Growth and Infrastructure Bill

Lord Greaves Excerpts

Tuesday 22nd January 2013 Lords Chamber

[Lord McKenzie of Luton]

My Lords, we have Amendments 36 and 37 in this group, which I shall come to in a moment. If I may respond directly to the noble Lord, Lord Tope, he said that the Bill is not as bad as it seems. We may part company on that proposition but I think that we share company in wanting to mitigate its worst effects, if we cannot get rid of it in its entirety.

As regards Amendment 1 and the 18 months’ prior notice, certainly the thrust of this amendment is one which we can support, although it begs the question of the criteria for designation. However, I know that we are going to come to that point in due course.

As proposed in the consultation document, a designation would follow automatically from the criteria. The first is planned for October 2013, based on performance data for 2011-12 and 2012-13. On this basis, an 18-month lead time would mean designation in January or April 2015—not necessarily a bad thing if the authority has to wait that long. Obviously, the 18-month notice would give it time to improve its performance, but there would be only one more year of performance data. Some process of representation on improvements is needed, and we have amendments to cover this.

Amendment 36 requires the Secretary of State to,

“serve a notice of intention to designate”—

a parallel proposition—and for the local authority in question to have the chance to make representations as to,

“why designation would be inappropriate”.

We should be clear that our preference would be for the clause not to proceed at all but, if it does, it has to have a range of necessary safeguards built in.

It is the Government’s expressed intention that designation will be automatic following publication of the statistics relating to speed of determination and levels of successful appeals, although there will be an opportunity in year one to correct gaps or errors in the existing data. It is accepted that this would have the merit—if one could call it that—of providing information to authorities on how close they were to being designated, but this approach would not impact all authorities equally, which is why we consider that the opportunity to make representations should be allowed. This might be particularly important for smaller districts where the numbers of applications for major developments might be quite small. Indeed, we received some data a short while before Committee today. I do not know if all noble Lords received it, but some authorities in the year to March 2012 received as few as two major applications to deal with. Others received more than 160. Therefore, this process will not impact on all authorities equally. One or two applications might have a significant impact on an individual authority’s metrics and the circumstances may be outside its control. The delay may be down to the applicant or consultees; indeed, if problematic applications are in the pipeline, someone might try to game the system to push an authority towards designation. The delay might also be down to community issues. Applications relating to Gypsy and Traveller sites seldom go through on the nod.

Amendment 37 requires the Secretary of State to bring forward an improvement programme before designation can take place. This is an alternative formulation to that in the amendment of the noble Lord, Lord Tope. The programme could be a sector-led improvement or a combination of processes to ensure that local authorities have the opportunity to improve. However, what we must be clear about is that the clause cannot stand in its current formulation, and we need, one way or another, a range of the sort of protections that are dealt with in these amendments.

[Lord Greaves]

My Lords, this is the first day of Committee and a new stage; according to the rules, I therefore need to repeat the declarations of interests that I made at Second Reading. I remind the House of my membership of a local planning authority and of two development management committees. I am also a vice-president of the LGA.

I have tabled Amendment 32, to which my noble friend Lord Tope was good enough to put his name, whereby if the Government wish to designate an authority they should set out a notice of intention to do so. There is agreement across the amendments in the group that this is a good idea. I have tried to flesh out the broad principle set out in the lead amendment and some others. My amendment states:

“Before designating an authority under this section, the Secretary of State must serve a notice of intention to designate … The notice must … specify the reasons for serving the notice, all of which must have regard to the criteria that the Secretary of State has published”.

It should,

“specify those actions by the authority which the Secretary of State believes are necessary to satisfy the reasons for serving the notice; and … give the authority a period of twelve months in which to take the specified actions”.

Whether the period should be 12 months is debatable but I took the view that the Government would not want it to be too long. The amendment continues:

“At the end of the twelve month period, the Secretary of State must publish a report which sets out the extent to which the reasons for serving the notice still apply or no longer apply”.

At that stage, the Secretary of State may confirm the designation and take over relevant planning applications or withdraw the designation because, in his opinion, the authority has pulled its socks up, or he may give the authority another six months in which to do so.

It seems to me that this whole process, for the first time, takes away planning powers from local planning authorities and vests them in the person of the Secretary of State on the basis of alleged or perceived poor performance by a local planning authority. This is quite new and the process needs to be absolutely transparent. People need to understand why the decision is being made and how the situation can be remedied.

Like other noble Lords, I would much prefer this provision to be taken out of the Bill. However, if it is going to be there, there needs to be a clear choice between a degree of perhaps heavy-handed, detailed intervention in the running of an authority to sort out the problem and the draconian and complex process of an almost immediate central takeover of some of the development management functions of that authority. Surely the first of those must be the way forward. However few of these authorities there may be, the Government are proposing to nationalise some of their planning functions. It is interesting that a Government with a majority of Conservatives are sometimes so interested in nationalising things which up until now have taken place at a local level.

The amendment puts forward a gentle nutcracker, not a sledgehammer, if there is a nut to be cracked, and I hope that something along these lines will find favour with the Government. In particular, even if they do not want to put something on the face of the Bill, I hope that they will give very clear commitments along the lines of the amendment in the name of the noble Lord, Lord McKenzie of Luton, so as at least to give authorities the right to defend themselves and to explain what they can do, and also to give them a period of time in which to improve their performance so that we do not have to go through this rather draconian and undesirable rigmarole of the Planning Inspectorate—bless them—taking over detailed local planning functions.

[Lord Beecham]

My Lords, I also declare interests as an honorary vice-president of the Local Government Association and a member of Newcastle City Council. During my service on that local authority, I was leader of the council for some 17 years and was heavily involved in major development decisions. Subsequently, I was chair of the development committee and, after that, I served as a member of the development control sub-committee. Therefore, I have some working knowledge of the role of the local authority in planning.

I join my noble friend Lord McKenzie in broadly supporting this group of amendments as a way of ameliorating what seems to me a very badly drafted Bill. It would be preferable if the Government would abandon this whole proposal. I say that because there are many questions around the reasoning behind the Bill.

In the impact assessment there is reference to the financing costs to the development industry of the present planning system, which one Professor Ball estimates at £1 billion a year in respect of delays in planning permission and another £1 billion for, as he puts it, holding assets for which at the moment development does not seem to be possible. That seems to ignore completely the outstanding permissions—as I recall, some 400,000—which have not been activated by that industry. Therefore, it seems that the professor has a somewhat skewed view. Even if he were right, would the Minister be able to indicate what the impact of these proposals would be on the figures that the professor has produced, on which the Government seek to rely in the impact assessment? What would be the reduction from the £1 billion figure, or indeed the £2 billion figure, if one takes into account land which developers do not seem able to bring forward?

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[Lord Jenkin of Roding]

My Lords, I am grateful to my successor as Secretary of State for the Environment a good many years ago for giving way.

I was unable to speak at Second Reading because I could not be here, but I declare an interest as a vice-president of the Local Government Association and a joint president of London Councils. I have considered whether to make these remarks, which will have a somewhat different tone from what we have heard so far, now or leave them until the Clause 1 stand part debate. In the light of the speech made by the noble Lord, Lord Beecham, it seems to me that it would be appropriate to say what I want to say now.

Of course, I have read all the briefing and have had meetings with the Local Government Association, which has expressed clearly its view that it would very much prefer this whole clause not to be in the Bill. It has suggested a number of amendments that we shall come to later. I put it to the association that I do not think that it has paid sufficient attention to the significant volume of evidence that is set out in the impact assessment, published last month. The noble Lord, Lord Beecham, referred to bits of it, and I shall do so as well, but perhaps drawing a somewhat different conclusion.

He referred in somewhat disparaging terms to the work of Professor Ball at Reading University, who has produced a report that seems to support the view that there is a very substantial body of opinion that regards the planning system as one of the barriers to growth. Professor Ball stated on page 12 of the impact assessment that the transaction costs of development control for major residential developments may be as much as £3 billion a year. He gave evidence recently to the Communities and Local Government Select Committee and advised that the actual costs were likely to be much higher than this. He went on to talk about the value of development that has been delayed by the planning system and stated that, taking into account both direct and indirect costs to the economy, the total cost of development control could be expected to run to several billion pounds. This is the view of a very respected academic who was consulted by the department and who gave evidence to a Select Committee in the other place.

I recognise the point made by the Local Government Association that planning is by no means the only barrier. Certainly the availability of finance, particularly for housebuilding and some forms of industrial and commercial development, has been a considerable problem. Of course, that is being addressed by the Government through a number of other measures that are not necessarily in the Bill. However, we all have evidence from bodies such as the Chambers of Commerce, the Home Builders Federation and the Confederation of British Industry. They are the investors who are affected by planning controls. Everybody seems to agree that what we need now is more investment in our infrastructure. They are the people who will do it and they have provided strong evidence, from surveys of their members, of the barriers posed by the planning system. On the measures taken in the planning Bill, in particular the National Planning Policy Framework document, I have nothing but the highest praise for my right honourable friend Greg Clark, who took it through. I notice my noble friend on the Front Bench nodding. Mr Clark did a splendid job. Despite that, these complaints are still being made. In these circumstances, the Government are right to take account of them.

Nobody is arguing for a moment that this is a magic wand that will remove all difficulties. The Minister said that the Bill was not likely to achieve that by itself. However, it contains a number of measures that will improve growth in the economy and remove barriers to investment. In these circumstances, one has to look very carefully at amendments that are designed to make the process outlined in Clause 1 more difficult. I do not say for a moment that it is all right. I will listen to the debates on amendments. I have put my name to some of them and, when the Marshalled List is reprinted, it will be seen that I have added my name to others. At the same time, I do not want the Committee to feel that I share the views of those who would rather see Clause 1 removed.

[Lord Greaves]

My noble friend is eloquent and has a very established knowledge of these matters. However, if it is true, as Professor Ball suggested and my noble friend seems to accept, that there is a major problem of delay in the planning system in all sorts of places, how will that be solved by a clause in the Bill which, according to the Government’s consultations and the criteria that they are known to be thinking of setting out, will affect only a very small number of very small planning authorities?

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[Lord Burnett]

My Lords, I start by declaring my interests. I have considerable sympathy with the points made by the noble Lord, Lord Jenkin of Roding. From the tenor of the debate, I would say that it is a stand part debate. I believe that the clause, as possibly amended to ameliorate the time limits, could very well be a spur to improving the planning system.

The noble Lord, Lord Deben, asked whether anyone can suggest some draconian questions that should be asked of local authorities. I can suggest one or two. Some adopted local plans are lamentably out of date. That is a criterion of performance and one that developers find incredibly frustrating if it is not met. I understand the position of local councillors, although I have never been one. Some matters are incredibly difficult for them to decide. Sometimes cases go to appeal and the planning inspector will decide them. When you are trying to propose housing, commercial or shopping development, and so forth, you cannot really be expected, as a developer or a builder, to rely on a local plan that is seven, eight, nine or 10 years old. That is just impossible.

That could be one measure. Another that I referred to in my Second Reading contribution is that greater attention must be given to measures of housing need. With the demise of regional spatial strategies, each local authority will face the task of assessing housing need in its own authority. There should be a clear, intelligible and compelling basis for assessing need. The underlying basis and calculation should be publicly available—and should be available to challenge by the customers of local authorities. It is not good always going for the lowest number when in fact that is not appropriate.

In many parts of this country, the south-east and south-west in particular, a great many people do not want to see development for one reason or another. Perhaps that development is not appropriate, but just to deny need without proper evidence is not fair. It is not fair on the thousands and millions of people who are looking to get on the housing ladder and to buy houses.

I hope these two measures are two draconian questions that this clause will ask of local authorities and that they will ensure that adopted local plans are up to date and that there is a clear measure of housing need. All of us in this House want to see houses become more affordable. We all know that there is a severe housing crisis in this country. Can my noble friend the Minister give me some response on those two matters when she replies to this debate?

[Lord Greaves]

Would my noble friend be surprised to learn that his remarks about local plans and the delays to them are ones that I agree with completely? Does he agree, and would the Minister perhaps agree later on, that the main delays in the planning system are to do with the local plan system and the production and development of local plans, rather than in dealing with applications for planning permission?

[Lord Burnett]

I am extremely grateful to my noble friend. I feel supported and vindicated in the thrust of the points that I was endeavouring to make to the House.

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[Lord Greaves]

I am very grateful to my noble friend. I know that she is always very diligent in listening to the House and this Committee. If the relevant years are the two previous years to the end of March 2013, which is only just over two months away, and a local planning authority cannot do anything about the figures in the time that is left, is it not unreasonable to tackle this issue in the way that is proposed, which is what these amendments are all about? One could say to a local authority, “Yes, the figures in these two years are those which apply but you now have a period of time”—12 months, 18 months or whatever—“to put things right”. Is that not the reasonable way to approach this issue?

[Baroness Hanham]

My Lords, you can also approach this matter from the standpoint that the planning authority has not performed correctly over the previous two years and has been on notice of that. If you delay the designation for 18 months, you further delay the possibility of improvement taking place. I hesitate to suggest that we should agree to the delay proposed in the amendment as I think that designated local authorities will begin to improve their performance.

The noble Lord, Lord Best, and other noble Lords asked about peer help. We have already made it clear that we accept very much that the Local Government Association has a role to play in helping designated local authorities to improve, and to do so even within the period of designation. As we will discuss later, that period will be reviewed annually, so local authorities can get out of this situation in a very short time. This clause—

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[Baroness Hanham]

My Lords, that relates to the consultation, which we are moving on to in Amendment 2. Perhaps we might follow the amendments in order, because people have gone to a lot of trouble on that.

[Lord Greaves]

My noble friend rightly said that in a normal case, if a major application is not dealt with by the local planning authority within 13 weeks, the applicant has a right of appeal to the Planning Inspectorate. What happens if the inspectorate, on behalf of the Secretary of State, fails to determine an application within 13 weeks? What recourse does an applicant have? Can the application be sent back to the local authority to sort out? What will happen?

[Baroness Hanham]

My Lords, the expectation is that the Planning Inspectorate will perform against the statutory criteria.

The noble Lord, Lord Campbell-Savours, asked whether there would be democratic involvement as applications go forward. Local residents will have their normal ability to comment and all the normal planning processes can take place. All that will happen is that the decision will not be made by the local authority at that stage but by the Planning Inspectorate, which may very well have had to pick up the application if the local authority was not performing within the 13 weeks. There is nothing to be gained by delaying the designation. Our intention is to ensure that if a local authority is designated, it is in and out of that designation as soon as possible, given the help, support and encouragement that will be available from the Local Government Association and other planning means.

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[Lord Jenkin of Roding]

Encouraged by the noble Lord, Lord McKenzie, I will say something about Amendment 28. When I was Health Secretary, I had to suspend the Lambeth, Southwark & Lewisham Health Authority because it was refusing to live within its cash limits. That suspension was overturned by the High Court on the grounds that I had put no limit on the time of suspension. The embarrassing consequence was that I had to bring legislation before Parliament to validate what the commissioner whom I had appointed had done in the intervening period. Has my noble friend taken into account what the courts might say about what would appear to be an indefinite period of designation, or does she envisage that a designation will always include a time limit during which it could be considered, reconsidered and if necessary renewed? I was stung once, and one can use one’s experience to ask what I hope is a not wholly frivolous question.

[Lord Greaves]

My Lords, my Amendment 33 is in this group. I certainly support the amendment in the name of my noble friend Lord Tope. Before I speak to Amendment 33, I will say that I strongly support the amendment moved by the noble Lord, Lord McKenzie of Luton, which sets out that the criteria for making decisions should be in regulations that are subject to parliamentary approval. We can argue about whether approval should be by affirmative or negative resolution, which is the argument we normally have, but here we are arguing about whether the criteria should be in parliamentary regulations and statutory instruments or whether the Secretary of State should have the power to issue an order stating what the criteria will be, or simply to publish the criteria. This is unsatisfactory.

Many development orders made in the planning system are not subject to parliamentary approval. This is part and parcel of the planning system and relates sometimes to planning policy and often to the way in which the system works. This legislation is different because it would take away the statutory powers of authorities to carry out their planning functions and transfer them to the Secretary of State. It is on a different level from normal development orders and it is right and proper that the criteria should be subject to parliamentary approval—not the decisions as to which authorities should be designated but the criteria that the Secretary of State has to follow to carry out a designation. Unless they are, the opportunities for judicial review might be substantial simply on the basis of something that has been published. However, in principle, the noble Lord, Lord McKenzie, is right.

My amendments seek to probe in detail some aspects of the criteria that the Secretary of State will look to when deciding whether or not to designate an authority, and particularly some of the criteria that will count against designation because they might be unreasonable. The Minister touched on some of these in her reply to the previous group of amendments but I hope that she will look at the amendments one by one and give the Committee an understanding of the Government’s thinking on them.

In the discussion on the previous group of amendments, the noble Lord, Lord Jenkin of Roding, referred to the wide variation in performance of local planning authorities. I have no doubt that, as in many other aspects of their work, there is a substantial variation in the performance of different local authorities. That is inevitable where you have hundreds of local authorities around the country carrying out their functions in different ways with different degrees of efficiency and effectiveness. It is part and parcel of local democracy.

However, in this area there are two issues involved. One is the genuine underlying difference in performance, which no doubt will and does exist. The other is what the statistics show and whether those that we have at the moment on delays in determining planning applications have any underlying meaning. In many cases, they are based not only on different levels of efficiency in dealing with planning applications but on the different practices of local authorities. For example, on major applications, the level and depth of the pre-application discussions that take place vary from one local planning authority to another. Some local planning authorities will wish to extend the pre-application discussions until they have got to a point where they think they can put an application through the system and probably get a decision in favour. That will mean that the submission and registration of the application will take place later than in other authorities which take the view, “Let’s get the application in and, once it is in, we can have a great deal of discussion and debate about it”. Of course, it will be more difficult to keep that within the 13 weeks.

Therefore, not all authorities that take longer than 13 weeks over many major applications are necessarily making the decision later than authorities that appear to make the decision within the 13 weeks. It is a question of when the application is submitted and registered. There will be authorities that register an application almost as soon as they get it, while others will accept the application when it is submitted, look at it, and then say, “You have not provided this and that, so we are not going to register the application until you have provided it all”. All this is done with the agreement of the applicant. The second group of authorities will fit within the 13 weeks more easily than the former group because they will spend time gathering information after the application has been registered.

Where an application is generally all right with only a few details to be sorted out, some authorities will give the developer a nod and a wink and come to an agreement that the application is rejected. Instead of lodging an appeal, the developer spends a little time sorting out the application and then resubmits it. I think that developers have a right to resubmit within 12 months without paying an extra fee. Different practices mean that authorities generate different statistics in terms of whether they deal with applications within eight or 13 weeks. The statistics are not based on differences in the underlying efficiency of authorities, but if the period of 13 weeks becomes more important because authorities do not want to be designated, they will use these processes to reduce to a minimum the work that actually has to take place within the 13 weeks and do as much of it as possible in advance. That does not mean that the final determination will be made any later or any sooner. All this is the practical stuff of how things happen. However, if people are given targets, they will find ways of achieving them. Some will do so by becoming more efficient and others will do so simply by changing their working practices and doing what other councils do.

Amendment 33 sets out some of the criteria referred to by the Minister in responding to the last amendment. They are the criteria that the Secretary of State will have to look at when deciding whether to designate a council. Subsection (9)(a), which will appear in new Section 62A of the Town and Country Planning Act 1990 proposed in Clause 1, refers to,

“planning performance agreements … entered into … before the submission of an application”.

The Minister has suggested that such agreements will be an acceptable reason for taking longer than 13 weeks, but it would be helpful if she would confirm that. Proposed new subsection (9)(b) refers to any,

“agreements that have been entered into following the submission of an application”.

Will this be an excuse not to be designated or will the local authority be told that once it has registered the application, the clock starts ticking remorselessly? Proposed new subsection (9)(c) is important in many cases, and refers to,

“informal agreements that have been entered into between applicants and the local planning authority to delay the issue of a decision”.

It is often in the interests of both the applicant and the local planning authority, along with everyone else, to sort things out before a decision is made. If things are not sorted out, there is a greater risk of a refusal which causes further delay through an appeal or a resubmission. Particularly on major applications, negotiations always take place between the applicant and the local planning authority to cover the detail and conditions of the application, such as those which may arise from a Section 106 agreement. If those discussions are artificially brought to a close before they are properly agreed, we will see worse decisions being made. Proposed new subsection (9)(d) refers to,

“any delays that have been caused by the failure of statutory consultees to respond within the specified time”.

The local planning authority is perfectly entitled to determine an application if it has not had a response from, for example, the Highways Authority, but it would be very foolish for it to do so if the application will have an important impact on the local highways network or even if it is just a matter of connections to the local network. If the Environment Agency is late in responding, what do you do? Do you pass the application anyway or, when you get a late response from the Environment Agency saying that it does not like the drainage system which is being proposed and that, as it stands, it would recommend refusal, do you refuse it on that ground? Alternatively, do you say, “No, we need more time for the applicants to work together with the planning authority and the Environment Agency to sort it out”? These are the kind of decisions and practices which take place time and time again on major applications.

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[Baroness Hanham]

In the consultation, it is suggested that the length of designation should be reviewed after a year. I think that the noble Lord, Lord Jenkin, is asking whether you could keep on renewing it so that there would be no end to the time. I do not know the answer to that, and I will drop the noble Lord a note, if I may.

[Lord Greaves]

My Lords, very briefly, I welcome what I think is a positive response from the Minister about local authorities not being put in a perilous position for reasons which are not their fault. I accept that my amendment was a typical Committee amendment to set out some of the issues in black and white; I did not expect it all to appear in the Bill. However, the point made by the noble Lord, Lord Deben, was that at the moment there is nothing in the Bill. If something can be included in the Bill to give me some reassurance and guarantee that the thinking—I am always in favour of thinking; it is what makes humans progress—that the Minister promised will take place on these matters, that would be extremely helpful. That could be by introducing regulations.

The only other pebble that I want to drop into the pond at the moment is to ask whether there is a danger that by emphasising formal planning performance agreements for major applications, the mere negotiation of those agreements in a much larger number of cases might cause more delays.

[Lord McKenzie of Luton]

My Lords, like the noble Lord, Lord Greaves, I take a small degree of comfort from the Minister’s response to considering reports on parliamentary process. That is the most important point to flow from this group of amendments. I am sure that the noble Baroness will be well aware that if the Government do not signal that they can meet our aspirations, we will return to that matter on Report in any event.

It seemed to me that pretty much every other noble Lord who spoke broadly supported this group of amendments. To be clear, we are happy to support each of Amendments 8, 34 and 33—I think that I attributed Amendment 34 to the noble Lord, Lord Greaves, but it was tabled by the noble Lord, Lord True—as well as our amendments in the group.

I am disappointed that the Government do not feel that they should look at the direction of travel of an authority, because it seems to me that that is at least an indication of its capacity to improve, which is what this should all be about. The noble Baroness referred to Secretaries of State and asked what is to stop them changing the criteria in future. As I understand it, the point about the consultation is that there is a positive plan to change it after the first year—to raise the bar. That is what the consultation document states. It asks questions about what the enhanced criteria should be.

On the need for more guidance and clarity, the noble Earl, Lord Lytton, gave us an historic sweep from county structure plans through to the NPPF and, in particular, the NPPF’s need for guidance to bolster it, especially given its newness.

I thought that the amendment tabled by the noble Lord, Lord Greaves, was particularly helpful. Not only does it demonstrate his now acknowledged expertise and practical understanding of what happens in authorities; it sets down a range of things which could impact on how the metrics come out for any local planning authority. It must surely be right that, one way or another, those are taken into account. It would be difficult to carry them all in a clear way within the Bill. However, either there has to be some process of representation so that local authorities in danger of being designated, armed with what has actually happened on their patch, could come and say “Don’t do it”, or we need to have some real clarity in guidance about this range of issues being taken properly into account.

This debate has, I hope, moved matters on. I hope that the Government will reflect seriously on this because if this clause is to go ahead—we hope that it does not but suspect that it might—we need to make these improvements and have some clear indications of how that might be accomplished. Having said that, I—

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[Lord Beecham]

My Lords, is 20 years a reasonable period? The point has already been made in debate that there is an issue with the effectiveness of local plans. If we are going back as long as that, it could be argued that that is not really a sufficient incentive to authorities to bring their plans up to date. They cannot be done annually but two decades is an extremely long time.

[Lord Greaves]

My Lords, I apologise that I missed the speech by the noble Lord, Lord McKenzie. He was moving an amendment that is very similar to my Amendments 7 and 26, which are in this group. I am sure that I agree with everything that he said about Amendment 3, since in effect it says almost the same thing as my Amendment 7, so I will say no more about that.

I want to say something briefly about national parks. There are two issues here. One concerns planning applications that may not become relevant applications and are therefore referred to the Secretary of State, as in the noble Lord’s amendment and my Amendment 7. My Amendment 26 says that authorities that may not be designated should include,

“a national park authority or the Broads Authority”.

The helpful information that we got about the number of major applications in the past year shows clearly that there are not very many in national parks. I think that the Minister referred to this; in some cases, the figure is as low as two. The statistics there could very easily be distorted.

However, there is more than that. National parks are very special places that have been designated for very special reasons. The national park planning authorities are already different from ordinary local planning authorities. They are not the ordinary district councils; they are the national park authority, which is a planning authority in its own right. A substantial proportion of the members of national park authorities are already nominated and appointed by the Secretary of State; I think it is the Defra Secretary of State, but is definitely a Secretary of State.

To take functions such as major planning applications away from the national park authority, in these very special places with their very special landscapes, and put them in the hands of a different Secretary of State —the Secretary of State for Communities and Local Government—with a quite different agenda risks the balance of decision-making on these applications in national parks, shifting away from the importance of nature and landscape and towards development. Clearly, there always has to be a balance in every sort of area and national parks have to have development, but the criteria on which planning applications in national parks are assessed and decided are materially different from the criteria in much of the rest of the country. That is why they have been designated as national parks. The national park authorities have the responsibility for looking after those parks and for ensuring that those criteria are applied, in the interests not just of the landscape but of the people who live there. To take that away from them on technical operational grounds, based on the proportion of planning applications that were dealt with and determined within a two-year period or on other similar criteria, would be quite wrong.

This proposal is causing great alarm among the people who care for and about national parks, and I hope that the Minister will make it clear that they are not to be designated under any circumstances—and, preferably, will do so in the Bill.

[Lord Deben]

My Lords, on this occasion I hope that the Minister will not accept any of these amendments because they do not stand up at all. As she knows, I am not happy about this clause, but the national park authorities have one of the worst reputations when it comes to dealing with applications—we cannot avoid that; when I was Secretary of State I had a constant stream of particular authorities that were quite unable to do these things properly—and the idea that somehow or other they should be put aside seems to be unacceptable. If, as we are beginning to understand, the criteria are largely those of speed, it would do the national parks quite a lot of good to get their answers in rather more quickly than they do at the moment. The idea that they have to be slower than anyone else is not an acceptable position as far as national parks are concerned. If we accepted the quantum of these amendments, there would hardly be any application anywhere in the country that would not find itself in one way or another touched by one of the designations that we are talking about.

We ought to concentrate on the issue that really matters, which is how we make the clause work in a sensible and transparent way. That is what we have been pressing for, and to try to avoid its implication by putting a series of designations outwith it does two things that are dangerous: first, it would remove any value that the clause might have, and, secondly, it would detract from the things that we are trying to say elsewhere. I want a regime that can work properly wherever in the country it is applied. I hope therefore that the Minister will not accept these amendments but that she will recognise that the reason for them fundamentally is this unhappiness with the uncertainty of the basis upon which this clause is going to be imposed.

If everyone were happy about the objectivity, correctness and clarity of the basis on which a planning authority will be designated, there would be much less of a problem. It is the unhappiness with that which lies behind most of our concern. If the Minister could put that right, I think most of us would accept that within those contexts it is perfectly reasonable to ask the planning authority of a national park to do its job within a reasonable amount of time. If it has only two planning applications a year, then obviously no Minister is going to say, “We’re going to apply the 30% rule”—I am not sure how you would apply that—and I am not too upset about that; it does not worry me too much as long as it is in the context in which all these things are dealt with in an objective and manifestly properly constituted way.

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[Lord Tope]

My Lords, before the Minister responds, may I respond briefly to the noble Lord, Lord Beecham? He questioned whether the 20 years suggested in my amendment might be too long. He may well be right and it may well be so. At this stage, my consideration is more to get the principle accepted rather than a specific time period. Part of the reason for that is that I think we would all want to incentivise the surprisingly large number of local authorities that still do not have a local plan in place. The positive intent, if you like, of the amendment is to provide that incentive. I suggest that whether the period is 20 years, 15 years or any other period is less material at Committee stage than the principle that the amendment is trying to achieve.

Having said that, perhaps I could comment on what the noble Lord, Lord Deben, has just said. Again, I think that most of us who propose amendments in Committee do not expect that they will eventually appear in the Act, but they cover the particular issues that we wish to raise in order to air our concerns, to hear the Minister’s response and, most importantly, for the Minister to be able to take it back to her ministerial colleagues so that the Government can come back on Report in exactly the way that the noble Lord is suggesting.

[Lord Greaves]

My Lords, I wonder if I can respond very briefly to the noble Lord, Lord Deben. Surely it is the case that because the criteria for granting planning permission in national parks are much more rigorous and strict than in many areas, many developments will actually need more time for negotiation and discussions with the applicants to make them acceptable within a national park context. In national parks particularly, it may well be that some of the authorities are not as efficient as they might be—I can quite believe that—but in general I would expect that similar applications in national parks will take longer than in what I might call ordinary areas, for those reasons.

The statistics are interesting and worth putting on the record. In the past year the Lake District had 19 major planning applications—far more than most others, which is interesting—and the Broads Authority had 13. Of the rest, Dartmoor had two, Exmoor had two, the New Forest had seven, the North York Moors had seven, Northumberland had two, the Peak National Park had five and the Yorkshire Dales had three. With that level of application, it would clearly be ludicrous to apply anything like a strict 30% rule or any other simple cut-off.

[Lord Jenkin of Roding]

The fact of the matter is that this table is about decisions, not applications. The decisions may well have been refusals. Indeed, in many of the national parks, that is what happens. These are major applications, over so many hectares and so on. The national parks are planning authorities in their own right, as are bodies such as the London Docklands Development Corporation. They should be subject to the same sort of discipline as anybody else.

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[Baroness Hanham]

On this amendment I shall satisfy my noble friend Lord Deben and practically nobody else because I cannot accept it. I do not suppose many noble Lords will be surprised at that because, as the noble Lord, Lord McKenzie of Luton, said quite properly and rightly, if this amendment were agreed to, that would be the end of Clause 1 because there would be virtually nobody left to be designated. If that is the purpose, I understand that, but if it is not, that is what the effect would be.

Amendment 6 would prevent the submission of applications directly to the Secretary of State in any area where the planning authority had not adopted a local plan within the past 20 years. I can advise noble Lords that the city of York is the only one that falls into that category. I am not sure that we want to allow that.

Quite apart from preventing the effective operation of Clause 1, these amendments are not entirely logical. Where applications are submitted directly to the Secretary of State, the planning inspectors dealing with them will have to have regard to flood risk and any designations that affect the site, and to the national policy that enshrines those important protections where local plans are not up to date. They are required to do so by law, just as the local planning authority is. Similarly, there is no logic in saying that local authorities should be exempted from designation just because they have responsibility for protected areas. Applicants for planning permission and local communities should be served by an effective planning service in these areas, just as much as anywhere else.

I note the arguments that noble Lords made about the specific circumstances of national parks. I heard very clearly what my noble friend Lord Deben said about this. We want the process of assessing performance to be fair, which is why the consultation proposes looking at this over a two-year period to ensure that judgments are based on sufficient data. We will, of course, be looking carefully at what the consultation responses say about this, but I do not think a case could be made to exclude national parks from possible designation just because they are national parks and because they may not deal with an enormous number of applications. The noble Lord, Lord Greaves, read out the list that I have had passed to me, and it is clear that some have more than others. The same argument can be made for all the other areas that noble Lords want to exclude. I guess most, or a great part, of London is in conservation areas, and I am not sure that we necessarily think that it would be a good idea to exclude them all.

I do not believe that these amendments are necessary. Their effect would be such that I would not be able to accept them because they would make Clause 1 redundant.

[Lord Greaves]

The table I have is headed “total major decisions” not “total major approvals”. This needs clarifying perhaps, but I would not want to clash with my noble friend Lord Jenkin of Roding over a technical, statistical thing when neither of us knows whether it is right.

[Lord Jenkin of Roding]

I entirely recognise that they were both approved and not approved. They were decisions.

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[Lord McKenzie of Luton]

My Lords, under new Section 62A, an applicant can bypass the local planning authority and make an application directly to the Secretary of State. As a practical matter, it is expected that this means it will be dealt with by the Planning Inspectorate, although it does not have to be the Planning Inspectorate, as I understand it, to which the Secretary of State delegates this task. To be able to do this, the local planning authority in question must have been designated and the development in question must be of a description prescribed by the Secretary of State. The prescription is by way of an order subject to the negative procedure. This amendment seeks to clarify in the Bill that the application must relate to a major development. I think the noble Lord, Lord Greaves, has a parallel amendment requiring that before prescribing any types of application there should be consultation with local government and that the regulations should be affirmative.

The power for the Secretary of State to decide which applications he wishes to determine is very wide. The Government state that it will be limited to applications relating to major developments, but the Bill places no such limitation on the power to prescribe, just as the Bill places no limitation on the type of planning authority that might be designated. This is frankly not good enough. This is in line with the other discussions we have had. Indeed, as matters stand, there seems to be nothing to prevent a local planning authority being designated because of perceived poor performance on the timing of decisions on major applications but all its applications being open to be determined by the Secretary of State.

We are encouraged to believe that there will not be many applications that, as a result of these proposals, find themselves being determined by the Secretary of State or the Planning Inspectorate, but the impact assessment states that there is no evidence to support the Government’s assumed diversion to the Planning Inspectorate.

Limiting the rights of prescription to applications for major developments would still potentially encompass a wide range of circumstances. The definition of a major development is interesting and worth reflecting on. It includes,

“the winning and working of minerals or the use of land for mineral-working deposits … waste development … the provision of dwellinghouses where … the number of dwellinghouses to be provided is 10 or more; or … the development is to be carried out on a site having an area of 0.5 hectares or more and it is not known whether the development falls within sub-paragraph (c)(i)”—

that sub-paragraph relates to the number of dwellings—-

“or … development carried out on a site having an area of 1 hectare or more”.

Therefore “major developments” are not necessarily mega-developments. Developments as small as 10 or more dwellings would be included.

It is appropriate that we make clear that it is major developments that can be designated for this process by the Secretary of State, and that there should be a proper parliamentary process to deal with that. I think that accords with the amendment tabled by the noble Lord, Lord Greaves, which we expect to be able to support. I beg to move.

[Lord Greaves]

My Lords, as the noble Lord said, I have tabled an amendment with exactly the same effect as his; I will therefore not repeat what he said. “Major development” means to me those applications which automatically come to committee in our authority. I can confirm that some of them are not all that major, but they are nevertheless important in the community and the area. We need to be absolutely clear about this.

While I am on my feet, we have been talking about 13 weeks on major developments. Can an authority be designated because it is failing to meet the 30% on non-major developments in relation to the eight-week timescale for dealing with applications? It would be rather odd if it was designated because minor applications were not being dealt with within eight weeks, but major ones then got sent off. I wonder if that can be clarified.

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Moved by

[Lord Greaves]

10: Clause 1, page 2, leave out lines 10 and 11

[Lord Greaves]

My Lords, this amendment is about connected applications, which are dealt with in Clause 1(3). I also have Amendment 12 in this group, and there are two amendments from the noble Lord, Lord McKenzie.

Connected applications are those where a local planning authority has been designated so that major applications, we now learn, can be made to the Secretary of State and not to the authority. Where a major application goes to the Secretary of State and a further application is then submitted that relates to the relevant application, it is called a “connected application” in the Bill. Clause 1(3) states that a connected application is determined as such by the opinion of the applicants. This may be made direct to the Secretary of State, or it could be made to the local planning authority. The Bill states that this applies to listed building consents and applications for conservation area consent, which are applications under the Planning (Listed Buildings and Conservation Areas) Act 1990, or, and this is the question behind my amendment,

“an application of a description prescribed by the Secretary of State”.

This is a probing amendment to find out what kind of applications might be prescribed by the Secretary of State which are not among those set out in the Bill. For the life of me, I am not quite sure that I can think of what they might be. No doubt the Minister can tell us.

Where does the applicant get advice on whether a connected application is connected before submitting it? Does that advice come from the local planning authority? In particular, where do applicants go for pre-application advice before they know whether the application has been accepted by the Secretary of State as a connected application? Clearly, if an application is submitted to the Secretary of State and then rejected and sent back to the local authority because it is not connected, it might well cause further delays.

Amendment 12 refers to Clause 1(4). If the Secretary of State has an application submitted as a connected application but considers that it is not connected, what happens? The Bill says that the Secretary of State “may” refer it to the local planning authority to determine. Mine is a traditional, old fashioned may/must amendment and says that he “must” send it back to the local authority. Under what circumstances might the Secretary of State presumably decide to determine it himself, or through the Planning Inspectorate? The Bill does not actually say that that is what would happen, just that he “may” send it to the planning authority. That needs clarifying. In particular, how come an application that is not connected should nevertheless be dealt with by the Secretary of State? These are probing questions to tidy up and understand exactly how the Government think that this would work. I beg to move.

[Lord McKenzie of Luton]

My Lords, we have Amendments 11 and 17 in this group. Amendment 11 refers to circumstances where a connected application is made to the Secretary of State. It would clarify that the Secretary of State will be responsible for ensuring that all statutory requirements which a local planning authority or hazardous substance authority have to meet will be met by the Secretary of State. Perhaps the Minister can confirm that.

Amendment 17 is very much along the same lines as that pursued by the noble Lord, Lord Greaves. It would bring some clarity to the boundaries of what counts as a connected application. The Bill clearly includes listed building consent and conservation area consent, but otherwise means,

“an application of a description prescribed by the Secretary of State”.

This prescription will presumably be via some parliamentary process. Our amendment would require a consultation to be held. However, the particular purpose of the amendment, like the probing amendment of the noble Lord, Lord Greaves, is to get more on the record concerning the Government’s approach to this. It is understood that this may be driven, at least in part, by the Penfold review, but that was looking at non-planning consent, so I am unsure how that would fit; indeed, some of the other recommendations of the Penfold review are being carried forward in the Bill. Can the Minister say whether anything is in contemplation under Clause 1(3)(a)(ii)?

We support Amendments 10 and 12 in the name of the noble Lord, Lord Greaves, which would make it mandatory to refer a non-connected application to a relevant planning authority or hazardous substance authority. If it were not mandatory, I am not sure where it would go.

[Baroness Hanham]

My Lords, I need to start by explaining why we have made provision for connected applications in subsections (3) and (4) of new Section 62A to be inserted in the Town and Country Planning Act 1990 under Clause 1. In the few cases where a planning application is submitted directly to the Secretary of State—that is, at the behest of the developer—it is important that if there are any other consents that need to be obtained under the planning Acts, and which are directly connected to the scheme concerned, it makes sense to have the ability for them to be considered by the Secretary of State at the same time. That would be a normal planning process. This is not a hidden provision that would allow an expansion in the use of Clause 1 by the back door but a common-sense measure to minimise bureaucracy and to streamline the process.

We have not sought to specify every single consent that could conceivably fall into this category but have instead cited the principal ones and given the Secretary of State the ability to prescribe any additional consents that may need to be dealt with in a similar way, which might include, for example, hazardous waste, advertisement consent or tree preservation order consent. There probably are some others but those would be the main ones.

This is a common approach in legislation, which avoids the Act becoming unnecessarily detailed and complicated. In practice, it will relate just to a small number of applications and consents that are required only occasionally, and which are, additionally, limited to consents required under the planning Acts and not under any other legislation. Nor is there any need, as Amendment 11 seeks to do, to say in the Bill that in dealing with such applications the Secretary of State should comply with relevant statutory requirements. We will ensure through the secondary legislation that all statutory requirements apply, whoever the decision-maker is.

Amendment 17 seeks to make decisions about the submission or transfer of connected applications subject to published criteria. Once again, I do not think that placing such a requirement in the Bill is at all necessary. It usually will be a matter of common sense as to whether a particular consent is “connected” or not. Therefore, we do not need to add to the mountain of planning guidance that already exists. Indeed, as noble Lords will know, the Government are undertaking a radical streamlining of the planning guidance under the noble Lord, Lord Taylor. He probably would not welcome our adding any more to his work.

I can deal quite briefly with Amendment 12, which, as the noble Lord, Lord Greaves, has said, concerns the language—we have discussed this on many occasions as regards many amendments—and whether it should say “may” rather than “must”. However, this is consistent with the Town and Country Planning Act 1990, which is the legislation that this clause would amend. This is a matter of drafting convention that we should respect. The noble Lord, Lord Greaves, asked me where the advice would come from and whether an application is connected. We would expect that that would be covered in any pre-application discussions either at the time the application was moved to the Planning Inspectorate or initially.

I would like to reassure noble Lords that there is absolutely no question of the Secretary of State holding on to a “connected application”, should it be found to be unrelated—unconnected—to the planning application that he is considering. There would be no reason for him to do so and it clearly would not be at all sensible. I hope with those explanations that the noble Lord is willing to withdraw the amendment.

[Lord Greaves]

My Lords, I think I have got the answer that I was seeking on the “may/must” issue: the Secretary of State would send it back to the local planning authority and there would be no question—I think that those were the Minister’s words—about that, which is okay. As someone who believes that words must mean what they mean, I do not understand why it should say “may”. Nevertheless, I accept the Minister’s assurance.

I can understand how the conservation consents and the listed building consents fit naturally with the relevant application with which the Secretary of State is dealing. I started to get a bit alarmed when the Minister referred to advertisement consent and TPOs. Advertisement consent tends to concern things that happen over a period of time. For example, at the beginning of a big new development, there will be some adverts. But what happens if someone comes along two years after the development has taken place and asks for more or different advertisements, or whatever? Because the application originally had been a relevant application dealt with by the Secretary of State and assuming that the authority was still designated two years later, would it still go to the Secretary of State or would it be regarded as a completely new application, although not a major application because it refers to just advertisement consent, and be dealt with by the local authority in the normal way? In other words, what would the system be for minor additions or changes to the development once the development had been completed and signed off? That is the question that arises in my mind.

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[Baroness Hanham]

My Lords, there is always a danger in being clever. I found a briefing note about the extra provisions and I thought that it would be sensible to read it out. I am now regretting it enormously because the noble Lord, Lord Greaves, has raised further perfectly sensible and relevant questions about it. As regards the tree preservation order and the advertisement consent, I can see how they could be connected applications but the noble Lord might be happier if he gets a proper response and I will make sure that he does. I am very sorry but I have completely forgotten what else he asked me.

[Lord Greaves]

I asked about what will happen when further minor applications or advertisement consents come up—for example, if a big development has taken place and people want to change it or to put up adverts.

[Baroness Hanham]

I apologise for that. I was getting the small things right. They would be new applications and therefore they would be considered in the same way, depending on whether the authority at that stage was designated or not.

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[Lord Greaves]

Perhaps the Minister would include that in her clarification letter. Clearly, if the authority is no longer designated, it would deal with applications because there would be no procedure for sending them off. But if it was still designated, at what stage does a development break free from being a relevant development and is treated like any other development?

[Baroness Hanham]

My understanding is that any fresh application, even one which is associated with a development, would be considered to be a new application. It would therefore fall to be considered on the basis of whether or not the authority was designated and whether the developer under those circumstances wanted to take it back to the Planning Inspectorate. If that is not correct, I will let the noble Lord know.

[Lord Greaves]

We could go on talking about this for a while but I think that it would be better to clarify it outside the Chamber. I am very grateful for the answers that I have been given. I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

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Moved by

[Lord Greaves]

13: Clause 1, page 2, line 29, leave out “and”

[Lord Greaves]

My Lords, Amendment 13 and this group of amendments are about money and the extent to which local planning authorities will be recompensed for work that they do which is related to applications that have been referred to the Secretary of State as relevant applications. Amendments 14 and 23 in this group also stand in my name and other amendments in the group stand in that of the noble Lord, Lord McKenzie.

Amendment 13 is an even more classic traditional amendment, which seeks to leave out “and”. However, the grouped Amendment 14 is rather more significant. It also concerns connected applications. If somebody lodges a connected application with the Secretary of State and the latter, after due consideration, decides that it is not a connected application and sends it back to the local authority—as the Minister assured us would happen when we discussed the previous group of amendments—what happens to the fee that has been paid when that application was lodged and submitted? Is that fee returned with the application to the local authority or is it returned to the applicant and the latter is told to make a new application with an appropriate fee to the local planning authority? This is a technical issue but one that needs to be cleared up.

Amendment 23 refers to Clause 1(6), which, again, is where the Secretary of State takes over an application as a relevant application from a designated authority and gives directions,

“requiring a local planning authority or hazardous substances authority to do things in relation to an application made to the Secretary of State under this section that would otherwise have been made to the authority; and directions under this subsection—

(a) may relate to a particular application or to applications more generally; and

(b) may be given to a particular authority or to authorities more generally”.

One can imagine that it is most likely to happen in the case of the local planning authority which has been designated and which will still be in existence. As lots of local work has to take place, perhaps on consultation or whatever, that authority is instructed by the Secretary of State, no doubt after discussions, to carry out that work. It seems to me that this is a perfectly reasonable way in which the new system might work: namely, that the planning inspectorate has somebody dealing with applications in a particular authority, but dealing with them through that authority’s staff. Perhaps this would be a way of giving support and training to help that authority become more efficient.

In an extreme form, one might imagine the Planning Inspectorate putting its own man in the town hall and that person handling those applications with the help of the council’s staff. It would be interesting to know whether the Government are considering that scenario in relation to designated authorities and relevant applications or whether they will try to run all this—all the local consultation and all the rest of it, including the fact-finding on the ground—through somebody based in Bristol, presumably living in a local hotel for the duration. It would be interesting to know how the Government see this working.

Whatever happens, if the local authority has to do work in relation to an application for the Secretary of State and the Planning Inspectorate, it will cost money. However, the fee for the application will have gone to the Secretary of State. Therefore, my proposed new subsections (6A) and (6B) suggest ways in which an appropriate amount of that money should be handed over to the local authority to enable it at the very least to cover its costs. Otherwise, we will have a poorly performing authority, on the Government’s criteria, which may be robbed of its major source of planning income—the major applications—and is struggling to keep going with its staff. It is very difficult to downsize an authority by, say, 20% if you have only three planning staff. How will this work? How will the Government ensure that authorities are not severely financially affected by being designated? I beg to move.

[Lord McKenzie of Luton]

My Lords, we have Amendments 20, 21, 22 and 24 in this group. Amendment 24 simply requires the Secretary of State to reimburse the local authority any costs it incurs,

“in carrying out directions given under subsection (6)”.

From that point of view we are being somewhat more ambitious than the noble Lord, Lord Greaves, who is simply looking to share the fee.

In Committee in another place, the Minister was taken to task over the rather strange wording of this provision under which the Secretary of State can give a local authority or hazardous substances authority a direction to do things in relation to an application. Such a loose and potentially open-ended obligation obviously gives rise to uncertainty about resources and costs. Later amendments require that there must be set out in regulations the range of responsibilities which can be imposed on a local authority under these provisions. The Minister in the Commons prayed in aid the planning performance and planning guarantee consultation, which has been much referred to this afternoon. As we have discussed, that consultation has now ended. We may know the outcome by the time we get to Report. The consultation suggests that a small number of administrative functions will need to be carried out locally, including: site notices and neighbour notification; providing the planning history of the site; and notification of any cumulative impact considerations, such as where environmental impact assessments or assessment under the habitats regulations are involved.

The local planning authority would remain responsible for maintaining the planning register. The discharge of any planning conditions would remain the responsibility of the local planning authority. If this is the range and type of functions envisaged, they should be clearly set out and subject to some process. At the very least we need something clearly on the record but the Bill is much more open-ended than this and needs to be constrained.

As for reimbursement of costs, I anticipate that the Government’s response will remain that planning fees will go to the Secretary of State or the Planning Inspectorate and there will be no need for any sharing of these. The logic seems to be that as planning is a loss-making activity for local authorities, notwithstanding the recent increase in fees, they will be relieved of this loss and in any event are funded by way of grant for these activities. Will the Minister update us on the position of grant support for local authorities under the current government settlement, given the draconian cuts that they have endured?

Amendments 21 and 22 seek to make sure that the authority which can be instructed “to do things” is in fact a designated authority and that the applications concern designated authorities. I seek clarification on that point.

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[Baroness Hanham]

My Lords, I think that I am talking about just the main local grant that comes with the formula grant. I may need to write to the noble Lord on that aspect. With that reservation—it needs to be part of the compendium that will come after this session—I hope that noble Lords will withdraw or not move their amendments.

[Lord Greaves]

My Lords, there used to be something called the planning performance grant, but my understanding is that it had been abolished. I do not know if any answer on that will be forthcoming, but it would be helpful.

Local authorities will have this extra cost because their income from planning applications, particularly major applications, will decrease or be taken away. The authority will therefore have no choice but to attempt to downsize its planning department. However, downsizing a small department and saving money is not always easy because the authority may have staff in whole numbers and it may not be possible to split them up into part-time staff. The authority may have to choose, if it has four development control staff, to get rid of a whole person. That may be more of a reduction than is reasonable for the continued efficient operation of the department. Who knows? All circumstances may be different but it is ambitious for the Government to suggest that costs will be minimal.

In addition, confining the department to performing basic administrative tasks simply may not be possible in reality because, with the best will in the world, the Planning Inspectorate will as much as possible want to tap into local information and knowledge, which will reside within the local planning department; there is no doubt about that. Is the idea that the department will perform only a few administrative tasks and that staff will not receive telephone calls, e-mails or whatever asking for more information? When you are dealing with a major planning application, all the time you are seeking lots of information from lots of sources, and some of it will be ambiguous and you will want to know its planning history. You will therefore go to the local planning officers to get that information. That will inevitably take up their time and some of the resources of the local authority. The idea that the local authority planning officers simply bang up a few notices on site or put them in the local paper is utterly unrealistic. They are going to get involved because it will be in the interests of the Planning Inspectorate that they do so; and that will be the way to get a good, quick and efficient decision. The inspectorate should not have to seek information from scratch when it is there within the local planning department. That will happen all the time and it will cost money. We may continue to talk about this and—

[Lord McKenzie of Luton]

Before the noble Lord withdraws the amendment, perhaps I may follow his point about the extent of the engagement of the local planning authority, which is important. He has opened up some real questions. As I understand it, the planning authority will still be able to—it may be expected to—make representations to PINS or the Secretary of State about a particular application. The authority would presumably want some public engagement to be able to formulate its views. Are those activities that the local authority will have to carry out in addition?

The consultation document makes reference to Section 106 negotiations, which it seems to suggest will not be dealt with by the Secretary of State or the planning inspector and will go back to local authorities. There was also the suggestion that such negotiations are carried out at the end of the process. I am not hugely familiar with some of the detailed processes of Section 106 negotiations but I wonder whether they always happen at the end or along the way as part of the application. There seems to be other potential activity that the local planning authority will, of necessity, be involved in.

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[Baroness Hanham]

Local residents will of course have the same right to put their representations directly to the Planning Inspectorate as they would to a local authority.

[Lord Greaves]

My Lords, the noble Lord, Lord McKenzie, has raised some extremely important issues. Perhaps this is a matter on which we could receive a letter but my understanding is that the imposition of conditions will be part of the planning permission. I am not sure what “discharge of conditions” means, but if it means checking that they are taking place, and monitoring and supervising that, if the local planning authority is to carry that out, depending on what the conditions are, it will take time and resources—particularly staff time. If there are then complaints from anybody that it is being done wrongly, the local authority will be responsible for enforcement. That costs money, which, in a normal state of affairs, would be partly paid for by the planning application fee. In the case of big applications, the fee can be considerable.

The other thought that I had when the noble Lord, Lord McKenzie, was questioning the Minister was that it is inconceivable that a local planning authority—by which I mean the councillors—will not want to act as a consultee if it is a major planning application. It is inconceivable that the planning management committee, or whatever it is called in a particular area, will not consider that application, just as the local parish councils will do. In doing so, it will want quite a lot of solid evidence from its officers. It will not be prepared to behave like a parish council that simply gets the application and talks about it but does not really have any expert advice, the advice being based on local knowledge and so on; it will be a planning committee which expects a proper report and which expects to make representations to the Secretary of State—or Planning Inspectorate—who makes the decision. It is inconceivable that that would not happen.

As a councillor, I do not envisage that my authority will be designated. I would be ashamed if it were and I am sure that it will not be. However, if I was on a council that was designated, as a councillor it is inconceivable that I would not want the councillors to put in their two pennyworth. That, too, will cost money, and for the Government to say, “Oh well, that will just have to come out of the general funds”, is very unsatisfactory.

I am very grateful to the Minister for her response to my first amendment and I raise my glass to her on that. I think that there is more to be talked about on the general financial issue between now and Report and, on that basis, I am pleased to—

[Baroness Hanham]

Before the noble Lord withdraws his amendment, I need to correct what I said so that we are absolutely clear. I should have remembered that the proposal in the consultation is that the planning authority will continue to deal with Section 106 and the discharge of conditions, although we will of course need to look at what people have said in the consultation. However, the proposal is not as I think I presented it; it is that the planning authority will continue with Section 106.

[Lord Greaves]

My Lords, this gets a bit more mysterious. The decision on whether or not to grant planning permission sometimes depends on whether a satisfactory Section 106 agreement is available. That is what tips the balance one way or the other if it is a marginal application. Certainly, I do not know what “discharge of conditions” means. Perhaps we need to understand that, as I have already said. However, the decision as to what the conditions are is an integral part of granting planning permission. You do not grant planning permission and then sit around thinking, “What conditions shall we put on it?”. You discuss the conditions and all the arrangements and then, on the basis of the whole package, you say, “Yes, that’s okay”. You might take off one condition that is proposed and put on another, or you might say, “We’ll have another condition to make it reasonable for people within that particular street”, or whatever. That is how it works, and I simply do not understand how the Planning Inspectorate can give planning permission without conditions. I do not believe that it is going to do so because, with regard to appeals, when an application is turned down the inspector decides what conditions to put on at that stage. He will always ask the local planning authority that turned down the application for a list of possible conditions if he decides to approve it. That is how it works. I think that we need some clarity on this. Having said that, I shall make a further attempt to beg leave to withdraw the amendment.

Amendment 13 withdrawn.

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Moved by

[Lord Greaves]

15: Clause 1, page 2, line 30, at end insert—
“( ) Where an application is made to the Secretary of State under this section, the provisions of paragraph 8 of Schedule 1 shall apply to the Secretary of State as they apply to a local planning authority when determining applications for planning permission.”

[Lord Greaves]

My Lords, I shall speak also to Amendments 30 and 31. Again, the noble Lord, Lord McKenzie, has amendments in this group.

These amendments concern information and publicity. They are about notification, consultation and the treatment of representations. I think that all those things fit together neatly because they can potentially cause a considerable amount of confusion and difficulty locally in particular. The question is: how are all these matters going to be dealt with when a relevant application goes to the Secretary of State? It has been suggested that some of them might be dealt with by the local planning authority, and that needs to be clarified.

Amendment 15 is a specialised but important amendment. It concerns the current practice of the notification of planning applications to parish and town councils so that they can put in their two pennyworth—or perhaps more—in the local consultation process on those applications. I am grateful for support on this amendment from not only my noble friend Lord Tope but the noble Earl, Lord Lytton.

The amendment states that paragraph 8 of Schedule 1 to the Town and Country Planning Act 1990 will apply to relevant applications determined by the Secretary of State. This is slightly odd because most of the consultation rules for planning applications are set down in secondary legislation. However, this one appears in the schedule to the primary legislation—the main Act—and it sets out the rules for notification to parish and town councils of planning applications and any significant amendments to planning applications. It is a procedure that is well established and well understood, and it happens because it is in the legislation. Local planning authorities are geared up to do it, and it is obviously now easy enough to do so with electronic communications. It is absolutely vital that the Secretary of State is given the same duty. Given that this duty lies on the face of the 1990 Act, it seems sensible also to put the duty on the Secretary of State into this Bill and not simply to rely on promises, assurances and so on.

The remaining amendments refer to publicity; consultation, including with statutory bodies; the period for receiving representations; and the procedures for making representations. They say that the procedure for applications which are dealt with by the Secretary of State should be the same as that for applications which are dealt with by the relevant designated local planning authority. Some local planning authority applications may still be major applications that people have preferred to submit locally, and some will be relevant applications that go off to the Secretary of State. The important principle is that all the bodies consulted should be the same in both cases. In most cases they will be because most of the consultees are statutory. For example, there is the local highways authority and the Environment Agency and so on, and they have to be consulted, but practice varies in different areas. In some, local organisations will be consulted because of local circumstances—for example, the internal drainage board. One can imagine all kinds of local bodies that the local planning authority has decided at some stage are important enough locally to be added to the list of consultees, and so the consultation goes off automatically with all the rest.

It is very important that the system and the list of bodies is the same as it would be if the local authority was dealing with the application, even if it is the Planning Inspectorate that is involved. People need to know where they stand; they get to know the system and it ought to be the same.

A further part of this amendment refers to the rights of ordinary members of the public—citizens—to make representations about planning applications. It might be a big application and they might have strong views on how it might affect their area or their town, they might be in favour of it because of the extra jobs, or they might be against it because it is being built in an area that they value. In every area, there is a system by which people can put forward their views; it varies from council to council because councils over the years have brought in different ways in which people could make representations. In particular, in some areas, people have the right to make representations in person to the decision-making body—the committee which has responsibility for determining applications. If that right is to be taken away, or other similar rights are to be taken away because the application is being dealt with by the Secretary of State nationally, at the very least, that is not going to go down very well in those areas. It is unnecessary and a publicity own- goal. It means that the Planning Inspectorate has to make some arrangements whereby people can make representations direct to the planning inspector who is primarily dealing with this application. If that does not take place, then there is a dysfunction between the rights that people have—the rights in the general sense—and the rules that apply to the way in which they can put forward their views on planning applications in an area.

Amendment 31 is related to the ability to inspect documents. Again, there will be a system locally and people will know what that system is. They will know that if they want to inspect documents, they have to go to the town hall or perhaps the local library, or wherever it is. The council may have district offices where relevant planning applications in an area are provided. It is very important, if this system is to work smoothly, that people can find the applications in the same places, under the same terms, even though the application is being made to the Secretary of State and not to the local planning authority.

Nowadays, a lot of people look on the internet for this information, so it is important that whatever system there is locally, access to information on the internet—including all the planning documents related to the application—applies to a planning application made to the Secretary of State. This must not be on some obscure website that people cannot find because it is a government website hidden away somewhere when they are used to finding local planning applications on the local authority’s website. It can be made perfectly clear who is making the decision on the application—who is determining it—but the information provided to the public needs to be provided in the same places and in the same way as it would if the application were being dealt with locally. I beg to move.

[Lord McKenzie of Luton]

My Lords, we have Amendments 16 and 18 in this group; I will start in reverse order with Amendment 18. This requires the Secretary of State,

“to ensure that there has been adequate consultation with the local community”.

Both of these amendments were pursued as amendments in Committee in the Commons.

The consultation document, hot off the press at that time, acknowledges that the planning committee stage obviously will be denied these processes. It is at this stage that the merits of any proposal would generally be considered in public. However, in a case which circumvents the local planning authority, it seems that the process for engaging with the local public will be left to the Planning Inspectorate to determine on a case-by-case basis. The presumption is that applications will be examined principally by written representations, with the option of a short hearing to allow the key parties to briefly put their points of view. These strictures do not seem to be supporting community engagement in a very fulsome manner. Is it not likely that, given a choice, a developer with a potentially unpopular development plan will opt for circumventing the local planning authority?

Evidence given in another place stresses the point that local communities will become increasingly reluctant to accept new developments if their voices are not to be heard. The tasks which the Secretary of State will delegate to the local planning authority may include site notices and neighbour notification, but there is no mention of a wider consultation—the very detailed points that the noble Lord, Lord Greaves, has just reviewed. Site notices on a lamp post are no substitute for a proper consultation—the interaction with local communities which frequently leads to changes in applications for the better, both for the community and for the developer, and helps drive quality decisions.

Written representations are not the preferred means of communication for everyone. Who does the Minister consider should be treated as “key parties” in this process? Will this always include the local planning authority? Given that the process and the scope of any consultation will be largely delegated to the Planning Inspectorate, what will the Secretary of State do to satisfy himself in the interests of good planning that the consultation with the local community is at least adequate?

Amendment 16 requires that any decision on an application falling to the Secretary of State because of designation must take full account of local and neighbourhood plans of relevant local authorities. One might have added the NPPF. We acknowledge that planning law requires that applications for planning permission are determined in accordance with the development plan, unless, of course, material considerations indicate otherwise. To that extent, the amendment might be seen as superfluous, but it gives me the chance to ask the Minister what will happen where updated plans are not yet in place, and whether the Secretary of State or the Planning Inspectorate will look to the NPPF, presumably as the local planning authority would.

There are issues around determining material considerations in any given situation. Might these be different when we are talking about a Secretary of State’s perspective and that of the local planning authority? There is doubtless a range of other considerations as well, but the amendment is probing whether the designation might not only involve a different speed of decision-making but could also mean that the criteria which in practice might be brought to bear could be different around the different perspective on material considerations and, if there is no local plan in place, around the perception and requirements of the NPPF.

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[Baroness Hanham]

Every local authority has its own methods, which must fall within the statutory consultation process. It would not be out of order for a planning inspector to hold a direct hearing to hear from local people; I do not see why he should not be able to do that. That would happen now anyway if the local authority thought that it was required. The process would be exactly the same as that available now. We do not think that this requires anything other than secondary legislation. It will be in secondary legislation. I am prepared to keep that under review for a little while to make sure that that is correct.

In answer to the noble Earl, Lord Lytton, planning inspectors will need to take into account all material considerations, which will include any local or neighbourhood plans. I am sure that any statutory obligation to undertake consultation with parish councils will remain. With those reassurances, I hope that the noble Lord will withdraw his amendment.

[Lord Greaves]

My Lords, I am grateful to a number of speakers who took part in this debate. I am grateful to the noble Earl, Lord Lytton, for his support on the issue of parish councils. I think that I have an up-to-date version of the 1990 Act, but one can never be totally sure about these things. I think that my amendment stands up, but I will look at it again, and perhaps the Minister will clarify the issue.

What the Minister said on parish councils did not quite meet the case. She said that the present statutory position would still apply. However, the statutory provision is in relation to planning applications made to the local planning authority. The question is: will it automatically transfer as a statutory provision to the Planning Inspectorate? If not, should paragraph 8 of Schedule 1 to the 1990 Act be amended to make it absolutely clear that it does apply to the Planning Inspectorate, and that parish councils will have a right to notification—which I think now is an automatic right, but I will check this—rather than having to ask for it?

I was particularly grateful for the splendid speech of the noble Lord, Lord Deben, who said some things that I would like to have said in your Lordships’ House but stepped back from saying because noble Lords might have thought that I was threatening to organise all the Swampys of the world to go and make a nuisance of themselves—which of course I would never do, but might have done in my youth. However, I will march hand in hand with the noble Lord, Lord Deben, leading a band of people behind us.

I will be serious, because this is a very serious matter. The Minister said that people like to be consulted. They do—that is absolutely true—but nowadays they demand to be consulted, and are very unhappy if they feel that they have not been consulted and, whatever the final decision is, that their representations and views have not been taken seriously. That is the important thing that we must get right, and I am not sure that the Bill does that.

The Minister said that all the same processes would take place, but the question is: given that they are different in different planning authorities, can the Planning Inspectorate cope with doing different things in different areas? The basics of what it does will have to be the same. There will have to be site notices, appropriate notices in the newspapers and so on. However, because some planning authorities go much further than they have to under the legislation, will it be local custom and practice—local policy—that applies, or will the Planning Inspectorate try to apply the same thing everywhere? That is the fundamental question that needs more thought.

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[Baroness Hanham]

I will give the noble Lord a response, but I may have to change it. My instinct is to say that the Planning Inspectorate already deals with innumerable applications from different local authorities. I do not see why the processes that it will follow when taking an application initially will be any different from those that it follows when it considers an appeal. That seems to be the sensible answer. If there is another answer that does not come under the heading of “sensible”, I will let the noble Lord know.

[Lord Greaves]

My Lords, that was a very interesting dialogue. Most of the things that the Planning Inspectorate deals with now are appeals, for which there can be a standard system everywhere. Dealing with initial applications is different everywhere. These are things about which we need to think further, not least to avoid revolution in the land, particularly in rural areas. I beg leave to withdraw the amendment.

Amendment 15 withdrawn.