Localism Bill

Baroness Parminter Excerpts

Monday 17th October 2011 Lords Chamber

I now turn to Amendment 223D. This amendment, tabled by my noble friend Lady Parminter, proposes that Clause 130 be withdrawn from the Bill. We have been clear that the clause does not alter the law but merely clarifies a topical point of confusion. Noble Lords may well ask, therefore, why the clause needs to remain in place. The simple answer is that having come so far in clarifying the question of when a local finance consideration should and should not be taken into account, it would be regrettable indeed to throw this matter back into doubt. Withdrawing the clause would not change the law. It would remain the case that decision-makers must have regard to any local finance considerations that are material to the planning applications that they determine, but there would be no clear reference in statute to this point. I hope that I have left your Lordships in no doubt that, irrespective of whether we are all in agreement that the clause is essential, we can at least be clear that it does no harm. I beg to move.

[Baroness Parminter]

My Lords, I rise to speak to Amendment 223D. As we know, this clause, which outlines that financial considerations can be material to a planning application, was added in the Commons as an incidental measure for clarification. As the noble Earl, Lord Attlee, indicated, the Government have argued that it is the new homes bonus that has necessitated such clarification. However, by using statute rather than the traditional route of guidance, the Government are undoubtedly creating further uncertainty.

The clause elevates financial considerations above all other legitimate planning considerations, which are not mentioned here or anywhere else in statute. As such, the courts will be used to decide just what Parliament means by putting financial considerations up front as a material condition. While the government amendment goes some way to try to tackle that ambiguity, there still remains a lack of clarity about when such financial considerations could be considered material. Until now, case law has determined whether or not a financial consideration is material. Over time that has been determined as it being necessary to make the development acceptable in planning terms, directly related to the application and fairly and reasonably related in scale to the application. On Report in the Commons the Minister gave an example of materiality which related to a road scheme that accommodates a development—a direct link between the use of the money and making the application acceptable in planning terms. Further, in the Government’s response to the consultation on the new homes bonus in February this year, they stated that the new homes bonus could be lawfully taken into account as a material consideration,

“where there is a direct connection between the intended use of the Bonus and the proposed development”.

My noble friend Lord Attlee gave a useful example of such a direct link. However, this key point about the direct link is not made at all in the clause or the government amendment. This direct linkage is what case law has determined makes a financial consideration material, and it is a fundamental principle—to me at least—that guarantees the probity of planning. The Minister has made much of the CPRE opposing this clause. However, it shows skill on the part of the Government to unite the CPRE, TCPA and RTPI in opposing this clause and government amendment.

Without that clarity it can be read that financial inducements that are irrelevant to the merits of a particular development proposal can be material in determining planning applications. It is just such a lack of clarity that the noble Lord, Lord Jenkin, rightly raised earlier when he talked about the changes around the use of the community infrastructure levy. It is quite clear that guidance will have to be issued to local authorities on how government incentives are intended to influence planning and how this will work in practice. If further clarification is needed on the relationship between financial considerations and considering planning applications, as the Government say it is, then cover that alongside government guidance about the workability of these incentives. That would avoid further legal wrangling over what Parliament intended to say by this clause. I beg to move.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester)]

The House is debating government Amendment 223CA, with which Amendment 223D is grouped. Therefore the noble Baroness is not able to move that amendment separately.

--- Later in debate ---

[Lord Reay]

My Lords, this is a simplified version of an amendment which I moved in Committee. The idea behind it is to remove the right of the Secretary of State to overturn local planning decisions where these have been taken in accordance with the local development plan. Under the amendment, the Secretary of State would be able to overturn a local planning decision on appeal only where the decision had been to refuse permission for a development which was compatible with the local plan, or where the local authority had acted unlawfully, or where due process had not been followed. Where the local authority had refused permission for a development that contravened the local plan, the Secretary of State could not find in the developer’s favour on appeal.

The aim is to redress the balance in the planning process to a small degree, so that developers do not have an entirely unfettered right of appeal. This has led to powerful developers—or, in the case of wind farm applications, to developers with the intoxicating whiff of enormous subsidies in their nostrils—wearing down local authorities and local resistance by systematically appealing every decision that goes against them. By linking the rights of developers and the powers of the Secretary of State to the local plan, the amendment goes some way down the road that the Minister in another place once said he wished to follow, of making the local plan sovereign. The amendment would reduce the scope for developers to ram through unpopular proposals against the wishes of the local community as expressed in local plans. It has the support of the CPRE, which had a large part to play in its drafting.

I also strongly support Amendment 232ZB, tabled by my noble friend Lady Parminter, which would introduce a community right of appeal. This was the policy of both the Lib Dems and the Conservative Party before the last election. Since then, they seem to have invented the doctrine that it is the planning system that is responsible for the failure of the economy to grow faster than it has, and that nothing new must be introduced which could possibly provide a further obstacle to development. I do not think that my noble friend’s amendment is any different from the one she moved in Committee. She has been careful to circumscribe the circumstances in which an appeal can be made so that not any Tom, Dick or Harry can appeal whenever he likes.

I agree with the terms in which my noble friend has cast her amendment, with one exception. I am not convinced that whether an appeal can go ahead should depend on the position taken by the planning officer. In my noble friend’s amendment, the planning officer has to have recommended refusal of planning permission before any appeal against a local authority’s decision on the part of the local community can go forward. This seems to be too restrictive. But, even as it is, I would prefer the Bill to contain this amendment.

There is not much localism in the Bill now. Nothing would do more to restore meaning to the Bill than to reinstate into coalition policy a community right of appeal. Without it, the planning appeals system will remain most unfairly balanced in favour of developers. I hope that my noble friend the Minister will be sympathetic to these amendments, both of which advance the cause of localism. I beg to move.

[Baroness Parminter]

I rise to speak briefly to Amendment 232ZB in this group. A limited third-party right of appeal would provide stronger safeguards against planning applications which cut across local and neighbourhood plans. Such applications risk compromising the plan-led system and undermining public enthusiasm for taking a stronger role in plan making. As my noble friend Lord Reay mentioned, the Minister in another place has made statements about the importance of enshrining the primacy of the local plan. Granting a limited third-party community right of appeal, which was triggered where a decision to grant planning permission was not in line with the adopted local plan, would be a powerful support to that approach. It could also help to ensure that local councils put sufficient weight on policies in a democratically agreed plan and, crucially, strengthen mandatory pre-application discussions for major developments introduced by this Bill.

[Lord True]

My Lords, I was not able to be present for this discussion in Committee. I would like to associate myself very strongly with the remarks made by both my noble friends because they are good localist arguments. Having campaigned in all integrity on the basis of the promises that were put forward by my party in respect of a community right of appeal, like many colleagues in the Liberal Democrat party I remain in a state of puzzlement as to why this worthy and desirable policy, very sensibly circumscribed in the amendment spoken to by my noble friend, has disappeared. It is something that some of us will want to return to on a future occasion, and I hope sincerely that the leadership of my party and that of my fellow party in the coalition will think again on this matter.