Baroness Hanham
Main Page: Baroness Hanham (Conservative - Life peer)Growth and Infrastructure Bill
Baroness Hanham Excerpts(11 years, 11 months ago)
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Lord Adonis
My Lords, on the Motion to go into Committee, perhaps I may raise a concern of which I have given the Minister notice. At Second Reading, the noble Baroness undertook to send noble Lords important material relating to the proposed shares-for-rights scheme in Clause 27. In particular, she said that we would be sent the draft guidance for decision-makers in DWP in respect of benefits claimants who decline to accept jobs with no rights and who stand to lose their benefits in consequence.
On 8 January, at col. 109 of the Official Report, I took the noble Baroness to say that we would be able to discuss the guidance in Committee because we cannot properly discuss Clause 27 without it. We are now in Committee and noble Lords have heard nothing from the noble Baroness either about the DWP guidance or in reply to my letter of 9 January, in which I set out a number of other essential factual matters in respect of Clause 27 on which we need information for our examination in Committee. The noble Baroness has not even acknowledged my letter, still less replied to it. She is the last person to be disrespectful to the House, so perhaps she could tell us what is going on.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I thank the noble Lord for giving me notice that he was going to raise this point. I also apologise that he has not received a reply to his letter of 9 January. Unfortunately, it was forwarded from my office to BIS, which is responsible for this clause, and I understand that my noble friend Lord Younger is in the process of replying now. I admit that the discourtesy is mine for not having told the noble Lord, Lord Adonis, that, and I apologise.
Of course, we will not be discussing Clause 27 very soon. I suspect that it will be towards the end of Committee. Therefore, I probably just about fulfilled my obligation when I said that I thought we would be able to discuss it in Committee. Clearly, we will not be able to do so today. The noble Lord has not had that information. However, also clearly, Clause 27 will not be debated today. Perhaps I may stick to the assurance that I gave him at Second Reading when I said that by the time,
“we reach Committee stage, we will be able to deal with some of the more detailed points”.—[Official Report, 8/1/13; col. 109.]
I stand by that.
Lord Adonis
Clarity is very important on this matter. Will the noble Baroness undertake that the DWP guidance for decision-makers in respect of those who stand to lose their benefit will be available to us by the time we get to our discussions on Clause 27?
Baroness Hanham
My Lords, I am not going to make a firm promise. As I have said, I will do my best to ensure that it is. It is not entirely in my hands, but I understand the point and I will make sure that we should be in a position to be able to do it.
Lord Adonis
I am sorry to take the time of the House again but it is only right that I give the noble Baroness notice that there will be very significant concern on the part of noble Lords across all parts of the House if this absolutely vital information is not available to the House by the time we come to discuss the clause to which it refers.
Baroness Hanham
My Lords, I do not know whether to start replying to a Second Reading debate or to a clause stand part debate. We effectively have had a round-up of all the aspects that appear in Clause 1. I am in some difficulty because some of what has already been said will be said all over again as we go through the full Committee stage. I am very tempted to do as the noble Lord, Lord Best, invited me to do; namely, to stick purely to the amendment which seeks to delay any designation for 18 months. Taking a short breath, I have decided that I will do a bit of both because some areas have come up that are relevant to the designation. I am sure noble Lords would agree that it probably is not appropriate for me to answer every single aspect at this stage, otherwise we might as well move on to Report now.
I should like to draw the attention of noble Lords to what Clause 1 states:
“A relevant application that would otherwise have to be made to the local planning authority may (if the applicant so chooses) be made instead to the Secretary of State if the following conditions are met at the time it is made … the local planning authority concerned is designated … the development to which the application relates … or the development for which outline planning permission has been granted … is of a description prescribed by the Secretary of State”.
That does not mean, as many noble Lords have tried to indicate, that all the powers of planning are being taken away from local authorities. I tried to make that extremely clear at Second Reading. This is a very constrained part of planning changes. It is a contribution —if I can put it like that—to ensure that planning and development takes place. No one is saying that this is the one thing that will absolutely shift and move planning on and will make it easier for developers to achieve what they want. That is not the situation.
Lord Adonis
Will the Minister tell us where in Clause 1 it says that the power is very constrained. It simply says under subsection (1)(a) of new Clause 62A to be inserted in the Town and Country Planning Act 1990 that,
“the local planning authority … is designated by the Secretary of State”.
It does not say that it is constrained.
Baroness Hanham
Being designated is a constraint because when we eventually get to it, the noble Lord will know that the consultation lays out the criteria for designation, and we will discuss that. The designation by itself is the control and the constraint.
I was trying to say that this was not the only area and aspect that would help planning, development or growth. We have had suggestions at other stages that things such as mortgages and lack of finance are holding up and constraining planning, and I accept that that is the situation. However, concerns have been highlighted about the amount of time it takes for a limited number of authorities to get a planning application through or the quality of the application decision resulting in more appeals being allowed through the system than is acceptable. The purpose of the measure is to deal with a very limited number of authorities which are not measuring up to appropriate standards.
When the designation is made under the criteria which we will discuss at a later stage, it will be done against the background of the two preceding years. The figures will be taken from 2011-12 and 2012-13, so by the time we get to Royal Assent, the 2013 figures will be in. Those will be the two preceding years. The figures will be based on the criteria so we will be able to see what is coming up and local authorities will be able to judge whether or not they are likely to be designated. In terms of delaying the decision—
Lord Greaves
I am very grateful to my noble friend. I know that she is always very diligent in listening to the House and this Committee. If the relevant years are the two previous years to the end of March 2013, which is only just over two months away, and a local planning authority cannot do anything about the figures in the time that is left, is it not unreasonable to tackle this issue in the way that is proposed, which is what these amendments are all about? One could say to a local authority, “Yes, the figures in these two years are those which apply but you now have a period of time”—12 months, 18 months or whatever—“to put things right”. Is that not the reasonable way to approach this issue?
Baroness Hanham
My Lords, you can also approach this matter from the standpoint that the planning authority has not performed correctly over the previous two years and has been on notice of that. If you delay the designation for 18 months, you further delay the possibility of improvement taking place. I hesitate to suggest that we should agree to the delay proposed in the amendment as I think that designated local authorities will begin to improve their performance.
The noble Lord, Lord Best, and other noble Lords asked about peer help. We have already made it clear that we accept very much that the Local Government Association has a role to play in helping designated local authorities to improve, and to do so even within the period of designation. As we will discuss later, that period will be reviewed annually, so local authorities can get out of this situation in a very short time. This clause—
Lord McKenzie of Luton
If the Government are very happy to see local planning authorities supported through the LGA or whatever, why do that only once designation has taken place? Would it not be better to make sure that that support is available to help them to improve before they are designated so that they avoid this process, which, on anyone’s score, will be costly, convoluted and administratively complex?
Baroness Hanham
My Lords, this is a matter of view between us. Our view is that things will become clearer over the coming months and local authorities will know whether they are bordering on designation. They will know that help will be available if they are designated and that they will be encouraged to improve. That will be the tension. The designation can cease following an annual review. I do not think that that will be too much of a tension if we decide not to accept the amendment and the promoters agree with that.
I have an enormous number of points here in front of me on questions that have been quite general. I could make a Second Reading response if the Committee would like that, but we are trying to deal with the performance of local authorities and planning authorities. We also note that some local authorities will receive only a small number of applications, and that is one reason for looking at the figures over two years. We accept that there are differences between one local authority and another.
My noble friend Lord Deben, who is my real friend, also suggested that this power was anti-localism. It is not. It does not take away a local planning authority’s ability to continue to deal with planning applications, but it provides that if an authority is designated, a developer has the right to decide whether it wants the local authority to carry on dealing with the application or take it to the Secretary of State. Developers already have the right to go to the Secretary of State if an application is not completed within 13 weeks. That will of course be one means whereby local authorities can be designated if they are not performing within a statutory area.
Lord Campbell-Savours
I have sat through the whole debate and I keep asking myself a simple question: how can we be sure that there will be no political consideration when a Secretary of State decides who is to be designated? How would one authority know that it had been treated as fairly or unfairly as another, given that the information is to be held within the department regarding the extent to which an authority breached the criteria that are the subject of the consultation?
Baroness Hanham
My Lords, that relates to the consultation, which we are moving on to in Amendment 2. Perhaps we might follow the amendments in order, because people have gone to a lot of trouble on that.
Lord Greaves
My noble friend rightly said that in a normal case, if a major application is not dealt with by the local planning authority within 13 weeks, the applicant has a right of appeal to the Planning Inspectorate. What happens if the inspectorate, on behalf of the Secretary of State, fails to determine an application within 13 weeks? What recourse does an applicant have? Can the application be sent back to the local authority to sort out? What will happen?
Baroness Hanham
My Lords, the expectation is that the Planning Inspectorate will perform against the statutory criteria.
The noble Lord, Lord Campbell-Savours, asked whether there would be democratic involvement as applications go forward. Local residents will have their normal ability to comment and all the normal planning processes can take place. All that will happen is that the decision will not be made by the local authority at that stage but by the Planning Inspectorate, which may very well have had to pick up the application if the local authority was not performing within the 13 weeks. There is nothing to be gained by delaying the designation. Our intention is to ensure that if a local authority is designated, it is in and out of that designation as soon as possible, given the help, support and encouragement that will be available from the Local Government Association and other planning means.
Lord McKenzie of Luton
Perhaps I may focus on one other point. Clearly, the criteria are going to be driven by the speed at which applications are dealt with. That is very clear from the consultation document. If, in the Government’s eyes, there is a delay in dealing with an application, why do they attribute blame only to the local planning authority? The cause could be due to the developer or other consultees in the community engagement. Why is blame attributed solely to the local planning authority? That is basically the conclusion to be drawn from what the Government are proposing.
Baroness Hanham
That will not be entirely the case. There are usually reasons why planning applications are delayed, and one may be that an application will take longer than the normal consultation period. Before an authority is designated, it will be allowed to put that view forward and say that it has not been able to deal with certain applications because it has agreed that the process will take longer, or there may be some other reason. A portcullis will not just come down; discussions and explanations will be possible.
Lord McKenzie of Luton
There is a very important point—it may be a new point. I understand that, where performance agreements are entered into, they will be taken into account. However, is the Minister saying that there will be an additional process whereby a local authority can make representations about the prospect of it being designated because of circumstances that have occurred locally?
Baroness Hanham
My Lords, before they are designated, local authorities will have the opportunity to explain, first, their figures and, secondly, if necessary, the length of time that an application has taken due to specific reasons. That will be the case with either a formal or an informal planning application, but they will have to note that that is what it is so that they can use that as an explanation.
Lord Deben
Would it not be better if that were set out in the Bill? If the Bill said, first, that the issue is largely one of timing—that would make me much happier, because I am worried about other criteria—and, secondly, that the local authority would have a period of time, whatever it might be, to have a discussion about it, I think that many of us would not be so unhappy about not agreeing to these amendments. The amendments are designed to put in place exactly what my noble friend has put forward, so would it be possible to have that in the Bill? It seems to me that we would all be very much happier if it were.
Baroness Hanham
My noble friend has greater experience than I have of putting forward legislation, and he will know that not all measures are put into a Bill. Some are in secondary legislation and some are in planning guidance. I have no doubt at all that it will be made clear to local authorities how that designation is going to come about and what they will be able to do to ameliorate it. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Jenkin of Roding
A number of noble Lords asked whether we were going to have the Government’s response to the consultation with the details of the criteria before Report, which seems likely to be in about the middle of February. That does not give the Government a great deal of time because, as has been said, the consultation finished only last week. However, I think it would be much more helpful to the House if we could see the criteria. The Minister has laid great stress on the fact that local authorities will know what the criteria are, but will noble Lords know?
Baroness Hanham
My noble friend would know what they are if he had read the consultation document, which, knowing his experience, he will have done. The criteria put out to consultation are that local authorities will be designated if they should not have achieved the statutory requirement in 30% of applications and if they have had 20% of appeals overturned. I think that those are the figures in the consultation, and the consultation is where the criteria stand at the moment.
As regards the other information, the consultation has just closed. It will probably be quite difficult to get a full response by the time we get to Report, but we can certainly give noble Lords an indication of the responses to the consultation, which may be helpful. I am not going to guarantee that we can give the Government’s response by Report, because I think that it may require more consideration than the time available allows.
Lord Tope
My Lords, I am very grateful to all who have taken part in this debate over the past hour and a half or so. I think it is customary, if undesirable, that the first debate on the first amendment in Committee tends to range just a little wider than the precise nature of the amendment. That has certainly been the case today and it has been none the worse for that.
The noble Lord, Lord Deben, has introduced me to a new word: “vocality”. Like him, I do not know if such a word exists, but I remember looking up “localism” in the dictionary and finding that it was not there at all, so I now look forward to the “Vocality Bill” in the next Session.
I will try to deal simply with the amendments, particularly Amendment 1 in my name. It struck me that when the noble Baroness, Lady Hanham, got up to speak, she referred to it as the amendment which sought to delay designation. I thought that was quite telling; I have to accept that that is certainly the effect, but it is not actually the intention. The intention is to find a better way of dealing with the problem that the Government perceive. Its intention is to try to help the Minister achieve the aspiration of never having to use this provision. The designation is not about seeking to delay—although that is the inevitable effect—it is about seeking a much better and more effective way to bring about the improvement that, in fairness, everybody wants, not just the Minister.
The Minister will have heard—and I am sure that she will take this away from this debate—considerable concern on all sides of the House about the clause as it presently stands and the support from all sides of the House for these amendments in order to bring about the objective to which I referred: namely, to find a better and more effective way of bringing about the improvements that we all seek. Obviously we are going to return to this clause on Report; I do not know what will happen then or what noble Lords will say. However, if it is to be supported by many sides of this House, we need to have some reassurances in the Bill from the Government along the lines of those that we are talking about today.
We have proposed criteria which I am told would currently catch only six local authorities; I would be very interested to know which six local authorities they are. I wonder whether those authorities themselves know that they are, in effect, on a danger list. I would like to know what size of authority they are, and to what extent and in what way they are apparently failing to meet the criteria. Is the failure on the quality, if that is the right expression, of their losing appeals—I think not, from what the noble Lord, Lord Best, has said—or is it simply on the time measure? All these things are of interest and relevance.
The criteria are not going to be in the Bill, and it is certain that at some stage during the lifetime of the Act, when this Bill is enacted, those criteria will change; they are bound to change. It is equally certain that the Planning Minister will change in the lifetime of the Act; it is even possible that the Government may change in the lifetime of the Act, and we may find a time when we have a less benevolent Planning Minister, a less benevolent Secretary of State and even possibly a less benevolent Government. Therefore, when we legislate here, we need the assurances that these amendments seek to achieve. They may or may not be the right way or the best way to achieve them, but I discern from this debate that noble Lords on all sides of the House are seeking those assurances before we pass this clause. I hope the Minister will take that concern back to her ministerial colleagues and see what the Government can bring forward to meet the concern that has been expressed. In the mean time, I beg leave to withdraw the amendment.
Baroness Hanham
My Lords, I thank noble Lords for their contributions on this amendment. Some of the ground was covered previously, but not substantially, so I am grateful for all the views that have been put forward. What is being underscored here is that a local authority should not be penalised for something which is well outside its own control. As I said in response to the previous amendment, it would be our intention that where a local planning authority was on the bar for designation it would at least be able to discuss some of the reasons for why it thought that it was slow, particularly over one or two applications. The noble Lord, Lord Greaves, is right: there are a number of areas where local authorities simply cannot do anything about that.
They can under the new planning agreement, however, as they will be able to say to a developer that there are areas which are outside their control and may take longer to consider. That can be a formal agreement, or there can an informal agreement saying the same thing, and it can take place at any stage in the planning process. If you get to a certain stage and discover that you have not got the response that you need, the planning agreement could be that you think that a few weeks might be needed to bring that in and it could be delayed. This is not about planning applications where we know that things go wrong; it is where the normal process of considering an application is deliberately slow.
I hear very clearly what is being said about this, and I hope that we will be able to make clear either in guidance or in some other way what would be excluded, because that is important. We have noted, too, what your Lordships’ Select Committee on the Constitution and the Delegated Powers and Regulatory Reform Committee had to say about this. We need to take note of that, consider it and come back at Report if there is anything that we can do to respond to it.
The noble Lord, Lord Greaves, has set out a substantial list. I do not think that he really believes that it would be sensible to have that in the Bill. We need to understand where the exceptions and difficulties are. I am sure that we will think about that after the sitting.
Amendment 34, tabled by the noble Lord, Lord True, and to which the noble Lord, Lord Tope, spoke, concerns the question of judicial review and proposes that any judicial review should be excluded from any assessment of speed. An absolutely minute number of planning applications are subject to judicial review and, in the vast majority of those cases, the proceedings are instigated once the application has been determined. They do not take place during the course of the review, which might take up time. I do not think that judicial review will impede councils’ performance on the consideration of the application. It is therefore unnecessary to make special provision for applications subject to judicial review in any way. I suspect that if it happened in the middle of a process it would be as relevant to have that as a planning agreement to be sorted out as any other. I need to check that, but that seems a pretty logical conclusion.
We have dealt a little with an authority’s past improvement in performance, and the proposal that any designation should be based on five years. That would be far too long. We are looking at the figures for two years because we are concerned about the performance occurring now, not about whether the authority has improved over five years, because if it is still not at the criteria level now, it will make no difference whether it started from nought or not or whether it has gone up or down. It is better to set a bar of two years and not much more so that we get a really clear impression of what is happening at present.
Where local authorities are deemed to be failing under the criteria, we do not want to hang about. We do not want them to be under pressure about it; if they are to be designated, we want them to be designated, the help to be put in place and the opportunity to be de-designated at the year review to be put in hand immediately. I keep saying this, but we do not want local authorities to be designated; we would much prefer that they were not. We need to ensure that if they are not performing well, they start to perform well or better very quickly.
We have made clear that we will take a picture of each authority’s performance over the most recent two-year period to even out any fluctuations in the data and account for the fact that some authorities deal with more applications than others. I said that in debate on a previous amendment. We recognise that that there are authorities, such as the national parks authority, which deal with a limited number of major applications during the course of a year. Of course we must take that into account compared with a local planning authority which is dealing with any number of major applications.
We have just completed a consultation. As I said, we will try to ensure that noble Lords at least know before the next stage what were the responses to it. If we can get any further than that, we will. We will consult again in future if the approach to the criteria should change. That was a point picked up by the noble Lord, Lord McKenzie: what is to stop future Secretaries of State suddenly deciding that they want to raise all the criteria? What is to stop them is that they would have to go out to consultation; they could not just do it. That does not need to be in the Bill either.
I think that I have answered the point made by the noble Lord, Lord Greaves. If elements within the 13 weeks justify delay, we will certainly ensure that that is taken up. We shall consider very carefully the responses to the consultation. I hope that that covers the points made by noble Lords.
Lord Jenkin of Roding
My Lords, on Amendment 29, tabled by the noble Lord, Lord McKenzie, I raised a point about the length of time of the designation and drew attention to the fact that I was subject to judicial review because I had not included length of time for the suspension of the health authority. There is a parallel.
Baroness Hanham
In the consultation, it is suggested that the length of designation should be reviewed after a year. I think that the noble Lord, Lord Jenkin, is asking whether you could keep on renewing it so that there would be no end to the time. I do not know the answer to that, and I will drop the noble Lord a note, if I may.
Lord Greaves
My Lords, very briefly, I welcome what I think is a positive response from the Minister about local authorities not being put in a perilous position for reasons which are not their fault. I accept that my amendment was a typical Committee amendment to set out some of the issues in black and white; I did not expect it all to appear in the Bill. However, the point made by the noble Lord, Lord Deben, was that at the moment there is nothing in the Bill. If something can be included in the Bill to give me some reassurance and guarantee that the thinking—I am always in favour of thinking; it is what makes humans progress—that the Minister promised will take place on these matters, that would be extremely helpful. That could be by introducing regulations.
The only other pebble that I want to drop into the pond at the moment is to ask whether there is a danger that by emphasising formal planning performance agreements for major applications, the mere negotiation of those agreements in a much larger number of cases might cause more delays.
Baroness Hanham
Before the noble Lord withdraws his amendment, I hope I made it clear that if a local authority is going to be designated, it will be able to put forward the sort of points that he and the noble Lord, Lord Greaves, have suggested as a reason for why their applications have been slower than others. I hope that is clear.
Lord McKenzie of Luton
That is very helpful, but can we just be clear on the consequence? Notwithstanding that it might be close to the end of the year and that 30% of the applications will not be received within the designated time, can an authority come and say, “Because of these applications, these circumstances, these issues with a developer or these issues with the community”, so that designation may not then take place, even if the criteria have been breached? I am not sure whether the criteria are met or breached in these circumstances. However, that would be a way to avoid designation, and of doing so notwithstanding there being no formal and informal agreements. Obviously, those cannot now be dealt with in retrospect. Is that what the Minister is saying? That is actually very helpful; for me, it is a new point.
Baroness Hanham
I am saying that an authority could put that forward and have it taken into account. Whether it would actually stop the designation would depend on a whole number of other factors, but it is a fact that it would be able to make those representations.
Lord McKenzie of Luton
Indeed. My point was going to be that if this is a way of wrecking the clause, I am all in favour of that, but let us do it at clause stand part and do it properly. If it is structured as a means of incentivising people to get on with their local plan, I would have more sympathy.
I side with the noble Lord, Lord Greaves, on the national parks. The number of applications seems relevant because you might have two applications to deal with in a year, which several of these authorities did. If you determine each within 14 weeks of application, you would be designated. I think that would be the consequence of the fairly strict rule.
The noble Lord, Lord Deben, said that it is important that we are happy about this because it is objective. We say yes to an objective approach, but that does not mean a blanket approach where exactly the same criteria apply to all because if that 30% criterion applies, when you have authorities with a very small number of applications, it could work in a perverse way.
Baroness Hanham
On this amendment I shall satisfy my noble friend Lord Deben and practically nobody else because I cannot accept it. I do not suppose many noble Lords will be surprised at that because, as the noble Lord, Lord McKenzie of Luton, said quite properly and rightly, if this amendment were agreed to, that would be the end of Clause 1 because there would be virtually nobody left to be designated. If that is the purpose, I understand that, but if it is not, that is what the effect would be.
Amendment 6 would prevent the submission of applications directly to the Secretary of State in any area where the planning authority had not adopted a local plan within the past 20 years. I can advise noble Lords that the city of York is the only one that falls into that category. I am not sure that we want to allow that.
Quite apart from preventing the effective operation of Clause 1, these amendments are not entirely logical. Where applications are submitted directly to the Secretary of State, the planning inspectors dealing with them will have to have regard to flood risk and any designations that affect the site, and to the national policy that enshrines those important protections where local plans are not up to date. They are required to do so by law, just as the local planning authority is. Similarly, there is no logic in saying that local authorities should be exempted from designation just because they have responsibility for protected areas. Applicants for planning permission and local communities should be served by an effective planning service in these areas, just as much as anywhere else.
I note the arguments that noble Lords made about the specific circumstances of national parks. I heard very clearly what my noble friend Lord Deben said about this. We want the process of assessing performance to be fair, which is why the consultation proposes looking at this over a two-year period to ensure that judgments are based on sufficient data. We will, of course, be looking carefully at what the consultation responses say about this, but I do not think a case could be made to exclude national parks from possible designation just because they are national parks and because they may not deal with an enormous number of applications. The noble Lord, Lord Greaves, read out the list that I have had passed to me, and it is clear that some have more than others. The same argument can be made for all the other areas that noble Lords want to exclude. I guess most, or a great part, of London is in conservation areas, and I am not sure that we necessarily think that it would be a good idea to exclude them all.
I do not believe that these amendments are necessary. Their effect would be such that I would not be able to accept them because they would make Clause 1 redundant.
Lord Greaves
The table I have is headed “total major decisions” not “total major approvals”. This needs clarifying perhaps, but I would not want to clash with my noble friend Lord Jenkin of Roding over a technical, statistical thing when neither of us knows whether it is right.
Baroness Hanham
My Lords, I am happy to clarify the question of the noble Lord, Lord Greaves, immediately: it does not apply to every single application. This clause applies to major applications. Minor applications would not be included in any consideration for designation. Major developments, as the noble Lord, Lord McKenzie, has said, are already in secondary legislation. They are precisely as he read them out, and they would be the criteria by which we would seek to move ahead; that is the basis on which we are defining “major development”.
This is another point of consultation. The noble Lord is suggesting that “major” should be in the Bill. I would rather see all the replies to the consultation and come back on that, but the noble Lord has raised an important point.
Lord McKenzie of Luton
I am grateful to the noble Baroness for that response. We look forward to further discussion on that on Report.
I think that it is right, as I have indicated, that the Secretary of State does not have to delegate to the Planning Inspectorate, but could delegate to others. Is that correct? Are there any proposals to do that at all? Whom might those others encompass?
Baroness Hanham
My Lords, I think that it would be the Planning Inspectorate, but nods and winks from over there suggest that I should write to the noble Lord as to whether there is another area to which it could go.
Lord Adonis
My Lords, while the noble Baroness is writing to us, can she also give us the statistics that have been mentioned several times and are quite important to this discussion: the proportion of major applications that the Planning Inspectorate itself determines within 13 weeks? Perhaps the noble Baroness has the figure to hand but, if not, could she let us know?
Lord McKenzie of Luton
My Lords, again, I am grateful to the Minister and beg leave to withdraw the amendment.
Lord McKenzie of Luton
My Lords, we have Amendments 11 and 17 in this group. Amendment 11 refers to circumstances where a connected application is made to the Secretary of State. It would clarify that the Secretary of State will be responsible for ensuring that all statutory requirements which a local planning authority or hazardous substance authority have to meet will be met by the Secretary of State. Perhaps the Minister can confirm that.
Amendment 17 is very much along the same lines as that pursued by the noble Lord, Lord Greaves. It would bring some clarity to the boundaries of what counts as a connected application. The Bill clearly includes listed building consent and conservation area consent, but otherwise means,
“an application of a description prescribed by the Secretary of State”.
This prescription will presumably be via some parliamentary process. Our amendment would require a consultation to be held. However, the particular purpose of the amendment, like the probing amendment of the noble Lord, Lord Greaves, is to get more on the record concerning the Government’s approach to this. It is understood that this may be driven, at least in part, by the Penfold review, but that was looking at non-planning consent, so I am unsure how that would fit; indeed, some of the other recommendations of the Penfold review are being carried forward in the Bill. Can the Minister say whether anything is in contemplation under Clause 1(3)(a)(ii)?
We support Amendments 10 and 12 in the name of the noble Lord, Lord Greaves, which would make it mandatory to refer a non-connected application to a relevant planning authority or hazardous substance authority. If it were not mandatory, I am not sure where it would go.
Baroness Hanham
My Lords, I need to start by explaining why we have made provision for connected applications in subsections (3) and (4) of new Section 62A to be inserted in the Town and Country Planning Act 1990 under Clause 1. In the few cases where a planning application is submitted directly to the Secretary of State—that is, at the behest of the developer—it is important that if there are any other consents that need to be obtained under the planning Acts, and which are directly connected to the scheme concerned, it makes sense to have the ability for them to be considered by the Secretary of State at the same time. That would be a normal planning process. This is not a hidden provision that would allow an expansion in the use of Clause 1 by the back door but a common-sense measure to minimise bureaucracy and to streamline the process.
We have not sought to specify every single consent that could conceivably fall into this category but have instead cited the principal ones and given the Secretary of State the ability to prescribe any additional consents that may need to be dealt with in a similar way, which might include, for example, hazardous waste, advertisement consent or tree preservation order consent. There probably are some others but those would be the main ones.
This is a common approach in legislation, which avoids the Act becoming unnecessarily detailed and complicated. In practice, it will relate just to a small number of applications and consents that are required only occasionally, and which are, additionally, limited to consents required under the planning Acts and not under any other legislation. Nor is there any need, as Amendment 11 seeks to do, to say in the Bill that in dealing with such applications the Secretary of State should comply with relevant statutory requirements. We will ensure through the secondary legislation that all statutory requirements apply, whoever the decision-maker is.
Amendment 17 seeks to make decisions about the submission or transfer of connected applications subject to published criteria. Once again, I do not think that placing such a requirement in the Bill is at all necessary. It usually will be a matter of common sense as to whether a particular consent is “connected” or not. Therefore, we do not need to add to the mountain of planning guidance that already exists. Indeed, as noble Lords will know, the Government are undertaking a radical streamlining of the planning guidance under the noble Lord, Lord Taylor. He probably would not welcome our adding any more to his work.
I can deal quite briefly with Amendment 12, which, as the noble Lord, Lord Greaves, has said, concerns the language—we have discussed this on many occasions as regards many amendments—and whether it should say “may” rather than “must”. However, this is consistent with the Town and Country Planning Act 1990, which is the legislation that this clause would amend. This is a matter of drafting convention that we should respect. The noble Lord, Lord Greaves, asked me where the advice would come from and whether an application is connected. We would expect that that would be covered in any pre-application discussions either at the time the application was moved to the Planning Inspectorate or initially.
I would like to reassure noble Lords that there is absolutely no question of the Secretary of State holding on to a “connected application”, should it be found to be unrelated—unconnected—to the planning application that he is considering. There would be no reason for him to do so and it clearly would not be at all sensible. I hope with those explanations that the noble Lord is willing to withdraw the amendment.
Lord Greaves
My Lords, I think I have got the answer that I was seeking on the “may/must” issue: the Secretary of State would send it back to the local planning authority and there would be no question—I think that those were the Minister’s words—about that, which is okay. As someone who believes that words must mean what they mean, I do not understand why it should say “may”. Nevertheless, I accept the Minister’s assurance.
I can understand how the conservation consents and the listed building consents fit naturally with the relevant application with which the Secretary of State is dealing. I started to get a bit alarmed when the Minister referred to advertisement consent and TPOs. Advertisement consent tends to concern things that happen over a period of time. For example, at the beginning of a big new development, there will be some adverts. But what happens if someone comes along two years after the development has taken place and asks for more or different advertisements, or whatever? Because the application originally had been a relevant application dealt with by the Secretary of State and assuming that the authority was still designated two years later, would it still go to the Secretary of State or would it be regarded as a completely new application, although not a major application because it refers to just advertisement consent, and be dealt with by the local authority in the normal way? In other words, what would the system be for minor additions or changes to the development once the development had been completed and signed off? That is the question that arises in my mind.
Baroness Hanham
My Lords, there is always a danger in being clever. I found a briefing note about the extra provisions and I thought that it would be sensible to read it out. I am now regretting it enormously because the noble Lord, Lord Greaves, has raised further perfectly sensible and relevant questions about it. As regards the tree preservation order and the advertisement consent, I can see how they could be connected applications but the noble Lord might be happier if he gets a proper response and I will make sure that he does. I am very sorry but I have completely forgotten what else he asked me.
Lord Greaves
I asked about what will happen when further minor applications or advertisement consents come up—for example, if a big development has taken place and people want to change it or to put up adverts.
Baroness Hanham
I apologise for that. I was getting the small things right. They would be new applications and therefore they would be considered in the same way, depending on whether the authority at that stage was designated or not.
Lord Greaves
Perhaps the Minister would include that in her clarification letter. Clearly, if the authority is no longer designated, it would deal with applications because there would be no procedure for sending them off. But if it was still designated, at what stage does a development break free from being a relevant development and is treated like any other development?
Baroness Hanham
My understanding is that any fresh application, even one which is associated with a development, would be considered to be a new application. It would therefore fall to be considered on the basis of whether or not the authority was designated and whether the developer under those circumstances wanted to take it back to the Planning Inspectorate. If that is not correct, I will let the noble Lord know.
Lord Greaves
We could go on talking about this for a while but I think that it would be better to clarify it outside the Chamber. I am very grateful for the answers that I have been given. I beg leave to withdraw the amendment.
Baroness Hanham
My Lords, I understand and agree with the intention behind Amendments 13 and 14. We have no argument with the suggestion that the fee for any connected application should be transferred to the local planning authority or the hazardous substances authority if it is found that the application is not, in fact, connected and the authority is the most appropriate body to determine the application. I hope that that covers those points. That is not, however, something that we want to provide for in the Bill, because such matters are most appropriately dealt with, alongside other fees issues, in the appropriate secondary legislation. It will be in secondary legislation and I should like to reassure noble Lords that that is what we intend.
Turning to the other amendments in this group, it is our intention that the Planning Inspectorate will deal with as many aspects of an application made directly to the Secretary of State as possible. In these circumstances, as the consultation document makes very clear, we intend to ask a designated planning authority to carry out only some basic administrative tasks. These include entering the application on the local authority’s planning register, undertaking neighbour notification and posting site notices. Therefore, subsection (6) of this clause has probably generated more excitement than is merited because none of these situations is very cost-intensive. While the provision indeed gives the Secretary of State a direction-making power in relation to designated authorities, it is intended to be used in a manner strictly limited to those aspects of handling an application for which it makes absolute sense for the job to be done locally. While I agree with the sentiment behind Amendment 20, I am not convinced that it is necessary to put such a requirement in the Bill.
I am also confident that there is no need to add “designated” before “authority” in subsection (6)(b), which Amendments 21 and 22 seek to do. The subsection can apply only to applications made directly to the Secretary of State, which would be possible only where an authority has been designated under this clause. It follows that the additional words are unnecessary.
In relation to Amendments 23 and 24, the local authority planning service is funded not only by fees from planning applications, which the noble Lord, Lord McKenzie, alluded to, but from the local government grant, which authorities will continue to receive to help cover these basic administrative costs. There will be no diminution there. The cost of the work will be minimal but the potential need to meet these costs should be seen as part of the disincentive to performing poorly.
Lord McKenzie of Luton
I am sorry to interrupt the noble Baroness. She referred to the grant made available to local authorities and said that there will be no diminution in it. Are we talking about a separate grant or one that is paid as part of the business rate retention scheme and revenue support grant? How does that come through, particularly given the assertion that it has not reduced?
Baroness Hanham
My Lords, I think that I am talking about just the main local grant that comes with the formula grant. I may need to write to the noble Lord on that aspect. With that reservation—it needs to be part of the compendium that will come after this session—I hope that noble Lords will withdraw or not move their amendments.
Lord Greaves
My Lords, there used to be something called the planning performance grant, but my understanding is that it had been abolished. I do not know if any answer on that will be forthcoming, but it would be helpful.
Local authorities will have this extra cost because their income from planning applications, particularly major applications, will decrease or be taken away. The authority will therefore have no choice but to attempt to downsize its planning department. However, downsizing a small department and saving money is not always easy because the authority may have staff in whole numbers and it may not be possible to split them up into part-time staff. The authority may have to choose, if it has four development control staff, to get rid of a whole person. That may be more of a reduction than is reasonable for the continued efficient operation of the department. Who knows? All circumstances may be different but it is ambitious for the Government to suggest that costs will be minimal.
In addition, confining the department to performing basic administrative tasks simply may not be possible in reality because, with the best will in the world, the Planning Inspectorate will as much as possible want to tap into local information and knowledge, which will reside within the local planning department; there is no doubt about that. Is the idea that the department will perform only a few administrative tasks and that staff will not receive telephone calls, e-mails or whatever asking for more information? When you are dealing with a major planning application, all the time you are seeking lots of information from lots of sources, and some of it will be ambiguous and you will want to know its planning history. You will therefore go to the local planning officers to get that information. That will inevitably take up their time and some of the resources of the local authority. The idea that the local authority planning officers simply bang up a few notices on site or put them in the local paper is utterly unrealistic. They are going to get involved because it will be in the interests of the Planning Inspectorate that they do so; and that will be the way to get a good, quick and efficient decision. The inspectorate should not have to seek information from scratch when it is there within the local planning department. That will happen all the time and it will cost money. We may continue to talk about this and—
Lord McKenzie of Luton
Before the noble Lord withdraws the amendment, perhaps I may follow his point about the extent of the engagement of the local planning authority, which is important. He has opened up some real questions. As I understand it, the planning authority will still be able to—it may be expected to—make representations to PINS or the Secretary of State about a particular application. The authority would presumably want some public engagement to be able to formulate its views. Are those activities that the local authority will have to carry out in addition?
The consultation document makes reference to Section 106 negotiations, which it seems to suggest will not be dealt with by the Secretary of State or the planning inspector and will go back to local authorities. There was also the suggestion that such negotiations are carried out at the end of the process. I am not hugely familiar with some of the detailed processes of Section 106 negotiations but I wonder whether they always happen at the end or along the way as part of the application. There seems to be other potential activity that the local planning authority will, of necessity, be involved in.
Baroness Hanham
My Lords, the question of whether the Section 106 procedure is carried out by the local authority or the Planning Inspectorate will depend on where the negotiations take place, because they sometimes take place during the process of the application. I need to obtain a firm response on whether, in some cases, that will be done by the local authority, subsequent to the planning decision. It is my recollection—this is not from the officials—that the Section 106 procedure is usually, at the end of the day, part of the conditions of the permission. It would therefore make sense that it had to be negotiated during the course of the application. If that is not correct, I will let noble Lords know before the next stage. However, that is probably as near as I can get at the moment.
Lord McKenzie of Luton
That would be helpful. The noble Baroness has prompted another thought: will the discharge of conditions for planning consent be left with the local planning authority, not dealt with by the inspectorate?
Baroness Hanham
Local residents will of course have the same right to put their representations directly to the Planning Inspectorate as they would to a local authority.
Lord Greaves
My Lords, the noble Lord, Lord McKenzie, has raised some extremely important issues. Perhaps this is a matter on which we could receive a letter but my understanding is that the imposition of conditions will be part of the planning permission. I am not sure what “discharge of conditions” means, but if it means checking that they are taking place, and monitoring and supervising that, if the local planning authority is to carry that out, depending on what the conditions are, it will take time and resources—particularly staff time. If there are then complaints from anybody that it is being done wrongly, the local authority will be responsible for enforcement. That costs money, which, in a normal state of affairs, would be partly paid for by the planning application fee. In the case of big applications, the fee can be considerable.
The other thought that I had when the noble Lord, Lord McKenzie, was questioning the Minister was that it is inconceivable that a local planning authority—by which I mean the councillors—will not want to act as a consultee if it is a major planning application. It is inconceivable that the planning management committee, or whatever it is called in a particular area, will not consider that application, just as the local parish councils will do. In doing so, it will want quite a lot of solid evidence from its officers. It will not be prepared to behave like a parish council that simply gets the application and talks about it but does not really have any expert advice, the advice being based on local knowledge and so on; it will be a planning committee which expects a proper report and which expects to make representations to the Secretary of State—or Planning Inspectorate—who makes the decision. It is inconceivable that that would not happen.
As a councillor, I do not envisage that my authority will be designated. I would be ashamed if it were and I am sure that it will not be. However, if I was on a council that was designated, as a councillor it is inconceivable that I would not want the councillors to put in their two pennyworth. That, too, will cost money, and for the Government to say, “Oh well, that will just have to come out of the general funds”, is very unsatisfactory.
I am very grateful to the Minister for her response to my first amendment and I raise my glass to her on that. I think that there is more to be talked about on the general financial issue between now and Report and, on that basis, I am pleased to—
Baroness Hanham
Before the noble Lord withdraws his amendment, I need to correct what I said so that we are absolutely clear. I should have remembered that the proposal in the consultation is that the planning authority will continue to deal with Section 106 and the discharge of conditions, although we will of course need to look at what people have said in the consultation. However, the proposal is not as I think I presented it; it is that the planning authority will continue with Section 106.
Lord Greaves
My Lords, this gets a bit more mysterious. The decision on whether or not to grant planning permission sometimes depends on whether a satisfactory Section 106 agreement is available. That is what tips the balance one way or the other if it is a marginal application. Certainly, I do not know what “discharge of conditions” means. Perhaps we need to understand that, as I have already said. However, the decision as to what the conditions are is an integral part of granting planning permission. You do not grant planning permission and then sit around thinking, “What conditions shall we put on it?”. You discuss the conditions and all the arrangements and then, on the basis of the whole package, you say, “Yes, that’s okay”. You might take off one condition that is proposed and put on another, or you might say, “We’ll have another condition to make it reasonable for people within that particular street”, or whatever. That is how it works, and I simply do not understand how the Planning Inspectorate can give planning permission without conditions. I do not believe that it is going to do so because, with regard to appeals, when an application is turned down the inspector decides what conditions to put on at that stage. He will always ask the local planning authority that turned down the application for a list of possible conditions if he decides to approve it. That is how it works. I think that we need some clarity on this. Having said that, I shall make a further attempt to beg leave to withdraw the amendment.
The Earl of Lytton
I added my name to this amendment not least because it was originally drafted by the National Association of Local Councils, in relation to which I have already declared an interest.
I apprehend that Clause 1 is not intended to create a new type of planning application or that such applications should follow a fundamentally different evidential or representative process. It needs to be stressed that neighbourhood plans, as well as local plans, will continue to be relevant to that process. I am glad to see the Minister nodding her head. It is right that the amendment seeks to clarify this. In writing to me in the context of Clause 1, the Minister helpfully said:
“Local people will be able to comment on an application in the usual way if it’s being decided by the Planning Inspectorate instead of the local authority”.
That seems to be an incredibly helpful overarching consideration.
There is one bit of detail that needs to be addressed. Parts of the online version of the Town and Country Planning Act 1990—I am referring to Schedule 1(8)(i)—have been altered by subsequent legislation. I appreciate that the Minister may be unable to answer right now but it is not clear to me precisely what has been appealed and whether the amendment fulfils that purpose. I would like to clarify that because, under the original 1990 legislation, the parish council had to notify the planning authority that it wanted to be notified in relation to appeals. I do not see how that process will operate with the Planning Inspectorate. I am sure that there must be a way, but I would appreciate having some clarification as to how it will work in practice. The effect of Clause 1 is to move this one stage further away from the parish and neighbourhood in an application going direct to the Planning Inspectorate. In other words, it has not been dealt with by the principal authority with which it may already have existing arrangements. If the Minister could give us some clarification I would be enormously grateful.
Baroness Hanham
I have been trying to make it clear all the way through this afternoon and evening that, when the application is taken to the inspectorate, the same consultation processes will have to take place as would have taken place if the local authority had conducted the application itself. The consultation document makes it clear that there will be no dilution in the ability of communities to become aware of applications through notifications or discussions, or in their ability to comment on them in very much the same way.
I appreciate what my noble friend Lord Deben says about people being consulted. I draw his attention to the Localism Act, in which there is a requirement for planning developers to undertake pre-application planning discussions. One would expect that to happen in the first instance. The size of the applications being discussed by my noble friend would be beyond the purpose of the clause; they would be major infrastructure applications. However, some applications that will not go quite so far will still be big enough to arouse local feeling. We intend that all the current statutory requirements on local authorities should be transferred to the inspectorate. There will be the same standards of publicity and consultation, and the same opportunities and periods to make representations; and all the relevant documents will have to be available at the offices of the relevant planning authority and on the Planning Inspectorate’s website, so one will be able either to look them up on the internet or check them out locally.
Lord McKenzie of Luton
Will the Minister confirm that the current standard arrangements for consultation involve the presumption that applications are examined principally by means of written representations, with the option of a short hearing to allow the key parties briefly to put their point of view? Is that a characterisation of how the system works at the moment?
Baroness Hanham
Every local authority has its own methods, which must fall within the statutory consultation process. It would not be out of order for a planning inspector to hold a direct hearing to hear from local people; I do not see why he should not be able to do that. That would happen now anyway if the local authority thought that it was required. The process would be exactly the same as that available now. We do not think that this requires anything other than secondary legislation. It will be in secondary legislation. I am prepared to keep that under review for a little while to make sure that that is correct.
In answer to the noble Earl, Lord Lytton, planning inspectors will need to take into account all material considerations, which will include any local or neighbourhood plans. I am sure that any statutory obligation to undertake consultation with parish councils will remain. With those reassurances, I hope that the noble Lord will withdraw his amendment.
Lord Greaves
My Lords, I am grateful to a number of speakers who took part in this debate. I am grateful to the noble Earl, Lord Lytton, for his support on the issue of parish councils. I think that I have an up-to-date version of the 1990 Act, but one can never be totally sure about these things. I think that my amendment stands up, but I will look at it again, and perhaps the Minister will clarify the issue.
What the Minister said on parish councils did not quite meet the case. She said that the present statutory position would still apply. However, the statutory provision is in relation to planning applications made to the local planning authority. The question is: will it automatically transfer as a statutory provision to the Planning Inspectorate? If not, should paragraph 8 of Schedule 1 to the 1990 Act be amended to make it absolutely clear that it does apply to the Planning Inspectorate, and that parish councils will have a right to notification—which I think now is an automatic right, but I will check this—rather than having to ask for it?
I was particularly grateful for the splendid speech of the noble Lord, Lord Deben, who said some things that I would like to have said in your Lordships’ House but stepped back from saying because noble Lords might have thought that I was threatening to organise all the Swampys of the world to go and make a nuisance of themselves—which of course I would never do, but might have done in my youth. However, I will march hand in hand with the noble Lord, Lord Deben, leading a band of people behind us.
I will be serious, because this is a very serious matter. The Minister said that people like to be consulted. They do—that is absolutely true—but nowadays they demand to be consulted, and are very unhappy if they feel that they have not been consulted and, whatever the final decision is, that their representations and views have not been taken seriously. That is the important thing that we must get right, and I am not sure that the Bill does that.
The Minister said that all the same processes would take place, but the question is: given that they are different in different planning authorities, can the Planning Inspectorate cope with doing different things in different areas? The basics of what it does will have to be the same. There will have to be site notices, appropriate notices in the newspapers and so on. However, because some planning authorities go much further than they have to under the legislation, will it be local custom and practice—local policy—that applies, or will the Planning Inspectorate try to apply the same thing everywhere? That is the fundamental question that needs more thought.
Lord McKenzie of Luton
In relation to the consultation, the response was frankly a bit thin. This is an issue that we need to consider further. I will revert briefly to the point about material considerations, the Planning Inspectorate and the NPPF. I accept that it may be an entirely irrelevant point, or at least a technical one. Will there be any difference in the weight given to material consideration issues or to issues in the NPPF that balance a range of things between the perspective of a planning inspector and that of a local planning authority? This is quite apart from any difference in process. We might align them as much as we can, but is there something inherent in the process that could give a different result? I do not assert that there is, but I would be interested in a response on that point.
Baroness Hanham
I will give the noble Lord a response, but I may have to change it. My instinct is to say that the Planning Inspectorate already deals with innumerable applications from different local authorities. I do not see why the processes that it will follow when taking an application initially will be any different from those that it follows when it considers an appeal. That seems to be the sensible answer. If there is another answer that does not come under the heading of “sensible”, I will let the noble Lord know.
Lord Greaves
My Lords, that was a very interesting dialogue. Most of the things that the Planning Inspectorate deals with now are appeals, for which there can be a standard system everywhere. Dealing with initial applications is different everywhere. These are things about which we need to think further, not least to avoid revolution in the land, particularly in rural areas. I beg leave to withdraw the amendment.