Neighbourhood Planning Bill

Lord Beecham Excerpts

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

[Lord Beecham (Lab)]

My Lords, I refer to my interests as yet another vice-president of the Local Government Association and as a member of Newcastle City Council. When I was first elected to the council in 1967, it was building 3,000 council houses in that year. Very few councils can claim to have done anything like that for the last 20 years. I dissent very strongly from the critique made by the noble Lord, Lord Borwick, who blamed local authorities for the failure to build. As we have heard, hundreds of thousands of granted planning applications have not been implemented, and successive Governments, I regret to say, have failed to support the provision of social housing, particularly by local authorities.

In any event, we are 10 days short of the anniversary of the Second Reading of the Housing and Planning Act, the legislative masterpiece which, during the three and a half months it was before this House, prompted a Conservative Back-Bench Peer to congratulate me on retaining my sanity “notwithstanding this terrible, terrible, Bill”. I do not propose to test the opinion of the House on that matter. However, it is clear that the Act has caused more problems than it has resolved. It is now eight months since Royal Assent and much of the secondary legislation still has to be tabled. Indeed, it was striking that, during the passage of the Bill, the matters that were to be subject to secondary legislation had not been consulted upon—and we have yet to see the results of consultation, let alone a good deal of the secondary legislation that will be required to implement what is now the Act.

Now, of course, we have this Bill, and a White Paper on housing is apparently imminent. It is not clear to me whether the White Paper is intended to lead to legislation. I assume that it will. Perhaps the noble Lord can inform us with a bit more precision—perhaps he cannot—when we are likely to receive the White Paper. Presumably if it leads to legislation, that will be something for the next Session.

This history discloses a system of policy-making and legislation on the hoof and in reverse order—reflecting, frankly, breath-taking levels of incompetence and an abysmal failure by the Government to tackle the housing crisis afflicting families and communities all over England. As the noble Lord, Lord Porter, pointed out, this Bill will not solve the housing problem, although maybe the next one will. I suppose that we should be grateful for one thing that is not in the Bill, to which my noble friend referred—the controversial plan to privatise the Land Registry. I am not entirely clear whether that has been laid to rest for good and all or whether it is in suspension. Perhaps the Minister could clarify that situation.

Those parts of the Bill which reflect its title seem, for the most part, to be relatively innocuous as far as they go, but I wonder whether the Minister could enlighten us on the turnout levels in local referendums that have been held and whether a minimum threshold is contemplated.

I have some concern, clearly shared by the noble Earl, Lord Lytton, that in some areas residents might be tempted to use a neighbourhood plan as a means of preventing development that might benefit people who, for example, are in need of housing but are not resident in the immediate area. I recall, painfully, an encounter with a lady in Newcastle in a house built not so long ago on a greenfield site near the edge of the city who was adamant that no social housing should be built on the green fields that she herself was now overlooking. I hope that that nimbyism will not feature as the Government’s plans for new housing, if that is what they amount to, come forward. As the noble Lord, Lord Cameron, pointed out, local communities need support in addressing the process of local planning, with or without referendums. Again, I hope that the Minister can indicate whether the Government are prepared to back their aspirations with some resourcing.

The LGA rightly draws attention to the need to avoid undermining the ability of a planning authority to,

“meet the wider strategic objectives set out in an emerging or adopted Local Plan, by unintentionally giving greater weight to the status of neighbourhood plans than to Local Plans”.

There is a balance to be struck here. The neighbourhood plan should be seen as part of the local plan and not as something in conflict with it. The association seeks an assurance that the new requirements in relation to the planning register will be funded. Will the Minister confirm that the new burdens doctrine will apply, given the extreme pressure on council planning staff levels which already exists and which has been referred to in this debate?

Although it welcomes the Bill’s provisions in relation to compulsory purchase, the LGA calls for greater powers where permissions have expired without development commencing, the delegation of confirmation of a CPO to the relevant authority and a fundamental consolidation of compulsory purchase legislation. Perhaps the Minister could indicate the Government’s stance in respect of those three calls by the LGA.

The LGA also asks for planning fees to meet the full costs of the service—a matter to which several noble Lords referred. It is a principle which the Government have been quick to apply in relation to court and tribunal fees—as I have cause to comment on from time to time in one of my other capacities here—and which, perhaps surprisingly but as the noble Baroness, Lady Maddock, confirmed, has the backing of two-thirds of the members of the British Property Federation who responded to a survey on the issue. Staffing is certainly a highly relevant point. Again, the noble Lord, Lord Cameron, referred to this and pointed out that it was critically responsible for the delay in decision-making. It will not be solved without additional resources going into the planning service.

Incidentally, the LGA also stresses the need to have regard to the fact that any strengthening of the role of neighbourhood plans in determining applications should come hand in hand with the strengthening of assurances that neighbourhood plans will conform with both existing planning law and evidence regarding local circumstances, housing need and land supply. Again, it would be helpful if the Minister could confirm that tonight—or it may be that it will feature in the forthcoming White Paper. I must say that I reject the very negative portrayal by the noble Baroness, Lady Finn, of the role of local government of any colour in the planning process, and in particular of its desire to deal with the housing position.

As we have heard, the Bill is very light on the provision of social and affordable housing, on tenure and on the required infrastructure that makes for viable communities, with schools, open space, parks, shops and GPs’ surgeries obviously proportionate to the scale of development—the kinds of issues that the noble Baronesses, Lady Cumberlege and Lady Greengross, addressed in their contributions.

The major concern that many of us have about the Bill is, as Members will recall from the debate, the provision for pre-commencement planning conditions. Under the Bill’s provisions, these would apply only with the written agreement of the developer. In the absence of agreement, the authority would be left with the choice of refusing permission, which would presumably mean that the developer could appeal. I certainly share the reservations and criticisms of the provision made by the noble Baroness, Lady Parminter.

Worryingly, moreover, the Bill allows the Secretary of State to make regulations stating what conditions may or may not be imposed. Once again, we are being driven into the territory of secondary legislation if the Government have it in mind to take that power. I hope that the Minister will confirm that we will see draft regulations before the Bill reaches Third Reading.

The Government’s consultation on this proposal ended in November. When might we expect to see the Government’s response and, if they intend to proceed with this controversial intervention in local decision-making, can the Minister assure us that draft regulations will be published?

It is striking that the Local Government Association’s housing spokesman, Councillor Martin Tett, the leader of Buckinghamshire County Council—and not, so far as I am aware, a paid-up member of the Labour Party—expressed surprise that there is,

“no mention of the National Infrastructure Commission”,

which had been promised in the Queen’s Speech. Meanwhile, the House Builders Association—again, a body not affiliated to the Labour Party—referred to the omission of infrastructure as leading to increasing uncertainty in local communities about the impact of development.

Incidentally, the House Builders Association also drew attention to the problems caused by the reduction in planning staff as a result of cuts since 2010 and the likelihood of a consequent slowing down of the process caused by new statutory duties. If the Government are not overly inclined to listen to an Opposition spokesman making these points, perhaps they should pay a measure of attention to a Conservative local government representative and the House Builders Association, which is obviously very involved with the whole process.

The Bill creates the opportunity to raise a number of issues of a controversial nature where planning law could make a difference. We have heard about some of those today, including the conversion of shops to housing and energy efficiency—which, as the noble Lord, Lord Cameron, pointed out, needs revisiting. We also heard about flood prevention, the protection of wildlife and the protection of pubs and local amenities. These matters were raised by my noble friend Lady Young, and the noble Lord, Lord Renfrew, spoke about protecting our heritage. We look forward to constructive discussions on these and other matters during the Bill’s progress through the House. I hope that we can reach consensus on controversial matters and, in particular, see a connection between the Government’s policy as it emerges in the White Paper and this Bill, in order that we can tackle what is a major national crisis.

Neighbourhood Planning Bill

Lord Beecham Excerpts

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

[Lord Bourne of Aberystwyth]

With respect to the noble Lord, I am not sure we are. The noble Lord has been around the planning block a few times and he will know that occasionally planning decisions have national significance. Not least for that reason, we need to retain the power of the Secretary of State to recover appeals in limited circumstances.

[Lord Beecham (Lab)]

Perhaps I may raise a slightly different point. The noble Lord has given a sympathetic response to the question of resources, but looking at subsection (3) of the proposed new clause set out in Amendment 1, there is an issue which I do not think he has addressed in his reply. It relates to the case where,

“it is deemed necessary to override a neighbourhood plan”.

The amendment then calls for specific action. It says that,

“the Secretary of State must … have regard to the policies of the neighbourhood development plan”,

and,

“policies on employment opportunities … and … inform the local community of the number of houses and types of housing required”.

That is not an onerous request. It may be that the noble Baroness would be satisfied with an assurance that that would be the Government’s policy rather than necessarily writing it into legislation, but, with respect, the Minister should deal with those points. He may consider that a letter would do. One way or another, it is rather a different point from some of those that have already been aired. The Government could be clear about it at a pretty early stage.

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[Lord Shipley]

My Lords, I found this a very helpful debate and conclude that if not now at some point soon the Minister will have to define words. The noble Baroness, Lady Cumberlege, drew our attention to an important issue around the definition of the word “modification”. When I read the Bill for the first time, I assumed that it would be really very minor in practice. However, it may not be and I am not sure that we can wait until a month after the coming into force of Part 1 for that word to be defined. It is material to what is in the Bill.

Clause 3(2) states:

“After subsection (4) insert … A local planning authority may at any time by order modify a neighbourhood development order they have made if they consider that the modification does not materially affect any planning permission granted by the order”.


The word “materially” starts to become very important. What is the difference between affecting and materially affecting a planning permission? We need to get this sorted out so that we understand it, otherwise we will end up with a modification which I thought was minor actually having the potential to be much more substantial, as the noble Baroness, Lady Cumberlege, pointed out. In addition, I should like to be clearer about what a material effect would be on a planning permission granted by the order. I want to understand that before we reach the Report stage. However, the debate as a whole has been extremely useful.

[Lord Beecham]

My Lords, I declared my interest earlier as a vice-president of the Local Government Association, as I suspect are half of the Members present in this Committee, and as a member of Newcastle City Council, where 20 years ago I was for a couple of years the chairman of the planning committee. But I have to say that I defer absolutely to the noble Lord, Lord Taylor of Goss Moor, whose expertise is much more current than mine and, I would guess, more profound as well.

I want to raise just a couple of points. The noble Lord, Lord Greaves, referred to the provisions set out in Amendment 6 amending Schedule 1 to the Town and Country Planning Act 1990 by inserting new sub-paragraph (1B). I have a slightly different point to make. The provision states:

“The local planning authority must notify the neighbourhood forum of”,


a variety of matters. What I do not know is the extent to which a neighbourhood forum is under an obligation to notify residents about these matters. In an ordinary planning application, the usual practice is for the planning authority to notify the residents in an area within a reasonable range of a projected application of its existence. The assumption here seems to be that the neighbourhood forum itself constitutes the community for these purposes. While it may have a representative role, that does not imply that every resident will get to know of matters which would have been raised by the local authority with the neighbourhood forum. Perhaps, if not today then later, the noble Lord could indicate whether I am right in my assumption that the provisions of this new clause are meant simply to notify the neighbourhood forum and whether there is any further obligation on the neighbourhood forum or anyone else to notify residents and other people with an interest.

I turn briefly to the point made by the noble Baroness, Lady Parminter, about the remedy if things do not go well. Given that there is a statutory responsibility here if it is not carried out, I would have thought that the remedy is that of judicial review. That is not an inexpensive process, I am afraid, but I suspect that if there has been an omission in complying with the requirements of the legislation, it is the remedy available to those who have a grievance. Again, possibly after taking advice from those behind him, I hope that the noble Lord will clarify the position.

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[Baroness Cumberlege]

My Lords, I turn to Schedule 1, which has been amended to include new Schedule A2. I have tabled a number of amendments on this. I shall discuss my Amendments 9, 10 and 11 before I discuss my Amendments 6A and 6B in this group.

I am very worried about sub-paragraphs (1) and (2) of paragraph 12 on page 38 of the Bill. They ensure that the examiner can sit in his office, away from the world he is examining, and immerse himself in documents and papers which give him little sense of place, neighbourhood and geography and, above all, the people who live and work there. These people cherish and care about their community, look after it and make it a dynamic place. They run myriad organisations. They understand what works in their area and what does not. As has been said, this is not a charter for nimbyism; on the contrary, it has stimulated housing and other development.

My amendments seek to give makers of neighbourhood plans a voice and a right to be heard and to enable them to explain face-to-face what makes the plan worthy of their community, and what they seek to achieve in strengthening it. Christopher Lockhart-Mummery QC of Landmark Chambers says that,

“any significant Neighbourhood Plan really requires a hearing”.

In my view, the Government’s steer in discouraging hearings is too strong. So much is dependent on what the examiner is minded to recommend through written representations. We need to be sure that the policies are not fundamentally altered without the plan-making body having the right to explain its objectives at a hearing, and the examiner suggesting better words to them to achieve their goals. After years of work producing a plan—in some cases this lasts up to five years; in my area, it was two and a half years—and then getting it agreed at referendum, the parish or town councils are at the mercy of the examiner. They can only watch while further representations and views of the local planning authority are gathered together and put to the examiner. It is not an inclusive process, and I think it should be.

My Amendment 6A is more specific. It concerns the situation where the examiner deletes a policy relating to a specific site or sites in favour of a commercial or economic development. As a nation, we need more sites for housing. Where a community has researched and identified its needs and proposed a significant development in terms supported by the landowner and the developer, is it right for the examiner to simply delete the proposed policy on the grounds that some of the wording of the policy is not clear? Should he not make every effort to help the community get its words right?

Amendment 6A would put a greater responsibility on an examiner who finds that a plan policy falls short of meeting the basic conditions. Instead of recommending the deletion of such policies and therefore denying us the housing sites we need, the examiner would be required to hold a hearing when he proposes to delete, add or significantly amend any draft policy that makes provision for a specific development, which would include housing development on a site identified in the plan. It would be a specific requirement.

Amendment 6B is also concerned with the examiner. Plan makers are at the mercy of others and can only watch while further representations and views of the local planning authority are gathered together and put to the appointed examiner. There is no recourse if the parish or town council is not satisfied with the work of the examiner. Examples might be because the examiner has recommended modifications that they do not believe are soundly based on evidence, or because the examiner has recommended deleting policies that could readily be remedied by a less dramatic modification. The amendment is designed to provide the makers of a plan with the right to a say in the action to be taken after the examination. It would achieve this by requiring the examiner to deliver a draft report for consideration by the local planning authority and the plan makers. Before finalising the report, the examiner should take into account and consider any points made by those bodies.

There have been suggestions—I suspect my noble friend might also make them—that this would further complicate the process or cause more delays in the planning system. I understand that some examiners already proceed in this way, but do so informally. The amendment is a modest way of ensuring a continuing engagement with the plan makers in the final stages of creating their own plan. Ideally, examiners should not recommend fundamental changes or deletions without first engaging the town or parish council in a hearing to understand the goals, and then fine-tuning the recommended changes.

This is a probing amendment and a way of attracting the attention of my noble friend in order to open a dialogue and discussion about how we can ensure that the confidence and faith of local plan makers is enhanced and does not deteriorate. I look forward to my noble friend thinking about the way we can ensure that that happens and I look forward to his response. I beg to move.

[Lord Beecham]

May I ask the noble Baroness, in reference to Amendment 6B, about the time limit that she has included in the amendment? We know that local authority planning departments are under great pressure, and in those circumstances, 28 days seems a little tight for the local planning authority to consider,

“new evidence, new facts or a different view”.

Is she prepared to be flexible about the period for the response because it seems too short?

[Baroness Cumberlege]

My Lords, I accept the suggestion but my concern is that these things can drag on and on, and unless one has a cut-off time, I fear that while the issues continue to be talked about and worked on, nothing actually happens. I am quite anxious to have a deadline and times within which people have to deliver their responses.

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Moved by

[Lord Beecham]

12: Clause 5, page 5, line 9, at end insert—
“with reasonable payments made by local authorities for the purposes set out in paragraphs (a) and (b) to be recovered from the Secretary of State.”

[Lord Beecham]

My Lords, Amendment 12, in my name and that of my noble friend Lord Kennedy, relates to Clause 5, which is headed, “Assistance in connection with neighbourhood planning”. We have heard a good deal about the need to support local communities in developing their local plans and seeing them implemented. The amendment seeks to ensure that they have the wherewithal to do that.

Clause 5 is the Government’s initiative to ensure that support is given. It prescribes that as part of the process:

“A statement of community involvement must set out the local planning authority’s policies for giving advice or assistance”,


for the making or modification—a word that has been much used this afternoon—of neighbourhood development orders and neighbourhood development plans. Of course, this is a matter which requires considerable experience and skill. The assumption, therefore, is that the local authority will provide the resources for the local community to obtain advice and support in going through the process.

I suppose in one sense this could be regarded as a new burden and therefore should or could fall into the general position that is purported to apply to the imposition of new burdens; namely, that if it is a requirement of legislation, the Government will ensure that local authorities’ costs in meeting that obligation are met. But in my experience it is as well to be explicit about this and that is the purpose of the proposed new clause, which would require the full recovery of costs in connection with the development of a neighbourhood plan. The local authority would support the community in its commissioning of works but the cost ultimately would be met by the Government.

Given the tenuous position within local authority planning departments, of which we have heard much in the Chamber and today, it is imperative that the matter be adequately resourced. As we have heard so many times, planning departments are under huge pressure. As the noble Baroness pointed out, they have lost staff to private concerns. It is difficult to recruit and retain staff. In some ways happily, the volume of work is growing, which we want to see. The Government have now come round to conceding, particularly on the housing front but also in other areas, that considerably more investment and building need to take place. In the context of that shortage of staff, it is particularly important given the competing pressures on departments that communities should be assisted in securing whatever help they need in the process. I hope therefore that the Minister will concede that this is right way forward if we are going to have properly developed neighbourhood plans with local communities fully engaged and equipped to make a contribution to the ultimate decisions, which without that professional support would not take place. I beg to move.

[Baroness Cumberlege]

My Lords, this is my swansong; this is the last time that your Lordships have to endure me. I have an amendment coupled with this one, but I say to the noble Lord, Lord Beecham, that I so agree with him. It is really important that we do not try—to use an expression appropriate for a planning Bill—to make bricks without straw, because it does not work; we need resourcing.

My amendment is a little different, being about the community infrastructure levy, which it would increase. It is a probing amendment, but if it is intended to continue the direction of travel towards localism and the greater empowerment of parish and town councils, we have not only to find some financial incentives for communities to accept development—although many of them do at the moment—but to encourage planning permissions for the building of houses. That was a significant feature of the coalition Government’s housing and planning reforms and a source of funding to principal councils.

One such initiative was the community infrastructure levy, which came into force in April 2010. It allows principal councils to raise funds from developers undertaking new building projects in their area and to fund a wide range of infrastructure needed as a result of the development. The community infrastructure levy-charging authorities are required to transfer to the parish or town councils 15% of the levy receipts arising from development that takes place in their area, rising to 25% for areas with an adopted neighbourhood plan.

Unfortunately, research suggests that local councils have been passed only 1% of the community levy receipts—just £92,000 despite principal councils collecting more than £9 million between April 2013 and June 2014. That is largely because it is not mandatory for principal councils to have a community infrastructure levy scheme in place and it has the effect of communities accepting development but not benefiting from the share of the levy to invest in local infrastructure needs and priorities.

It is vital that communities which are pro-growth benefit financially from policy incentives such as the community levy so as to invest in locally identified infrastructure needs and other community priorities. The first part of my amendment would address this issue by requiring local planning authorities to introduce the community infrastructure levy within 12 months of the day on which this Act is passed. I am sure my noble friend the Minister has more recent and up-to-date information about how this policy is being delivered, so I look forward to his response.

Paragraph (b) of my amendment is simply intended to increase the incentive for communities to embark on the development of a neighbourhood plan. At present, areas with an adopted neighbourhood plan are entitled to 25% of the levy. However, it does not happen everywhere. I should like to see neighbourhood planning grow, and for more communities to get involved and take a positive approach to future development in their area. To accelerate the uptake, I think a further range of measures is needed to build on efforts to date and, in particular, to ensure that communities benefit financially from development. Increasing the amount of the community infrastructure levy would provide an enhanced incentive. It would also have the added benefit of relieving some of the pressure on the parish precept as the principal means of income to invest in local projects, assets and infrastructure. I am sure my noble friend has other ideas as to how some of this could be achieved. This is a probing amendment and something that I think is worthy of discussion.

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[Lord Bourne of Aberystwyth]

My Lords, I thank all noble Lords who have participated in the debate on these amendments. I turn first to Amendment 12 tabled in the names of the noble Lords, Lord Kennedy and Lord Beecham. I understand the desire to ensure that adequate funding is available for local planning authorities.

I hope that I can reassure the noble Lord, Lord Beecham, that the Government’s rigorous new burdens doctrine ensures that local planning authorities receive the relevant resources to meet their statutory obligations under the neighbourhood planning process. Since 2012, more than £13 million has been paid out by the department to enable local planning authorities to meet their neighbourhood planning responsibilities. Some 104 different local planning authorities have submitted claims for the current financial year, and under the current arrangements where applicable, these authorities could have claimed £5,000 for each of the first five neighbourhood areas and the first five neighbourhood forums that they designate. For those authorities where a referendum date was set, they could also claim a further £20,000 to cover the costs of an examination for each referendum.

Evidence compiled by my department in August 2015 found that the current funding arrangements adequately cover the neighbourhood planning costs for the majority of local planning authorities. I appreciate that that is almost 18 months ago but I would be happy to share this evidence with noble Lords and I will ensure that it is sent on to those who have participated in the debate. We continue to review the level of funding available to local planning authorities and I can confirm that funding will continue to be available for the next financial year. Further details will be announced shortly, ahead of the next financial year.

I now turn to Amendment 26 tabled by my noble friend Lady Cumberlege. I share her desire to support neighbourhood planning, and that is why we currently allocate a proportion of community infrastructure levy receipts to those areas with an adopted neighbourhood plan, as she correctly acknowledged. It is a local choice, as the noble Lord, Lord Greaves, pointed out, for areas to introduce the levy based on economic viability and infrastructure need, and of course that will vary from area to area. Take-up has increased by 144% since April 2015. The current number of authorities which have adopted the community infrastructure levy is 132, and a further 86 have taken substantive steps towards it, which totals 64% of local authorities. However, I emphasise that this is a local choice. There are clear benefits in many cases and it may be that we need to look at publicising those more widely, but of course it is not for everyone.

It is also important that local areas have a choice over how the money raised by the levy is spent. The 25% neighbourhood share already allocated for communities with neighbourhood plans provides a real opportunity for those areas to have a say over how the levy is spent in their area. Communities can also influence how the levy is used across their local authority through participating in the development of the local plan and the charging schedules which set out the local authority’s infrastructure priorities.

I thank the noble Baroness, Lady Scott, for her contribution more widely in relation to the community infrastructure levy and I am happy to agree to the meeting she has suggested in order to understand and consider some of the detailed concerns. That would be beneficial to me as well.

I turn now to the issue of how best to continue to incentivise communities, and I understand the wishes of my noble friend Lady Cumberlege in this area. The Prime Minister has made clear that this is a particular priority for the Government. An independent review of the community infrastructure levy has recently reported to my department. The review group considered a wide range of issues including the take-up of the levy and the use of the neighbourhood share. We are currently reviewing its recommendations and once again I will provide further information on exactly where we stand on that.

With the reassurance that the Government are already considering the recommendations and the need perhaps to publicise the benefits of the community infrastructure levy more widely by giving evidence of how communities can benefit from the development of their area, and continuing to review the level of funding available to local planning authorities—the White Paper will have something to say on that as well—I would ask the noble Lord, Lord Beecham, to withdraw his amendment.

[Lord Beecham]

My Lords, I am grateful to the Minister for his constructive response. I was rather taken with his notion that the Government have a rigorous policy towards meeting new burdens. I would have thought “rigor mortis” might be a more appropriate description of their performance in that area but he is clearly well intentioned and we hope to see some evidence of that as the legislation goes forward.

Significantly, the figures he quoted on the community infrastructure levy were quite alarming in many ways. From what he said, authorities are not necessarily taking full advantage of what is currently available. Has the Minister considered talking to the Local Government Association about that? This matter should be taken forward in that way. I will certainly ensure that the points he made today are heard. I hope that process can be tackled. It is for the noble Baroness to comment more specifically on that subject since she raised it but there seems to be an issue here. One way or another, the system does not seem to be working adequately, yet apparently the goodwill is there on the government side to ensure it does. Perhaps after the event we could look at ways to promote the use of what should be a helpful instrument for both local authorities and the communities they represent.

[Lord Greaves]

We have had this discussion on previous Bills. In my authority, for example, it is not through lack of willingness or knowledge of CIL that we do not impose it. It is simply that if we impose it, it will make particular brownfield sites even less viable. On brownfield sites, we have to subsidise housing development to get it going and apply a kind of negative CIL, paid for by the council. That is the only way to do it. There is a mismatch here between different parts of the country.

[Lord Beecham]

I am not suggesting that all local authorities are able or would wish to impose the levy, for the very reasons that the noble Lord has just given. The question is whether there are authorities that could do so without the kind of impact the noble Lord described on his authority but have not yet taken advantage of it. It is pointless to speculate on the nature of those authorities but I suspect that some district councils, for example, might not have the officer resource to deal with what ought to be something that would benefit them. That matter should be looked at by the Government and the LGA together. I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

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Moved by

[Lord Beecham]

13: After Clause 5, insert the following new Clause—
“Approval of draft neighbourhood development plans by referendum
(1) Paragraph 14 of Schedule 4B to the Town and Country Planning Act 1990 (referendum) is amended as follows.(2) After sub-paragraph (2) insert—“(2A) The outcome of such a referendum shall only be valid if the turnout is equal to or greater than 40%.””

[Lord Beecham]

My Lords, this amendment is in my name and that of my noble friend Lord Kennedy. It deals with referendums. We now have some experience of referendums in this country—perhaps rather regrettably. Of course, the position in the local scene is that it is an issue which would test the degree of support for local initiatives of the kind that the Bill envisages. I do not know but perhaps the noble Lord is in a position to say what kind of turnout has been engendered in the referendums that have been held. I understand that they are not required to be held and there are other means of consultation. However, it seems important to secure and recognise a substantial degree of public support, as reflected through a reasonably pitched turnout.

Forty per cent does not seem excessive, but it would show a degree of engagement and interest on the part of the local community which ought to be recognised. I suggest that it would give an incentive to local communities and their authorities to debate issues very fully. I should have said that the amendment has the support of the Local Government Association, as did the previous one. In the circumstances, I hope the Minister will acknowledge that this measure would be an incentive to authorities and local groups to engage fully with their communities to ensure a turnout that adequately reflects public engagement with an important process. I beg to move.

[Lord Shipley]

My Lords, I do not support this amendment as it implies that a huge amount of work in developing a neighbourhood plan could be lost if 39.9% of the electorate turned out to vote on it. We have in this country a history of assuming that those who do not vote are abstaining. It seems to me that the current system works perfectly well. If some people—perhaps a majority of the electorate—decide not to vote, that is their right. It would be very wrong if all the work of a lot of people over a substantial period of time could be lost because an arbitrary figure of 40% was imposed. The noble Lord, Lord Beecham, has not justified that figure. I would remind him that a large number of local councillors would not have been elected to local government if a 40% turnout figure had been imposed. Indeed, I remind him that he himself in 2014 was elected in the Benwell and Scotswood ward of Newcastle upon Tyne with a turnout figure of 32.1%. However, I do not think that anybody in your Lordships’ Chamber would wish to say that that result was not valid. I hope that the noble Lord will think very carefully about proposing a requirement that there should be a 40% turnout of the electorate on a referendum relating to a neighbourhood plan.

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[Lord Bourne of Aberystwyth]

My Lords, I think we now know why the figure of 40% appears in the amendment.

In all seriousness, clearly we would all want to see higher turnouts, but regrettably much of our national life turns on low turnouts. In May 2016 the overall turnout in English local elections was 33.8%—the noble Lord, Lord Kennedy, bucked the trend. The average turnout for neighbourhood planning referendums is 32%. The principles of neighbourhood plan and neighbourhood development order referendums are consistent with all referendums and elections in our country. People are given the right to vote but are not obliged to do so. With this in mind, we cannot support the 40% threshold. The Electoral Commission’s data show that the overall turnout in English local elections since 2007 has exceeded 40% in only three years.

As the Minister for Housing and Planning, Gavin Barwell, highlighted in the other place when a similar amendment was tabled in Committee, of the approximately 240 neighbourhood planning referendums that had been held at that point, around 170 had had a turnout of less than 40%. The amendment would drive a coach and horses through the legislation and could jeopardise the whole neighbourhood planning process and the hard work of so many people and communities to produce neighbourhood plans, which the Government support. With this clarification, I hope the noble Lord will withdraw his amendment.

[Lord Beecham]

My Lords, it is interesting to be identified by the Liberal Democrats as having a low polling achievement, when at the general election, was it 8% or 9% that the party of the noble Lord, Lord Shipley, managed to achieve? However, to my mind the issue was not so much about a particular figure as about trying to ensure that there is significant involvement of local people in making a decision.

I did not know the statistics that the Minister referred to and I am grateful to him for answering my question about that. Those figures suggest that there is in many places a reasonably high demand—30% or so, whatever it might be, is a good response to something such as this. But the object ought to be to encourage as much as possible a turnout on these decisions. I am not wedded to the 40% figure. Perhaps a different approach might be to provide financial and other support to promote referendums, without necessarily imposing a limit, but to work with local authorities— again, perhaps with the LGA—to develop a scheme to maximise the involvement of local people in a system which is supposed to engage them in evolving policy which will affect their communities. Perhaps it could be looked at afresh from that perspective without identifying a particular figure, which I accept is very much an arbitrary one. But we are all concerned to see public engagement increasing as much as possible. There may be ways to do that.

In the circumstances, of course I beg leave to withdraw the amendment, and I hope that the turnout in the next elections in Newcastle will be somewhat higher.

Amendment 13 withdrawn.

Neighbourhood Planning Bill

Lord Beecham Excerpts

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

Moved by

[Lord Beecham]

17: Clause 6, page 5, line 27, at end insert—
“(1CA) The development plan documents must contain references to—(a) a threshold for social and affordable housing in the area;(b) the impact of the proposals in the documents on energy efficiency in dwellings and infrastructure in the local area;(c) flood protection for the local area;(d) the impact of the proposals in the documents on air quality in the area; and(e) the provision of green spaces and public leisure areas.”

[Lord Beecham (Lab)]

My Lords, I refer again to my interests as a Newcastle city councillor and a vice-president of the Local Government Association. My noble friend Lord Kennedy referred to Queens Park. Perhaps I should declare an interest, given what their Rangers did to my team last night. However, I do so not to wish Queens Park Rangers well.

Turning to this group, Amendment 17 stands in my name and that of my noble friend Lord Kennedy and the noble Baroness, Lady Cumberlege; Amendment 18 is in my name and that of my noble friend; and Amendment 17A is in the names of the noble Baronesses, Lady Finlay of Llandaff and Lady Watkins, who do not seem to be in their places, although I assume that somebody will speak on their behalf.

The amendments in this group flesh out the Bill’s prescription of matters that must be included in development plan documents. Amendment 17 includes five substantive issues that ought to be addressed, and on which current government policy is either non-existent or inadequate. The first relates to the provision of social and affordable housing. As noble Lords are aware, affordability appears to be a pretty elastic concept for the present Administration, exemplified by the definition of affordability in relation to rented housing, as 80% of private sector levels, and the definition of starter homes for purchase, as up to more than £500,000 in London. A much more realistic approach is required, but the principle should at least be explicitly acknowledged in development plans, which should, as exemplified in the other areas covered in the amendment, be designed to provide not just “development” but communities.

Despite President Trump’s refusals to acknowledge them, energy efficiency and flood protection issues are increasingly important areas of concern given the growing evidence of the damage that climate change engenders. So is air quality, as underlined by the recent appalling revelations of schoolchildren suffering from the effects of vehicle emissions while they are at school, just a couple of miles away from where we are today—my noble friend Lord Kennedy referred to that issue. Clearly, the provision of green spaces and public leisure spaces should help in this context, as well as being an obvious requirement for any development, new or old.

Noble Lords will no doubt recall the famous picture of David Cameron and the husky in his green days, proclaiming that a Conservative Government would be the greenest Government ever. Well, he shot the husky—metaphorically speaking—and the green agenda became, in his less than elegant phrase, “green crap”. Now is the opportunity for the Government to return to that agenda and, in particular, to ensure that it is embodied in this Bill.

Amendment 18 seeks to ensure the provision of a minimum number of dwellings in any development plan, after consultation locally. In that context, it will be important for locality not to be confined to the area where development might take place, and to ensure that the need for housing in the wider local area is taken into account. The experience of Stevenage, hemmed in by its surrounding county and district areas and without developable land of its own, should not be repeated.

The amendments do not include reference to an issue that I have repeatedly raised; namely space standards, which my noble friend touched on. As noble Lords will recall, in recent years, space standards have fallen substantially below those in Europe. Perhaps when moving his amendment concerning guidance on the housing needs of the elderly and the disabled, which we very much welcome, the Minister could indicate whether this too could be included alongside those matters.

Clearly, we endorse the suggestion in Amendment 17A that the education, health and well-being needs of the population are also reflected in the development plans. I beg to move.

Amendment 17A (to Amendment 17)

Moved by

--- Later in debate ---

[Lord Beecham]

My Lords, I thank all noble Lords who have contributed to the debate, particularly the noble Baroness, Lady Cumberlege, my noble friend Lady Andrews and the noble Lord, Lord Shinkwin. My noble friend Lady Andrews touched on the issue of the necessary provision of suitable accommodation for the elderly. That resonated strongly with me. Just in these last few days, I have been contacted by a tearful lady whose elderly mother is living in two-bedroom accommodation—a house rather than a bungalow—where she is effectively confined to the ground floor. Alas, the poor lady is incontinent and is finding it almost impossible to manage in that accommodation. She is applying to be rehoused, but we have very few alternatives to her present accommodation. Over time, we have not provided nationally for this kind of problem, which unfortunately will grow, as she has made clear.

The Minister, in reply, suggested that everything we have discussed today is already included in legislation covering different aspects of planning and development, but Clause 6 specifically concerns the content of development plan documents, and it seems sensible to bring together the various strands in one place. He is gilding the lily somewhat when he speaks as though everything is being done to secure proper guidance in relation to the matters raised in the amendments and our discussion, notably energy efficiency and climate change. To be fair, I am not sure whether it was the present Government or the coalition Government who reduced the standards. Whatever the standards are, they ought to be part of a development plan so that everybody can grasp what is required of such a plan, be they developers or those in the community anxious to see proper development in their area.

I do not want to sound unnecessarily critical of the Government in this matter, because they are moving broadly in the right direction, but I regret that we cannot have the whole picture reflected in what should be an important development in planning policy. However, in the circumstances, I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

--- Later in debate ---

[Lord Beecham]

I have some doubts and concerns about these provisions. How does Clause 7 relate to combined authorities? How does it fit with the devolution proposals if:

“The Secretary of State may direct two or more local planning authorities to prepare a joint development plan document”?


A number of areas are about to elect a mayor and become a combined authority. Within that combined authority, however, there will still be constituent local authorities. How does the provision in Clause 7(2) apply to those areas? Can the Secretary of State direct two or more of the authorities within that area to prepare a joint development plan document, when there is an elected mayor and a whole new structure is being created?

Clause 8, on the county councils’ default powers, states:

“Schedule 2 makes provision for the exercise of”,


those powers,

“in relation to development plan documents”.

That assumes a straightforward situation of a county and districts, but in at least one controversial area, I think I am correct in saying that a court case is proceeding about the proposals which affect some parts of Nottinghamshire County Council and the Sheffield-led new combined authority. That may not quite be its name but the Minister will understand what I am talking about: the mayoral authority that will encompass Sheffield and adjoining authorities, to which I think two Nottinghamshire districts wish to affiliate for some purposes. They will, however, remain part of the county council for other purposes—unless of course this is seen, as the noble Baroness implies, as a step towards a back-door reorganisation of local government. Some of us have concerns about that.

How would these default powers affect that area, assuming that the mayoral authority is created with these two district councils? I think I may have said Nottinghamshire, but Derbyshire is in fact involved in this, rather than Nottinghamshire. There may be a similar problem in Nottinghamshire. How would those arrangements be affected by the provisions of Clause 8? I quite understand that the Minister may not be able to answer that immediately but, if that is the case, he will no doubt write to me.

[Lord Shipley]

My Lords, I shall be very brief but want to ask the Minister four specific questions about Clause 8, which will help us when we come to Report. Clause 8 was a late addition to the Bill; it was not in the initial draft that went to the House of Commons. It would help if the Minister could explain why it was felt necessary to include it.

My first specific question is: can a county refuse to undertake the work and, in that case, what would happen? Secondly, can a county subcontract the work to somebody else, which would presumably include the use of consultants? Thirdly, if it does, how is local knowledge about the district in question going to be guaranteed in constructing the plan? Fourthly, with reference to Schedule 2, it looks to me as though a county can charge a district whatever it likes, so what action do the Government plan to ensure that cost recovery is reasonable?

--- Later in debate ---

[Lord Greaves]

My Lords, these amendments are broadly welcome—I think. The devil will be in what the regulations say, of course, but if they are not as benevolent as the Minister is suggesting, we will have a row then. Otherwise I think they are all right.

[Lord Beecham]

My Lords, I am grateful to the Minister for enlightening me, if not other members of the Committee, as to the otherwise completely incomprehensible terms of Amendments 21 and 22. Not having been given a crystal ball to look into, I could not really understand what they were about, but he has partially explained them, for which I am grateful.

However, on Amendment 23, we are again in the business of secondary legislation. I do not know whether the Government have yet consulted at all on the regulations and whether there is any chance of seeing any draft regulations before Report, but it would be interesting to know whether they had embarked on a consultation with the Local Government Association, for example, about the contents of any such regulations. Again, it looks like the Government imposing a particular way of proceeding on local government, possibly without any real exchange of views about how that might best be achieved. As we know, other Committees in your Lordships’ House have expressed great concern about the increasing reliance on secondary legislation that all too often emerges without any real evidence of effective consultation about what it should contain.

[Lord Bourne of Aberystwyth]

I thank noble Lords for their participation in this debate. I thank the noble Lord, Lord Greaves, for his almost wholesale welcome, and I hope to avoid the punch-up—

--- Later in debate ---

Moved by

[Lord Beecham]

24: After Clause 11, insert the following new Clause—
“Guidance on clustering of betting offices and pay day loan shops
(1) Before exercising his or her powers under section 41(1), the Secretary of State must issue guidance to local authorities on the granting of planning permission for change of use to betting offices and pay day loan shops.(2) This guidance must set out the manner in which policies in neighbourhood plans and local plans about the number, density and impact of betting offices and pay day loan shops are to be taken into account when determining applications for change of use, in a way which prevents a deleterious effect on the neighbourhood or local area.”

[Lord Beecham]

I am really disappointed: I thought we would have a long debate on the technical amendment replacing “and 10” with “10 and 11”, government Amendment 130, but perhaps we can defer that pleasure.

Some of your Lordships may recall the almost holy alliance that I entered into with the right reverend Prelate the Bishop of Southwark and—I cannot read my own writing, but two bishops—in connection with fixed-odds betting terminals and betting shops, and the damage they were inflicting on local communities. I referred to high levels of crime affecting local communities and involving a great deal of police manpower, exposure of staff to violence and the facts that a large proportion of commercial crime occurs in these premises, that they are generally aimed at relatively poor communities and that they are a social menace.

The object of this amendment is to require the Secretary of State to issue guidance to local authorities on planning permission having regard to concerns expressed nationally, not just in debate on the Policing and Crime Bill, when we discussed amendments and the Government assured us that consultation was taking place. Can the Minister tell us how that is progressing and, if it is making progress, whether the Government intend to use this Bill to provide measures in the planning system that might help to deal with what is a growing problem in many places?

A similar concern, although hopefully without any violence involved, relates to payday lenders. I seem to recall reading fairly recently in one newspaper that payday lenders had more than one outlet in an area and people go from one to another. The individual lender will have a limit, but someone can go to three, four or five of these places and take out loans. Obviously, they are usually people in high financial need and very vulnerable. There is potential to attack that problem, in part at least, through the planning system, which is what the amendment is intended to facilitate, without prescribing anything beyond the fact that guidance should be issued. We are not asking the Secretary of State to lay down and impose rigid rules, but to offer guidance to authorities, which I think are increasingly sensitive to this issue, especially, but not only, in more deprived areas. I hope that the Minister will undertake to see whether agreement can be reached or an alternative proposal made when we get to Report. I beg to move.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Beecham, for his amendment, and other noble Lords who participated in the debate, including the noble Lords, Lord Shipley and Lord Kennedy. The amendment reflects the importance of planning at the local level to address local issues. I was particularly interested to hear from the noble Lord, Lord Shipley, about the all-party parliamentary group covering betting, the experience of Newham and the local action that it has taken on fixed-odds betting terminals in betting shops.

It may be helpful, first, to remind noble Lords of the important planning changes we made in April 2015 specifically to allow local planning authorities to consider the merits of any application for such uses, and to provide the community with an opportunity to comment. Prior to April 2015, the use classes order grouped betting shops and payday loan shops with other financial or professional services in the A2 use class. This meant that any financial or professional service could change use to a betting shop or payday loan shop without a planning application. Now they would need such an application. Additionally, under permitted development rights, new betting shops or payday loan shops could be opened in any property used as a restaurant, café, pub or other drinking establishment, or hot food takeaway. These changes could be made without local authority consideration.

Responding to concerns raised at that time about the clustering of such uses on the high street, the Government made changes to the Town and Country Planning (Use Classes) Order. We took betting shops and payday loan shops out of Class A2 and made them sui generis, or a class of their own. This change was made precisely so that a planning application would be required for any additional such shop. This would allow for local consideration of any issues that might arise due to the change to such a use in that area. Local planning authorities, therefore, already have the ability to manage any additional clustering through their local plan policies. It is not for national government to set out how many betting shops or payday loan shops there should be, and where they should be.

Where a local planning authority is concerned about the clustering of such uses, it should ensure that it has an up-to-date plan with robust policies in place. We know, as has been demonstrated, that some local authorities are already putting in place detailed policies in respect of betting shops and payday loan shops that reflect their individual local circumstances, and setting out the position in respect of the numbers and location of those shops.

The National Planning Policy Framework provides local planning authorities with the policy framework to plan for a mix of uses, promoting the viability and vitality of their town centres. Such policies should be based on sound local evidence and tested at examination. Policies contained in the local planning authority’s development plan must be taken into account when determining any application for a new betting shop or payday loan shop, unless any material considerations indicate otherwise.

Noble Lords will be pleased to know that, as he committed to do in the other place, Gavin Barwell, the Minister for Housing and Planning, met yesterday with the Minister for Sport, Tourism and Heritage, who has responsibility for gambling. They were able to discuss the issues emerging from the review of gaming machines and social responsibility measures undertaken by the Department for Culture, Media and Sport. As noble Lords would expect, there was a positive discussion to consider how we can continue to work together effectively to take forward any proposals arising from the review, which I understand is likely to report later in the spring. I have not as yet had the opportunity to have a detailed discussion with my honourable friend in the other place. If there is any additional information, once again I will include it in the write-round. There is, therefore, an agenda that will continue to have our attention, recognising the concerns that are widely expressed, and of course this goes much wider than planning.

Although we consider that local planning authorities have the tools they need, we will continue to work closely with the Department for Culture, Media and Sport. However, it is not for national government to set out in guidance how many betting shops or payday loan shops there should be in an area. The tools are already with local authorities. These are local issues that should be dealt with through local planning policies. Therefore, I ask the noble Lord to withdraw his amendment.

[Lord Beecham]

I am slightly disappointed with the Minister’s reply. The Government are not slow to offer guidance about a range of issues when it suits them, but on this occasion they seem to be something of a shrinking violet. If the Government are concerned about this, I do not understand why they will not take the opportunity to push for change—which is all they would be doing—by offering guidance. They would not be instructing local authorities as to how many such shops there should be; they would be offering guidance in a way that guidance is offered across a range of issues.

If the Government are taking this problem seriously—I am prepared to concede that that may well be the case—I encourage the Minister, in consultation with his colleagues, to recognise that this Bill provides a way of highlighting the issue and advising and supporting local authorities in dealing with what is a growing social problem. Otherwise, ultimately we may have to resort to primary legislation, but goodness knows when that might be. This could make a contribution at an earlier stage, and, after all, I do not think that the Government would be entering into a hugely complicated issue if they were to accept the amendment. However, in today’s circumstances, I am prepared to beg leave to withdraw it but I may wish to return to this on Report.

[Lord Bourne of Aberystwyth]

I did not want to say that this was not an issue—that certainly was not my intention. I wanted to say that we have engaged with the Department for Culture, Media and Sport. I await a detailed discussion with my honourable friend as to how that meeting went, because I think that there are broader issues. If there are specific planning issues where I think we can make a difference, I shall be very keen to look at those, but I think that the tools are already there for local authorities and perhaps we need to get that message across. However, it is a specific subset of a planning class. They already have the powers and we certainly do not want this to be an imposition. I am not suggesting that the noble Lord was saying that; indeed, he was saying the opposite—that it was directing them.

I shall be very happy to report back further on how the discussions went, perhaps involving the noble Lord’s ally, although I have some doubts about the security of an alliance where you cannot remember the name of your ally.

[Lord Beecham]

If I had an ally at all, it would be the right reverend Prelate the Bishop of Bristol.

Amendment 24 withdrawn.

--- Later in debate ---

[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.

[Lord Beecham]

My Lords, I apologise to the noble Lord for missing the first part of his speech moving the amendment. Like other noble Lords, I strongly sympathise with the objectives but I am not sure that the amendment as drawn is viable. The noble Duke, the Duke of Somerset, has identified one or two issues with it, notably what is meant by “area”. We are not necessarily talking about a small area or even a city. There are now unitary authorities—for example, Durham and Northumberland in my part of the world—that are geographically large counties. For them, 50 homes is neither here nor there.

The objective that the noble Lord seeks to pursue is absolutely the right one, but the noble Baroness’s amendment is a better way of dealing with matters. She is looking amazed. I am always happy to congratulate the Liberal Democrats on getting something right; it usually happens in leap years, but not always. I think she has identified a better way of approaching the matter than the noble Lord, but what is important is that the noble Lord has raised the issue, which is something that has been in people’s minds for a long time.

I hope that this is an opportunity for the Minister to indicate what, if anything, the Government are considering doing to deal with what is something of a scandal. We apparently have something like 500,000 or 600,000 permissions not acted upon, at a time of huge shortage. The Government want to increase housing numbers, and there must be ways in which developers can be persuaded to get on with it or lose their permission. That could take a variety of forms, and the noble Baroness’s suggestion may more workable than the noble Lord’s. However, the main thing is that the Government should accept there is a problem and agree to do something about it in one form or another, in a way that will help to incentivise the implementation of planning permission and effectively remove the risk of permission being outstanding for long periods with nothing happening on the ground where it is most needed. I am looking forward to a sympathetic reply from the Minister on the issue, without his necessarily committing to either of the two projects.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in this part of the debate, and in particular the noble Baroness, Lady Pinnock, for so ably speaking to an amendment at short notice. I wish the noble Baroness, Lady Bakewell, well and I am sorry to hear about her indisposition. As the noble Lord, Lord Cameron, said at Second Reading and reiterated here today, there is one thing on which we are all agreed: the fact that we need more houses. I thank him very much for stressing that this was a probing amendment; I appreciate that point.

Before us are two amendments that take separate approaches to achieving essentially the same important objective of ensuring that once planning permission is granted, the development of the site should be taken forward as quickly as possible. That is absolutely right. Of course there may be circumstances that affect it, but I appreciate that it can be taken care of in legislation. This is what local authorities and the communities that they represent expect. I therefore thank noble Lords and the noble Baroness for putting forward the amendments in this group, which allows us to have an important discussion on the question of developers making good on their permissions.

Amendment 25, tabled by the noble Lord, Lord Cameron, would give local authorities the right to refuse to determine a planning application if a developer already had a live permission in that local authority’s area for 50 homes or more. The amendment targets an issue that the Government are determined to address: the gap between permissions granted and the number of new housing units that are completed. I agree with the noble Lord, Lord Beecham, that the amendment as drafted is not quite what is needed; to be fair the noble Lord, Lord Cameron, said so too. It is a question of degree—the number of 50, for example, and some of the definitions that would be needed.

We have already taken important steps to tackle delays in the delivery of housing development once planning permission is granted. For example, a key point of concern and delay for many developers is the time taken to comply with planning conditions that can be discharged at a later stage in development, something that this legislation of course seeks to address. Issues with infrastructure can also delay or prevent housing development going ahead. To help tackle this problem, we have already launched the £3 billion Home Building Fund and a separate £2.3 billion Housing Infrastructure Fund. The Home Building Fund will provide loans to small and medium-sized enterprise builders, custom builders and off-site construction, and will unlock large sites throughout England. The Housing Infrastructure Fund will provide investment funding to local authorities to help support the development of necessary site infrastructure, such as water, energy and internet, to deliver up to 100,000 new homes.

Neighbourhood Planning Bill

Lord Beecham Excerpts

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

[Lord True]

My noble friend makes a strong point but I do not agree with him, I fear. I am not going to repeat the points I made on the previous amendment. The problem with new subsection (5) is that it effectively gives a veto to the developer and therefore a power, which may or may not be a good thing.

However, my noble friend made a good point in relation to, for example, a play area. We all understand that the wonderful civil servants who work for my noble friend are trying to do a reductio ad absurdum of what might happen, so they find a council that has said, “Oh yes, the play area has to have one of those spring things instead of a see-saw”. We all know that that would be ridiculous. Maybe it has happened. But there are things on that list, as the noble Lord, Lord Shipley, said, that are actually quite important and germane. Anyone who has been on a planning committee trying to secure development in suburban or rural areas will know that lighting is one of the most fiercely contested things that local residents care about most. It is also one of the most difficult things to control.

No doubt some things on that list are silly. Perhaps my own authority is one of the bad authorities. We have occasionally have had a run-in with the people who want to put in boxes for broadband, not because we are against it but because they come and say, “We want to bang this box right in front of a grade 1 listed building”, instead of agreeing to put it a little further down the road, and they rush off and have dinner with the Chancellor and the Chancellor says, “This is ridiculous. We must have legislation”. This is the way the world works. We all know that.

Somewhere in the middle of all this is a sensible via media. Saying that you cannot develop until you put a Big Ears statue in would be completely ridiculous. But some of these other things are best dealt with at an early stage. Drainage is obviously a good one, as are sustainability and lighting. The problem with this goes back to my analogy right at the start—the old Dreadnought thing. Time and again, we poor local authorities face legislation in the dock—always local authorities, never the statutory undertakings, never the builders with the land banks. Only the local authority is to blame because the local authority is perhaps trying to reflect some of the opinions of its local people by whom it is elected. We are always put in the dock and the Dreadnought is brought out to deal with the silly local authority which says, “I must have a Big Ears statue before I give any permission to 150 homes”. Of course the Government want to deal with that.

I have an open mind on this clause, as I said, although I hear what my noble friend Lady Cumberlege has said and I do care about neighbourhood planning. Surely there must be a way through that is not just nationalising this massive power to deliver for the exceptions that are causing problems. Surely it must be possible between now and Report, with the spirit that my noble friend the Minister has displayed, to find a way to give the Government a power to deal with the authority that wants Big Ears before there can be a development, without actually taking away the ability of local authorities and neighbourhoods to protect what they think is important and have development with consent. That is all I ask for. If Clause 12 can find a way to do that, let us look at it. At the moment, it does need amendment. We will see what happens between now and Report.

[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.

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[Lord Beecham]

My Lords, I entirely sympathise with the objectives of the noble Baroness. However, I found the amendments as drafted not workable. Subsection (3) of the new clause proposed by Amendment 49 calls for a liability for a “significant additional charge” but it does not give any method of calculating that or saying how it might be achieved. On Report, an amendment inviting the Government to create such a structure subject to secondary legislation that in this case would probably be acceptable might be a way forward. In terms of subsection (4), I should have thought that if there is a retrospective planning application, it would have to be made public and subject to consultation in the ordinary ways. This subsection may be unnecessary. If subsection (3) were changed to convey a power to regulate for such a retrospective permission, that would be a way forward. Perhaps the Minister already has that in mind. The objective is right but we have yet to find quite the right wording.

[Lord Bourne of Aberystwyth]

My Lords, I thank my noble friend Lady Gardner of Parkes, who speaks with great authority on these areas and here with personal experience. I also thank the noble Lord, Lord Beecham, for his contribution. How we deal with unauthorised development is an important issue that concerns many people. The Government are clear that unauthorised development is unacceptable and unfair to the vast majority of people who abide by the rules. However, the retrospective planning application process is there primarily to give those who have made a genuine mistake the opportunity to rectify the situation. There are, of course, such people. It also gives local planning authorities the flexibility to invite a retrospective application where they consider that it is the appropriate course of action.

It is important to note that retrospective planning applications must be determined in exactly the same way as any other application, that is, in accordance with the development plan unless material considerations indicate otherwise. The noble Lord, Lord Beecham is therefore right in relation to subsection (4) of the new clause proposed by Amendment 49. That for which it provides would be the case anyway.

There is no guarantee that planning permission will be granted just because the development already exists. The noble Baroness cited the haystack example and there are many more in which houses have been built that occasionally people find quite acceptable, but which because they did not have planning permission and because of what planning policy indicated, have had to be demolished. Therefore, those who undertake unauthorised development put their development, their investment and perhaps their professional reputation at risk. The sale of properties built or adapted without the necessary permissions may also present considerable difficulties.

Local planning authorities can impose planning conditions on the retrospective grant of planning permission to mitigate the impact of the development. Where unauthorised development proves to be unacceptable, local planning authorities have at their disposal a wide range of enforcement powers with strong penalties for non-compliance. I note that where an enforcement notice is served, as does happen on occasion, and the person appeals on the ground that planning permission ought to be granted, they are deemed to have made an application for planning permission and must pay a fee. That fee is twice the fee that would have been payable in respect of a planning application to the relevant authority seeking permission for the matters stated in the enforcement notice as constituting a breach of planning control. I appreciate that that is only where an enforcement notice is served, but in that situation there is already a double charge. This recognises the additional work involved for the planning department in dealing with both an appeal and an application.

The effect of my noble friend’s amendment would be to make retrospective planning applications compulsory for all breaches of planning control under the Town and Country Planning Act 1990. This would be difficult to enforce and could lead to unnecessary delays where a local planning authority is clear that such an application would be refused and enforcement action taken. Clearly it would be not be helpful to delay effective enforcement action by local planning authorities where it is evident that the unauthorised development is totally unacceptable. That could well be the case in some situations.

My noble friend’s amendment would also introduce a penalty fee in addition to charges in respect of the costs over and above the double charge I have referred to which is incurred by the local planning authority in carrying out its functions connected with a retrospective planning application. This would unfairly penalise those who have made a genuine error and discourage the submission of such an application for proper consideration by the local planning authority. It is a matter which I know previous Governments have considered and to some extent grappled with, but in the interests of fairness have not decided to take forward. I appreciate that this is an important issue and I thank my noble friend for airing it and giving the Government some time to consider it, but for the reasons I have outlined, I would ask her respectfully to withdraw the amendment on this occasion.

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[Lord Beecham]

My Lords, we on this side support the amendment. It is particularly welcome that there is a proper reference to obtaining affirmative approval for any regulations that are required. It is important to address the issue of land that is difficult to develop. My noble friend has just reminded me of the very successful redevelopment at Greenwich, which was a pretty bleak landscape. It required significant investment but it has paid off very well. We certainly need to encourage development there. It does not necessarily have to be private building development for sale. Local authorities and social housing can also be very involved in the process. Indeed, we want to see mixed communities of that kind, but this is not inconsistent with the amendments.

We need to facilitate development here, partly, as has been said, to avoid putting undue pressure on green space—whether it is green belt or not—but also because if they are not developed these sites bring down the quality of life in the surrounding community, of whatever nature that might be. So there is a triple benefit: first, for those moving into the accommodation; secondly, for the surrounding community; and, thirdly, because you are not building on areas that ought to be left as open space for the enjoyment of the community as a whole. We are very supportive of the amendment.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in this debate on Amendments 49A and 49B, particularly the noble Baronesses, Lady Bakewell and Lady Pinnock. The amendments cover two important areas.

On the new clause inserted by Amendment 49A, I agree with the noble Baroness that there should be transparency around land assets held by public bodies. Public bodies must be accountable for the assets they hold, and where land assets are no longer required to support the functions of the body, they should be released so that they can be put to good use, including the provision of much-needed new homes. I can reassure noble Lords that the proposed new clause is not required. A great deal of work is already under way to ensure that this transparency exists, and it may help the Committee if I briefly outline the measures that are either in place or being put in place.

First, information on government land assets is already made available through the Cabinet Office electronic property information mapping service, e-PIMS—that trips off the tongue. This feeds the Government Property Finder website, where anyone can search to obtain a list of government land assets locally, regionally and nationally. Where land is made surplus for development, the e-PIMS system also makes this clear.

Secondly, for land owned by local authorities, the Local Government Transparency Code 2015 requires local authorities subject to that code to publish, on an annual basis, details of all land and building assets, including undeveloped land. In 2016 we consulted on updating the transparency code. We proposed that in addition to the existing data on land and property assets published by local authorities, they should also publish, on e-PIMS, the extent of the land in hectares for each piece of land; whether that land is surplus to requirements; whether there are current or future plans to release the land for housing development; if there are plans to release the land for housing development, what the current planning status is; if there are plans to release the land for housing development, how many homes can be accommodated, and, for properties of 10,000 square feet or larger, the floor area of that property, the number of floors and the number of car parking spaces it has. We are carefully considering the responses we received and will be responding to the consultation in due course.

Thirdly, nearly three-quarters of local authorities in England are now part of the Cabinet Office and Local Government Association’s One Public Estate programme. This is expected to grow to 95% in 2018. The One Public Estate programme brings together public bodies across a local area seeking to unlock the value in land and property assets for better local services, efficiencies and local growth. In doing so, land that is made surplus can then be released. A condition of membership of the One Public Estate programme is that local authorities and their public sector partners must upload their land asset data to the e-PIMS system. Work is already under way to bring central and local land data together in the e-PIMS system. This will make land asset data across the public sector readily available to anyone in a single place, rather than having registers held by individual authorities. I hope that this reassures noble Lords that the Government are committed to ensuring transparency in the use of land assets and appropriate release across the public sector, and that they have a clear plan to make that happen.

Amendment 49B, in relation to brownfield land, is in the name of the noble Baroness, Lady Pinnock, and was spoken to by my noble friend Lady Cumberlege and the noble Lord, Lord Beecham. He cited the example of Greenwich. A development corporation is involved across the river as well—I am sure that the London Borough of Lewisham will have something to say on that, but I will move swiftly on.

I think we all agree that previously developed land, more commonly known as brownfield land, has an important role to play in delivering much-needed new homes. The Government remain committed to ensuring that 90% of suitable brownfield sites have planning permission for housing by 2020. That is our stated policy, but I appreciate that the noble Baroness is looking for more concrete action, and I will be moving on to that.

The Government already have a strong policy framework in place to encourage the reuse of brownfield land. We are also developing further policy measures in regulations, which will help unlock housing being built on suitable brownfield sites and maximise the number of dwellings built on brownfield land. It is an appropriate mechanism, as noble Lords have mentioned, in order not to have to build on the green belt, which of course we do not want to do and is not anticipated. That is why building on brownfield land is so important.

Paragraph 111 of the National Planning Policy Framework asks local authorities to encourage the reuse of brownfield land if it is not of “high environmental value”, and planning guidance reinforces the expectation that local plan policies should reflect the desirability of reusing brownfield land. Furthermore, in December 2015 our consultation on national planning policy sought views on proposals to create a presumption that brownfield land is used unless there are clear reasons why not. This consultation also set out proposals to make more efficient use of land by encouraging higher densities around commuter hubs and to encourage more starter home-led development on brownfield land. We intend to set out our response to these proposals in the imminent housing White Paper.

Our proposed changes to planning policy sit alongside other proposals to bring brownfield land back into use. The list is not exhaustive. We intend to bring regulations into force this spring requiring local planning authorities to publish and maintain brownfield registers, which was part of the Housing and Planning Act 2016. I hasten to say that I do not have personal and direct experience of the legislation, but I believe that that happened through the Act. These regulations will also enable local authorities to grant permission in principle to suitable sites on their registers. We are also committed to widening permitted development to help give new life to thousands of underused buildings, as well as accelerating the disposal of surplus public sector brownfield land for new homes.

I fully recognise that some brownfield sites have more constraints than others, and that will probably be particularly the case where land values are not so high. Greenwich had its challenges but of course the land values were greater there. Some sites may also require additional costs to bring them back into acceptable use. A number of financial measures are in place to bring such sites back into use; for example, £0.4 million has been made available to local authorities during 2016-17 to help with the costs of dealing with urgent remediation cases and, if possible, ongoing remediation projects. We have created a £3 billion home building fund to provide loans for small and medium-sized building firms, custom builders and offsite construction. Some £2 billion of that fund will be long-term funding available to developers to deliver infrastructure to support a strong future pipeline of housing supply and will help unlock between 160,000 and 200,000 homes.

We expect at least half of this £2 billion to be used to support brownfield sites, including land remediation. I am very happy if the noble Baroness wants to engage further with officials on that particular point.

Furthermore, where brownfield sites suffer from contamination, land remediation relief, offered by Her Majesty’s Revenue & Customs for remediating contaminated land, provides relief from corporation tax, comprising a deduction of 100%, plus an additional generous deduction of 50%, for qualifying expenditure incurred by companies in cleaning up land acquired from a third party in a contaminated state. That is also significant. However, we must remember that not all brownfield land is suitable for housing development, and not all our housing needs will be met by building on brownfield land alone. As I have indicated, the Government have a clear plan and vision, but I am very happy to make officials available to explain the detail should noble Lords require more information.

To conclude, the Government are already taking action to support development on brownfield land. I assure the noble Baroness, Lady Pinnock, and other noble Lords that the Government will continue to seek prioritisation of brownfield land for development. That is central to what the Government are seeking to do in relation to housing. Without giving too much away about the housing White Paper, this aim will be reflected in that. I hope noble Lords will forgive the somewhat lengthy explanations I have given in relation to these two amendments, but they are both important. I hope that, with the assurances I have given, the noble Baroness will feel able to withdraw her amendment.

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Moved by

[Lord Beecham]

56: After Clause 13, insert the following new Clause—
“Review of sustainable drainage
Before exercising his or her powers under section 41(1), the Secretary of State must carry out a review of the impact on communities’ resilience to flooding of planning legislation, government planning policy and local planning policies concerning sustainable drainage in relation to the development of land in England.”

[Lord Beecham]

My Lords, I will speak to Amendment 56. Some Members of the Committee may recall my account of the surreal experience I enjoyed some 13 or 14 years ago when I was telephoned at home on a Saturday morning by my noble friend Lord Prescott, at that point Secretary of State for the Environment, as York was being submerged by flood waters. He inquired of me as to where sandbags may be obtained for the purpose of dealing with this—surrounded as he was by the cream of the Civil Service, who apparently did not know. That is an extreme example of the then Government’s lack of foresight—I expect it has not entirely gone away—in dealing with what is a growing problem in the context of climate change, about which we have already heard a little this evening. It is imperative that there is a thorough review, not only of planning new development but, in my submission, of the condition of already developed land. Even now, for example, we are finding front gardens paved over in a way that simply contributes to the problem of excess water and, ultimately, places undue pressure on the drainage system in established areas, as well as making it more difficult to develop new homes in particular.

This is not a particularly radical amendment—far from it. It asks only for a proper review by the Secretary of State. I imagine that the Government might not be unsympathetic to that. It is not a matter, I suspect, that we will necessarily want to place in legislation. Of course, it may be one of the little revelations to emerge from the forthcoming White Paper—perhaps the Minister cannot tell me but we will find out in a day or two. If it is not, it should be. If it is not, there is even more purpose in raising the matter this evening. I suspect that the Minister will be sympathetic to this because it is a growing problem in many parts of the country. Alas, even now, insufficient money is being devoted to dealing with flood prevention generally, as well as the more detailed local applications of dealing with the issue in existing properties and developments. In the light of that and looking forward to a warm response to the Minister, I beg to move.

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[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Beecham, for moving Amendment 56, and the noble Baroness, Lady Parminter, for her contribution. I am afraid I will probably have to let the noble Lord down on this occasion. I am not convinced of the need for this.

First, as has been noted, Section 171 of the Housing and Planning Act 2016 includes a requirement for the Secretary of State to,

“carry out a review of planning legislation, government planning policy and local planning policies concerning sustainable drainage in relation to the development of land in England”.

My department had already commenced work on the review prior to this section of the Housing and Planning Act coming into force by order on 1 October last year. The objective of that review is to examine the extent to which planning policy has been successful in encouraging the take-up of such drainage systems in new developments. My officials are working closely with colleagues at the Department for Environment, Food and Rural Affairs and the Environment Agency to gather evidence to inform the review. The first stage of the review—to survey local plan policies related to sustainable drainage systems—has been completed. We are now working towards the next stage of the review—to collect evidence on how sustainable drainage systems are deployed in practice.

Stakeholder involvement is a critical element throughout the review. We have been engaging with a broad range of stakeholders through two dedicated groups set up specifically to support the review. The first is a high-level project steering group comprising members of the DCLG, Defra and the Environment Agency, the Climate Change Committee, the Adaptation Sub-Committee’s secretariat, the Association of Directors of Environment, Economy, Planning and Transport, and the Local Authority SuDS Officer Organisation. A second-tier engagement group, comprising key SUDS-related stakeholders, will function largely as a sounding board of expert advice to be drawn on as the review progresses. This comprises members from organisations including the Institution of Civil Engineers; Water UK; the Wildfowl and Wetlands Trust and the Chartered Institution of Water and Environmental Management. Membership comprises representatives from local planning authorities, professional and statutory bodies, environmental non-governmental organisations, house- builders and other agencies.

We remain committed to working constructively with the Adaptation Sub-Committee of the Committee on Climate Change—an independent, statutory body established under the Climate Change Act 2008—so that the review informs their progress update on the national adaptation plan, due in the summer of 2017. Whenever I hear the mention of sandbags I always think of the organisation which the noble Baroness, Lady Worthington, led so well. She did considerable work on climate change through that particular organisation.

In addition to this review, the National Flood Resilience Review, published in September last year, assessed the resilience of key local infrastructure, such as energy, water, transport and communications, and identified ways to protect it better. The flood resilience review includes an action plan that the water, telecoms and electricity utilities will develop and implement, with long-term plans—where not in place already—for improving permanently the resilience of service provision to significant local communities from the flooding defined by the Environment Agency’s extreme flood outlines. Both of these reviews, when considered together, address the role of planning relating to sustainable drainage and the resilience of local infrastructure in response to a flood incident.

It is in that context that a requirement for a third review is unlikely to add anything new. I am happy to discuss this further with the noble Lord, but I do think it is unnecessary and I respectfully ask him to withdraw this amendment.

[Lord Beecham]

I will withdraw the amendment, but I would like to ask for a little clarification. Is the review concerned with new or existing development? Drainage issues are something many of us can see in our neighbourhoods. Front gardens are concreted over for car parking purposes and other things, with adverse consequences for drainage. Is that sort of issue part of the review which the Government are conducting?

[Lord Bourne of Aberystwyth]

My Lords, I think the noble Lord is asking about the first of the reviews—either the one on the Housing and Planning Act 2016 or the National Flood Resilience Review. In any event, I think the former of those—in connection with sustainable drainage—will certainly encompass that. I will double check that and be in touch with the noble Lord on that point. The second of the reviews is already complete. It was published in September last year, but I will ensure that he gets a link on that particular review if it is helpful.

[Lord Beecham]

I am grateful. I beg leave to withdraw the amendment.

Amendment 56 withdrawn.

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[Baroness Parminter]

My Lords, we clearly need new homes but we need to future-proof them. With homes accounting for nearly a quarter of our total greenhouse emissions in the UK, we need new homes to contribute cost-effectively to meeting our greenhouse gas targets, but also to lower fuel bills for home owners and avoid the costs of retrofitting. That would also enhance quality of life. All the evidence is that the frail and elderly, and indeed young children, face significant hardships and challenges from insufficiently heated homes. The Minister knows the strength of feeling on this matter from across the Chamber during the passage of the Housing and Planning Act. This is therefore a probing amendment to ask what the Government are doing on this extremely important matter in advance of the review that was alluded to at the time of the Housing and Planning Act. Given the time, I am not going to revisit the arguments that we went through on the Housing and Planning Act. However, since then there have been a number of places—Oxford, Cambridge, Wales and Scotland—where homes have been built and large developments put up showing where zero-carbon homes can be delivered at scale.

I have three questions for the Minister. First, following the Housing and Planning Act, what are the Government’s plans to meet our carbon emission reduction targets if they do not introduce zero-carbon homes? We have seen no indication in the industrial strategy or in any other government plans of how the Government intend to meet their carbon emission reduction targets if we do not deliver the savings on new buildings, which, as the Minister knows, the climate change committee says are absolutely fundamental.

Secondly, can the Minister confirm that the Government will not prevent local councils requiring higher building standards? There is some lack of clarity about whether local authorities can carry on insisting in their local plans on higher standards. Prior to the withdrawal of the zero-carbon homes standards, places such as Brighton required in their local plans higher building standards. Will the Government confirm that they will not prevent local authorities including a requirement for higher building standards?

Thirdly, and again another standing cycle, the cost optimality review of building regulations is imminent—I believe it will be completed some time in the summer. Will the Minister say a few words about that? When will it be forthcoming? In particular, will there be public engagement and a public call for evidence so that all interested parties can play their full part in making sure that we move forward?

Higher regulatory standards in this area should not be considered as burdensome red tape but as an essential requirement to reduce both energy poverty and the threat of catastrophic climate change. There should be no exemptions. The big volume housebuilders have the scale and resources to take it forward and the smaller housebuilders are fleet of foot and able to cope. Unless we do something soon on housebuilding requirements, this Government are not going to be able to live up to the commitments that they so proudly and rightly trumpeted following their achievements at Paris last year. I beg to move.

[Lord Beecham]

My Lords, we support the amendment of the noble Baroness. It is regrettable that having started off by beginning to tackle this issue, the coalition Government, it must be said, reduced the carbon standard requirements instead of building on what was a sensible approach. I hope that the Government—

[Baroness Parminter]

Just to confirm, it was the Chancellor of the Exchequer, George Osborne, who, after we had moved out of coalition with our partners, withdrew the zero-carbon home standards.

[Lord Beecham]

I am happy to accept that plea from the noble Baroness and put the entire blame on the Government. In all fairness, it is usually the case. Of course, George Osborne is now history and perhaps some of his policy decisions can be reviewed—I certainly hope so in this particular context. It is outrageous that we lag so far behind most European countries on environmental provision and space standards for properties. I hope that the White Paper—tomorrow or whenever it comes—is going to address those issues. If it does not then they will certainly be raised when we eventually come to discuss the White Paper. I am happy to support the amendment.

Neighbourhood Planning Bill

Lord Beecham Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Grand Committee

I urge the Committee and the Minister not to think in terms of David and Goliath. I share the wish to keep pubs open, but to do that, they have to thrive, and for that to happen, people have to use them. Nothing in these amendments is going to make anybody use a pub. An ACV is a perfectly good and satisfactory means for communities to look after themselves, but all another link in the chain and another restriction will do will be to scare off capital and people wishing to invest in the sector. I hope my noble friend will resist these amendments.

[Lord Beecham (Lab)]

My Lords, I declare my local government interests and should also, having regard to what the noble Lord has just said, express an interest in Leicester City, which is my second team after Newcastle United, although it is not doing too well at the moment.

Noble Lords might be surprised to learn that I cannot pretend to be a great frequenter of pubs, but the noble Lord, in his remarks, overlooked one important aspect, which is that increasingly public houses are not just places to drink. For example, I suspect a lot of people in Leicester, Derby and elsewhere tonight will be watching the football match to which he referred on the television in the pub, in company. More particularly, pubs are now very much part of the hospitality industry. Gastropubs are common, and I can cite many examples in the north-east of where all the pubs, both in rural villages and in towns, provide very good eating. It is a relatively new thing, but very much part of the social life of the area and of the appeal to visitors in so many places, and I do not think the noble Lord has really taken that into account. I certainly support the amendment moved by my noble friend.

[Lord Scriven (LD)]

My Lords, I also support the amendments in the names of the noble Lord, Lord Kennedy of Southwark, and my noble friend Lord Shipley. I declare my interest in the register as a member of Sheffield City Council.

I listened particularly to the comments of the noble Lord, Lord Hodgson of Astley Abbotts. I think he needs to understand that nobody is talking about trying to make it more difficult or easier for pubs to stay open. This is about a sense of fairness in the planning process. A pub, like any other commercial organisation, before it decides to change use for whatever reason, whether it is failing, or as my noble friend Lord Tope said, to make a profit from land, has to go through the planning process and the community has a say. The decision will be made on planning criteria about whether it is right to convert and change the use of a pub.

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[Lord Shipley]

I shall speak also to Amendments 68, 72 and 73. This group is the first of several about the procedures to be followed by an authority taking temporary possession of land. Current legislation permits only permanent compulsory purchase. As an example of what I think the Government are intending, we could take the building of a bridge. There may be a permanent compulsory purchase order for the bridge itself with a temporary compulsory purchase order for the building compound to store equipment and materials for the period of the building works.

This group of amendments relates to Clause 14. Other groups will follow which address further issues around temporary possession. For the avoidance of doubt, I state that all the amendments in my name are probing amendments to help to improve and clarify the meaning of the Bill. I thank the Compulsory Purchase Association for its advice on what I shall say on this group and on later groups.

Clause 14 sets out the power for acquiring authorities to take temporary possession of land if they could otherwise be authorised to acquire interest in that land permanently, but it could also be an opportunity to codify various statutory instruments authorising temporary possession, and it may prove beneficial for powers of temporary possession—for example, for post-construction inspection and correction of minor defects—to be incorporated. Can the Minister confirm whether codification that would provide a single process for temporary possession might be introduced? Amendment 65 substitutes a new subsection which makes it clear that a single code is envisaged.

There are several government amendments in this group, but at present I think that the wording of the four amendments in my name in this group is more suited to the ambition of the proposed change. Amendment 68 contains words which may not be needed, and I would appreciate the Minister’s guidance on that. Amendment 72 clarifies and emphasises that temporary possession of land need not be taken compulsorily but can be by agreement. Perhaps that needs to be emphasised. Amendment 73 explains the rights and responsibilities of an acquiring authority and proposed paragraph (c) protects the rights of tenants, particularly where a tenant maintains an intention to resume occupation when the acquiring authority ceases temporary possession. I am very happy to listen to the Minister’s response and to look at this again when the government amendments have been incorporated in the Bill, and so I am happy to wait for Report before speaking further on this group. I beg to move.

[Lord Beecham]

My Lords, I shall speak to Amendments 69 and 75. They are pretty much self-explanatory. The former simply requires that guidance should be provided when there are temporary rights that can be granted at the same time over the same piece of land. Amendment 75 is rather more important because it provides that the section should not come into force until guidance has been published in relation to it. I assume that is the Government’s intention, and I hope they will accept that amendment.

[Lord Young of Cookham (Con)]

My Lords, the co-pilot is back in charge. I thank the noble Lords, Lord Shipley and Lord Beecham, for tabling their amendments to Clause 14. The noble Lord, Lord Shipley, made it clear that his amendment was probing. Before I move on to discuss these and the government amendments to this clause, it may be helpful if I begin with a brief description of Clauses 14 to 26, which introduce the new temporary possession power.

All acquiring authorities may need to enter and use land for a temporary period. For example, they may require land to store materials for a scheme or to provide access to a construction site, as the noble Lord, Lord Shipley, explained. The problem is that, currently, only certain acquiring authorities have temporary possession powers—for example, under special Acts which are needed for very large schemes such as the Crossrail Act 2008. Crucially, compulsory purchase orders cannot authorise temporary possession. There is no good reason for this difference, and it is unfair to those who do not have the powers. Clauses 14 to 26 seek to create a level playing field by giving all acquiring authorities the same power to take temporary possession of land. It may also be in the interests of those on the receiving end of a CPO to have the possibility of being deprived of their land temporarily rather than permanently.

In giving acquiring authorities this power, we shall ensure that those whose land is taken are fairly compensated and that there are appropriate safeguards in place to protect their interests. That is set out in Clause 19. For example, temporary possession will have to be authorised in the same way as compulsory acquisition. Also, in certain circumstances, owners and occupiers will be able to require the acquiring authority to acquire the land permanently instead of occupying it on a temporary basis, if that is what they want.

Government Amendments 66, 67, 70, 71, 74 with Amendments 105 and 106 and amendments to other clauses, which I shall deal with later, remove the requirement for the temporary possession to be linked directly to a scheme for the acquisition of other land either by compulsion or agreement. Decoupling is the word that the professionals have been using. The reason for this change is that there may be situations where an acquiring authority needs to take only temporary possession of land. For example, an acquiring authority may need temporary possession of land for a contractor’s compound when they have been able to buy all the land needed for their scheme by agreement, or they may need access to land temporarily to maintain a highway. That is the impact of some of our amendments.

Government Amendments 105 and 106 are consequential on Amendment 66; they simply remove definitions of terms that are no longer required. Non-government Amendments 65, 68 and 72, which were tabled by the noble Lord, Lord Shipley, also seek to remove the requirement for the temporary possession to be directly linked to a compulsory acquisition scheme. I hope, therefore, that he will agree they are unnecessary in the light of the Government’s amendments.

On Amendment 69, tabled by the noble Lords, Lord Beecham and Lord Kennedy, I agree with the noble Lord that we need to ensure that the interests of leaseholders are adequately protected in introducing this new power. However, I believe that that amendment is not needed, because we have already built in a safeguard which would deliver the same outcome that is requested, but in a more flexible way.

Amendment 69 would restrict the temporary possession power so that it could never be used when a leasehold interest would have less than a year to run after the land was handed back, even if that was the preference of the leaseholder, the freeholder and the acquiring authority. It sounds counterintuitive to prohibit that. The effect of this amendment would be that, if the land was essential to the delivery of the scheme, the acquiring authority would instead be driven to exercising the more draconian power of compulsory acquisition of the land permanently. However, as I have said, we have already built in a safeguard for leaseholders, which I believe will achieve the outcome that noble Lords are seeking. The safeguard is in Clause 17(3), which allows leaseholders to serve a counternotice preventing the acquiring authority taking temporary possession of the land. On receipt of the counternotice, if the land is essential to the delivery of the scheme, the acquiring authority can proceed as if the land were subject to compulsory acquisition and take the land permanently. In these circumstances, the leaseholder would, of course, be compensated for both the value of his lease and losses caused by reason of being disturbed from possession of the land taken. I believe this is a neater solution, which gives leaseholders the flexibility to decide what is right for them.

Amendment 73, tabled by the noble Lord, Lord Shipley, seeks to clarify what will happen when a tenant’s land is subject to compulsory purchase. As government Amendment 103 seeks to do the same thing—although our approach is different—I will speak to both amendments together. Government Amendment 103 provides that the terms and obligations under the tenancy, with the exception of the payment of rent and the length of the tenancy, will be disapplied to the extent that the temporary possession prevents reasonable compliance with them. Any expenditure which a leaseholder incurs as a result of the temporary possession would be claimed back from the acquiring authority. The noble Lord’s amendment, in contrast, provides that all the terms and obligations are unenforceable for the period of temporary possession.

The reason we have disapplied the terms and obligations only to the extent that the temporary possession prevents reasonable compliance with them is that there may be circumstances in which only a small part of land subject to a lease is also subject to temporary possession. In these situations, there may be no easy way in which to separate out the terms that relate to the land subject to temporary possession from terms that relate to the remainder of the land.

The second point of difference is the exclusion of the payment of rent and the length of the tenancy. We have done this because, again, where only a small part of a tenant’s land is required, making these terms unenforceable could result in a tenant having to pay an uncertain portion of the rent for the land not subject to temporary possession. The loss that would be compensated is not the rent payable for the existing lease, but any rent payable for alternative premises, as that is the loss that has been caused. Under the Government’s amendment, responsibility for paying the rent for the land under temporary possession remains with the tenant. However, the tenant will be entitled to claim compensation from the acquiring authority in relation to any expenditure which a leaseholder reasonably incurs as a result of the temporary possession.

The other point of difference with the noble Lord’s amendment is to do with proposed subsections (4) to (6), which make provision with regards to those who have protected tenancies under the Landlord and Tenant Act 1954. Occupiers with such a protected tenancy have a right to apply for the grant of a new tenancy, provided they remain in occupation. However, if their land is subject to temporary possession they will no longer be in occupation and will lose this right. Government Amendment 103 and non-government Amendment 73 both seek to preserve this right to renew the tenancy. However, in doing so, the government amendment imposes a requirement for the tenant to confirm in writing to both the landlord and the acquiring authority that they intend to resume occupation after temporary possession. I think it is clear that both amendments are after the same thing: greater clarity for tenants and landlords as to what happens during the temporary possession period, including the treatment of rent.

Finally, in this group, I will respond to Amendment 75, tabled by the noble Lord, Lord Beecham. The noble Lord made a very valid point, which I entirely agree with, that where the Government intend to provide guidance on the use of a new power, that guidance should be available by the time the provisions come into force. That is, of course, the Government’s intention. The particular element of the temporary possession provisions that the noble Lord has identified is in Clause 15(3)(a), which will allow both temporary possession and compulsory acquisition powers to be obtained concurrently for the same piece of land.

Although this so-called doubling-up of temporary and permanent powers can be authorised, it will not give acquiring authorities carte blanche to double up in all cases. It would not be fair to claimants if there was not a very good reason for an acquiring authority to make an order which included this doubling-up. It would not be wise to anticipate precisely what might be in the guidance at this point, but as I have just said, there would be a high bar to justify doubling-up. The most likely circumstances would be linear transport projects where the final design is not complete by the time compulsory powers are obtained. We know of a handful of orders in the last dozen years where this has been authorised, such as the Docklands Light Railway and the Nottingham tramway.

As for compulsory acquisitions, each case would be considered on its individual merits at a public inquiry before an inspector, and considered by the relevant Secretary of State, before a decision was made whether doubling-up was justified in the public interest.

I hope that I have been able to reassure the noble Lord, Lord Beecham, with a firm undertaking that the Government will be seeking views on the draft guidance and will publish it before these provisions come into force. I apologise to the Committee for a somewhat lengthy oration on these amendments, but there are quite a few of them. When the time comes, I will move government Amendments 66, 67, 70, 71, 74, 103, 105 and 106. In the meantime, I ask the noble Lord to withdraw Amendment 65 and for noble Lords not to press Amendments 68, 69, 72, 73 and 75.

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Tabled by

[Lord Beecham]

75: Clause 14, page 13, line 31, at end insert—
“( ) This section may not come into force until the Secretary of State has consulted on and published guidance in relation to section 15(3)(a).”

[Lord Beecham]

My Lords, I am grateful for the Minister’s assurance. In those circumstances, I will not move the amendment.

Amendment 75 not moved.

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Finally, I do not think that Amendment 90, regarding a limit of three years rather than six, was spoken to. I assume that the matter does not unduly disturb noble Lords, so I will not read out my copious briefing on it.

[Lord Beecham]

I would not say that I was unduly disturbed, but I would be grateful if the Minister would comment on it.

[Lord Young of Cookham]

I am sorry for doing a disservice to the noble Lord.

Amendment 90, tabled by the noble Lords, Lord Beecham and Lord Kennedy, seeks to limit the period of temporary possession of land not occupied by dwellings to three years rather than the six years proposed in Clause 17(2). It is a matter of judgment whether one draws the line at three, six or nine years. The limit of six years is designed to give those affected greater certainty on the total period that non-dwelling land can be subject to temporary possession. Restricting the period to three years, as suggested, would limit the usefulness of this new power, as the lower the upper limit, the more likely it is that an acquiring authority would, on a cautionary basis, decide to take the more draconian and unnecessary route of compulsory, permanent land acquisition instead.

As I said, there needs to be a balance between giving acquiring authorities the power they need to deliver their schemes and ensuring that the interests of those whose land is taken are protected. We consider that an upper limit of six years strikes the right balance. It is an upper limit and, of course, in many cases temporary possession will be for far less time and the issue will not arise. Where possession will need to be for infinitely longer, acquiring authorities might go for compulsory acquisition in the first instance. I assure noble Lords that we can and will keep this under review as the new power begins to take effect. The regulation-making power in Clause 24 will allow the Government to make changes if required. With those assurances and explanations—and with apologies for trying to take a short cut—I ask the noble Lord to withdraw his amendment.

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[Lord Shipley]

My Lords, in moving Amendment 95, I will also speak to Amendments 96, 97 and 102. Clause 19 makes provision in respect of the payment of compensation to those who suffer loss or injury as a result of the exercise of powers of temporary possession, but there are concerns about a number of subsections in the clause. Amendment 95 addresses Clause 19(2), which provides a person—the “claimant”—with an entitlement to compensation in respect of,

“any loss or injury the claimant sustains as a result”.

I have two points here. First, would it not be better to replace “injury” with “damage”? Is there a legal reason why the word injury is used? Damage is of course more wide-ranging. Secondly, should the subsection be redrafted to make it clear that the loss or damage—or perhaps injury—must have been sustained as a result of the temporary possession of the land? The amendment would bring the drafting into line with the usual form adopted in clauses relating to compensation for the temporary possession of land, which typically state that the loss, injury or damage must have resulted from the exercise of the powers—I refer in particular to the Crossrail Act 2008. In addition, are those subsections still needed, given that other amendments are being proposed?

Amendment 97 refers to Clause 19(7), which is intended to clarify that, for the purposes of the statutory limitation period, time will not begin to run until the expiry of the last day of the temporary possession period. I understand that the Bill originally sought to achieve this objective by stating that a “claim for compensation” would “accrue on the last day of the temporary possession period”. The Compulsory Purchase Association’s view is that the original drafting would have caused problems, but that the revised drafting is not complete. The original drafting would have left claimants exposed to a potential argument that, because the claim was stated not to accrue until that time for the purposes of Section 9 of the Limitation Act 1980, they also had no cause of action enabling them to claim for compensation or refer the matter to a tribunal at any earlier time. Thus, in cases where temporary possession is to last a number of years, it could result in claimants having to bear losses without compensation for a number of years, which seems unfair.

The government amendment is intended to address that problem, but it may still permit an argument that, if the cause of action is to be treated as accruing on the last day of the temporary possession period for the purposes of the Limitation Act, notwithstanding that it would otherwise be regarded as accruing before or during the temporary possession period, the cause of action should also be regarded as accruing at that later time for other purposes, including the making of a claim or reference.

The advice that I have received is that an addition should be made to the subsection to confirm that the deemed accrual applies for the purpose of the Limitation Act alone. As such, I am advised that my drafting for Clause 19(7) helps to avoid doubt. The amendment states:

“for all other purposes a claim will accrue as the possible damages suffered as a claimant is not precluded from making a claim pursuant to subsection (2) prior to the last day of that period”.

I understand the complexity of this, and that the Minister may want to respond in writing; the 34 government amendments this afternoon reveal that this is a complex matter. I am not necessarily looking to the Minister to reply to this now. I just hope that before we get to Report, the matter can be clarified so that we have a Bill that is clear in its meaning and will not end up being challenged in the courts. I beg to move.

[Lord Beecham]

My Lords, speaking as a lawyer, although happily not practising, I see no need to amend the term “injury” to “damage”. Legally, injury embraces damage of all kinds. I would not go to extremes to defend the Government on this or any other occasion, but if the Minister felt disinclined to accept the amendment, I would not dissent from his judgment.

[Lord Young of Cookham]

I am grateful for this growing cross-party alliance on how to deal with one of the amendments. I shall deal with as much as I can in writing, but some government amendments are tucked into this group which I need to address.

I thank the noble Lord, Lord Shipley, for tabling his amendments, which, as he said, deal with compensation for temporary possession. Clause 19 provides that claimants will be entitled to compensation for any loss or injury which they sustain as a result of the temporary possession. Where the claimant is operating a trade or business on the land, they will be entitled to compensation for disturbance of that trade or business.

I turn to Amendment 95, for which the noble Lord has explained his reasons. I think this comes down to a difference in approach to drafting. The Government have used the term “loss or injury” instead of “loss or damage”, as the noble Lord has suggested. Both terms have been used previously. In this instance, the Government have opted to follow the precedent of Section 20 of the Compulsory Purchase Act 1965.

The important point is that both formulations have the same meaning. I am reinforced in my view by the recent intervention by the noble Lord, Lord Beecham.

On the second part of this amendment, adding,

“as a result of the temporary possession of the land”,

is unnecessary because subsection (1) makes the same point.

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[Baroness Parminter (LD)]

My Lords, Amendment 104 stands in my name and that of the noble Baroness, Lady Andrews, who is no longer able to be in her place. It aims to preserve Parliament’s current role as the ultimate decision-maker on whether it is appropriate for National Trust inalienable land to be compulsorily purchased for a temporary period against the judgment of the trust.

As currently drafted, Clause 24 is sufficiently broad to allow, in the case of temporary compulsory possession, for the modification of current procedures regarding National Trust inalienable land.

The Government have shown already that they recognise the need for special provisions to retain protection for National Trust land. Following the Bill’s publication, the Government’s policy paper issued in December proposed that such land could be temporarily possessed under the new power only if the confirming authority considered that there would not be serious detriment to the inalienable land in question. However, the Government’s proposals would not provide an equivalent level of protection for National Trust inalienable land as is currently the case and subsequent regulations may further reduce the protection of inalienable land held for the benefit of the nation.

Because National Trust land has been declared inalienable, it is very likely to have heritage interest or natural beauty in its own right. As noble Lords might be interested to note given earlier discussion, it might also be ancient woodland or a significant habitat. The land might contribute to or enhance neighbouring land of historic interest or natural beauty—for example, preserving the setting of a historic property and its parkland.

The trust does not obstruct development by unreasonably opposing appropriate acquisition, but clearly seems to be looking to work proactively in partnership with scheme promoters to find solutions which enable schemes to go ahead as sympathetically as possible. I am well aware of that because I live very close to the Hindhead tunnel scheme, where just that process of consultation and working constructively with developers worked incredibly well. Indeed, there has only been one occasion when the National Trust has referred compulsory purchase matters to special parliamentary procedures in the past.

Undoubtedly, there should be continuing recognition of the special nature of National Trust inalienable land held for the benefit of the nation in the Bill. I accept that there is a clear case for improving procedures for the temporary compulsory possession of land, but I believe that the National Trust is not the problem that the Government are trying to address with this legislation, but has been swept up in the wider issue. At least, I hope that may be the case and look forward to the Minister’s response. I beg to move.

[Lord Beecham]

My Lords, I support the amendment in the name of the noble Baroness, Lady Parminter, and speak to Amendment 104A which requires the Secretary of State and Welsh Ministers to make provision for the reinstatement of land at the end of a period of temporary possession. This is not drafted particularly for the benefit of the residents of Aberystwyth or places in the vicinity; it stems from the report of the Delegated Powers and Regulatory Reform Committee which draws attention to a number of issues, only some of which are embodied in this amendment.

In dealing with the issue mentioned in Amendment 104A, the committee regarded it as inappropriate to leave the discussion of whether or not to include provisions about reinstatement in the regulations to the Secretary of State and Welsh Ministers. Hence, it recommended that the clause should be amended to impose the duty referred to in the amendment. However, that was not the end of the committee’s concerns. In particular, it also took issue with Clause 24(2)(a), which it regarded as,

“inappropriately wide and should be redrafted to reflect the narrow policy intention referred to in the DCLG document which explained the power to modify provisions”.

In particular, the committee felt that the power goes much further than the declared objective in the policy document and,

“it would enable the regulations to make substantial changes to Clauses 14 to 26 in a wide range of cases, for example, by excluding the provisions about compensation”.

I confess that the document, only having reached us at the end of January, shortly before the amendments were drafted, ought to have been subject to an amendment specifically dealing with that issue. I do not expect the Minister to respond immediately, but I hope that, before Report, he will indicate whether the Government would be minded to accept the redrafting recommendation referred to by the Delegated Powers Committee. If not, I give notice that we will remedy the omission this evening and table an appropriate amendment.

The committee was clear about the issue that I have raised, but it also makes a more general point about the Secretary of State and Welsh Ministers exercising this novel power, which could potentially have far-reaching consequences without first being required to consult interested parties. It therefore considered a consultation duty even more important, in view of the provision dispensing with the House’s hybrid instruments procedure. That raises issues about secondary legislation that have so often been raised. As I say, I would not expect the Minister to respond to something of which he did not have notice by way of an amendment tonight. I hope that the matter can be resolved en route to Report, but reserve the right to table amendments if it cannot be.

[Lord Young of Cookham]

My Lords, I shall deal first with the point that the noble Lord, Lord Beecham, has just made. Of course, I have read the report of the Delegated Powers and Regulatory Reform Committee, and there are three relevant recommendations relating to this Bill, two of which he mentioned. We take this very seriously; we are considering all three recommendations very carefully, and intend to respond before Report, so I hope that the nuclear option mentioned by the noble Lord may not be necessary.

I turn to Amendments 104, 104A and 129B. Clauses 14 to 26 of the Bill set out the broad framework for how the temporary possession power will work, establishing protections and providing for the payment of compensation. Further technical provisions will be necessary for the implementation of the temporary possession power. Clause 24 gives the Secretary of State the power by regulations to make further provision in relation to the authorisation and exercise of temporary possession powers where necessary. We will respond on that—and in the meantime we set out in the policy document what we propose to do. There is something there about reinstatement.

On Amendment 104, certain special kinds of land, including land held inalienably by the National Trust, are afforded additional protection under the compulsory acquisition process. This additional protection provides that a compulsory purchase order may be subject to special parliamentary procedure when an objection is sustained to the relevant order by, for example, the National Trust, or when exchange land for that to be acquired cannot be given, perhaps because no suitable land is available. I agree with the noble Baroness, Lady Parminter, that National Trust land should benefit from additional protection under the temporary possession regime; this is also true of those other special kinds of land. The Government have set out their intention to do precisely that in a policy document; we propose to do that through regulations made under Clause 24. Paragraphs 48 to 51 of that document set out more details.

The Government’s proposed approach under temporary possession differs from that under compulsory acquisition. Where the temporary possession of special kinds of land is happening without any associated compulsory acquisition, the special parliamentary procedure would not apply. Instead, the temporary possession will be allowed only when the confirming authority is satisfied that it would not cause serious detriment to the owners and users. Such serious detriment could include, for example, irreparable damage to the land concerned, or blocking access to other land or assets. When both temporary possession and compulsory acquisition of a special kind of land is included in the same order, and the compulsory acquisition is subject to special parliamentary procedure, the temporary possession land would also be subject to the special parliamentary procedure. However, I have listened with great interest to the case made by the noble Baroness, Lady Parminter, who raises an important issue, and the Government will, therefore, give further careful consideration to it before confirming our approach, to which I have just referred.

--- Later in debate ---

Moved by

[Lord Beecham]

129A: Clause 38, page 31, line 13, at end insert—
“( ) Before making regulations under this section, the Secretary of State must consult the Welsh Ministers.”

[Lord Beecham (Lab)]

My Lords, in moving Amendment 129A which stands in my name, I wish to speak also to the proposition that Clause 38 should stand part of the Bill. Both these provisions stem again from the report of the Delegated Powers and Regulatory Reform Committee. My amendment refers specifically to a requirement for the Secretary of State to consult Welsh Assembly Ministers—the noble Lord might be included for this purpose—before making regulations under Clause 38, or Section 38 as it will be when the Bill is enacted. The committee refers to the wording of Clause 38, which confers power on the Secretary of State to make such provision as he,

“considers appropriate in consequence of any provision”,

in the Bill. That is a very wide-ranging power. It includes, as the committee points out, Acts of Parliament of course, but also measures or Acts of the National Assembly of Wales. A justification of a kind is provided in the accompanying memorandum, which the committee quotes as concluding that,

“it is considered prudent for the Bill to contain a power to deal with these in secondary legislation”.

But as the committee points out,

“the Bill makes no provision for any procedure in the Assembly when the power is used to amend primary or secondary legislation enacted by the Assembly or Welsh Ministers … there is not even a duty to consult Welsh Ministers when amending Welsh legislation”.

That is an extraordinary position to have got into. The committee goes on to point out:

“Clause 2 of the Wales Bill provides that the UK Parliament will not normally legislate with regard to devolved matters without the consent of the Assembly”.


However, that appears to be feasible under this Bill as it presently stands. As the committee notes:

“The Constitution Committee have raised similar concerns”,


and it therefore considers that the power should be amended to impose,

“an obligation to consult Welsh Ministers”.

That is what my Amendment 129A does.

There is a proposal to remove the whole of Clause 38—

[Lord Bourne of Aberystwyth]

With respect to the noble Lord, Lord Beecham, that is in a different group.

[Lord Beecham]

I beg your pardon—it is grouped with this on the paper I have here. I will not make that point now but will deal with it when we get to that group. I beg to move Amendment 129A.

[Lord Thomas of Gresford (LD)]

My Lords, I speak in support of the noble Lord, Lord Beecham, on Amendment 129A. I also speak, as a member of the Delegated Powers and Regulatory Reform Committee, to express our surprise that there was no provision even for consultation, with the Welsh Assembly, when proposed changes to an Act or secondary legislation are made. As I understand it, if it is an Act, there would normally be a legislative consent Motion; if it is secondary legislation, a consent Motion. That was the original provision, and I assume it is still the same. The noble Lord, Lord Bourne, fortunately, is an expert in this field.

I can only assume that this is an accidental omission, as I cannot see any policy in it. It seems to me ludicrous that a Secretary of State could, with a stroke of the pen, without any consent in Wales and without any consultation, simply amend the Act. I shall speak further on the clause stand part debate in a moment.

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[Lord Bourne of Aberystwyth]

My Lords, the noble Lord knows as well as I do the difference between convention and provision in statute. If everything that had been discussed in Committee on the Bill will put in statute, it would be a much longer and more complex piece of legislation. This is about finding the appropriate place to deal with it. As I said, I am happy to share the correspondence and discuss it further, but I do not think it should appear in the Bill.

[Lord Beecham]

I obviously cannot proceed to a vote on the amendment, but the Minister seems to ignore the explicit statement of the Delegated Powers Committee that,

“the power conferred by clause 38 of this Bill is inappropriate to the extent that it allows the Secretary of State to amend Assembly legislation without at least an obligation to consult Welsh Ministers”.

If that is the practice, I agree with the noble Lord, Lord Thomas, that it should be codified and expressed in the Bill. What is the problem?

[Lord Bourne of Aberystwyth]

My Lords, with respect, it is asking not for that but for an obligation to consult, and I have said that that is a reasonable request. It is effectively what is happening under the Wales legislation. I have said that we anticipate doing exactly the same, mutatis mutandis, under the Bill, so that, via the Presiding Officer, we are consulting.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

I am sorry, I have made the position clear. I am not sure what point the noble Lord is seeking to make. I am happy to discuss this further. I invite the noble Lord, Lord Beecham, to withdraw the amendment on that basis, but I do not think I can go further than that at the moment.

[Lord Beecham]

I beg leave to withdraw the amendment.

Amendment 129A withdrawn.

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[Lord Shipley]

I tried to add my name to this clause stand part Motion but unfortunately the queue was too long and I was not able to. I understand that mistakes can be made and need to be rectified. I again draw the Committee’s attention to the fact that we have, on day one of Committee, had 34 government amendments to a Bill which has passed to us from the other place. That shows that Bills have to be drafted better so that we do not end up with people wanting to change them because the right level of thought was not put in to them in the first place. In her emphasis on neighbourhood planning, the noble Baroness, Lady Cumberlege, had it absolutely right—a clause of this kind in a Bill to do with neighbourhood planning, which can, in effect, put a coach and horses through any aspect of it, is unacceptable. I hope that the Minister understands that, and I very much hope that this clause will not survive beyond Committee.

[Lord Beecham]

My Lords, there is a certain irony in a Henry VIII clause applying to Wales, given that the Tudor monarchy was based on Welsh lineage. I am also reminded of the lines of TS Eliot in The Hollow Men:

“This is the way the world ends

Not with a bang but a whimper”.

The Bill is ending in the reverse order. We have had a generally mild and constructive discussion for the past four days in Committee, but we end with something of a bang, because if the Government stick to their position, what is being perpetrated in the clause will lead to significant disagreement.

It is particularly important that the Government should listen to advice from the noble and learned Lord, Lord Judge. Others of us have our own views—we perhaps have a political approach, even those of us who are lawyers of a senior vintage, if I may put it that way. To hear the noble and learned Lord’s critique must surely give the Government pause for thought. It is simply unacceptable to insist on a procedure that leaves so much power in the hands of the Government effectively to ignore the obligations which ought to apply in relation to the Welsh Assembly, in this case, but in general to the operation of secondary legislation. In the few years that I have been here, that has time and again been shown to be defective as a mechanism for sustaining proper parliamentary consideration at the appropriate time of important measures with significant implications for various aspects of public policy.

I hope that the Minister will take this back and respond constructively, or secure permission to do so, to the views of this Committee and those of the Delegated Powers and Regulatory Reform Committee and, it appears—for I had not noticed its report—to take the views of the Constitution Committee into account. Obviously, he cannot give us any firm commitments tonight but I hope that, after consulting his colleagues, he will be able to satisfy the House by indicating that. Otherwise, it will undoubtedly have to go to Report and, if necessary, a vote at Report. I hope that we can avoid that because, on the whole, the Bill has proceeded in a fairly consensual way. Most of us have endeavoured to work with the grain of the Government’s policy. It would be a shame if that were in contrast with a rigid decision to stick with very unsatisfactory drafting right at the end of the Bill.

[Lord Bourne of Aberystwyth]

My Lords, first, I thank the noble Lord, Lord Beecham, very much for his constructive approach and say that it is certainly not my intention not to engage on this between Committee and Report. I think that I indicated that on the previous amendment, which he so eloquently moved. I am very happy to engage with noble Lords.

I would like to say one or two things in response to the debate, and I thank the noble and learned Lord, Lord Judge, who has been totally consistent on this issue and obviously speaks from great experience. Contrary to what my noble friend Lord True thought there is a history to this, not just from going back as far as Henry VIII. Successive Governments have indulged in this. I appreciate that that does not make it right, but I have done a little research with my team. The Housing and Regeneration Act 2008, the Local Democracy, Economic Development and Construction Act 2009 and the Greater London Authority Act 1999, just in this area, have powers wider than those in the Bill. My noble friend Lady Cumberlege referred to how important the Localism Act is; I quite agree but there are wider powers in that Act, which was passed under the coalition Government. I appreciate that that does not make it right, but I want to establish the point that a certain degree of consistency would be welcome on these issues.

That said, I am very happy to engage positively in looking at how we move forward on this matter. I very much echo what the noble Lord, Lord Beecham, said about the way that the Committee has proceeded in a consensual way for the most part. We have not always agreed on issues but we have certainly disagreed agreeably as we have gone through the Bill. I am certainly happy to engage with noble Lords between now and Report in looking at this matter.

We have to keep this in perspective. However, if noble Lords can provide examples of where this provision has been misused in relation to any of that legislation, which, as I say, goes back a considerable way, or examples of where any Government have used it improperly, that would strengthen the case for looking at it further. This measure also does not give the Secretary of State the power that has been suggested; it is subject to an affirmative resolution, which means that it has to be presented to both Houses with a full explanation and carried by both Houses. That said, I understand the points that have been made during the debate. I thank those who have participated: the noble Lord, Lord Thomas of Gresford, my noble friend Lord True and the noble Lords, Lord Stunell and Lord Shipley, as well as my noble friend Lady Cumberlege and the noble and learned Lord, Lord Judge, who put their names to this measure. I also thank the noble Lord, Lord Beecham. Given the assurance I have just provided, I ask noble Lords not to press this measure.

Neighbourhood Planning Bill

Lord Beecham Excerpts

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

Moved by

[Lord Beecham]

5: Clause 7, page 8, line 14, at end insert—
“(1CA) The development plan documents must contain references to—(a) a threshold for social and affordable housing in the area;(b) the impact of the proposals in the documents on energy efficiency in dwellings and infrastructure in the local area;(c) flood protection for the local area;(d) the impact of the proposals in the documents on air quality in the area;(e) the provision of green spaces and public leisure areas; and(f) education, health and well-being needs of the population.”

[Lord Beecham (Lab)]

My Lords, this is the second last amendment to Clause 7. It is striking that in a piece of legislation called the Neighbourhood Planning Bill only seven pages out of 49 relate to neighbourhood planning. Perhaps at Third Reading the noble Lord might care to move that the title of the Bill should be somewhat different, because most of it relates to a wider issue.

Having said that, Amendment 5 proposes that a series of issues should be reflected in development plan documents. In Committee, the Minister stated that all these matters are covered by the National Planning Policy Framework, but in fact they are not. There is no mention in the NPPF of social housing, although the word “affordability” comes into it, and there is no mention at all of education, so in that respect the noble Lord was mistaken.

In any event, I argue that it would be sensible to include within the development plan specific reference to these requirements. Members of the public will not be terribly familiar with the National Planning Policy Framework, and I venture to think that some Members of your Lordships’ House—including, I confess, me—are not necessarily fully au fait with its provisions. What is the problem with setting out in what is to be a local document the matters that ought to be considered and then dealing with them? That seems a perfectly sensible way to go forward. I hope the noble Lord will reflect on that and agree that, after all, it makes some sense.

I also want to speak to Amendment 8, which deals with two-tier authorities—a county council and a district council. The object of the amendment is to try to ensure that there is a good working relationship between the two authorities. Where a district council does not carry out its planning responsibilities, it is perfectly reasonable for the Secretary of State to have the power to invite the county council to get involved. However, the amendment sets out some conditions relating to that and, in particular, will protect the lower-tier planning authority provided it can demonstrate that it is dealing adequately and efficiently with the timetable for the preparation of the plan. Conversely, if it requires another planning authority to become involved, the provisions of the amendment will not be invoked.

I think we have to tread somewhat carefully around the relationships in two-tier authorities. I hope that the Minister will accept that the amendment will assist better relationships by ensuring that the position of the district council will be respected unless it demonstrates a failure to respond adequately to the requirements of the situation. I beg to move.

[Lord Shipley]

My Lords, I support Amendment 5, which contains an admirable list of the documents that a development plan should cover.

I shall speak to Amendments 7, 8 and 8A. Amendments 7 and 8A relate to the same issue in Clause 9 and Schedule 2. We had a longish discussion in Committee about the capacity of a county council to undertake the planning function where it was felt that a district council had not been fulfilling its obligations. I have thought very carefully about this and have concluded that Amendment 8, which stands in my name and that of the noble Lord, Lord Kennedy, and to which support has been given by the noble Lord, Lord Beecham, seems a reasonable compromise. It provides a procedure that can be followed and it would probably command broad support in the country. Therefore, I hope very much that the Minister will feel able to accept Amendment 8, or at least come back at Third Reading with something similar.

--- Later in debate ---

[Lord Kennedy of Southwark]

We do not want the county council network deciding on arbitration.

[Lord Beecham]

My Lords, I am still recovering from the shock of the support of the noble Lord, Lord Lansley, for anything I have said in this Chamber, particularly on this occasion. However, I am grateful for his support.

I am not sure where the Minister is leading us on situations where county councils are involved or invited to become involved, because it is not clear what happens if they decline.

[Lord Bourne of Aberystwyth]

My Lords, it is very clear. The option is available at the moment for the Secretary of State to take direct control. That is the only other alternative to getting a more local solution. That is why this has been included.

[Lord Beecham]

That is an option of what might be called undemocratic centralism, which is not to be relished.

The Minister made a correction regarding education, which I said was not included in the national policy framework. He is right to say that it is found in paragraph 72. As it describes providing healthy communities, I assumed that it was to do with health matters but clearly it extends beyond them. However, I still believe that the noble Lord, Lord Lansley, and I were right in suggesting that these matters should be referred to in the local plan. I cannot see any difficult in doing that. I regret that the Minister does not seem to be persuaded of the validity of that argument. However, in the circumstances, I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

--- Later in debate ---

[Lord Beecham]

My Lords, I support the noble Baroness as an ordinary working Peer. I hope that the Minister will feel able to accept the amendment. I am not quite sure what the position is in relation to Amendment 38 and whether the noble Baroness intends to move it.

[Baroness Gardner of Parkes]

I do not.

[Lord Beecham]

In that case, I will simply commend these amendments.

[Lord Tope]

My Lords, I, too, support the intention of the noble Baroness, Lady Gardner. She is right that probably all good planning authorities do this already and take it into account. Perhaps where it does not happen it is more by accident than by intent. One of the more serious points behind this is that we know that there is, sadly, a deep-rooted distrust of planning authorities. Whereas something may have happened by accident, the public are only too ready to believe that it is a conspiracy. This is a fairly simple measure. Amendment 9 certainly is. On Amendment 10, we may need to consider a little more what constitutes the holiday period. The intention of these amendments is very good and would perhaps go some small way to restore public trust in the planning process or at least to weaken the distrust in that process. So I hope the Government will take seriously these two amendments and look at how the intention can be met.

--- Later in debate ---

Moved by

[Lord Beecham]

15: Clause 13, page 14, line 5, at end insert “including in terms of sustainable development and public interest”

[Lord Beecham]

My Lords, I can reassure the Deputy Speaker that I shall not take long. The amendment deals with restrictions on planning conditions set out in Clause 13, and in particular the new provision which will incorporate into the Town and Country Planning Act new Section 100ZA which deals with restrictions on the power to impose planning conditions.

Amendment 15 is basically a simple amendment that adds something to the conditions that will apply to those regulations. For example, the Bill refers to them as having to be,

“necessary to make the development acceptable in planning terms …relevant the development … sufficiently precise to make it capable of being complied with and enforced … reasonable in all other respects”.

The amendment simply adds,

“sustainable development and public interest”,

to the criteria for making those regulations. I hope that the Minister will feel able to accept that and I beg to move.

[Lord Young of Cookham]

My Lords, I am grateful to the noble Lord for moving his amendment. I do not think there is any disagreement between us on the objectives that planning decisions should be acceptable to local people and that planning development should be sustainable.

Amendment 15 covers similar ground to that of the previously discussed Amendment 14, in that it is also intended to ensure that these measures do not have an adverse impact on sustainable development. Sustainable development is at the very heart of the planning system, as reflected in the National Planning Policy Framework, and I can assure noble Lords that Clause 13 will contribute to this goal.

My noble friend has written separately on this matter, as promised, to the noble Lord, Lord Kennedy, in Committee, giving reassurance of our commitment to see that development that takes place is sustainable and in line with the well-established policy tests in the NPPF. Clause 13 will not impact on local authorities’ ability to seek to impose any necessary conditions and appropriate protections for important matters such as heritage, the natural environment and measures to mitigate the risk of flooding. That ability will be maintained, as well as the ability of local people to make representations to the local planning authority on how a development proposal will affect them.

If the amendment were introduced, it would add to the list of constraints on the Secretary of State’s regulation-making power in subsection (2) of new Section 100ZA by explicitly requiring the Secretary of State to take account of sustainable development and the public interest in deciding whether it is appropriate to exercise the power in subsection (1), as the noble Lord explained.

As my noble friend said in Committee, and I say again now, both sustainable development and the public interest are already relevant planning considerations in the NPPF, and I can reassure the noble Lord that these matters are already captured in subsections (2)(a) and (b) of the clause we are discussing. This includes the need to consider the presumption in favour of sustainable development which drives planning policy, plan-making and decision-taking—and local views, which are already central to the planning system.

In terms of taking account of the public interest, and that planning decisions and conditions are acceptable to local people, we continue to ensure that the planning system is centred on community involvement. It gives statutory rights for communities to become involved in the preparation of the local plan for the area, and any neighbourhood plans—including strengthening their powers in this area through the Bill—and to make representations on individual planning applications, and on planning appeals, in the knowledge that the decision-maker will give these representations full consideration. I hope that, for the reasons I have set out, the noble Lord might feel able to withdraw his amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, I am reassured up to a point, but I would have thought it would be better to have these as statutory protections rather than protections contained in the National Planning Policy Framework, which does not have quite the same statutory impact. However, I recognise that the Government’s intentions are good, even if they may not quite be embodied in a statutory form. In the circumstances, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Moved by

[Lord Beecham]

16: Clause 13, page 14, line 5, at end insert—
“(2A) Regulations under subsection (1) may not be made in respect of the granting of planning permission for Environmental Impact Assessment development.(2B) In subsection (2A) “Environmental Impact Assessment development” has the same meaning as “EIA development” in the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.”

[Lord Beecham]

My Lords, Amendments 16 and 17 in this group are connected to issues of major concern. They seek to protect communities from extremely controversial decisions in areas with which we are becoming increasingly familiar; for example, fracking and other processes which impact on the environment. Fracking, I guess, is currently the most controversial of these. Similar concerns around minerals, waste development and the like are covered in Amendment 17. The intention here is to make it clear that the regulations which are otherwise authorised by this part of the Bill would not extend to these very controversial areas. In other words, there would have to be primary legislation to embark on changing the position on these particularly controversial areas. Some danger, I think, is sensed at the moment about the Government’s enthusiasm for fracking; their overriding of local authority concerns, for example, in Lancashire, is very controversial. These amendments are designed to constrain the exercise of those powers, which we may see more of under the Bill, in such decisions taken by government over the wishes of local communities, and effectively outside the normal planning process. I hope the Government will rethink their position on these matters. I beg to move.

[Lord Young of Cookham]

My Lords, I am, again, grateful to the noble Lord, Lord Beecham, for explaining the reasons behind his amendment and understand the concerns he has expressed about those confronted with substantial developments involving minerals and other raw materials.

Amendment 16 would allow exemptions to be made to any regulations brought forward under new Section 100ZA(1) for certain types of development. In this case, the amendment relates specifically to the environmental impact assessment of development. As the noble Lord explained, environmental impact assessments are demanded of development likely to have significant effects on the environment. These assessments are a way of ensuring that local planning authorities, in deciding such applications, are in full knowledge of the likely significant effects, and take these into account during the determination process.

I recognise that the noble Lord’s amendment appears to stem from a wider concern about the measures—that they might in some way weaken existing environmental protections. I confirm that the Government intend to use the power in new Section 100ZA to prevent the use of unreasonable and unnecessary conditions, which are already well established in the Government’s planning practice guidance as not meeting the tests set out in the NPPF.

A local authority will still be able to impose planning conditions necessary to be able to grant planning permission for environmental impact assessment development, provided that those conditions meet these six tests. The Secretary of State may make provision in regulations under new subsection (1) only if he is satisfied that such provisions are in pursuit of these policy tests.

That is why, as set out in the draft regulations we published in December, we are proposing to prohibit the types of conditions set out in guidance as failing to meet the policy tests. I hope this will reassure the noble Lord, Lord Beecham. I should like to be very clear that our guidance currently advises that these types of conditions should not be applied to any grant of planning permission, whether an environmental impact assessment is required or not. We cannot foresee a situation where a local authority would want to impose such conditions on any planning permission. As a further means of assurance, we propose that these regulations will be subject to the affirmative resolution of both Houses of Parliament, which will ensure appropriate levels of scrutiny.

Amendment 17 is similar. It exempts minerals or waste development from new subsection (1). The arguments for rejecting Amendment 17 are broadly similar to those against Amendment 16: the Bill will not impact the ability of local planning authorities to impose planning conditions to ensure the necessary protections to achieve sustainable development, provided they meet the well-established policy tests.

I also emphasise that our guidance currently advises, as I have just said, that these types of conditions should not be applied to any grant of planning permission, as they clearly do not meet the national policy tests in the NPPF. We cannot foresee a situation where a local authority would want to impose such conditions on the grant of any planning applications. We therefore do not see a need to make exceptions, as the amendments seek to do, for EIA development, minerals and waste applications, or any other type of development. With those reassurances in mind, I hope the noble Lord will withdraw his amendment.

[Lord Beecham]

My Lords, I am grateful to the Minister for his reply. I am partly reassured by reference to the affirmative procedure being applied in these cases, which allows greater parliamentary scrutiny. In those circumstances, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Neighbourhood Planning Bill

Lord Beecham Excerpts

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

[Baroness Gardner of Parkes (Con)]

My Lords, I have brought this amendment back in exactly the same form it had in Committee because I thought the comments the Minister made then really deserved to be re-examined. This is an important issue that ordinary people care about very much. Everyone is very unhappy to find suddenly that something has been given retrospective permission without them having any idea that it was even up for reconsideration.

As the Minister said on that day in Committee:

“How we deal with unauthorised development is an important issue that concerns many people”.


I think that is right. He also said:

“It is important to note that retrospective planning applications must be determined in exactly the same way as any other application, that is, in accordance with the development plan unless material considerations indicate otherwise”.—[Official Report, 6/2/17; col. GC 346.]


He then referred to what the noble Lord, Lord Beecham, said about this, which was also interesting. The Minister mentioned that if somebody has deliberately concealed the fact that they are doing development, as in the famous haystack case, they can be required to demolish the property.

What I found most disappointing in what the Minister said was that the local authority concerned does have an obligation to consult people—I put the part about consultation in my amendment because local authorities are not doing so. Certainly, in the cases where I have been affected by retrospective planning permission, the first thing I have known about it is when I received a note saying, “We have granted planning permission” for whatever disastrous thing it was near me. I have met so many other people who have been in the same situation. If there is an obligation to consult the same people whom you would have consulted before, why is it not being done for retrospective permission? It all smells a little bit. Is this because someone is trying to slip something through retrospectively and feels that they will get away without any consultation or having to attach any conditions? It bears looking at again.

I think it was the noble Lord, Lord Shipley, who mentioned the serving of enforcement notices. The Minister certainly picked up the point about enforcement proceedings, but I am not suggesting going any further on those issues.

I must reiterate that my interest is declared in the register; I should perhaps have said that at the beginning.

The Minister went on to say, regarding enforcement, that,

“there is already a double charge”.—[Official Report, 6/2/17; col. GC 347.]

I had not appreciated that there was already a double charge, but apparently that is the case only if you have an enforcement notice. There is no extra charge if you have simply not applied and come back to get your permission, and the local authority has not notified those people who should be consulted. Is that because there is corruption, or is it laziness on their part? It is very important to have some way of ensuring that—it really would be good. The Minister said that it would not be helpful to delay effective enforcement action. All of these things are true, but why are they not adhering to the letter of the law as it is? Why are ordinary people suffering? They are finding that, instead of being able to insist that some reasonable condition that would suit everyone in the locality be included in the planning consent, and the planning authority would consider whether it was a justifiable condition to attach, they are simply not being consulted and are getting word after it is all over and done with.

I suggested a penalty fee in that proposal because planning officers to whom I have spoken have said to me that, at the moment, there is no disincentive whatever to going retrospectively for permission. You can be brave and just have a go and you have nothing to lose because you have no disadvantage: if you find out that you have not got permission, you go for it then and it does not cost anything more; you might have saved yourself a lot of time, trouble and bother, and you have just gone ahead with what you wanted. On the idea of a penalty fee, the Minister said:

“It is a matter which I know previous Governments have considered and to some extent grappled with, but in the interests of fairness have decided not to take forward”.—[Official Report, 6/2/17; col. GC 347.]


In speaking to other amendments in Committee, the Minister said that he would be looking very seriously at various things for secondary regulation, as to what should or should not be regulated and what should or should not be considered. However, I believe that this is the sort of instance that should be looked into. The noble Lord, Lord Shipley, has said to me that this is more complicated than I imagine. I am sure, from his wisdom and knowledge, which is very great on these subjects, that I would accept that that probably is a fact, but it does not mean that it cannot be investigated and looked into. If, as I understood from the answers in Committee, there is going to be all this consideration of future regulations, then this merits being looked at much more closely. Rather than going on and on, because we have an awful lot to get through today, I beg to move.

[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.

--- Later in debate ---

I am sure that the House will be pleased to know that we are now nearing the end. Perhaps I may tell noble Lords that this speech is a lot shorter than it was originally. Amendment 63 is the Government’s final amendment to Part 2. It is a minor and technical amendment to correct an omission in Clause 33, which inserts new Sections 403A and 403B into the Greater London Authority Act 1999. It ensures that new Section 403B is treated in the same way as new Section 403A for the purposes of paragraph 20 of Schedule 11 to that Act. I beg to move government Amendment 41.

[Lord Beecham]

My Lords, this speech will be shorter than that given by the noble Lord, Lord Young, and this speaker is, of course, somewhat shorter than him. I congratulate him on incorporating the two amendments which I had intended to move, Amendments 59 and 60, although I note that there was no attribution in his speaking on the matters which substantially cover them. Nevertheless, I am grateful to him for his clear exposition of all these amendments, for the adoption of the two that I would have spoken to and for clearly listening to the comments, criticisms and suggestions from around the House. I am happy to endorse those matters and I will not move the amendments in my name.

[Lord Shipley]

My Lords, I thank the Minister for all that he said about compulsory purchase, both temporary and non-temporary. I think that his comments demonstrate the role of scrutiny and the value of this Chamber. I had a great deal to say on compulsory purchase in Committee but now I have virtually nothing at all to say because the matter has been resolved. It demonstrates the importance of talking with expert practitioners. Perhaps I should also repeat what I said in Committee about the large number of government amendments regarding compulsory purchase although the Bill had come to us from the House of Commons as a finished Bill. In this respect at least—but also on the planning side, as we know—it did not merit the status of a finished Bill. However, I am grateful to the Minister and his colleagues in the department for all the work that they have done. As far as I am concerned, we now have a Bill—assuming that all the amendments are adopted—that will make the statutory position a great deal clearer. I shall say something further when we come on to the question of Henry VIII powers, because some powers will still apply to this part of the Bill. For the moment, however, I have nothing further to add.

--- Later in debate ---

[Lord Shipley]

My Lords, I add my thanks to the Minister for the proposed changes. The noble Lord, Lord Pannick, has said what I was going to say and I will not repeat it. The change of wording in the amendment is significant because, as he indicated, it is no longer the case that the Secretary of State has the power to consider something “appropriate”. Rather, he can make provision in consequence of any provision in this part of the Bill. This is much better. Henry VIII powers should never have been applied to the planning chapters of the Bill.

I said earlier that compulsory purchase is indeed complicated and I accept that consequential provision may be needed, which can be taken quickly if there is found to be a further flaw in the legislation that Parliament passes. That said, I seek the Minister’s confirmation that the wording now being used in relation to compulsory purchase is the standard wording used in other Bills. It has been said that there is a power in recent planning Acts for Ministers to make consequential provision. We need to be clear about that and that we are not doing something in the amendment that has not been in any other Bill or Act. I understand that to be the position but would be keen to hear the Minister confirm that there is nothing unusual in the wording of the amendment.

[Lord Beecham]

My Lords, I join other noble Lords in thanking the Minister and, indeed, in congratulating him on these substantive changes, which are ultimately, I suppose, a concession to the powerful arguments advanced, in particular by the noble and learned Lord, Lord Judge, and by the noble Lord, Lord Pannick, and other Members across the House.

It would have been good to see a similar approach from Ministers when we discussed the Housing and Planning Bill at great length last year. It is not a personal criticism of them; the Minister at that time, the noble Baroness, was not allowed to move in the direction in which Ministers on this Bill have been able to move, which I very much welcome.

For clarification, may I assume that my Amendments 71 and 75 are effectively covered by the welcome amendments that the Government have brought forward? That is right, and that is a repetition in the case of the previous amendments. However, I am not entirely clear about Amendment 67 in my name, which requires the Secretary of State to consult the Welsh Ministers before making regulations under Section 38. That proposal was dismissed on the previous occasion, although it had been a matter of strong concern to the Delegated Powers and Regulatory Reform Committee, to which the Government’s official response was extremely negative. I do not know whether the Minister can offer any assurance that, whether or not is contained in the amendment, the Government will consult Welsh Ministers. There was rather a general statement that this happens automatically. The purpose of including it in the Bill was to make sure that more than just custom and practice would apply in this case. It would therefore be helpful if the Minister indicated whether the government amendments cover my amendment or, in the event that they do not, whether he will again confirm explicitly that there will be consultation with Welsh Ministers before making regulations under Section 38. It would be preferable to include that in the Bill but, at the very least, a ministerial assurance would carry some weight. In those circumstances, if that were the position, I would withdraw my amendment.

[Lord Bourne of Aberystwyth]

My Lords, perhaps I may respond, particularly to the points raised by the noble Lord, Lord Beecham, in relation to Wales. I will pick them up at the end of this part of the review of other noble Lords’ amendments. I once again thank those who have participated in the debate, including my noble friend Lady Cumberlege, who set out a horrifying “Yes Minister” position. I am sure that one or two officials in our department will be listening but it is not regarded there as a training manual—although it possibly is the case in other departments. However, I give fair warning to anybody who thinks it is that it is not. The point was well made.

I am grateful for the welcome given by the noble Lord, Lord Pannick, to the position exhibited in the government amendments, as well as by the noble Lords, Lord Beecham and Lord Shipley. It was certainly the subject of my fruitful discussion with the noble and learned Lord, Lord Judge, who was instrumental in putting a strong case.

I confirm to the noble Lord, Lord Shipley, that the wording is the usual wording. I hope he is reassured by that.

Neighbourhood Planning Bill

Lord Beecham Excerpts

3rd reading (Hansard): House of Lords
Wednesday 15th March 2017 Lords Chamber

[Lord Shipley (LD)]

My Lords, as we start Third Reading, I declare my vice-presidency of the Local Government Association. The Minister said that this was a better Bill for the work of this Chamber and I concur entirely. The value of the revising nature of this Chamber has been demonstrated in the work that took place in Committee and on Report. I pay tribute to the Minister and his officials for their willingness to meet and to listen, and for the courtesy they showed. The outcome is a much better and stronger Bill than when it came to this House. I learned from the debates we had that there is an appetite from all parts of this House to promote neighbourhood planning. There is a sense of common purpose about that which I strongly welcome.

I said at an earlier stage in the Bill that we need a plain English guide to the planning system which the general public could relate to. The noble Baroness, Lady Cumberlege, talked about the flow chart which will all be very helpful. Indeed, on the departmental website there is a plain English guide to the planning system in general terms. I am looking here for a plain English guide to the Bill which will become a practitioners’ guide as opposed simply to a plain English guide explaining what the Bill is about. It should go into much more detail than we currently have. I notice that the Minister talked about the plans of the RICS to create further briefing materials for the examiner of a neighbourhood plan. I welcome that but if we are seriously to promote neighbourhood planning and achieve many more areas, particularly urban ones, engaging with the process, a practitioners’ guide would be extremely helpful.

Amendments 1 and 5 are very helpful and reflect the discussions we had in Committee and on Report. I too pay tribute to the noble Baroness, Lady Cumberlege, for all her work in this area. The Minister talked about her generosity with her time and that is absolutely right. The amount of time and effort that went into convincing the Ministers, their colleagues and officials that this really is important has borne fruit. These two amendments bring the process of neighbourhood planning closer to those devising a neighbourhood plan. The noble Baroness talked about the planning system being rigid, and indeed it is. There are good reasons why that is the case in terms of challenges but, equally, it needs to be a system that is understood by all those trying to engage with the process. In Amendments 1 and 5 we have the publication of a draft report by the examiner and the potential for meetings to be held about that draft. This is a major step forward and I welcome it.

I have two further points. First, there is the timing of the regulations. The noble Baroness asked about that and it is very important that we get some sense of when it is likely to be. The Minister talked about the consultation on the White Paper and the outcome of that. The consultation on the White Paper is due to end at the beginning of May but we tend to find that there is then a long period—several months—before something happens. Of course, this will be going over the summer period as well so it could be even longer than that. I think I interpreted from the Minister’s words —which included the word “swiftly”—that it is going to be faster than that. I very much hope that it will be, because so many of the helpful things that are being proposed in the White Paper need to be got on with as soon as possible. I hope that there will be a timetable that will speed up the process.

We have not quite finished Third Reading, but I want to say that the process of examining this Bill and getting it to the point where it is in a strong form to pass Third Reading is down to a great deal of effort by a large number of people. I pay tribute in particular to the Ministers, the noble Lords, Lord Bourne and Lord Young, for their support for this process, which has been hugely appreciated.

[Lord Beecham (Lab)]

My Lords, I join the Minister and the noble Lord, Lord Shipley, in paying tribute to the noble Baroness, Lady Cumberlege, for her very thoughtful and constructive—and somewhat exhaustive —approach to the deliberations on the Bill. It has been a pleasure to work with both the Ministers, but particularly, if I may say so, with the noble Lord, Lord Bourne. I make that point having discovered recently that he, like me, is a great fan of Leicester City; in my case, it is my second team. I rather hope we might be playing in the same league next season and I hope that will be the Premiership. In that event, perhaps the noble Lord would care to accompany me to a match, when naturally Newcastle will expect to beat my other team.

The substantive issue this afternoon is not the fate of either of those teams but the drawing to conclusion of the Bill. It has been a pleasure to work in such a constructive way with both Ministers, but principally, on the major part of the Bill, with the noble Lord, Lord Bourne. He has listened carefully and been very constructive in his approach. Indeed, the whole experience has been a vast improvement on the dreadful time we had with the Housing and Planning Act last year. That is no reflection at all on the noble Baroness, Lady Williams, who struggled mightily to retain her sanity and promote ours during the course of that legislation.

I have one or two questions about Amendment 1. Proposed new sub-paragraph (3)(d) says that a meeting should be held following the issuing of invitations, which are outlined in proposed new sub-paragraph (3)(c). Is that a meeting with an individual, or is it envisaged as a public meeting in which other interested parties would be involved? There might be a number of people who make submissions; there might be only one or two. Would that meeting be just with those who make the contact, or will it be on a broader basis? The definition of “persons” is slightly mysterious. It talks about,

“the qualifying body … the local planning authority”—

that is obvious—

“and ... such other persons as may be prescribed”.

Can the Minister indicate what is envisaged by that rather muffled description?

Then there is the question of the regulations. Will the regulations themselves be subject to consultation? The noble Lord, Lord Shipley, referred to consultation. Will the specific regulations in relation to this amendment be subject to consultation in the way that the Minister has described generally the consultation which will take place on other matters?

Having said that, and while I wait with anticipation to hear the Minister’s response, again I congratulate him and the noble Lord, Lord Young, on the way they have conducted this matter. I look forward to that degree of co-operation continuing over the secondary legislation that will follow. It is very important that the Bill should go forward into practice in a way that, frankly, we have not yet seen adequately with the Housing and Planning Act 2016. I hope that we can learn from that experience and carry the Bill forward in the constructive way that Members of all sides have sought to treat it.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on these two amendments. First, I thank once again my noble friend Lady Cumberlege for the gracious way that she has approached this, and for her kind words in welcoming the amendment and the flow chart. I suspect that her kind words about the role of the officials in the flow chart will have its cost in terms of drinks and cakes; nevertheless, I thank her very much indeed for those kind comments. I can confirm to her and to other noble Lords that the regulations will be subject to the negative procedure which, given the weight of business we will have as a consequence of the EU withdrawal process, is welcome news.

I thank the noble Lord, Lord Shipley, once again for his kind words and very much agree that this is a better Bill because of the scrutiny that has come from all parts of the House. I agree that there is support for the neighbourhood planning principle from all parts of the House and it is important that we see that to safe haven. Clearly, it is not just about the Bill. I very much agree with him on the plain English guide—I know that he made that point before very forcefully. We will certainly do what we can with the website and the flow chart. I would welcome participation and views from noble Lords as to how we can improve them. I will pass on the thanks that he gave to the RICS for the practitioners’ guide. I am sure we all hope that that will be in plain English, as it is extremely important.

I turn to a point raised by the noble Lords, Lord Shipley and Lord Beecham, and my noble friend Lady Cumberlege in relation to the timing of the regulations. Clearly, as the consultation ends on 2 May, I cannot anticipate how many responses we will have in relation to this matter. I hope that it will be quite a lot. We intend to move quickly and not to delay things, but we need to make sure that the system works well. I hope your Lordships will understand that we would want some time to take account of those views. In relation to the very fair point made by the noble Lord, Lord Beecham, about continuing the process of consultation and getting it right by discussing it with others, I would anticipate discussing the shape of what we are going to do with my noble friend and with the noble Lords, Lord Beecham, Lord Shipley and Lord Kennedy, and others, but that would not be to slow the process down. We have to get the balance right there, but I would be very happy to do that.

I thank the noble Lord, Lord Beecham, for his generous invitation to St James’. An invitation from me would be to the King Power Stadium, if we are indeed in the same league next year. As he may know, I am in Newcastle on Friday of this week and when I said that I am visiting the two cathedrals, many people told me that there are actually three cathedrals—the third being St James’. I do not think I have time for it on this occasion, but I look forward very much to locking horns over football for once, rather than over politics. I am sure that would be a game we would both enjoy.

In relation to the points made by the noble Lord, Lord Beecham, about who is included under new sub-paragraph (3)(d) in Amendment 1, we want to make sure that there is an open, fair and transparent procedure. In relation to meetings, therefore, I do not think we would want to stipulate that a group should be of a particular size. It would not be just individuals, but if somebody wanted to come along from the neighbourhood group with a fair number of people, we would be looking to that. We are not prescribing anything; it is important that it is an open and transparent process. In relation to other bodies that may be prescribed, I think that other amenity groups might have an interest in the area—I will write to the noble Lord if I am wrong on this—and it could conceivably be the National Trust, if it had property there. I anticipate it would be that sort of thing.

I have dealt with the noble Lord’s point in relation to the consultation on the regulations, which will, as I say, have the negative procedure. I thank again those noble Lords who have participated in the debate on these amendments.

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[Lord Best (CB)]

My Lords, I will speak briefly to the amendment, to which I have attached my name. I commend the noble Lord, Lord Taylor of Goss Moor, for following through on our earlier amendment and indeed for all his good work in promoting new garden villages and garden towns. This amendment is not as definitive as the one we discussed on Report, but it should achieve the same outcome, namely of placing local authorities centre stage in the creation and oversight of the new corporations that will be responsible for these major new settlements. This will greatly improve the prospects of these much-needed new communities getting off the ground.

I was delighted to hear today that the Local Government Association—I declare my interest as an LGA vice-president—is fully supportive of the amendment. If accepted, the amendment will mean it will be much more likely that a number of successful, well-designed, mixed-income new settlements will be developed over the years ahead. That would be of enormous benefit to many thousands of households, which will have great new places to bring up their families and live their lives, as well as to the nation as a whole in reducing acute housing shortages. I have every confidence that the Minister will find the amendment entirely acceptable, and if so, I congratulate the Government. Following the housing White Paper, and a number of the helpful measures in this Bill, I greatly welcome this further step in the Government’s creation of a much-improved set of national housing policies. I strongly support the amendment.

[Lord Beecham]

My Lords, I join the noble Lord in complimenting the noble Lord, Lord Taylor, for his very thoughtful and constructive contributions to the Bill and on this amendment. However, I have one question to put to him about it. Proposed new subsection (8) defines a local authority as,

“a district council … a county council, or … a London borough council”.

Where do the new mayoral combined authorities sit within this framework? Perhaps the noble Lord could assist me with that, or perhaps the Minister could indicate what role is envisaged for a combined authority, which will presumably by its very nature include land for development which crosses what would previously have been boundaries but are now within the new framework. I suspect the noble Lord, Lord Taylor, would wish that combined authority to exercise a role, but perhaps the Minister could indicate what the Government’s attitude would be and whether any further step needs to be taken to ensure that that outcome is fulfilled.

[Lord Porter of Spalding (Con)]

My Lords, I speak in favour of the amendment as well, and declare my interest in the register as chairman of the Local Government Association. The noble Lord, Lord Best, is right that the association welcomes this. It is pleased to do so, even in a version that is slightly watered down from the original. The Secretary of State should be congratulated on being prepared to cede some power: it is not very often that a Secretary of State is happy to let somebody else get on with something unless it is going to be a bad news story. I honestly believe this will be a good news story, so I am pleased that he is prepared to do it.

Like the noble Lord, Lord Beecham, though, I also have an issue with proposed new subsection (8): its definition of councils does not appear to allow unitary councils where they are the council of choice for people to be the body that makes a decision. It is fine for the districts or the counties to do that, but unitary councils outside London appear to be excluded. I am sure Newcastle or Sheffield would also want some space in this conversation. I am not sure at the moment how that could be changed, but perhaps it could be changed to “local planning authorities and county councils”. That would capture all existing councils. I urge against including combined authorities at this stage until we are sure where the constituent members of those authorities see this power resting.

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[Lord Tope (LD)]

My Lords, I find myself once again in tandem with the noble Lord, Lord True. He said correctly that we have been pedalling together on this issue for, I think, about four years now—mostly against a very strong headwind, it has to be said, both under the coalition Government and the present Government. I join him in welcoming, shall we say, a slightly less strong wind, a gentler breeze, on this occasion.

I still have the view that the question of the conversion of offices to residential—which is in many cases entirely desirable, where there are redundant offices, and so on—should be a matter for the local planning authority to determine in the light of local circumstances and to get such planning benefit as may be appropriate and possible. I understand that the breeze is still too strong for us to go quite that far, but when the Minister replied to our debate on this on Report—indeed, we have debated it at every stage of this Bill—he made some sympathetic and encouraging noises to encourage us to withdraw our amendment, which we of course intended to do anyway.

I would like the Minister to clarify two particular points for me, both of which I mentioned on Report—I will not go over all the ground again. I made the point that Article 4 is usually cited as the answer to all questions on this matter, and I related the experience of my own borough. Incidentally, I should once again declare that I am a vice-president of the Local Government Association. The following is no longer a declarable interest, but I was for many years a town centre councillor, and indeed leader of the council, in a south London borough not too far from the borough of the noble Lord, Lord True, and I have seen the effect of this measure on the ground there. When my then authority applied to introduce Article 4, the Government of the day made it extremely clear that they would certainly not counsel an Article 4 direction for the entire borough. They said that to a number of other London boroughs, and no doubt other authorities too. Indeed, they would not even allow it to cover a wider area within the borough and insisted on it being very tightly drawn around the town centre. That provision has had inevitable effects since it came into operation in our town centre area. It has now spread to the district centres, where Article 4 does not apply, and where we have seen an alarming spread of offices being converted to residential use. These are not empty, redundant offices. The figures I have cited several times in this debate applied to our town centre. While we waited for Article 4 to take effect, 28% of the office space in the town centre was lost. That was not redundant space; two-thirds of the offices lost were in active use at the time and the businesses in them had to move.

I hope the Minister will tell us what the Government’s attitude now is towards local authorities that wish to introduce Article 4 over a wider area, or indeed over the whole local authority area, particularly where local authorities like mine have achieved, and indeed exceeded, the housing targets for many years. We are more than meeting government and London government requirements on housing targets. Will we now be allowed more leniency in the areas in which Article 4 may apply?

Secondly, as I have already mentioned, in the period we had to wait to implement Article 4, we lost 28% of the town centre office space. There was a reason for that. If Article 4 is introduced immediately, the local authority is liable to pay compensation, which could run to very considerable sums. Therefore my authority, and most, if not all, authorities, give 12 months’ notice of the intention to apply Article 4. It is inevitable that if you give 12 months’ notice of the intention to apply restrictions, landlords and developers with a mind to convert offices to residential use are bound to go ahead in the period before Article 4 takes effect, especially if that is as long as 12 months, as it has to be. I hope that when he replies the Minister will say something about this long period. If local authorities are still to be required to give 12 months’ notice, can he say anything about their liability for compensation to those who feel they may have a case for that compensation?

I conclude, as did the noble Lord—my noble friend—Lord True, by thanking the Minister in this place and the Minister in another place for taking a very much more sensible and realistic attitude to this issue and for listening to actual experience on the ground. I hope they will be willing to adopt measures to improve this situation. I thank the noble Lord, Lord True, for his very considerable persistence and perseverance on this issue throughout the previous four years.

[Lord Beecham]

My Lords, I support the amendment and I hope the Government will react sympathetically to the objectives that noble Lords outlined. We certainly are at one with them. I speak from my experience in Newcastle. It is important that the Government should see the logic of the case that is made in the amendment, and I hope they will treat it accordingly.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on Amendment 3 in relation to office-to-residential conversion. I particularly thank my noble friend Lord True and the noble Lord, Lord Tope, for bringing before us again the issue of permitted development rights for change of use. This enables me to set out in more detail the proposal that I put before noble Lords on Report in a very sketchy form, and to which I promised to return. At the time, I spoke about the potential benefit of allowing greater flexibility over whether the permitted development right for the change of use from office to residential should apply to those areas that are delivering the homes that their communities need. I am sure noble Lords will agree that it is in everybody’s interest to ensure that we do not put future housing delivery at risk. In fairness, that point was made by the noble Lord, Lord Tope.

The housing White Paper sets out compelling evidence of why it is crucial that we fix our broken housing market—one of the greatest barriers to progress in Britain today. Noble Lords will know that in the year to March 2016, over 12,800 homes came from the change of use from offices to residential alone. However, as I said on Report, I recognise that while the national picture is positive in terms of the contribution of permitted development rights to housing delivery, in some places there have been concerns about the local impact.

We can all agree that some authorities are high performers in delivering new housing. I am therefore pleased to confirm our future approach to Article 4 directions to remove the permitted development right for the change of use from office to residential where the local planning authority is delivering 100% or more of its housing requirement. As we have set out in our recent housing White Paper, we will introduce a new housing delivery test which will measure an area’s local housing delivery against its housing requirement. It is proposed that the housing delivery test will be measured as an average over a three-year rolling period and data will be published alongside the net additions statistics in November each year. We propose that housing delivery will be assessed against an up-to-date local plan, London Plan or statutory spatial development strategy—or in their absence, published household projections—and that the first housing delivery data will be published in November this year. This will indicate to local authorities whether this additional Article 4 flexibility would apply to directions they brought forward after this date.

We are committing today that, following the publication of the housing delivery data, where an authority is meeting 100% of its housing delivery requirement and can continue to do so after removal of the right, and where it is able to demonstrate that it is necessary to remove the right to protect the amenity and well-being of a particular area—that might address the point that the noble Lord, Lord Tope, raised; there is still that continuing obligation although it may conceivably be a larger area than at present, but there is not the necessity to satisfy that test—the Secretary of State will not seek to limit a direction applying to that area.

When considering whether to bring forward an Article 4 direction regarding office-to-residential conversion, the local planning authority must demonstrate that it can continue to meet its housing requirement when the right is removed. This provides an important safeguard to ensure that local areas will continue to deliver the homes that communities need. For instance, we know that in the year to March 2016, the homes delivered under the right made a significant contribution to housing delivery in some areas.

Importantly, the Article 4 direction must continue to meet the test set out in the National Planning Policy Framework. As I say, the local planning authority must still provide robust evidence to demonstrate that removing the permitted development right is necessary to protect the amenity and well-being of the area where the right is to be removed. This could include impact from the loss of office space. I hope that is helpful to the noble Lord and to other noble Lords who have participated in the debate on the Bill. Where these tests are met, we would look more generously at the area across which the direction would apply and not seek to limit the direction. Of course, housing delivery changes over time. Therefore, local planning authorities should review their housing delivery annually and, if it falls below 100% in subsequent years, we would expect them to review the direction and cancel or modify it as necessary. The local authority may then be able to bring forward a further direction at a later date on the back of improved delivery where it had dipped below the housing delivery test.

This approach reflects the intent of the noble Lords’ amendment. It allows areas that are meeting their housing requirements local flexibility in having a greater say over where the right will apply as long as they can demonstrate that removal of the right is necessary and that they will continue to meet their housing need. It enables local planning authorities to determine such cases in accordance with their local plan, any neighbourhood plan and other material considerations. At the same time, it provides safeguards should housing delivery decline. Moreover, it does so within the existing Article 4 processes, with which local planning authorities are familiar.