Neighbourhood Planning Bill

Baroness Cumberlege Excerpts

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

Moved by

[Baroness Cumberlege]

1: Before Clause 1, insert the following new Clause—
“Duty to uphold neighbourhood development plans
(1) The Secretary of State has a duty to uphold neighbourhood development plans, and in fulfilment of that duty must not seek to override neighbourhood development plans except in exceptional circumstances of national importance.(2) The Secretary of State has a duty to ensure that local planning authorities have sufficient resources to enable them to own, implement and defend neighbourhood development plans.(3) If it is deemed necessary to override a neighbourhood development plan and require the provision of additional housing, the Secretary of State must—(a) have regard to the policies of the neighbourhood development plan, in particular, policies on employment opportunities; and(b) inform the local community of the number of houses and types of housing required.(4) If a neighbourhood development plan has been overridden in accordance with subsection (3), it is the responsibility of the local planning authority, in consultation with the local community, to decide where it is most appropriate to provide the additional housing, and their decision must be accepted by the Secretary of State unless there are exceptional reasons of national importance not to do so.”

[Baroness Cumberlege (Con)]

My Lords, I start by declaring an interest: I have a legal case concerning a planning application pending at the moment. I have taken advice from the Clerk of the Parliaments and been told that the sub judice rule does not apply in my case.

We had a very interesting and wide-ranging debate at Second Reading. I thank my noble friend the Minister for his introduction to the Bill on that occasion, and for his courtesy and his very thorough winding-up, in which he undertook to inform noble Lords of the process he wanted to work through. He said he wanted to be inclusive. He has certainly been so until now, and I am sure he will be in future.

The Bill reflects the very foundations of society. It is not just about building houses, although they are very much needed; it is about building homes, strengthening communities and ensuring that we create better lives for future generations. As my honourable friend Gavin Barwell, Minister in the Department for Communities and Local Government, has said:

“Done well, with genuine local consent, garden villages and towns can help tackle the housing crisis. They can be preferable to what is currently happening in too many parts of the country—poor quality developments plonked on the countryside, in the teeth of local opposition and in defiance of good planning principles”.


He is absolutely right. Developments plonked in the countryside without a community infrastructure have no soul and are uncared for, unloved and unalterable. Through my amendments I seek to mark a real change: good planning with tight boundaries that is less top-down and gives more respect and power to local people.

It is the duty and the right of the Secretary of State and Ministers to establish a policy and set the types and numbers of houses to be built in each planning area. Thereafter it is for the local planners to decide how best to deliver these policies in conjunction with people who know their neighbourhood intimately. No Government can understand the nuances of every local authority. Local people must be allowed to build communities and that takes time and skill. My amendments, therefore, are based on trust—trusting people, respecting people and enabling those people who know their beat best.

We are beginning to trust people in the health service with personal budgets and we know they work. We are trusting parents and schools to define their own standards. We must do the same for planning. Just houses without integrated communities are at risk of becoming drug alleys, and of contributing to family breakdown, crime and despondency, which have huge costs for people and those who try to deal with the devastation left behind.

My proposed new Clause 1(1) places a duty on the Secretary of State to uphold neighbourhood development plans, which can be overridden only in exceptional circumstances of national importance. The purpose of my amendment is to delineate between the responsibilities of central government and those of the local planning authorities. The Secretary of State is responsible for strategy and local authorities for implementing the strategy. There is huge danger when these two roles are confused and the Secretary of State and the department start to meddle in the detail of something of which they know little. I am not criticising them; they are not equipped to understand the nuances, history, thinking and understanding of local communities. Surely that is what localism and neighbourhood planning are all about.

In proposed new subsection (1), I conclude that the Secretary of State should be able to intervene in matters of national importance; that is, to prevent neighbourhood plans being used to frustrate national schemes. These include, very topically, HS2, airport expansion, major highways or rail schemes, military necessities and so on.

Proposed new subsection (2) would place on the Secretary of State a duty to ensure that local planning authorities have sufficient resources to enable them to own, implement and defend neighbourhood plans. Drawing up a neighbourhood plan is costly. It is costly to the makers of the plan—who are frequently volunteers—as they can spend an inordinate amount of time drawing it up. Those in work lose financially. It is also financially costly to the local planning authority, since the Bill introduces a new procedure for making modifications. This will require additional guidance from officers and a new examination, which will place an additional burden on local authorities. Every time a parish or town council seeks to make changes, the planning authority will be expected to review the plan, provide guidance and take it through another examination. So far, costs have not been assessed in terms of the modification which some neighbourhood plans will require. Perhaps this is something we shall address through regulation or the promised White Paper, which we are told we will receive before the next stage of the Bill.

On top of this, costs for planning appeals can range from £10,000 to £50,000. The neighbourhood plan is owned by the local authority and, on occasions, it will have to defend the plan with its associated costs, including fighting planning appeals. Developers make no secret of poaching the best staff from local planning authorities and paying them more. Planning authorities struggle and are wrong-footed, unable to cope with the demands of developers. This is detrimental to good planning. Good-quality planners must be better paid.

I turn to proposed new subsection (3). As I explained, there can be situations where—regrettably, but with good reason—the Secretary of State finds it necessary to override a neighbourhood plan. Even so, he or she must have regard to the policies in the plan. If it is necessary to vary the neighbourhood plan, it may be to provide more houses than originally anticipated. This should not be a free for all among developers. The planning authority should instruct the neighbourhood plan makers to make the required provision and ensure that this is done legally and correctly in the interests of the community. This may mean considerable modification to the neighbourhood plan. In our case, there are a number of policies in the plan but, particularly, the requirement of a break between parishes, no more five-bedroom houses, no street lighting and the incorporation of opportunities for employment. I could go through these, but I shall not because of the time I have already taken.

I want to mention one policy because it goes across a lot of neighbourhood planning. Employment is one of the policies in our plan on which we are very keen. We need employment. In the Second World War, our lanes were turned into roads. We have had no improvements since the first tarmac was laid. We excel in congestion and pollution. Trains are so full that you cannot get a seat—and that is when they do run. The policy was refused because we do not have a square on the map saying “industrial estate”. We want employment threaded throughout the community, such as in Poundbury in Dorset. Dorset Cereals and other employment gives Poundbury a sense of purpose and pride. We need diversity and we want the Secretary of State for Communities to be exactly that, not the Secretary of State for dormitories.

Proposed new subsection (4) recognises that when the Secretary of State overrides the neighbourhood plan it is the responsibility of the local authority, working with the local community, to decide where the most appropriate sites will be for additional development. The people who formulated the neighbourhood plan have scrutinised every aspect of their community, through consultation and data collection. It is respectful and prudent for those people, in consultation with the local planning authority that advises them, to decide where best to build additional houses, and when they should be built within the time set up to 2030, unless specifically directed towards another date.

It must be recognised that if a neighbourhood plan is overridden, 10 other changes to it may be necessary, commensurate with the degree of change. Simply accepting a planning application that happens to be submitted, which may or may not have any synergy with the neighbourhood plan, is not generally compatible with good planning. That is what the Minister, Gavin Barwell, has conceded. The Government and Whitehall cannot appreciate intimate details of a community’s life. When Governments or inspectors think they know best, there is huge annoyance and resentment. Again, people will do a better job when their decisions will be more respected.

I hope my noble friend will consider these points, that he and his officers will see some merit in them, and that we can come to some agreement on how they might be incorporated in the passage of the Bill. I very much look forward to his reply. I beg to move.

[Lord Stunell (LD)]

I declare an interest as a member of a neighbourhood forum in an unparished area at an early stage of development. I will speak very much in support of what the noble Baroness, Lady Cumberlege, said today and at Second Reading in her very eloquent presentation of the difficulties her area faced.

The balance has tilted from the need to defend local plans and local communities’ building plans from the activities or, sometimes, inactivities of local planning authorities; they also need to be protected from what happens as a result of the interference of inspectors and the Secretary of State. In that sense, Amendment 1 from the noble Baroness, Lady Cumberlege, is at the hard end—rather surprisingly, she is the hard cop—and my Amendment 5 is a rather more modest proposal. Again, perhaps unexpectedly, I am the soft cop.

I am strongly in favour of the presentation she made and the amendment she has moved. I, too, would be very interested to hear what the Minister has to say by way of explanation for the interventions that have taken place so far and which run the risk of undermining, at a national level, the credibility and popularity of neighbourhood plans that we can see at present.

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[Lord Bourne of Aberystwyth]

Some of these points go well beyond this amendment. Nevertheless, I accept that they are important. The noble Lord gave examples of how this process works at the coalface. I suspect that he is much closer to the coalface than I am in that regard. We need to be a little careful about setting up a system that stresses the importance of localism and these things being done locally, and then have central government stepping in and saying, “Do it this way”. As I say, there are growing pains. We may indicate in guidance how better relationships can be achieved. That is what I seek to do through the dialogue I am offering.

On the neighbourhood groups that may benefit from money for the neighbourhood plan and for modifications, I think there is money available if a case is made for an extra sum. If I am wrong on that, I will write to noble Lords. However, if a case can be made, I think there is access to additional funding. As I have indicated, the White Paper will say more about funding and the financial side more generally.

[Baroness Cumberlege]

My Lords, I thank Members of the Committee for their support for the amendment, which was gratefully received. I say to the noble Lord, Lord Shipley, who led the response to the amendment, that we are so lucky in this forum to have people with real knowledge of planning, local government and other matters. The noble Lord, Lord Shipley, took forward the then Localism Bill, and therefore knows it in detail, which is very good.

[A noble Lord]

Lord Stunell.

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[Baroness Cumberlege]

I am sorry. I beg the Committee’s pardon; it was the noble Lord, Lord Stunell. The noble Lord referred to me as a hard cop. I think that is the first time anyone has done that. He should talk to my three sons as they may agree but I think my husband would not.

I again thank the noble Baroness, Lady Andrews. I was very interested in what she said about sustainability and its definition. One of the issues I will come to a bit later is that of weasel words. It is very easy to put weasel words in legislation which sound nice but which people do not know the meaning of. On reading the National Planning Policy Framework, I was interested to see that the Minister involved with it at the time, Greg Clark, described sustainable development as being about,

“change for the better, and not only in our built environment”.

That is nice. He also stated:

“Sustainable means ensuring that better lives for ourselves don’t mean worse lives for future generations”.


That is lovely. I agree with all that. Greg Clark added:

“So sustainable development is about positive growth—making economic, environmental and social progress for this and future generations”.


We are beginning to get there but that is not really a definition. We use it in all forms of the services that the Government offer, such as the health service, education and so on. Therefore, it is a good idea to define it. My next amendment provides more detail on that.

As I say, I thank the noble Baroness, Lady Andrews, for her support. I agree with her that there is no ambivalence about the word “duty”; we know exactly what it means. Where we have a duty and there is no ambivalence, this enhances confidence among the people governed and, in this case, among those who have drawn up a neighbourhood plan.

It is interesting when we talk about local planning authorities that of course they differ hugely across the country. The noble Lord, Lord Greaves, is trying to instil that, probe that and find that. He also talked about the five-year supply of housing. I want to ask my noble friend the Minister a question on this. I remember the Written Statement produced on 12 December by his department referring to a “three-year supply” for housing. Where are we now on that? Was that policy? Is it something that should stick or are we back to the five years? That is important in drawing up neighbourhood plans.

The noble Lord, Lord Kennedy, spoke of finance. I am sure we will have a lot of talk about that. I think he must have been a barrister at one time as he put great pressure on our Minister. I thank him for saying that he felt the Minister should accept the amendment. When you come to these events, you have dreams and hope that the Minister might accept everything, but in your heart of hearts you know, especially here where we cannot vote, that we must negotiate. So I am not surprised by the resistance to this.

I thank my noble friend for the way he responded. It was very interesting when he talked about how sparingly the Secretary of State calls in planning applications when they have gone to appeal and so on. When that is done, it can have a devastating effect as the decision can undermine the whole neighbourhood plan and leave it void. We have seen instances of that. I know it is not just the Secretary of State; it is the department and all the rest of it—and other Ministers. It is just that before these people in authority who govern us make these decisions, they really ought to do a bit more homework on the impact of the decision they are making. It can be absolutely devastating when a neighbourhood plan is rendered void.

I will haunt the Department for Communities and Local Government, which will be so fed up with Baroness Cumberlege: “Oh, she’s not here again!”. Fortunately, we all have busy diaries so it might not be so terrible. I will read Hansard and hold feet to the fire to be absolutely certain that the assurances given are kept. I am sure my noble friend has huge integrity and will live up to them. I thank noble Lords for their support and beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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Government Amendments 2, 3 and 4 are minor and technical amendments to Clause 1, which requires decision-makers to have regard to post-examination neighbourhood plans. The amendments clarify the definition of a “post-examination” neighbourhood plan to ensure that it applies to those plans which progress through the new modification procedure set out in Clause 3 and that it continues to apply during the period between a decision being taken that a referendum is to be held on a plan and the plan becoming part of the development plan. I beg to move.

[Baroness Cumberlege]

My Lords, I also have amendments in this group. The first states:

“The Secretary of State must, by regulations made within one month of the coming into force of Part 1, define ‘modification’ for the purposes of this Act.”


The Whips’ Office decided to amalgamate this amendment with those of my noble friend the Minister because it is about definitions, as are some of his.

Legislation is very taxing—I suspect that we might feel a little older at the end of this Bill—but it is taxing because of the terminology. As a latecomer, I am only just learning planning speak and that is because of some of the weasel words—I referred to them earlier—that creep into it. It was Voltaire who urged, “If you wish to converse with me, define your terms”. I therefore ask my noble friend to define “modification”. Please can we have some examples? For instance, five houses in a hamlet on the wrong site could be devastating; five houses in a large town could easily be fitted in. So where is the line drawn on modification? What does that word mean?

My second amendment in this group, Amendment 8A, also concerns modification and depends a little on my noble friend’s answer to my Amendment 8. In Amendment 8A, I plead that every modification made need not be treated as significant or substantial, requiring a full-scale rewrite followed by a referendum—I hope that that will not be the case. Paragraph (b) states that any modification must allow scrutiny by the residents of the neighbourhood plan. Paragraph (c) states that only if the parish and town councillors deem it necessary and want confirmation again that what they are planning is acceptable to the local community should they have the opportunity to hold another referendum. I am therefore seeking to give authority back to parish and town councillors and ensure that they still have a locus when either the local authority or the examiner makes decisions which might negate the plan.

[Baroness Parminter (LD)]

My Lords, my Amendment 64 is in this group. I think that is because part of it fits with the Government’s amendments, although mine in its entirety is somewhat broader about creating the conditions to encourage more local communities to prepare neighbourhood plans and to shape and build sustainable communities. I think everyone in the Committee can support that, whether we believe in the political ideology of taking decisions at the lowest possible level or, as the Minister rightly reminded us a few moment ago, because of the Secretary of State’s stated desire to build more homes, because we all know that neighbourhood plans deliver more homes.

Of course, this issue was raised in the Housing and Planning Bill, and the Bill before us is the Government’s response to it. I very much welcome Clause 1 and the government amendments that the Minister has just introduced, which are in part a response to the debate on this matter in the other place. But I contend that they still do not go far enough in giving neighbourhood councils and parish councils that are drawing up neighbourhood development plans the reassurance that the time and effort they are putting in are worth while.

Clause 1 says that local authorities “must have regard” to neighbourhood development plans, but there are no sanctions. Furthermore, this applies only to post-examined plans, whereas case law says that draft plans should be taken into account. As I say, I welcome the government amendments made in response to the matter being raised in the House of Commons, which make it a requirement of local authorities to consult with neighbourhood planning bodies, but they are not clear about ensuring meaningful consultation; for example, by specifying how long it should take or, critically, what duty the local authority has to take any comments into account.

My amendment would make clear what the consultation with neighbourhood plans on a planning application would actually mean, as well as the duty placed on a local authority to take those views into account. If a local authority then ignores those views, the decision can be called in. That is a very limited right. It is a right not for individuals, but only for parish councils and neighbourhood forums whose neighbourhood plans have progressed to at least the point of formal submission to the local authority for examination.

To date 268 neighbourhood plans have been made, out of a potential 9,000. If we are going to secure more neighbourhood plans, the Bill has to strengthen the weight of communities’ views, expressed in neighbourhood plans, such that they should not be ignored by local planning authorities or the Planning Inspectorate. In the Housing and Planning Bill, the Minister kept saying that there had not been any examples of this. I am delighted to inform this Minister that after a bit of skimming on my part of some past applications, I found at least one in the space of one afternoon. In August 2014 South Oxfordshire District Council approved the planning application for the development of two new industrial units in Cotmore Wells Farm in Thame, despite the proposed development encompassing 50% more land for employment than had been allocated in the neighbourhood plan. But frankly, whether or not there have been cases is not the point. The point is that neighbourhood plans can be overridden if there is no sanction.

As my noble friend Lord Greaves and others have pointed out, we are asking volunteers to give their time and energy, over years, to pull these plans together. I welcome the commitment in the Bill to improve the level of resources at their disposal but some volunteers are working 20 or 30 hours a week, with extremely limited resources, particularly if they are not a parish council and do not have parish council resources and a parish council secretary to push the matter forward. Why should they do it if there is no redress when a planning application contrary to a neighbourhood plan is approved by a local authority—driving, as I have often said in this Room, a coach and horses through everything that has been agreed?

I ask the Minister: why do the Government feel that they should give a duty to local authorities to have regard to neighbourhood plans, as they have stated quite explicitly in Clause 1, if there is absolutely no sanction if they do not? Do they really feel that that provides sufficient encouragement for more neighbourhood plans to be brought into being, which we all know we need and which will ensure that the houses we want to be built are built?

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[Lord Bourne of Aberystwyth]

My Lords, as I have indicated, the intention here is to ensure that we have flexibility because neighbourhood plans may vary in their circumstances, size and so on. There is a massive body of law that defines the word “minor” and judges will be able to put it in context. I have given an example of why we believe that we are answering the need for flexibility in the legislation and I think that the Government have got it right in this regard. However, if the noble Lord has any particular points that he wishes to raise subsequently in writing, I will be happy to look at them.

[Baroness Cumberlege]

My Lords, I welcome very much government Amendment 3 because we are having to use the Freedom of Information Act to get some of this information, but now it is a requirement and I really do welcome that.

While we are looking at modifications, be they minor or substantial, my noble friend cited the case of 50 houses in a rural area. If planning permission is granted for 50 houses that are outside the planning area and that would increase the number of houses being promoted in the neighbourhood plan, currently standing at 100, so now another 50 are added, which is a substantial increase, would that mean that the neighbourhood planners would have to go back to square one and start again because that would be a major modification, not just a minor one?

[Lord Bourne of Aberystwyth]

My Lords, I have to be very careful when responding to that question because as I have clearly indicated, there is an issue that is sub judice and therefore I cannot comment on that particular case for obvious reasons. I have said in broad terms that 50 houses may occasionally be minor and occasionally major, depending on the circumstances of the case, but obviously there is also an issue around the interpretation of the relevant neighbourhood plan, which has to be seen in that context. I think that I have given a fair example and although I do not sit as a judge, I try to give particularly bold examples of what would be a minor provision in an urban area but may not be so in a smaller village situation.

[Baroness Cumberlege]

My Lords, I thank my noble friend for that. What happens if there is a change through, say, the examiner or some other process? For example, where a community has agreed to 100 houses and they have booked the sites and everything else, yet the examiner comes in and says, “No, it’s a minimum of 100 houses”, is that a major modification?

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[Lord Stunell]

My Lords, I start by apologising to the noble Baroness, Lady Cumberlege, for suggesting that she was a hard cop. The apology is made slightly less sincere because she finished her remarks by saying she intended to hold the feet of the Minister to the fire. If that is the sign of a soft cop, I would not want to meet a hard cop.

My point was more that the new clause proposed by the noble Baroness was draconian in its requirements on the Secretary of State. Mine is much more of a light touch. This may be because I am indeed soft, having been a Minister in the department myself. As I said to the House at Second Reading, Bob Neill and I were the two Ministers in the House of Commons who steered the Localism Bill on to the statute book and through Committee there. I remember seeing the first version, which was named very imaginatively by the civil service draftsman as the local government (no 2) Bill. We now know it much more accurately as the Localism Act.

In respect of planning, the then Bill was born out of a realisation, which did not require a great deal of research to establish, that practically nobody in the general public and very few councillors ever participate in the drawing up of what used to be a unitary development plan or a local planning authority’s local plan. The level of engagement is very low. Consequently, when proposals come forward for development, it goes into a three-stage process: stage one, the developer proposes; stage two, the community opposes; and stage three, the planner imposes. This confrontational model is very destructive of public trust in the whole process. It builds in delay; it makes the whole process far from frictionless and very difficult indeed. The whole starting point of the neighbourhood planning proposition in the Act is to turn that round and put the community in charge of what goes on so that you have positive, community-based planning and not negative, developer-imposed outcomes.

At the time that the legislation was drawn up, the major concerns—echoed in some of the things said today—were that local planning authorities and local councillors would be hostile to the loss of some of their power and influence in the system, and that they would seek to frustrate or prevaricate when neighbourhood plans were developed. A lot of the provisions of the Localism Act relate to that. Several mentions have been made of external examiners. There was a strong lobby from local government planners that they should be the people who examined neighbourhood plans. Ministers were sceptical about that, believing it would be a powerful lever which malign influences in a district council planning authority could use to completely negate what a neighbourhood plan should be.

Of course, there were fierce criticisms of the whole proposal, principally—I heard this a lot—that it would be simply a nimby’s charter which would frustrate all development. I am absolutely delighted that the statistics show that in fact the neighbourhood plan areas designate more housing in more appropriate places than the local plans in the relevant areas set out. The Housing and Planning Act strengthened and protected the neighbourhood planning process, building on the experience learned from the first few. This Bill does more, which is welcome, to make sure that at the local democratic level neighbourhood plans get a fair wind and are supported. I approve of all that. It is the way to go.

As I said at Second Reading, that in turn reveals something else happening. I am indebted to my colleagues at the Local Government Association—I do not have to declare an interest as a vice-president—who were kind enough to send me a link to the Sussex Express of 30 November last year, the headline of which is: “Councillors resign in protest against overturned planning decision”.

This is a reference to a decision of the Secretary of State where, according to the report, he approved a case in relation to 50 five-bedroom houses over the heads of the neighbourhood plan and Lewes District Council, which is the local planning authority. It is hard to judge from the newspaper report whether there were exceptional circumstances, but one thing we can say is that that decision in itself makes no strategic impact at all on the delivery of 1 million homes by 2020, which is the Government’s strategic objective for housing growth. However, we can say that it will have a deep strategic impact on neighbourhood plans.

In seven years we have gone from a position where Ministers in the department were doing all they could to defend neighbourhood plans from the predations of what were seen to be hungry local authorities reluctant to give up any power or influence to a situation where the Secretary of State is stepping in. We now find local planning authorities, in this case Lewes District Council, trying to prevent the Secretary of State from sabotaging neighbourhood plans. The problem here is that it is not just an individual plan that is affected. I do not particularly expect the Minister to be briefed on that case or even willing to talk about it. However, there is the risk—beyond the risk, the certainty—that cases such as this will undermine the whole concept of neighbourhood plans.

What is the point of working for two and a half years on a plan, getting it examined and signed off, if what then happens is that inspectors treat it as being of no account and the Secretary of State dismisses it out of hand? So I ask the Minister to come back to us or perhaps write to us and list the number of cases where the Secretary of State has issued a decision which overruled a neighbourhood plan. How many are there? If there is one, that is too many. If there are 10, it is a disaster. If there are 70, we might as well tear the whole thing up because the word will go round and nobody will trust the process and we shall go back to the confrontational model of proposes, opposes, imposes, which is exactly what the whole thing is designed to avoid.

What would Amendment 5 do? This is where I am the soft cop. Compared with the amendment in the name of the noble Baroness, Lady Cumberlege, it is very mild in its imposition on the Secretary of State. It says that when something comes in front of the Secretary of State, he or she shall have particular regard to neighbourhood plans which cover any part of the site being considered. That ought to be a wake-up call for the Secretary of State but it should and will be a wake-up call for the people I described at Second Reading as the rogue inspectors. The fact is that there is a planning establishment which just does not believe or trust in local communities taking decisions—these can properly be taken only by people who have university degrees in planning and 25 years’ practical experience of delivering it in local authorities. That arrogant approach is putting at risk a way of handling planning which will answer a problem that has been with us since 1947: the complete lack of trust that the normal person in the street and the average community has in the way that the planning process is supposed to work.

I very much hope that, given that I have come here wearing my velvet glove and that I have put on the table an amendment which is very modest and minor in its imposition on the Secretary of State, the Minister will take it as a very clear signal that unless he addresses this problem explicitly in the legislation that we are dealing with, the whole project will unravel and the whole strategic direction of the previous Government—and, as I understand it, of this Government—to turn planning into something that works with and is done by communities will be thrown away in a professionalisation of decision-making, which we have surely grown out of. I beg to move.

[Baroness Cumberlege]

My Lords, as has been referred to, my Amendment 20 is in this group. If we are serious about local people planning their local communities and making neighbourhood plans, we have to make it really plain in the Bill that we uphold the Localism Act. Where planning inspectors or the Secretary of State overrule a neighbourhood plan, we witness utter desolation among decent and honest people, who are often the leaders in their local community. In my area, six out of 10 parish councillors resigned as a result. I am concerned, as is the Local Government Association—I declare an interest in that I am not a vice-president of it and never have been, although I have great respect for the association—that the Bill would give the Secretary of State more powers to intervene in the local plan-making and plan-revision process.

We should have a much more conciliatory way forward. I am seeking a sector-led approach that would resolve the blockages. Such an approach would be much more beneficial in the longer term than the imposition of a plan. Having the Secretary of State or inspectors making decisions does the reverse. If we believe in localism, we should support the people making such neighbourhood plans. I fear that very often we do not and I do not think that the Bill is strong enough in ensuring it.

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Moved by

[Baroness Cumberlege]

6A: After Clause 1, insert the following new Clause—
“Duty on Examiner in making recommendations
(1) Schedule 4B to the Town and Country Planning Act 1990 (process for making of neighbourhood development orders) is amended as follows.(2) After paragraph 9(2)(a) insert—“(ab) in any case where the examiner is minded to recommend deletion of a policy relating to a specific site or sites in the neighbourhood area and indicating a presumption in favour of housing or economic development, or”.(3) After paragraph 10(3) insert—“(3A) Before recommending modifications in the form of deletion of draft policies in a draft neighbourhood plan, to take account of national policies and advice contained in guidance issued by the Secretary of State or for other reasons, the examiner should endeavour to find alternative wording that would achieve the goal of the qualifying body, if necessary by convening a hearing for that purpose.””

[Baroness Cumberlege]

My Lords, I turn to Schedule 1, which has been amended to include new Schedule A2. I have tabled a number of amendments on this. I shall discuss my Amendments 9, 10 and 11 before I discuss my Amendments 6A and 6B in this group.

I am very worried about sub-paragraphs (1) and (2) of paragraph 12 on page 38 of the Bill. They ensure that the examiner can sit in his office, away from the world he is examining, and immerse himself in documents and papers which give him little sense of place, neighbourhood and geography and, above all, the people who live and work there. These people cherish and care about their community, look after it and make it a dynamic place. They run myriad organisations. They understand what works in their area and what does not. As has been said, this is not a charter for nimbyism; on the contrary, it has stimulated housing and other development.

My amendments seek to give makers of neighbourhood plans a voice and a right to be heard and to enable them to explain face-to-face what makes the plan worthy of their community, and what they seek to achieve in strengthening it. Christopher Lockhart-Mummery QC of Landmark Chambers says that,

“any significant Neighbourhood Plan really requires a hearing”.

In my view, the Government’s steer in discouraging hearings is too strong. So much is dependent on what the examiner is minded to recommend through written representations. We need to be sure that the policies are not fundamentally altered without the plan-making body having the right to explain its objectives at a hearing, and the examiner suggesting better words to them to achieve their goals. After years of work producing a plan—in some cases this lasts up to five years; in my area, it was two and a half years—and then getting it agreed at referendum, the parish or town councils are at the mercy of the examiner. They can only watch while further representations and views of the local planning authority are gathered together and put to the examiner. It is not an inclusive process, and I think it should be.

My Amendment 6A is more specific. It concerns the situation where the examiner deletes a policy relating to a specific site or sites in favour of a commercial or economic development. As a nation, we need more sites for housing. Where a community has researched and identified its needs and proposed a significant development in terms supported by the landowner and the developer, is it right for the examiner to simply delete the proposed policy on the grounds that some of the wording of the policy is not clear? Should he not make every effort to help the community get its words right?

Amendment 6A would put a greater responsibility on an examiner who finds that a plan policy falls short of meeting the basic conditions. Instead of recommending the deletion of such policies and therefore denying us the housing sites we need, the examiner would be required to hold a hearing when he proposes to delete, add or significantly amend any draft policy that makes provision for a specific development, which would include housing development on a site identified in the plan. It would be a specific requirement.

Amendment 6B is also concerned with the examiner. Plan makers are at the mercy of others and can only watch while further representations and views of the local planning authority are gathered together and put to the appointed examiner. There is no recourse if the parish or town council is not satisfied with the work of the examiner. Examples might be because the examiner has recommended modifications that they do not believe are soundly based on evidence, or because the examiner has recommended deleting policies that could readily be remedied by a less dramatic modification. The amendment is designed to provide the makers of a plan with the right to a say in the action to be taken after the examination. It would achieve this by requiring the examiner to deliver a draft report for consideration by the local planning authority and the plan makers. Before finalising the report, the examiner should take into account and consider any points made by those bodies.

There have been suggestions—I suspect my noble friend might also make them—that this would further complicate the process or cause more delays in the planning system. I understand that some examiners already proceed in this way, but do so informally. The amendment is a modest way of ensuring a continuing engagement with the plan makers in the final stages of creating their own plan. Ideally, examiners should not recommend fundamental changes or deletions without first engaging the town or parish council in a hearing to understand the goals, and then fine-tuning the recommended changes.

This is a probing amendment and a way of attracting the attention of my noble friend in order to open a dialogue and discussion about how we can ensure that the confidence and faith of local plan makers is enhanced and does not deteriorate. I look forward to my noble friend thinking about the way we can ensure that that happens and I look forward to his response. I beg to move.

[Lord Beecham]

May I ask the noble Baroness, in reference to Amendment 6B, about the time limit that she has included in the amendment? We know that local authority planning departments are under great pressure, and in those circumstances, 28 days seems a little tight for the local planning authority to consider,

“new evidence, new facts or a different view”.

Is she prepared to be flexible about the period for the response because it seems too short?

[Baroness Cumberlege]

My Lords, I accept the suggestion but my concern is that these things can drag on and on, and unless one has a cut-off time, I fear that while the issues continue to be talked about and worked on, nothing actually happens. I am quite anxious to have a deadline and times within which people have to deliver their responses.

[Lord Shipley]

My Lords, I express my support for the amendments in the name of the noble Baroness, Lady Cumberlege, but I want to speak in particular to Amendments 9, 10 and 11. They are important because once again they are about the definition of words. We discussed earlier the meaning of “modification” and “material”, and now we have to define “significant”, “substantial” and “exceptional”. The noble Baroness, Lady Cumberlege, has drawn our attention to the fact that these words can be interpreted in different ways.

First, paragraph 12(1) of new Schedule A2 refers to the “general rule”. If a rule is a general rule, it means that sometimes it is not. I think a rule needs to be rule. The elimination of the word “general”, which leads to doubt, seems the right thing to do. I hope the Minister will take the point that that word should be removed. Looking very closely at the Bill, paragraph 10(1) of the new schedule says that it is for the examiner to,

“determine whether the modifications contained in the draft plan are so significant or substantial as to change the nature of the neighbourhood development plan which the draft plan would replace”.

There we have the introduction of the words “significant” and “substantial”. However, it is then left with the examiner to proceed by the written representation route. So a substantial or a significant change is to be dealt with by the written route and, in paragraph 12(2), only the examiner can,

“cause a hearing to be held for the purpose of receiving oral representations … in any case where the examiner”—

but not anybody else—

“considers that there are exceptional reasons for doing so”.

So there are substantial and significant changes but unless the examiner thinks they are exceptional, there cannot be a formal hearing.

We need to get this right. I foresee a lot of trouble arising if those who have taken part in developing a neighbourhood plan are suddenly told that a substantial or significant change to it can be dealt with only by the written procedure, whereas they may have things that they wish to say and to be heard. If the process is to be sound, we should be encouraging more oral hearings where people can listen to the evidence and contribute to the discussion. I hope the Minister will take on board that these definitions really matter. Something that is significant or substantial should have an oral hearing; something less important than significant or substantial could have written representations. But simply to say that it must be exceptional in the eyes of the examiner does not seem right.

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[Baroness Cumberlege]

My Lords, I thank noble Lords who have taken part in this mini-debate. Some really interesting issues have been raised. Although my noble friend the Minister has tried hard to explain that the system is working well, I understand that he realises that a few holes need to be filled.

It is not right that the examiner should decide when there should be an oral hearing. I was a magistrate for many years. I know that when you have people before you—the defendant, the prosecution, et cetera—you can really get to grips with what they are talking about; you can understand the people there before you. I do not think that that comes through in just documents or written representations. It should be an opportunity for those who have spent years—in some cases, five years—drawing up a neighbourhood plan to explain to the examiner, “This is why we’ve included this. This is why we’ve done that”. In our case, the examiner ruled out all sorts of things because he did not understand the locality, the people, the history or what we were trying to achieve. I can understand that the examiner has to work with a certain language—the planning language—but we who are volunteers and lay people are not versed in that language. I am sure noble Lords have realised that in my amendments I am using lay person’s language and not the proper language used in planning circles. Because sometimes the words are not right, the inspector has ruled out the policy that people really wanted, which really made that community tick and made it what it is.

I feel strongly that there should be an oral hearing. It is not up to the examiner but to the makers of the plan to decide whether or not they want an oral hearing—if it is something very modest, they may not want it. I am trying to shift the power away from bureaucracy to the people and the communities that we govern. The more we can do that, the more we instil trust in our population. I could go on a lot about trust, but I shall not.

I look forward to working with my noble friend and his officials to strengthen some of the provisions to make them work and to ensure that we are not reducing democracy by way of these laws. I beg leave to withdraw the amendment.

Amendment 6A withdrawn.

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Moved by

[Baroness Cumberlege]

7: Clause 2, page 2, line 16, at end insert—
“( ) A neighbourhood development plan may include a phasing condition on development which is agreed with the local planning authority.”

[Baroness Cumberlege]

My Lords, I understand that the Grand Committee is a place where noble Lords cannot move a Motion that a noble Lord be no longer heard. Your Lordships have my sympathy and I apologise that I am again on my feet. This amendment is really important and is about a neighbourhood development plan including a phasing condition on development.

I have tabled this amendment because we have already seen communities being overturned, which can cause real social problems. Phasing is important to assimilate people coming into a community. However, on a practical level, the Bill is part of a vehicle to enable the Government to announce the building of a record number of houses. It will coincide with the inevitable changes that Brexit will bring, many of which we still know nothing about. They are incalculable. Some may be good, others may not be so good. We may see jobs leave the City, for instance. I was interested to read in the Times of 25 January a headline on financial clearing houses which stated that loss of clearing would cost the City 85,000 jobs. Of course, that may or may not be the case. However, if a loss of those jobs on anything like that scale occurs, it will make a huge difference to developments that are in train or have already been built.

We must also consider what will happen if we have fewer immigrant builders. What will be the effect of that on the housing market, which has traditionally had its ups and downs? We do not want new buyers to be plunged into negative equity or find they have new homes that they cannot sell. That would serve nobody well. Developers are business people and I am sure that they will not be seduced into building homes that they cannot sell. They would prefer a longer-term strategy, and I support them in that. At this very uncertain time, it is judicious not to try to break records for the sake of political expediency. I strongly believe that building cosy nests on a rotten bough can end in tears. The phasing of developments makes sense. I hope that my noble friend will agree that it should be incorporated in the Bill on Report. I beg to move.

[Lord Shipley]

My Lords, the noble Baroness, Lady Cumberlege, has moved a very wise amendment. I hope that the Minister will accept it in due course.

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[Baroness Cumberlege]

I very much thank the noble Baroness, Lady Scott, and the noble Lord, Lord Shipley, for supporting this amendment. We go back to the situation of the examiner. My noble friend the Minister said that already you can have phasing but we wanted it and it was completely crossed out by the examiner. I do not know what advice is given to examiners but something like this really needs strengthening. As the noble Baroness, Lady Scott, said, this is about more than housing or bricks and mortar; it is about the people who live there. It is about trying to get diversity in our population because we know that that strengthens it. It is about schools. It is about health centres. It is about all the infrastructure that we need. Phasing can help that.

Years ago I was involved in this area and we built 171 houses. It was a huge development but we also ensured that the infrastructure was there to support it. If we do not have some phasing, we will end up in a real mess. I take the point about negative equity. Once you get negative equity, you get a very disenchanted population. Phasing is important. I look forward to working with the Minister. I hope I will not have to bring this back on Report and that we can come to some accommodation. For the moment, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

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[Lord Beecham]

My Lords, Amendment 12, in my name and that of my noble friend Lord Kennedy, relates to Clause 5, which is headed, “Assistance in connection with neighbourhood planning”. We have heard a good deal about the need to support local communities in developing their local plans and seeing them implemented. The amendment seeks to ensure that they have the wherewithal to do that.

Clause 5 is the Government’s initiative to ensure that support is given. It prescribes that as part of the process:

“A statement of community involvement must set out the local planning authority’s policies for giving advice or assistance”,


for the making or modification—a word that has been much used this afternoon—of neighbourhood development orders and neighbourhood development plans. Of course, this is a matter which requires considerable experience and skill. The assumption, therefore, is that the local authority will provide the resources for the local community to obtain advice and support in going through the process.

I suppose in one sense this could be regarded as a new burden and therefore should or could fall into the general position that is purported to apply to the imposition of new burdens; namely, that if it is a requirement of legislation, the Government will ensure that local authorities’ costs in meeting that obligation are met. But in my experience it is as well to be explicit about this and that is the purpose of the proposed new clause, which would require the full recovery of costs in connection with the development of a neighbourhood plan. The local authority would support the community in its commissioning of works but the cost ultimately would be met by the Government.

Given the tenuous position within local authority planning departments, of which we have heard much in the Chamber and today, it is imperative that the matter be adequately resourced. As we have heard so many times, planning departments are under huge pressure. As the noble Baroness pointed out, they have lost staff to private concerns. It is difficult to recruit and retain staff. In some ways happily, the volume of work is growing, which we want to see. The Government have now come round to conceding, particularly on the housing front but also in other areas, that considerably more investment and building need to take place. In the context of that shortage of staff, it is particularly important given the competing pressures on departments that communities should be assisted in securing whatever help they need in the process. I hope therefore that the Minister will concede that this is right way forward if we are going to have properly developed neighbourhood plans with local communities fully engaged and equipped to make a contribution to the ultimate decisions, which without that professional support would not take place. I beg to move.

[Baroness Cumberlege]

My Lords, this is my swansong; this is the last time that your Lordships have to endure me. I have an amendment coupled with this one, but I say to the noble Lord, Lord Beecham, that I so agree with him. It is really important that we do not try—to use an expression appropriate for a planning Bill—to make bricks without straw, because it does not work; we need resourcing.

My amendment is a little different, being about the community infrastructure levy, which it would increase. It is a probing amendment, but if it is intended to continue the direction of travel towards localism and the greater empowerment of parish and town councils, we have not only to find some financial incentives for communities to accept development—although many of them do at the moment—but to encourage planning permissions for the building of houses. That was a significant feature of the coalition Government’s housing and planning reforms and a source of funding to principal councils.

One such initiative was the community infrastructure levy, which came into force in April 2010. It allows principal councils to raise funds from developers undertaking new building projects in their area and to fund a wide range of infrastructure needed as a result of the development. The community infrastructure levy-charging authorities are required to transfer to the parish or town councils 15% of the levy receipts arising from development that takes place in their area, rising to 25% for areas with an adopted neighbourhood plan.

Unfortunately, research suggests that local councils have been passed only 1% of the community levy receipts—just £92,000 despite principal councils collecting more than £9 million between April 2013 and June 2014. That is largely because it is not mandatory for principal councils to have a community infrastructure levy scheme in place and it has the effect of communities accepting development but not benefiting from the share of the levy to invest in local infrastructure needs and priorities.

It is vital that communities which are pro-growth benefit financially from policy incentives such as the community levy so as to invest in locally identified infrastructure needs and other community priorities. The first part of my amendment would address this issue by requiring local planning authorities to introduce the community infrastructure levy within 12 months of the day on which this Act is passed. I am sure my noble friend the Minister has more recent and up-to-date information about how this policy is being delivered, so I look forward to his response.

Paragraph (b) of my amendment is simply intended to increase the incentive for communities to embark on the development of a neighbourhood plan. At present, areas with an adopted neighbourhood plan are entitled to 25% of the levy. However, it does not happen everywhere. I should like to see neighbourhood planning grow, and for more communities to get involved and take a positive approach to future development in their area. To accelerate the uptake, I think a further range of measures is needed to build on efforts to date and, in particular, to ensure that communities benefit financially from development. Increasing the amount of the community infrastructure levy would provide an enhanced incentive. It would also have the added benefit of relieving some of the pressure on the parish precept as the principal means of income to invest in local projects, assets and infrastructure. I am sure my noble friend has other ideas as to how some of this could be achieved. This is a probing amendment and something that I think is worthy of discussion.

[Lord Greaves]

My Lords, I understand the reasons behind this amendment and I sympathise very much with them. However, to force all local authorities to impose a community infrastructure levy—a CIL—is actually not practical. I speak as a member of one authority that does not impose a CIL, and there are quite a lot. There are parts of the country where the viability of development is marginal. Whether it is infrastructure, commercial or housing development, the difficulty is making it stack up financially. In my part of the world, there would be more development allowed, promoted—and welcomed to some extent—if it were financially viable. If it is not financially or only marginally viable, imposing a CIL would simply result in less development. It cannot be imposed everywhere, nor should we look at areas that can impose CILs with green eyes—as we look at a lot of the country with green eyes on financial matters. We have to survive in the environment that we are in. From that point of view, I cannot support the first part of this amendment although, where CILs are imposed, the second part might well be reasonable.

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[Baroness Cumberlege]

My Lords, I share the views that have just been expressed but do so reluctantly as I have had a lot of support from the noble Lord, Lord Kennedy, and others. At the last local elections the turnout was 30.9%. I wonder why the 40% figure has been proposed. I do not know enough about these referendums. Do you have a postal vote in a referendum? Do you have a means of voting in a referendum without actually being there? If that is the case, how about the old, the lame, the housebound, those in hospital, those on holiday or those away from home on business? They might be just as interested in what is going on in their local community but not able to take part in a referendum. I do not know whether there is a postal vote or some other means of taking part. If there is, that is a very good thing. However, I still think that the figure of 40% needs to be justified. Why 40%? Why not 20%, 30% or 50%? I am sure that the noble Lord, Lord Beecham, knows the answer and that he will tell me.