Localism Bill

Lord Greaves Excerpts

Tuesday 19th July 2011 Lords Chamber

Moved by

[Lord Greaves]

153ZZAKA: Clause 102, Page 80, line 40, leave out “may” and insert “must”

[Lord Greaves]

My Lords, I shall speak also to the other amendments in the group. These amendments are about charges for neighbourhood development orders and would amend Clauses 102 to 105, which are about charges for meeting costs related to neighbourhood planning and financial assistance in relation to neighbourhood planning.

The Bill states:

“The Secretary of State may with the consent of the Treasury make regulations providing for the imposition of charges for the purpose of meeting expenses incurred … by local planning authorities”,

relating to neighbourhood planning functions. As regards the phrase:

“The Secretary of State may … make regulations”,

we say that this should be “must”. Without being able to levy charges, local planning authorities risk being seriously out of pocket. Will the Minister confirm that the expenses which will be reimbursable through these charges include the cost of organising a referendum?

An important question is when the charges have to be paid. The Bill says that it will be,

“when the development is commenced”.

But that means that all the costs of the local planning authority, including the cost of a referendum and examination, may never be recouped if the development does not take place. We are proposing amendments that suggest that the charge should be paid when the draft neighbourhood development order is submitted to the local planning authority by the parish council or the neighbourhood forum, as with an ordinary planning application. Why should this be different and why should the local planning authority, the council, have to carry this cost, perhaps for ever?

An alternative amendment suggests that the cost should be levied when the local planning authority resolves to hold a referendum—in other words, the costs begin when it is really serious and after the decision has been made whether it should go ahead to a referendum. Again, the risk is that the local planning authority is seriously out of pocket due to things that are completely out of its control. This could make a very serious hole in its budget, especially if it is quite a small district council.

The second issue in this group relates to financial assistance by the Secretary of State in relation to neighbourhood planning. The amendments suggest that the first need is to publicise the changes in the planning system. What will the Government be doing to tell people about the changes in this Bill, if and when it becomes law?

The main amendment is to probe who the Government intend should receive this money and how much is involved. The Minister has mentioned that some money has already been paid out to organisations to provide support and training. Forty pilots have been announced and have been funded to the tune of a relatively small amount of money. The Minister can no doubt tell us what that sum is. Why, therefore, is this provision needed, if money can already be provided to pilots? Why do we have to have a separate provision in this Bill allowing this money to be spent? What extra things will it be spent on that it could not be spent on at the moment?

The Bill provides for,

“the provision of financial assistance … to any body or other person”—

which may involve,

“the making of agreements or other arrangements with any body or other person”.

Who does this refer to? Does it include parish councils and local planning authorities, or is it restricted only to neighbourhood forums? Clearly, we are back to the difference between a parished area, with a parish council, and an unparished area with a neighbourhood forum. What kind of bodies are likely to get this money and what are they expected to do with it? What are the processes for handing out this money? How is it going to be decided who to give it to? If neighbourhood planning takes off in a big way, one assumes that the amount of money that the Government have available will not be sufficient to seriously subsidise everybody. Therefore, they will have to choose one way or the other. I beg to move.

[Lord McKenzie of Luton]

My Lords, the noble Lord, Lord Greaves, has raised a series of what seem to be quite pertinent questions and I look forward to the Minister’s response. I will just comment on two of the amendments. In Amendment 153ZZAKA, the noble Lord suggests that there has to be a “must” in respect of making regulations—although I see the force of the argument that most, or all, local authorities would be daft not to, we are dealing with localism and I do not see why the discretion should not be with the local authorities. I may have missed it, but I think that Amendment153ZZAKF deletes a right to enforce in the case of death or insolvency. I think that is the thrust of the amendment, but I was not quite sure what it was about. Perhaps I misunderstood but it would be helpful if the noble Lord could clarify that.

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[Lord Greaves]

My Lords, without actually going back to it and looking it up, I do not think so. If that is what it says, it was a mistake. Perhaps it is the wrong line.

[Baroness Hanham]

My Lords, I can probably enlighten the noble Lord, Lord Greaves, on what his amendment was about when we get to it. Amendments 153ZZAKA to 153ZZAKF all relate to the provisions on charges that we started discussing in the last group. Amendment 153ZZAKA would make it a requirement for the Government to introduce regulations imposing such charges. It is our intention to introduce charges that would be payable by developers on development that has been given permission by a neighbourhood development order. However, that is not to say that, in future, a decision could not be made to meet some of the costs of neighbourhood planning in a different way. We do not, therefore, wish to tie our hands by making it a requirement to regulate in this way. Having said that, before the next stage I would like to test out the business of when the charges are paid so that I can have a sensible answer about it. It is very late for a charge to be made at a time when permission has been given and just before development.

Amendment 153ZZAKB would specify that the costs that can be covered by such charges include the cost of holding a referendum. That is already implicit in the current provisions, and specifying a single cost like this could be taken to imply that other costs have been excluded. They have not, and that would be included.

Amendments 153ZZAKC and 153AKD both relate to the point at which any charge should be made. I am sorry—I leapt in on the previous amendment with what I should have said on this one. Our view is that developers should pay a charge when development commences. We just need to get a little more advice on that, and as to why it is there. It would be more helpful if the fee and charge were made earlier. I will come back to that.

Amendment 153ZZAKE says that, when charges are imposed in relation to a local development order, the charge must be made before the authority takes any further action in relation to that order. The provisions do not extend to local development orders. In the case of neighbourhood development orders, if full permission has been given for development, there may be no further action for a local planning authority to take. So this provision would have no teeth.

Amendment 153ZZAKF would restrict the ability of the Secretary of State to make regulations about the collection and enforcement of charges on a neighbourhood development order. This was the amendment that the noble Lord, Lord Greaves, could not quite remember. The consequence would be that charges would still apply in relation to neighbourhood development orders, but the collection and enforcement of those charges would be constrained. These powers are designed to ensure that the regulations can deal flexibly and efficiently with changes in circumstances or with problems which become apparent in the future.

There were five amendments on financial assistance. Amendments 153ZZAKG, 153ZZAKH and 153ZZAKJ relate to the provisions on financial assistance for neighbourhood planning. Amendments 153ZZAKG, 153ZZAKH seek to prevent the provision of financial assistance for promoting the benefits of neighbourhood planning, and Amendment 153ZZAKJ seeks to prevent assistance being given to other bodies or individuals. We believe that, in addition to central government funding to local planning authorities for their neighbourhood planning functions, communities that wish to engage in shaping their future should receive support. This could be achieved through funding an independent advice service, through direct funding of neighbourhood groups or through a mixture of both approaches. We would not want to rule those out. The amendments would limit our flexibility.

I recognise the concerns behind Amendments 153ZZAKG and 153ZZAKH. It is certainly not our intention to finance reams of propaganda in support of neighbourhood planning. But we do want to ensure that communities, especially those communities with little prior knowledge of the planning system, can understand what neighbourhood planning can do for them. This is what this provision is aimed at. Similarly, Clause 105(2) would allow us to enter into contracts with training providers or to give grants to voluntary sector organisations to work with communities to help them realise their goals. That reinforces what I said to the noble Lord, Lord Cameron, under previous amendments. It is important that when these neighbourhood forums are set up they have the support they need to enable them to do the job that has been put before them. I hope that that answers the noble Lord’s questions and that he can withdraw his amendment.

[Lord Greaves]

My Lords, I thank the Minister for her reply but it does not really take us much further than we can deduce simply by reading the Bill. Concerning financial assistance, I am trying to find out how it is going to work, how much money there will be, who will be responsible for handing out the dosh, how people apply for it and who then makes a decision between the different people applying. Perhaps the Minister does not have any of that information, but that is what I was really trying to probe. Does she agree that somebody can write down what the Government’s thinking is, as far as it goes, together with who has had the money so far and on what basis they have been chosen? Would it be possible to write about that?

[Baroness Hanham]

My Lords, I will certainly write. Regarding the four organisations that have already received the money, I think there was a full tendering exercise but I will certainly ensure that the noble Lord has the details he asked for. I regret that, both when listening to him and reading his amendments, I was not aware of quite the details that he was looking for but with him having made them clear now, I will make sure that he has answers to them.

[Lord Greaves]

That is fair enough. When you put down amendments to delete pieces of Bills to probe things, it is sometimes difficult to get through exactly what you are trying to get at. Concerning the charges, the amendments that I put down should be seen as a whole. Individually, they make no sense at all but, taken as a whole, I am trying to suggest that the point at which the charge is being levied is too late at the moment—the Minister had some sympathy with that and is going to look at it—and that it should be paid upfront. People should go in and hand their money over the counter, or however they pay, rather than being sent a bill and then having all this chasing and enforcement procedure. In the amendment that the noble Lord, Lord McKenzie, did not understand, I was just taking out all the chasing-up-the-money procedures. If you take a planning application in and do not hand your money over, your application is not dealt with; it is as simple as that. It seems to me that the same thing should apply for this.

However, the Minister said that she would look at this other point and I look forward to learning the results of her researches. On that basis, I beg leave to withdraw the amendment.

Amendment 153ZZAKA withdrawn.

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I trust that, with those reassurances, the noble Lord will feel able to withdraw his amendment.

[Lord Greaves]

Before the noble Lord does so—this is a slightly cheeky intervention—my noble friend said that the Government did not believe in telling people in great detail how to carry out consultation because they were not experts on it and because it is a fast- moving area. Why do they, therefore, in so many parts of the Bill take a very different view when it comes to consultation by local authorities?

[Lord Shutt of Greetland]

My Lords, I have to say that during discussion on the Bill, noble Lords are constantly saying that the Government are being too prescriptive, on the one hand; or, on the other hand, that the Government need regulations or some backstop somewhere. It seems to me that there is balance in all things. What I have read out is the balance perceived at this point. This is Committee, so, as always, the comments of noble Lords will be taken into account.

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[Baroness Gardner of Parkes]

My Lords, my Amendment 155 is in this group. After listening to the complexity of the last amendment, I must say that mine is extremely simple. However, it is not quite what I intended to table. It is headed, “Requirement for consultation on retrospective application”, which is exactly what I believe should happen. However, it says that the local planning authority may require an applicant to do this. My view is that the council planning authority should do this.

I have had personal experience in two parts of the country. In my village, local people supported an application to convert a barn opposite into a home and to build a wall two metres high. Suddenly, we found that we were faced with a wall at least two to three metres higher than originally proposed. When we said that we were not consulted, we were told that the builders of the wall had been given retrospective permission. However, it was given without any of the people who had taken an interest in the application, and in many cases supported it, having any idea that the thing had gone back for retrospective permission. I believe that anyone who sent in comments on the original application should certainly be consulted again, but I do not think I intended it to be the applicant doing it. I intended it to be part of the planning procedure. It is a very simple amendment. It cut out the lovely view we all had of the village green, the only unspoilt part, where there are sheep and so forth wandering around. Instead, we have got a wall three metres extra in height. I think this sort of thing is happening to people everywhere, and it should be covered.

[Lord Greaves]

My Lords, I have the fourth amendment —Amendment 170CH—in the group, which is a bit of a mixed bag. I also added my name to the first amendment which was tabled by the noble Lord, Lord McKenzie of Luton, and support everything he said about it.

Amendment 170CH is another amendment which originated with the RTPI. I am also grateful for help with it from Vivien Green, who is a planning consultant who lives not very far away from me in Pendle. The amendment would add two new sections to the Town and Country Planning Act 1990. The first would be new Section 106D, “Notification of initiation of development”, the key part of which reads:

“A person who intends to carry out development for which permission has been granted or for which a local development order, a neighbourhood development order or a community right to build order has been made must as soon as practicable after deciding on a date on which to initiate the development inform the local planning authority of that date”.

It also requires the local planning authority to draw attention to this provision when it gives permission for development.

The second new section, Section 106E, “Display of notice during development”, states that,

“A person carrying out relevant development must display a notice containing prescribed information while the development is taking place”,

and gives some more details about the classes of development to which this applies—it obviously would not apply to small developments or simple changes of use—and to some other provisions in relation to it.

There is no doubt that there is a general problem with enforcement. In general, enforcement is something that local planning authorities do not always do as well as they do some of their other tasks. It is seen as something that you do when you have a bit of spare time, perhaps, and it does not get the same resources put into it. That includes enforcement of conditions and of compliance with the details of planning applications. It is our view that a provision that developers and people with planning permission should have to inform the local planning authority when development starts would be of help in this respect.

Such a provision would ensure that checks can then be made on pre-commencement conditions and subsequently that development is proceeding in accordance with approved plans. It is already a mandatory requirement for developers to give 48 hours’ notice of intention to commence work under the building regulations. Of course, developers may use someone other than the council to provide building control, but, nevertheless, many still use the council. Even if a developer is going to use a council building inspector, in a number cases the development can commence by the actions of the developer long before a building control notice is required.

I have been provided with correspondence between the Member of Parliament for Pendle, Andrew Stephenson MP, who was originally contacted by Vivien Green to take this matter up, and Bob Neill, the Minister, whose letter puts the argument about why the Government are not happy about this, which is perhaps what the Minister is going to say. The letter says:

“However, I would be reluctant to impose a further statutory requirement of this nature on developers, in addition to those that apply under Building Regulations and the Community Infrastructure Levy system, particularly when we cannot know whether local planning authorities would be likely to use the information routinely or only exceptionally. If a developer is suspected of having failed to comply with any pre-commencement condition, the local planning authority’s enforcement team is still able to take action”.

However, I think the argument that it is onerous should not be taken too seriously. Filling in a simple form, possibly a prepaid one, to notify the council of the intention to start development is not a great burden and is definitely not in the same league as the CIL system. Where developers are using the local authority for building control purposes, they have to notify them under the building regs. It would be perfectly possible to have a joint form so that there would be hardly any extra work. It has been a statutory duty to notify the planning authority in Scotland since 2009, and developers did not raise this requirement as an issue or a cost when the impact of those changes was assessed recently by the Scottish Government. It is a relatively minor thing for people to do but it could have a significant effect in improving the system of making sure that people are adhering to conditions and to the planning application that has been approved. In our view, it would be a useful small reform. I look forward to the Minister’s comments.

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As I say, this has been an interesting debate, and I hope the noble Lords are reassured by the Government’s proposals in the Bill and that they will not press their amendments to a vote.

[Lord Greaves]

The problem with enforcement is that it is inevitably reactive when it depends on people making complaints. However, there is no need for it to be reactive in the case of new developments. We all know just how much annoyance is caused when someone in the street is seen to get away with doing various things for which other people apply for planning permission and pay fees. We all know how someone can do it; they can stretch the system out for quite a long time if they want to do so. A system under which there was automatic notification and inspection of the work would seriously cut down on development that did not have planning permission. As I have said before, the Government say that it is a major imposition to ask people simply to say when they are starting work, but that is not true. The Minister said that we cannot know how many authorities would use this provision. Perhaps the people who are promoting this amendment might try to find out.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for his reply. He said that he did not think my amendment could be made to work because it had no sanction, but when I moved the amendment I suggested that one could impose a fixed penalty sanction for failure to comply, which hopefully would deal with his concern.

I support Amendment 170CH, tabled by the noble Lord, Lord Greaves. In fact, had I got round to it I would have put my name to it for the reasons that he gave. It seems to me that there could be three notifications: building control; the one that the amendment seeks to introduce; and CIL, which is triggered by the commencement of a development. I offer this to be helpful to the Government. Surely those three regulations could be rolled into one to satisfy the requirements in the noble Lord’s amendment: you could have two out and one in, so you would be ahead of the game.

On the amendment in the name of the noble Lord, Lord Avebury, and supported by my noble friend Lady Whitaker, I should like to read the record of what the noble Lord said because at this hour I did not follow it in great detail. Certainly I would be very concerned if the perception and the reality were that this clause was principally in place to deal with Gypsy and Traveller families. I know how committed both he and my noble friend are to ensuring that those families have justice. For a brief while when I sat in the noble Lord’s position, I remember answering a Question on this. If I am right, across the country something like the extra provision of one square mile of land would be sufficient to deal with the issue. It is undoubtedly the case that local authorities have not fulfilled their duties in making enough provision. However, I should like to read the record so as to understand better the technicalities of the point made by the noble Lord. Having said that, I beg leave to withdraw the amendment.

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[Lord McAvoy]

My Lords, I support my noble friend’s amendment. I declare an interest in that my eldest son, Thomas, is a ganger with Network Rail; he is not in the high echelons of management, but he is a ganger with firsthand experience of working on the line, doing maintenance and improvements. No one wants a situation in which Network Rail, or any organisation, can disrupt public services by not fulfilling its tasks properly. Carelessness can lead to other things. Nevertheless, Network Rail, like many other companies, needs the process to be transparent and speedy. I know that it is difficult to get planning applications—or indeed any applications, such as applications for improvements to the rail network—processed speedily, but speed is needed. Anything that improves that must be a good thing. I hope that the Minister will be able to give my noble friend a positive response.

[Lord Greaves]

My Lords, I and my noble friend Lord Tope have five amendments in this group. In view of the time, and in the hope that we might get on to the next group before we go home, I would be happy for the Minister to write to me detailing the government’s responses to those five amendments. If he agrees to do that, I shall not say anything further on this tonight.

[Lord McKenzie of Luton]

My Lords, this is a very large group of amendments, many of which are quite technical. None of them has been spoken to in any great detail. I am grateful to my noble and learned friend Lord Boyd for his technical paper, which helped me on this, and for his guidance. I say to the noble Lord, Lord Jenkin, that I puzzled over his reference to 132 kilowatts and I was not quite sure what the amendment was about. I now know that it is important, although I am not quite clear why.

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[Lord Greaves]

My Lords, I apologise to the Committee for tabling a manuscript amendment this morning, but as a result of discussions with my colleagues, it seemed helpful to have this amendment on the table in order to assist progress over the summer towards the Report stage. It is something that might be considered as a compromise and a way through what is a very difficult position with certain sections of the public. That is why we did it. But now we seem to be spending a lot of time discussing whether to take the amendment when we could either be considering it or we could be going home. My view, and what I think is the view of my colleagues, is that it should be properly grouped with the debate on whether Clause 124 should stand part of the Bill. The debate on this amendment is an integral part of the debate on Clause 124.

I do not blame anybody for it, but at the last minute the amendment was put in the wrong place, and perhaps it should have been tabled the other way around the clause stand part debate. But it has been tabled and it can be discussed tomorrow with Clause 124. If having it on the agenda tomorrow is a procedural difficulty, I will not move it tonight so we can all go home in the knowledge that it exists and that we can discuss it as part of the consideration of Clause 124. I have to say that I will not be here, so my noble friend Lord Tope will deal with it. The amendment needs to be discussed with Clause 124, because it is part and parcel of the same debate. I do not think that having them together will take any further time. If there is a procedural problem about that, I shall not move the amendment and take advice from whomever.

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[Baroness Royall of Blaisdon]

My Lords, I thank the Chief Whip for that accommodation. I apologise unreservedly for misleading the House. My noble friend Lady Crawley informs me that usual channels agreed to finish at around 23:00, not 22:00. I beg your Lordships’ pardon. I am grateful to the noble Lord, Lord Greaves. It is best that his amendment be debated tomorrow, as the noble Baroness said.

We will strive to finish this stage of the Bill tomorrow, but I cannot give an absolute commitment. I think that we should finish in good time and we will do our utmost to do so.

[Lord Greaves]

I shall just let the amendment be. Thank you.

House resumed.