Neighbourhood Planning Bill

Baroness Andrews Excerpts

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

[Lord Shipley (LD)]

My Lords, I have serious concerns about Clause 12, particularly about subsections (2), (5) and (6) in new Section 100ZA on pages 10 and 11. The Government are going to have to rethink this very carefully because, as it stands, Clause 12 will cause more problems than it solves. We have heard many reasons for this, but I will go further. What discussions have been held with the Royal Town Planning Institute? I ask the Minister that because it has sent a briefing on the Bill which states, broadly speaking, that there are advantages to pre-commencement planning conditions:

“These have certain advantages to applicants who may not be in a position to finalise details of a scheme but wish to secure a planning permission as soon as possible. They have advantages to local authorities because councils may have in practice limited legal ability to enforce conditions once a scheme is underway. Conditions are useful to the development industry in general because they enable schemes to be permitted which otherwise might have to be refused”.


If they were refused it would take longer and, as the noble Lord, Lord True, said, you may get faster and better planning decisions as a consequence of having pre-commencement conditions. Refusal of planning permission should, in general, be avoided because of all the complexities which are then introduced.

In telling the Committee what discussions the Government have had with the Royal Town Planning Institute, will the Minister explain what consideration they have given to the 15th report of the Delegated Powers and Regulatory Reform Committee, which was written substantially on the subject of Clause 12? It points out that,

“the national policy framework confirms that planning conditions should only be imposed where they meet six tests. They must be: necessary; relevant to planning; relevant to the development to be permitted; enforceable; precise and reasonable in all other respects”.

So that already exists within the National Planning Policy Framework.

Paragraph 12 of the DPRRC report states that,

“the Government want to take this power because ‘there is evidence that some local planning authorities are imposing unnecessary and inappropriate planning conditions which do not meet the tests in national policy, resulting in delays to the delivery of new development’”.

There may well be such examples. If they do not meet the six tests, there is already a legal statutory requirement to demonstrate that the six tests are applied. But in paragraph 26 of the report, the DPRRC asked for,

“specific examples of pre-commencement conditions to help us understand the effect of subsection (5)”—

which my noble friend Lady Parminter talked about—because:

“None appeared to be included in the explanatory material accompanying the Bill”.


The committee had to ask the DCLG to provide a list of,

“details that developers have had to provide to local planning authorities before building works could begin”.

There are nine things on that list. With my long experience in local government, I can see a very good case for all nine of them. I will come back to this, with some practical examples of what goes wrong if you do not have pre-commencement planning conditions. But when I read that,

“installation of superfast broadband infrastructure”,

is not deemed to be required as a pre-commencement condition, I think this is wrong. We ought to have agreement on superfast broadband infrastructure, since within the next few years every part of the country is going to have it.

I will say more about this issue when we debate whether the clause should stand part of the Bill, but it seems to me that if that is the extent of the problem, the things listed are not in themselves significant problems. I am really starting to think that Clause 12 is not a good clause. We will look at this further on Report, but at present I have to say that this clause will cause more problems than it solves.

[Baroness Andrews (Lab)]

My Lords, I will follow the noble Lord, Lord Shipley, in his masterly demolition of Clause 12. My first point concerns the notion of relevance. Clearly, the committee really struggled with notions of relevance and found itself quoting, in paragraph 13, the memorandum, which illustrated,

“examples of the types of condition that the proposed power would prohibit. They include: ‘those which may unreasonably impact on the deliverability of a development, those which place unjustifiable and disproportionate financial burdens on an applicant, or those which duplicate requirements to comply with other statutory regimes’”.

That could probably cover every single impact of every aspect of development. These are vague and general in the extreme, so no wonder the important conclusion of the committee was that it would be,

“inappropriate for the Government to be given a power which could be used to go well beyond the stated aims of the Bill”.

Were these regulations to be enacted, the committee recommended that,

“the affirmative procedure should apply to the exercise of the powers”.

Do the Government agree that if this clause stands, the affirmative procedure will indeed be adopted?

The Delegated Powers Committee, on which I had the honour to serve for many years, does not make such recommendations lightly. This is a very serious indictment and a very serious conclusion. Do the Government intend to accept that the affirmative procedure should apply in this case?

[Lord Judd (Lab)]

My Lords, I find these amendments very important and significant. If we are going to tackle the issue of regulation, it is terribly important that we get it right and that we tackle the real problems, not just theoretical problems or those identified by people who are discussing the issues at a rather remote level.

Let me be very direct: I live five miles outside Cockermouth, in the Lorton Valley. There is a tremendous debate going on at the moment about development in Cockermouth. It is not about whether the houses being built are liable to flooding; that is an issue, but it does not seem that they will be. However, people who have suffered terrible flooding experiences more than once in recent years now say that there is a risk that what is being done will contribute to the flooding of other people’s homes, because the drainage arrangements necessary for the number of houses being built are inadequate. This is a real issue and in our approach to it, we need to be careful and the Government need to take the points raised in these amendments seriously. This is affecting people now, and there is real anxiety. That anxiety is accentuated because in Cockermouth and the surrounding area, people are not convinced that the arrangements being made will prevent the repetition of flooding in future years. A great building programme is going ahead before the people directly affected have been assured that arrangements are in hand to meet the challenges that have arisen.

The issues raised this afternoon are crucial. I hope the Government will think hard about whether the clause is necessary and, if they are determined to go ahead with it, ensure that it meets the real issues that are affecting real people in real situations.

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Moved by

[Baroness Andrews]

59: After Clause 13, insert the following new Clause—
“Compulsory acquisition: payments from charitable trusts involved in conservation
In a case where—(a) a local planning authority has the power to compulsorily acquire a listed building or a building in a conservation area; and (b) a charitable trust whose objectives include the conservation of such property has given an obligation by deed to the local authority to pay to the local planning authority the costs of such acquisition;the planning authority must exercise its powers to compulsorily acquire the relevant building.”

[Baroness Andrews]

My Lords, I declare an interest as deputy chair of the National Heritage Lottery Fund and chair of the Heritage Lottery Committee for Wales. We live in a time when every national and local asset needs to work for its living. Across the United Kingdom there are abandoned, and often derelict, properties, many of high heritage value and well loved by the community, that could be providing much-needed homes and spaces for businesses and enterprise and injecting new economic activity into communities. In other words, the amendment is a step towards enhancing the means by which these liabilities can be turned into assets. I am grateful for the help I have received from the Heritage of London Trust Operations, Diana Beattie and Colin John, and Ian Morrison of the Architectural Heritage Fund. They have much fine work to their credit.

What opportunity is this amendment seeking to create? Many of the buildings I am talking about are already on the Historic England buildings “at risk” register. They range from rare surviving industrial buildings such as mills or colliery buildings to historic theatres, cinemas, schools, piers, magnificent town halls, hospitals and domestic buildings such as a concrete house in Lordship Lane. Buildings such as these have been at the heart of communities. They occupy a very important, familiar and well-loved place. When they are abandoned, the cost of saving them and putting them to use rises exponentially and they deteriorate fast. Owners cannot be traced and local authorities find it impossible to acquire them. Year after year they look worse and become more dangerous, and the community feels their loss even more acutely.

This problem has been in the “too difficult” box for too long. It is no exaggeration to say that when these buildings come back into life, they galvanise the entire area: they can act as a catalyst and a confidence builder. I think particularly of Middleport Pottery in Stoke, the last surviving example of a pottery using the transfer method. After a long struggle by the Prince’s Regeneration Trust and English Heritage to keep it alive, it is now bringing in apprentices and its order books are full.

The amendment, which to my knowledge is the first of its kind to be proposed in primary legislation, is designed to tackle this problem. It confronts the fact that both the country’s heritage and its economic performance are, as the Architectural Heritage Fund puts it,

“suffering from an embedded culture of impunity for private property owners who are not upholding their responsibilities”.

At the moment, the system colludes with both negligent property owners and risk-averse local authorities. Owners are sitting on their property waiting for land values to increase and for the degree of deterioration which, in many cases, justifies demolition. Some of these owners cannot afford to put the building right; some refuse to do anything and they disappear. There are many ways in which a recalcitrant owner can resist a CPO. Some owners fail to respond and disappear. They are particularly threatened by any attempt by a community organisation to engage with them. That is frustrating, since to win a CPO case the public body has to be able to show that it has tried and failed to resolve the future of the property by negotiation with the owner. But the owner may be in a tax haven overseas and the property in the hands of a nominee. Alternatively, the owner may launch a series of frivolous appeals or put forward new and ludicrous planning proposals. He can try to block a CPO by claiming that he is about to start work—but the work is never begun, or sometimes it is started and then the owner just walks away.

The 2015 locality investigations under the Community Assets in Difficult Ownership project illustrate how easy it is for ownership to become a block on action. Local authorities have powers to act, of course, including compulsory purchase powers, but many feel that the process is simply too complex, too expensive and too slow. The costs are high because in addition to the compensation to be paid, the CPO may also have to be fought through the courts or at a lengthy public inquiry. There is every incentive for the owner to prolong the case. The risks arise from the possibility of the case being lost, the delays and the unpredictable costs; and sometimes by the time the CPO is confirmed, the other policy objectives which drove the process may have changed.

Another issue is that community organisations lack specialist knowledge and advice, which is a particular problem when what is needed is investment to establish the viability of a project in the first place, so it is all the more to the credit of organisations like the Heritage of London Trust, because when such bodies undertake a project like saving St. George’s Garrison Church, it is very hard work and a triumph when it is achieved. We have other outstanding local authorities like Great Yarmouth, which has made tremendous progress in bringing its buildings back to life.

The new clause is very simple and I commend it to the Minister. In effect, it means that where a charitable body that could be a buildings preservation trust or any form of charitable body, such as a community interest trust with conservation objectives, has given a deed of obligation to the local planning authority to pay the costs of acquisition, which are set by the district valuer, the local authority must exercise a CPO. The deed would be in effect a form of contract, even though I understand that it can be a unilateral undertaking such as those attached to planning applications. The costs of acquisition will involve all the transaction costs, thus removing any risks associated with taking over the building itself. In some cases of extreme negligence, the costs have been assessed as nil. Clearly, no sensible charity would enter into such an obligation without having the capacity to cover the costs, and a local authority will do its due diligence as well. Once the deed of obligation is in place, the local authority is then required to exercise the compulsory purchase order that will enable the conservation charity to acquire the building, which will then be restored and brought to life. Ultimately, the decision will rest with the Secretary of State, who will decide on the basis of the risks removed and the possibilities raised.

The amendment would achieve two things. It would first break the logjam of no one wanting to undertake any initiative because of the costs of acquisition. Secondly, it would provide a greater degree of certainty for community groups to enable them to undertake creative projects for the benefit of all. The amendment is carefully crafted and has been the subject of a great deal of legal advice and consultation with conservation and heritage bodies. It is also central to the principles of this Bill, and to localism as a political construct. It would free up resources for housing and enterprise and for vital community development at the heart of communities. It would serve our heritage in the best possible way by making it part of the future, and it comes with the moral backing of all the national heritage bodies.

The housing White Paper is imminent, and I will be amazed if there is no reference in it to this issue. We know the scale of the challenges facing the country, including those of Brexit, so this is a very timely and plausible proposition. I very much hope that the Minister agrees with me, and I beg to move.

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[Lord Young of Cookham (Con)]

My Lords, at this stage of our flight, the co-pilot takes over. After a very smooth passage with my noble friend at the controls, there may well be some turbulence. I am grateful to the noble Baroness for moving this amendment. She chaired English Heritage for four years, so she has a proud record in the conservation world. I applaud the way she is carrying forward that commitment by tabling the amendment to insert a new clause. She is well qualified and well informed on this issue. As she said, listed buildings are an important part of our environment: they create a sense of identity in a locality and support local economies by attracting visitors. As my noble friend Lord Trenchard said, this offers the opportunity to provide housing in some restoration projects. I also commend the intervention from the noble Lord, Lord Beith, and the work done by him in his particular field.

We all support the objectives of the amendment, but there may be alternative routes to the common destination. The noble Baroness has been a CLG Minister herself, so she may feel some empathy for someone who, having listened to a popular and powerful case for a well-argued amendment, picks up the departmental brief which has at the top, “Resist”. I have two points of my own to make. Listening to the debate, I wondered if there had ever been a case where a charitable trust had done exactly what the noble Baroness had suggested—raised all the funds and then presented the local authority with an indemnity—and the local authority had refused to go ahead with a CPO. If there was such an example it would be relevant to the case that is being made.

My other thought was that, having sat patiently through the debate on this Bill, I have noticed a recurrent criticism that we are fettering the discretion of local authorities. We are accused of not trusting them, of passing primary legislation which makes them do things. The amendment does have the words “a planning authority must”. What is the view of the LGA, which is very well represented in the Committee? Does it welcome the discretion of its members being fettered in the way that the amendment seeks to do? Having said that, the noble Baroness was quite right to remind us that local authorities have the ability to compulsorily purchase listed buildings that are in need of repair. It is an important weapon in their armoury to protect our built heritage.

If one looks at the guidance provided by the Government, paragraph 16 of the compulsory purchase guidance notes states that it specifically provides for local authorities to consider requests from community groups—which could include heritage trusts—to use their compulsory purchase powers to acquire community assets that are in danger and, under the guidance, local authorities are required to consider such requests and to provide a formal and reasoned response.

In a sense, the onus is already on the local authorities to explain why—were they presented with the sort of offer that we have just heard—they feel they cannot accept it. It is also the case, as the noble Baroness said, that heritage trusts have access to grant funds and other sources of income to enable them to carry out the preservation of listed buildings and bring them back into use. What this amendment seeks to do is, in effect, to lock in a statutory embrace the heritage trusts on the one hand with the resources and the local authorities with the CPO powers on the other. I am slightly worried that this might undermine the collaborative approach which I think works quite well at the moment. As has already been said, the CPO power exists, but I am not convinced that the relationship between the local authority and the trust would be assisted if the local authority knew that the trust had this sanction behind it to compel it to do something.

On the point made by my noble friend Lord Trenchard, Historic England is working with local authorities and giving them advice and financial and technical support in many cases where listed buildings are falling into disrepair, enabling a satisfactory solution to be arrived at. That collaborative approach is the way forward. A good example, which if it were not 7.56 pm I would share with the Committee, is Hastings Pier which was restored in exactly the way that has been outlined.

The noble Baroness has commented that absentee owners are difficult to deal with or if the owners or reputed owners do not engage with the compulsory purchase process it can proceed without them, and the acquiring authority only has to make a reasonable attempt to find them. That attempt includes information in CPO notices simply displayed on site, as well as being sent to the last known address of the owners—then they can proceed.

So far as the trust is concerned, the cost of compulsory purchase is not always easy to assess. There could be court challenges and it could end up in the High Court. The defence of a legal challenge would fall to the trust and any failure of a trust to meet its responsibility to indemnify the local authority would put the trust’s future in jeopardy and the local authority would be liable for those costs.

In a nutshell, the Government are not convinced that the noble Baroness’s amendment to compel a local authority to proceed with a compulsory purchase would have a significant effect on the use of the CPO legislation. The current process provides a balanced approach, allowing local authorities and heritage trusts to enter into mutually acceptable arrangements. It encourages collaboration between local authorities and heritage trusts, and as I have said, that approach could be jeopardised if an element of compulsion were to be introduced.

I am happy to reflect on the dilemma which the noble Lord, Lord Beith, outlined about local authorities’ reluctance to take things forward. In the meantime, with the greatest respect, I ask the noble Baroness to withdraw her amendment.

[Baroness Andrews]

My Lords, I am very grateful to the Minister. I detect a sympathy beneath his detailed rebuttal. I am also very grateful to Members who supported the amendment. The points the Minister made are worth reading properly and I will go on to do some research in connection with the heritage bodies about the response of local authorities and the effectiveness of the guidance. There is an argument which says that advice and guidance are fine as far as they go, but what we are looking at here is case after case across the country of deep frustration, of failure of capacity and of fairly old resources. I take the point about an element of compulsion, but there comes a point in all forms of policy where something more draconian needs to be considered as part of a conversation about what the alternatives are, otherwise we will never move away from the sort of stasis that we have had over sometimes magnificent buildings but which are a blight and an eyesore when they could be so productive in the community. We will rise to the challenge and see whether we can come back. We may be back before Report with evidence, but in the event, I certainly withdraw the amendment.

Amendment 59 withdrawn.