept that the amendment tabled by my noble friend Lady Cumberlege and the noble Baroness, Lady Pinnock, acknowledges that there are issues of national significance. We can all think of examples of compliance with climate change policies, world heritage sites, green belt and so on. So I would have to take issue with the idea that a call-in is never appropriate, which I think one or two noble Lords got close to saying. When we look at planning, there is always room for and, indeed, an importance to a national dimension. This is what we are seeking to preserve.

I was asked once again about the neighbourhood planning Written Statement. I will also circulate this so that noble Lords have it in relation to the three-year supply of deliverable housing sites. This Written Statement, in the name of my honourable friend the Minister of State for Housing and Planning in another place, Gavin Barwell, indicates:

“The Government confirms that, where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted”,


provided that,

“the local planning authority can demonstrate a three-year supply of deliverable housing sites”.

I am putting this in a shorthand form, but I will ensure that it, or the link, is circulated to those who have participated in the debate.