Growth and Infrastructure Bill

Lord Ahmad of Wimbledon Excerpts

Tuesday 22nd January 2013 Lords Chamber

[Lord McKenzie of Luton]

My Lords, I listened carefully to the noble Lord, Lord Tope, who moved the amendment, and to the noble Lord, Lord Jenkin, who set out his support for it. A very good case was made. I am attracted in particular to the democratic principles underpinning this. One does not necessarily always like how the democratic process works, but we should always see the principle as sacrosanct.

I was unclear about whether, if an authority is designated, it is only in respect of strategic issues that the mayor will step in, or whether he could do so in respect of all major applications. Clearly the two are not necessarily the same. However, the proposition is worthy of very serious thought.

I was a little confused about Amendment 80. On the one hand, the proposition is that the mayor should have more powers and things to do; on the other, that he will have the right to delegate because he will not have the time to deal with some of the representative meetings involved. However, I will not dwell on that point. A decent case has been made this evening and I will be very interested to hear the Minister’s reply.

[Lord Ahmad of Wimbledon]

My Lords, I will explain the Government’s position on this amendment. I was amused when my noble friends referred to the distinction between the office and the person. When one thinks of the present incumbent of the Mayor of London’s office, or indeed his predecessor, it is very hard not to talk about the person in the office. One can make that claim about both the current incumbent and his predecessor.

I listened to the arguments in favour of Amendment 39. First, I will say that I concur completely with the point that the Mayor of London should play an important role in strategic decisions affecting the capital. My noble friend Lord Tope made that point very well. As a former councillor in a neighbouring borough to his, I dealt with issues in collaboration with the Mayor of London’s office. As my noble friend Lord Jenkin said, the mayor already has powers to put in place a strategic framework for planning in London, and to call in for his own decision any applications that are of potential strategic importance. Clause 1 was drafted to ensure that his power to call in such applications would remain where proposals were made directly to the Secretary of State. The question was raised about discussions with the mayor’s office. The Government have had positive discussions with the mayor’s office about how this would best be implemented. We gave the reassurance that applications of potential strategic importance would be notified to the mayor very quickly once they had been received by the Planning Inspectorate, so that he will be able to act immediately should he wish to intervene. This presents a more practical and workable approach than the one proposed in the amendments.

It is also important that we do not overcomplicate the process for applicants. As it stands, the amendment would introduce a three-way choice for those proposing major development in the capital should the borough be designated on the basis of poor performance. They could, for example, choose to apply to the borough as normal, or to the Secretary of State, or to the mayor. In the Government’s view this would complicate matters further. In other words, what constitutes the application’s potential strategic importance or falls into one of the other proposed categories could end up being extremely complicated and confusing and risk further delay should an applicant misjudge the criteria. The mayor would then have to return an application because he could not decide upon it. It is much simpler for the applicant to have a two-way choice, as we propose, and for the planning inspectorate to decide whether an application it has received is one in which the mayor could have an interest. This approach is entirely consistent with the existing situation where the authorities, not the applicant, decide whether an application is of potential strategic importance.

We would also need to make sure that the categories are generally strategic in nature and consider the views of the London boroughs and other interests. We are happy to have that debate but currently feel that the Bill is not the place to make these changes.

Reference was made to Amendment 80. While there may be a case for the changes proposed, this again can be achieved at the appropriate time by amending secondary legislation. Amendment 80 would allow the mayor to delegate decisions relating to planning applications in the capital. As I have already said, we are sympathetic to this proposal but believe that the Bill is not the best place to address it. In this regard, we propose that we look at the mayor’s planning powers as a whole package and then, in discussion with all interested parties, consider the opportunities for making any appropriate changes.

With those assurances and reassurances I hope that the noble Lord will be willing to withdraw the amendment.

[Lord Beecham]

Can the Minister indicate whether it is the Government’s intention to consult the Mayor of London, or indeed any body, about proposals to permit the conversion of office premises to residential premises, which I understand has not gone down too well in parts of London?

[Lord Ahmad of Wimbledon]

It is the standard procedure. We continue to consult the Mayor of London’s office on a raft of issues and discuss them. I am sure that the noble Lord is well aware of such practices.

[Lord Tope]

My Lords, mention was made of the reference which I and my noble friend Lord Jenkin made to the office and not the office holder. We did so partly out of sensitivity to Members of the opposition Benches, who may have some sensitivity towards both office holders thus far. I thought that we should be clear in our heads, as far as that is ever possible, about distinguishing the office from the office holder. Given that they are such personalities, that is what we should try to do.

I am not sure that I am greatly reassured by the Minister’s reply. The suggestion that an applicant in a major project would be confused because he might have three choices rather than two is rather demeaning to such applicants. I am sure that they could understand the difference between the local authority, the Planning Inspectorate and the Mayor of London. What choice they might make is up to them but I do not think that it is beyond their intellectual capacity to cope with that. I do not speak for the Mayor of London—perish the thought. In my view, they should still have two choices—the local planning authority or the Mayor of London. Given the role of the mayor as the strategic planning authority, I do not see a role for the Planning Inspectorate. However, that is my view. I do not know what the mayor’s view is; I am sure that he will let us know.

Clearly I am not going to push this to a vote. I urge the Minister to continue discussions—I hope that there are discussions already—with the GLA to try to reach some agreement on what should be in the Bill when we come to its later stages. I do not feel that we can go through the Bill, proposing the designation of authorities and passing responsibility to the Planning Inspectorate and the various other provisions, without recognising the role in Greater London of the Greater London Authority and, in particular, the Mayor of London. It may well be a good idea in some future legislation, primary or secondary, to give further consideration overall to the planning powers of the mayor and indeed to how planning works in the capital city. However, I think that Amendment 39 applies particularly to the provisions of this Bill. I am sure that we will return to this subject on Report, but in the mean time, I beg leave to withdraw the amendment.

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[Lord McKenzie of Luton]

My Lords, this amendment concerns the arrangements when an application has been made to the Secretary of State in circumstances where another person is to be appointed to deal with the application. The provisions of Schedule 1 enable the Secretary of State, for so long as the application has not been determined, to revoke that appointment and to appoint another person to determine the application instead. On the face of it, this is a very wide power.

It is accepted, of course, that for these purposes the Secretary of State has to appoint an individual and it is further accepted that there may be circumstances where the individual may be unable to complete the task for a number of reasons and has to be replaced. However, the revocation of the appointment can be for any reason or, indeed, for none. Our amendment seeks to constrain the power by making it subject to the agreement of the local planning authority and the applicant. This is not the only constraint that might be adopted, but it is the one that is being proposed. Perhaps the Minister will put on the record the policy involved in the application of this power. Concerns obviously arise around the Secretary of State intervening to pre-empt a decision that is on the point of being made. What criteria does the Minister consider it appropriate to attach to this power? I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, this provision in Schedule 1 allows a new inspector to be appointed in cases where, for example, illness or probity would prevent the original inspector considering a particular case. It is a safeguard and a check, and nothing more. The applicant would be informed of the change of inspector as a matter of course, but there should not be a requirement to do so, only with their agreement. The Secretary of State must be able to choose the most appropriate person to determine an application, just as happens currently with any planning appeal. Equally, there should not be any need to agree this with the designated authority, especially as it would not be the determining body for the application. With those assurances and clarification, I hope that the noble Lord is willing to withdraw the amendment.

[Lord McKenzie of Luton]

I thank the Minister for that reply. I understand the thrust of it and I understand that probity and illness are circumstances in which someone would have to be replaced, but as I said earlier, the nature of this power is quite wide and the noble Lord has not reassured me as to whether there is any constraint on its usage. Perhaps I can take this opportunity to pick up a point we touched on earlier, which is that persons who can be appointed by the Secretary of State under these provisions are not just the Planning Inspectorate; it is not limited to that body. I think that the noble Baroness is going to write to me on that point. I am sure that she has not had a chance to do so in the dinner break, so I will forgive her and return to the issue when we have the correspondence. However, it would be helpful if the Minister could say a little more about not so much where the power will be used but the constraints that could be imposed upon it. Can he have another go and help me further on this?

--- Later in debate ---

[Lord Ahmad of Wimbledon]

I think that my noble friend has already undertaken to write to the noble Lord on the other point, so I will ensure that this is covered in the letter.

[Lord McKenzie of Luton]

I thank the Minister for that and I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord McKenzie of Luton]

My Lords, in moving Amendment 41, I will speak to Amendments 42, 43, 44, 45, 46, 47, 48 and 49. With this group, we seek to ensure that when the Secretary of State awards costs, he does so in keeping with the principles of good consultation and in a way that is beneficial to the planning process.

Ensuring that all parties to an appeal act reasonably is of course essential, but the clause risks overly penalising local authorities and working against localism. If the risk of being designated as failing is not a strong enough deterrent for local authorities to turn down inappropriate development, the risk that they might have to pay the costs of appeals certainly will be. There are concerns that the costs of appeals are inhibiting a true localism. Given that, how can increasing the number of instances in which a local authority would have to pay the other party’s costs be beneficial, especially given shrinking budgets and the huge resources that developers often have at their disposal to undertake appeals? When local authorities consider the risk of having appeal costs awarded against them alongside the risk that any decision overturned at appeal may contribute to their designation as failing, that makes it much more likely that developments, whether good or bad, will be nodded through by a local authority.

At present, costs are awarded in very few instances. The impact assessment sets out that, last year, costs were awarded in only 3.7% of cases but goes on to predict that, under Clause 2, the number of cases would rocket, with costs being awarded in as many as 20% or more of all appeal decisions. Worryingly, the Minister’s department has made no estimate of the amount that that would cost local authorities or any other party; hence, the need for amendments to allow for clear criteria and proper regulation of the procedure.

Amendments 41 to 47 specifically target the need for proper criteria to be used when assessing whether costs should be awarded. The impact assessment states that,

“this measure will lead to an increase in the number of costs awarded at least in the short term until longer term behaviour changes”.

However, there is no assessment of how long that might take. Published criteria, set out in regulations, would surely speed up the change in behaviour more effectively. Such criteria would allow the Secretary of State to define what would be deemed unreasonable behaviour and would therefore encourage, rightly, local authorities to avoid it. There is no benefit in giving the Secretary of State discretionary powers to award costs in the hope that it will change behaviour unless the instances in which costs are to be awarded are plainly set out. Furthermore, as the clause will allow the Secretary of State to award a portion of costs, he will need clear guidance in setting out the formula on which the portion of costs is to be awarded and perhaps, more importantly, how it is to be calculated.

Amendment 48 is key to this argument that we are making against the clause. New sub-paragraph (11) allows the Secretary of State to subsume to himself personally any power in connection with the award of an appeal. Can the Minister explain why the Secretary of State would require individual power to award costs, independent of the experts appointed to decide such an award? The amendment seeks to ensure that such power will be used only when it is to the benefit of all involved. It is difficult to conceive of a set of circumstances in which that might be the case; nevertheless it is important that some restraints are put on the Secretary of State’s powers under the sub-paragraph. We need to ensure that the Secretary of State is able to take such power unto himself only if parties to the appeal agree that it is appropriate in the circumstances.

Amendment 49 further constrains the power proposed in sub-paragraph (11). It seeks to ensure that the Secretary of State will make any decision under the sub-paragraph in accordance with published criteria, which would be extremely useful to assist in trying to determine what is in the Secretary of State’s mind. We want the Secretary of State to publish criteria that can be assessed to see whether he is making a fair and even-handed decision about the award of costs, and we want a requirement for him to publish his reasons for his decisions. Not only do we want open and transparent criteria that will inform decisions but we want them to be published. We also would wish to know, in particular circumstances, how they are being applied.

We would like the Secretary of State to publish his reasons. It should not be the role of local authorities, the other agencies involved or Parliament to try to work out what the reasons might have been in any particular set of circumstances. We want it to be clear and transparent. We would have thought that this was something that the Government also would want. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, I sought to scribble down the noble Lord’s questions as they came in. I apologise if I miss certain questions. On anything omitted, I shall write to the noble Lord.

The award-of-costs system supports the Government’s drive to improve the planning system by seeking to reduce the poor behaviour that leads to wasted expense and unnecessary delay. Clause 2 extends existing powers to enable the Secretary of State to recover his own costs in planning appeals and makes provision to improve the handling of costs awards between parties. A timely and efficient appeals service will promote economic recovery. At the start of the debate—I hope that this shows my level of attentiveness throughout the past few hours—my noble friend said that this was a magic wand of a Bill. Certainly, what it seeks to do is remove hurdles to growth and it is our view that this is one of those elements.

Clause 2 extends the existing powers of the Secretary of State to recover costs in full or in part in all appeal procedures. It already provides, at subsections (5) and (6), for rules and regulations to lay out the circumstances in which the Secretary of State may direct that costs may be recovered—about which the noble Lord, Lord McKenzie, asked. Amendments 41 to 44 and 46 and 47 would duplicate provisions already made in the clause and are therefore not necessary.

On Amendment 45, the current award-of-costs system is already flexible enough to take account of mitigating circumstances when all claims for an award of costs are being considered. All parties will have the opportunity to present evidence, including detail of any mitigating circumstances, before a decision is made on an award of costs. We therefore consider, again, that no further change is necessary.

The noble Lord asked how the new powers of the Secretary of State would be laid out transparently. I assure him that established guidance is provided on what constitutes unreasonable behaviour and behaviour that may give rise to an award of costs. This guidance will continue to apply whether an award is made by the inspector or by the Secretary of State. We will of course ensure that clarity is provided on the circumstances in which the Secretary of State may recover his costs.

The noble Lord said that the Secretary of State seemed to be able to take a lot more powers to himself to recover costs. As I am sure the noble Lord is aware, the Secretary of State already has powers to recover his own costs. The clause simply makes it clear that he can do so in full or in part in relation to the different appeal procedures. It is right that these powers cover all types of appeal, and we will ensure that information is provided on what type of behaviour may give rise to the Secretary of State recovering his costs before any costs are recovered.

The noble Lord, Lord McKenzie, said that the proportion of appeals in which costs are awarded is estimated by the impact assessment to rise from 3% to 20%. The 20% figure was rather a high estimate; we also gave in that same assessment medium and low assumptions of 10% and 5% respectively. I guess that one can only make estimates until the reality kicks in, and I am sure that we will return to the subject at that time.

Clause 2 is about improving the efficiency of appeals handling and freeing up inspectors’ time to focus on planning issues. Subsection (7) enables the identification of categories of work connected with appeals which will be dealt with by the Secretary of State instead of by a planning inspector. It is unnecessary to seek the agreement of parties to do this in each case. Parties to an appeal can be assured that any matters dealt with directly by the Secretary of State will be handled fairly and justly. Award-of-costs decisions, which I have covered, will be made in line with current guidance on grounds for an award. As I have already assured the noble Lord, we will amend existing guidance to make it clear what type of cases this will apply to. Therefore, Amendments 48 and 49 are deemed unnecessary.

Ultimately, this is to make the whole process more efficient and effective. I am sure that all of us involved with the planning process would welcome such changes. I therefore hope that, with those reassurances, the noble Lord, Lord McKenzie of Luton, is willing to withdraw his amendment.

[Lord Greaves]

The Minister said several times that the purpose is to increase the efficiency of the appeal system or of appeal-handling in pursuit of economic growth. I am not sure what the direct correlation is between the efficiency of the appeal system and economic growth, except that decisions might be taken more quickly. Is the phrase, “increase the efficiency of appeal handling”, a euphemism for more applications being passed and therefore not going to appeal at all? Is that what is behind all this?

[Lord Ahmad of Wimbledon]

The short answer to the second question is no. This is about making things more efficient. I am sure that anyone involved with the planning process would welcome greater efficiency. If a decision is more efficient—if it is quicker—it makes the planning process more in line with requirements and, ultimately, saves costs for all involved. I commend the changes because they are simply making something more efficient. To anyone involved with the public or private sector, increased efficiency is always a welcome development.

[Lord Greaves]

I agree entirely with that. Whatever you are doing, doing it more efficiently is a good idea. However, I do not understand what the allocation of costs—increasing the costs on local authorities and increasing the number of cases where costs are allocated—has to do directly with efficiency. I said earlier that, in my experience, the Planning Inspectorate has not always been the most efficient organisation in the country. However, my perspective is that that is not because the Secretary of State could not get his costs back at the end of it all or that more costs might be allocated to other people in the process but that, as a bureaucracy, the Planning Inspectorate was not very efficient. Either it did not have enough people working for it or those people were not working sufficiently efficiently. The long delays that there were in planning appeals—there still are in some cases, although it has very much improved—do not suggest that the Planning Inspectorate has always been the most efficient organisation in the world.

What on earth has that got to do with the Secretary of State being able to take money off local authorities following the end of an appeal?

[Lord Ahmad of Wimbledon]

As I said, from my experience of life, whether in business or the public sector, it helps growth because things progress that much more quickly. My noble friend also raised a point about added costs for local planning authorities or developers. On the contrary, no local authority or developer will face an award of costs if they behave reasonably. It is in everyone’s interest that all parties behave reasonably at all stages of the planning process. If anything, making these changes will prevent delays, drive good behaviour and therefore reduce unnecessary expense and delay for everyone.

[Lord McKenzie of Luton]

My Lords, I am not sure that we can progress much further on this this evening. I fear that part of the rationale underlying this is an encouragement for local authorities not to risk appeals and to tick through, at least at the margins, those applications which they might otherwise have rejected.

The Minister told me that the amendments are unnecessary because they duplicate what is in the Bill, there is established guidance on it or the Secretary of State already has that power. That is all good stuff. Perhaps he might give us the reference to, or in due course pass a copy of documents relating to the definition of “reasonableness”. The Minister said that the established guidance was going to be updated to ensure that there is clarity on this. Perhaps we could have a draft of that updated guidance before we reach Report. Having said all that, I beg leave to withdraw the amendment.