Localism Bill

Lord Best Excerpts

Monday 17th October 2011 Lords Chamber

[Lord Greaves]

My Lords, that reminds me of a song about digging a hole, but perhaps we should not go into it. In Committee, I attempted to search for a compromise on this and to help the Government to clarify what they were saying. I spend a lot of time trying to do that on Bills. The Government should be congratulated on and thanked for the huge amount of time and effort that was put in by Ministers and their civil servants in the Bill team, and by their ministerial colleagues in the House of Commons, to try to sort out a bit of a mess—perhaps more than a bit of a mess—that has resulted from what some of us would say was the rather hasty addition of this clause at the end of the procedures in the House of Commons. They made a huge effort, and I have no doubt that the amendment moved by the noble Earl is an improvement. It helps a bit. My noble friend says that it takes him further into a hole, but I am not sure that that is the case; it probably keeps his head above water. However, it is our clear view after reflection throughout the summer that far and away the best thing to do would be to remove the clause altogether. That is why I support the amendment eloquently spoken to by my noble friend Lady Parminter.

I want to make a couple of points—and one point in slight jest, which I will make now. My noble friend Lord Attlee said that one argument for accepting that this clause should remain is that it does no harm. I must say that I am so used to Governments telling us that amendments that we put forward may not do any harm but are not necessary that I think the boot is on the other foot now. Every time I move an amendment, while the noble Lord is taking the clause for the Government I will look forward to reminding him that my amendment does no harm and therefore should be passed with acclamation.

I would like to make two serious points. There is a very clear difference between CIL and Section 106, for example, which are themselves tied to an application and cannot be untied in any way, and the new homes bonus, which is not tied to a particular application and can be tied, as I think my noble Friend, Lord Attlee, said, only by a clear decision, a resolution presumably, of the council that will receive the new homes bonus. That is the real difference. The noble Earl said quite clearly that it can be taken into account only if it is tied to the application by the receiving council.

I have been thinking about this. In a possible case study, which may happen more often than people might imagine, a big development may result in a lot of new homes bonus and a significant amount of money coming to that council. The use of that money might be politically controversial and contested within the council. In advance of that money coming, the council, the executive, the cabinet, or whoever it is that makes decisions about its allocation, might corporately pass a resolution that makes it quite clear that when it comes, and if planning permission is given, the money will be tied to a project linked to that development. However, it is controversial and the opposition on the council does not agree to it and campaigns against it. Then there are some elections and the opposition wins them, and this large amount of money is taken out of that project and put somewhere else. Once a planning decision is made and issued, that is it; it cannot be revisited by the council. However, decisions about how to allocate money can be revisited whenever the council wants to revisit them. What happens if the development is clearly given on the basis, say, of flood damage or a new swimming pool in the middle of the estate that is linked to that development, and planning permission is passed and the council later changes its decision about how to use that money? They might have a huge budget crisis. Perish the thought that any council has a huge budget crisis nowadays, but if does have a huge budget crisis, the council may find that it simply has to put this money into the general fund in order to keep its head above water. It is quite clear that that could happen. What is the legal position? I do not believe that anybody can do anything about it, except that that planning permission will have been given on false pretences.

[Lord Best]

My Lords, I think the government amendment does something helpful. Councillors on planning committees have to face the accusation, if they are not careful, that they are selling planning consents, that they are just doing it for the money. There is ambivalence as to whether they can take on board the fact that it is surely important to consider that the local community may benefit financially from what happens if the development goes ahead.

The Minister has clarified the circumstances in which it is entirely legitimate for the planning committee to say, “Yes, we have taken on board the fact that there are financial gains for the locality as a result of this. It is not the only thing we take into account. It has no greater weight than the other material considerations. The fact that local people are going to benefit from this”—as the noble Earl made so clear—“can be taken into account, but don’t let anybody accuse us, the planning committee, of just doing it for the money. We’re doing something that is legitimate”, as this clause makes clear. I think it can be quite helpful.

[Lord McKenzie of Luton]

My Lords, I speak in support of Amendment 223D to leave out Clause 130 and in support of the noble Baronesses, Lady Parminter and Lady Hamwee, my noble friend Lord Howarth and the noble Lord, Lord Greaves. To argue that these amendments are unnecessary and that this clause is necessary because it addresses the issue of confusion seems to be turning the matter on its head. We know there is confusion because the clause exists. The noble Baroness, Lady Parminter, said that it takes something to get the CPRE, the TCPA and the RTPI in the same position and all very concerned about this. They do not arrive at spurious conclusions. They have impressed on us and all noble Lords their real concerns about the impact of these provisions.

The noble Lord, Lord Best, said that the provision helps councillors understand what they can and cannot do. The Government’s basic proposition in this is that the clause does not change the law. If the clause does not change the law, why have it? The proposition that noble Lords, particularly the noble Lord, Lord Greaves, referred to—that it does no harm—is an extremely spurious basis on which to legislate, particularly in such an important area. I accept that the Minister made some effort to differentiate situations where material considerations—local financial considerations—can legitimately be taken into account from those where they cannot, but that analysis does not depend upon the clause and the amendments before us but upon the law as it currently is. Are we not much better off leaving the law as it currently is rather than introducing something that does not, with great respect, clarify matters but adds to the confusion?

The very existence of the clause, amended or not, has caused great controversy. What changes the existing position? How does the new homes bonus or CIL change, from the Government’s point of view, and to what extent can it be taken into account as a material consideration? As I understand it from the Minister, nothing changes. All it does is describe the law as it is. If that description is the cause of confusion and uncertainty, surely we are better off without it. It seems a very straightforward proposition. It seems to me that the onus should be on those seeking to introduce and sustain the clause as amended to explain why. To say that it does no harm is a totally inadequate justification for a provision that is causing great consternation among many people involved in planning, who are experts and who have been in the field for a very long time. I urge the Government to reconsider this matter. If the only justification for the clause is that it will help to deal with uncertainty, I hope the Minister will accept just from the discussion tonight that in many quarters it clearly does not and that we are better off without it.

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Moved by

[Lord Best]

232: After Clause 130, insert the following new Clause—
“Town and village green legislation
(1) Regulations may make provision relating to powers for registration authorities to decline to accept proposals under section 15 of the Commons Act 2006.
(2) The regulations may in particular make provision—
(a) dealing with any case of proposals submitted under section 15 of the Commons Act 2006 where in the view of the registration authority insufficient evidence has been submitted or there is strong evidence that the application could not meet the criteria for registration; and(b) dealing with costs incurred by the registration authority in amending or dismissing the application in cases of frivolous or vexatious proposals.(3) Regulations may make provision relating to powers for registration authorities to reject proposals accepted under section 15 of the Commons Act 2006.
(4) The regulations may in particular make provision—
(a) dealing with any case of proposals accepted under section 15 of the Commons Act 2006 and which are subsequently deemed in the view of the registration authority to be frivolous or vexatious;(b) as to the award of costs to relevant parties and as to the parties by whom the costs are to be made.(5) In subsection (4), an application is “frivolous or vexatious” if it discloses no reasonable grounds for the application or is otherwise an abuse of process.
(6) Section 15(4) of the Commons Act 2006 does not apply in relation to any land where there is an extant planning permission in respect of the whole or any part of the land for the life of the permission.”

[Lord Best]

My Lords, I shall be brief as we had an interesting debate on this issue in Committee. Amendment 232 relates to vexatious town and village green applications. There is a widespread view that, under the Commons Act 2006, the measure allowing areas that had been used for sporting, leisure and recreational use to be declared village greens and never to be built on, a status that would last in perpetuity, was being abused and being used as a pretext for stalling and blocking developments that in other terms would have succeeded. It is a very cheap way to stop anything happening. It costs those who do it very little. I quoted the example of the 50 acre site for which I was responsible on the edge of York, which was held up for a considerable period of time because someone was deemed to have walked their dog on the site for 20 years. I think that the dog was changed somewhere along the way. Even if the application fails, this can inflict a great deal of damage, delay matters and cause a lot of expense.

As I understand it, the Government are seized of all this, for which I am very pleased, and consultation is under way to see what might be done. The problem is that this consultation exercise concludes that action should be taken to prevent vexatious applications of this kind. As my amendment suggests, local authorities should have the power to turn down applications that they deem to be frivolous or vexatious, but that the Government will come to that conclusion at the end of a consultation period after the Bill has completed its passage through Parliament. There will be no opportunity until the next legislation comes along—in I do not know how many years—to set this one straight.

I ask the noble Earl on the Front Bench to let us know what the Government are expected to be able to do through regulations or other methods so that we do not find ourselves in the bind that without any legislative amendment nothing can happen, even though all are agreed that it should. I beg to move.

[Lord Greaves]

My Lords, because of the time of night, I shall make a couple of statements rather than explain them. This is not the right Bill or the time to do this. It probably does not require any amendment to Section 15 of the Commons Act. It can be dealt with in two ways: first, local authorities can pull their fingers out and not be unnecessarily legalistic and bureaucratic, which in my experience they have been; and, secondly, by tweaking secondary legislation. It is not necessary to do it here. The problem can be solved in a much more efficient way in secondary legislation through Defra.

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[Earl Attlee]

My Lords, I am grateful to the noble Lord, Lord Best, for moving his amendment again as the matter has moved on a little. Amendment 232 would provide regulation-making powers to allow commons registration authorities to decline new greens applications if there was insufficient evidence that they could meet the necessary criteria, or if they were frivolous or vexatious, and to award costs. It would also prevent applications for the registration of land on which use for sports and pastimes ceased before 6 April 2007 if the land was subject to planning permission.

The Government share the concerns lying behind the amendment about the way in which the new greens registration system is being used in some cases to hinder legitimate development. I said in Committee on 14 July that the Government hoped to make an announcement on town and village greens shortly. On 25 July, we published a consultation document proposing reforms to the new town and village greens registration system. Coincidentally, that consultation closes this evening.

The noble Lord, Lord Best, asked what can be done through regulation. Through regulation, we can consider streamlining the process for registering greens and setting the fees. The consultation includes a proposal to rule out applications for land which is subject to a planning application or planning permission. This would address the purpose of subsection (5) of the amendment. It also includes a proposal to rule out applications for land which has been identified for development or protected by the local green spaces designation in a local or neighbourhood plan. There is also a proposal to introduce fees for applications.

Commons registration authorities already have the power to reject new town and village green applications that are incomplete or lack the requisite evidence for registration. However, a specific power to deal expeditiously with such matters will provide an increased level of confidence to authorities. For that reason, we have proposed to streamline the sifting process. My noble friend Lady Byford and the noble Lord know that we are still consulting on our proposed reforms, though the deadline fast approaches—in fact, it is tonight. I am sure that they will appreciate how those who have responded to the consultation would feel if we were to legislate now in the manner suggested, without, it would seem, hearing their views on the options we have set out.

I have made it clear that the Government share the concerns of my noble friend and the noble Lord. As the Minister for the Natural Environment and Fisheries said in his introduction to the Government’s consultation, we plan to announce our conclusions early in the new year. We will want to work with my noble friend, the noble Lord, Lord Best, and with others with an interest in taking these conclusions forward. In the mean time, I would prefer not to second-guess what those conclusions will be without having first carefully digested the response to the consultation.

[Lord Best]

My Lords, I think there is some helpful material within that. There are still 58 minutes in which people can give their responses to the consultation document. I am grateful for that response. We will be able to look at it at our leisure. I beg leave to withdraw the amendment.

Amendment 232 withdrawn.