Levelling-up and Regeneration Bill

Baroness Thornhill Excerpts

Committee stage
Monday 27th March 2023 Lords Chamber

Amendment 187 would affect the position of the CCAs. The amendment in this group that seems the most powerful is Amendment 185A, which at least seeks to—I am not sure whether it actually does—give the local decision primacy. That is what the people of England are particularly looking for: the phrase “take back control” will be familiar to noble Lords, and there is a great hunger for that around the country. Here, we are down in the detail and the weeds of how the Bill works, but we are actually talking about something really important to how local elected representatives can decide how the future of their community is directed.

[Baroness Thornhill (LD)]

My Lords, the main debate on the new plan hierarchy was clearly spelled out in this Chamber last week, but Covid prevented me from joining in, although I listened with interest. I will not waste time going over that debate, but I still want to reiterate certain facts. As was well demonstrated in the debate on the last group, it is a fact that so much detail is still missing and so many important matters are still out for consultation—that is probably why there are so many amendments and why there is so much anxiety around the content of NDMPs. In particular, as was well expressed by the noble Baroness, Lady Taylor, what will truly be left over for local councillors and their communities to shape their place? The Bill is very strong on the rhetoric of place shaping, but it feels that we are being disempowered to do that.

Before turning to the specifics of the amendment, I will say that it is absolutely clear that the potential for conflict is significant. Without some clarity and legal clout from the Bill—not just ministerial promises that there will be more details in the revised NPPF, or that it will be more clear when we have the NDMPs—what will happen as a result of this is that there will be plenty of work for the planning chambers and litigators going forward. There will be a long transition period—the Government are quite sensibly allowing for that—because this is a new system, so there will be quite some time before we get precedents set, we get used to it and we get to see which way it is going.

The amendments have regard to the obvious potential conflicts between NDMPs and local development plans, and they also question the increasingly all-powerful Secretary of State role and the position of combined authorities. The issues concerning Secretary of State powers have also been well articulated, but, as drafted, Clause 86, which was previously debated, and Clause 87 very clearly—I do not think there is any ambiguity—favour NDMPs over development plans. But they also transfer significant policy-making powers directly to the Secretary of State—this is yet another area of concern and potential conflict because, as we know, NDMPs come with no minimum public consultation or primary parliamentary scrutiny requirements. Despite the Government’s previous assurances that this undemocratic effect was not the intention of the clauses, no legal safeguards have been introduced, so this is an area in which we would certainly hope to see movement from the Government.

My first question for the Minister on this group is on the issue of local plan soundness, as it seems to me that a lot of conflict could and should be avoided if both the NDMPs and the local development plan are very clear about what they are trying to achieve, where the boundaries of their scope are, and where one might take over from another—I was envisaging the Venn diagram and hoping that there was not very much in the middle. It seems highly desirable that the overlap should be almost impossibly small, or as limited as possible, so can the Minister confirm whether a plan would be found sound under the new regime if it contained policies that were at variance with NDMPs?

The proposed introduction of gateway checks, which is an excellent suggestion, would seem to indicate that the intention is, on the one hand, to allow both parties an opportunity to point out unacceptable variance, or, on the other, for the local planning authority to present its evidence as to why local policies should deviate from the NDMPs and therefore receive advice and engage in constructive dialogue. From the thrust of the questions of the NPPF consultations and the subsequent Written Ministerial Statements, it seems that local variance is both expected and accounted for—good.

If that is the case, why do we need new subsection (5C), and why can we not just accept the amendment tabled by the noble Baroness, Lady Taylor? It is very definite and legally tight—too definite and legally tight to allow for circumstances when it might be absolutely legitimate to give the local plan precedence. Is that deemed to be a bad thing by the Government? If not, under the current system, in which decisions are now weighed and balanced, surely a degree of leeway is desirable—the more so, as has already been mentioned, as the main criticism around NDMPs is the worry that they will set a low floor and stifle ambition and innovation, which has always been, in the main, local authority-led. New subsection (5C) might sound definite, final and firm, and therefore intended to reduce conflict—but at what cost? Could there be unintended consequences?

If the Government do not accept that proposal, the amendment in the name of the noble Lord, Lord Lansley, provides a more nuanced response to a very complex issue to allow for a time when the NDMP may not necessarily be “Top Trumps” because it is appropriate in those local circumstances. I believe that the weight of new subsection (5C) does not allow that for that discretion, so we will certainly support that amendment. As to the discussion of the word “significant”, I respectfully suggest that planners, inspectors and litigators have always weighed up, and probably always will weigh up, these words. It is part of their bread and butter, it is what they do all the time, and this will be no exception.

Amendment 187 in the name of the noble Baroness, Lady Hayman of Ullock, is a natural extension of that same logic. She can envisage times when a local plan can and should take precedence, especially if it relates to the additional responsibilities in a larger geographical area. On these Benches, we believe that there is real value in the Government incentivising, encouraging and supporting local authorities to work together to get a larger—and, dare we use the word, regional—spatial strategy of that sort. In effect, we would not want any barriers to be put in the way of that, because there is far more at stake in a local area, such as economic growth, than just meeting housing need.

The noble Baroness’s Amendments 192 and 195 are an interesting extension of this dilemma. I wonder whether her Amendment 193 could be logistically challenging, as the Secretary of State would have to actually hear and know about every single challenge and conflict. But the principle of a feedback loop regarding conflicts seems a good one, particularly during a period of transition, as all this will all new and very different territory for everyone. I think we would all like to know where the pinch points and places with the most disagreement are and, more importantly, how they are being resolved. We will be interested in the Minister’s thoughts on this thread of feedback, reporting, learning and, presumably, revising.

Amendment 187B in the name of the noble Lord, Lord Young of Cookham, seems very sensible. If the Bill is, as we hear all the time, to truly make the system a plan-led system, it absolutely makes sense that local plans must and should be up to date. My concern, particularly now, is with the removal of the tilted balance and planning by appeal, plus the supremacy of NDMPs. Can the Minister explain how the Government intend to incentivise councils to keep their plans up to date? I cannot see how that will be done, as there appears to be no disincentives to do otherwise.

We will support any amendment to insert a process for the Secretary of State to designate and review a national development management policy, including minimum public consultation requirements and a process of parliamentary scrutiny, as has been set out in the Planning Act 2008 and is already deemed necessary for national policy statements. If local authorities are rightly required to consult on such policies when preparing local plans today, in future it must be right that Secretaries of State be held to account by the public and Parliament in a similar way. As with national policy statements, we ask that Parliament be required to scrutinise NDMPs and that the public be allowed to consult on proposed changes to them.

There are loads of possible advantages of NDMPs, and there seems to be a general acceptance of this in principle, but the devil will always be in the detail. The unprecedented level of central control for planning that they introduce means that safeguards are needed to maintain local consent. These amendments touch on only a few areas of potential conflict, and we had plenty in the previous group. We have yet to touch on street votes versus local plans, neighbourhood policy statements versus the rest, and—one matter that is starting to come to the fore—the turning of supplementary planning documents into supplementary plans and all that this will entail. Those are debates for another day.

[Lord Young of Cookham (Con)]

My Lords, I want to add a short footnote to the excellent speech made by my noble friend Lord Lansley, and to try to understand in what circumstances the conflict that we have been debating can arise—that is, the conflict between the local plan and the national development management policy.

Page 294 of the Bill—I appreciate that we have not got quite that far yet—describes the process that a local authority must go through when it prepares its local plan. New section 15CA(5) states that:

“In preparing their local plan, a local planning authority must have regard to … any observations or advice received from a person appointed by the Secretary of State … other national policies and advice contained in guidance issued by the Secretary of State”.


If that process has been gone through, the local plan should already be consistent with the national development management policies—it would have been spotted. So is it the case that the only time a conflict can arise is when, subsequent to a conforming local development plan having been adopted, the Government actually change the policy? Is that the only time that a conflict can arise? It cannot arise if a plan has gone through the process under the current NDMP.