Lord Jenkin of Roding
Main Page: Lord Jenkin of Roding (Conservative - Life peer)Growth and Infrastructure Bill
Lord Jenkin of Roding Excerpts
Lord Jenkin of Roding
“(4A) In relation to development in Greater London, the Secretary of State may only give a direction under subsection (1) if an application for planning permission for the development would be an application of potential strategic importance for the purposes of section 2A of the Town and Country Planning Act 1990.”
Lord Jenkin of Roding
My Lords, the amendment seeks to avoid a potential inconsistency in Greater London between the concept of what is of “strategic importance” for the purposes of the Mayor of London’s powers to intervene in the local planning process, and what is of “national significance” for the purposes of the Planning Inspectorate’s role under the new scheme. The potential inconsistency is set to arise in the City of London in particular because the Government’s proposals in the Bill do not reflect the recognition given in the existing system to the special circumstances of the City.
Greater London provides a useful yardstick for the Government’s proposals because regulations have already laid down in some detail what sort of development might, because of its implications for the regional economy, require a wider look than that taken by the local planning authority alone. It is in the interests of certainty and consistency that this careful demarcation is not undercut by the new proposals, which have a similar aim only with a national rather than a regional scope. Of course I am not suggesting that every development deemed to be of regional importance should be regarded as nationally significant as well but the converse seems to me compelling. I struggle to see how a development could be said to be of national significance when it is not treated as regionally significant.
Let me make it clear at once that the Government’s current proposals generally reflect this view. The consultation indicates a threshold of 40,000 square metres of floor space, above which a development might be considered nationally significant. Of course that comes from annexe A in the consultation document. This considerably exceeds the thresholds laid down for potential strategic importance in most of Greater London—namely 20,000 square metres in central London and 15,000 square metres in outer London. This was provided by the Town and Country Planning (Mayor of London) Order 2008, which was made under the powers introduced by the Greater London Authority Act 2007.
I suggest that this is the right way round. Powers to determine matters on a regional level should, if I can put it this way, kick in before powers to determine matters on a national level are involved. However, in the City of London—as opposed to Greater London as a whole—a higher threshold is provided for when a development might be regarded as of potential strategic importance within Greater London. The threshold in the City is 100,000 square metres of floor space. It may seem strange to some of your Lordships to single out a particular area in this way. It is, however, a recognition of the markedly different planning environment in the City from anywhere else in Greater London and, I might suggest, from anywhere else in the country.
The question of thresholds was discussed at some length in this House when the Bill for the Greater London Authority Act 2007 was considered in Parliament. It came to be accepted, I think on all sides of this House, that it was appropriate to recognise the special circumstances of the City in this way. I have reason to hope that the Minister may be receptive of this argument today. My noble friend Lady Hanham may well remember that she was on the Front Bench for the Opposition at the time of that Bill and she appeared to be very appreciative of the City’s case. I have no doubt that my noble friend Lord Ahmad will be as well.
In terms of commercial development, what is significant in the City is not the same as what is significant elsewhere. The City is an area devoted to business in a manner unlike any other. Noble Lords who take an interest in these things will recall that it has fewer than 7,000 residents on the parliamentary roll, but more than 300,000 people work there. No global commercial centre can sustain itself without a substantial property stock capable of meeting the changing needs of international business. A principal objective of the planning system as it has been operated in the City is to ensure a plentiful supply of office buildings as one might say befits a world-leading business and financial district in the 21st century.
During the discussion about thresholds in 2007, I think that the House recognised that applying the same thresholds to the City as elsewhere would capture a whole raft of projects which, while of potential strategic importance in other London boroughs, were unexceptional so far as the City was concerned. This would have defeated the purpose of the new powers, which was to enable developments of special or unusual importance to receive the wider consideration that they merited, while leaving boroughs to perform tasks within their normal range of responsibility and expertise without undue disruption or uncertainty.
The application of this principle in the City led to the adaptation that I described. To apply the threshold of 40,000 square metres in the City would leave far more projects liable to be treated as nationally significant than would be treated as regionally significant for Greater London. This seems absurd. Of course the situation under this clause is not quite the same as that which exists with respect to the Mayor of London, because the exercise of the Planning Inspectorate’s powers will be triggered only on the application of the developer. However, this point of difference does not justify what seems to be a substantially different approach in respect of the City to the notion of what is of strategic importance.
The Government have been clear that they regard the new process as something to be used as an exceptional course. In the other place on 4 December, my honourable friend Nick Boles described it as a backstop where there were genuine reasons to bypass the normal role of local planning authorities. In my view, this requires thresholds for national significance that recognise the distinct position of the City, in the way that it is currently recognised in determining potential strategic importance at regional level. In that way, we would avoid the topsy-turvy situation where the City was the only part of Greater London where a development could fall within the nationally significant regime without being treated as of potential strategic importance at regional level. As I said, that would be absurd.
It may be that this should be dealt with in regulations rather than in the Bill. However, I hope that my noble friend on the Front Bench will give me some reassurance that the Government will be mindful of the need for a consistent approach. I beg to move.
Lord Ahmad of Wimbledon
My Lords, as ever I am grateful to my noble friend for the thoughtful remarks he made about why London is a special case and why we should have a different planning approach. To put it simply, we agree. That is why we set out in Clause 24 that new Section 35(4) should require the Mayor of London’s consent before business and commercial projects in Greater London can be directed into the nationally significant infrastructure planning regime. Therefore the amendment is not required.
I can reassure my noble friend on his final point about how best this can be taken forward. We will discuss with the mayor how the proposal will work in practice, to ensure that there is no conflict with the mayor’s responsibilities for projects of strategic importance.
My noble friend asked a few questions about the mayor’s role. I reiterate that we recognise that London has its own planning context, with the mayor taking responsibility for strategic planning across London. That is why we built into the legislation the requirement to obtain the mayor’s consent to issue a direction for any business and commercial project in Greater London that wants to use the nationally significant infrastructure regime. We also agree that it is hard to envisage a type of nationally significant scheme that the mayor did not have the ability to consider as being of strategic importance.
My noble friend Lord Jenkin referred also to the City of London—a place I know well—and to how different it is from other parts of London. He said that the threshold should be much higher to bring powers into line with those available to the mayor.
My noble friend alluded to the consultation. We are still considering the responses that we have received on the proposed thresholds; the intention behind them was to provide a gateway and give a clear indication that only schemes of national significance would be directed into the regime. Not every application above the thresholds will be directed into the regime and I come back to the point that the mayor’s consent will be central.
I will explain our position a little further. We do not think that the amendment will work from a technical standpoint, as the schedule to the Town and Country Planning (Mayor of London) Order 2008, which refers to projects of potential strategic importance, goes much wider than the Government have proposed in their consultation paper on extending the infrastructure planning regime and commercial projects. For example, the order includes retail as part of strategic development which may affect the mayor’s strategic policy. The Government have already indicated in the consultation paper on extending the regime to business and commercial projects that they do not propose to include retail development as a prescribed project of potential national significance.
The 2008 order also includes types of transport infrastructure as development of potential strategic importance. Under the 2008 Planning Act certain forms of transport infrastructure that meet specific thresholds must be considered under the nationally significant infrastructure planning regime. Transport projects that fall beneath the thresholds have to make a request to use the regime should they wish to do so.
The amendment would add to the complexity of the legal picture, confronted with issues around London. I come back to the point that I made at the outset. We have built into Clause 24 a simple requirement to obtain the mayor’s consent so that this complexity is not necessary. For its implementation we are working with the mayor’s office and will continue to have discussions with him about how this can best be taken forward. With that explanation, I hope that my noble friend is minded to withdraw his amendment.
Lord Jenkin of Roding
My Lords, I will study my noble friend’s response carefully. I hope that I had made it clear that I was not considering the powers of the Mayor of London in this amendment but simply the question of the thresholds within the City area. My point was that a threshold of 40,000 square metres would be absurd within the City and for other purposes the threshold has been put at 100,000 square metres. Before I withdraw the amendment, can my noble friend confirm that his response takes into account what is seen by the City as an extremely important issue?
Lord Ahmad of Wimbledon
Specifically on the issue of the threshold, different thresholds for projects of strategic importance apply to different parts of London. I can confirm that the threshold includes development that comprises or includes the erection of buildings in the City of London with a total floor space of more than 100,000 square metres.
Lord Jenkin of Roding
I am most grateful. I have no doubt that the discussions will continue. I was really more concerned about the Guildhall than City Hall. My noble friend, who said that he was familiar with the City, will understand that. With that assurance, I am happy to withdraw my amendment.
Lord Jenkin of Roding
My Lords, mention of the community infrastructure levy in this amendment gives me an opportunity—of which I have given my noble friends on the Front Bench notice—to raise an issue that was discussed with my noble friend Lady Hanham when she met the representatives of a very interesting small company called Pocket Living Ltd. This company aims to provide housing that is within the reach of people who can currently only afford to rent, and yet are above the level to qualify for social housing. Pocket Living Ltd has recently published a very splendid brochure, Pocket: Powered by the Mayor of London. This concerns the mayor’s housing covenant fund, but the company is very much a thriving one that fills a hugely important gap in housing provision, not just in London but potentially elsewhere as well.
The question is: what is the definition of affordable housing that would qualify for relief from a community infrastructure levy? When we debated Clause 6 we had a new definition of the affordable housing requirement, and I am told this is the first time that the words “affordable housing” have appeared in any statutory definition. The definition as it stands serves the limited purposes of that clause, but it adds to a plethora of overlapping definitions in this area that have grown up over the years for different purposes. Not only are these confusing, they can sometimes be downright contradictory. This is important because, as we have discussed, the need for genuinely affordable housing has never been greater.
I support the Bill’s objective of ensuring that the new housing developments we need are not held back by unreasonable and unviable demands for affordable housing. However, we must do everything we can to ensure that those who want to deliver genuinely affordable housing—of which I gave a brief outline at the beginning of my speech—have every incentive to do so, and are not held back by the unforeseen consequences of statutory definitions that may have been fit for purpose at the time, but in retrospect turned out to be too restrictive. I am afraid this is what has happened in the case of the regulations implementing the CIL. The regulations quite rightly recognise that we should not increase the burden on those with low or modest incomes, who are already struggling to find a home they can afford, by adding what would be a sizeable additional tax. However, the definitions of relief are so tightly drawn that we now find they do not cover some of the new and inventive models of affordable housing that are emerging.
I have mentioned that I was recently approached by a young company that found a very clever way to build smart new flats in central parts of London that young singles and couples can buy outright, even if they are on a modest income. The company wanted to build a small block of flats in Wandsworth for sale at around £200,000 each. The council wanted them, the Mayor of London wanted them, and they had a waiting list of 13,000 would-be buyers who desperately wanted them. However, as noble Lords may know, Wandsworth was one of the first London boroughs to implement the new levy, and when these people did their sums, they worked out that this would add some £10,000 to the cost of each flat. For a young couple on perhaps £30,000 or £40,000 a year, who have already been saving for perhaps seven or eight years for a deposit and have to pay London rents, £10,000 is an awful lot of money. The company reluctantly had to conclude that the scheme was unviable, and the plans were dropped.
These were genuinely affordable homes. They were available only to people who could prove that their salary was below the mayor’s limit for affordable housing. They were for sale at 20% below the open-market value, with a maximum price of £225,000. They could only ever be sold to other buyers who qualified for affordable homes. They would remain affordable homes, however many hands they went through. In fact, they satisfied every condition that my noble friend’s department sets out in the National Planning Policy Framework to qualify for affordable housing. Council planners say that they are affordable houses. The company had built five blocks of them already before the CIL came into effect. The Mayor of London agrees that they are affordable houses. DCLG says that they qualify for the affordable housing enhancement for the new homes bonus—so one part of the department seems to recognise this while the other does not. However, when it comes to the community infrastructure levy, they are treated in exactly the same way as if they were homes for millionaires. That really cannot be right. The only reason for it is that, when the regulations were drawn up in 2008, that type of home did not exist, so it was not included within the narrow definition for affordable housing.
As I have said, I am extremely grateful to my noble friend and my honourable friend Nick Boles who met with me and the representatives of this company. They listened very sympathetically as we put the problem to them. The company came away from that meeting encouraged by Ministers’ recognition of the problem. I know that Ministers have conceded that the CIL regulations are not perfect. One piece of sticking plaster was already applied just a couple of months ago, but I understand that a consultation paper will shortly be issued with some more proposals for change. Can my noble friend give the Committee some assurance that a priority will be to ensure that relief from CIL will be extended to cover all types of genuinely affordable housing, including the kind of housing scheme that was described to my noble friend and her honourable friend, and that the definition will be broad enough that we do not have to come back to it again within four or five years?
I was very struck by the story that this company told, and I think that Ministers were, too. I hope that we may get a sympathetic response to this plea.
Lord Ahmad of Wimbledon
My Lords, I thank noble Lords who have participated in this short debate. I thank also my noble friend Lord Tope for tabling the amendment. I understand his desire to support the mayor in his efforts to secure London’s growth, but I remain to be convinced that the changes being proposed are necessary and I shall highlight why.
The mayor has sufficient powers under the existing legislation to achieve his objectives. He has powers to set a CIL charge in London. He introduced this charge in April 2012 to help fund Crossrail, an objective that the Government fully support.
The existing CIL regulations are clear that the London boroughs must take the mayoral CIL charge into account when setting their own CIL charges. They cannot set a CIL charge which, when combined with the mayoral charge, would make broad areas of development unviable.
We have recently reviewed the statutory guidance for CIL. It is now clearer about the relationship between the levy and the implementation of local plans. The mayor can use the statutory guidance to challenge councils if he feels that their rates could put implementation of the London Plan at risk. Perhaps I may dwell on this point a little further. The issues within the statutory guidance published in December 2012 make it clear that charging schedules should be consistent and support implementation of the London Plan. It is also clear that the ability to deliver viably the sites and scale of development identified in the local plan should not be threatened. I point the noble Lord specifically to paragraphs 32 and 33 of the guidance, which refer to charge-setting in London and confirm:
“The Government expects the Mayor and the Boroughs to work closely in setting and running the Community Infrastructure Levy in London, including through mutual co-operation and the sharing of relevant information”.
We have also encouraged charging authorities to consult for at least six weeks on their draft charging schedule. This also provides an opportunity for the mayor to review and challenge proposed rates if necessary. As I have already said, the challenge can be made, and the correct place for the challenge is at the consultation and examining stages, when the mayor can make representations on all borough CIL charges. An independent public examination stage is also key to CIL. Any representations can be made to an independent examiner, who must determine whether the proposed CIL charge is appropriate. We therefore strongly believe that the impartial role of the examiner is essential, and the mayor’s role should be to engage with the process rather than take on additional powers to direct. My noble friend talked specifically of several London boroughs that have raised concerns and the noble Lord, Lord Adonis, also spoke specifically of where those matters have been raised. I am certainly not aware of which London boroughs have raised those issues but if that information is shared I am sure that can be looked at.
To pick up on a couple of points made by my noble friend Lord Jenkin, he referred to Pocket, which met with my noble friend and my honourable friend Nick Boles. It raised the issue of CIL payments and discount market sale housing. That case is being looked at and the issues raised have struck a note with Ministers. My noble friend Lady Hanham mentioned to me that she was very impressed by the issues raised. On the definition of affordable housing for CIL, the CIL Regulations 2010 give such a definition, which was quite tightly drawn. That said, if there are continuing concerns about the operation of the levy, they will be listened to. I am sure that as the levy comes more into play and practice, both in the mayor’s office and at a borough level, we will continue to look at how best it can be improved. However, turning back to the specific nature of the amendment, with the points I have made I hope that my noble friend Lord Tope will see fit to withdraw his amendment.
Lord Jenkin of Roding
“Development control
In the Planning and Compulsory Purchase Act 2004, after section 54 insert—“54A Power for local planning authorities to require payment of a fixed monetary penalty for late or non-response to statutory consultations
(1) A local planning authority is required by statute to consult the statutory consultee before deciding whether to grant planning permission and where it appears to the local planning authority that—
(a) the local planning authority has not received representations concerning the application from the consultee within the timeframe specified in the consultation; or(b) the consultee fails to give notice within the timescale specified in the consultation that it does not intend to make representations.(2) The local planning authority may charge a penalty fee if they consider it expedient to do so (within that timeframe).
(3) A local planning authority which proposes to charge a penalty fee must—
(a) issue a document (a “statutory consultee penalty fee schedule”) setting the amount of the penalty charge payable, and other criteria, by reference to which the amount is chargeable in respect of planning applications.(b) be mindful of relevant advice issued by Secretary of State.””
Lord Jenkin of Roding
My Lords, at this time of night I will try to deal with the amendment extremely briefly. As we discussed earlier, the problem with the planning system is that it involves more than one consent. In many planning applications there is an obligation to notify other statutory bodies of the application that has been made. One of the problems that has emerged from that is the time taken by those other bodies to respond. In the mean time, of course, until they have responded, the planning authority cannot get ahead, which is one of the reasons why planning decisions get delayed.
Amendment 81CA sets out a procedure by which in appropriate cases the local authority can charge the consultee for the delay. This, it is hoped, will never have to be used. Of course, if there is agreement with the authority that the consultee cannot reply within the 21 days or whatever is appropriate for that particular consultation, that is different. If they have agreed a different timetable, that is fine. However, in many cases they simply do not reply. A disincentive to delay of that sort, with the prospect of being fined, might in fact encourage the others.
One might ask the question, “Would it actually deliver?” The Killian Pretty review on planning applications, Planning applications: A faster and more responsive system, came to the conclusion that it has the potential considerably to reduce the delays due to consultation. It has been estimated that these delays cost the economy at least £35 million a year. This would therefore be a valuable extra piece of machinery that could encourage the acceleration of the decisions on planning applications.
We are also discussing Amendment 81CB. This is a rather more drastic amendment, which perhaps at this stage should be regarded as a probing amendment. Certain of the consultees, the statutory bodies, have the power to veto applications. Examples have been given—I will not quote them all—of where a highways authority has said, “You cannot possibly do that. We will veto it”, and it does so under a power that has been given by the Secretary of State. This amendment is intended to remove that power of the Secretary of State. It is not right that a highways authority or whoever should have the right to veto an application just like that. I can understand that there may have been a reason for it, but it is one of the reasons why planning applications run into difficulties and why applications then have to be turned down.
These are two ways in which we could achieve the Government’s objective of speeding up the planning system. I hope that my noble friends on the Front Bench may be able to give me an encouraging reply. I beg to move.
Lord Greaves
My Lords, I understand the reasons behind these amendments but I am a little concerned about them. As regards the second amendment, there are very good reasons why a highways authority should be able to say no to a development in some circumstances if it considers that it would be unsafe and that to allow it to go ahead might cost lives or cause people to be injured. There are very good reasons for that power.
Of course, you can speed up the whole planning process very easily by abolishing it and letting people do what they want. The reason why the planning process exists and there are lots of obstructions in it to people doing exactly what they want as quickly as they want is because it is in the interests of society in general that planning should take place and that development should be controlled and organised in a way which is best for society. Nevertheless, it is perfectly proper to argue generally where the balance lies as regards the making of plans and individual applications.
The Environment Agency does not have a power of veto in relation to drainage but a lot of planning authorities will think very carefully indeed before going against the advice of that agency on matters relating to drainage. They will spend a lot of time talking to it to try to find an acceptable way through—a compromise—in a particular case.
I think that a lot of unintended consequences could flow from the first amendment in this group and that it has to be thought about very carefully indeed.
Baroness Hanham
My Lords, the proposed new clauses in Amendments 81CA and 81CB seek to improve the performance of statutory consultees in the planning system. I am very sympathetic to this objective but I am not sure that these proposed new clauses are the way to achieve it.
It is important to recognise that statutory consultees have an important role in the planning system. The key statutory agencies have valuable expertise on a range of specialist areas such as heritage, highways and nature conservation, and their input helps local authorities ensure that the impacts of new development are comprehensively understood in planning decisions.
Where statutory consultees are consulted on planning applications, they are required by law to reply to the local authority within 21 days. In doing so, they must provide a substantive response, enabling the local authority to proceed with the determination of the application in question. Any extension to the 21-day deadline would need to be agreed with the local authority. Therefore, boundaries are already in place.
Statutory consultees are required to report annually on their performance in meeting these targets. The five main statutory consultees achieve between 96% and 99%. Taking this into account, we do not think that a system of fines could significantly improve performance and would be difficult to devise. However, we are aware of the need to improve the way statutory consultees engage with both local authorities and developers to foster a more positive approach to facilitating development and delivering growth. I am bound to say that the reply within 21 days cannot be just a holding reply; it has to be a full response.
We have also taken action to ensure that statutory consultees are more accountable for the advice that they give and we have changed the award of costs circular so that if an inspector considers that a statutory consultee has acted unreasonably during the determination of a planning application the consultee can become liable for an award of costs. Although I support the intentions behind the amendment, I do not think it is necessary, considering the steps we are taking.
The second amendment would repeal the general power in primary legislation for the Secretary of State to give directions restricting the grant of planning permission by a local planning authority. The Planning Acts give the Secretary of State a wide range of default powers that can be used as a last resort in relation to both plan-making and decision-taking. The powers are there as a fall-back to protect the public interest. The powers set out in Section 74 of the Act are exercised through Article 25 of the Town and Country (Development Management Order) (England) 2010 and that provides that the Secretary of State may give directions restricting the grant of permission by a local authority either indefinitely or during such a period as may be specified.
Planning applications are called in only in exceptional circumstances and the ability to serve holding directions is essential to the smooth functioning of the call-in process. In the case of the power of direction exercised by the Highways Agency, this is exercised during the consultation period, where the agency considers that, were a local authority to approve a planning application, it could result in a dangerous increase in risk to users of motorways and strategic roads. I agree that the Highways Agency should be accountable for the way in which this power is used in order to ensure that it is used for the key purposes of facilitating growth, both in ensuring that proposed developments are not delayed without good reason and in ensuring that approved developments do not result in additional congestion on the strategic road network. If noble Lords agree, I will write with further details on the Department for Transport’s policy on the use of these directions and on any future plans it might have to review them.
I should like to reassure my noble friend and other noble Lords that we are also concerned that any direction is used in as open and transparent a way as possible. The Highways Agency is very keen to work with applicants in developing their schemes and welcomes pre-application discussions. It knows that early engagement with developers is vital to ensure that applications can progress without delay. The agency says that it responds to consultations within the prescribed limit in 99.9% of cases. In 2011-12, 9.4% of responses made by the agency were a holding direction. As already mentioned, the agency has published an improvement plan with actions to improve its performance, especially in reducing the time taken.
I have abbreviated slightly what I wanted to say and I hope that, having done so, my noble friend will feel able to withdraw his amendment.
Lord Jenkin of Roding
I am grateful for the amount of trouble my noble friend has taken in responding to these two amendments. I recognise that the second one was pretty drastic and I described it as a probing amendment, but I am grateful for what she said about the need to improve the performance of the statutory consultees. With that, I am happy to withdraw the amendment.