Lord McKenzie of Luton
Main Page: Lord McKenzie of Luton (Labour - Life peer)Growth and Infrastructure Bill
Lord McKenzie of Luton Excerpts
Lord Tope
My Lords, I shall speak also to Amendment 32 in the name of my noble friend Lord Greaves and to which I have added my name. Clause 1 gives the power to the Secretary of State to designate a local planning authority as deemed to be failing, thus enabling applicants for major projects to apply direct to the Planning Inspectorate should they so desire. I said at Second Reading, and I will say again, that I am very grateful to Ministers in the other place for the assurances that they have given for the criteria that have been proposed and for the reassurance that the clause is not quite as bad as it seems. But I still say that it is directly contrary to the spirit of localism, which we have spent many happy hours discussing in this House.
I understand that the Government are determined to keep the clause in the Bill and, of course, I respect that. The Local Government Association has described it as using a sledgehammer to crack a nut. I am bound to say that I am inclined to agree with that description. However, if we are to have the clause, it is the role and duty of this House to make it as workable as it can be—some might say, to make it as harmless as it can be. The Government have said that they wish to keep the clause as a deterrent. I would feel happier if we could approach this on the basis of keeping it as an incentive. The latter approach calls for a different state of mind. The Government are adopting a sort of target-led approach whereby an authority that does not meet certain criteria will be designated. I think we all accept that there have been, are, and sadly probably always will be some local planning authorities that do not perform as well as they should. There is a different debate to be had about exactly what we mean by performance and how we measure it, but let us start from that basis.
I believe that the best way to improve a poorly performing authority with regard to planning as to most other things is first and foremost through what is normally called sector-led improvement to enable it to improve itself, not to punish it in some way by taking away its authority. The purpose of Amendment 1 is to require the Secretary of State to give 18 months’ notice of designation. That 18 months would allow the local authority to look at how it can improve its performance and then to be judged on the way in which it improves, not on the way in which it has performed in the past.
I am aware that Amendment 32, to which I have given my support, suggests a period of 12 months rather than 18 months. At this stage I do not want to get too hung up on the difference between 18 months and 12 months. The important principle with this amendment is that the Secretary of State should give a lengthy period of notice to enable a local authority to improve itself, helped and assisted by other local authorities and, indeed, by the Local Government Association. The Local Government Association thinks that 18 months is probably a more appropriate period, primarily because it enables better and more realistic data collection so that we can see the direction of travel that that authority is taking. Is it gradually improving? If it is improving over that period, designating it would be a considerable disincentive, not an incentive. If it is making no improvement, or indeed even getting worse, that is more justification for the designation.
A poorly performing local planning authority may well need to recruit better planning officers and better staff to enable it to improve its performance. However, it takes considerable time to recruit and embed those staff and for the improvements that we hope they can bring about to work and be seen. It takes time, of course, to engage effectively with other helpful authorities or outside sources in order to improve. For all those reasons, the Local Government Association thinks that an 18-month period is more appropriate. However, the important point is that we have a lengthy enough period—be it a year or 18 months—to enable a local planning authority to improve itself before the imposition of the final, and frankly draconian, measure of designating and taking away its right, and therefore the right of the local people, effectively to decide their own major planning applications. I beg to move.
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 Jenkin of Roding
This is what consultation is about. I am sure the noble Lord has read the consultation paper. The consultation closed on 17 January and I have already made the point that I hope, and ask my noble friend to confirm, that the Government’s response to the consultation will be available by the time we come to deal with the clause on Report. They have spelled out quite clearly their thinking on the criteria for designation and that it is unlikely to apply to more than a very few local authorities. Indeed, Ministers have said that they hope there will not be any. But if there is a wide variation in the planning performance of different local authorities are the Government simply to sit back and to do nothing?
Lord McKenzie of Luton
The noble Lord raises an important question in asking whether the Government should sit back and do nothing. The answer is clearly no, but is not the right approach to try to put some resources into understanding what is happening to differential performance and why the metrics have declined in recent times? Those issues should be addressed rather than make the assumption that authorities that fail the test—it is all to do with the speed of dealing with applications and nothing much to do with the quality of decisions being taken—are somehow failing.
Does the noble Lord not think that the upheaval in the planning system in recent months may have had an impact? We have had the Localism Act, the NPPF, the demise of regional spatial strategies and all that goes with that. Those are very considerable changes, and of course local authorities are facing the horrendous cuts to their budgets, the worst that have been experienced for generations. Perhaps these factors are having an impact on what is happening. Is it not better to address them rather than make a spurious judgment that it is all to do with the speed of application? Is it not also right that, when there is non-determination within six months of an application, the Secretary of State has the power to call it in and deal with it anyway?
Lord Jenkin of Roding
I understand the points being made by the noble Lord. The question of the pressures on local authority finances and therefore on local authority staffing is important, but of course authorities do charge. My noble friend Lord Tope made the point that some local authorities could improve by hiring better quality staff. These are the kind of things where, if there is some form of longstop provision of the sort that is in Clause 1, minds will be concentrated. I am not saying that the clause needs no amendment and I have already made the point that I have put my name to several amendments that we will come to, but I would not be happy to join forces with those who would prefer to see it removed altogether. I thought it right to make my views pretty clear at this stage of the Bill.
The Bill is a miscellaneous set of measures rather than a large and comprehensive Act like the Localism Act that we have passed. It contains a number of disparate and separate measures that are aimed at meeting the increasingly vocal call for the Government to do something to improve the growth of the economy. None of the provisions is a golden one, likely by itself to make a huge difference, but taken together they are a brave attempt to try to find out what the obstacles are. Many noble Lords will have seen that there is plenty of evidence about the barriers, and I want to make it clear that in the interests of growth and of improving the planning system, the broad thrust of this Bill is right, as indeed is Clause 1. If it is put to a vote, I shall certainly support the Government.
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—
Lord McKenzie of Luton
If the Government are very happy to see local planning authorities supported through the LGA or whatever, why do that only once designation has taken place? Would it not be better to make sure that that support is available to help them to improve before they are designated so that they avoid this process, which, on anyone’s score, will be costly, convoluted and administratively complex?
Baroness Hanham
My Lords, this is a matter of view between us. Our view is that things will become clearer over the coming months and local authorities will know whether they are bordering on designation. They will know that help will be available if they are designated and that they will be encouraged to improve. That will be the tension. The designation can cease following an annual review. I do not think that that will be too much of a tension if we decide not to accept the amendment and the promoters agree with that.
I have an enormous number of points here in front of me on questions that have been quite general. I could make a Second Reading response if the Committee would like that, but we are trying to deal with the performance of local authorities and planning authorities. We also note that some local authorities will receive only a small number of applications, and that is one reason for looking at the figures over two years. We accept that there are differences between one local authority and another.
My noble friend Lord Deben, who is my real friend, also suggested that this power was anti-localism. It is not. It does not take away a local planning authority’s ability to continue to deal with planning applications, but it provides that if an authority is designated, a developer has the right to decide whether it wants the local authority to carry on dealing with the application or take it to the Secretary of State. Developers already have the right to go to the Secretary of State if an application is not completed within 13 weeks. That will of course be one means whereby local authorities can be designated if they are not performing within a statutory area.
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.
Lord McKenzie of Luton
Perhaps I may focus on one other point. Clearly, the criteria are going to be driven by the speed at which applications are dealt with. That is very clear from the consultation document. If, in the Government’s eyes, there is a delay in dealing with an application, why do they attribute blame only to the local planning authority? The cause could be due to the developer or other consultees in the community engagement. Why is blame attributed solely to the local planning authority? That is basically the conclusion to be drawn from what the Government are proposing.
Baroness Hanham
That will not be entirely the case. There are usually reasons why planning applications are delayed, and one may be that an application will take longer than the normal consultation period. Before an authority is designated, it will be allowed to put that view forward and say that it has not been able to deal with certain applications because it has agreed that the process will take longer, or there may be some other reason. A portcullis will not just come down; discussions and explanations will be possible.
Lord McKenzie of Luton
There is a very important point—it may be a new point. I understand that, where performance agreements are entered into, they will be taken into account. However, is the Minister saying that there will be an additional process whereby a local authority can make representations about the prospect of it being designated because of circumstances that have occurred locally?
Baroness Hanham
My Lords, before they are designated, local authorities will have the opportunity to explain, first, their figures and, secondly, if necessary, the length of time that an application has taken due to specific reasons. That will be the case with either a formal or an informal planning application, but they will have to note that that is what it is so that they can use that as an explanation.
Lord McKenzie of Luton
My Lords, I shall also speak to Amendments 27, 28, 29 and 35 in the group. Amendments 2 and 35 have to an extent been the subject of some discussion on the prior amendments. The 11th report of the Delegated Powers and Regulatory Reform Committee draws the provisions of Clause 1 to the attention of the House. Specifically, it emphasises the point that, whatever the declared intent, the Bill does not specify the criteria for designation or provide for them to be set down in an instrument subject to parliamentary procedure. That is what the amendment seeks to rectify. Amendment 35 requires that there is an affirmative procedure. To emphasise that point, Clause 1(8) states:
“The Secretary of State must publish (in such manner as the Secretary of State thinks fit) … the criteria”.
It is good that they must be published and not kept secret but there is no parliamentary process attached. Whatever the Secretary of State wishes to publish in accordance with the Bill, he can do so.
While the clause has been represented as having very limited application, it enables a profound shift in process and, indeed, in principle by removing from democratically elected councils the first engagement with a planning application, undermining the role of local accountability. We will debate elsewhere whether such a designation process should apply and what the appropriate criteria should be, and we will pursue the point that planning should be not just about process but quality outcomes. The Delegated Powers Committee said that they must merely be published. Accordingly, although each local planning authority might be designated individually, the power may be used by this or a future Government to designate a significant proportion of local planning authorities based on criteria that have no relevance to poor performance. My noble friend Lord Adonis made that point. Essentially the door would be open for a fundamental undermining of the planning system as we have known it since 1947. The Delegated Powers and Regulatory Reform Committee was absolutely right to express its concerns.
In its consultation document, Planning Performance and the Planning Guarantee—the consultation has ended, as we have heard, although we may not get the full response by Report—the Government set out their view on the threshold for very poor performance, when,
“30% or fewer major applications have been determined within the statutory period or more than 20% of major decisions have been overturned at appeal”.
However, paragraph 45 of the document very clearly states:
“We also propose raising the bar for the speed of decisions after the first year”,
so who knows where this will end up if it is just up to the Secretary of State to publish what is in his mind at any one point? Whatever the current Secretary of State’s intentions we must not have such a wide and unfettered power unchecked in primary legislation.
Amendment 29 requires the length of the designation to be identified and, more importantly, what must be achieved for the designation to be removed. It should mean that a qualitative assessment must be made on a case-by-case basis of where a local authority is failing. LPAs that fail on the designation criteria in the Government’s terms will not necessarily all do so for the same reason. The government consultation suggests that designation will last at least for a year but will be subject to review before the end of the year. This is all very well, but if there is no initial assessment of the problems a local authority faces, how will improvement be judged? Speed of dealing with minor applications may be irrelevant; indeed, this aspect of activity may already be more than satisfactory on the Government’s criteria. Once designation is made, whether the local planning authority can show any improvement in handling major applications is entirely outside its control. The noble Baroness made the point in response to the previous debate that it will depend on whether any applicants choose to submit locally, and how many to the Secretary of State. Improvement should be about focusing resources, skills and culture, and performance, and it is also about the training of counsellors. If central government is to remove planning powers for a local authority it must be incumbent on the Secretary of State to make a proper case-by-case assessment of why and how the authority is failing, and how it can be supported.
Amendment 28 is very much by way of a fallback position. If the Secretary of State is to proceed by just publishing criteria, as the Bill currently allows, at the very least for that to happen, there must be a proper consultation. The Secretary of State may argue that one has just closed, but, sadly, it looks as though we will not see the full government response to it before we complete our deliberations. Amendment 27 rightly subjects these provisions to the need for a parliamentary process, which is provided for in Amendment 35.
There are three other amendments in this group, but I will not deal with them in detail until the noble Lords who tabled them have had a chance to speak to them. We support the thrust of Amendment 8, tabled by the noble Lord, Lord Tope, and of Amendments 33 and 34, tabled by the noble Lord, Lord Greaves, which spell out issues in a very helpful and focused way. I beg to move.
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—
Baroness Hanham
Before the noble Lord withdraws his amendment, I hope I made it clear that if a local authority is going to be designated, it will be able to put forward the sort of points that he and the noble Lord, Lord Greaves, have suggested as a reason for why their applications have been slower than others. I hope that is clear.
Lord McKenzie of Luton
That is very helpful, but can we just be clear on the consequence? Notwithstanding that it might be close to the end of the year and that 30% of the applications will not be received within the designated time, can an authority come and say, “Because of these applications, these circumstances, these issues with a developer or these issues with the community”, so that designation may not then take place, even if the criteria have been breached? I am not sure whether the criteria are met or breached in these circumstances. However, that would be a way to avoid designation, and of doing so notwithstanding there being no formal and informal agreements. Obviously, those cannot now be dealt with in retrospect. Is that what the Minister is saying? That is actually very helpful; for me, it is a new point.
Baroness Hanham
I am saying that an authority could put that forward and have it taken into account. Whether it would actually stop the designation would depend on a whole number of other factors, but it is a fact that it would be able to make those representations.
Lord McKenzie of Luton
My Lords, I shall speak also to Amendments 5 and 25 in this group. These amendments would preclude the Secretary of State from including in the types of application that can be made to the Secretary of State, rather than a designated authority, certain types of developments. We have a parallel amendment grouped with this that would preclude any planning authority with responsibility for all or part of any of these areas from being designated. These include developments affecting flood risk areas, world heritage sites, national parks, areas of outstanding national beauty and sites of special scientific interest. Our natural environment and our heritage are precious assets that require special consideration in this context. Indeed, issues around conserving and enhancing the natural and historic environment, and meeting the challenges of climate change, flooding and coastal change, rightly feature robustly in the NPPF.
Our major concern, not allayed by discussion at the other end on this matter, is that the focus on process and timing under Clause 1 will drive the behaviours of local planning authorities and the speed of decision-making to run contrary to a wider, quality-led approach, which the NPPF demands. What it demands entails significant engagement, and not just from the applicant. It is clear from the Government’s consultation document that they see the speed of decision-making as paramount and are intent on increasing the threshold for designation in subsequent years, so excluding these situations from designation entirely is a necessary protection.
The Government have made great play of having clarity over designation, indicating that it will follow automatically after some transitional issues. However, we may have a qualification on that as a result of our last exchange. There seems no scope for local planning authorities charged with these responsibilities to explain their position on a case-by-case basis. From what the noble Baroness said a moment ago, perhaps she will say that that is now not the case.
I will comment in due course on Amendments 6, 7 and 26 when they have been spoken to, but it looks as though Amendments 7 and 26 have a substantial overlap with our Amendments 5 and 25. Clearly, we expect to be able to support them on that basis. I beg to move.
Lord Tope
My Lords, Amendment 6 stands in my name and has been suggested by both the Local Government Association and the Campaign to Protect Rural England. It would of course mean that only local authorities which do not already have a local plan in place could be designated as poorly performing. In other words, it would immediately remove from the possibility of designation all those authorities that have a local plan in place. As we all know, the preparation and adoption of a local plan is a lengthy process. It is sometimes too lengthy a process but it is fully democratic and shows that the planning authority concerned is performing to proper democratic accords. On that basis, it is believed that they should be excluded from this threat.
Good, sensible local plans are forward-looking. They are intended and designed to encourage and stimulate growth. It is felt that they are in themselves probably a better measure of how well an authority is performing than individual planning applications—I think that this point has been made in earlier debates today—however major the project for which they are submitted. As I said, the intention of this amendment is to exclude those authorities that have adopted a local plan over the previous 20 years, as it suggests.
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.
Lord McKenzie of Luton
My Lords, when Amendment 6 —which was spoken to by the noble Lord, Lord Tope— was debated in the other place, my colleagues tabled a similar amendment and it was pointed out by the Minister that only one authority in the land had not had a local plan for 20 years. I am not sure how it got away with it for that long.
Lord McKenzie of Luton
Indeed. My point was going to be that if this is a way of wrecking the clause, I am all in favour of that, but let us do it at clause stand part and do it properly. If it is structured as a means of incentivising people to get on with their local plan, I would have more sympathy.
I side with the noble Lord, Lord Greaves, on the national parks. The number of applications seems relevant because you might have two applications to deal with in a year, which several of these authorities did. If you determine each within 14 weeks of application, you would be designated. I think that would be the consequence of the fairly strict rule.
The noble Lord, Lord Deben, said that it is important that we are happy about this because it is objective. We say yes to an objective approach, but that does not mean a blanket approach where exactly the same criteria apply to all because if that 30% criterion applies, when you have authorities with a very small number of applications, it could work in a perverse way.
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 Jenkin of Roding
I entirely recognise that they were both approved and not approved. They were decisions.
Lord McKenzie of Luton
My Lords, I think we have debated this group sufficiently. I beg leave to withdraw the amendment.
“(1A) The Secretary of State shall consult representatives of local government and others who he considers appropriate before laying such regulations which shall be subject to approval by both Houses of Parliament.”
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.
Baroness Hanham
My Lords, I am happy to clarify the question of the noble Lord, Lord Greaves, immediately: it does not apply to every single application. This clause applies to major applications. Minor applications would not be included in any consideration for designation. Major developments, as the noble Lord, Lord McKenzie, has said, are already in secondary legislation. They are precisely as he read them out, and they would be the criteria by which we would seek to move ahead; that is the basis on which we are defining “major development”.
This is another point of consultation. The noble Lord is suggesting that “major” should be in the Bill. I would rather see all the replies to the consultation and come back on that, but the noble Lord has raised an important point.
Lord McKenzie of Luton
I am grateful to the noble Baroness for that response. We look forward to further discussion on that on Report.
I think that it is right, as I have indicated, that the Secretary of State does not have to delegate to the Planning Inspectorate, but could delegate to others. Is that correct? Are there any proposals to do that at all? Whom might those others encompass?
Baroness Hanham
My Lords, I think that it would be the Planning Inspectorate, but nods and winks from over there suggest that I should write to the noble Lord as to whether there is another area to which it could go.
Lord McKenzie of Luton
My Lords, again, I am grateful to the Minister and beg leave to withdraw the amendment.
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, 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.
Baroness Hanham
My Lords, I understand and agree with the intention behind Amendments 13 and 14. We have no argument with the suggestion that the fee for any connected application should be transferred to the local planning authority or the hazardous substances authority if it is found that the application is not, in fact, connected and the authority is the most appropriate body to determine the application. I hope that that covers those points. That is not, however, something that we want to provide for in the Bill, because such matters are most appropriately dealt with, alongside other fees issues, in the appropriate secondary legislation. It will be in secondary legislation and I should like to reassure noble Lords that that is what we intend.
Turning to the other amendments in this group, it is our intention that the Planning Inspectorate will deal with as many aspects of an application made directly to the Secretary of State as possible. In these circumstances, as the consultation document makes very clear, we intend to ask a designated planning authority to carry out only some basic administrative tasks. These include entering the application on the local authority’s planning register, undertaking neighbour notification and posting site notices. Therefore, subsection (6) of this clause has probably generated more excitement than is merited because none of these situations is very cost-intensive. While the provision indeed gives the Secretary of State a direction-making power in relation to designated authorities, it is intended to be used in a manner strictly limited to those aspects of handling an application for which it makes absolute sense for the job to be done locally. While I agree with the sentiment behind Amendment 20, I am not convinced that it is necessary to put such a requirement in the Bill.
I am also confident that there is no need to add “designated” before “authority” in subsection (6)(b), which Amendments 21 and 22 seek to do. The subsection can apply only to applications made directly to the Secretary of State, which would be possible only where an authority has been designated under this clause. It follows that the additional words are unnecessary.
In relation to Amendments 23 and 24, the local authority planning service is funded not only by fees from planning applications, which the noble Lord, Lord McKenzie, alluded to, but from the local government grant, which authorities will continue to receive to help cover these basic administrative costs. There will be no diminution there. The cost of the work will be minimal but the potential need to meet these costs should be seen as part of the disincentive to performing poorly.
Lord McKenzie of Luton
I am sorry to interrupt the noble Baroness. She referred to the grant made available to local authorities and said that there will be no diminution in it. Are we talking about a separate grant or one that is paid as part of the business rate retention scheme and revenue support grant? How does that come through, particularly given the assertion that it has not reduced?
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.
Baroness Hanham
My Lords, the question of whether the Section 106 procedure is carried out by the local authority or the Planning Inspectorate will depend on where the negotiations take place, because they sometimes take place during the process of the application. I need to obtain a firm response on whether, in some cases, that will be done by the local authority, subsequent to the planning decision. It is my recollection—this is not from the officials—that the Section 106 procedure is usually, at the end of the day, part of the conditions of the permission. It would therefore make sense that it had to be negotiated during the course of the application. If that is not correct, I will let noble Lords know before the next stage. However, that is probably as near as I can get at the moment.
Lord McKenzie of Luton
That would be helpful. The noble Baroness has prompted another thought: will the discharge of conditions for planning consent be left with the local planning authority, not dealt with by the inspectorate?
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, 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.
Lord Deben
This is an important series of amendments because they bear on the very issue that we have all raised with the Minister as to the difficulties which arise because of the procedure initiated by this clause. There is a real issue here, and it is one for her to consider deeply. I heard what she said about this not being contrary to the localism agenda; I cannot say that I was entirely convinced, but she obviously is concerned that it should be consonant with the localism agenda. Surely, the one important thing in the localism agenda is that the public locally feel themselves involved. The nature of the kinds of applications which are likely to be referred to the Minister rather than to the local authority is that they will be controversial and particularly controversial locally.
I say to the Minister that, in my experience of being a Member of Parliament for nearly 40 years, the one thing people will not put up with is not being able to be heard. I would commend to her my experience of the campaign about how we should build Sizewell B. This was very successful; we got every local parish council—50 or so—to support that planning permission. We did it because we went round to every single one of them and discussed it. We put the case for and against. We listened and made sure that none of the discussions were dominated by incoming protesters from either side and were just done by the locality, so that by the time they finished hardly anybody could say—nobody could say truthfully—that they had not been involved.
Baroness Hanham
I have been trying to make it clear all the way through this afternoon and evening that, when the application is taken to the inspectorate, the same consultation processes will have to take place as would have taken place if the local authority had conducted the application itself. The consultation document makes it clear that there will be no dilution in the ability of communities to become aware of applications through notifications or discussions, or in their ability to comment on them in very much the same way.
I appreciate what my noble friend Lord Deben says about people being consulted. I draw his attention to the Localism Act, in which there is a requirement for planning developers to undertake pre-application planning discussions. One would expect that to happen in the first instance. The size of the applications being discussed by my noble friend would be beyond the purpose of the clause; they would be major infrastructure applications. However, some applications that will not go quite so far will still be big enough to arouse local feeling. We intend that all the current statutory requirements on local authorities should be transferred to the inspectorate. There will be the same standards of publicity and consultation, and the same opportunities and periods to make representations; and all the relevant documents will have to be available at the offices of the relevant planning authority and on the Planning Inspectorate’s website, so one will be able either to look them up on the internet or check them out locally.
Lord McKenzie of Luton
Will the Minister confirm that the current standard arrangements for consultation involve the presumption that applications are examined principally by means of written representations, with the option of a short hearing to allow the key parties briefly to put their point of view? Is that a characterisation of how the system works at the moment?
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 McKenzie of Luton
In relation to the consultation, the response was frankly a bit thin. This is an issue that we need to consider further. I will revert briefly to the point about material considerations, the Planning Inspectorate and the NPPF. I accept that it may be an entirely irrelevant point, or at least a technical one. Will there be any difference in the weight given to material consideration issues or to issues in the NPPF that balance a range of things between the perspective of a planning inspector and that of a local planning authority? This is quite apart from any difference in process. We might align them as much as we can, but is there something inherent in the process that could give a different result? I do not assert that there is, but I would be interested in a response on that point.
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.