Infrastructure Bill [HL]

Debate between Lord Greaves and Lord McKenzie of Luton

Wednesday 5th November 2014 Lords Chamber

[Lord McKenzie of Luton]

My Lords, Amendment 95 would preclude Clause 23 coming into effect until a report had been prepared and submitted to both Houses of Parliament on the effects of the proposed transfer of responsibilities to the Land Registry. In doing so, I shall say more widely why we consider the proposals for the local land charges register to be misguided. We do not object to government Amendments 97, 98 and 99, which are yet to be moved, and we support Amendment 95B tabled by the noble Lord, Lord Greaves.

When we debated the issues of local land charges in Committee, it was very much in the shadow of a parallel proposition concerning a new delivery company for the Land Registry which was widely believed to be a step along the way to the privatisation of the service. The proposals for local land charges were seen as part of a strategy to fatten up the Land Registry to make it a much more attractive commercial proposition. However, just before our Committee deliberations, the Government announced that the Land Registry model would not be changed “at this time”. In the words of the Minister, there would be no change,

“for the rest of this Parliament”.—[Official Report, 15/7/14; col. GC 242.]

We accept this assurance, but it does not go very far; it takes us until only next May.

While our analysis of why the Government are misguided in their proposals for local land charges stands separate from this thread, we would be foolish to disregard the revival of that privatisation risk, should the coalition get its chance. We note that the departure of the current Chief Land Registrar has been announced. What can the Minister tell us about successor arrangements: does a change of leadership signal a different approach? Will the Minister share with us the terms of the job advert and whether it will be part of the role of the appointee to lead a privatised service? Is the aspiration to appoint someone with a background in the Land Registry or, like the departing chief, with privatisation experience? When is the new appointment expected to be made?

That aside, what the Minister has proposed is that, as part of acquiring wider powers, the Land Registry should take over statutory responsibility for holding and maintaining a composite local land charges register. It would be the sole registering authority for local land charges in England and Wales and the sole provider of local land charge official search results. Unofficial searches would continue as now to be provided by personal search companies. The Government’s rationale for the change includes the supposed benefits of standardisation of fees and format of results, improving processing times and our international rating for registering properties and supporting the Government’s Digital by Default agenda.

The Government have consulted on these proposals and have drawn significant opposition. This has come from the Law Society, the Chartered Institute of Legal Executives, the Local Government Association, the District Councils’ Network and the Local Land Charges Institute, as well as from private search companies from the SME sector. An important consideration is that the Government are arguing the benefits of a centralised approach, but they are actually creating further fragmentation.

Local authorities currently have responsibility in respect of two local searches— the local land charges searches and what is known as CON29. The former is divided into 12 parts and includes registering charges or encumbrances to property arising from such matters as planning conditions, Section 106 agreements, tree preservation orders, listed buildings and the like. The information on these charges is included on the register as and when the documentation which creates the charge arises. Such charges might originate in a range of council departments and it is the job of local land charges staff to update the register as soon as notified. Staff also help resolve queries where, for example, property descriptions are imprecise.

CON29 searches have been in operation for about 50 years. They are a non-statutory list of questions agreed between Government, local authorities and the Law Society. They cover a wide range of matters which may affect a potential purchaser of property, such as any pending planning applications, whether the area is about to be declared a conservation area, or if the access road is adopted. These are prospective matters which might affect somebody’s enjoyment of a property. There is no register as such but responses are provided when requests are made. Information may be held in a number of different council departments or, in the case of two-tier authorities, in different authorities.

The task of the local land charges staff is typically to peruse local information sources, including council reports, to keep abreast of developments. Local knowledge is vital and the District Councils’ Network has expressed particular concern that insufficient weight has been given to this. At present, there are 20 million entries on the local land charges register, with 65,000 changes being made each month. We also know that, for some 92% of searches, the inquiry is in respect of local land charges and CON29 searches together. The proposition is for the local Land Registry to receive updates from some 350 local authorities for incorporation on to their sole register—covering only local land charges. CON29 searches would be left as now, with local authorities. It was the intention that the Land Registry would take over both elements but, as the Local Land Charges Institute pointed out, years of trying to work out how this could be accomplished have apparently proved fruitless—unless the Minister could tell us by when these proposals could proceed. It is expected that CON29 searches will be undertaken by the Land Registry. What work is currently being undertaken to this effect?

As far as local land charges are concerned, we have no knowledge as to how often the information received from local authorities will be incorporated on to the register, the process for doing so and the format in which the information is to be supplied. What consideration has been given to data cleansing? When will there be a delivery plan for what the Government propose? What are the expected transitional arrangements in respect of local land charges? In arguing for centralisation, the Government have made much of the varying state of digitalisation of the land charges provision of local authorities. A range of different systems is apparently used by local authorities. Have all these to be standardised—presumably to a new system—before there is any transfer of the local land charges register to the Land Registry? Who is to bear the cost of this? Will it be a new burden on local authorities? Will local authorities be recompensed for investment made to date? Should they put on hold any planned new investment to digitalise their system? How is the Land Registry to cope with all this when they are in the throes of instigating complex online applications and automated processes in respect of their existing business?

The Government have also made much of the variable response times and charging arrangements of local authorities. Responding to the Government’s consultation, the Law Society stated that solicitors were broadly satisfied with the process of obtaining local land charges and other search information. They suggested that there were other issues—for example, consistent processes for discharging charges—which might be more beneficial to conveyancing arrangements.

As for lawyers’ irritation with turnaround times, they point out that the research related to the entire conveyancing process, not just the local land charge information. They say that variation in turnaround times will obviously be affected by the number and the nature of queries in each case. Of course, there will be no overall impact on turnaround times in circumstances where the later piece of the jigsaw is the CON29 process. A recent survey indicated that turnaround times for 96% of local land charge-only searches is less than 10 days, with three-quarters being returned in five days. There may be those outside this range, but surely the focus should be to help the minority of councils improve rather than turn all existing arrangements upside down. As for the variation in the level of charging, it is difficult to believe that it is the most important issue in the conveyancing process, but in any event there was a standard charge until the mid-2000s and there is no inherent reason why that could not be reconsidered for the future.

Where does this leave local authorities? The LGA expressed its opposition to this because it will leave councils with the expense of adjusting systems, breaking existing contracts and paying redundancy costs. The LGA is concerned that the longer-term cost to councils of compiling, checking and verifying data has not been properly accounted for. Of course, some local land charge staff have other duties as well, such as electoral registration, and the knock-on costs of staffing issues need to be considered. As part of this, it is planned to uplift all the existing local authority land charges register to the Land Registry for free, at a time when the Land Registry is seeking wider powers to market services. Has any value been placed on the local authority databases?

Unless there are clear plans to encompass the CON29 process into the arrangement, and there seems to be no prospect of that, all that is on offer from this proposition is a worse service and disruption to the existing arrangements. While there is always room for improvement—and the service has improved, on the testimony of those who use it and know best—why on earth fix something that is not broken and for which there is no support?

Despite the engagement of some local authorities in pilots to see the how this might work—seemingly Merton has not volunteered for this—it is obvious that there is no clear implementation plan and no comprehension of what this will mean for local authorities. These proposed changes to a vital service—vital to the health of the property market—should not proceed unless and until these matters are sorted out. I beg to move.

[Lord Greaves]

My Lords, I tabled amendments in this group on Monday. Had the noble Lord, Lord McKenzie of Luton, put down his amendment a day earlier, I would simply have added my name to that because it covers the issues.

My interest in local land registers is very recent—a matter of days. This part of the Bill was drawn to my attention by my council officers and particularly by Richard Townson, the democratic and legal services manager, who gave me a quick tutorial. I am not terribly upset that I did not become an expert in the subject a lot earlier, but needs must. I have a number of questions that the Minister may not be able to answer today, but if he cannot, I would be grateful for a reply in writing. I am aware that I should have made this speech in Grand Committee, but as I said earlier today, I was not available for House of Lords duties at the time.

The national Land Registry deals with the register of title—ownership issues—and does not go beyond that. We are told that it is run extremely efficiently and that is certainly my experience of using it. There are then local land registers that tell you that charges on a particular parcel of land exist. Those charges may be a requirement to pay money to someone, but most of them nowadays are constraints on the use of the land due to planning decisions or highways decisions.

Growth and Infrastructure Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Monday 4th February 2013 Lords Chamber

[Lord Greaves]

My Lords, I understand the reasons behind these amendments but I am a little concerned about them. As regards the second amendment, there are very good reasons why a highways authority should be able to say no to a development in some circumstances if it considers that it would be unsafe and that to allow it to go ahead might cost lives or cause people to be injured. There are very good reasons for that power.

Of course, you can speed up the whole planning process very easily by abolishing it and letting people do what they want. The reason why the planning process exists and there are lots of obstructions in it to people doing exactly what they want as quickly as they want is because it is in the interests of society in general that planning should take place and that development should be controlled and organised in a way which is best for society. Nevertheless, it is perfectly proper to argue generally where the balance lies as regards the making of plans and individual applications.

The Environment Agency does not have a power of veto in relation to drainage but a lot of planning authorities will think very carefully indeed before going against the advice of that agency on matters relating to drainage. They will spend a lot of time talking to it to try to find an acceptable way through—a compromise—in a particular case.

I think that a lot of unintended consequences could flow from the first amendment in this group and that it has to be thought about very carefully indeed.

[Lord McKenzie of Luton]

My Lords, we await the Minister’s response on these amendments. I am bound to say that I have some sympathy with the point made by the noble Lord, Lord Greaves, about the second of the amendments and the need to have specific powers in some circumstances: for example, in the case of a highways authority. Presumably, that authority cannot exercise those powers in an arbitrary way. I should have thought that it had to be subject to a test of reasonableness.

The only point I would make on Amendment 81CA is that it seems to be a clear recognition of the fact that delays on the part of a local planning authority are not always or only the fault just of the local planning authority; it relies on others to play their part. That is why we will come back to Clause 1, which we wish to delete from the Bill.

Growth and Infrastructure Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Monday 28th January 2013 Lords Chamber

[Lord Greaves]

My Lords, I do not think that in this Committee we want to go too deeply into free schools and whether what the noble Lord just said is true or whether other factors are involved and to what extent. Free schools exist and, whether some of us like them or not, they are part of the system now. I am not in any way arguing about that in this Committee because I do not think that it is our business. What seems to be happening, however, is that in certain circumstances, when a proposal for a free school comes forward, whatever the instigation or motivation for it, the Secretary of State is saying that the normal planning system will not apply for at least the first 12 months. That is the problem.

I believe that the two Secretaries of State are clearly in cahoots over this, although people might want to use a slightly less emotive term than “in cahoots”. They are, perhaps, working together across departments, which some of us sometimes complain they do not always do. Nevertheless, they are clearly doing this and saying that in those circumstances the planning system will be set aside. That is obviously what is being said. If I want to set up a free school and Mr Pickles thinks that my free school is a good idea, I will not have to get planning permission before it opens. In the circumstances of a school, with children being educated and with the potential effect of a school on the local community, pushing aside the whole of the normal planning system seems to me to be outrageous.

[Lord McKenzie of Luton]

My Lords, I am grateful to the noble Lord, Lord Greaves, for his support for this amendment and to my noble friend Lord Beecham. When I drafted this amendment it was with a much more innocent approach than has appeared from this debate. It was simply looking at the wording and the disparity between change of use and physical development. However, given the debate that has just ensued, I am very glad that I drafted it. We have yet another example of something that runs through this Bill—an anecdotal approach to a perceived problem in the planning system, with the answer being to circumvent that planning system to deal with it. The issue is not the existence of free schools but their location, and why the normal planning process is not to be applied to that. Although this was a gentle, probing amendment, which I thought we might pass over swiftly with a clear explanation from the Minister, we have opened up something here that we will return to on Report, as well as having some wider debates about permitted development on amendments that come later in the Bill, as we try to remove some of the centralist approach that applies to those amendments and make sure that the local voice is heard.

Growth and Infrastructure Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Monday 28th January 2013 Lords Chamber

[Lord Greaves]

My Lords, Amendment 57A introduces a new clause. Its purpose is to probe further into the future of planning obligations, and particularly the future of Section 106 agreements and their relationship to the community infrastructure levy, otherwise known as CIL. I am aware that I am continuing with what I said when the CIL regulations came out in 2010 and probably going even further back to the Planning Act 2008.

This is a probing amendment about incredibly obscure and esoteric things. I apologise to members of the Committee for introducing them at this time of night but I think they are important. I have attempted to understand the position but I cannot. That may be due to a lack of information, a lack of understanding or even a lack of intelligence on my part. If I cannot understand, I hope that the Minister can explain what is going to happen so that at least we can assess whether it will be satisfactory.

The future of Section 106 comes from paragraphs 122 and 123 of the CIL regulations 2010. They come from concerns that in some areas the substantial transfer of planning obligations to CIL from Section 106 will not be satisfactory, not least because CIL itself will not yield very much, if anything at all. It is perhaps a minor pending disaster in those parts of the country which are not very prosperous, where property and land values are not very high, and CIL levies may not be possible at all.

Paragraph 122 of the regulations puts a limitation on Section 106 planning obligations which in future must be,

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

“(b) directly related to the development; and

(c) fairly and reasonably related in scale and kind to the development”.

This has already happened and it means that Section 106 is more restrictive than it used to be. Paragraph 123 brings in further limitations and sub-paragraph (2) states that Section 106 obligations,

“may not constitute a reason for granting planning permission … to the extent that the obligation provides for the funding or provision of relevant infrastructure”.

I am paraphrasing to some extent but reading from parts of the regulations. Sub-paragraph (3) says that it,

“may not constitute a reason for granting planning permission to the extent that …

(b) five or more separate planning obligations … within the area of the charging authority; and

“(ii) which provide for the funding or provision of that project, or type of infrastructure, have been entered into before the date that obligation A was entered into”.

In other words, within a planning authority there will be a limit of five within each category of types of projects of Section 106 agreements. This rather oddly applies no matter what size the planning authority may be. The definition of infrastructure is related to the authority’s list of types of infrastructure that may be funded by CIL. The intention is that these new restrictions under paragraph 123 will be introduced in April 2014.

I have various questions for the Minister which I will put on record. I am quite happy for replies to these in writing because they are fairly technical, although they may just show my lack of understanding. After April 2014, how will the five-project limit work? Is it the same for large authorities and small ones? What type of project will be allowed for Section 106 obligations after April 2014 and how will they vary from what they are now? Do these restrictions cover all Section 106 agreements and do we assume that the council concerned has agreed to and has examined a CIL scheme? What is the position if a CIL scheme has not been agreed to, as in certain financial environments in less prosperous areas it may simply be impracticable? My advice is that in areas such as east Lancashire, it is not likely to be possible within the next four years.

How will viability, which we have discussed in the Committee today, affect all this? Does all this have any relationship at all to the Section 106 affordable housing agreements, and that whole agenda we have been talking about? What is the definition of infrastructure? Are there other Section 106 possibilities connected to an application that are neither housing nor infrastructure? When we discussed this earlier, the Minister said that not all authorities have yet got CIL schemes in place. It would be interesting to know what proportion of authorities already have CIL schemes in place, where they are, and, therefore, which authorities do not have them.

All this seems very complicated, and that may be because I do not understand it. It may all be crystal clear when the Minister explains it, but if I do not understand it then maybe one or two other people in the country do not, even those involved in the planning system. We need to get this sorted out. If the system that we have, and the changes which are going to take place, are simply not going to work or be satisfactory, then the Government need to look at it again. I beg to move.

[Lord McKenzie of Luton]

My Lords, not for the first time, we are indebted to the noble Lord, Lord Greaves, for a list of incisive and important questions. I simply ask that the Minister will copy the reply which I hope he will commit to give to the noble Lord, Lord Greaves, to others so that we can have it in good time for subsequent sittings.

[Lord Ahmad of Wimbledon]

My Lords, I am grateful to my noble friend Lord Greaves. He does himself an injustice in describing himself as not understanding issues to do with local authorities and planning. I certainly always learn a great deal from his contributions, as I have again today.

My noble friend’s amendment would remove the statutory tests for the use of planning obligations, the effect of which would be to return to a much broader use of Section 106. These statutory tests were introduced by the previous Government. Their purpose was to scale back the use of Section 106 so that it must be necessary, proportionate and directly related to the development in question. In these times of market uncertainty, it seems absolutely right that Section 106 is used to mitigate the impact of developments and no more.

The second purpose was to ensure that Section 106 could operate alongside the community infrastructure levy in a fair way. I remind the House that the community infrastructure levy was brought in to provide a transparent, non-negotiable and fair charge, addressing many of the concerns around the operation of Section 106. At this late hour, I will write on the specific question my noble friend raised about how many local authorities are already within this. Of course, as the noble Lord, Lord McKenzie, has asked, I will ensure that I copy that letter to all who have taken part in this debate.

The levy continues to be the Government’s preferred mechanism for collecting contributions to infrastructure. The scale-back of Section 106 sits alongside the roll out of the levy and prevents developers being charged twice for the same item of infrastructure. The effect of this new clause would undermine this, causing a dual system, which would serve to confuse; I am sure that that was not my noble friend’s intention. We therefore do not support the inclusion of this new clause which would undermine the progress that we are making with the community infrastructure levy. I hope that my noble friend is willing to withdraw his amendment.

Growth and Infrastructure Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Tuesday 22nd January 2013 Lords Chamber

[Lord McKenzie of Luton]

My Lords, we have Amendments 36 and 37 in this group, which I shall come to in a moment. If I may respond directly to the noble Lord, Lord Tope, he said that the Bill is not as bad as it seems. We may part company on that proposition but I think that we share company in wanting to mitigate its worst effects, if we cannot get rid of it in its entirety.

As regards Amendment 1 and the 18 months’ prior notice, certainly the thrust of this amendment is one which we can support, although it begs the question of the criteria for designation. However, I know that we are going to come to that point in due course.

As proposed in the consultation document, a designation would follow automatically from the criteria. The first is planned for October 2013, based on performance data for 2011-12 and 2012-13. On this basis, an 18-month lead time would mean designation in January or April 2015—not necessarily a bad thing if the authority has to wait that long. Obviously, the 18-month notice would give it time to improve its performance, but there would be only one more year of performance data. Some process of representation on improvements is needed, and we have amendments to cover this.

Amendment 36 requires the Secretary of State to,

“serve a notice of intention to designate”—

a parallel proposition—and for the local authority in question to have the chance to make representations as to,

“why designation would be inappropriate”.

We should be clear that our preference would be for the clause not to proceed at all but, if it does, it has to have a range of necessary safeguards built in.

It is the Government’s expressed intention that designation will be automatic following publication of the statistics relating to speed of determination and levels of successful appeals, although there will be an opportunity in year one to correct gaps or errors in the existing data. It is accepted that this would have the merit—if one could call it that—of providing information to authorities on how close they were to being designated, but this approach would not impact all authorities equally, which is why we consider that the opportunity to make representations should be allowed. This might be particularly important for smaller districts where the numbers of applications for major developments might be quite small. Indeed, we received some data a short while before Committee today. I do not know if all noble Lords received it, but some authorities in the year to March 2012 received as few as two major applications to deal with. Others received more than 160. Therefore, this process will not impact on all authorities equally. One or two applications might have a significant impact on an individual authority’s metrics and the circumstances may be outside its control. The delay may be down to the applicant or consultees; indeed, if problematic applications are in the pipeline, someone might try to game the system to push an authority towards designation. The delay might also be down to community issues. Applications relating to Gypsy and Traveller sites seldom go through on the nod.

Amendment 37 requires the Secretary of State to bring forward an improvement programme before designation can take place. This is an alternative formulation to that in the amendment of the noble Lord, Lord Tope. The programme could be a sector-led improvement or a combination of processes to ensure that local authorities have the opportunity to improve. However, what we must be clear about is that the clause cannot stand in its current formulation, and we need, one way or another, a range of the sort of protections that are dealt with in these amendments.

[Lord Greaves]

My Lords, this is the first day of Committee and a new stage; according to the rules, I therefore need to repeat the declarations of interests that I made at Second Reading. I remind the House of my membership of a local planning authority and of two development management committees. I am also a vice-president of the LGA.

I have tabled Amendment 32, to which my noble friend Lord Tope was good enough to put his name, whereby if the Government wish to designate an authority they should set out a notice of intention to do so. There is agreement across the amendments in the group that this is a good idea. I have tried to flesh out the broad principle set out in the lead amendment and some others. My amendment states:

“Before designating an authority under this section, the Secretary of State must serve a notice of intention to designate … The notice must … specify the reasons for serving the notice, all of which must have regard to the criteria that the Secretary of State has published”.

It should,

“specify those actions by the authority which the Secretary of State believes are necessary to satisfy the reasons for serving the notice; and … give the authority a period of twelve months in which to take the specified actions”.

Whether the period should be 12 months is debatable but I took the view that the Government would not want it to be too long. The amendment continues:

“At the end of the twelve month period, the Secretary of State must publish a report which sets out the extent to which the reasons for serving the notice still apply or no longer apply”.

At that stage, the Secretary of State may confirm the designation and take over relevant planning applications or withdraw the designation because, in his opinion, the authority has pulled its socks up, or he may give the authority another six months in which to do so.

It seems to me that this whole process, for the first time, takes away planning powers from local planning authorities and vests them in the person of the Secretary of State on the basis of alleged or perceived poor performance by a local planning authority. This is quite new and the process needs to be absolutely transparent. People need to understand why the decision is being made and how the situation can be remedied.

Like other noble Lords, I would much prefer this provision to be taken out of the Bill. However, if it is going to be there, there needs to be a clear choice between a degree of perhaps heavy-handed, detailed intervention in the running of an authority to sort out the problem and the draconian and complex process of an almost immediate central takeover of some of the development management functions of that authority. Surely the first of those must be the way forward. However few of these authorities there may be, the Government are proposing to nationalise some of their planning functions. It is interesting that a Government with a majority of Conservatives are sometimes so interested in nationalising things which up until now have taken place at a local level.

The amendment puts forward a gentle nutcracker, not a sledgehammer, if there is a nut to be cracked, and I hope that something along these lines will find favour with the Government. In particular, even if they do not want to put something on the face of the Bill, I hope that they will give very clear commitments along the lines of the amendment in the name of the noble Lord, Lord McKenzie of Luton, so as at least to give authorities the right to defend themselves and to explain what they can do, and also to give them a period of time in which to improve their performance so that we do not have to go through this rather draconian and undesirable rigmarole of the Planning Inspectorate—bless them—taking over detailed local planning functions.

--- Later in debate ---

[Lord Greaves]

My Lords, very briefly, I welcome what I think is a positive response from the Minister about local authorities not being put in a perilous position for reasons which are not their fault. I accept that my amendment was a typical Committee amendment to set out some of the issues in black and white; I did not expect it all to appear in the Bill. However, the point made by the noble Lord, Lord Deben, was that at the moment there is nothing in the Bill. If something can be included in the Bill to give me some reassurance and guarantee that the thinking—I am always in favour of thinking; it is what makes humans progress—that the Minister promised will take place on these matters, that would be extremely helpful. That could be by introducing regulations.

The only other pebble that I want to drop into the pond at the moment is to ask whether there is a danger that by emphasising formal planning performance agreements for major applications, the mere negotiation of those agreements in a much larger number of cases might cause more delays.

[Lord McKenzie of Luton]

My Lords, like the noble Lord, Lord Greaves, I take a small degree of comfort from the Minister’s response to considering reports on parliamentary process. That is the most important point to flow from this group of amendments. I am sure that the noble Baroness will be well aware that if the Government do not signal that they can meet our aspirations, we will return to that matter on Report in any event.

It seemed to me that pretty much every other noble Lord who spoke broadly supported this group of amendments. To be clear, we are happy to support each of Amendments 8, 34 and 33—I think that I attributed Amendment 34 to the noble Lord, Lord Greaves, but it was tabled by the noble Lord, Lord True—as well as our amendments in the group.

I am disappointed that the Government do not feel that they should look at the direction of travel of an authority, because it seems to me that that is at least an indication of its capacity to improve, which is what this should all be about. The noble Baroness referred to Secretaries of State and asked what is to stop them changing the criteria in future. As I understand it, the point about the consultation is that there is a positive plan to change it after the first year—to raise the bar. That is what the consultation document states. It asks questions about what the enhanced criteria should be.

On the need for more guidance and clarity, the noble Earl, Lord Lytton, gave us an historic sweep from county structure plans through to the NPPF and, in particular, the NPPF’s need for guidance to bolster it, especially given its newness.

I thought that the amendment tabled by the noble Lord, Lord Greaves, was particularly helpful. Not only does it demonstrate his now acknowledged expertise and practical understanding of what happens in authorities; it sets down a range of things which could impact on how the metrics come out for any local planning authority. It must surely be right that, one way or another, those are taken into account. It would be difficult to carry them all in a clear way within the Bill. However, either there has to be some process of representation so that local authorities in danger of being designated, armed with what has actually happened on their patch, could come and say “Don’t do it”, or we need to have some real clarity in guidance about this range of issues being taken properly into account.

This debate has, I hope, moved matters on. I hope that the Government will reflect seriously on this because if this clause is to go ahead—we hope that it does not but suspect that it might—we need to make these improvements and have some clear indications of how that might be accomplished. Having said that, I—

--- Later in debate ---

[Lord McKenzie of Luton]

My Lords, under new Section 62A, an applicant can bypass the local planning authority and make an application directly to the Secretary of State. As a practical matter, it is expected that this means it will be dealt with by the Planning Inspectorate, although it does not have to be the Planning Inspectorate, as I understand it, to which the Secretary of State delegates this task. To be able to do this, the local planning authority in question must have been designated and the development in question must be of a description prescribed by the Secretary of State. The prescription is by way of an order subject to the negative procedure. This amendment seeks to clarify in the Bill that the application must relate to a major development. I think the noble Lord, Lord Greaves, has a parallel amendment requiring that before prescribing any types of application there should be consultation with local government and that the regulations should be affirmative.

The power for the Secretary of State to decide which applications he wishes to determine is very wide. The Government state that it will be limited to applications relating to major developments, but the Bill places no such limitation on the power to prescribe, just as the Bill places no limitation on the type of planning authority that might be designated. This is frankly not good enough. This is in line with the other discussions we have had. Indeed, as matters stand, there seems to be nothing to prevent a local planning authority being designated because of perceived poor performance on the timing of decisions on major applications but all its applications being open to be determined by the Secretary of State.

We are encouraged to believe that there will not be many applications that, as a result of these proposals, find themselves being determined by the Secretary of State or the Planning Inspectorate, but the impact assessment states that there is no evidence to support the Government’s assumed diversion to the Planning Inspectorate.

Limiting the rights of prescription to applications for major developments would still potentially encompass a wide range of circumstances. The definition of a major development is interesting and worth reflecting on. It includes,

“the winning and working of minerals or the use of land for mineral-working deposits … waste development … the provision of dwellinghouses where … the number of dwellinghouses to be provided is 10 or more; or … the development is to be carried out on a site having an area of 0.5 hectares or more and it is not known whether the development falls within sub-paragraph (c)(i)”—

that sub-paragraph relates to the number of dwellings—-

“or … development carried out on a site having an area of 1 hectare or more”.

Therefore “major developments” are not necessarily mega-developments. Developments as small as 10 or more dwellings would be included.

It is appropriate that we make clear that it is major developments that can be designated for this process by the Secretary of State, and that there should be a proper parliamentary process to deal with that. I think that accords with the amendment tabled by the noble Lord, Lord Greaves, which we expect to be able to support. I beg to move.

[Lord Greaves]

My Lords, as the noble Lord said, I have tabled an amendment with exactly the same effect as his; I will therefore not repeat what he said. “Major development” means to me those applications which automatically come to committee in our authority. I can confirm that some of them are not all that major, but they are nevertheless important in the community and the area. We need to be absolutely clear about this.

While I am on my feet, we have been talking about 13 weeks on major developments. Can an authority be designated because it is failing to meet the 30% on non-major developments in relation to the eight-week timescale for dealing with applications? It would be rather odd if it was designated because minor applications were not being dealt with within eight weeks, but major ones then got sent off. I wonder if that can be clarified.

--- Later in debate ---

[Lord Greaves]

My Lords, this amendment is about connected applications, which are dealt with in Clause 1(3). I also have Amendment 12 in this group, and there are two amendments from the noble Lord, Lord McKenzie.

Connected applications are those where a local planning authority has been designated so that major applications, we now learn, can be made to the Secretary of State and not to the authority. Where a major application goes to the Secretary of State and a further application is then submitted that relates to the relevant application, it is called a “connected application” in the Bill. Clause 1(3) states that a connected application is determined as such by the opinion of the applicants. This may be made direct to the Secretary of State, or it could be made to the local planning authority. The Bill states that this applies to listed building consents and applications for conservation area consent, which are applications under the Planning (Listed Buildings and Conservation Areas) Act 1990, or, and this is the question behind my amendment,

“an application of a description prescribed by the Secretary of State”.

This is a probing amendment to find out what kind of applications might be prescribed by the Secretary of State which are not among those set out in the Bill. For the life of me, I am not quite sure that I can think of what they might be. No doubt the Minister can tell us.

Where does the applicant get advice on whether a connected application is connected before submitting it? Does that advice come from the local planning authority? In particular, where do applicants go for pre-application advice before they know whether the application has been accepted by the Secretary of State as a connected application? Clearly, if an application is submitted to the Secretary of State and then rejected and sent back to the local authority because it is not connected, it might well cause further delays.

Amendment 12 refers to Clause 1(4). If the Secretary of State has an application submitted as a connected application but considers that it is not connected, what happens? The Bill says that the Secretary of State “may” refer it to the local planning authority to determine. Mine is a traditional, old fashioned may/must amendment and says that he “must” send it back to the local authority. Under what circumstances might the Secretary of State presumably decide to determine it himself, or through the Planning Inspectorate? The Bill does not actually say that that is what would happen, just that he “may” send it to the planning authority. That needs clarifying. In particular, how come an application that is not connected should nevertheless be dealt with by the Secretary of State? These are probing questions to tidy up and understand exactly how the Government think that this would work. I beg to move.

[Lord McKenzie of Luton]

My Lords, we have Amendments 11 and 17 in this group. Amendment 11 refers to circumstances where a connected application is made to the Secretary of State. It would clarify that the Secretary of State will be responsible for ensuring that all statutory requirements which a local planning authority or hazardous substance authority have to meet will be met by the Secretary of State. Perhaps the Minister can confirm that.

Amendment 17 is very much along the same lines as that pursued by the noble Lord, Lord Greaves. It would bring some clarity to the boundaries of what counts as a connected application. The Bill clearly includes listed building consent and conservation area consent, but otherwise means,

“an application of a description prescribed by the Secretary of State”.

This prescription will presumably be via some parliamentary process. Our amendment would require a consultation to be held. However, the particular purpose of the amendment, like the probing amendment of the noble Lord, Lord Greaves, is to get more on the record concerning the Government’s approach to this. It is understood that this may be driven, at least in part, by the Penfold review, but that was looking at non-planning consent, so I am unsure how that would fit; indeed, some of the other recommendations of the Penfold review are being carried forward in the Bill. Can the Minister say whether anything is in contemplation under Clause 1(3)(a)(ii)?

We support Amendments 10 and 12 in the name of the noble Lord, Lord Greaves, which would make it mandatory to refer a non-connected application to a relevant planning authority or hazardous substance authority. If it were not mandatory, I am not sure where it would go.

[Baroness Hanham]

My Lords, I need to start by explaining why we have made provision for connected applications in subsections (3) and (4) of new Section 62A to be inserted in the Town and Country Planning Act 1990 under Clause 1. In the few cases where a planning application is submitted directly to the Secretary of State—that is, at the behest of the developer—it is important that if there are any other consents that need to be obtained under the planning Acts, and which are directly connected to the scheme concerned, it makes sense to have the ability for them to be considered by the Secretary of State at the same time. That would be a normal planning process. This is not a hidden provision that would allow an expansion in the use of Clause 1 by the back door but a common-sense measure to minimise bureaucracy and to streamline the process.

We have not sought to specify every single consent that could conceivably fall into this category but have instead cited the principal ones and given the Secretary of State the ability to prescribe any additional consents that may need to be dealt with in a similar way, which might include, for example, hazardous waste, advertisement consent or tree preservation order consent. There probably are some others but those would be the main ones.

This is a common approach in legislation, which avoids the Act becoming unnecessarily detailed and complicated. In practice, it will relate just to a small number of applications and consents that are required only occasionally, and which are, additionally, limited to consents required under the planning Acts and not under any other legislation. Nor is there any need, as Amendment 11 seeks to do, to say in the Bill that in dealing with such applications the Secretary of State should comply with relevant statutory requirements. We will ensure through the secondary legislation that all statutory requirements apply, whoever the decision-maker is.

Amendment 17 seeks to make decisions about the submission or transfer of connected applications subject to published criteria. Once again, I do not think that placing such a requirement in the Bill is at all necessary. It usually will be a matter of common sense as to whether a particular consent is “connected” or not. Therefore, we do not need to add to the mountain of planning guidance that already exists. Indeed, as noble Lords will know, the Government are undertaking a radical streamlining of the planning guidance under the noble Lord, Lord Taylor. He probably would not welcome our adding any more to his work.

I can deal quite briefly with Amendment 12, which, as the noble Lord, Lord Greaves, has said, concerns the language—we have discussed this on many occasions as regards many amendments—and whether it should say “may” rather than “must”. However, this is consistent with the Town and Country Planning Act 1990, which is the legislation that this clause would amend. This is a matter of drafting convention that we should respect. The noble Lord, Lord Greaves, asked me where the advice would come from and whether an application is connected. We would expect that that would be covered in any pre-application discussions either at the time the application was moved to the Planning Inspectorate or initially.

I would like to reassure noble Lords that there is absolutely no question of the Secretary of State holding on to a “connected application”, should it be found to be unrelated—unconnected—to the planning application that he is considering. There would be no reason for him to do so and it clearly would not be at all sensible. I hope with those explanations that the noble Lord is willing to withdraw the amendment.

--- Later in debate ---

[Lord Greaves]

My Lords, Amendment 13 and this group of amendments are about money and the extent to which local planning authorities will be recompensed for work that they do which is related to applications that have been referred to the Secretary of State as relevant applications. Amendments 14 and 23 in this group also stand in my name and other amendments in the group stand in that of the noble Lord, Lord McKenzie.

Amendment 13 is an even more classic traditional amendment, which seeks to leave out “and”. However, the grouped Amendment 14 is rather more significant. It also concerns connected applications. If somebody lodges a connected application with the Secretary of State and the latter, after due consideration, decides that it is not a connected application and sends it back to the local authority—as the Minister assured us would happen when we discussed the previous group of amendments—what happens to the fee that has been paid when that application was lodged and submitted? Is that fee returned with the application to the local authority or is it returned to the applicant and the latter is told to make a new application with an appropriate fee to the local planning authority? This is a technical issue but one that needs to be cleared up.

Amendment 23 refers to Clause 1(6), which, again, is where the Secretary of State takes over an application as a relevant application from a designated authority and gives directions,

“requiring a local planning authority or hazardous substances authority to do things in relation to an application made to the Secretary of State under this section that would otherwise have been made to the authority; and directions under this subsection—

(a) may relate to a particular application or to applications more generally; and

(b) may be given to a particular authority or to authorities more generally”.

One can imagine that it is most likely to happen in the case of the local planning authority which has been designated and which will still be in existence. As lots of local work has to take place, perhaps on consultation or whatever, that authority is instructed by the Secretary of State, no doubt after discussions, to carry out that work. It seems to me that this is a perfectly reasonable way in which the new system might work: namely, that the planning inspectorate has somebody dealing with applications in a particular authority, but dealing with them through that authority’s staff. Perhaps this would be a way of giving support and training to help that authority become more efficient.

In an extreme form, one might imagine the Planning Inspectorate putting its own man in the town hall and that person handling those applications with the help of the council’s staff. It would be interesting to know whether the Government are considering that scenario in relation to designated authorities and relevant applications or whether they will try to run all this—all the local consultation and all the rest of it, including the fact-finding on the ground—through somebody based in Bristol, presumably living in a local hotel for the duration. It would be interesting to know how the Government see this working.

Whatever happens, if the local authority has to do work in relation to an application for the Secretary of State and the Planning Inspectorate, it will cost money. However, the fee for the application will have gone to the Secretary of State. Therefore, my proposed new subsections (6A) and (6B) suggest ways in which an appropriate amount of that money should be handed over to the local authority to enable it at the very least to cover its costs. Otherwise, we will have a poorly performing authority, on the Government’s criteria, which may be robbed of its major source of planning income—the major applications—and is struggling to keep going with its staff. It is very difficult to downsize an authority by, say, 20% if you have only three planning staff. How will this work? How will the Government ensure that authorities are not severely financially affected by being designated? I beg to move.

[Lord McKenzie of Luton]

My Lords, we have Amendments 20, 21, 22 and 24 in this group. Amendment 24 simply requires the Secretary of State to reimburse the local authority any costs it incurs,

“in carrying out directions given under subsection (6)”.

From that point of view we are being somewhat more ambitious than the noble Lord, Lord Greaves, who is simply looking to share the fee.

In Committee in another place, the Minister was taken to task over the rather strange wording of this provision under which the Secretary of State can give a local authority or hazardous substances authority a direction to do things in relation to an application. Such a loose and potentially open-ended obligation obviously gives rise to uncertainty about resources and costs. Later amendments require that there must be set out in regulations the range of responsibilities which can be imposed on a local authority under these provisions. The Minister in the Commons prayed in aid the planning performance and planning guarantee consultation, which has been much referred to this afternoon. As we have discussed, that consultation has now ended. We may know the outcome by the time we get to Report. The consultation suggests that a small number of administrative functions will need to be carried out locally, including: site notices and neighbour notification; providing the planning history of the site; and notification of any cumulative impact considerations, such as where environmental impact assessments or assessment under the habitats regulations are involved.

The local planning authority would remain responsible for maintaining the planning register. The discharge of any planning conditions would remain the responsibility of the local planning authority. If this is the range and type of functions envisaged, they should be clearly set out and subject to some process. At the very least we need something clearly on the record but the Bill is much more open-ended than this and needs to be constrained.

As for reimbursement of costs, I anticipate that the Government’s response will remain that planning fees will go to the Secretary of State or the Planning Inspectorate and there will be no need for any sharing of these. The logic seems to be that as planning is a loss-making activity for local authorities, notwithstanding the recent increase in fees, they will be relieved of this loss and in any event are funded by way of grant for these activities. Will the Minister update us on the position of grant support for local authorities under the current government settlement, given the draconian cuts that they have endured?

Amendments 21 and 22 seek to make sure that the authority which can be instructed “to do things” is in fact a designated authority and that the applications concern designated authorities. I seek clarification on that point.

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[Lord Greaves]

My Lords, there used to be something called the planning performance grant, but my understanding is that it had been abolished. I do not know if any answer on that will be forthcoming, but it would be helpful.

Local authorities will have this extra cost because their income from planning applications, particularly major applications, will decrease or be taken away. The authority will therefore have no choice but to attempt to downsize its planning department. However, downsizing a small department and saving money is not always easy because the authority may have staff in whole numbers and it may not be possible to split them up into part-time staff. The authority may have to choose, if it has four development control staff, to get rid of a whole person. That may be more of a reduction than is reasonable for the continued efficient operation of the department. Who knows? All circumstances may be different but it is ambitious for the Government to suggest that costs will be minimal.

In addition, confining the department to performing basic administrative tasks simply may not be possible in reality because, with the best will in the world, the Planning Inspectorate will as much as possible want to tap into local information and knowledge, which will reside within the local planning department; there is no doubt about that. Is the idea that the department will perform only a few administrative tasks and that staff will not receive telephone calls, e-mails or whatever asking for more information? When you are dealing with a major planning application, all the time you are seeking lots of information from lots of sources, and some of it will be ambiguous and you will want to know its planning history. You will therefore go to the local planning officers to get that information. That will inevitably take up their time and some of the resources of the local authority. The idea that the local authority planning officers simply bang up a few notices on site or put them in the local paper is utterly unrealistic. They are going to get involved because it will be in the interests of the Planning Inspectorate that they do so; and that will be the way to get a good, quick and efficient decision. The inspectorate should not have to seek information from scratch when it is there within the local planning department. That will happen all the time and it will cost money. We may continue to talk about this and—

[Lord McKenzie of Luton]

Before the noble Lord withdraws the amendment, perhaps I may follow his point about the extent of the engagement of the local planning authority, which is important. He has opened up some real questions. As I understand it, the planning authority will still be able to—it may be expected to—make representations to PINS or the Secretary of State about a particular application. The authority would presumably want some public engagement to be able to formulate its views. Are those activities that the local authority will have to carry out in addition?

The consultation document makes reference to Section 106 negotiations, which it seems to suggest will not be dealt with by the Secretary of State or the planning inspector and will go back to local authorities. There was also the suggestion that such negotiations are carried out at the end of the process. I am not hugely familiar with some of the detailed processes of Section 106 negotiations but I wonder whether they always happen at the end or along the way as part of the application. There seems to be other potential activity that the local planning authority will, of necessity, be involved in.

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[Lord Greaves]

My Lords, I shall speak also to Amendments 30 and 31. Again, the noble Lord, Lord McKenzie, has amendments in this group.

These amendments concern information and publicity. They are about notification, consultation and the treatment of representations. I think that all those things fit together neatly because they can potentially cause a considerable amount of confusion and difficulty locally in particular. The question is: how are all these matters going to be dealt with when a relevant application goes to the Secretary of State? It has been suggested that some of them might be dealt with by the local planning authority, and that needs to be clarified.

Amendment 15 is a specialised but important amendment. It concerns the current practice of the notification of planning applications to parish and town councils so that they can put in their two pennyworth—or perhaps more—in the local consultation process on those applications. I am grateful for support on this amendment from not only my noble friend Lord Tope but the noble Earl, Lord Lytton.

The amendment states that paragraph 8 of Schedule 1 to the Town and Country Planning Act 1990 will apply to relevant applications determined by the Secretary of State. This is slightly odd because most of the consultation rules for planning applications are set down in secondary legislation. However, this one appears in the schedule to the primary legislation—the main Act—and it sets out the rules for notification to parish and town councils of planning applications and any significant amendments to planning applications. It is a procedure that is well established and well understood, and it happens because it is in the legislation. Local planning authorities are geared up to do it, and it is obviously now easy enough to do so with electronic communications. It is absolutely vital that the Secretary of State is given the same duty. Given that this duty lies on the face of the 1990 Act, it seems sensible also to put the duty on the Secretary of State into this Bill and not simply to rely on promises, assurances and so on.

The remaining amendments refer to publicity; consultation, including with statutory bodies; the period for receiving representations; and the procedures for making representations. They say that the procedure for applications which are dealt with by the Secretary of State should be the same as that for applications which are dealt with by the relevant designated local planning authority. Some local planning authority applications may still be major applications that people have preferred to submit locally, and some will be relevant applications that go off to the Secretary of State. The important principle is that all the bodies consulted should be the same in both cases. In most cases they will be because most of the consultees are statutory. For example, there is the local highways authority and the Environment Agency and so on, and they have to be consulted, but practice varies in different areas. In some, local organisations will be consulted because of local circumstances—for example, the internal drainage board. One can imagine all kinds of local bodies that the local planning authority has decided at some stage are important enough locally to be added to the list of consultees, and so the consultation goes off automatically with all the rest.

It is very important that the system and the list of bodies is the same as it would be if the local authority was dealing with the application, even if it is the Planning Inspectorate that is involved. People need to know where they stand; they get to know the system and it ought to be the same.

A further part of this amendment refers to the rights of ordinary members of the public—citizens—to make representations about planning applications. It might be a big application and they might have strong views on how it might affect their area or their town, they might be in favour of it because of the extra jobs, or they might be against it because it is being built in an area that they value. In every area, there is a system by which people can put forward their views; it varies from council to council because councils over the years have brought in different ways in which people could make representations. In particular, in some areas, people have the right to make representations in person to the decision-making body—the committee which has responsibility for determining applications. If that right is to be taken away, or other similar rights are to be taken away because the application is being dealt with by the Secretary of State nationally, at the very least, that is not going to go down very well in those areas. It is unnecessary and a publicity own- goal. It means that the Planning Inspectorate has to make some arrangements whereby people can make representations direct to the planning inspector who is primarily dealing with this application. If that does not take place, then there is a dysfunction between the rights that people have—the rights in the general sense—and the rules that apply to the way in which they can put forward their views on planning applications in an area.

Amendment 31 is related to the ability to inspect documents. Again, there will be a system locally and people will know what that system is. They will know that if they want to inspect documents, they have to go to the town hall or perhaps the local library, or wherever it is. The council may have district offices where relevant planning applications in an area are provided. It is very important, if this system is to work smoothly, that people can find the applications in the same places, under the same terms, even though the application is being made to the Secretary of State and not to the local planning authority.

Nowadays, a lot of people look on the internet for this information, so it is important that whatever system there is locally, access to information on the internet—including all the planning documents related to the application—applies to a planning application made to the Secretary of State. This must not be on some obscure website that people cannot find because it is a government website hidden away somewhere when they are used to finding local planning applications on the local authority’s website. It can be made perfectly clear who is making the decision on the application—who is determining it—but the information provided to the public needs to be provided in the same places and in the same way as it would if the application were being dealt with locally. I beg to move.

[Lord McKenzie of Luton]

My Lords, we have Amendments 16 and 18 in this group; I will start in reverse order with Amendment 18. This requires the Secretary of State,

“to ensure that there has been adequate consultation with the local community”.

Both of these amendments were pursued as amendments in Committee in the Commons.

The consultation document, hot off the press at that time, acknowledges that the planning committee stage obviously will be denied these processes. It is at this stage that the merits of any proposal would generally be considered in public. However, in a case which circumvents the local planning authority, it seems that the process for engaging with the local public will be left to the Planning Inspectorate to determine on a case-by-case basis. The presumption is that applications will be examined principally by written representations, with the option of a short hearing to allow the key parties to briefly put their points of view. These strictures do not seem to be supporting community engagement in a very fulsome manner. Is it not likely that, given a choice, a developer with a potentially unpopular development plan will opt for circumventing the local planning authority?

Evidence given in another place stresses the point that local communities will become increasingly reluctant to accept new developments if their voices are not to be heard. The tasks which the Secretary of State will delegate to the local planning authority may include site notices and neighbour notification, but there is no mention of a wider consultation—the very detailed points that the noble Lord, Lord Greaves, has just reviewed. Site notices on a lamp post are no substitute for a proper consultation—the interaction with local communities which frequently leads to changes in applications for the better, both for the community and for the developer, and helps drive quality decisions.

Written representations are not the preferred means of communication for everyone. Who does the Minister consider should be treated as “key parties” in this process? Will this always include the local planning authority? Given that the process and the scope of any consultation will be largely delegated to the Planning Inspectorate, what will the Secretary of State do to satisfy himself in the interests of good planning that the consultation with the local community is at least adequate?

Amendment 16 requires that any decision on an application falling to the Secretary of State because of designation must take full account of local and neighbourhood plans of relevant local authorities. One might have added the NPPF. We acknowledge that planning law requires that applications for planning permission are determined in accordance with the development plan, unless, of course, material considerations indicate otherwise. To that extent, the amendment might be seen as superfluous, but it gives me the chance to ask the Minister what will happen where updated plans are not yet in place, and whether the Secretary of State or the Planning Inspectorate will look to the NPPF, presumably as the local planning authority would.

There are issues around determining material considerations in any given situation. Might these be different when we are talking about a Secretary of State’s perspective and that of the local planning authority? There is doubtless a range of other considerations as well, but the amendment is probing whether the designation might not only involve a different speed of decision-making but could also mean that the criteria which in practice might be brought to bear could be different around the different perspective on material considerations and, if there is no local plan in place, around the perception and requirements of the NPPF.

Local Government Finance Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Thursday 19th July 2012 Grand Committee

[Lord McKenzie of Luton]

My Lords, I shall start on a somewhat disagreeable note, which is to register our protest about the tardiness of the regulations that we now have before us, to which my noble friend Lady Sherlock referred. They were published on Monday, and there was some challenge to get hard copies so that we could work on them on journeys and when away from screens. It is unacceptable, particularly bearing in mind the point my noble friend made that it was quite possible that this amendment would have been taken earlier before we had seen the regulations or known what was published on that day. At least we have the chance now to get into them before Report. The scope of the regulations is profound indeed, and we should at least have had last weekend to review them in some depth. I am grateful to my noble friend Lady Sherlock; it is clear that she has done so from the presentation that she just made.

[Lord Greaves]

I wonder if the noble Lord shares my alarm at the announcement by the noble Baroness that looking at the regulations had made her head hurt, and whether that is something that those of us who have not yet had the chance to look at them have in store.

Local Government Finance Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Tuesday 3rd July 2012 Grand Committee

[Lord Greaves]

I wonder whether I can help the noble Lord. Does he agree that a further question, in addition to the very detailed ones that he is asking about the different grants, is whether any of this money might be distributed through non-departmental bodies—quangos and so on—such as the Homes and Communities Agency, and whether some of the money that they disperse might come from this source?

[Lord McKenzie of Luton]

That is a very interesting question. We have an amendment coming up which is intended to probe the heads under which various categories of institution are counted as qualifying as English local government. It is a possibility but we can specifically probe that when we come to the next group of amendments.

This really is the most troubling aspect of these proposals. Unless I am missing something, it is an area where we do not have enough information. On one basis, we might be happy with a share that is not 50% but 30%, and on another basis we would not want any central share at all. Under Amendment 9, my noble friend Lord Smith probed why we have that particular formulation. I am sure that the Minister has an answer.

Amendment 17 touches on the hugely important issue of not only having information about the current year but being able to project what is likely to happen in subsequent years, particularly in an environment where councils are having to save every penny they can and take painful decisions about cutting back on services.

Amendment 12 in the name of the noble Lord, Lord Jenkin, seeks to ensure that the quantum of the central share will not grow from year to year. Given the RPI increase in rateable values, this should mean that the percentage of the central share gradually declines.

However, we need to be mindful that all these matters could be achieved by central government charging grants against the national business rate collection so that both central and local shares decline in amount— effectively top-slicing. Perhaps we can have amendments to deal with that, as we need to protect against that possibility.

Amendments 21 and 22 in the name of the noble Lord, Lord Jenkin, offer a rather novel approach, which dictates a gradually reducing percentage share of a billing authority’s central share and a gradually increasing percentage of a billing authority’s local share, so that whatever is top-sliced—if anything is—what remains is increasingly skewed to the local share. I think that that approach has some real merit. I should be very happy to engage in discussions to see how it might be developed and made watertight if it is to be included in the legislation so that the Government do not have a way round it. Subject to what the Minister says about the distribution of the central share, we would seek to support that.

Amendment 16 in the name of the noble Lord, Lord Best, seeks to preclude the determination of a local and central share after the financial year ending 31 March 2015. Whether we can support this depends on what happens to the central share. If its application provides a means of redressing possible adverse distributional consequences of the BRRS, there may be an argument for its continuance. Otherwise, it is the business rate scheme that will drive the distribution of the control total, or its equivalent. Even if the rebasing is fair at the point that tariffs and top-ups are established, the dynamic does not mean that it will continue in that way until the reset date.

I shall comment briefly on a few of the contributions to this debate. The noble Lord, Lord Greaves, made the point that whether the figure is 50% or somewhat higher, it will not necessarily change the world for some authorities, particularly smaller ones. I would echo that from Luton’s perspective. My noble friend Lady Hollis reiterated the point about cutting the link between business and local government through the nationalisation. However, we should not berate the noble Lord, Lord Jenkin, any further; I think that he has redeemed himself by his approach, and he has certainly done so with his introduction to this debate, which was very constructive.

The noble Baroness, Lady Eaton, talked about the RSG distribution and the formula grant. I think she was referring to how you set the baseline and the parameters that are going to be used, and we are going to have some debate on that. If the resetting is not going to be for seven or 10 years, getting that as right as possible is hugely important. It might be—we might get some good news from the Minister—that it could be ameliorated in part by use of the 50% central share, but I am not sure that we are going to get that news this afternoon. I am looking forward to the Minister’s reply.

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Monday 31st October 2011 Lords Chamber

[Lord McKenzie of Luton]

My Lords, before the noble Lord, Lord Greaves, becomes flattered again, I should say that this was another handy vehicle to make sure that we got this on the agenda.

[Lord Greaves]

My Lords, if the Labour Party really needs a new parliamentary draftsman to write its amendments, I might be prepared to offer my services.

[Lord McKenzie of Luton]

They would be very welcome.

The Bill is about to leave the House when we have no certainty that there will be any transitional provisions, let alone what those provisions might look like. The changes to our planning system, the demise of regional spatial strategies, the introduction of the duty to co-operate, the introduction of neighbourhood planning, together with the NPPF and the proposed presumption in favour of sustainable development, represent a major upheaval to the planning system. The key continuing feature—we support this—is the significance of the local development plan, which, subject to material considerations, should continue to determine which planning applications would be approved. However, we know that many local development plans are not up to date. Even if they were, there seems to be uncertainty as to whether the NPPF in its current form would itself cause all of them to be out of date.

The Minister, in our debate last week, contended not. I am bound to say that I believe that this is not a universal view. Is it accepted that the NPPF will introduce new policy which must be complied with? It is of deep concern that the noble Baroness gave the Government’s position in our debate in the following terms:

“We have not decided yet what, if any, transitional arrangements there should be”—

although the Minister then added—

“but we see that you cannot get rid of the regional spatial strategies and not have something else”.—[Official Report, 27/10/11; col. GC 384.]

Perhaps the noble Baroness can expand on the latter phrase to see whether we can derive any comfort.

As we made clear in last week’s debate, we do not support or encourage local planning authorities to hold back on updating their local plans, but is it not the case that they are dealing with a moving target? There has been a very considerable response to the NPPF consultations, to which the Government have to give due consideration. It may not be until next April when we see the final version of the framework, with the prospect of no further consultation thereon, and probably no parliamentary process. It is acknowledged that the Government would be looking to fast-track a process for updating local plans, and for obtaining certificates of conformity, but this is not, surely, a total solution. Local planning authorities will not know what they have to conform with until they see the final version of the NPPF sometime next year. What assessment have the Government made of the planning inspectorate’s capacity to cope with all of this? Indeed, what assessment have they made of local planning authorities’ capacity to cope with this?

Is it not the case that the presumption in favour of sustainable development is supposed to be the stick that encourages local planning authorities to get local plans up to date, because if they do not, the national policy will be the framework for planning decisions. This carries the implication that if the stick is effective, local authorities will want to avoid the NPPF on its own providing the framework without the local plan—that is, development which an up-to-date local plan would not support could gain approval unless the adverse impacts of development would significantly and demonstrably outweigh the benefits. Does the Minister accept that this could be the consequence of not having local plans up to date?

The Government are asking local planning authorities to ensure that their local plans are up to date when the NPPF, as drafted, includes new policy and the final form is unknown. Will an up-to-date plan not have to reflect the duty to co-operate? The draft NPPF is clear that local planning authorities will be expected to co-operate and to plan for issues with cross-boundary impacts. A demonstration of this will be required when local plans are submitted for examination. Will it be the case, therefore, that any plan which does not involve the duty to co-operate could be challenged as being not up to date?

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Monday 17th October 2011 Lords Chamber

[Lord McKenzie of Luton]

I hope to be brief in moving this amendment because I think a point here was left outstanding. This brings back an amendment that was introduced by the noble Lord, Lord Greaves, in Committee. In responding to the amendment, I think the noble Baroness confirmed that plans could not be approved under these provisions unless they were compatible with the Human Rights Act, but she said that neighbourhood forums do not exercise a public function and therefore we have the anomaly originally pointed out by the noble Lord, Lord Greaves, that parish councils are subject to the equality duty while neighbourhood forums are not. This remains an issue of concern because the impact assessment for these provisions points out that certain communities are much less likely to engage and therefore be involved in this process than others. I do not think we dealt with the question of whether there is a technical problem in bringing neighbourhood forums within the scope of the equality duty, notwithstanding that they apparently do not exercise public functions. Otherwise, there is an issue about doing all we can to ensure that all communities have a chance to become engaged in these neighbourhood planning opportunities. I beg to move.

[Lord Greaves]

My Lords, the noble Lord, Lord McKenzie, has quite rightly said that I brought this amendment forward at the Committee stage. I apologise to him because I had intended to add my name to his amendment at this stage, but in the hustle and bustle of the Bill, I failed to do so. The noble Lord has set out the position clearly and I do not have anything to add other than to support his remarks.

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Monday 17th October 2011 Lords Chamber

[Lord Greaves]

My Lords, because of the time of night, I shall make a couple of statements rather than explain them. This is not the right Bill or the time to do this. It probably does not require any amendment to Section 15 of the Commons Act. It can be dealt with in two ways: first, local authorities can pull their fingers out and not be unnecessarily legalistic and bureaucratic, which in my experience they have been; and, secondly, by tweaking secondary legislation. It is not necessary to do it here. The problem can be solved in a much more efficient way in secondary legislation through Defra.

[Lord McKenzie of Luton]

My Lords, I support the noble Lord, Lord Best, in what he seeks. The noble Lord, Lord Greaves, says that this is not the right Bill. It may be that it is not appropriate to put something in primary legislation but, surely, it is absolutely pertinent that we discuss it in the context of the Bill before us. It cannot be outwith the thrust of this Bill, given the whole range of stuff that is encompassed in it. I think that the noble Lord is simply seeking clarification of what the Government intend, what they propose to do, and when and how they propose to do it. If it is in secondary legislation, that is fine, but clarity is needed.

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Wednesday 12th October 2011 Lords Chamber

[Lord McKenzie of Luton]

My Lords, I thank the Minister for that reply. Parts of it, I am bound to say, I thought were a little strange. In terms of the comparison with the national policy statements, she suggested that the NPPF had a lesser impact because local plans only had to have regard to it. Given where the Government are on the presumption in favour of sustainable development and where they are so far on transitional provisions, is it not the fact, or the likelihood, that unless something else changes before we conclude with this legislation, the NPPF will be the key document for determining a whole range of development applications? This is because local plans may not be up to date or complete for all the reasons that we are going to discuss shortly. To make that distinction therefore seemed to me somewhat strange.

The noble Baroness also said that there was no statutory requirement to have a sustainability appraisal of the NPPF. But is there a statutory requirement—again we are pre-empting an amendment we will come to—to have a sustainability assessment associated with the revocation of regional spatial strategies? If the Government are doing an assessment for that on a voluntary basis, as I understand them to be, then that does not seem to be a very coherent argument for not having an appraisal of the NPPF.

We are partly looking back, and partly shutting the stable door after the horse has bolted on the first NPPF, but this is looking forward as well. It deals not only with the existing NPPF, but requires there to be some parliamentary process attached to it. Of course I accept that we have two debates, by one route or another, coming up in your Lordships’ House. I am not sure what the arrangements are at the other end; the Select Committee always has the opportunity to review a policy and hold the Government to account. However, that is not the same as having a formal process by which Parliament can have its say and express its opinion on this hugely important document before it is finalised. If the NPPF were so insignificant and something that people only had to have regard to, then why on earth has there been this great furore both inside and outside Parliament? It is partly because of trying to understand the Government’s intent, and I can see that that can be resolved in due course. I also accept that the Government are as a matter of fact involved in a lot of consultation and discussion, and that is to be welcomed. But what is so wrong in having that as an obligation written on the—

[Lord Greaves]

My Lords, I cannot avoid teasing the noble Lord, and I hope he will answer this question. The national planning policy framework will replace planning policy statements and such of the old planning policy guidance documents as still exist. Why was it not necessary to have a requirement for planning policy statements on the face of primary legislation if it is now necessary to have it for the NPPF?

[Lord McKenzie of Luton]

My Lords, an argument could be mounted to that effect. I prayed in aid my absence from those debates before, so I shall excuse myself. The question is a fair one, but that does not necessarily mean that the balance should come down in favour of not having this process for the NPPF. It is such a hugely important document. One has just to look at the impact assessment of some of the changes being proposed covering town centre and parking policies. These things are very important and really go to the heart of our national life in so many respects. It is about communities, how we conduct our lives and how we plan for the future. To take that formally outwith Parliament does not seem to be right. In the circumstances, I am inclined to test the view of the House on this matter.

--- Later in debate ---

[Lord Greaves]

My Lords, my noble friend has missed a little of the discussion this afternoon. I have to confess that I always thought that Essex was in East Anglia and I claim to be a geographer. I stand corrected and I will never make that mistake again. All I know is that all those places in that easterly bulge in the country are deplorably flat.

The serious point that I want to make on these amendments is simply to lend my support to the point made by the noble Baroness, Lady Young of Old Scone, and the noble Lord, Lord Deben. It would be good for the Government to use “development” and “sustainable development” in a rather more rigorous manner and not confuse them with each other quite so much.

[Lord McKenzie of Luton]

My Lords, my noble friend Lady Young’s amendments are entirely reasonable and I see the thrust of them, but I thought that they were about removing the term “sustainable” from provisions in the Bill and not adding it.

On the duty to co-operate, the noble Lord, Lord Deben, makes an interesting point about knowing how to be local. However, to be local on a sustainable basis in some respects needs co-operation and engagement not only with near neighbours but on a broader front. Some of us have ongoing concerns about the demise of regional spatial strategies. They were not necessarily the answer to everything and were perhaps not perfect, but with those gone the only thing that exists between the regional strategies that were there hitherto and local authorities is this duty to co-operate.

It seems to me that there should be requirements on local authorities to co-operate. Part of the problem is knowing how extensive that co-operation would and should be—for example, on transport or waste issues. Unless there is recognition that this must be an integral part of the way forward, then I think this really is going to be a recipe for isolationism, that we are going to draw up the barriers around our little location, irrespective of what happens around us. As regards definitions of the eastern region, I can say as somebody who lives in Luton—long since known as the urban bottom of the county—that Luton and the rest of Bedfordshire do not always do things the same way. I must apologise—I have been referring to the noble Lord, Lord Gummer, and it should be Lord Deben. I do apologise. Thank you for that correction.

I hope that I have made my point. It seems to me that my noble friend is addressing the strength and importance of the duty to co-operate, and in that we support her.

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[Lord McKenzie of Luton]

I am sorry—over four years. However, even 150,000 a year is less than what the previous Government achieved. If you go back a couple of years, the number of housing starts was the highest for around 20 years. The Government constantly quote a later figure, which was affected by the financial crisis. However, if you look at the data over the period you will see something else.

[Lord Greaves]

I wonder if there is confusion here between housing starts and affordable housing starts.

[Lord McKenzie of Luton]

Indeed, the noble Lord is absolutely right. However, I understand that the mechanism to achieve affordable housing is through 80 per cent of market rents being the primary funding source for it. Therefore, what the Government have done has slashed capital funding for affordable housing by driving an approach that jacks up rents, which for many people will be paid out of the housing benefit budget. It is difficult to see the logic of that approach from the Government’s point of view.

The Minister’s response to the noble Lord, Lord Newton, was to say that local development plans have to be adhered to. I thought that the noble Lord’s point was about what happens in adjoining local authorities and how they can be persuaded to provide affordable or other housing when a neighbouring authority is fully developed or has little room to develop further. As I have mentioned, that is precisely the situation in which we find ourselves in Luton, as do other local authorities. The noble Baroness says that the route is through the NPPF; I think the noble Lord, Lord Greaves, quoted from that. However, as we have debated, it is a question of having regard to that. We want to put something transparent in the Bill. That transparency will help the understanding of local people as well.

[Lord Greaves]

If the NPPF had only to “have regard to”, people might be less concerned about it. Is it not the case that local plans—core strategies—will not be approved by the inspection process unless they conform to the NPPF? They do not just have to have regard to it.

[Lord McKenzie of Luton]

That may be the case up to a point. How that works in practice remains to be tested, particularly given the pressures on the inspectors. We shall come to that point in a moment.

I say to the noble Lord, Lord Greaves, that I am old enough to have watched “Cathy Come Home”. I think I did; it was on a black and white television. It was a defining moment in our country. We are at risk of going back to that. These assessments must also be seen in the context of what is happening to housing benefit. We know that many people will be made homeless and that many will be uprooted from their current communities and forced into new ones. Following the point of the noble Lord, Lord Williamson, about how robust and up to date those assessments are, they would also need to take account of such movements, which could be very significant.

I very much warmed to the comments of my noble friend Lady Whitaker and the noble Lord, Lord Boswell. The Minister’s response was that there is already a statutory responsibility. However, the reality is that to date it has not delivered for Gypsy and Traveller families. It is right that we should focus on that. It was absolutely commendable of the noble Lord and my noble friend to do so in the course of this debate.

My noble friend Lord Beecham, in supporting the amendment, said that we should look not just at social housing or affordable housing—whatever description we apply to it—but at the private rented sector as well. That is absolutely right: we have to look at all areas, particularly the private rented sector. We know that the formation of households over the next decade will increase—certainly at a faster rate than new homes are projected to be provided. That is the source of some challenge.

The noble Lord, Lord Greaves, made the point that it is not just about whether somebody can afford a property but about what they are affording. What is the quality of the home that they are able to access? That is why, like him, I am a great supporter of the social housing sector. I am sure the noble Lord himself remembers council house-building when it took place and Parker Morris standards, with decent garden sizes. That may not be easy for us to return to but it was indicative of a time when we believed that people should be properly and decently housed.

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Wednesday 7th September 2011 Lords Chamber

[Lord Greaves]

I think that that was an acceptable answer. I understand that we cannot bring back the amendment that was defeated in the vote, but there are plenty of things in these amendments that we can talk about in relation to what the Bill states. That gives us sufficient leeway to talk about what we want to talk about. Whether the Government will extend their offer of discussions to the Opposition, who rudely threw it back in their face on the previous group of amendments, I do not know. I would welcome their participation, but that is up to the Government.

[Lord McKenzie of Luton]

Perhaps I may make it clear that we voted on the original proposition because we believed that it would secure the best outcome. As that did not succeed, it is not inconsistent to want to see a lesser position that nevertheless improves on what is in the Bill. That is entirely sensible and reasonable. Whether we will be involved in those discussions is up to the Government. If they are going to bring something back—and I believe that that is the wish of the noble Lord, Lord Greaves—we will have an opportunity in this Chamber to join in the debate.

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Tuesday 19th July 2011 Lords Chamber

[Lord Greaves]

My Lords, I shall speak also to the other amendments in the group. These amendments are about charges for neighbourhood development orders and would amend Clauses 102 to 105, which are about charges for meeting costs related to neighbourhood planning and financial assistance in relation to neighbourhood planning.

The Bill states:

“The Secretary of State may with the consent of the Treasury make regulations providing for the imposition of charges for the purpose of meeting expenses incurred … by local planning authorities”,

relating to neighbourhood planning functions. As regards the phrase:

“The Secretary of State may … make regulations”,

we say that this should be “must”. Without being able to levy charges, local planning authorities risk being seriously out of pocket. Will the Minister confirm that the expenses which will be reimbursable through these charges include the cost of organising a referendum?

An important question is when the charges have to be paid. The Bill says that it will be,

“when the development is commenced”.

But that means that all the costs of the local planning authority, including the cost of a referendum and examination, may never be recouped if the development does not take place. We are proposing amendments that suggest that the charge should be paid when the draft neighbourhood development order is submitted to the local planning authority by the parish council or the neighbourhood forum, as with an ordinary planning application. Why should this be different and why should the local planning authority, the council, have to carry this cost, perhaps for ever?

An alternative amendment suggests that the cost should be levied when the local planning authority resolves to hold a referendum—in other words, the costs begin when it is really serious and after the decision has been made whether it should go ahead to a referendum. Again, the risk is that the local planning authority is seriously out of pocket due to things that are completely out of its control. This could make a very serious hole in its budget, especially if it is quite a small district council.

The second issue in this group relates to financial assistance by the Secretary of State in relation to neighbourhood planning. The amendments suggest that the first need is to publicise the changes in the planning system. What will the Government be doing to tell people about the changes in this Bill, if and when it becomes law?

The main amendment is to probe who the Government intend should receive this money and how much is involved. The Minister has mentioned that some money has already been paid out to organisations to provide support and training. Forty pilots have been announced and have been funded to the tune of a relatively small amount of money. The Minister can no doubt tell us what that sum is. Why, therefore, is this provision needed, if money can already be provided to pilots? Why do we have to have a separate provision in this Bill allowing this money to be spent? What extra things will it be spent on that it could not be spent on at the moment?

The Bill provides for,

“the provision of financial assistance … to any body or other person”—

which may involve,

“the making of agreements or other arrangements with any body or other person”.

Who does this refer to? Does it include parish councils and local planning authorities, or is it restricted only to neighbourhood forums? Clearly, we are back to the difference between a parished area, with a parish council, and an unparished area with a neighbourhood forum. What kind of bodies are likely to get this money and what are they expected to do with it? What are the processes for handing out this money? How is it going to be decided who to give it to? If neighbourhood planning takes off in a big way, one assumes that the amount of money that the Government have available will not be sufficient to seriously subsidise everybody. Therefore, they will have to choose one way or the other. I beg to move.

[Lord McKenzie of Luton]

My Lords, the noble Lord, Lord Greaves, has raised a series of what seem to be quite pertinent questions and I look forward to the Minister’s response. I will just comment on two of the amendments. In Amendment 153ZZAKA, the noble Lord suggests that there has to be a “must” in respect of making regulations—although I see the force of the argument that most, or all, local authorities would be daft not to, we are dealing with localism and I do not see why the discretion should not be with the local authorities. I may have missed it, but I think that Amendment153ZZAKF deletes a right to enforce in the case of death or insolvency. I think that is the thrust of the amendment, but I was not quite sure what it was about. Perhaps I misunderstood but it would be helpful if the noble Lord could clarify that.

--- Later in debate ---

[Lord Greaves]

The problem with enforcement is that it is inevitably reactive when it depends on people making complaints. However, there is no need for it to be reactive in the case of new developments. We all know just how much annoyance is caused when someone in the street is seen to get away with doing various things for which other people apply for planning permission and pay fees. We all know how someone can do it; they can stretch the system out for quite a long time if they want to do so. A system under which there was automatic notification and inspection of the work would seriously cut down on development that did not have planning permission. As I have said before, the Government say that it is a major imposition to ask people simply to say when they are starting work, but that is not true. The Minister said that we cannot know how many authorities would use this provision. Perhaps the people who are promoting this amendment might try to find out.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for his reply. He said that he did not think my amendment could be made to work because it had no sanction, but when I moved the amendment I suggested that one could impose a fixed penalty sanction for failure to comply, which hopefully would deal with his concern.

I support Amendment 170CH, tabled by the noble Lord, Lord Greaves. In fact, had I got round to it I would have put my name to it for the reasons that he gave. It seems to me that there could be three notifications: building control; the one that the amendment seeks to introduce; and CIL, which is triggered by the commencement of a development. I offer this to be helpful to the Government. Surely those three regulations could be rolled into one to satisfy the requirements in the noble Lord’s amendment: you could have two out and one in, so you would be ahead of the game.

On the amendment in the name of the noble Lord, Lord Avebury, and supported by my noble friend Lady Whitaker, I should like to read the record of what the noble Lord said because at this hour I did not follow it in great detail. Certainly I would be very concerned if the perception and the reality were that this clause was principally in place to deal with Gypsy and Traveller families. I know how committed both he and my noble friend are to ensuring that those families have justice. For a brief while when I sat in the noble Lord’s position, I remember answering a Question on this. If I am right, across the country something like the extra provision of one square mile of land would be sufficient to deal with the issue. It is undoubtedly the case that local authorities have not fulfilled their duties in making enough provision. However, I should like to read the record so as to understand better the technicalities of the point made by the noble Lord. Having said that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Greaves]

My Lords, I and my noble friend Lord Tope have five amendments in this group. In view of the time, and in the hope that we might get on to the next group before we go home, I would be happy for the Minister to write to me detailing the government’s responses to those five amendments. If he agrees to do that, I shall not say anything further on this tonight.

[Lord McKenzie of Luton]

My Lords, this is a very large group of amendments, many of which are quite technical. None of them has been spoken to in any great detail. I am grateful to my noble and learned friend Lord Boyd for his technical paper, which helped me on this, and for his guidance. I say to the noble Lord, Lord Jenkin, that I puzzled over his reference to 132 kilowatts and I was not quite sure what the amendment was about. I now know that it is important, although I am not quite clear why.

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Tuesday 19th July 2011 Lords Chamber

[Lord Greaves]

The Chief Whip is absolutely right. We will have discussions later.

[Lord McKenzie of Luton]

Perhaps I may say that the mood of the House on this side is not to delay the Bill but to make sure that we do have proper scrutiny of what is a very long and complex Bill. The noble Lord, Lord Greaves, will answer for himself, but I think he has been done an injustice.

--- Later in debate ---

[Lord McKenzie of Luton]

My Lords, I shall speak also to Amendments 150E, 152ZD, 152AA and 152BA. As we have discussed, involving communities in planning for neighbourhoods is significant. It provides the opportunity for local communities to engage in shaping their local environments now and in the future. However, I reiterate the concern that others have raised about the complex provisions that have to be grappled with at a time of growing scarcity of resources to local authorities and neighbourhoods. We should also be worried about the potential lack of accountability in the preparation of neighbourhood plans.

Noble Lords may be aware that the Royal Town Planning Institute has set out other options that would not require this additional cumbersome legislation. However, we are where we are. There remains, however, a real risk that the overly complex nature of the proposed system may mean that neighbourhood planning will not be as visionary, widespread or effective as intended. However, we acknowledge that improvements have been made on Report in another place.

Our Amendment 148ZZF defines a neighbourhood development order as an order that implements an NDP or a DPD policy. This is part of the proposition to reduce the complexity of the neighbourhood planning system whereby NDOs are considered within a wider neighbourhood context.

It is suggested that this is necessary with regard to neighbourhood planning to ensure that developments consented to through NDOs and community right to build orders are based on a comprehensive understanding of issues. The RTPI understands that that may be the intention behind the provisions in the Bill, but does not believe that it is clear from the relevant clauses as drafted. The amendment is supplemented by Amendments 152ZD and 152AA, the latter requiring proposals for NDOs to be accompanied by the NDP or DPD policies they are intended to implement.

Amendment 150E again addresses an issue raised by the RTPI, which recommends that neighbourhood plans and the associated referendum should be used to express the community's priorities for investment in the area—for example, the community's priorities for any CIL or the new homes bonus. That would help to ensure that neighbourhood planning is clearly linked with sources of investment in neighbourhoods, such as proposals for the new homes bonus and community budgeting and thinking about community assets, and would make neighbourhood plans more positive and meaningful.

I will comment on the plethora of other amendments in the group in due course, but, in the mean time, I beg to move.

[Lord Greaves]

My Lords, I have more than a few amendments in this group. Again, I shall not refer specifically to them because that would take too long; I will just try to cover the issues in most cases.

One of the most important amendments is about neighbourhood development orders. It seems to us that neighbourhood plans can fit into the existing planning system reasonably well, especially if they have to comply with the broad aspects of the local and national planning guidance. Neighbourhood development orders seem to be more difficult, and could have a fairly disruptive effect on proper planning if we are not careful.

The lead amendment moved by the noble Lord, Lord McKenzie, has covered the crucial question of the relationship between neighbourhood and development orders and the existing development plan and its components. I think he referred to the national policy planning framework and other national guidance. If neighbourhood development orders have to comply in a general or strategic way with existing plans, is it the same as if they were ordinary planning applications or is it in some way different? Is the degree to which they have to comply less or the same? My second question is whether neighbourhood development orders and plans can be made and adopted if the local plan has not yet been adopted. I recently received a Written Answer suggesting that just over 100 local planning authorities have now adopted a core strategy. That leaves several hundred who have not, and it is not clear how long it will take them—although quite a few more are in the pipeline and have been submitted for examination. That is an important issue, because there will be a hiatus in many places.

New Section 61E(2) in the Town and Country Planning Act to be inserted by the Bill states:

“A ‘neighbourhood development order’ is an order which grants planning permission …

(a) for development specified in the order, or

(b) for development of any class specified in the order”.

One of my amendments, Amendment 148ZZJ, probes what that means. What is the relationship of that word to the usually understood types of planning permission? People talk about full planning permission and outline planning permission. If it is an outline application, it requires a further application for the details. Even if it is a full application, there may well still be reserved matters that require a further application or, perhaps more likely, the written consent of the local planning authority. How will this work with neighbourhood development orders, which are effectively for outline permission? Does it mean that outline permission can be given for, say, housing, perhaps with details of access and nothing more? In that case, how will the detailed application be determined? Will it need another neighbourhood development order and, if not, will the parish council or even the neighbourhood forum deal with it and give consent for the details, or will it then have to be passed to the local planning authority? I cannot work out from the Bill the answers to these questions. Indeed, can the developers just get on with it, with no further permissions required? If so, that would drive a coach and horses through proper planning.

So far as concerns the area covered by a neighbourhood development order, new Section 61E(2) states:

“A ‘neighbourhood development order’ is an order which grants planning permission in relation to a particular neighbourhood area”.

Can that mean just part of a neighbourhood area? Once the neighbourhood area has been defined as a parish or an urban area with a neighbourhood forum, can a neighbourhood development order relate to part of that area rather than the whole area? Again, the position is not clear to me.

New Section 61I(5) states:

“A neighbourhood development order may not relate to more than one neighbourhood area”,

but the boundaries of neighbourhood areas may not relate to a reasonable proposal on the ground. This concerns the flexibility issue that has been talked about. Why cannot two parish councils or two neighbourhood forums co-operate to make one neighbourhood development order for an area which straddles a boundary —for example, an area of disused land, perhaps with former industrial use, old railways sidings and so on—between two clearly defined neighbourhoods where the development site forms a natural marginal border area? Would that not be possible under this system and would there therefore be a need to go for a normal planning application?

New Section 61I(4) states:

“A neighbourhood development order may not grant planning permission for any development in any particular case where planning permission is already granted for that development in that case”.

I do not understand what that means. How exact and specific do the two cases have to be? Is it referring to exactly the same area, exactly the same kind of development or exactly the same planning permission in detail, or do the cases have to be similar, and how similar? The Bill seems to be fairly vague. What happens if there is an existing planning permission and a neighbourhood development order grants permission for a different kind of development—for example, a housing scheme in a place where there is already permission for a retail development? Do the two then stand side by side, with one planning permission and one neighbourhood development order that could be taken up, or does the neighbourhood development order eliminate the existing planning permission?

What is the role of local planning authorities in examinations of neighbourhood development plans and neighbourhood development orders? The Bill says that they have a right to appear if there is a hearing but what if there is no hearing? Does the local planning authority have an automatic right to comment on the plan, engage with the inspector or examiner, and make representations and recommendations?

Setting standards for neighbourhood development orders is an area where clear rules are plainly needed. Our amendment says that the Secretary of State “must”, not “may”, make regulations here. This is one area where regulations are clearly needed, otherwise the standards will not exist. If the proposed standards for the preparation of the neighbourhood development order and other documents cover what is in any documents, as well as, under the Bill, the,

“collection, sources, verification, processing and presentation of information”,

it is crucial that this process takes place in a professional, efficient way, and it also costs money.

New Section 61I(6) states:

“A neighbourhood development order may make different provision for different cases or circumstances”.

I do not understand how that will work. Does it mean that a neighbourhood development order can cover a range of different planning permissions for the same site? It seems to mean that. Normally, you get planning permission for a particular project on a particular site in an area, so how will that work?

Finally, there is an intriguing provision in new Section 61K(4) which says that the Secretary of State may issue regulations to make provision for,

“treating parish councils as local planning authorities (instead of, or in addition to, the authorities) for the purposes of the determination of applications for approvals”.

Is this really a practical proposition? What assessment has been made of the availability of professional planning staff to support parish councils as planning authorities? Would it be a general provision or would just a few large town councils apply? What criteria would be applied? Would it make the system more efficient? I can imagine that a town council might demand that every application goes to the council rather than through the system of delegation which is typically used about 90 per cent of the time now in local planning authorities.

I also have a series of amendments calling for less detailed prescription in all sorts of ways, but that matter has been debated and argued very extensively so I shall not pursue it further.

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Thursday 14th July 2011 Lords Chamber

[Lord Greaves]

My Lords, I remind the House of the interest that I declared at the beginning of the Committee stage. I am vice-president of the Open Spaces Society, which is the expert voluntary organisation on village and town greens and spends a lot of its time advising people who wish to register greens. It strongly advises people not to do so purely to resist development and not to proceed if the evidence appears to be poor. Not everyone takes that advice, unfortunately.

The amendments attempt to tackle this perceived problem—it is indeed a problem in some areas—by amending this legislation and thereby amending the Commons Act 2006. I suggest that this is probably the wrong time and the wrong legislation to do that. Town and village green legislation, as noble Lords who took part in the discussions of the Commons Act in 2006 will know, is extremely complex and somewhat difficult. Section 15 of that Act laid down a new system for the registration of greens, but that was based upon much older commons legislation, going back to the past, describing what is and is not a green.

I have some questions. Is there an identified problem? Yes. Is it hugely widespread? No, but it is serious where people are abusing the system. Some instances of that have been identified here today and I could provide some more. Does it need sorting out? Yes. Does it need new primary legislation and is this the right Bill to do it? No. As the noble Baroness, Lady Byford, has identified, what is required is an overhaul of the Commons Registration (England) Regulations 2008, which result in a system of greens registration that, in my view and that of the Open Spaces Society, is overly bureaucratic, takes far too long and can be far too costly.

I was involved on the other side, as it were, in an application for a green in Lancashire where Lancashire County Council wanted to build a new secondary school, which I was in support of, and a group of people tried to suggest that the land on which it was being built was a green. I met them, advised them and told them that it was not, but fortunately Lancashire County Council, perhaps because it was a project of its own that was potentially being blocked, was very expeditious in sorting it out. Quite correctly, it rejected the application.

We have a 10-point programme that would greatly improve the green registration system. It could be done simply by secondary legislation by amending the 2008 regulations. I am not suggesting that that is the whole answer and I am not going to tell your Lordships today what all the 10 points are, but we are happy to discuss this with Ministers. They will be Defra Ministers, though, as this is not a CLG matter. Defra is already looking into the problem; it has commissioned research, it is having discussions and it is considering its responses. I hope that on that basis we can let the department get on with it.

There is an understanding on all sides that this is urgent. It is important not to throw the baby out with the bathwater and not destroy the system of registration of town and village greens, which is a very useful process, but to stop people abusing it.

[Lord McKenzie of Luton]

My Lords, we should thank the noble Baroness, Lady Byford, and the noble Lords, Lord Best and Lord Lucas, for identifying and raising this issue this evening. Clearly, as the noble Lord, Lord Greaves, said, we must cherish and support the legislation which enables the identification, reclamation and maintenance of town and village greens. However, there is clearly a problem here. As the noble Lord, Lord Greaves, asks: is there a problem? Yes. Does it need sorting out? Yes, it does.

I am not sure that we necessarily have the way forward encapsulated within the amendments before us. The noble Lord, Lord Greaves, has made some interesting suggestions and I will be interested in the Minister’s response. The noble Lord, Lord Lucas, offers the prospect of being able to identify and establish a town or village green only through a neighbourhood plan. That seems potentially too restrictive: if you do not have a neighbourhood plan in place, what happens? They will not necessarily be universal.

I side with those who say that a misuse of this legislation is taking place. I accept that it may not be widespread, but it does need sorting out. I look to the Minister to see what solutions he offers.

--- Later in debate ---

[Lord Greaves]

There is a great deal of sense in that. Some of the difficulty is the muddle between Section 106 agreements and the community infrastructure levy, but it is the clear intention—it was the clear intention of the previous Government and I assume that that has not changed—to phase out Section 106 and replace it with CIL. The difficulty with that is that it brings levies and what they might be used for down to a quite small-scale local level. Large infrastructure projects are one thing, and I agree with many of the comments made by the noble Lord, Lord Berkeley, about that, but there are big projects, small projects and projects in-between. The amount of CIL that would be levied on many local development projects is quite small. Unless it can be seen as a replacement for Section 106 for the kind of things that Section 106 is spent on, and perhaps some further flexibility, a great deal will be lost. It is difficult to find ways of spending those relatively small amounts of money on things that might be classified as infrastructure.

One large-scale thing that Section 106 has been important in subsidising and helping to develop is affordable housing. We have had a debate about that and the Government have said that they are looking seriously at allowing CIL to be used for affordable housing. Affordable housing is not really infrastructure, apart from for the people living in a particular house. It is development that needs infrastructure around it. Classic cases of Section 106 funding include subsidising local bus services, whether it is a service to a new supermarket or a new estate. It is not infrastructure. Lots of local amenity areas, playgrounds, and so on, have been paid for out of Section 106. Are they infrastructure? A common-sense use of the word would suggest that they are not. Unless the levies can be used from local developments on this kind of thing, local authorities will find it much more difficult to provide them. Often new housing is developed by converting a mill into flats and then improving some of the areas around, which are pretty run down, by turning them into nice amenity areas and playgrounds, which is very important and linked to the development.

We have a new supermarket, which released £390,000 under Section 106 to spend on the local town centre. A lot of the spending on that town centre could not be described as infrastructure. It is about improving the appearance, relaying flags and grassed areas, improving shop fronts, and so on, which is all very important in helping the town centre compete with the new supermarket and hold its own, but is it infrastructure? My right honourable friend Simon Hughes suggested that double glazing might be an appropriate use of CIL from local projects. That is not infrastructure, but it is the kind of area in which we hope for some flexibility. I am not sure that we are that far apart. Clearly if a project is big enough to pay for a bypass, that is certainly infrastructure. However, we need flexibility.

[Lord McKenzie of Luton]

My Lords, as I indicated to the noble Lord, Lord Jenkin, we support the thrust of these amendments. Certainly I agree that CIL must not be used to fill revenue holes in the budgets of local authorities. A specific assurance on that from the Minister would be entirely appropriate.

When we debated this last week, our concern was about the interaction of CIL, Section 106 and affordable housing. As the noble Lord, Lord Greaves, said, the Minister indicated possible flexibility in future after consultation. We welcome that. We also agree with the noble Lord, Lord Jenkin, that if part of CIL is to be paid to a neighbourhood forum, for example, it must be linked to infrastructure. We would prefer the decision to be made by the local authority rather than dictated according to an arrangement of the Secretary of State.

The definition of infrastructure for these purposes in paragraph 12 of the CLG book, Community Infrastructure Levy: an Overview, published in May this year, states, surprisingly:

“The Planning Act 2008 provides a wide definition of the infrastructure which can be funded by the levy, including transport, flood defences, schools, hospitals, and other health and social care facilities. This definition allows the levy to be used to fund a very broad range of facilities such as play areas, parks and green spaces, cultural and sports facilities, district heating schemes and police stations and other community safety facilities. This gives local communities flexibility to choose what infrastructure they need to deliver their development plan”.

There is already quite wide discretion in the rules.

I particularly support the point about potential double charging when a development has already entered into Section 106 obligations, some of which may be very long-term. Like my noble friend Lord Berkeley, we had discussions with Gatwick. However, this is not just an airport or a Gatwick issue.

I am not sure how best to resolve this issue. Part of the solution may relate to how and at what point CIL is charged. I understand that what triggers it is the commencement of development that has been the subject of some form of planning permission. Therefore, in a situation in which Section 106 obligations are already in place from prior development, I do not see how under the rules that could trigger a new CIL charge. However, any new development might, so Section 106 and CIL could still be paid at the same time. The potential for double charging is an issue, and I look forward to the Minister's response on that. However, the thrust of this is exactly right and we support it.

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Tuesday 12th July 2011 Lords Chamber

[Lord McKenzie of Luton]

My Lords, we have tabled Amendment 153AKA in this group. It requires the local authority to prepare and maintain a retail diversity scheme as part of the local development scheme. It calls for a sequential approach to the development of a hierarchy, putting existing centres first, followed by edge-of-centre locations and then out-of-centre sites. This is very much consistent with the amendment of the noble Lord, Lord Cotter. I was interested to hear about his Retail Development Bill, which I must confess I have not studied in detail, although it seems that neither has his colleague who is sitting in front of him. Perhaps he has. Maybe I could borrow a copy during the Recess.

The amendment will be familiar in that it is a rerun of what was proposed in the other place. On reflection, we should have deleted the proposed power of direction for the Secretary of State. We have brought it back because it was spoken to warmly by the Minister, Greg Clark, who said:

“Policy on town centres has always been part of national planning policy … I wish to signal clearly the importance of having robust policy, including the sequential test that is currently in planning policy statement 4. That will absolutely be in place, and it will be clear in the new national planning policy framework”.—[Official Report, Commons, 17/5/11; col. 270.]

It is difficult for us to test that issue because we still do not have the new NPPF, but we live in hope.

The amendment of the noble Lord, Lord Greaves, which he has not yet spoken to, requires there to be an assessment of,

“the vitality and diversity of the shopping areas”,

and makes it necessary,

“to include appropriate policies to promote the vitality and diversity”.

The noble Lord’s amendment states that there must be a consultation, including with the traders. So far as it goes, we can and will support that amendment, but it is vital that there is clarity on the sequential approach. The existing vitality and diversity of shopping centres can dramatically be undermined by inappropriate out-of-town development.

I should recall that I spent a brief time as a Minister in CLG at the tail end of the previous Government, as well as trying to cope with DWP issues. As the noble Baroness, Lady Hanham, will know, you are allocated planning issues to look at when they come forward, one of which stuck in my mind. There was a proposal for a significant retail development in an area, which would have been fantastic for that area in terms of jobs and the retail offering but would have destroyed three or more shopping centres in close proximity. There is an issue about how the duty to co-operate will work in such situations where there is a retail opportunity in one local planning area, which is substantially in the interests of that area, but could be of real detriment to other areas. We will follow with interest these issues around what the NPPF says and the extent to which that overlays local development plans.

The noble Lord, Lord Cotter, referred to the current situation on the high street. It is in a pretty dire state. Some 12,000 shops closed their doors in UK high streets last year, and 85 per cent of people feel less optimistic about the prospects for economic recovery when they see boarded-up shops in their local high street. In the past fortnight, Jane Norman went into administration, Carpetright shut 75 stores, and Habitat put 30 premises outside London into administration. Retailers Homeform, HMV, Comet, Mothercare, JJB Sports and Thorntons have recently been hit. Local Data Company states that 14.6 per cent of retail premises are now vacant. This indicates that approximately 50,000 units are not currently open to business on the UK high street, which shows just how challenging the situation is on the ground.

This matter is particularly relevant at this point for the economy of our country, and demonstrates that we need to do whatever we can through the planning process, as well as through other means, to preserve, protect, encourage and promote development on the high street. That is the purpose of these amendments, and I hope that the Minister will support and accept them.

[Lord Greaves]

My Lords, as the noble Lord, Lord McKenzie, said, I and my noble friend Lord Tope, have tabled Amendment 153AKC, which proposes a new clause, entitled,

“Health and diversity of town centres and high streets”.

Before speaking directly to that amendment, I should first acknowledge the work of my noble friend Lord Cotter in this area over the years. He has been determined and diligent in pursuing these matters and is to be congratulated on bringing the amendment. It is true to say that the three amendments in the group are all rather different but address the same basic problem. I am sure that if the three of us sat around a table, we might well have been able to come up with an amendment with which we all agreed and which would combine the best of all three amendments.

The amendment that I am proposing is slightly different because, unlike the others, it concentrates not so much on town centres but on town centres and high streets. That is not to say that town centres are not important—they are vital—but the shopping streets that we are talking about are not just in town centres. My amendment, which internally we are calling the “Cambridge amendment”, comes from campaigners in a part of Cambridge called Mill Road—a shopping street that is not part of the town centre but is a district shopping street of great variety that is under threat. It was the suggestion of the campaigners that resulted in us putting this amendment together. It clearly overlaps with the other amendment.

I want to speak to Amendment 153AKC, which relates to Section 19 of the Planning and Compulsory Purchase Act 2004 about preparation of local development documents. I want to include an extra section in that, saying, first, that the duties in putting together the development documents should include,

“a requirement to assess the vitality and diversity of the shopping areas in the area”.

Secondly, that:

“When preparing local development documents and other local planning documents the local planning authority must consider the results of that assessment and consider whether to include appropriate policies to promote the vitality and diversity of those shopping areas”.

Thirdly, that:

“The local planning authority may prepare a scheme for retail vitality and diversity which may be a local development document or other local planning document”.

The policies that we set out are similar to those in the amendment from the noble Lord, Lord McKenzie, but a little different.

The local planning authority may,

“define a network of retail centres in the area … assess the existing character and vitality of those centres … designate the desired retail mix for each of these retail centres … promote sustainability and diversity in the retail mix that is desired in each case”.

In doing this, it must consult with the local community, which includes the traders in each shopping centre, and a shopping area means an area of town centre or high street where the substantial use is retail. So sustainability and diversity, which we are suggesting should be foremost in these policies, means that there is an appropriate balance of independent and multiple traders, of unit sizes, and balances of classes of use.

We are putting the emphasis on what is there now. The Labour Party amendment, if I can put it that way, talks about the importance of maintaining the existing policy of the sequential test. If there is a proposal for a new supermarket, can it be fitted in the town centre, can it be at the edge of the town centre, can it be at the edge of town, or does it have to be in the countryside? It is very important that that is maintained, but it is not the only important thing. If you are having a new supermarket, or even a new relatively small Tesco- or Sainsbury’s-type store, like a Tesco Express, the issue is not just where it is, but the effect it will have on the balance of shopping in its area.

In some areas, it might do more damage if it is in the high street than if it is 10 miles away in the countryside. According to a campaign there, Mill Road in Cambridge is described as having an eclectic range of small, specialist independent retailers; as the most ethnically diverse part of the city; and as Cambridge’s Brick Lane. A Tesco Express opened some time ago to widespread concern, and now a Sainsbury’s express wants to open on the other side of the bridge. The fear is that this will seriously undermine the independent local shops, which are a combination of ordinary food shops and specialist shops. If the food element comes under intense competition, those shops might then become unviable. It is suggested that policy and guidance is changed so that the local planning authority can take much more vigorous action to take these issues into account and, if necessary, turn down planning applications if they are thought to be detrimental to the diversity and vitality of a particular high street, whether in the town centre or elsewhere.

This is not just a Cambridge issue. We all saw on television the remarkable scenes in Bristol, where there were riots at night that apparently were connected with the opening of a similar type of convenience store in a street there. For those who live in relatively small towns, as I do, the vitality of our town centres is a very similar issue. In my own town of Colne, there are a lot of small independent shops, and maintaining that vitality and diversity means that we need the policy handles to be able to resist developments that, even if they are in the town centre and high streets, could be detrimental to their future.

Again, that is a very localist view, because it will put more power in the hands of the local authority and local people. There is no magic answer. Keeping the shopping centre and the high street going requires hard work not just by the traders but by the whole community, but it can be done. There are examples around the country where it is being done, and we need to do what we can to stop that being undermined.

--- Later in debate ---

[Lord McKenzie of Luton]

My Lords, in moving Amendment 148ZZZBB, I will also speak to the other amendments in my name, namely 148ZZZBC, 148ZZZBD and 148ZZBAA. I will comment on the other amendments in this group after they have been spoken to.

Amendments 148ZZZBB, 148ZZZBC and 148ZZZBD deal with the community infrastructure levy and its consequences for the provision of affordable housing. The amendments, which were prompted by the National Housing Federation, seek to ensure, first, that the need for affordable housing is taken into account when setting the CIL and, secondly, that the CIL charging schedules contain a provision that allows for the CIL to be waived if securing the entire amount would prejudice the provision of affordable housing.

The NHF says that the community infrastructure levy will be in most cases mandatory on new developments. With 40 per cent of social housing having traditionally been delivered through Section 106 agreements, it is vital that the CIL is set at a level that does not prejudice the delivery of levels of affordable housing in accordance with local plan policy. It is also important that, where the combination of the CIL and affordable housing makes development not viable, there is a clear mechanism that allows the CIL to be waived in whole or in part so that levels of affordable housing do not fall automatically.

In the debate in the other place, all parties agreed that the CIL should not prejudice the provision of affordable housing. The Minister was explicit about this and said that the present arrangements in the Planning Act 2008 and the CIL regulations offered sufficient protection, though he did commit to return to the issue. The Minister suggested that the requirement in Section 211 of the 2008 Act to have regard to the economic viability of development meant that proper scrutiny would be given to the effect on affordable housing.

Regulation 14, which gives practical effect to Section 211, requires a balance to be drawn between the desirability of securing funding from the CIL and the effect on the economic viability of development across the area. However, this type of balancing exercise does not protect affordable housing and it cannot do so if, as is often the case, there is no clear numerical target for additional affordable housing units. It would be far better to legislate to make the position explicit that the CIL is not meant to lead to a reduction in levels of affordable housing or land for affordable housing. There is no evidence that affordable housing requirements have genuinely been taken into account in the emerging CIL charging schedules to date.

The document Community Infrastructure Levy—An Overview, which was published by DCLG in May of this year, appears to make two things clear. First, it states:

“The regulations rule out the application of the levy for providing affordable housing”.

In relation to planning obligations, the document says:

“The levy is intended to provide infrastructure to support the development of an area rather than to make individual planning applications acceptable in planning terms. As a result, there may still be some site specific impact mitigation requirements without which a development should not be granted planning permission. Some of these needs may be provided for through the levy but others may not, particularly if they are very local in their impact. Therefore, the Government considers there is still a legitimate role for development specific planning obligations to enable a local planning authority to be confident that the specific consequences of development can be mitigated”.

However, the document then goes on to say in a sense that the planning obligations proposals had been drawn tightly by circular 5/05 and that is now enshrined on a statutory basis in the regulations.

Therefore, I have a fundamental question for the Minister. Given that the CIL cannot be used for affordable housing and the Section 106 agreements cause its focus to be narrowed, what will happen to the vital source of funding for affordable housing that came from the Section 106 stream? I stress that this is not a trick question. There is a genuine inquiry here; I am trying to understand how this should work and what the Government’s intentions are. Funding generally for affordable housing has been heavily restricted. I know that the Government are looking at so-called affordable rents or intermediate rents as a means of generating resources for affordable housing. However, if that Section 106 stream is to be reduced, and potentially overshadowed by the CIL, how will that all work? How will it help the delivery of affordable housing? I beg to move.

[Lord Greaves]

My Lords, I have some amendments in this group, which I shall try to rattle through as quickly as possible. I start by saying that we support the broad thrust of what the noble Lord, Lord McKenzie, has just said.

Amendment 148ZZBBB is a kite-flying amendment that would include building improvement and renovation of housing. The noble Lord has spoken more eloquently than I would have done, so I shall say no more about that. However, this is a very serious problem with the new system.

Amendments 148ZZBBA and 148ZZCA, are very similar to amendments that were tabled in the House of Commons by my right honourable friend Simon Hughes. He asked us to table them again here, since he was given a fairly sympathetic response by the Minister when he talked to him about the amendments—they were tabled in the Commons but they were not debated there. They would widen the possible use of the CIL. Amendment 148ZZBBA leaves out the words “providing infrastructure to support” and inserts the word “supporting”. The proposed provision refers to the development of an area. In other words, the amendment would allow the CIL to be spent on projects that support the development of an area, and not just what might be narrowly defined as infrastructure. The amendment would amend Section 205 of the Planning Act 2008.

Amendment 148ZZCA makes a similar amendment to Section 216 of that Act, which at the moment—ignoring the preamble—reads:

“CIL regulations must require the authority that charges CIL to apply it, or cause it to be applied, to funding infrastructure”.

Amendment 148ZZCA would add “or any other matter”. That means that CIL could be used to fund things that are desirable in the area but not necessarily described as infrastructure.

Many areas, particularly big cities, do not necessarily require extra investment in their infrastructure, but that does not mean that local residents are not inconvenienced by development. They might be inconvenienced by noise, dirt or dust, or there may be nuisance from the operation of the development. A supermarket could have people coming in and out all the time, and making noise around closing time. This could be mitigated by investment in, for example, double glazing. However, this is not currently allowed under the legislation; it is not regarded as infrastructure. In reality, councillors with the opportunity of getting CIL will always levy it and will always find ways of spending it. However, they will not necessarily spend it on the best and most useful thing that they could spend it on if they have to stay within the narrow definition of infrastructure.

Amendments 148ZZBBC and 148ZZCC just propose replacing “ongoing” with “continuous”. I regard “ongoing” as being an unpleasant American word that came in probably several decades ago—I do not know—but the English word is, in my view, “continuous”, which would be better and more elegant.

Amendment 148ZZCD refers to regulation-making powers in the Bill that refer to passing CIL,

“to a person other than that authority”.

I am not trying to remove that provision, and I should say that this is a probing amendment to find out what that phrase means and who these other persons might be that the authority would or might have to pass the CIL to.

Amendment 148ZZBAZA relates to the same argument about authorities being able to make up their own minds after a charging scheme has been examined by an examiner and to obtaining their recommendations. It is the same argument that was made two groups ago, and I will not say any more about it. I do not imagine that the Government will agree with me about that, but it is important. The next amendment in the group is about the same matter, so I shall not speak to it any further.

Finally, I speak to Amendment 148ZZZBE. On page 77 of the Bill, proposed new subsection (7A) to Section 211 states:

“A charging authority must use appropriate available evidence to inform the charging authority’s preparation of a charging schedule”.

That seems to be garbage. Why does that have to be in legislation? There are then eight indications of what CIL regulations may make provision for. I shall not read them all out, but only a couple of them to provide a flavour, including,

“provision as to evidence that is to be taken to be not appropriate”,

and,

“provision as to how evidence is, and as to how evidence is not, to be used”.

They are all like this. Finally there is,

“provision as to how the use of evidence is to inform the preparation of a charging schedule”.

They are the kind of quite extraordinary provisions that ought not to be in legislation.

It is insulting that local authorities cannot make sensible decisions on their own without being given such minute and detailed instructions on exactly what to do. If the Government are to respond to all the criticisms made in this Committee about the detailed regulations that are being imposed, I hope that they might look at this provision as being at best redundant and at worst quite ridiculous.

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Thursday 7th July 2011 Lords Chamber

[Lord McKenzie of Luton]

My Lords, I was not sure that we had formally debated Amendment 147FF, which is in a separate group—although I think the noble Lord spoke to it.

[Lord Greaves]

The noble Lord is in the position that I was in on Tuesday of having an old list. In the interests of getting some brownie points with the business managers and the Whips, I grouped it with the other amendments.

[Lord McKenzie of Luton]

Perhaps I had the 11 am, rather than the 11.10, list this morning.

Amendment 147FFA

--- Later in debate ---

[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.

[Lord McKenzie of Luton]

My Lords, briefly, I support Amendment 147FG for the reasons that the noble Lord, Lord Best, has very fully described. Basically, the policies were two sides of the same coin and, if one set of strategies drops off the edge, that will give rise to the possible confusion and legal challenges that have been mentioned.

I also support the amendment of the noble Lord, Lord Greaves. If I understand what he said, his amendment is slightly different, in that it would provide that, where policies from the structure plan are still around, they would be saved. In a sense, that is unlike the situation where the policies do not exist at local level because they disappeared with the regional spatial strategy. I would certainly support the thrust of his amendment as well.

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Tuesday 5th July 2011 Lords Chamber

[Lord Greaves]

My Lords, I have added my name to amendments in this group and I agree with everything that the noble Lord, Lord Jenkin, has said.

I am sure that most Members of this Committee, never mind the whole House, will not spend a lot of time reading the details of Schedule 5 to the Bill and all the ways in which the Secretary of State will be able to lay down very detailed powers and instructions for local authorities on how to carry out council tax referendums. However, these measures are extraordinary, and typical of a huge amount in the Bill. If the Bill constitutes localism, it is extremely detailed top-down localism.

I have seven amendments in this group, six of which are effectively the same. They seek to remove the description of high council tax increases as “excessive”. The Bill says that if a council wants to impose a council tax increase which is higher than the Secretary of State thinks is appropriate, as agreed by the House of Commons, it will be described as excessive. This is bad legislation. The word is prejudicial rather than neutral and is almost a slogan. One of the things that the Secretary of State will be able to do is to determine the question in any referendum that takes place. I can imagine a question such as, “Do you agree with your council that they should impose an excessive rise in the council tax this year?”. That is the effect of “excessive”. Legislation should be neutral and should not use such words. My amendments seek to delete “excessive” and replace it with,

“higher than the level recommended by the Secretary of State under the provisions of this Chapter”.

That is what the legislation should say. It should be value neutral and simply set out what the position is. Of course, if the noble Lord’s amendments were all passed, mine would be pre-empted and would fall. I would be delighted if that were the case as I would rather not have these detailed prescriptions there in the first place. However, if we are going to have them, we should use proper language and not political slogans.

My Amendment 129LABA concerns the date of the referendum. It probes the Secretary of State’s ability to lay down detailed instructions on this and seeks to ascertain why councils cannot be left to deal with this themselves. However, this is in effect already covered by the rather more sweeping amendments of the noble Lord, Lord Jenkin, and therefore I do not need to speak to it further.

[Lord McKenzie of Luton]

My Lords, first, I wish to speak to the amendments spoken to by the noble Lord, Lord Greaves, with which we sympathise. It is not just a case of semantics and of substituting one form of words for another. For the reason that he has outlined, we agree with him that if “excessive” is used in the legislation it will inevitably end up in the question that is put to the voters in a referendum, as it would be the technical term. We are denying local authorities the right to campaign for the council tax increase that they want. If we want to approach this matter in a neutral way, the very least we can do is to remove prejudicial legislation, as the noble Lord termed it.

The Minister may well say that “excessive” is not a new term and that it is embodied in the current capping legislation. However, there is a difference between that position and what may happen in the future because the current arrangements for capping will not be put to a popular vote. Therefore, that term is effectively an internal term rather than one that would inevitably feature in the referendum question on some basis or other. For that reason, I believe that we need to recast the term that is in the legislation.

I agree with the noble Lord, Lord Jenkin. It is a central point of our concern with this legislation that it is stuffed with detailed powers and that the Secretary of State has to draw back from the nominal rights that it is seeking to give to local authorities. I doubt whether the gap between finishing Committee in July—if we do—and Report in September is long enough to unpick some of the stuff that has come from our discussions today, but at least there is perhaps a longer gap than usual. Our attitude to the amendments of the noble Lord, Lord Jenkin, depends on precisely where the Government are on this. When last Thursday we had our first canter around the issue of capping powers, it was said that all Governments of all persuasions had held to themselves a reserve power. If in fact it is the Government’s position that they are eschewing that power, we do not feel obligated to hold to the position that I think I outlined—that it is difficult for us to deny the current Government those powers if we took them in past years. If that is not one of the criteria of the Government, that point falls away. When he responds, perhaps the Minister can tell us whether the Government see the arrangements currently included in the Bill as capping powers, whether they believe that they should have the right to hold those powers, or whether they are, by one formulation or other, happy to let local electors decide on what the appropriate level of council tax should be. If his response is, “Well, we think there should be reserve capping powers and this is what the Bill is about”, that is one thing, but if the argument is that the Bill is about making sure that electors are the final arbiters in this, that helps us in our position on the matter.

I say to the noble Lord, Lord Jenkin, that there is a question about his formulation. Under the Government’s proposition, a level of council tax, if deemed excessive, requires the authority to produce a substitute calculation. As I understand it, a substitute calculation is one that is not excessive. I suppose that most authorities in this position would compute a substitute council tax that was just a smidgen short of what the excessive level would be. I am not quite sure, on the noble Lord’s formulation, what that substitute calculation would be and what would happen in circumstances where there was a referendum, 5 per cent of the electors called for it, and they did not support the level of council tax that was proposed. What are the consequences of that? If the noble Lord could help us with that point, it would be appreciated. It is clear under the Government’s propositions what the consequences would be, but I am not quite sure what the consequences would be under the noble Lord’s formulation.

I think that this has been a very helpful debate. It is incumbent on the Minister to say whether the Government see the powers as capping powers and believe that they need them, or whether that is not their position and this is basically about letting electors decide what the appropriate or inappropriate level of council tax would be.

--- Later in debate ---

[Lord McKenzie of Luton]

My Lords, I shall speak also to the other amendments in the group. I hope that noble Lords will forgive me if my speech is not so brief. Amendments 129LZB and 129LAB seek an identical wording. The first relates to the substitute calculations of a billing authority, the second to substitute calculations of a precepting authority. Each calls for the inclusion in accruals of non-domestic rates in addition to the redistribution of non-domestic rates. This does no more than make provision for the localisation of the business rate in due course. In the absence of such an adjustment, by what mechanism will these calculations take account of localised business rates, should that be where we end up? Prior to this happening, perhaps the Minister will confirm the position of redistributive non-domestic rates. Will he confirm that currently, taking one year with another, amounts collected are fully redistributed? Will he also confirm that there are no plans or discussions concerning the possibility of charging amounts against the national pool before redistribution?

Amendment 129LAC concerns the recovery of the costs of a referendum. New Section 52ZN(7) allows a billing authority to recover from a precepting authority the cost of holding a referendum. However, new Section 52ZN(8) gives the Secretary of State powers to deny or modify the right of a billing authority to recover such costs. The impact assessment estimates that the cost of a referendum, depending on the size of the local authority and whether other elections are held at the same time, could be between £85,000 and £300,000. Therefore, not inconsiderable sums are at stake. In what circumstances is it envisaged that recovery of referendum expenses would be denied to a billing authority? Does the Minister consider that the term,

“incurred by the billing authority in connection with the referendum”,

will cover the costs of rebilling in the event of a referendum not supporting the level of council tax calculations—in other words, the costs associated not only with the referendum but with its consequences? If the term is not meant to cover that, how is this otherwise catered for?

Amendment 129LE deletes a range of regulation-making powers that the Secretary of State has in connection with a referendum. In this respect, it is more focused and less ambitious than that of the noble Lord, Lord Greaves. The powers extend to the question to be asked; publicity; the limits on expenditure; the conduct of the authority, its members and its officers; when, where and how voting is to take place; how the votes are to be counted; and the disregarding of alterations in a register of electors. Frankly, it is outrageous that these matters cannot be left to an individual local authority. Amendments 129LF and 129LG deal with another matter.

As the legislation currently stands, the Secretary of State has power to determine that the referendum provisions are not to apply, notwithstanding that a council’s tax calculations are, in his view, “excessive”. The Secretary of State can do this if he considers that, without that level of increase, the authority would be,

“unable to discharge its functions … or … to meet its financial obligations”.

Our amendment is an opportunity to probe the meaning of this, but also to argue for an opportunity for a local authority to request an independent assessment of whether the criteria are met. There was limited debate in Committee in the other place on this issue. The line that the Minister was taking was that this safeguard was really only about a crisis or a catastrophe; for example, the collapse of BCCI, where the Western Isles had invested heavily. Clearly there are extreme examples, but where principles are applied to a local authority as part of a category of authorities, they do not sufficiently take account of its specific circumstances.

The Minister discussed the application of this safeguard where it was an issue about the level of services and how they were provided. In the House of Commons Bill Committee of 8 February, col. 440, he argued that local authorities had to set a budget that was lawful and would enable them to fulfil their statutory functions. However, if such a lawful budget was deemed excessive, it would only stand if supported in a referendum; if not, it could logically be the position that the authority would therefore be unable to fulfil its functions. The fact that the Ministers may be satisfied in aggregate that local authorities have been provided with sufficient resources—and we might argue about that—does not mean that each and every one in the same category will be. It may be that a particular authority has encountered issues of provider failure, litigation and redundancy costs, possibly because it is in transition to a delivery model that the Secretary of State might find more acceptable. It may be that some of the issues, for example, relating to contract litigation, where it might be genuinely difficult to provide sufficient information for a realistic assessment in a referendum at a particular point in time, could be in point; indeed, it could be prejudicial to a local authority’s case for it to do so. Sometimes it would difficult to condense quite sophisticated legal issues into information that would accompany a referendum question. So we have two fundamental points that these particular amendments are seeking to probe.

What does the Minister see as the boundaries of the use of these provisions? Discussion at the other end suggested that they were only to be applied in extreme, catastrophic circumstances. We postulated other circumstances—but not routine—where a local authority should not be forced through a referendum with all the costs and uncertainties that this entails. Our amendment, as well as being a probe, also sets out an alternative route for a local authority to benefit from this provision, whatever its boundaries. There should surely be a right to some independent assessment of whether these provisions apply. I would not commit it to the precise mechanism that we have set down; I simply raise the issue of the principle. I beg to move.

[Lord Greaves]

My Lords, I have a later amendment, Amendment 129LEA, which is on its own. I would have included it in this group if I had quite understood what the latter part of the amendment tabled by the noble Lord, Lord McKenzie, was about. The new Section 52ZR, which the Bill would insert into the Local Government Finance Act 1992, provides for the Secretary of State to give a direction,

“that the referendum provisions do not apply”,

because,

“the authority will be unable to discharge its functions in an effective manner or … the authority will be unable to meet its financial obligations”.

When speaking in the stand part debate introduced by my noble friend Lord Shipley last week, the Minister referred to this briefly when he said that these provisions would be used only in very extreme circumstances, such as,

“where the High Court has exercised its powers to appoint a receiver where an authority has failed to service its debt”.—[Official Report, 30/6/11; col. 1971.]

I do not know how often that happens, but I do not think it has happened, certainly in England, in my lifetime. It seems very rare, so I tabled Amendment 129LEA for the purpose that the noble Lord, Lord McKenzie, tabled his amendment: to probe the Government on exactly what kind of circumstances this provision might be used in. In view of that, I will listen carefully to the answer in this grouping, and I will not move my amendment when we get to it.

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Thursday 30th June 2011 Lords Chamber

[Lord Greaves]

I am grateful to noble Lords for the discussion. It is an indication of the complexity of the issue that I have agreed with most of the things that most noble Lords have said on all sides; it is in no circumstances straightforward. As I hope I said, I moved the amendment to probe and, in order to probe, I proposed something quite different from what was in the Bill. There are good arguments on both sides. I firmly believe that local authorities, faced with what they might think of as a hostile referendum question, should be able to put their point of view forward and, if it is a complex question, should be able to explain it.

It is quite possible, of course, that the local authority will be in favour of the referendum question, in which case it is not clear why they should spend any money at all. Perhaps they think that the people organising it are incompetent and will not do it very well. Who knows? One can imagine lots of different circumstances.

I am firmly of the countervailing view that local authorities ought not to be able to get involved in promoting referendum campaigns which are effectively being put forward by parties or party-political candidates—or any candidate in local elections—for political purposes. That would be quite wrong and quite contrary to the present code of publicity. It is difficult to see how to draw up regulations which cater for both the extreme circumstances of a hostile referendum which the authority thinks would seriously wreck its strategy and policies in key areas and, on the other hand—

[Lord McKenzie of Luton]

Does the noble Lord have a view on whether local authorities should be able to campaign on council tax referendums, which are in a sense political because the policy is effectively decided by elected councillors? Would he support the right of councils to be able to campaign in those?

[Lord Greaves]

Yes, I would. Although it is important that local authorities should not get involved in party-political campaigning, the present code of conduct on local authority publicity is too restrictive. Local authorities ought to be able to campaign in a general way more easily and widely than they can at the moment if they believe that what they are campaigning for is in the interests of the people that they serve and represent. However, that is a wider issue. We have the code as it is and I do not think that there is any prospect of it being changed much in the near future. However, it will be very difficult to find satisfactory wording that stops local authorities intervening in elections and political matters, but allows them to defend their well thought-out and agreed policies and strategies against hostile attack. This matter has to be further discussed and considered and the various organisations involved, including the LGA and the Electoral Commission, have to be involved in that. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord McKenzie of Luton]

My Lords, we should thank the noble Lord, Lord Shipley, for introducing this clause stand part debate and for his very clear exposition of localism and what it means in terms of council tax. I agree with him that the provisions in the Bill amount to a capping regime. I am sure the Government will argue that local people do determine what is excessive if they support a referendum. That is a very narrow interpretation of the Bill. This is capping by another name.

We also have to acknowledge that successive Governments have reserved the right to limit increases in domestic taxation when they have been judged to be excessive. We certainly did as a Government, and I believe that the Conservative Government did. I am not sure whether the noble Lord, Lord Jenkin, is culpable as well. There are arguments about whether that is important for the overall management of the economy.

When the noble Lord, Lord Greaves, introduced his first amendment in our proceedings, he talked about localism being decisions being taken at the lowest possible level, but he acknowledged that there is a wider dimension that has to be taken into account in some instances. The impact assessment for the Bill—

[Lord Greaves]

I think I said “underpinning a minimum level of service”. I certainly would not apply it to council tax.

[Lord McKenzie of Luton]

Indeed. I was not suggesting that the noble Lord would have judged council tax to be one of those things, but I think there is an argument that it is. The impact assessment reminds us that some 36 authorities have been capped under legislation that this Bill will replace—I think that is since the power was first used in 2004-05—and 16 of those were subject to in-year designation and had to redo their calculations. Indeed, the architecture of the Secretary of State setting principles with the opportunity to look at different categories of authorities has been imported from the existing capping regime.

We feel constrained in denying the Government powers which effectively amount to capping powers and their right to influence levels of taxation in the broader interests of the management of the economy, anti-poverty strategies, et cetera because the reality is that each year the Secretary of State will set the benchmark for council tax increases and it is probably right that few councils will run the gauntlet of a referendum, given the costs and consequences of an adverse outcome. The impact assessment estimates the cost of a council tax referendum to be between £85,000 and £300,000. Should a referendum not be successful, the administrative consequences could be convoluted, with year-end refunds or credits against future liabilities and the possibility for people to ask for an in-year refund, so the systems and costs involved in those choices could be significant.

We are coming on to discuss the powers that the Secretary of State has taken for himself in framing how the referendum question is to be put and the constraints around expenditure. According to the impact assessment, the authority will not be able to campaign for its proposed council tax level. Given the debate we have just had about the authority’s role in referendums, perhaps the Minister will confirm that an authority cannot campaign for the council tax increase that it thinks is appropriate. Of course, we might expect the cards to be stacked against those proposing the increase. Councils are facing unprecedented dilemmas at present with budgets severely constrained and with front-end loading because the coalition Government’s approach to the deficit is to cut too far and too fast. The system will have to cope with the challenges of the localisation of non-domestic rates. If this is to happen, will not local councils be forced to look to that as a source of extra income before running the risks of referendums that would increase council tax? I am not sure that that would be good news for the business community, but perhaps the Minister will tell us—I know these things are embryonic at the moment—whether there will be equivalent capping-type regimes for a localised, non-domestic rate and, if not, what the likely impact of having these effective capping powers on council tax increases might be for the NNDR.

One of the other issues that arise from this in making an assessment about whether council tax levels are fair is how council tax rebate is going to work in the future. The Government are localising council tax rebate. Not only are they cutting 10 per cent off it in aggregate, but it seems as if it is going to be left to local authorities to make individual judgments about the scheme that they want to introduce and maintain. That runs contrary to giving powers to government to manage these things centrally, and is an added complication.

For the present, we will focus our efforts on trying to improve the provisions in the Bill rather than to do away with them, but we are mindful of the strong localist argument for not having these powers at all.

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Tuesday 28th June 2011 Lords Chamber

[Lord Greaves]

My Lords, Amendment 109A, which is on its own, is a long and apparently complex amendment, but it need not take us too long. It is about open space and what happens when open space is disposed of by local authorities. The amendment seeks to amend the Local Government Act 1972 to return it to something like its original form before it was amended in 1980.

The substance of this amendment comes from concerns raised by the Open Spaces Society, which argues that protections are insufficient, particularly around publicity, consultations and the requirement to consider objections. It is about urban open space in particular, which is precious and increasingly recognised as vital to life in towns and cities. The coalition agreement and government promises have made proposals for new designations and protections for green spaces in urban areas, although we have not yet seen the details. It would be a good time to strengthen protections for existing open space in these areas.

When we discussed a related amendment, Amendment 24, the Minister suggested that we might have a meeting to discuss the technicalities and see what substance the Government thought there might be in these proposals. Does she agree that perhaps we can discuss this amendment at the same time? On that basis, I beg to move.

[Lord McKenzie of Luton]

My Lords, I am grateful to the noble Lord for moving this amendment. We were not quite clear what was behind it but he has been very clear about the thrust of the amendment. We support its general direction, which is about protecting open space, particularly urban open space. I do question the use of the phrase “equally advantageous to the public”. I do not know if that is an existing term used in other legislation, but one of the requirements of the amendment is that it must be “not less in area”—understood; that is quite easy to determine—and is “equally advantageous to the public”. There will not necessarily be a single approach by the public as to the advantage of a particular piece of open space: it might be the tranquillity of the view or the opportunity for some recreation pursuits or indeed somewhere to walk the dog, whereas an alternative piece of open space may not be able to satisfy people in the same proportion or mix. I am sure that that issue could be overcome but I would be grateful if the noble Lord, when responding to the Minister, might expand a little on that test; the Minister may also have some views on that. However, I do see the thrust and the benefit of this amendment.

Localism Bill

Debate between Lord Greaves and Lord McKenzie of Luton

Thursday 23rd June 2011 Lords Chamber

[Lord Greaves]

My Lords, this is a substantive issue, which affects licensing. There is an important point here that needs addressing. I have no idea what the Minister will say in response to this, but perhaps some thought needs putting into it. The noble Lord, Lord McKenzie of Luton, said there was a clear distinction between quasi-judicial decisions and general policy. There is always an argument as to how quasi-judicial planning is, but there are some licensing functions which nobody can possibly argue are not quasi-judicial—not least because it is not very long since they were actually dealt with in the magistrates’ courts. One of the Local Government Acts—I think it is the 2007 one, but I am not sure—transferred the function of granting permission and licences from the courts to the local authority.

In my experience, there are two main areas. There are licence applications for events and entertainments. If you want to run a cinema or theatre or you want a temporary licence for a big shindig in the park, or whatever it is, you have to apply to the local authority for a licence. There are alcohol licences, as well as licences for premises, pubs, clubs and retail premises—for new ones and for changes and extensions to existing ones. Then there are occasions when there might be objections from the police to an existing situation where the question of revocation or restriction of the licence is considered. All those things are matters of public policy. They are not huge, overriding policies and will never be in a manifesto, but the question of whether a particular premise is a suitable place to be a pub or club is general policy. The question of whether alcohol should be sold from particular retail premises is a matter of policy and ought to be treated as policy. The removal of predetermination restrictions should apply to that. But if you are dealing with the question of whether a particular individual is a suitable, fit and proper person to hold an alcohol licence in any of those circumstances, that is not policy. Under those circumstances, judicial rules really have to apply, and you cannot possibly have people going round saying, “That man is a rogue”, or, “That man did my sister down”, or whatever it is, “and therefore I am going to vote against him having a licence”. Members of the licensing committee have to be trained, they have to carry out proper procedures, the whole thing has to be done by due process and it is a matter of whether an individual is a fit and proper person.

The other area is taxi licences for operators, drivers and so on. Again, these are matters that refer to a particular individual and to whether that person is an appropriate person to drive a taxi and carry a member of the public around, or whether they are an appropriate person to run a taxi business. The question of whether premises are suitable to be taxi offices is probably a planning decision rather than a licensing decision. That is public policy, in my view, and it is entirely reasonable that you should be able to go around an area meeting people who are concerned, or even campaigning, about it. The question about whether Joe Bloggs or whoever is a suitable person to run a taxi business or to drive a taxi is like the situation with alcohol licences: they are not questions that councillors should go around debating in public, or in private before the meetings. They are there as if they are magistrates, considering on the facts and the evidence, usually on the advice of the police, whether or not these people are suitable. There is a specific case there where the predetermination rules should be applied, and strictly. The purpose of moving this amendment is to probe the Government’s thinking on this issue. I beg to move.

[Lord McKenzie of Luton]

My Lords, I will be brief. I am not unsympathetic to the noble Lord’s amendment but I am not sure that I agree with the basis on which he proposes it. I think that he is distinguishing some circumstances where predetermination can be dispensed with from others where it should not. Without reopening the arguments that we have just been through, I do not believe that that is the import of Clause 14. In a sense, we are still awaiting the definitive government view on that. The issues around predetermination ought to run throughout the decision-making process. It is not quasi-judicial planning issues; there are lots of other decisions that councillors may make. As I understand it, if they have discretion on decisions, it must be real discretion. If they have pre-empted it by predetermination, there is the prospect that that decision will be unlawful, whatever area of decision-making is involved. However, I would not particularly disagree with taking those licensing operations outside the provisions of Clause 14.

--- Later in debate ---

[Lord Greaves]

My Lords, I had hoped that the Government might take a rather different view on this. Having listened carefully to what the Minister has said, I am now even more convinced that I am right and they are wrong. The Minister referred to libel and data protection. I am not sure that either has much to do with it. Data protection would come into it with personal details being divulged to whichever licensing committee it was, which are private and should not be made public. If councillors made them public, they would be liable for it.

However, that is not at all the point that I am making. For example, there could be two rival taxi businesses in a community. The taxi business is fairly cut-throat. People do not make a great deal of profit and work very long hours. There are attempts to do the other side down, perhaps in a legal way. One faction is larger than the other and gets to the councillor who happens to be on the licensing committee. They say, “We do not want you to give a taxi operating licence to this person or taxi driver licences to these people, because they will be able to expand their operation and compete with us. We will find it more difficult”. These are personal applications. It would be outrageous if that councillor went around saying, “Yes, I will block the personal applications for taxi driving or operating licences from this or that person”, before the meeting. Councillors should be banned from saying things like that. Any councillor who goes around making such promises should be banned from taking part in the decision.

These decisions, particularly the alcohol decision, were until recently made in magistrates’ courts. Can you imagine a magistrate being in that position: going around and promising a community that they will block a particular person from taking over a pub and being the licensee because that community wants somebody from that community who it favours? Imagine the pub is in the middle of a big estate, and the estate has somebody who they would like to take over the pub, but the owners have an alternative in mind. To go around campaigning against that person getting a licence to run that pub would be absolutely disgraceful. It should be banned by law.

The more I listen to the Minister, the more I am absolutely convinced that I have raised a genuine problem. I disagreed with the noble Lord, Lord McKenzie of Luton. He was saying that he wanted everybody to be treated the same, but he wanted it to be more restrictive for everybody. The Bill says that predetermination —I keep wanting to say “predestination”, but that is not quite it—should be abolished for everybody. I am not suggesting that the noble Lord, Lord McKenzie, is saying that, but it is what the Government are effectively saying.

[Lord McKenzie of Luton]

I do not think that that is what the Bill is saying. If predetermination equals a closed mind—I was trying to get an answer from the Minister earlier—and if predetermination as a concept is abolished, then there are very serious issues, particularly on planning and licensing arrangements, on which the noble Lord touched. That is the point I make about predetermination.

[Lord Greaves]

Yes, I accept that. I accept that there is a difference. It seems to me that there is a difference between the Government’s rhetoric and what they are saying will happen: that councillors will be freed from the kind of constraints that the wife of the noble Lord, Lord Newton, found, and which I found when I got back on the council. I think that relates to the probing that the noble Lord has usefully undertaken in the past hour or so, but there is no doubt that the regime will be more liberal than at present. We are probing what it will be exactly. The noble Lord said that it will be very radical and that perhaps we were not appreciating how radical it will be.

In general, I am fairly happy with that. However, I am not happy, and I suggest noble Lords should not be happy, about how it applies to applications for personal licences by individuals where they may be seen as controversial in the community. There may be other incidences as well. Let us look at an alternative. In a fairly built-up area, there are two corner shops which do not have alcohol licences but one of them applies for such a licence and the other one objects. The shop owner who objects could have lots of friends in the community who will instigate a petition, saying that the other shop owner should not have a licence. The motivation will be competition, not that the shop owner has spent the past five years in jail or is a fraudster or is generally unsuitable; it is simply competitive rivalry. As a result, the friends persuade a councillor with whom they have close connections, and who happens to be on the licensing committee, to oppose the licence. They hold a public meeting and present a petition. Surely that should not be allowed and yet, as I understand it, that kind of thing would be allowed under the new regime that the Government propose.

There is an important and serious issue here. I ask the Government to take the matter more seriously and to take more legal advice on it. On that basis, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Greaves]

My Lords, I am not sure we have had a may/must amendment yet on this Bill, but perhaps we have and I have missed it. This is an important amendment. I rise to speak to my amendments in this group: Amendments 97A, 98E, 98F and 98H. I will also speak to the other two amendments in the group, if I may.

There is widespread concern within local government that the Government have not got this exactly right. At the very least, it needs some fettling and a number of probably quite major changes if it is going to work fairly. As my noble friend Lord Tope said earlier, there is a widespread feeling in local government—it is not universal—that the demise of the Standards Board for England is to be welcomed. The Standards Board for England’s regime has turned out in practice to be expensive. It has been arbitrary in too many cases, and therefore it has been seen to be unfair. It has been open to abuse, and it has been open to attempted political manipulation, not by Standards Board members or its staff, but by people trying to use the system in order to do down opponents.

In our judgment, the removal of the Standards Board for England is a good idea, and we congratulate the Government on doing it, but something has to replace it. We cannot simply go back to the free-for-all situation we had up until about 20 years ago when standards codes and sanctions against councillors were hardly known. The system then seemed to work. There did not seem to be any more rogue councillors than there are now, and people did not seem to step out of line more than they do now, but the world has changed. We are now in a world in which standards in public life have come in and are accepted right across the board of everybody who takes part in public life. We have even had to grapple with these matters and come up with solutions here in the House of Lords. Local authorities are no different, and to pretend that local authorities generally, or some local authorities in particular, can be excepted from this situation is not the world that we are now living in.

The Government’s proposal in the Bill is that there will be no national system, no national organisations and no bureaucracies; it will all be left to local authorities. In our debate on a previous amendment, my noble friend Lord Taylor said that it will be up to local authorities to behave sensibly and do what they think is best in their area. There will be no uniform or national standards code, so each authority will be able to adopt its own code or not have one. It can keep, amend or do away with the present code. If any of my description of the present system is wrong, I hope the Minister will intervene and tell me, but I do not think it is.

Authorities will be able to choose whether to have standards committees. Since local authorities all have them at the moment and are institutionally fairly conservative bodies, most of them will probably keep them in one form or another, but it will be open to an authority not to have them, so there will be a hotchpotch pattern; they will be able to invent their own rules for how standards committees work within their own codes of conduct.

In addition, for the offence of failing to declare appropriate interests, either by not entering them on to a register of interests or by failing to declare them in meetings at appropriate times, the only real sanction left is the criminal law and, subject to the Director of Public Prosecutions’ agreement, people will be arraigned before a magistrates’ court if the DPP thinks it is serious enough. Meanwhile, parish councils will be left in some sort of limbo. They might be able to have their own systems or to continue to be part of a district council’s standards committee and system of standards, but if the local district council does not have one or decides to do away with it all, the parish councillors will have the choice either of doing it themselves, which might be rather difficult for small parish councils, or not doing it at all.

That seems to be the regime that is on offer. Perhaps the way I have presented it suggests that I am not terribly impressed with it. Nevertheless, I think my presentation of it is factually correct.

We have been here before and had something similar to this. When standards committees were first brought into local authorities, local authorities were left to do their own thing. Many of them did it very well, but in some places it was not done well. It was done either inefficiently or in an arbitrary, uneven or unfair way. In a small minority of places—it is always a small minority—it was not a good thing. It was fairly dreadful. Some authorities used it to victimise individual councillors in order to conduct campaigns against opposition groups on the council and to conduct witch-hunts against individuals. That is always the danger if local authorities in an area like this are left to their own devices, because there will be some places where malign, malevolent politics gets in the way of a fair system. Therefore, we propose in amendments in this group, and in the next group, which I will speak to later, a system in which every authority must have a standards committee. It seems ridiculous that someone could be dual-hatted or triple-hatted, and on three different authorities at different levels, some of those authorities having a standards committee and some not.

Equally, we are suggesting a uniform, standard, national code of conduct. We are not talking about local diversity. There cannot be local diversity about what is appropriate conduct for people in public life. We are talking about standards in public life. While standards and rules for councillors may be different from those for Members of the House of Lords, Members of the House of Commons, people on national quangos or whatever, the organisations are different. Nevertheless, they should be based on the same principles and underlying standards in public life.

There does not seem to be any reason why, if I am a member of a district council, a parish council and a county council, which I have no intention of being except for one of them, there should be a different code of conduct on each council. Surely, that cannot be right. Nor can it be right that of the 11 or 12 district councils in Lancashire, some do not have a code of conduct and some have a very different code of conduct from the adjoining council. Codes of conduct should be laid down nationally.

We are saying that the drawing up of the code of conduct and its approval should be done by local government and not by the Secretary of State or national government. It should be the responsibility of representatives of local government and, in terms of legislation, the LGA obviously is a key representative. We want systems for appeals and we want to sort out parish councils. We want to look at criminal offences, but they are in the next group so I will not talk about them any more at the moment.

On something like this there has to be protection for the public against rogue councils. Much as I have an underlying, innate aversion to national uniformity in anything, some things are so important and fundamental that they underpin everything else. This is the right way forward.

[Lord McKenzie of Luton]

My Lords, we agree with the noble Lord, Lord Greaves, that we cannot have a free-for-all and that it should be mandatory for every local authority to have a code of conduct. There should be a universal code and an appeals procedure. If that means that we would support each of these amendments, that is where we are.

--- Later in debate ---

[Lord Greaves]

My Lords, I apologise. I should have jumped up before the Minister. I will speak to Amendments 98K and 98M in this group.

On the two other amendments in the group, Amendments 98J and 98L, which would remove “and other” and “or other” respectively, an important, if not fundamental, point to be made is that the Government are proposing to use in this Bill language which in local government is rather out of date. Local government used to talk about financial interests and non-financial interests. If you had a financial interest, you had to declare it. You then had to do whatever the council instructed you to do, such as leave the room or sit there and not speak. If you had a non-financial interest, you had to declare it, but you were not usually subject to those sanctions.

My experience is that local government nowadays talks about personal and prejudicial interests, which are similar. However, prejudicial interests, while they include financial interests, are wider ranging and may include interests which are not directly financial but are nevertheless thought to be prejudicial to somebody taking part in discussion and debate. Personal interests, which have to be declared, are those which people should know about but are not thought to be prejudicial to people taking part in a debate. It seems to be common practice in local government nowadays for those words to be used. I was fairly sure that they had been used in the previous legislation, although I have not looked it up. Perhaps along with my noble friend, I would ask the Government to check the nomenclature, because there is no point putting in legislation words which are not now used on the ground and, in any case, are narrower perhaps, and less clear certainly, than the words and categories now used in local government.

My amendments in this group follow on from the amendments in the previous group. They are part of a package of the way we suggest the new standards regime needs to be changed. First, if there is to be a local system of councillors being sanctioned by local committees and no National Standards Board procedure, there needs to be an appeals procedure written into the system. There has to be a way in which someone who feels aggrieved by a local decision is able to appeal to a wider group against the sanction made against them. As I understand it, this is normal human rights and administrative tribunal procedure. In many ways these bodies will be operating as administrative tribunals and we hope that the Government will look at this issue. We suggest that it should not be a national quango such as the Standards Board for England and that it should not be run by central government; it should be operated within local government by representatives of local government and it should be set up in co-operation with the LGA. As my noble friend Lord Shipley said, we have set out ways in which this can be done.

My second point concerns parish councils. The Government have not bottomed the issue of parish councils on this new standards regime. I have a long briefing about the problems that it will cause to parish councils but I shall not read it all out. If parish councils have to operate their own procedures, there will clearly be resource implications. Big town councils might be able to do it—although it might be wasteful of their funding—but small parish councils will not possibly be able to do it. If there are many individual local codes so that parish councils operate different systems and some do not have any, how will members of parish councils be trained to understand the code? How will parish clerks, who play an absolutely crucial role, be trained in the new system?

My experience from talking to people involved in standards committee throughout the country is that where there are lots of parish councils they seem to occupy quite a high proportion of the time of standards committees. The reason for this is obvious: parish councillors are not getting the expert advice on standards matters—on declarations of interest and so on—which they ought to be getting; and parish clerks are perhaps not being trained or not passing on that advice. I am a huge fan of parish councils but there may be something about parish-level politics and government that leads to individual rivalries and encourages people to make complaints against each other. Whatever it is, there is no doubt that parishes form quite a large part of the workload of standards committees in many different places. To leave them adrift, as this Bill seems to do, does not seem the right way to go.

In our view, the parishes probably need their own system. That system ought to be operated via the established means of communication and training that parish councils have with the National Association of Local Councils and other bodies such as the county organisations, and there ought to be county-level standards committees for parish councils. Whatever the system is, doing it within the parish council community is a sensible idea—particularly if the parish council finds itself cast adrift with a district that does not have a system. In any case, if districts have different codes of conduct and different systems for standards committees, the parish councils will have to join in those willy-nilly whether or not they agree with the systems and the codes. A separate parish system seems to be the way to look at things.

My final point relates to criminal offences. Again, we think the Government have not thought this issue through properly. On failures to declare interests, a major failure is a very serious matter indeed, whether it be a failure to register or a failure to declare during a meeting. A minor failure would require a sanction—but not a draconian sanction such as being hauled up before a magistrates' court. Yet the government system seems to mean that if the offence of not declaring or not registering an interest is not sufficiently serious for the DPP to agree to prosecute, there will be no sanctions at all. That does not seem to be the right way forward.

As for the criminal investigations and vexatious complaints, that needs thinking through; there are enough vexatious complaints on standards already that end up with people being found not guilty and having no sanctions against them—or, in my case, the complaint was proved and the sanction was nothing. People can imagine what happened. There are enough cases of people using the standards procedure for political or personal vexatious purposes. Think of the prospects of this being used when criminal sanctions are possible. You would get massive headlines in the local papers that the complaints had been made, it would all come to nothing but the damage would all have been done. It has to be thought through a bit more carefully.

I join my noble friend Lord Tope in hoping that we can have discussions with the Government in the mean time and that at the very least we can get the thing thought through again. If no change occurs at the end of the day, so be it—but we are convinced that the Government have not yet got it quite right.

[Lord McKenzie of Luton]

I am not sure that we would agree with everything that the noble Lord has said, but we would appreciate the opportunity to join in the discussions with government together with the coalition parties.