Localism Bill

Debate between Lord Jenkin of Roding and Baroness Hamwee

Monday 17th October 2011 Lords Chamber

[Lord Jenkin of Roding]

My Lords, the Minister deserves complete support. When we debated this in Committee, I made the point that the clause did not change the law at all. My noble friend made this clear and stated that there had been confusion, which the amendment was designed to remove. The noble Baroness, Lady Parminter, spoke eloquently. Her noble friend Lord Greaves suggested that perhaps, in order to remove doubt, it might be helpful if the Government could clarify the extent of the clause and explain that it did not put financial considerations above all others, but that it was entirely for the planning authority to determine what weight should be given to them. That has been done. I find myself very unsympathetic to the argument advanced by my noble friend Lady Hamwee that by going on and trying to make this clear, my noble friend is digging himself deeper into a hole. That is very unfair. He recognised the concerns that were expressed in Committee and moved an amendment that puts the matter beyond doubt. He deserves complete support.

[Baroness Hamwee]

Perhaps I may clarify that I am not suggesting that the hole is of the noble Earl's making.

Localism Bill

Debate between Lord Jenkin of Roding and Baroness Hamwee

Monday 12th September 2011 Lords Chamber

[Lord Jenkin of Roding]

My Lords, noble Lords may recollect that on several occasions during the Committee stage I was moved to criticise and protest about the mass of detailed prescriptive measures in the Bill, with the prospect of more to come through the battery of regulations that are foreshadowed in the legislation. My main point can be stated very simply: at the centre of Part 1 is the welcome provision that gives local authorities a general power of competence. Whereas in the past they could do only what statute allowed them to do, now they will have the same competence as individuals. In other words, at a stroke local authorities can cast off the shackles of government control. Yet at almost every point in this Bill, in every part and schedule, there are pages and pages of directions going into the minutest detail of how local authorities must implement these provisions.

As I pondered this my mind went back to what is, I am afraid, another anecdote in the form of an old political joke. A communist orator was haranguing the crowd saying, “It’s the rich who have their dinners at the Ritz hotel and the poor have to go to Smokey Joe’s. But when the red revolution comes and you get your freedom, it will be the rich who will have to go to Smokey Joe’s and you’ll be able to eat your dinner in the Ritz”. The little man at the back put up his hand and said, “I’d rather go to Smokey Joe’s”. The orator said, “When the red revolution comes and you get your freedom, you’ll damn well do what you’re told”.

The local authorities associations have made it very clear that they dislike being told how to do things. They dislike being told how to write letters, how to conduct referendums, how to co-operate and much else besides. I voiced their dissatisfaction and I was not alone. In all parts of the House, noble Lords supported my protests, and at times I became quite heated.

My noble friend Lord Tope, who is very experienced in these matters, noted that there has been a culture in Whitehall whereby they feel they have a duty to tell local authorities how to carry out their functions. However, he also noted that the local authorities themselves have absorbed that culture to the extent that they now expect to be told how to do things. My noble friend on the Front Bench has already indicated some movement in this and we are very grateful.

Before the Recess, I sought out my right honourable friend Greg Clark, the Minister of State in charge of the Bill. He agreed to meet me with a deputation from the Local Government Association and London Councils. At that meeting, which happened a few days after the start of the Recess, we set out our concerns and provided him with a long list of detailed provisions, which we believed could be dropped without affecting the purposes of the Bill.

After discussion, the Minister agreed. He agreed that his officials and those of the associations should get together during the Recess with a view to agreeing what might be dropped. Last week I was sent a long letter from the department setting out the amendments whose purpose Ministers were minded to accept, others which they were reluctant to accept, and some where decisions still have to be made. It was not everything but it is a very good start. I expressed my pleasure both to the officials and to the Minister.

The House has already welcomed Amendments 120 to 131 removing the powers to make regulations in respect to area committees and conditions which apply to the creation of such committees. We have also just accepted Amendments 132 to 150, substantially simplifying the scrutiny provisions, and these certainly stemmed from the discussions.

I am told other amendments will be tabled about the frequency and conduct of referendums. We will also come to the amendments on the right to challenge, Amendments 197E to 197G, where there is to be guidance instead of statutory prescription. There are also amendments on the community right to buy, Amendments 203, 203B and 203C.

These are a very welcome start and there is the prospect of more to come, especially on planning. Some of my amendments in the group, led by Amendment 155, have been dealt with, and I warmly welcome the government amendments in the group.

I end by picking out two of my amendments—it would be tedious to go through the lot—that have not been accepted so far. They are Amendments 158 and 159 on referendums, and Amendment 204 on the duty to co-operate. On referendums, there are two distinct issues: first, when and in what circumstances a referendum should be held; and, secondly, how they should be conducted. On the first issue, it would seem sensible to deal with that on each occasion that it comes up in the Bill, because they may differ from case to case. On the second issue, however, it really is necessary to stop telling local authorities how to suck eggs. They have great experience in running referendums and they should be trusted to do that properly, not have to be told how to do it.

Amendment 204 refers to the duty to co-operate set out in Clause 98. I really do not believe that local authorities need to be told how to co-operate. They, after all, have been co-operating with each other for a very long time and it is an impertinence to have to spell out in the Bill how they are supposed to do it. They are well accustomed to doing it and they should be trusted. I hope that my noble friend may be able to comment on both the referendums and the duty to co-operate.

I referred at the beginning of my speech to the culture—perhaps it might be better called a mindset—whereby Whitehall feels that it has to tell local authorities how to conduct their functions, while the local authorities expect to be told. If the general power of competence is to mean anything in practice, that culture—that mindset—has to be changed. The best way to start changing it is to stop doing it. I beg to move.

[Baroness Hamwee]

My Lords, unless the Minister is about to move the government amendments—I was wondering whether she was going to do that—perhaps I should keep going.

Localism Bill

Debate between Lord Jenkin of Roding and Baroness Hamwee

Wednesday 20th July 2011 Lords Chamber

[Baroness Hamwee]

My Lords, my noble friend Lord Greaves, who tabled this amendment, is unable to be here this afternoon—sadly for us, maybe not for him. Clause 124 deals with local finance considerations in connection with applications for planning permission. It provides that local finance considerations may be considered in dealing with those applications in so far as they are material to the applications. My noble friend’s amendment provides:

“For the avoidance of doubt”,

the relevant subsection,

“should not be read to imply that any greater weight should be placed on local finance considerations than on other material considerations”.

My noble friend Lord Greaves knows, because we discussed it yesterday, that this is not my preferred option, but I am very happy to move it in order for it to contribute to the debate.

We have heard that, in this reference to local finance considerations and their materiality, there is no change to the law and that this is merely a matter of clarification. Indeed, that is what the amendment says. Perhaps it is necessary to make it clear that the materiality of financial matters should be no weightier than other material considerations. However, it is important—indeed, essential—to be clear that planning permissions cannot be bought and sold and that they should not be thought of as being able to be bought and sold.

The issue is topical because of the new homes bonus announced by the Government. In their response to consultation on the bonus in February this year, they said:

“Local planning authorities will be well aware that when deciding whether or not to grant planning permission they cannot take into account immaterial considerations. The New Homes Bonus cannot change this, and nor is it intended to. Local planning authorities will continue to be bound by their obligations here”.

This bonus is not the first matter on which finance and planning have come together on a list of matters which a local planning authority has to consider. Noble Lords will be familiar with Section 106. The not bought or sold issue was stated unequivocally in Circular 05/05, which deals with Section 106:

“The use of planning obligations must be governed by the fundamental principle that planning permission may not be bought or sold. It is therefore not legitimate for unacceptable development to be permitted because of benefits or inducements offered by a developer which are not necessary to make the development acceptable in planning terms”.

That is fine so far and, I should have thought, fine as regards any new source of finance. However, Clause 124 raises a number of issues, of which I shall refer to just two. One is material considerations. That term has been defined in case law, not statute, since the birth of our town and country planning system in 1947. The second raises the issue of how government incentives are to influence planning decisions. The Royal Town Planning Institute commented on this. It stated:

“The RTPI recognises that the use of incentives to stimulate development is at the heart of the Government’s approach to growth. However, we firmly believe that the point at which incentives should affect policies and cultures is when local authorities and communities are preparing plans for their areas—not at the point of deciding on the individual applications that deliver that plan”.

As I said, that is the view of the RTPI and it is my view as well.

If there is no change in how material considerations are to be dealt with, not only, in my view, is it not necessary to provide for this in legislation but it is positively harmful. Clause 124 must mean something and I think that it can mean only the elevation of financial considerations above others. Can this not be dealt with by circular or guidance in the way that these matters are currently dealt with?

I have a question for the Minister, of which I have given him notice. Can he explain the case law or anything else that has led the Government to take the view that the position needs to be stated in primary legislation rather than simply confirmed in guidance? If it has to be referred to in primary legislation, why is there not just an obligation on the Secretary of State to issue guidance to the local planning authority so that it has regard to local financial considerations so far as they are material to the application, as well as regard to the provisions of the development plan so far as they are material and any other material considerations?

I hope that I have been clear about the danger that I believe exists in trying to address a problem that is not there. By doing so, you suggest that there is an issue which you are denying—have the Government stopped beating their wife yet? My strongly preferred solution is to remove the clause entirely, but I am very happy to move my noble friend’s amendment because it raises issues on which I hope the Government can reassure the Committee today. I beg to move.

[Lord Jenkin of Roding]

My Lords, my noble friend Lady Hamwee has put a very convincing case. Like others, when I received a flood of representations from a number of environmental and other bodies that the clause opened the door to buying planning permission, I thought to myself that that cannot be right. I looked into it and, of course, I found that the provision is really intended to be a restatement and clarification of existing provisions. I shall not repeat what my noble friend has said about the Town and Country Planning Act 1990 and her reference to any other material considerations.

In his absence, I say to my noble friend Lord Greaves, who has taken a great deal of time during the passage of the Bill to put his views to the House, that I think this is a brilliant amendment. It exactly meets what we want to say. We need a restatement of the law and it would not surprise me at all if my noble friend indicated that that was the legal advice which the Government have had. However, it is right to say that finance is no more material than any other consideration that a planning authority has to take into account. I would be perfectly happy with the clause if amended in this way.

My noble friend Lady Parminter’s opposition to Clause 124 standing part forms part of the first grouping on the list and I thought, “Gosh, this must be important”. I think this matter has been blown out of proportion. Nothing in this suggests that planning permission can be bought and sold. Other provisions, which we discussed earlier, such as the community infrastructure levy, the whole question of Section 108 and various other measures, are all important planning considerations. As I understand it, this clause with the amendment is exactly what the House should want. I very much support it.