Housing and Planning Bill

Baroness Young of Old Scone Excerpts

Wednesday 23rd March 2016 Lords Chamber

[Lord Porter of Spalding (Con)]

My Lords, I refer the Committee to my pre-declared bunch of interests. I do not know whether I have to declare them again—someone will have to explain the rules to me.

I am sure that noble Lords will be surprised to hear that I am not that bothered whether local government has to face competition in dealing with planning decisions. On the basis that they already cost local government a fortune, I would be very surprised if, under the current fee structure, anybody from the private sector came anywhere near them. So I see this part of the Bill as a chance to get value for money for councils and, if the private sector does get anywhere near it, we will be able to get an increase in planning fees. Therefore, from a councillor’s point of view, I welcome the competition because it can only drive prices up, not down, and in this case I am happy with that.

I should point out that the comments of my noble friend Lord Carrington about those producing the planning report being involved only in the mechanics of the process does not give the whole picture. There is a presumption in favour of development, so somebody will have to recommend to the committee either that the application complies with a presumption in favour and therefore it must be granted, leaving the matter to be democratically argued, or that it should be rejected because it is not sustainable development. Whoever prepares the report, whether they are independent or council-based, must come forward with a recommendation to either grant or refuse, but the final decision must be made by politicians who are accountable to the affected community, and something needs to be put in the Bill to make sure that that is explicit. I am not sure whether these amendments do that but the Government will need to ensure that it is done somewhere.

I am making a brave step out, as I am going to try to take on one of the big beasts for a bit of sport. My noble friend Lord Deben talked about attaching farm fields to gardens not being a problem and being fairly straightforward. It would be fairly straightforward if gardens did not then become previously developed land and thus brownfield, leaving them more susceptible to development in areas where that might not necessarily be sustainable. Before anyone on the other side laughs, they need to remember that under the brownfield policy vaunted by the previous Labour Government, 60% of the brownfield land that they managed to develop during their time in office was reclaimed garden land. So there is a good reason why councils are very cautious about changing use from farm fields to garden land.

[Baroness Young of Old Scone (Lab)]

My Lords, I recognise that it is late in the day to be contributing to this amendment but I have put my name to an amendment in the very last group, so I am simply delaying myself getting home. I want to remind the Committee about the findings of the Select Committee on the Built Environment, on which I have the privilege to sit, and the very worrying evidence that we heard from planning departments across the country about their ability to recruit experienced professional planning staff and about their viability for the future.

I absolutely support the concerns about this proposal, and I think that Amendment 102D is well worth supporting as a safeguard in terms of the moral hazard issue, but I think that we also need to take account of the fact that at the moment there is a real shortage of suitably skilled and experienced planning staff. If we set up alternative economies in a commercial planning capability, we will find that local authorities are rapidly hollowed out in terms of their planning capacity. It is very close to that at the moment. They have next to no specialist planning skills in heritage, environment and other areas. They are finding it difficult to afford planning staff of their own. So in this proposition we need to take account of the viability of planning departments for the future if skilled and experienced staff are likely to be attracted towards a commercial planning capacity in a competitive sense.

We also need to think about whether we are trying to solve the right problem. There is a real issue about the quality and capacity of planning departments across the country. We saw in our work with the Select Committee impressive alternative models. Local authorities gathered together to create more critical mass and to allow themselves to maintain a range of specialist planning officers. These authorities had voluntarily contracted out their planning support to commercial organisations.

Importantly—and here I disagree violently with the noble Lord, Lord Deben, a rare event in my experience—the planning authority was very much in the driving seat. The worry I have about these proposals is that if you are paying a fee to a commercial provider of planning-support services you will expect them to be on your side. They will be professional and I hope that a quality-assurance process will be put in place to ensure that professional standards are maintained.

As the noble Lord, Lord True, said, the reality is that when you are in front of the jury you will have your man arguing your case, not the local authority’s man helping the local authority’s elected officers take a dispassionate look at what the decision in the public interest should be. As I say, I disagree with the noble Lord, Lord Deben. I am a great fan of the planning system, which is one of the last genuinely democratic processes in this country. It is the responsibility of the local authority and the officers who support it to take a decision in the interests of the local community, balancing all the economic, social, environmental and other issues. I fear that if we do not handle this set of changes carefully we will find that we have tipped the balance too far in the direction of the developer.

[Lord Shipley]

My Lords, I agree with the noble Baroness, Lady Young of Old Scone. I have two amendments in about half an hour from now and I am conscious that we have reached a point where virtually all the issues around Clause 145 are being discussed. The noble Baroness has rightly identified that the balance is about to be tipped. I hope that the Minister, in replying to this debate, will answer the question posed by the noble Lord, Lord Beecham: what exactly is the problem that the Government are seeking to solve? Unless the problem is properly defined, the solution can ultimately give rise to a whole set of new problems that have not been forecast.

There is a real issue about being able to dissociate the democratic decision from the designated person who is writing the recommendation. This was put so well by the noble Lord, Lord True, who rightly defined that the process of making a decision is dependent on what the person who writes the recommendation actually says. It is a whole and a continuum. It is not a function separate from making the decision.

A further issue of major concern to me relates to what the noble Lord, Lord Deben, was talking about earlier. It is wrong in principle to privatise public regulatory services. That is now happening. There are issues around cost, as to whether it would be more expensive to go down that route, but the principle of a planning decision in practice being privatised is a major issue about which we must be very careful. A designated person who is writing a recommendation has to be independent and to be seen to be independent.

I have concluded that Clause 145 is now not fit for purpose and should be withdrawn in its entirety. If the Government can explain how they can bring it back at Report better than it now is, meeting the public interest test of independence, we might be willing to look at it—but at the moment I see no evidence base that convinces me that Clause 145 should remain part of the Bill.

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[Lord Taylor of Holbeach]

I am sorry, but I do not think that the noble Lord understands exactly what I am saying. I would be grateful if we would allow business to continue. We do not normally close until 7 pm, and it is not 7 pm.

[Baroness Young of Old Scone]

My Lords, I have my name on one of the last two amendments and seek clarification from the Government Chief Whip. If it is being proposed that our amendment will take place on a Committee basis on the first day the Bill is dealt with when we return, and that we will then move to Report stage and have a chance at the end of it to re-debate that amendment if we choose to bring it forward at that point, having had the benefit of the Minister’s response, fair enough. But if we are simply saying that when we get to the relevant point in the Bill on Report, Committee rules will apply, I am afraid I cannot personally undertake not to put forward the amendment.

[Lord Taylor of Holbeach]

I will be very happy if we resolve all these amendments this evening, but it has been suggested that we will not do so because of the pressure on time. It is up to the House to decide how it deals with this matter, but I hope that noble Lords will take my advice. There is very little left to do on this Bill in Committee—please let us continue.

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If developers were made liable, it would create a direct financial incentive for housebuilders to assess flood risk properly and introduce measures needed to prevent flood damage. If developers are already managing flood risk appropriately, this will be a zero- cost measure yet will still provide added confidence in the system. My amendment will help to protect those who buy new homes built on a flood plain, and I hope that the Government will give it serious consideration.

[Baroness Young of Old Scone]

My Lords, I am conscious of the fact that noble Lords are dying for me to shut up, because I am probably all that is between them and going home. But I think that this is an important issue—and it is important for two reasons. I rise to promote Amendment 119 in my name and support Amendment 120, proposed by the noble Lord, Lord Krebs. There are 4 million people at risk of surface water flooding and climate change, and increasing urbanisation will make that worse, so it is a really important issue. More important is the fact that this Parliament agreed the Flood and Water Management Act 2010, which included provisions for sustainable drainage—but the relevant sections have not been commenced. I am very ambiguous about the Government’s habit of not bringing into being the will of Parliament. Instead, they have decided to rely on planning measures through the NPPF and have provided two pages of non-technical standards to guide developers.

The presumption in planning that sustainable urban drainage should be included in new developments is not working. It has created uncertainty for developers and created a diversity of interpretation of what is acceptable. Planning authorities—poor souls—are leaned on to ignore it if developers suggest that the costs of providing sustainable urban drainage affect the viability of the development. Local planners at the moment have neither the expertise nor the time, and cave in under these viability challenges.

As the noble Lord, Lord Krebs, said, the planning rules include no structure for formal adoption or long-term maintenance of sustainable urban drainage schemes, which has been a problem for years, with schemes being created and then left orphaned with nobody to look after them and make sure that they continue to be safe and effective. Of course, it is not just about sustainable drainage and flood protection. There are also potential additional benefits of amenity, water quality and biodiversity that have not been garnered.

I had the privilege of talking briefly to the Minister about this and she indicated that the Government’s intention was at least to run the scheme on the planning presumption basis for two years while it was monitored. My further inquiries since meeting her have revealed that no body has been charged with keeping these records—so I am not clear that the Government will be able to say at the end of the two-year period that the scheme is or is not working.

So far, the evidence we have been able to glean from people such as members of the Chartered Institution of Water and Environmental Management—of which I should declare that I am an honorary fellow—is that the situation is now worse since local flood authorities took over responsibility for surface water drainage. Noble Lords have heard the figures from the adaptation sub-committee and the quotation from Barratt Developments that about one-third of its developments do not include sustainable drainage.

We appear to be fiddling while Rome burns in anticipation that at the end of two years, we will be better informed, when in fact the figures will not be available to demonstrate whether it is working. We should press for the implementation of Schedule 3 to the Flood and Water Management Act. That would fulfil Parliament’s will, cost no more than conventionally engineered drainage systems, help reduce flood risks and the costs of flooding, provide improvements in water quality, biodiversity and amenity and give developers a degree of certainty.

In the interest of brevity the noble Baroness, Lady Parminter, said she would not list the diverse range of expert bodies. I will list but a few of them: the Institution of Civil Engineers, the Royal Institute of British Architects, the Chartered Institution of Water and Environmental Management, the Construction Industry Council and a few others—I have forgotten what the acronyms stand for, so I shall not bore noble Lords with them. We should re-enact your Lordships’ previous support for this provision, which is enshrined in legislation.

I support the interesting Amendment 120, which was tabled by the noble Lord, Lord Krebs. When I first read it and was asked to support it, I was slightly wary because it seemed to be a bit bonkers. But, having thought about it and having read it in detail, I think it is one of the more cunning pieces of win-win, incentive-based legislation I have seen for many a long year, in that it would mean that developers would have to think harder about developing more flood-resistant properties and about developing on less flood-prone sites in a way that would not require any cost from them provided they did it well. That is what a good amendment looks like, and I commend it to the Government.

[Lord Deben]

My Lords, I declare an interest as chairman of the Committee on Climate Change, and I rise to support these two amendments. They are both based upon advice given to the Government by the Committee on Climate Change. We are talking about a very serious issue. Tens of thousands of houses have been built on flood plains and in circumstances which are more vulnerable than Cockermouth. This is serious. If we go on like this, we will be creating problems which we will have to meet. We cannot avoid it. This is going to happen. Not to do in this Bill what we can do is to avoid an opportunity, to the detriment of very large numbers of people.

The Adaptation Sub-Committee of the Committee on Climate Change told the Government that there are a number of simple things that should be done that could help protect us in future. For example, water companies are not at the moment compulsory consultees to planning decisions, which means that they are in the very peculiar position of neither being able to comment under the statute on a planning decision, nor being able to refuse to connect the houses then built to an inadequate sewer. We have to put this right. When the committee suggested this to the Government, their official reply was that it would be inappropriate to do this. The word “inappropriate” may have been the right word before the floods in Cumbria, but to suggest that it is inappropriate to do this is stretching the English language beyond any possible appropriate use.

My noble friend may be unable to accept these two amendments at the moment, but it seems to me that it would be pretty impossible to explain to the public that we are prepared to continue with a position in which houses are being built without proper and adequate means of getting rid of the surplus water that they create, and without proper protection of the surplus water that is created outside. These amendments make sure that we have modern, sustainable drainage in a form which this House and the other House have already agreed, and which the Government support. Secondly, they ensure that developers have a duty to develop in a way that makes houses resilient to the normal circumstances of life.

I can think of no more moderate or reasonable amendments to put down, and I remind the Minister that they are based upon the advice of the body that spent a great deal of time researching independently what should be done. Therefore, if she is not able to accept them now, I hope she can give us some hope that between now and Report, the Government will take this opportunity to do two very simple things which will save maybe the lives—and certainly the property and the future—of a large number of people.

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[Baroness Williams of Trafford]

My Lords, I shall deal first with some of the latter remarks. Following December’s floods, it was clear that the rules that we thought applied did not apply, and that what we thought were blip events were becoming trend events. Therefore, there were lessons to be learned from both last year’s floods and the previous one-off-event floods. Following the December events, we established the National Flood Resilience Review, led by Oliver Letwin, to assess how the country could be better protected from future flooding and increasingly extreme weather events. This review will identify any gaps in our approach and pinpoint where our defences and modelling need strengthening, allowing us to take prompt action.

I understand the intention behind Amendments 119 and 120, but Amendment 119 seeks to place unnecessary provisions into the Bill, as national planning policy has already been strengthened to deliver sustainable drainage systems, and there would be problems with implementing the second proposal.

On Amendment 119, following enactment of the Flood and Water Management Act 2010, proposals to implement the provisions under Section 32 and Schedule 3 were put out to public consultation. The response to that consultation gave rise to a number of issues. These included the potential impact on the delivery of new development under a system that required the approval of sustainable drainage systems under a consenting regime separate from that for approving planning applications. There were concerns that this could add undue delay to the consenting process and impact on the speed of planning decisions.

The coalition Government listened to that response and in the autumn of 2014 put forward for consultation a new proposal to make better use of the existing planning system to deliver sustainable drainage systems, otherwise known as SuDS. In the light of the response to that consultation and a subsequent government announcement in December 2014, national planning policy was strengthened with effect from April 2015. The strengthened policy makes clear the expectation that SuDS will be provided in all major new developments, such as developments of 10 dwellings or more, unless demonstrated to be inappropriate, and it ensures that clear arrangements are in place for ongoing maintenance over the lifetime of the development.

This strengthened policy applies alongside the existing policy expectation that SuDS will be given priority in new developments in flood-risk areas, as well as the drainage requirements of building regulations. Despite the strengthened planning policy, the amendment would require provisions for a new consenting regime for sustainable drainage systems to be brought into effect before important provisions in the Bill could come into force.

We need to give these new arrangements time to show that they can work effectively. We are meeting key stakeholders to gauge their views on how the changes are bedding in, and we will undertake similar reviews at intervals in the future. The noble Baroness, Lady Young, asked where the reviewing process had got to. As I said, we have taken the views of key stakeholders and we intend to have a more in-depth review in a year’s time, which will be two years post change.

[Baroness Young of Old Scone]

Can I prevail upon the noble Baroness to write to us indicating which stakeholders she has taken views from? The evidence that we appear to be getting from stakeholders is that it is not working.

[Baroness Williams of Trafford]

I will certainly do that. We would also welcome suggestions from the Adaptation Sub-Committee based on its ongoing evidence gathering, as that would obviously help to build up a fuller picture.

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[Baroness Young of Old Scone]

I am sorry to prolong the sitting but I should declare an interest as a former chief executive of the Environment Agency. The point of sustainable drainage systems is not necessarily about the location of development, which the sequential test that the Minister has just described attempts to deal with, but about the fact that increasingly with climate change we are seeing much heavier downpours of rain in rather random places that fill the drains up and flood no matter where you are. I have a house on top of a hill. Two Wednesdays ago a lake that had not been there for 50 years appeared as a result of torrential downpours of rain in Northamptonshire. It is that sort of situation we are looking for protection against in sustainable drainage systems. That can happen virtually anywhere. Were the noble Lord, Lord Kerslake, in his place, he would testify to the fact that in the big flood of 2007, Sheffield did not flood as a result of the river but as a result of the drainage system. Protection against that is what we are looking for in the sustainable urban drainage package.

[Baroness Williams of Trafford]

I completely take the noble Baroness’s point, but I reiterate our point that local planning authorities are expected to steer new development to areas at least risk of flooding. That is not to say that we will not have one-off events. Nowhere is safe from that sort of one-off event.