Localism Bill
Debate between Lord Greaves and Baroness Andrews
Lord Greaves
My Lords, we now move on to an important clause of the Bill, which provides the “Duty to co-operate in relation to planning of sustainable development”. The duty applies to,
“a local planning authority, … a county council in England ... or … a body, or other person, that is … of a prescribed description”.
I should say that, as well as moving Amendment 147FJ, I shall speak to a number of other amendments in my name in this group. They all refer to Clause 95, which will insert new Section 33A into the Planning and Compulsory Purchase Act 2004.
Amendment 147FJ would add “a marine plan authority” to the list of bodies that are under a duty to co-operate. I understand that through regulations the Government intend to give this duty to the Marine Management Organisation, which is the marine plan authority for a great deal of the British seas—essentially, the inshore and offshore seas of England. The term “marine plan authority” is used in the Marine and Coastal Access Act 2009, so it seems sensible to use the same wording here. Subsection (3) of new Section 33A, inserted by Clause 95, lists the activities to which the duty to co-operate applies, which include,
“the preparation of marine plans”.
It is therefore sensible to add “a marine plan authority” to the list of authorities that are under a duty to co-operate.
Amendment 147FK probes what is meant by the third group of bodies to which the duty applies—
“a body, or other person … of a prescribed description”.
Presumably if the Government wish to prescribe people, they must have an idea of who it is they wish to prescribe by description. I want to probe the Government on who they think these bodies will be, at least in the short run.
Amendment 147GA refers to local enterprise partnerships. As we know, these are new bodies which over the past year have sprung into life in most places, although not quite everywhere yet. They are to be responsible for co-operation between local planning authorities and local businesses in the absence of regional planning bodies. The regional planning structure is being dismantled and local enterprise partnerships are taking its place. People have different views on how successful they will be, but that is not the point of the amendment. It suggests that, first, the partnerships should be subject to the duty because strategic planning is what they are supposed to be doing, albeit in general over smaller areas than the regions, and therefore they ought to be included in the legislation. They are also ideal bodies to take a lead in co-operation—in fact, they are all we are going to have—by agreement with local authorities and other named bodies.
If we are going to put LEPs in the Bill, they need to be defined. I am not sure that the Government have officially defined them, so I suggest a definition in the words,
“a partnership of local authorities and businesses in an area, that has been approved of by the Secretary of State”.
That seems a reasonable description of what they are.
The next three amendments refer to the “activities”, as the Bill calls them, to which the duty of co-operation applies. These are the “preparation” of development plan documents, of other local development documents —of course, quite a few of the documents that go in the local plan are not classified as development plan documents as such—and of marine plans. The Bill suggests that the duty of co-operation should apply to the “preparation” of these documents; I have tabled amendments to add the words “and implementation” after “preparation” in every case. Surely the duty of and need for co-operation do not end with the publication of a plan but continue, given that people have to continue to co-operate in a constructive and sensible way in order to carry out what the plan is putting forward. Otherwise, those parts of the plan that require co-operation across boundaries—which presumably will be required, because what is the point of co-operating on producing the plan otherwise?—will be more difficult to achieve.
Amendment 147HE suggests that the duty to co-operate should apply to the preparation and implementation of documents which are not planning documents under planning laws, but which,
“affect the development or use of land and associated activities”.
We have only got to begin to think that there will presumably still be co-operation—perhaps across the LEP areas or county areas or other ad hoc areas—on producing housing documents, which may be more or less strategic housing plans. For example, housing authorities in east Lancashire and across Lancashire will continue to meet, work together and co-operate in this way. It seems sensible that, when this is happening, the duty of co-operation should apply to them. Leisure and tourism facilities, for example, very often require planning and a lot of work across local authority areas or across much larger areas than local authorities, particularly where there are relatively small districts.
I shall miss out one or two of my amendments in the interest of getting on. Amendment 147HM would add to the list of what is a “strategic matter” under subsection (4) of new section 33A. My proposed new subsection (4)(c) would add,
“development or use of land that is of potential strategic importance”.
My proposed new subsection (4)(d) would add,
“development or use of land that is necessary in order to meet the needs of a planning area but cannot be accommodated within that planning area”.
Those are the provisions that I wish to add to the Bill.
In the first of those proposed new paragraphs, the reference to “potential strategic importance” is important, because there may well be development proposals put forward for land which is of potential strategic importance, but the particular proposals being put forward cannot, by their nature, be considered to be strategic. They may just be ordinary planning applications, but the land itself ought, perhaps, to be reserved for more strategic purposes and therefore the co-operation should extend to the consideration of development proposals which, although not strategic in themselves, might involve land which is potentially strategic. That should, at the very least, be discussed and considered.
My second proposed new paragraph would apply where the needs of a local planning authority could not reasonably be met within the authority’s area but could perhaps be met within that of a neighbouring authority. This is certainly the case in small districts which might, for example, be having great difficulty finding new industrial land whereas a district next door might have quite a lot. Planning in those circumstances should take place jointly—it may be for housing, an industrial or commercial development, leisure facilities or even a shopping centre. Such development needs to be looked at across an economic area. If the LEPs are supposed to represent economic areas—it is arguable whether all of them do—it is across those economic areas that such developments and facilities ought to be considered. Natural economic areas may well be larger than the planning areas and in many cases they will be.
The Bill sets out definitions, including the meaning of “planning area”. Amendment 147HN would define “planning documents”, which are not defined in the Bill. The amendment would remedy this omission. The amendment provides that “planning documents” would mean all,
“documents that set out policies … relating to the development and use of land, the English inshore region or the English offshore region”,
under a number of enactments. The list of those enactments in the amendment may not be complete, but the principle of setting them out is sensible.
Amendment 147HQ would strengthen the duty imposed on all the persons and bodies that have to co-operate. The duty to co-operate was strengthened in the House of Commons before the Bill came here, but there is quite a considerable body of opinion that it needs strengthening even further. New Section 33A(6) states:
“The engagement required of a person … includes, in particular … considering whether to consult on and prepare, and enter into and publish, agreements on joint approaches to the undertaking of activities within subsection (3)”—
which relates to the preparation of development plan documents et cetera. The amendment would strengthen the provision so that the paragraph would read,
“to consult on and prepare, and, where appropriate … publish, agreements on joint arrangements”.
In other words, the duty would be not just to consider whether to bother consulting but to actually get on and do it.
Amendment 147JA would place a similar duty on local planning authorities to get on with it, rather than just “consider” producing joint planning documents where appropriate. The word “consider” seems too weak, so I hope that the Government will look at different ways in which they can perhaps strengthen the duty.
Amendment 147N takes us back to statutory guidance and regulations. This may be getting fairly tedious, but there is a great deal in the Bill which is probably not necessary. Here again, we have the Secretary of State bossing people in great detail on how to co-operate. People know how to co-operate. They may not always do it, but if they are under a duty to do so, they will probably get on with it.
The alternative way of dealing with these matters is in Amendment 147P, which suggests that the Secretary of State can intervene, but only if he receives a complaint that one of the bodies that must co-operate is not doing so. This is a better approach. Instead of laying down in great detail how people should do things, in a very rigid, top-down and bossy way, it would provide a fall-back power whereby, if co-operation was not taking place and was clearly not working, the Secretary of State could intervene. This would provide an incentive to change behaviour. It is a failsafe, but it is a better way of doing it. Above all, it leaves open the opportunity for people in an area to co-operate in a way that is most appropriate for that area, providing a lot of innovation and best practice. If authorities simply have to do it in exactly the way the Secretary of State sets out in great detail, innovation and best practice will never take place.
Amendment 147R seeks to amend the Marine and Coastal Access Act 2009 to include a duty to co-operate in that Act. If it is necessary to amend the Planning and Compulsory Purchase Act 2004 for terrestrial planning to include a duty to co-operate in that Act, then surely it is necessary and sensible to do the same in the Marine and Coastal Access Act in relation to marine planning. When the Marine Management Organisation is preparing a marine plan, under this amendment it must have regard to the duty to co-operate set out in the new Section 33A of the Planning and Compulsory Purchase Act 2004. When a person is carrying out an independent investigation into a marine plan under the Marine and Coastal Access Act, the person must determine whether the MMO complied with that new section of that Act.
In many ways these are technical amendments but they will substantially improve, strengthen and make much clearer this part of the Bill. I beg to move.
Baroness Andrews
My Lords, the noble Lord, as usual, has been very assiduous in his amendments. I am grateful to him for tabling, in particular, Amendment 147FK. I declare an interest as chair of English Heritage.
The noble Lord asked the Minister what would be included in the list of bodies referred to in proposed new Section 33A(1)(c). We think it might be bodies such as English Heritage. The Bill raises a serious issue. Obviously, we all understand the need for local authorities to be obliged to assist each other in agreeing cross-border planning strategies, but it is not clear why the loss of the regional spatial strategies gives rise to the need for national bodies such as English Heritage to be obliged to provide advice and information.
Of course, English Heritage and many other bodies—but particularly English Heritage—give advice and assistance to local authorities in the planning system. It is one of our core responsibilities with which we are rightly charged but, as a national body which, like others, may be subject to this duty, we are now concerned that a responsibility may have been written into the law which would oblige English Heritage to advise and assist the 433 local authorities in England in a manner—this is very important—that would commit incalculable and open-ended resources. Clearly this is not what the Government intend but it is what the present clause, as we understand it, threatens to do. It would make us liable, without condition, to be dragged to every council table in the land.
As chair of English Heritage, I am concerned about how this might unbalance the priorities already set by Parliament and the Government. I suspect that the Minister will also be concerned about this possibility. Like the noble Lord, Lord Greaves, I ask the Minister for clarity on how this new burden will be met and qualified and whether he can explain what need this new obligation is now fulfilling. Indeed, what are the bodies not doing now that they should be doing?
I apologise in advance to the Minister because I may not be able to stay for the winding up of this debate, but I shall certainly read Hansard tomorrow with interest.
Localism Bill
Debate between Lord Greaves and Baroness Andrews
Baroness Andrews
My Lords, this is a very important amendment and it is supported by other organisations as well as the RTPI. I hope that the Government will take this in the spirit in which it is intended. I believe that this is an oversight, in fact, and one which, unless it is addressed will really make life difficult for, ironically, the very assiduous local authorities which completed their LDFs, as the noble Lord, Lord Best, says. I will not say that we have given up the case, because I believe that regional spatial strategies had a great deal to offer, but we are not revisiting that debate at all here. This is about a transitional situation, where a local authority has its LDF in place, but where it has preferred, to save itself time and resources and to be consistent, to use the content of the RSS as a way of indicating what its policies—on housing supply and distribution, on climate change—will be. It is now in a very difficult position, if there is this lacuna, because, obviously, with the RSS having gone, the content has been abandoned as well, or put into some strange sort of limbo.
It is very important that we do not waste those resources, such as the information and the data sets. More importantly, the local authority should not have to waste time and resources by revisiting those matters or by reiterating the process through a partial review. That would not make any sense. Therefore, it is extremely important that the Government look closely at this provision to see what can be done, which I suspect would not be too difficult to do. I think that the noble Lord, Lord Best, has a good amendment here.
Lord Greaves
My Lords, I, too, support the thrust of the amendment of the noble Lord, Lord Best. I am concerned that the change-over to the new system will simply result in more delay and more expense for local planning authorities that have struggled to produce their local development frameworks—or local plans, as we may now have to call them.
My Amendment 147H is slightly different. It seeks to tackle part of the same problem, but it looks at the issue from the point of view of the local planning authority rather than from that of the regional strategy. My amendment reads:
“The provisions of this section do not affect the validity of any local development documents or of any policies contained in any local development document whether or not any such policy was adopted in order to be in conformity with a regional strategy or structure plan”—
the old structure plans were incorporated pro tem into the regional strategies, although I do not know how much of them survive. The crucial thing is that, if a local planning authority is taking its core strategy, for example, to an inquiry for examination, the strategy should not be torn apart just because those aspects of it that have been adopted in order to be in conformity with the regional strategy—or regional spatial strategy—would no longer need to be so if the local authority was starting again from scratch. Although the local authority might be able to argue that a policy is good for this reason or that reason, the true reason that a policy has been included might be in order to achieve conformity with the regional strategy. The issue is as simple as that.
Under the old system, the local authority’s approach to the examination could be to say, “It is there because it has to be there,” and that would have been the end of the argument. However, the inspector might now say, “Yes, but we have a new system now, so are you sure that this applies to your area?”. As we know, the imposition of regional policies has not always been in accord with what was desirable in a particular area, such as was the case with the old housing targets. As the noble Baroness, Lady Andrews, will remember, in East Lancashire we fought for a long time with the Government to be allowed planning permission for new housing. Because the housing targets were so low and had all been achieved, we were not allowed to give housing permission for housing that we wanted. That was a total nonsense as a result of the planning system being too prescriptive and too top-down. We were in the opposite position to that of authorities in the south-east, which were arguing against being forced to build too many houses.
However, that has all gone now. I do not know how much the noble Baroness had to do with this, but when I asked a Question in your Lordships’ House, the Answer that I got from her colleague the noble Baroness, Lady Morgan, started a process. It then took a year before what Ministers were saying here and in the Commons filtered down to grass roots, but it actually changed what was happening, and I was very grateful for that. That is very good example of how the old system did not work very well.