Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013

Baroness Hanham Excerpts

Thursday 11th July 2013 Lords Chamber

Moved by

[Baroness Hanham]

That the draft regulations laid before the House on 20 May be approved.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments, 5th Report from the Secondary Legislation Scrutiny Committee.

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

My Lords, the regulations laid before this House on 20 May 2013 introduce new and amending regulations to support recent planning reforms—reforms that will give applicants the confidence to submit planning applications for development, that will give businesses the confidence to invest to support growth, and that will give greater certainty for communities.

The proposed changes to the fees regulations emanate from a variety of changes in both primary and secondary legislation as well as from policy, which I will attempt to outline to noble Lords. The draft regulations were approved in the other place on 26 June 2013 and, if approved by this House, would come into force on 1 October 2013.

The Growth and Infrastructure Act 2013 introduced measures to enable quicker and better decisions where there are clear failures in local planning authority performance. We are all aware that delays in getting a decision on a planning application can mean frustration, unnecessary expense and the loss of investment and jobs. Where a planning authority has been designated, planning applicants will have the option of submitting applications for major development directly to the Planning Inspectorate on behalf of the Secretary of State.

I should emphasise that this reform does not remove any powers from underperforming authorities; it merely gives applicants the choice of applying to the inspectorate where this is clearly justified. We have been working closely with the Local Government Association to ensure that any authorities that are designated will receive the support they need in order to improve.

The Secondary Legislation Scrutiny Committee has questioned why we are bringing forward changes to the fees regulations to implement this measure ahead of the order setting out how applications will be handled where they are submitted to the Secretary of State. We have made very clear in our response to the consultation on this measure, published on 4 June, how such applications will be handled, including the very small number of tasks that designated authorities will still be required to do.

We have been equally clear that we would like to make any initial designations by the end of October this year so that any cases of sustained poor performance are tackled as soon as possible. To meet that schedule we have prioritised the regulations that are before the House today, but there should be no doubt about our intentions for how the rest of the process will work. The response that we issued on 4 June makes that clear.

Regulation 3 allows the planning application fee to be paid to the Secretary of State rather than to the local planning authority. This will enable the Planning Inspectorate to cover the cost of determining the planning application in place of the local planning authority. It is important that a fee is paid to cover the cost to the planning inspector of determining the application, especially as applicants can expect to benefit from the increased development value that planning permission brings, otherwise the benefit derived would be at a cost to taxpayers. The fee will be exactly the same as would have been paid to the local planning authority. It is simply going to a different place, where the applicant chooses this alternative route. There will be no difference for the applicant.

Local authorities will not benefit from the fee as they will not be dealing with the application, which is something we discussed at length when the Growth and Infrastructure Act was in Committee. Local authorities will be required to undertake some work in connection with the application, but this will involve only keeping the planning register updated and notifying neighbours of the planning application. The designated authority will also be required to send any planning site history to the Planning Inspectorate. This work is minimal and will not be burdensome on local authority resources, particularly as it will impact only on the small number of authorities who are designated.

Pre-application discussions on planning proposals can help to iron out issues at an early stage and avoid time being wasted on ill-conceived applications. Local planning authorities are able to charge for such advice under Section 93 of the Local Government Act 2003. We want to make sure that pre-application advice is available to applicants who choose to apply to the Planning Inspectorate. Regulation 2 makes provision for the inspectorate to make a charge for such advice, strictly on a cost-recovery basis, as is the case for local planning authorities.

The planning guarantee was put in place in The Plan for Growth to promote timely decisions on planning applications. This provides certainty by setting a one-year limit on the time that any planning application should spend with decision-makers so that, in practice, there is no more than 26 weeks to decide an application and no more than 26 weeks to decide any appeal that may follow a decision on the application. We are strengthening this by underpinning the guarantee with a refund of the application fee where a planning authority fails to determine the application within 26 weeks from the date that a valid application is made, as set out in Regulation 5.

The statutory period for determination is 13 weeks for major applications and eight weeks for other applications. This means that the time allowed under the planning guarantee is twice as long as the statutory period for major applications and more than three times that for other types. We believe that it is manifestly unreasonable if no decision has been issued within that period and that, therefore, the applicant should have the fee reimbursed. We want to ensure that the system speeds up decisions and operates fairly. There are some limited exemptions from the guarantee to allow a common-sense approach; for instance, where the applicant and the planning authority have agreed that a longer period than 26 weeks is genuinely needed to deal with a particularly complex proposal. This means that local authorities will need to ensure that they are efficient and effective in dealing with planning applications. The fees for planning applications were raised by 15% in November 2012. This will provide an additional £32 million per annum to local authorities to fund planning services.

Furthermore, we will be working closely with the Planning Advisory Service to provide support to those authorities that are designated and those which are close to designation to help them to understand how their planning service can operate more efficiently.

The Enterprise and Regulatory Reform Act 2013 introduced changes to bring about the Government’s aim to streamline the heritage protection system. Specifically, we have introduced the provision to abolish the need for conservation area consent to demolish an unlisted building in a conservation area, but instead that it should require planning permission. This means that, where development is also being proposed, only a single consent will be required. The provisions simply replicate the existing level of protection but in a streamlined way.

--- Later in debate ---

[Lord McKenzie of Luton]

My Lords, I thank the Minister for a very clear explanation of these regulations, which concern changes to the charging of fees for planning applications and certain other planning events.

Our objection to the regulations is not so much about changing the scope of charging as the underlying policies that drive this necessity. These are, as we have heard, certain provisions in the Growth and Infrastructure Act 2013 and the Enterprise and Regulatory Reform Act 2013, the first in particular enabling applications for major developments for designated authorities to bypass the local planning authority and go directly to the Secretary of State. We opposed this during the passage of the primary legislation and continue to do so. It is the ultimate denial of localism, which for planning has been embedded in the system for more than half a century.

However, if applications are to be routed to the Secretary of State—in practice, the Planning Inspectorate—then it is obviously right that there should be a commensurate fee structure, otherwise the incentive would be for major applications always to be made to the Secretary of State. I understand, and I think that the Minister confirmed it, that fees applicable to England were last uprated with effect from November 2012; it is understood that the fees set out in these regulations would apply initially.

As we have heard, the regulations cover other fee issues, and I shall come on to those, but I have some questions for the Minister. What volume of applications is it anticipated will be received and be subject to this charging regime? During the passage of the primary legislation we had various estimates of “vanishingly few” LPAs being designated, although that was revised up to around 20 by the time we finished our deliberations. The criteria for designation were published in June in time for an October start to designation. While I accept that the final data for the initial designation will not be available until September 2013, the department must have some increasingly firm indications of the likely number of planning authorities to be designated. Can we know what that number is?

Where a local planning authority has been designated and major applications are made to the Secretary of State, directions can nevertheless be given to the local planning authority requiring it to undertake certain tasks in relation to the application. We consider it unfair that the authority should receive no part of the fee. Moreover, this is not the only circumstance where the regulations require the local planning authority to undertake activity for no fee. The changed arrangements whereby in future the demolition of unlisted buildings in conservation areas will have to be dealt with by local planning authorities also come without the right to a fee.

These regulations cover circumstances where the Secretary of State, via the Planning Inspectorate, is able to charge a fee for pre-application advice where the application is made to the Secretary of State. That developers should pay for such advice is entirely reasonable, although we would maintain that much of this work will in fact be done by the local planning authority, which will get no part of the fee. Notwithstanding that an application goes to the Secretary of State, will the Minister encourage local planning authorities to engage in the pre-application process, and how should they be remunerated if they do so? The regulations set down that charging should proceed by applying an hourly rate to the time spent by the planning inspector or planning officer. This hourly rate is to be set by the Secretary of State from time to time and must be set by reference to the average cost of providing the services of the individual. It is understood that this reflects the charging position for local planning authorities. Can the Minister remind us of what systems are in place to put this into effect? What is understood by “average cost”? Which overheads are built into the calculation? Is any differentiation made for the different levels of experience of the staff, other than planning inspector or planning officer, or indeed for the overheads of different regional locations? As for fees payable under the general permitted development order, the regulations require a fee of £80 where prior approval for change of use is required. Approval might be required from the local planning authority or the Secretary of State. Does the fee go to the person required to give approval and what is the basis for the £80 figure?

Our overall concern about these regulations is that they erode the opportunity for local planning authorities to generate fee income and therefore to sustain their planning capacity, and this at a time when there has been considerable change in the planning system, where local authority budgets have been squeezed to breaking point with further cuts to come, and when the blame for poor economic performance is all too often laid at the door of the planning system. I conclude by asking the Minister this: what assessment has been made of the capacity of local planning authorities to cope in the current environment?

[Baroness Hanham]

My Lords, I thank the noble Lord for his response to these regulations which, if I interpret it correctly, is: “We don’t like them but see what you’re trying to do”. I take that to be the spirit in which the noble Lord delivered his response. He asked me a couple of questions, some of which I may be able to answer directly and some of which I may not.

The first was about the increase in planning fees. As I said in my opening remarks, they were increased by 15% across the board in November 2012, so local authorities have had quite an uplift in those fees very recently.

The next question was: what volume of applications do we expect to go to the directorate? We discussed this during the Growth and Infrastructure Bill proceedings. We will know more about that when we see how many local authorities are to be designated in September. Once we see the data about which local authorities and how many are likely to be designated, it will be easier to judge that. As I said before, however, we do not expect this to be a huge number. In fact, we very much hope that there will not be a huge number, because that would mean that we were having to designate more local authorities than we wanted.

On the pre-application fee, if the developer is going to go to the inspectorate, it is very unlikely that they will want the local authority to, or indeed that the local authority would, hold any pre-application discussions. The intention is that the planning inspectorate will do any pre-application discussions and then charge a commensurate fee for them. In fact, perhaps I should rephrase that: the applicant can decide where to go, but we expect that they will probably go to the inspector if they are going to go there in the first place.

The noble Lord also asked me when information will be available about which authorities risk a designation. I think that I have answered that: September. The list will be published so they will know then. Indeed, many of them know now what the situation is because they are kept pretty well up to date with what is being put forward.

The noble Lord asked me about the £80 fee. I am now struggling a bit because I cannot remember what that was for. Would the noble Lord mind rephrasing his question?

[Lord McKenzie of Luton]

It was to do with the general permitted development order and the regulations. There are regulations that require prior approval from either the Secretary of State or the local planning authority. My question was: to whom does the £80 go? Is it the person who actually has to give that approval, be it the Secretary of State or the local planning authority?

[Baroness Hanham]

Yes, we would expect that to be more or less the local planning authority in most cases.

I hope that I have covered the questions. I am grateful to the noble Lord for the way in which he has addressed the regulations. So long as he is happy that I have more or less covered what he had to say, I beg to move that these regulations be agreed to.

Motion agreed.