Growth and Infrastructure Bill

Baroness Hanham Excerpts

Monday 28th January 2013 Lords Chamber

[Lord McKenzie of Luton]

My Lords, we have signed up to most of the amendments tabled by the noble Lord, Lord Greaves, but did not sign up to his definition of “reasonable”, simply because one of his other amendments sought to delete that term from the Bill, which we thought was a better solution. Along with the noble Lord, we consider that the clause is superfluous, or unnecessary or pernicious, to use the terms of my noble friend Lord Hanworth. Again, we see a measure which is based on assertion and anecdote rather than on hard evidence.

The Government launched a consultation document entitled Streamlining information requirements for planning applications on 3 July last year, which they closed on 11 September. When are we going to get the Government’s response to that consultation? Will it be before or after Report? Interestingly, the consultation states:

“There is no immediate vehicle for further reforms to primary planning legislation”.

That was back in July and it somewhat reinforces our contention that this Bill has been cobbled together in pretty short order. The consultation focuses on three areas: outlying planning permissions; local informational requirements; and agricultural land declarations. In respect of local information, which, effectively, is dealt with in this clause, the document cites that, although the primary powers of local authorities in this respect are broad, they are constrained, in particular by the publication of local information equivalents and the evidence and particulars regarding what is required and by national policy requirements that state that,

“local planning authorities should only request supporting information that is relevant, necessary and material to the application”.

This is what the procedure order requires, as does the related guidance. The consultation document muses that recent changes, including the NPPF, referred to by the noble Baroness, Lady Young, and the demise of regional spatial strategies, will mean that the information requirements of local authorities are likely to be out of date and should be updated every two years. However, it is clear from this document that, if it is necessary to change the current requirements—for example, with a regular updating of information lists—there are already powers to do this.

This also raises the question of why the policy position set down in the NPPF is not sufficient and why it is considered that primary legislation—available, it seems, after all—is needed. There is already a requirement to be reasonable, so what does Clause 5 add other than confusion? I agree with the noble Lord, Lord Cameron, that some planning authorities struggle and are under-resourced. However, surely the answer is to make sure not only that they have clear guidance but are supported in their endeavours. It seems to me that this clause does not help them or move them on one jot.

Specifically, from whose perspective does reasonableness have to be judged? Is that not the role of the local planning authority that has to consider the application? At the end of the day, I fear that this clause is, like too many in this Bill, all about adding another bit of pressure on local planning authorities so that they are encouraged to ask for less, to decide more quickly and to avoid risking appeals, so undermining the quality of decision-making. If the noble Lord is minded at a point in time during our deliberations to seek to have this clause deleted from the Bill, we will support him.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)]

Clause 5 amends Section 62 of the Town and Country Planning Act 1990, just in case that had escaped noble Lords. The clause sets out limits to the general power, under Section 62(3) of the Act, of local authorities to request information in support of planning applications.

There has been some debate today about why the clause is necessary. The department published the consultation paper on 21 January—indeed noble Lords’ attention has been drawn to it—and I hope that provides some reassurance on this point. With regard to the other consultation paper that was concluded in September, the Government’s response was provided on 12 December, so a response has been made. The consultation paper demonstrates how the provisions in the Bill form a critically important part of a wider package of deregulatory measures brought forward with the purpose of simplifying the planning system. As well as ensuring a better alignment between the National Planning Policy Framework and the primary legislation that governs information requests by local authorities, the consultation emphasises the need to place limits on the broad power that currently exists in Section 62(3) of the Town and Country Planning Act. This is to address the impact of recent court decisions and ensure that applicants can access the planning appeals system where there is a dispute with the local authority regarding what information is necessary to validate a planning application.

The noble Baroness, Lady Young, asked about the interrelationship between the National Planning Policy Framework and this clause. While the NPPF sets out a clear expectation on local authorities through policy, it is alone insufficient to overcome the interpretation given by the courts to the current legislative framework. The clause also safeguards the position of a local authority in requesting information, where a justification exists on the basis that the matter will be a material consideration when it comes to determine the application in question. Overall, I believe this change will bring a more balanced state of affairs whereby applicants and local authorities will work together to establish the amount of information necessary to get a particular planning application validated. Alongside our wider package, the clause will deliver a better and more proportionate approach to information requests and reduce the scope for disputes that can lead to delays at the validation stage.

Amendments 52, 53 and 54 would all considerably weaken the purpose of the clause and the achievement of the objectives I have just set out. Amendment 53 would amend the objective test in Clause 5 of whether a matter will be a material consideration in the determination of the application to become a more subjective test where the primary role is with the local authority to determine whether this is the case. That would undermine our attempt to address the broad powers of local authorities that have been the source of criticism by the courts. Similarly, Amendment 52 would essentially return us to the position that currently exists and has been found problematic: a subjective test decided by the local authority. A local authority would merely have to have regard to the nature and scale of the development when making an information request.

The purpose of requiring such information requests to be reasonable is to ensure that a local authority can justify whatever information it is seeking and can respond, if pressed, as to why it considers applicants should have to go to the often considerable expense of providing it. Presumably, that is something which we all agree is sensible and appropriate. Amendment 54 would continue in a similar vein, by weakening the requirement for local authorities to justify information requests on the basis that it is reasonable to think that they will be material considerations in the determination of the application to a looser requirement that they would be likely to be. Although I can understand the intention behind the amendment, we need to ensure that local authorities are clear, consistent and certain in why they think that information is going to be relevant to the determination of the application in question. Changing the test to “likely” will weaken the effect of this important principle.

Amendment 55 seeks to respond to the criticism that there is no statutory definition of what is “reasonable” by suggesting one. The definition attempts to set out circumstances which could definitively be considered “reasonable”. These would include information requests made by a government department, government agency or statutory consultee. As I have already said, the purpose of including “reasonable” in the tests is to require a local authority to justify why it considers information is necessary for the application to be validated. The likely requirements of a statutory consultee would clearly be a relevant justification as long as they are warranted by the circumstances of an application.

However, a tick-box attitude to the local list—there are indeed local lists of what information would be required—without consideration of the relevance of any particular item for a particular application will not do. Attempting to draw up in primary legislation a definitive list of what is and is not reasonable is not likely to be helpful and could create confusion. The tests that apply are already clearly set out in the NPPF and the clause as it currently stands clearly emphasises this.

What we really want is for local authorities and applicants to think these matters through together and, where differences emerge at validation stage, to have a sensible discussion about what is reasonable in the individual circumstances of the case. The concern that has prompted this change is that the law as currently drafted allows local authorities to refuse to validate planning applications indefinitely and simply to impose information requirements unilaterally on applicants.

In summary, I fully understand and respect the need for us to safeguard the ability of local authorities to request information from the applicant where it is essential to the determination of a planning application. Clause 5 and the associated proposed changes to secondary legislation achieve this. No harm will be created by the requirement for such requests to be justified and, if necessary, enabling matters to proceed to appeal for a decision. Indeed, we consider that Clause 5 will encourage both applicants and local authorities to work more closely together to ensure that the likely impacts of development are fully appraised in the documentation submitted with the planning application in question.

[Lord Deben]

I assure my noble friend that many of us are very much in favour of this clause as it responds to a real need and an articulated concern. The Government have sometimes seemed to have felt that the planning system is a much more powerful deterrent to growth than many of us feel, but this change will be welcomed by those who feel that local authorities often have a standard list of things, whether it is applicable or not. I hope that my noble friend will be able to spread this approach to others, because many institutions, authorities and businesses constantly ask for a lot of information which is totally unnecessary but do it because they always have done. I hope she understands that there is great support for her position on this issue, although some of us are more unhappy about other parts of the Bill.

[Baroness Hanham]

My Lords, I am grateful to my noble friend for that contribution. I am not sure that I can commit other departments and other parts of government to doing anything, but I am glad of his support for what we are trying to do here. It is important that we get this right. I have been asked for the evidence on which the change is based. Not only have concerns been expressed on the part of the development industry about delays experienced at validation stage and the costs involved but this has been a long-standing issue and was a key theme in the Killian Pretty review, to which I am almost certain the noble Lord referred at Second Reading—somebody did anyway. That review, commissioned in 2008, was of the planning application process. Most recently, the department consulted on proposals to amend secondary legislation to streamline information requirements. It was clear from responses from the applicant community that they wanted us to go further and look at the primary legislative framework, which is what we have done.

The noble Lord, Lord Beecham, referred to the impact assessment. The savings predicted in the impact assessment are based on a reduction in costs generated by a shift in behaviour as a result of the clause and changes to secondary legislation. Both the clause itself and related changes to secondary legislation are necessary to introduce the ability for applicants to access the appeals system. If I am pressed—which I see the noble Lord is about to do—I will be happy to write to him on the detailed points made.