Localism Bill

Lord Berkeley Excerpts

Tuesday 12th July 2011 Lords Chamber

It may assist the noble Lord in considering this issue to know that there is very widespread support from all quarters for both amendments. I shall not read the entire list—that might tempt his patience with me—but it includes organisations such as the Campaign for National Parks, the Council for British Archaeology, the Environmental Law Foundation, the Royal Town Planning Institute, the RSPB, the Town and Country Planning Association and many other wildlife and environmental groups. It may also be of assistance if I point out that Birmingham City Council, which is, at the moment, a Tory and Liberal Democrat controlled council, and the London Borough of Sutton, which is a Liberal Democrat Council, both support these amendments. I hope that on that basis the noble Lord will be able to accept them.

[Lord Berkeley]

My Lords, I support these amendments. In some ways they are no-brainers: it is so obvious that they need to be there to close the gap that my noble friend mentioned.

Proposed new subsection (1A)(b) in subsection (2) of the amendment covers flooding risk, which gets greater all the time. However, many local authorities, sadly, do not take that into account when they allow new developments. Going back 20 years, there was an amazing story in Cornwall where someone wanted to develop a site near the beach in St Austell Bay. The developer produced the plans and everything went fine but the local people said, “The sea will overtop it”—many tens of millions of pounds had been spent on this development by then—but the developer said no and the council said nothing. A week later the sea did overtop it and flooded a large area. It was a high tide, which happens every now and then. Five years on, planning permission was finally obtained for this enormous development but with a very much higher sea wall. The amount of money and time wasted by people not taking into account the risks of climate change are tremendous.

I remind the Committee that proposed new subsection (1A) means including policies to encourage walking, cycling, public transport and much less use of the car; and the location of schools, hospitals and other such places where there is so often a consolidation which means that people have to travel much further to use them through no fault of their own. These issues never seem to come into the assessment. I hope that when the Minister responds he will support the amendment or come back with one in his own words if he thinks it is defective in its drafting, which I have heard him suggest before.

[Lord Boyd of Duncansby]

This is the first time that I have spoken in this stage of the Bill so I declare an interest as a solicitor in private practice, mostly in Scotland but also to some extent in England. I want to make two quick points. First, the Climate Change Act establishes legally binding objectives and targets for the reduction of carbon emissions by 2050. The development plan is the way in which the built environment is shaped for the future. It is really important that we ensure a seamless see-through in meeting these targets. The development plan is an important element of that.

Secondly, the national policy statements on nationally significant infrastructure projects all have within them considerable sections targeted at climate change. The Government are to be congratulated on taking forward those national policy statements in that way. There is an argument that, if the national policy statements make such a priority of ensuring that developments meet the carbon target, surely the development plan fulfils a similar function.

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[Lord Taylor of Holbeach]

I think I gave the noble Lord the answer to this when I said that the presumption would be that the planning should be in accordance with the NPPF and any other material considerations. Outside that, the presumption must be that approval is given, so there is an incentive for local authorities to get these plans in place.

[Lord Berkeley]

Could the Minister clarify that? Is there not going to be a sort of bonanza before the LDP is finally approved? Before that, all the applicants will have to do is comply with the NPPF, which must be a very high-level document. Will there not be a flood of planning applications that, as the Minister said, the local authority will probably have to approve?

[Lord Taylor of Holbeach]

My Lords, there is an incentive for local authorities to get these plans in place—I think I have made that point throughout our discussions on these amendments—and all other material considerations have to be met, so it does not happen totally in the void. Local authorities must have regard to their own circumstances when taking other matters into account, which is all the more reason for them to be working on these plans at the present time.

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[Earl Attlee]

My Lords, the purpose of the CIL is for owners or developers of land to contribute to the cost of providing infrastructure that supports the development of the area. Almost all development has some impact on the need for infrastructure, or benefits from it. It is fair that such development pays a share of the cost of providing that infrastructure. In setting a charge, local authorities must have regard to the actual and expected costs of infrastructure and its other sources of funding. They must also have regard to the economic viability of development, which includes the need to deliver affordable housing.

The noble Lord, Lord McKenzie of Luton, proposes amendments to provide that affordable housing provision will not be prejudiced by any levy charges that an authority may set. As we explained in the other place and to the National Housing Federation, the existing legislation already provides appropriate safeguards to avoid negative implications for the delivery of affordable housing. The statutory guidance issued under Section 221 of the Local Planning Act 2008, to which local authorities are required to have regard, explicitly sets out that a charging authority must take development costs, particularly those for affordable housing, into account when setting a charge. The point of the levy is to support and not frustrate the delivery of a local development plan. The statutory guidance is specifically clear that an examiner should consider whether a local authority’s proposed charges would put their affordable housing target at risk. Where the independent examiner considers that it does, they should not approve the proposed charge.

The noble Lord, Lord McKenzie, asked me about the Section 106 funding source for affordable housing. It does not follow that the imposition of a CIL charge will result in lower Section 106 contributions. In setting a charge, a council has to consider the impact on the economic viability, including affordable housing, and ensure that the levy does not put it at risk, which will include affordable housing funds. These amendments are clearly well intentioned. We agree that affordable housing is important and must not be harmed by the implementation of a levy. I can reassure noble Lords that the amendments are unnecessary, as appropriate safeguards already exist.

The noble Lord, Lord Greaves, in his Amendments 148ZZZBE et cetera, seeks amendments that would in effect allow local authorities to implement a charge without first having to remedy any deficiency identified by the independent examination of their proposals. Local authorities are in the best position to know what level of charges will work in their area to support development and encourage growth, but we do not accept that they should have complete freedom to set any charges they like. Instead, we are maintaining proportionate safeguards to prevent unreasonable levy charges, which could put development at serious risk. Our proposals rebalance the relationship between the examiner and the local authority, to provide that it is the authority that has the final decision on how any deficiencies in their proposed charging schedule are addressed. However, we are clear that any changes made by the authority must be sufficient and necessary to remedy any non-compliance identified by the independent examination of the proposals.

Noble Lords also seek to remove powers that allow for regulations to make provision about the evidence that a local authority must or must not consider in setting a charge. Our experience of similar examination of local plan-making shows that the decisions of independent examiners vary. Councils have tended to give a great deal of weight to previous decisions, and that has sometimes led to restricted local flexibility and freedom. We want to ensure that that does not occur with the levy. The proposed power will enable the Government to respond in a robust and flexible way to practices which threaten to undermine the ability of councils successfully to introduce their local levy charges. Our proposals strike the right balance between ensuring that local authorities have real discretion to set charges in their area while retaining appropriate safeguards to ensure that proposals do not put development of the area at risk.

Amendment 148ZZBBA, tabled by my noble friend Lord Greaves, would widen the permitted use of levy receipts beyond infrastructure to matters that support the development of an area. My noble friend has raised an interesting point. We are clear that the point of the levy is to support growth and new development. Infrastructure is of course central to supporting new development and unlocking growth, but it is not the only matter necessary to enable and incentivise development. We want to reflect on whether continuing to limit spending solely to providing infrastructure restricts local authorities’ ability to support and enable development of the area. We want to consider whether widening permitted uses of the levy would make the instrument more effective and better placed effectively to promote, support and enable new development.

My noble friend Lord Greaves also proposes Amendment 148ZZBBB, which would do two things. First, it would alter the purpose of the levy so that it is focused on supporting communities rather than development. We have set out proposals to pass a proportion of the funds raised in an area to the parish council for that area and for those funds to be spent on infrastructure to support the development of that area. Control over the remainder of the funds is to be retained by the charging authority—normally the unitary, district or borough council—to provide the infrastructure needed to support the development of the larger area. The point is that the impact of the development and the infrastructure needed to support it are not confined to the geography of the community. Some will be, and our changes to direct a meaningful proportion of funds to the communities where development takes place will deal with that. Other matters, such as transport, span communities—and, indeed, charging authorities.

Secondly, the amendment proposes to allow funds to be used for the building, improvement and renovation of housing. That is unnecessary, as existing primary legislation in the Planning Act 2008 already contains the power to allow for levy receipts to be spent on affordable housing. However, regulations currently prevent that. Allowing such spending is therefore not a matter for the Bill, but the treatment of affordable housing is relevant to the amendments sought. I can confirm that we will consult during the summer on making that change through regulations.

In Amendment 148ZZCB, my noble friend Lord Greaves seeks to remove the provision for regulation to set out the ongoing costs to be funded by the levy. The powers we propose mirror existing ones in the Planning Act 2008, which allow for regulations to set out the works, installations or other facilities to be funded by the levy. The existing powers are currently used to specify that the Mayor of London must use receipts to fund strategic transport infrastructure. London is unique in that the London boroughs may also levy charges in their area, but are free to spend the receipts on any infrastructure to support their areas. We have no plans to use the power to specify the ongoing costs to be funded, but we envisage that it is necessary to deal with similar exceptional circumstances.

[Lord Berkeley]

Can the noble Earl clarify what is covered by “future ongoing costs”? Is it maintenance of housing or maintenance of a road? It is a bit of an open-ended commitment. You can understand a capital cost but if it is maintenance for roads or housing forevermore, it seems a bit odd.

[Earl Attlee]

My Lords, perhaps it would be helpful if I first answered the question from my noble friend Lady Hamwee on whether ongoing means maintaining the infrastructure or excludes it. Clause 100 sets out that this includes maintenance and operation of infrastructure.

Amendment 148ZZBBC seeks to allow the levy to fund the provision of infrastructure on a continuous rather than ongoing basis. We do not believe that this amendment would have a material effect. Our changes clarify that levy receipts can be used to maintain the ongoing costs of providing infrastructure but such spending will still have to satisfy the requirement that it also supports development of the area. The reason for our change is that the current provisions are being construed as limiting spending only to the initial costs of providing infrastructure. This could prevent infrastructure that is wanted and needed from being provided where the funds necessary to maintain and run it are not available. This is a perverse outcome and we are making sure that councils have the flexibility to deliver what is needed to support development of their area.

My noble friend Lord Lucas seeks an amendment that would prevent regulations allowing levy receipts to be reserved for future ongoing costs. I have explained that our proposals are concerned with ensuring that local authorities have real flexibility to spend the funds on the matters that are needed to support development in their area. We believe that this amendment would constrain this flexibility and could result in inefficient and ineffective spending by requiring funds to be used now rather than retained for future strategic projects that are planned.

Amendment 148ZZCD, tabled by the noble Lord, Lord Greaves, and others, proposes to remove provisions that provide for regulations to place a duty on charging authorities to pass all or some of any community infrastructure levy received to other persons. Alongside the physical barriers to new development, growth can be slowed or restricted by local concerns about its impacts. We intend to use the powers conferred by Clause 100 to require charging authorities to pass a meaningful proportion of receipts raised from new development in an area to a parish, town or community council for that area where there is such a local council. The local council will be required to spend the funds to provide infrastructure to support the development of its area.

When communities understand that new development is directly contributing towards the cost of the demands that it places on the infrastructure of their area, and see that they will be given real control over how these resources are used to address those demands, they are more likely to accept and indeed support it. Our reforms to the levy will make it genuinely pro-growth. Addressing the demands that new developments place on infrastructure will enable development to happen and it will incentivise communities to accept it. Using receipts to invest in the local area will ensure that growth is supported and sustainable, which will in turn unlock new development and growth.

We want to reflect on the amendments proposed by my noble friends Lord Greaves and Lord Tope to allow the spending of the levy on matters other than infrastructure. It is essential that the levy operates in a way that helps drive growth as effectively as possible. We will carefully consider whether permitting spending on other matters can improve the instrument’s ability to support and enable development. As ever, I am very happy to discuss these matters privately between this stage and Report. I hope that noble Lords will feel able to withdraw their amendments at the appropriate point.