Localism Bill

Baroness Hamwee Excerpts

Wednesday 20th July 2011 Lords Chamber

166WA: Clause 124, page 117, line 3, at end insert—
“(2A) For the avoidance of doubt, subsection (2) should not be read to imply that any greater weight should be placed on local finance considerations than on other material considerations.”

[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.

--- Later in debate ---

[Earl Attlee]

My Lords, the noble Lord poses a good question that will help to illustrate the situation. He describes a situation where the planning application is for more houses than are provided for in the local development plan. The extra money arising from the NHB and the CIL from those houses can be taken into consideration if it is used in relation to those extra houses. If the money is going to enhance a railway station that would support those extra houses, it can be taken into consideration, but if it is to support perhaps a swimming pool on the other side of town, it cannot be taken into consideration because it is not relevant to the application.

[Baroness Hamwee]

My Lords, my noble friend Lady Parminter’s opposition to the clause standing part reflects not just the concern of her organisation but the concern felt outside the House about the provision. Of course I will withdraw the amendment and I am grateful to the Minister for his agreement that the matter will be looked at again.

I shall comment on one or two of the points that he has made. On his example of the parkway station, the reaction around me was, “But that would enable development, and moreover it seems to be suggesting that economic growth is more important than the provision of extra housing”. It may be an interesting example but it has not quite yet convinced us.

The Government put the clause in the Bill in order not to allow uncertainty to linger. However, guidance can be produced quite quickly. It can be issued on the day that the Act comes into force or it can precede it. Although I understand that the Government wanted to reassure people, there are other mechanisms for doing so.

The Minister said that it was important to provide clarity. I hope that I have helped at any rate to suggest that the clause does quite the opposite—instead of clarity it provides more confusion and concern. We will ensure that my noble friend Lord Greaves is aware of the praise for his amendment. I beg leave to withdraw it.

Amendment 166WA withdrawn.