Localism Bill

Lord Faulkner of Worcester Excerpts

Monday 17th October 2011 Lords Chamber

[Baroness Parminter]

My Lords, I rise to speak to Amendment 223D. As we know, this clause, which outlines that financial considerations can be material to a planning application, was added in the Commons as an incidental measure for clarification. As the noble Earl, Lord Attlee, indicated, the Government have argued that it is the new homes bonus that has necessitated such clarification. However, by using statute rather than the traditional route of guidance, the Government are undoubtedly creating further uncertainty.

The clause elevates financial considerations above all other legitimate planning considerations, which are not mentioned here or anywhere else in statute. As such, the courts will be used to decide just what Parliament means by putting financial considerations up front as a material condition. While the government amendment goes some way to try to tackle that ambiguity, there still remains a lack of clarity about when such financial considerations could be considered material. Until now, case law has determined whether or not a financial consideration is material. Over time that has been determined as it being necessary to make the development acceptable in planning terms, directly related to the application and fairly and reasonably related in scale to the application. On Report in the Commons the Minister gave an example of materiality which related to a road scheme that accommodates a development—a direct link between the use of the money and making the application acceptable in planning terms. Further, in the Government’s response to the consultation on the new homes bonus in February this year, they stated that the new homes bonus could be lawfully taken into account as a material consideration,

“where there is a direct connection between the intended use of the Bonus and the proposed development”.

My noble friend Lord Attlee gave a useful example of such a direct link. However, this key point about the direct link is not made at all in the clause or the government amendment. This direct linkage is what case law has determined makes a financial consideration material, and it is a fundamental principle—to me at least—that guarantees the probity of planning. The Minister has made much of the CPRE opposing this clause. However, it shows skill on the part of the Government to unite the CPRE, TCPA and RTPI in opposing this clause and government amendment.

Without that clarity it can be read that financial inducements that are irrelevant to the merits of a particular development proposal can be material in determining planning applications. It is just such a lack of clarity that the noble Lord, Lord Jenkin, rightly raised earlier when he talked about the changes around the use of the community infrastructure levy. It is quite clear that guidance will have to be issued to local authorities on how government incentives are intended to influence planning and how this will work in practice. If further clarification is needed on the relationship between financial considerations and considering planning applications, as the Government say it is, then cover that alongside government guidance about the workability of these incentives. That would avoid further legal wrangling over what Parliament intended to say by this clause. I beg to move.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester)]

The House is debating government Amendment 223CA, with which Amendment 223D is grouped. Therefore the noble Baroness is not able to move that amendment separately.

[Baroness Hamwee]

My Lords, I think that my noble friend realised that when she started to speak. Some things become automatic as the evening goes on. I support my noble friend, who has made a very powerful case, as she has done on previous occasions.

I thought that I might be able to say tonight that the Lady at the Dispatch Box doth protest too much, but I suppose that Earls can protest too much as well. I find that as this debate goes on, the hole that the Government are digging is getting deeper and deeper. The position is not being improved by further re-emphasis. Can you have further re-emphasis? I think that we have got to that stage now—we are up to about three lots of emphasis. By adding this amendment, which says the same thing again, I become more and more concerned.

I do not want to repeat points that my noble friend Lady Parminter has made. However, the clause must mean something. It must mean something not otherwise provided for. I find it quite puzzling that the Government take the view that they need to use primary legislation to bring the matter, in the words of the noble Earl at the last stage,

“quickly to the attention of concerned parties”.—[Official Report, 20/7/11; col. 1420.]

I really do not believe that concerned parties need primary legislation to have this and the answer to it brought to their attention. The noble Earl told the House he thought that it would always be helpful, but it is not the practice, for legal advice to be shared. I asked innocently—it was not intended to be disingenuous, but probably sounded it—if we could have sight of the legal advice. I do not want this to sound ungrateful, but what we heard from the legal advice was not helpful, having got to this stage. We did not hear argument; we heard assertion. I am sure that it was not unsupported, but what was shared with the House was simply assertion.

Finally, the noble Earl talked of this certainly doing no harm. My fear is that it will do harm because it must be interpreted as meaning something that has not been the case hitherto. I support my noble friend.