Levelling-up and Regeneration Bill

Lord Haskel Excerpts

Committee stage
Monday 27th March 2023 Lords Chamber

[Baroness Taylor of Stevenage (Lab)]

My Lords, the previous discussion highlighted some of the concerns we have about the contradictions between the matters that have been enshrined in the Bill, which some of us might think are not quite so important, and those which have been left out. Getting the balance right is clearly important. As the noble Lord, Lord Lucas, the noble Baroness, Lady Parminter, and my noble friend Lady Hayman all said, now really is the time for nature recovery and such issues to be a clear focus and for them to be put into the Bill.

We have had lengthy earlier discussions relating to the unwelcome and centralising shift represented by the introduction of NDMPs. I hope that the Government have been left in no doubt about the deep disquiet in the local government community about this provision. Further to the earlier comments made on those serious planning matters, we believe that the Bill is simply not clear enough about how conflicts between local plans and NDMPs are to be dealt with. Our amendments in this group therefore address these issues.

Amendment 185A in my name seeks to take out the lines from Clause 86 that give automatic primacy to the NDMP where a conflict arises between it and the local plan. It is simply unthinkable that this could happen by virtue of statute, with no dialogue relating to why the local authority or the combined county authority considered it necessary to depart from the NDMP. Let me be provocative and suggest that it would, in effect, mean there was almost no point in preparing a local plan at all, if any conflict arising is to be determined in favour of the NDMP—which is, after all, determined in Whitehall. I will be interested in the Minister’s comments on this. Surely the provision goes against the key principles of devolution.

Amendment 186 in the name of the noble Lord, Lord Lansley, is similar but refers to “insignificant conflicts” between the local development plans and the NDMPs. If I know local government, I fear that this would involve considerable arguments, perhaps even resulting in legal arguments about what is and is not insignificant.

My noble friend Lady Hayman’s Amendment 187 aims to clarify the situation relating to how conflicts between local plans and the NDMP might be dealt with. It would add a further subsection to Clause 86, setting out how conflicts could be resolved in favour of the local development plan where a CCA had been handed powers over planning, highways, the environment and other functions of public bodies under the circumstances outlined in Schedules 16 and 17 or where the development plan comes under a joint spatial development strategy, or if it is in Greater London.

Amendment 192 is a probing amendment. It would insert a clause in the Bill setting out the primacy of the development plan over the NDMP, should there be a conflict. This amendment sits alongside other amendments to Clause 87 which aim to ensure—I want to be really clear about this—that the voices of local people and their democratically elected representatives have the primacy in determining the development of local areas.

Amendments 193 and 195 probe if there is to be any role for parliamentary scrutiny of how conflicts between development plans and the NDMP are resolved and/or whether Parliament is to be informed of the Secretary of State’s intention to override the local process. They also probe what role there is to be for a CCA whose constituent member or members may find themselves in a conflict between their development plan and the NDMP.

In summary, what is the mediation process to be? Surely there will not be an automatic assumption in favour of the policies produced centrally with no reference to local people. There is not much in the way of devolution in that proposal. I beg to move.

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

My Lords, I have to inform your Lordships that, if this amendment is agreed to, I cannot call Amendments 186, 187 and 187A because of pre-emption.

[Lord Lansley (Con)]

My Lords, I want to speak to Amendments 186 and 187B in my name and that of my noble friend Lord Young of Cookham. When we concluded the debate last Wednesday, my noble friend the Minister explained the Government’s reason for the introduction of the national development management policies. I reiterate to my noble friend that I very much welcome and anticipate a further response to clarify how the NPPF and NDMP relate to one another, perhaps by particular reference to the example of the chapter on green-belt policies.

If I can paraphrase, my noble friend said that a key reason was to make local plans more local. She said that, when making a determination of a planning application, the local plan policies will “sit alongside” the national development policies. But what if they are not consistent? This group of amendments looks at that question. The present position is that applications for planning permission must be made in accordance with the development plan, unless material considerations indicate otherwise. Clause 86 of the Bill inserts

“and any national development management policies.”

Therefore, applications must be made in accordance with the development plan and any national development management policies. The material considerations would need to “strongly indicate otherwise”. We argued that point last Wednesday.

Section 38 of the Planning and Compulsory Purchase Act 2004 states that, if a policy

“in a development plan … conflicts with another policy in the development plan the conflict must be resolved in favour of the policy which is contained in the last document”—

so it is simply a matter of which is the most recent. In future, that conflict may be between a development plan and the national development management policies. The Government, to resolve that question, state in Clause 86(2):

“If to any extent the development plan conflicts with a national development management policy, the conflict must be resolved in favour of the national development management policy.”

We have heard from the noble Baroness moving Amendment 185A that it proposes that proposed new subsection (5C) created by Clause 86(2) be deleted. Amendment 192 in the name of the noble Baroness, Lady Hayman of Ullock, would give precedence to the development plan. This turns the Government’s intention on its head. However, I have to say that it runs a serious risk of undermining national policies by virtue of local plan-making and turning the whole problem the other way around.

My Amendment 186, tabled with my noble friend Lord Young of Cookham, would add the word “significant” to make the phrase, “if to any significant extent” there is a conflict. That would have the simple benefit of avoiding the disapplication of development plan policies because of an insignificant difference between that and an NDMP. It would run the risk—I have to acknowledge—of debate over what “significant” means. However, if the Minister were to object to the insertion of the word “significant” because of the risk of litigation, I will return to the question of the litigation that might arise through the insertion of the word “strongly”, which the Government resisted on those grounds.

Amendment 187, tabled by the noble Baroness, Lady Hayman of Ullock, would reverse the primacy of NDMP over the development plan where there is a substantial set of devolved responsibilities given to a combined county authority. These are, in effect, the planning powers of the constituent local planning authorities, so I have to confess that I am not at all clear why, if the powers are vested in a CCA, as opposed to a local planning authority, the primacy should be switched simply on those grounds.

Overall, we have a group of amendments here that illustrate the problem but do not offer a solution. The development plan should not be inconsistent with the NDMP. The new Section 15C of PCPA 2004, to be inserted by Schedule 7, states this. On page 294 of the Bill, it can be seen that the intention of the Government is that there should not be any inconsistency between the two. However, in practice, such inconsistencies will arise in relation to specific planning applications. That is where the problem emerges. When they do, as the Minister herself made clear, this is a plan-led system, and a decision should, so far as possible, be made in accordance with the development plan. As the NPPF makes clear, where there is no relevant plan policy or no up-to-date plan—our Amendments 187A and 187B are relevant here about the necessity of an up-to-date plan—then the decision should be made by reference to the national development management policies, which will continue to be given statutory weight, by virtue of this legislation, even if the plan is out of date.

Therefore, I ask the Minister to reflect on this question and whether the primacy of the national development management policies should be achieved through the plan-making process—that is, sustain that question of there being no inconsistencies—but also where no up-to-date plan applies. However, if there is an up-to-date plan, then that should be the basis of the decision. That would retain the principle that those seeking planning permission should do so in accordance with an up-to-date local plan. I hope that the Minister will consider whether, when we come back to this on Report, that might be the basis for amending the Bill.