Neighbourhood Planning Bill

Baroness Pinnock Excerpts

2nd reading (Hansard): House of Lords
Tuesday 17th January 2017 Lords Chamber

[Baroness Pinnock (LD)]

I thank the Minister for his detailed exposition of the contents of the Bill. I draw attention to my interests as a councillor on Kirklees Council, as one of the vice-presidents of the Local Government Association and as a member of the board of Yorkshire Water. I applaud the purpose of the Bill, which is to enable more homes to be built. It sets out to remove some of the perceived barriers to housebuilding. However, I doubt whether the Bill will achieve that purpose, for the following reasons.

First, housing construction is dependent on land values and market conditions, which vary significantly across the country. In yesterday’s London Evening Standard the headline was, “Death of £300,000 London Home”. Yet in my own part of West Yorkshire, it is possible to buy four homes for that amount. The problem is that successive Governments have failed to develop long-term effective regional policies, which are exactly what is needed to aid the housing market.

My second reason is that the Bill proposes to tinker with the strategic planning processes of developing a local plan. Government must resist the temptation to undermine indirectly that very local, consultative process.

My third concern about the Bill is that while its proposals to strengthen the status of neighbourhood plans are welcome, many urban areas do not have parish councils, which are a helpful pre-requisite to developing a neighbourhood plan. As the Minister said, only 10 million of our population are currently covered by a neighbourhood plan, which is equivalent to about 15%. The other, larger proportion of our population is not covered by a neighbourhood plan. The problem is that it is much more complex to define a neighbourhood in urban areas. Where there is no parish or town council, defining the boundaries of a neighbourhood within a very built-up area is complicated. That is probably one of the barriers to doing the plans. Can the Minister confirm that areas without neighbourhood plans, and with no possibility of developing them, will not be put at a significant disadvantage by the proposed changes?

Fourthly, and sadly, some significant barriers to housebuilding do not appear to be addressed by the Bill. In former heavy industrial areas, sites are still not being developed because of the contaminated ground. An upfront government grant is needed to enable developers to afford the remediation, which can be a large initial investment. A policy such as this would have the added benefit of protecting our precious green belt, which is, of course, far more attractive to developers.

Fifthly, the underresourcing of local government planning services has had the inevitable consequence of creating delays in planning decisions. Can the Minister comment on a suggestion from the Local Government Association that local planning authorities should be able to set their own fees? This would enable fees to be set to cover applications that generate abnormal workloads, such as those involving heritage sites or archaeological issues, and perhaps where there is problematic drainage. Fees could then also be set at a lower level to encourage development in regeneration areas.

The Government are rightly concerned about developing so-called affordable housing—which is less affordable in some areas than others. However, currently policy ambitions in a local authority for, say, 15% of a development can be thwarted by developer claims about financial viability. This has occurred on several occasions in planning decisions in my council. The obvious consequence is even fewer so-called affordable homes.

Finally, proposals in the Bill about greater flexibility of pre-commencement conditions must surely be challenged. Local residents can already feel that the planning regime is stacked against them, that developers lead the formation of a local plan—it starts with a call for sites—and that their voice is of little influence given the pressure from government to build more homes. The removal of these conditions, for example to improve the road infrastructure with road safety measures, will be viewed with increasing cynicism. Likewise, the proposal in the Bill for spatial planning to be carried out on a combined authority basis in urban areas should not delay local plans already submitted or agreed, otherwise even more delay will be built into the process. Part 2 relates to compulsory purchase orders. The proposal to enable temporary compulsory purchase orders appears to have much to recommend it.

In conclusion, elements of the Bill can be supported and welcomed, but it fails in its aim to increase the delivery of homes. If that is the purpose, the most effective way to speed up delivery and provide value for money is to permit local authorities to borrow to build on a significant scale. I look forward to working with the Minister to improve the Bill in order to meet the needs of local people in protecting their area, and to working on the detail, such as the pre-commencement issues that were raised earlier.

Neighbourhood Planning Bill

Baroness Pinnock Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 31st January 2017 Grand Committee

[Baroness Pinnock (LD)]

My Lords, I declare my interest as a vice-president of the Local Government Association and a councillor in the borough of Kirklees. I added my name to the amendment tabled by the noble Baroness, Lady Cumberlege, because I thought that the iron fist might be more effective in this regard than my noble friend’s velvet glove. Those of us suffering as a result of appeals to the Planning Inspectorate and the Secretary of State have become as angry as the noble Baroness has with the situation that her village has faced.

The amendment highlights that the power of local people to determine the impact of planning on their area is constantly undermined, despite the Government’s commitment to localism and neighbourhood planning. Many of the parameters surrounding new development are set by government: planning legislation and the National Planning Policy Framework. All that is already in hand, and it is within that context that the local planning authority makes and determines through consultation decisions about its local plan.

It is interesting to remember how a local plan begins. It begins not with local people making decisions through their neighbourhood plan but with a call for sites, which means developers indicating which sites they would like to use and local landowners wanting to see the value of their land enhanced by putting it forward for development. I have no problem with either of those things; the problem I have is that they are the starting point. The whole purpose of the Bill seems to be to reverse that process and have neighbourhood plans as the foundation of a local plan. It puts local people in charge rather than developers and landowners.

When local councils come to determine the local plan, it includes not only land allocation but planning policies. In that is the formal consultation, which takes place several times, and then it is finally agreed. You would think that then, if the Government were sincere in their approach to localism, that would be the end of it: a huge document is produced which includes hundreds of detailed policies about what can be developed and where, and detailed maps of where land is allocated for business use, for housing, for flood prevention or whatever—and that would be it. After many years of consultation and consideration, one would think there would finally be an agreement, but no, that is not the end of it. Local people do not have a final say. There is then the examination by a planning inspector to test the development; for instance, on grounds of soundness. At that stage the developers have another go. Their site has been rejected so they bring it forward again. They obviously have a great advantage at that stage as they have expensive barristers at their side whereas local people just make their voices heard. Having gone through the earlier process, residents have a right to expect that their case should not be challenged any more.

Then we come to the question of appeals. Two points have already come up in our discussions today. The Minister said that a three-year housing supply is now the basis on which appeals can be made in regard to a lack of housing in a local plan. I seek clarification on whether that occurs only in relation to a neighbourhood plan or would cover the whole area of a local plan. That is very important, certainly in my district, where a number of appeals are going forward to enable developers to build on urban green space—the equivalent of greenbelt within an urban area—on the basis only of an alleged lack of a five-year supply, and despite the fact that a local plan has been agreed by the council and is awaiting examination. I hope that the Minister will clarify that critical issue because, as others have said, developers see a loophole enabling them to put forward plans on land that has in this case been set aside as urban green space for 40 years, and will continue to be so set aside in the next local plan, following its examination. However, a developer can put forward a planning application for that land and it is going to appeal—we await the result of that—on the basis only of this five-year supply issue. That is obviously due to the length of time that a local plan takes to go through the examination process.

As has been described, residents then feel thoroughly disenchanted with the whole process. Local residents who have been consulted through a local district plan, a neighbourhood forum or a neighbourhood plan have a right to expect that, having gone through all that and having made the compromises which inevitably and rightly take place so that development can occur, they should have their wishes upheld and not be undermined by what I regard as spurious claims by developers to override fundamental policies that have been agreed and contained in a local plan. That is why I support wholeheartedly the amendment of the noble Baroness, Lady Cumberlege, and I hope that the Minister will be able to clarify the situation as regards a three-year or five-year land supply.

[Lord Porter of Spalding (Con)]

My Lords, I hope your Lordships will forgive me but I have not spoken in this Room before. It is my first time and if what I say is right, it is right, but if it is wrong, it is wrong. I declare my interests as the chairman of the Local Government Association until June—I hope—and as leader of South Holland District Council. In terms of what we are dealing with today, I am one of the four people who drafted the National Planning Policy Framework, so I know a little bit about what is in it and I certainly know what the intention was. It was to deliver sustainable development in places in the country where it is needed in a way that the people living in the local area could accept, to ensure that we get the homes we badly need in the most timely fashion.

I have to disagree with the noble Lord, Lord Stunell, that neighbourhood plans were not seen by all of us as the route for making that happen. I personally objected to putting neighbourhood plans in, but that was not because I did not want development, it was because I wanted to see more development and I thought that neighbourhood plans would be a route to slowing it down. But the Government pursued them, so it is incredibly bizarre that if a neighbourhood plan or a local plan has been drawn up in compliance with the NPPF, the Planning Inspectorate is allowed—and some would say sometimes encouraged—to overturn it. The inspectorate should not be able to do that.

There are people outside this Room who think that the Planning Inspectorate has gone feral. It is not working to direction from the Government because it has individual planning inspectors working to their own direction for their own aims. It is important that the Government should insist on the supremacy of the public’s ownership of the planning system. If someone has gone through the pain of making a neighbourhood plan, even though I disagree with such plans in principle, if that is what the Government are intent on using as a way of encouraging development at the local level, once those plans have been tested in public by an inspector and are found to be sound and in compliance with the local plan, if one is in place, or at the very least in compliance with the NPPF, the Planning Inspectorate should never be allowed to overturn one of those decisions except on pain of some form of proper cross-examination by the Government.

We all know that even though the Secretary of State has signed off a planning appeal, it is very rare for the Secretary of State to be personally blamed for that appeal, because generally it does not get anywhere near them. If a neighbourhood plan or a local plan is in place and the inspectorate feels that for good strategic reasons it has to overturn it, there should be some insistence that the Secretary of State should actually take personal ownership of it so that people can be sure that there is political oversight of the bureaucrats working in the planning department. On that basis, I support the amendment in the name of my noble friend Lady Cumberlege.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

I thank the noble Lord for that intervention. I do not have those facts in front of me but I shall endeavour to see if we can provide that information in the letter that I have promised to noble Lords. If the information is there, I will gladly supply it.

We should also be clear that the rules on call-ins were made in 2008, ran throughout the last Government and into this Government. The suggestion that this is somehow something new is wrong. I am also happy to circulate the parliamentary Statement that contained those rules to Peers who have participated. I accept that the amendment tabled by my noble friend Lady Cumberlege and the noble Baroness, Lady Pinnock, acknowledges that there are issues of national significance. We can all think of examples of compliance with climate change policies, world heritage sites, green belt and so on. So I would have to take issue with the idea that a call-in is never appropriate, which I think one or two noble Lords got close to saying. When we look at planning, there is always room for and, indeed, an importance to a national dimension. This is what we are seeking to preserve.

I was asked once again about the neighbourhood planning Written Statement. I will also circulate this so that noble Lords have it in relation to the three-year supply of deliverable housing sites. This Written Statement, in the name of my honourable friend the Minister of State for Housing and Planning in another place, Gavin Barwell, indicates:

“The Government confirms that, where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted”,


provided that,

“the local planning authority can demonstrate a three-year supply of deliverable housing sites”.

I am putting this in a shorthand form, but I will ensure that it, or the link, is circulated to those who have participated in the debate.

[Baroness Pinnock]

I thank the Minister for that clarification. However, what I was seeking to understand was whether the three-year supply referred only to where a neighbourhood plan was in place or whether it would be for the whole of a local plan. If that is not the case, we have a serious discrimination between those areas—often rural areas, at the moment—with a neighbourhood plan and those without. For one, a three-year supply would be sufficient; for another, a five-year supply is required.

[Lord Bourne of Aberystwyth]

I confirm that it applies only to neighbourhood plans. It is just one other reason that it is very good to have a neighbourhood plan in place. I do not see anything inconsistent in that. If we are strong believers in neighbourhood plans, that is quite appropriate.

[Baroness Pinnock]

How can that be fair?

[Lord Bourne of Aberystwyth]

I will cover the point in the letter but I am sure that it is the case, as I indicated, in the Written Ministerial Statement—it was on 12 December 2016—that this is in relation only to neighbourhood plans.

If I might proceed, the Government are equally clear that we must allow those taking decisions, including the Secretary of State, to do their job and exercise their judgment when considering the planning merits of the case before them and the evidence for and against an appeal. By the way, the Secretary of State does not necessarily have to uphold the decision of the inspector in this regard. That does not necessarily follow. This provides the necessary flexibility that is at the heart of our planning system, which the amendment, if accepted, would remove. For these reasons, I ask the noble Lord to withdraw Amendment 5.

Turning to Amendment 20, tabled by my noble friend Lady Cumberlege and the noble Baroness, Lady Pinnock, we place great importance on local development plans. They provide the local community’s vision of how it sees its area developing. It is right that they should be given the weight they deserve within the planning appeals process. As I have said, where a development plan’s policies are material to an appeal, a decision must be taken in accordance with the development plan, unless material considerations indicate otherwise. This does not mean that a planning appeal that is not in accordance with the local development plan will always be dismissed. It means that the appeal should not normally be allowed and that planning permission should not normally be granted. However, we cannot, and should not, fetter appeal decision-makers by requiring them to dismiss appeals that are contrary to the development plan. Instead, we must allow planning inspectors to do their job and exercise their independent judgment.

Significantly, planning appeals can be made in a number of circumstances, not just when a planning application is refused. They can also be submitted when a planning application is not decided within the statutory timescale or if conditions the applicant deems unreasonable are imposed on a grant of planning permission. If accepted, the amendment could affect these appeal rights. An applicant who was refused permission would not have their appeal heard in certain circumstances because the amendment would require it to be dismissed. This is not acceptable. In conclusion, I ask my noble friend to not move her amendment.

Neighbourhood Planning Bill

Baroness Pinnock Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Thursday 2nd February 2017 Grand Committee

[Lord Cameron of Dillington]

My Lords, first, I should say that I tabled this very much as a probing amendment. We all agree that we desperately need more houses for the next generation, and the Bill attempts to loosen the planning system so that we get more permissions to build more homes via improved neighbourhood plans and curtailing the possibility of delays caused by overprotectionist pre-commencement conditions. So far so good, but improving the planning system will not necessarily result in more homes being built. We need some sort of incentive or leverage to make the builders build.

In this context, two bits in the early evidence sessions in the Commons interested me. One was a question from Kit Malthouse MP to Hugh Ellis of the TCPA. He asked:

“On that point, is it possible for a developer to obtain a large permission in an area, and then not develop it out, and then challenge a refusal on another site in that area on the basis that a five-year land supply has not been fulfilled?


Hugh Ellis replied, “yes” and Kit Malthouse went on to spell it out:

“Therefore, by being patient, they are able to blow a hole in the land supply and get a permission that they otherwise would not have done, and double up”.—[Official Report, Commons, Neighbourhood Planning Bill Committee, 18/10/16; col. 32.]


That merely confirmed what other people had been telling me for some years. It was that short conversation that led me to table this amendment as a possible solution. It is not necessarily the only solution. It is worded in such a way that the initiative remains firmly in the hands of the local planning authority. It does not have to refuse a second application from a developer or builder, but it is to be hoped that if there is any hint that the developer is playing speculative games, the local planning authority should have the incontestable right to refuse him or her permission, however suitable the second site may be. I use the word “incontestable” advisedly, the point being that local planning authorities have a duty to fulfil their five-year land supply, which is as it should be, but they need more tools in their toolbox than the current planning system gives them.

To take an alternative approach, a little later in that evidence session there was another conversation between Hugh Ellis and the Minister, Gavin Barwell. Hugh Ellis said:

“You have signalled, Minister, that you are interested in exploring how we can find new ways to challenge that”.


He is referring to the gap between planning permissions granted and houses being built.

“The critical issue is that from 2019-20 onwards, the private sector will probably go on building 150,000 homes a year, almost for ever”.


A little later, the Local Government Association representative added to the conversation:

“I will finish with an example from Croydon. If a planning permission has not been taken up within three years, perhaps a council building company … should be invited to step in and start building the homes that somebody promised they would build but did not”.—[Official Report, Commons, Neighbourhood Planning Bill Committee, 18/10/16; cols. 37-38.]


So there is another possible solution to the problem: giving local councils permission to build out an undeveloped site. An alternative could be for the local planning authority to divide the land up into smaller plots and sell them off to other builders who can guarantee to build them out within a given period of time. There was an article in the Times today which hinted at that as a solution.

Something has to be done. This amendment is entirely probing: to test the Government’s enthusiasm on this issue. There is no doubt in my mind that we cannot go on having national, local and neighbourhood plans for housing continually undermined by developers who do not develop. I expect that the Minister will tell me that all this will be in the housing White Paper, but I like to hope that he can give us some indication of government thinking in this area. I beg to move.

[Baroness Pinnock (LD)]

I am speaking on behalf of my noble friend Lady Bakewell of Hardington Mandeville, who is indisposed and has had to leave. I draw attention to my interests as set out in the register. I am another vice-president of the Local Government Association and a councillor in the Metropolitan Borough of Kirklees.

My noble friend wanted to say that, while some developers submit planning applications and build the homes for which they have been given permission, not all of them do so. It is not unusual for developers to gain permission but not to start work on site or, if they do, for the work to be at a low level and for the site then to be abandoned. This does not help the housing crisis that the country is currently undergoing. Local planning authorities and councillors believe that there are sufficient planning permissions to cover local housing needs, but they are thwarted when homes are not built in a timely fashion. There is currently little that they can do to encourage a developer to start and finish. The amendment moved by the noble Lord, Lord Cameron, would encourage tardier developers to take seriously the permissions they already hold and to build to meet the need. It is not intended to penalise the smaller developer who may be having problems financing his work but is aimed at those who have permissions for 50 homes or more, and who could make a real difference to the housing shortage by realising that these homes matter.

I turn now to Amendment 63. We have all seen sites around the country that have received full planning permission and where a digger has been on site and excavated a drainage ditch, then the driver has packed up and gone home. Often the digger is left on site. Perhaps metal barricades will be erected around the ditch, but nothing else happens. These sites can often be left for years before anything further is done. There is a notorious site in my area which was 40 years in development. As noble Lords can imagine, many things have changed in that time, such as the road network and all sorts of other things. It is a real issue that needs to be addressed. The country is suffering a housing crisis, and has been for many years. This will not improve unless we get developers moving to fulfil their obligations to build with the permissions they hold.

Encouragement does not appear to have worked in the past, so we must turn to sanctions. In my amendment I have not specified what “a reasonable time” for completion might be or what the financial penalties should be. I believe that these are best left to be determined by the size of the site and the number of homes not completed in an orderly fashion. The amendment appears to be all stick and no carrot, but I regret that the country has reached the stage where homes need to be built, and developers have to play their part in making that happen. I look forward to the Minister’s response.

[The Duke of Somerset]

My Lords, when I first saw the amendment tabled by my noble friend Lord Cameron, I was not sure that I would be able to support it. However, in his introduction to the amendment he certainly clarified some points, and I agreed with a lot of what he said. However, I see both good and bad points in this short amendment, and would like to offer two comments. First, I declare an interest as a landowner who has recently benefited from a housing development planning application.

On the one side, there are often planning circumstances in which a housebuilder will submit a new, revised planning application on a site where he already has planning permission. This could perhaps be to squeeze in more houses, to improve the layout or to take account of a potential Section 106 condition. The real aim, of course, is to increase profit on the scheme, which is often to the detriment of the vendor of the land.

The disadvantages of the amendment arise where it talks about the “area”. I am not sure whether there is a definition elsewhere of the word “area”, but I take it that it means the local authority area or the district council’s geographical area. Large national housebuilders may have various schemes on the go throughout an LPA, the aim of which is to provide more houses of the type that we really need, as we have already heard. The amendment could thwart these types of concurrent developments, to the detriment of aspiring occupiers. Therefore, I look forward to hearing the Minister’s reply.

--- Later in debate ---

[Lord Taylor of Goss Moor]

I shall speak to Amendment 27A standing in my name but, before doing so, I want to say that it must be a relief to the Minister to have what I think are three sensible amendments all thrown at him at once at this late stage in the afternoon.

I do not think that there is anything to object to in the noble Baroness’s amendment. With the neighbourhood planning process that I led locally, we happened to have a consultation period over Christmas and new year, and I was slightly startled to find that I was not under an obligation to extend that period in view of the circumstances. In fact, we extended our consultation period well beyond what was required under the neighbourhood planning rules, and I think it is a common courtesy to do that in holiday periods. As that is not always a courtesy extended by those making applications, perhaps the Government should make sure that it happens.

In relation to Amendment 62, we had a similar need for statutory consultees to respond to what we were doing in a timely way, but they too are notorious for not always doing that. Therefore, I hope that that amendment, as well as mine, will get a positive response.

Turning to my amendment, in the previous planning Bill the Government accepted proposals that I made for modernising the process under the New Towns Act to make the way in which local authorities bring forward proposals for a new settlement—under what is now the garden villages programme that the Government have adopted—easier and more modern. There would still be proper scrutiny, but it would be a process that could work effectively, and the Government accepted that. Since then, they have had a response to the national garden villages and towns programme that I think has exceeded all expectations, as local authorities have seen the opportunity provided by taking low-value land to create really high-class settlements to meet housing needs and which does not involve building around the edges of historic communities in a way that often wrecks those communities. Although people can be very dismissive of nimbyism—the “not in my back yard” attitude—for a long time I have said that that argument is often the right one. The planning system was introduced precisely to stop urban sprawl. As well as protecting the green belt, it was associated with renewing our urban centres with brownfield redevelopment, which is very important, and with the establishment of new settlements. I am delighted that the Government have gone down that route and that there has been such a lot of interest in it right across the country. I know that there are many more schemes still to come forward, and they will mean that we can meet the housing needs of our children, as well as the need for employment facilities, in a way that we too rarely see with most estate housebuilding at the moment.

The New Towns Act was drawn up in a very different era, not an era of localism but one in which national government had huge powers. When a new town development corporation is established, although it is the local authority that brings it forward—we are talking about relatively small communities and garden villages meeting local needs—the current statute says that the board, when established, is appointed entirely by the Secretary of State, not by the local authority that initiated it, and that all expenditure has to be approved in detail, to the last penny, by the Secretary of State. Given that these organisations acquire all the planning powers for the area that is designated and will make a huge investment in the community when that happens, very few local authorities would wish to see the Secretary of State take all those powers. Very few communities would feel comfortable with that either. Most importantly, a Government committed to localism would not feel comfortable with it. To put it bluntly, the Secretary of State probably does not have time to decide the last few pennies of expenditure by a body developing a local garden village.

The amendment is very simple. It says that where a local authority requests the Secretary of State to delegate powers relating to appointing the board and the financial conduct of the organisation, and therefore in practice its work, the Secretary of State should delegate those powers. That opportunity is not currently in the hands of the Secretary of State. I hope the Government will agree that, given the support they have given this policy and given the take up, it would be useful to make that change. I hope we can get a positive response from the Minister on that today.

[Baroness Pinnock]

My Lords, I shall speak again on behalf of my noble friend Lady Bakewell of Hardington Mandeville. Amendment 62 is in her name. As my noble friend Lord Taylor said, it is an eminently sensible amendment.

For the past eight years, my noble friend Lady Bakewell has sat on a committee that considers planning applications. She is therefore painfully aware of the length of time that some statutory consultees take to respond. Whether it is the highways department or rights of way department of a county council, the Environment Agency, the Highways Agency, Historic England or the National Trust, some will be consulted on a regular basis and perhaps all will be consulted on some sensitive applications. Very often, their comments will be of a minor nature, but on larger applications their contributions will be critical to, for instance, traffic flow and pedestrian safety, as well as to ensuring that flooding considerations have been adequately catered for and to the protection of the built environment and flora and fauna.

My noble friend does not wish to name and shame those statutory consultees that are tardy in the extreme with their responses—she is very kind—but their silence, despite frequent reminders, causes planning officers a number of headaches. The applicant becomes irritated at being frustrated in their desire to proceed with their development and unjustly blames the planning authority for not getting on with it. Members of the local community, which may have been consulted by both the developer and the planning authority, wonder what is going on and when they might be able to attend the planning meeting and have their say. The ability to express their view in public is extremely important to neighbours and often to the wider community. It is an integral part of the democratic process. It can help protestors to see that there are viewpoints other than their own, even if they do not agree with them. It is not conducive to community cohesion for residents to have to wait, often for very long periods of time, before applications are considered in public as a result of the local planning department, in turn, having to wait for and chase consultees for their responses. The Government and local planning authorities are keen to speed up the planning process. This amendment would certainly be one step towards achieving that aim. I look forward to the Minister’s response.

Neighbourhood Planning Bill

Baroness Pinnock Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 6th February 2017 Grand Committee

[Lord Beecham (Lab)]

My Lords, I apologise to the Committee for being absent during the discussion of the previous group, and the very beginning of this group. I am afraid I have had to return from a funeral; otherwise, what I am about to say now I would have said in the debate on Amendment 43A, to which I added my name.

As the Committee will recall, Amendment 43A reflects the recommendation of the Delegated Powers Committee in paragraph 22 of its recently produced report, which came out on 27 January, dealing with the way the Government propose to exercise the delegated powers contained in the Bill, as set out in a document published last December under the intriguing title Further Information on How the Government Intends to Exercise the Bill’s Delegated Powers. Five areas were identified in respect of which the intention is to rely on secondary legislation. For this afternoon’s purposes, we are of course dealing essentially with the planning conditions in Clause 12. However, there are other issues: Clauses 1 to 5 are on neighbourhood planning, Clauses 6 to 11 are on local development documents, Clause 13 is on the planning register and Clauses 14 to 36 are on compulsory purchase. Therefore, although the Delegated Powers Committee drew attention to a series of matters, today we are dealing with the relevant provisions under Clause 12, which I suspect is in any event probably one of the more controversial clauses.

As we have heard, the Bill vests the Secretary of State with powers by regulation to prevent authorities imposing particular types of planning conditions in any circumstances at all or only in particular circumstances, as prescribed by the Government, and to stipulate that no conditions at all are to be imposed on particular types of grants of permission. The Government’s explanation of this was that,

“there is evidence that some local planning authorities”—

number and identity not disclosed—

“are imposing unnecessary and inappropriate planning conditions which do not meet the tests in national policy, resulting in delays to the delivery of new development”.

It is of course interesting that the Government make no mention of the hundreds of thousands of houses for which planning permission has been given but of which not a brick has been laid. They concentrate only on other potential problems.

The Government have admitted that,

“the power to prescribe the circumstances where conditions may or may not be imposed and to set out the descriptions of such conditions is wide”.

They concede that, but conclude that a delegation is appropriate. The committee expressed concern that the power would,

“allow the Secretary of State to prescribe conditions in relation to any type of planning conditions when the key aims of the Bill are to facilitate the building of new homes”,

and expressed surprise that no reason for this was given. Some of us would argue that even in respect of new homes it goes too far, but to make it more general and part of any planning permission seems beyond the scope of what the Bill is supposed to be about.

The committee stated at paragraph 16:

“We consider it inappropriate for the Government to be given a power which could be used to go well beyond the stated aims of the Bill”,


and recommended that it should apply,

“only to planning conditions for housing developments”.

It went on to criticise the proposed replacement of the existing power to provide guidance discouraging the imposition of unreasonable conditions with a power to prohibit such conditions completely, without any opportunity for the relevant planning authority to justify those conditions. Furthermore, the Government have expressed their intention to exercise the Bill’s delegated powers, including draft regulations specifying five types of condition that will be prohibited. The committee points out that there would be,

“nothing to prevent the Secretary of State from using the new power to prohibit many more conditions”,

so we are not necessarily just being confined to five areas. This would give carte blanche to introduce further prohibitions in the future.

Unsurprisingly, and in common with so much legislation, including the Housing and Planning Act, which we spent so much time on last year—the fate of which may be somewhat altered, one hopes, by the housing White Paper that is about to emerge—the committee states that,

“the negative procedure is not an adequate level of Parliamentary scrutiny for the exercise of these new powers, which could substantially restrict the ability of local planning authorities to attach conditions to the grant of any type of planning permission”.

It recommends that the affirmative procedure should apply to proposed new Section 100ZA(1).

The committee goes on to express concerns in relation to proposed new Section 100ZA(5) to (7), which deal with pre-commencement conditions: the controversial provisions which forbid planning permission being subject to such conditions without—extraordinarily —the written consent of the applicant. That is a significant change in the law and a significant move away from the local planning authority to individual developers. But no illustrations of such conditions are included in what passes for the explanatory material provided with the Bill. Although, as I understand it, the committee was provided with some at its request. It is extraordinary that in a matter as controversial as this, the explanatory material completely overlooked the issue. Under the Government’s scheme, in only one case will it be possible to impose such a condition: when the applicant fails to reply within 10 days of receiving notice of a proposed condition. The committee was concerned that there is no duty to consult before making regulations in relation to these provisions and said that,

“the Secretary of State should be required to consult not only developers but also local planning authorities and other interested parties”.

It recommends in paragraph 30 of its report that,

“the Secretary of State should be required to consult before making regulations under subsection (6)”.

If the suggested amendment is made, the Delegated Powers Committee will be content with the negative procedure. If not, it recommends the affirmative procedure.

I do not know what the Minister’s response was—I take it this issue would not have been raised in the opening debate—but I understand he has indicated that there will be a further response to the Delegated Powers Committee. However, I hope he is able to take back the view—which I think will be widely shared by this Committee, across any political divide—that it is simply not good enough to rely again on the use of a negative procedure on important matters of this kind. It has happened far too often and has been the subject of many reports, Bills and committees in your Lordships’ House, and yet the Government seem to ignore all the doubts and objections and continue to use—or propose to use—the negative procedure for dealing with highly controversial matters. The Minister is not able, alas, to change this with the stroke of his pen, but I hope he will convey what I think will be the view of many in this Committee, across the political divide, that this is not a satisfactory way to proceed, particularly as we are dealing with a significant change in the planning regime.

I hope the Minister will take back the strong views that have been expressed and that by the time we get to Report, we will see some Government amendments. Otherwise, I envisage that there will be amendments on Report from across the House seeking to test the House’s opinion on whether the Government should be allowed to get away with what many of us consider—and clearly what the Delegated Powers Committee considers—to be an abuse of process.

[Baroness Pinnock (LD)]

My Lords, this afternoon we have heard a lot of concerns expressed by those who serve or have served our local authorities about the practical consequences of this clause. I want to draw attention to a press release that was on the Planning Portal website, which was published on behalf of the British Property Federation jointly with the Planning Officers Society about this very issue during the passage of the Bill in the other place. I will not read the whole press release because I am sure the Minister will be able to read it for himself, but it draws out some particularly important points, which have perhaps not been reflected in the debate so far.

The press release says:

“The British Property Federation and the Planning Officers Society have advised that current legislative proposals set out in the Neighbourhood Planning Bill do not allow enough flexibility … They have warned that current legislative proposals set out in the Neighbourhood Planning Bill do not allow enough flexibility to account for local circumstances. There is a risk that the measures will delay the planning process further by pushing contentious decisions into the time-consuming negotiation of section 106 requirements”.


The British Property Federation chief executive said:

“Streamlining the use of planning conditions could herald a welcome acceleration for development, and we support government efforts to ensure that their abuse doesn’t pose an unnecessary barrier to delivering the new homes and real estate that are essential to people’s everyday lives. However, clear and appropriate conditions are an essential part of achieving good place making, and developers and planning officers are in agreement that a more flexible approach, with best practice guidance and a clear appeals route, would better serve this objective. With local authority resources already stretched, now is not the time to risk making a time-consuming process even more onerous”.


That sums up the case that Members across the Committee are making. It is being made on behalf of both the developers and the planners—we have heard from Committee Members who see it from a local authority, practical planning perspective. I hope that the Minister will closely reflect on what is being said.

--- Later in debate ---

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, Amendment 49A would create a register of public land. Quite properly, local authorities are required to compile and keep an up-to-date register of brownfield land within their area. This ensures that the land is reused in an orderly manner for housing development. Most of the land is brought into use without too much difficulty, but occasionally it may be contaminated and require additional and expensive work to bring it up to a suitable state for housing. Given the extreme shortage of suitable land and the enormous pressure for housing in the country, it seems sensible to bring all the spare land in an area into use as quickly as possible. Requiring local authorities to compile and keep up-to-date registers of public land within their boundaries would mean that they would have an accurate picture of where the land is and whether it is being used productively or is just lying fallow. They can then work with the relevant agencies to bring the land into use for housing.

I shall give the example of a Royal Marines base not a million miles away from where I live but in a different local authority area. This base has been in the community for some considerable time, but recently the MoD decided to close it and move the personnel elsewhere. Here is a perfect site for housing. All the infrastructure, including water, sewerage and electricity, is in place, as well as a decent internal road system. There is unlikely to be a gas supply, given its location, but I could be wrong. No doubt some of the infrastructure would need to be updated, but the site would be much more preferable to digging up a greenfield area. That is just one example, but there will be others involving other agencies such as the NHS. Some of this publicly held land will not be as visible as a military base, but it could nevertheless be released for housing. Some of these parcels of land will be small, but could accommodate half a dozen houses, while others will be larger and suitable for 300 to 400 homes. The land supply shortage in some areas is so desperate that it really is time that all possible avenues were explored fully.

Local authorities with housing provision responsibilities are the logical and obvious partners to compile and keep up to date a brownfield register in order to be able to act quickly when redundant land becomes available. I realise that this amendment will not find favour in all quarters, but I look forward to the Minister’s response. I beg to move.

[Baroness Pinnock]

My Lords, the purpose of Amendment 49B in my name is to draw attention to and, if possible, seek a remedy for the significant delays and difficulties in getting some brownfield sites developed.

Brownfield or previously used land is well defined in the National Planning Policy Framework. The definition includes a wide range of previous uses. Some of these sites pose no particular problems or costs for developers. The sites I am concerned with are those that have suffered considerable contamination as a result of an earlier industrial use in a less-regulated age. Remediation of these sites can be very costly and a big disincentive to developers. There are a great number of brownfield sites. The CPRE research in 2016 estimated that these cover an area sufficient for 1.1 million homes. Those figures may be disputed but that is not my point. My point is that there are demonstrably large areas of previously used land available for development, many of them with current planning permissions, but the sites remain undeveloped.

Using brownfield land has a double benefit. It saves greenfield sites from development and uses existing derelict land in urban areas. This derelict land often attracts problems other than the visual depression it can bring to an area. I am probably one of the few people in this Room who actually lives near some derelict land. I can tell you, it is something we have been trying to resolve for years but cannot because it is heavily contaminated. When the Bill was debated in the other place, Andrew Mitchell MP raised this very issue and hoped that it could be addressed before the Bill’s passage was concluded.

The question is: how can brownfield sites be effectively prioritised? The Royal Town Planning Institute report of last year said:

“Previously-developed brownfield land in built-up areas must continue to play a vital role for a range of purposes including housing. But a ‘brownfield first’ policy will fail to deliver its full potential if there is insufficient available funding for the treatment and assembly of land. New proactive remedial programmes are needed to remove constraints on development and to make places where people want to live which are accessible by sustainable modes of transport”.


Unfortunately, the Government are currently providing disincentives for brownfield development. Not only is there a lack of support for remediation but there are incentives for developers to use greenfield sites, such as the five-year housing supply rule, which enables developers to cherry pick greenfield and green belt sites while ignoring brownfield sites.

The further consequence of the costs of land remediation is that when the land is developed, obviously the costs are greater and so developers are able to argue that any planning gain for the local community is not financially viable. Therefore, affordable housing is lost on those sorts of sites—the very sites where, often, affordable housing is needed. I ask the Minister to respond positively to this plea on behalf of areas across the country, including my own, where land values are lower than in the south-east and where, therefore, the costs of remediation can be prohibitive to development.

[Baroness Cumberlege]

My Lords, I have not put my name to this amendment but I strongly support what the noble Baroness, Lady Pinnock, has said. I ask my noble friend the Minister whether he can think of ways in which we could introduce for developers—which I absolutely understand see that brownfield sites are more expensive for various reasons—some sort of incentive to make sure it is worth their while to develop these sites. I say to my noble friend that this makes such sense given that we have a problem finding sites for development. These are the obvious ones to use, except for the cost. I wonder whether we could build in incentives for developers to come in and use these sites.

Neighbourhood Planning Bill

Baroness Pinnock Excerpts

Report: 1st sitting: House of Lords
Thursday 23rd February 2017 Lords Chamber

[Baroness Cumberlege]

My Lords, the amendment is self-evident. It harks back to my opening remarks and seeks to clarify the respective responsibilities of the Secretary of State and local neighbourhood planners. It is all a matter of trust.

I was appalled by the figures that my noble friend gave in a previous debate on the number of appeals being made. Our planning is in danger of becoming rule by appeal inspectors who overrule democratically elected councillors. I trust the Minister will uphold democracy over the ruling of inspectors. The inspector’s role is to examine whether the decision of a local planning authority is clearly at variance with its own policies. However, inspectors are now venturing into making planning policy, overruling totally legitimate plans.

Unusually, I am delighted that my amendment is grouped with others. Amendment 6A, tabled by the noble Baroness, Lady Pinnock, and the noble Lord, Lord Shipley, is eloquent, and I totally support what they are trying to do with it. As a farmer’s wife I know what it is like when you have a building on land that you want to reclaim and that it is very difficult to do. In our case it was only a couple of cottages. However, it is not practical to think that we can build on great swathes of open land and then reclaim it in time. That will not happen. Amendment 40, tabled by the noble Baroness, Lady Parminter, and the noble Lord, Lord Shipley, is comprehensive and well thought through. It goes into some depth and has true clarity and also has my full support.

In Committee, we debated the question of appeals, and in replying to the debate, my noble friend Lord Bourne said,

“we place great importance on local development plans. They provide the local community’s vison of how it sees its area developing. It is right that they should be given the weight they deserve within the planning appeals process”.

He went on to say:

“As I have said, where a development plan’s policies are material to an appeal, a decision must be taken in accordance with the development plan, unless material considerations indicate otherwise. This does not mean that a planning appeal that is not in accordance with the local development plan will always be dismissed. It means that the appeal should not normally be allowed and that the planning permission should not normally be granted”.—[Official Report, 31/1/2017; col. GC 203.]


There is leeway in this amendment and the ones proposed by the noble Baronesses, Lady Pinnock and Lady Parminter, and the noble Lord, Lord Shipley. We have to be careful that we do not have planning by appeal, a phrase that is used around the country at the moment. I beg to move.

[Baroness Pinnock]

My Lords, I draw attention to my entries in the register of interests as a councillor in the borough of Kirklees and as a vice-president of the Local Government Association.

I support wholeheartedly Amendment 6, which has been moved by the noble Baroness, Lady Cumberlege. My Amendment 6A simply adds detail to the broadness of her amendment in relation to planning appeals.

Noble Lords will recall that in Committee I raised the issue of the importance of enabling development on contaminated brownfield sites by the provision of a government fund for remediation. Since that time we have learned from the housing White Paper that action may be in progress on that. However, in the Minister’s response to my amendment in Committee, he reiterated the Government’s commitment—I am pleased about this—that brownfield sites should have development precedence over greenfield sites. I want to explore further that commitment because experience and evidence point in a different direction.

In the National Planning Policy Framework of 2012 the Government introduced the concept of a five-year housing land supply within any local authority area. Initially the concept was to be gradually introduced in order to give time for councils to develop new plans to take this requirement into account. But that transition did not really happen and from the start, green belt land, urban green space—which is the equivalent of the green belt within an urban conurbation—and even land in areas of outstanding natural beauty became vulnerable to developers seeking to build on attractive sites; that is, attractive to residents who wanted to retain them as green spaces, and also very attractive to developers who wanted to build on them.

The CPRE commissioned an analysis of the outcomes of planning appeals and the results were published in September 2014. It found that of around 270 planning appeals between 2012 and 2014 lodged in areas that did not have a five-year housing land supply, three-quarters were granted despite their allocation in the existing planning policy of the local council as green belt, urban green space or an area of outstanding natural beauty. I repeat, three-quarters of those appeals were granted, and that equates to rule by planning appeal, as the noble Baroness, Lady Cumberlege, said earlier. It certainly seems to be the case. This demonstrates conclusively that a local planning authority which does not have a five-year housing land supply is vulnerable to developers who will cherry pick green belt or greenfield sites because the land is easier to develop and the value of the properties is thereby enhanced.

The Government have also commissioned their own report. The Local Plans Expert Group published its findings in March last year. The report states that Section 78 appeals, which are appeals against determinations by local planning authorities,

“by developers bringing forward new evidence”—

mainly the lack of a five-year housing land supply—

“leading to extensive dispute and the release of unplanned sites … brings the local plan process into disrepute”.

And so it does, because the third piece of evidence I have is from my own experience in my authority where, this year, planning consent for two sites that had been allocated as urban green space—which is precious to those living in built-up areas because such sites are their only green areas—has been granted on appeal because the report of the Planning Inspectorate deemed that a five-year housing land supply is more important than land being allocated as green belt or urban green space. As the Government’s report states, local people feel that they are powerless, have no say in local planning, and are wondering about the point of going through the long-drawn-out process of developing a local plan for the planning committee. The decision is taken out of their hands and sites are allocated without any reference to the need for infrastructure in the form of school places and so on.

I ask the Minister to give me confidence that, as the amendment seeks, equal weight will be given to the fundamental policies of either a five-year housing land supply or designation as green belt or urban green space. I would prefer the weighting to favour allocations as green belt, urban green space and areas of outstanding natural beauty. They should be paramount to other uses because in any local authority area there is plenty of land that is not designated, including in my own authority where reserve sites are still available. But no, developers go and cherry pick the green belt sites. As noble Lords can tell, I am extremely cross about what has happened. Again, I hope the Minister will be able to say that green belt and its equivalents will be given greater priority and that applications from developers will have to be refused when other sites are available. I look forward to his response.

Neighbourhood Planning Bill

Baroness Pinnock Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 28th February 2017 Lords Chamber

[Lord Beecham (Lab)]

My Lords, this matter was debated briefly in Committee. I made the point then that I had a good deal of sympathy with the intentions of the noble Baroness’s amendment requiring a retrospective planning application, although it did not seem to me that the rest of her proposals—with all due respect—had been fully thought through in terms of how they might be applied.

In particular, subsection (2) in the amendment is unnecessary, because if there was a planning application then, of course, fees would have to be paid. There is also a real problem with subsection (3)—I think I said this to her in Committee as well—which prescribes the payment of an additional charge without giving any indication of how that might be calculated. I suggested that the matter could have gone forward on the basis that that would be determined by secondary legislation, but that has not appeared in this amendment. For those reasons, I am afraid that we cannot support the noble Baroness’s amendment, although I suspect that she will not divide the House in any event. While her intention is very good, the means of carrying it through do not quite meet what is required.

[Baroness Pinnock (LD)]

My Lords, I draw attention to my interest as a councillor in the borough of Kirklees and as a vice-president of the Local Government Association.

I agree with the principle behind the amendment moved by the noble Baroness, Lady Gardner of Parkes. The issue that she has brought to our attention is important, although, in common with the noble Lord, Lord Beecham, I am not entirely clear that the amendment that she has drafted will address the fundamentals behind the issue that she is trying to address.