Lord McKenzie of Luton
Main Page: Lord McKenzie of Luton (Labour - Life peer)Growth and Infrastructure Bill
Lord McKenzie of Luton Excerpts
Lord McKenzie of Luton
My Lords, I should make it clear that this is a probing amendment. The Explanatory Notes to the Bill state that although Section 60(2) of the Town and Country Planning Act 1990 enables development orders for physical development to be granted unconditionally or subject to approval of the local planning authority, there is no equivalent conditionality which can be imposed where the development is a change of use. New subsection (2A) rectifies this and states that an order for development consisting of a change in the use of land,
“may require the approval of the local planning authority, or of the Secretary of State”.
The inclusion of the Secretary of State in those potentially needing to approve does not appear to apply where physical development is involved. May I therefore ask the Minister why this additional potential power has been given to the Secretary of State and why there is a disparity between those two situations?
Lord Ahmad of Wimbledon
My Lords, I should like to explain why the Government believe that it is both necessary and appropriate to include the Secretary of State within the powers set out in Clause 4. As the Committee is aware, we are keen to free up the planning system from unnecessary constraints to ensure that local planning authorities can focus on the most important planning matters in their respective areas. We want to ensure that economic growth is not suffocated by unnecessary constraints on development that is change of use. We have already announced our intention to allow for the change of use of offices to residential accommodation, measures to make better use of existing buildings, and to make it easier to change use to a new state-funded school. I shall come on to that in a moment. These will be secured through the granting of a permitted development right.
As the Committee is aware, the permitted development right regime is a well understood tool for granting national planning permissions for small-scale development. Indeed, Section 60(2) of the Town and Country Planning Act 1990 already provides for the Secretary of State to make a development order containing permitted development rights which require the approval of the local planning authority with respect to certain matters. This allows potential impacts from the development to be managed effectively.
Similarly, Clause 4(1) will allow the Secretary of State to provide that local authorities can ensure that, where permitted development is granted for a change of use, the impacts from that development can be managed sensitively. For example, this could include ensuring that adequate measures are in place to manage the impact of any additional traffic generation or noise created by the change of use.
We are clear that there is also merit in providing that the power within Clause 4(1) applies to the Secretary of State. By doing so, we are providing that the Secretary of State can further prescribe the scope of a permitted development night for change of use within the boundaries of the existing use classes. This could ensure that only those particular uses where additional freedoms would be beneficial, where there are sufficient safeguards and indeed where they would not impact adversely would be permitted. Therefore it would be possible that the effect of a development order could be limited to buildings or categories of building approved by the Secretary of State or other Secretaries of State.
Let me be clear that the Secretary of State’s power in Clause 4 can be used only within the context of a particular permitted development right set out in the development order made by the Secretary of State under powers in Section 60 of the Town and Country Planning Act 1990. Permitted development rights very often have conditions and limitations attached. Clause 4 will enable those conditions to include the approval of matters relating to the change of use by the local planning authority, the Secretary of State or indeed both.
The matters to be approved will be clearly set out in the actual development order. We intend that the power will be used to bring forward our proposed permitted development right to support the creation of new state-funded schools. This will in this instance take account of a decision by the Secretary of State for Education to have considered and committed to the funding of a school. In doing so, we are ensuring that the planning system supports our priority to ensure that every child has an opportunity to benefit from a good state-funded education, something that I am sure the whole Committee wholeheartedly supports. Indeed, in response to the noble Lord, Lord McKenzie, I am sure that he is aware of a place not too far from his area of Luton—Bedford. I can think of no better words than those of the chairman of Bedford Free School, who said that,
“these new rules would have helped us move into the building quickly and easily, so we could concentrate on a new school that the community and local parents wanted, with an excellent head, in one of the most deprived parts of our town”.
Indeed, that was a very good example of where the actual development of the school was delayed but, had these rules been in place, that would not have been the case. It therefore remains the Government’s view that the creation and development of state-funded schools is strongly in the national interest and that planning decision-makers can and should support the objective in a manner consistent with their statutory obligations.
Clause 4 is a sensible measure and will ensure that development can take place quickly while also managing potential adverse impacts locally. As the noble Lord, Lord McKenzie, said, this is a probing amendment. I hope that, with the reassurances that I have given, he will be willing to withdraw his amendment.
Lord Greaves
My Lords, I do not think that in this Committee we want to go too deeply into free schools and whether what the noble Lord just said is true or whether other factors are involved and to what extent. Free schools exist and, whether some of us like them or not, they are part of the system now. I am not in any way arguing about that in this Committee because I do not think that it is our business. What seems to be happening, however, is that in certain circumstances, when a proposal for a free school comes forward, whatever the instigation or motivation for it, the Secretary of State is saying that the normal planning system will not apply for at least the first 12 months. That is the problem.
I believe that the two Secretaries of State are clearly in cahoots over this, although people might want to use a slightly less emotive term than “in cahoots”. They are, perhaps, working together across departments, which some of us sometimes complain they do not always do. Nevertheless, they are clearly doing this and saying that in those circumstances the planning system will be set aside. That is obviously what is being said. If I want to set up a free school and Mr Pickles thinks that my free school is a good idea, I will not have to get planning permission before it opens. In the circumstances of a school, with children being educated and with the potential effect of a school on the local community, pushing aside the whole of the normal planning system seems to me to be outrageous.
Lord McKenzie of Luton
My Lords, I am grateful to the noble Lord, Lord Greaves, for his support for this amendment and to my noble friend Lord Beecham. When I drafted this amendment it was with a much more innocent approach than has appeared from this debate. It was simply looking at the wording and the disparity between change of use and physical development. However, given the debate that has just ensued, I am very glad that I drafted it. We have yet another example of something that runs through this Bill—an anecdotal approach to a perceived problem in the planning system, with the answer being to circumvent that planning system to deal with it. The issue is not the existence of free schools but their location, and why the normal planning process is not to be applied to that. Although this was a gentle, probing amendment, which I thought we might pass over swiftly with a clear explanation from the Minister, we have opened up something here that we will return to on Report, as well as having some wider debates about permitted development on amendments that come later in the Bill, as we try to remove some of the centralist approach that applies to those amendments and make sure that the local voice is heard.
Lord Ahmad of Wimbledon
Perhaps I can reassure the House. A number of issues have been raised and—as the noble Lord, Lord McKenzie of Luton, suggested—we have noted them, which I believe I made quite clear in the Statement. I do not want to delay the House too long but a number of points were made and I think it is appropriate for people to reflect on the responses prior to the next stage of the Bill.
The noble Lord, Lord Beecham, referred to the one-year temporary right and how that is doing away with the planning process; that is not the case at all. This is very much geared towards ensuring that a school opens on time, and no planning application for a free school has been refused to date. In response to the points raised by the noble Lord, Lord Greaves, this is not about with doing away with the planning process; it is about making the issue in relation to free schools easier. Bureaucracy exists in the planning process. This is not about wiping away planning permission but ensuring that a local community’s demands are met, as my noble friend Lord Bates pointed out. We are seeking to ensure, through the Bill, that we highlight those barriers that prevent such free schools coming into being at the required time.
Lord Ahmad of Wimbledon
As I have already indicated to my noble friend, we will write and cover those matters.
Lord McKenzie of Luton
My Lords, I fear that the Minister has raised more questions than he has answered in this debate. We should be clear that, as amended, the provision concerns “change in the use”—requiring the approval of the Secretary of State—and is not limited to free schools or schools. It could indeed be anything at the whim of the Secretary of State. I have absolutely no doubt that, on the basis of the exchanges that have taken place today, we must return to this and constrain this provision in a very meaningful way. In the mean time, I beg leave to withdraw.
Lord McKenzie of Luton
My Lords, we have signed up to most of the amendments tabled by the noble Lord, Lord Greaves, but did not sign up to his definition of “reasonable”, simply because one of his other amendments sought to delete that term from the Bill, which we thought was a better solution. Along with the noble Lord, we consider that the clause is superfluous, or unnecessary or pernicious, to use the terms of my noble friend Lord Hanworth. Again, we see a measure which is based on assertion and anecdote rather than on hard evidence.
The Government launched a consultation document entitled Streamlining information requirements for planning applications on 3 July last year, which they closed on 11 September. When are we going to get the Government’s response to that consultation? Will it be before or after Report? Interestingly, the consultation states:
“There is no immediate vehicle for further reforms to primary planning legislation”.
That was back in July and it somewhat reinforces our contention that this Bill has been cobbled together in pretty short order. The consultation focuses on three areas: outlying planning permissions; local informational requirements; and agricultural land declarations. In respect of local information, which, effectively, is dealt with in this clause, the document cites that, although the primary powers of local authorities in this respect are broad, they are constrained, in particular by the publication of local information equivalents and the evidence and particulars regarding what is required and by national policy requirements that state that,
“local planning authorities should only request supporting information that is relevant, necessary and material to the application”.
This is what the procedure order requires, as does the related guidance. The consultation document muses that recent changes, including the NPPF, referred to by the noble Baroness, Lady Young, and the demise of regional spatial strategies, will mean that the information requirements of local authorities are likely to be out of date and should be updated every two years. However, it is clear from this document that, if it is necessary to change the current requirements—for example, with a regular updating of information lists—there are already powers to do this.
This also raises the question of why the policy position set down in the NPPF is not sufficient and why it is considered that primary legislation—available, it seems, after all—is needed. There is already a requirement to be reasonable, so what does Clause 5 add other than confusion? I agree with the noble Lord, Lord Cameron, that some planning authorities struggle and are under-resourced. However, surely the answer is to make sure not only that they have clear guidance but are supported in their endeavours. It seems to me that this clause does not help them or move them on one jot.
Specifically, from whose perspective does reasonableness have to be judged? Is that not the role of the local planning authority that has to consider the application? At the end of the day, I fear that this clause is, like too many in this Bill, all about adding another bit of pressure on local planning authorities so that they are encouraged to ask for less, to decide more quickly and to avoid risking appeals, so undermining the quality of decision-making. If the noble Lord is minded at a point in time during our deliberations to seek to have this clause deleted from the Bill, we will support him.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
Clause 5 amends Section 62 of the Town and Country Planning Act 1990, just in case that had escaped noble Lords. The clause sets out limits to the general power, under Section 62(3) of the Act, of local authorities to request information in support of planning applications.
There has been some debate today about why the clause is necessary. The department published the consultation paper on 21 January—indeed noble Lords’ attention has been drawn to it—and I hope that provides some reassurance on this point. With regard to the other consultation paper that was concluded in September, the Government’s response was provided on 12 December, so a response has been made. The consultation paper demonstrates how the provisions in the Bill form a critically important part of a wider package of deregulatory measures brought forward with the purpose of simplifying the planning system. As well as ensuring a better alignment between the National Planning Policy Framework and the primary legislation that governs information requests by local authorities, the consultation emphasises the need to place limits on the broad power that currently exists in Section 62(3) of the Town and Country Planning Act. This is to address the impact of recent court decisions and ensure that applicants can access the planning appeals system where there is a dispute with the local authority regarding what information is necessary to validate a planning application.
The noble Baroness, Lady Young, asked about the interrelationship between the National Planning Policy Framework and this clause. While the NPPF sets out a clear expectation on local authorities through policy, it is alone insufficient to overcome the interpretation given by the courts to the current legislative framework. The clause also safeguards the position of a local authority in requesting information, where a justification exists on the basis that the matter will be a material consideration when it comes to determine the application in question. Overall, I believe this change will bring a more balanced state of affairs whereby applicants and local authorities will work together to establish the amount of information necessary to get a particular planning application validated. Alongside our wider package, the clause will deliver a better and more proportionate approach to information requests and reduce the scope for disputes that can lead to delays at the validation stage.
Amendments 52, 53 and 54 would all considerably weaken the purpose of the clause and the achievement of the objectives I have just set out. Amendment 53 would amend the objective test in Clause 5 of whether a matter will be a material consideration in the determination of the application to become a more subjective test where the primary role is with the local authority to determine whether this is the case. That would undermine our attempt to address the broad powers of local authorities that have been the source of criticism by the courts. Similarly, Amendment 52 would essentially return us to the position that currently exists and has been found problematic: a subjective test decided by the local authority. A local authority would merely have to have regard to the nature and scale of the development when making an information request.
The purpose of requiring such information requests to be reasonable is to ensure that a local authority can justify whatever information it is seeking and can respond, if pressed, as to why it considers applicants should have to go to the often considerable expense of providing it. Presumably, that is something which we all agree is sensible and appropriate. Amendment 54 would continue in a similar vein, by weakening the requirement for local authorities to justify information requests on the basis that it is reasonable to think that they will be material considerations in the determination of the application to a looser requirement that they would be likely to be. Although I can understand the intention behind the amendment, we need to ensure that local authorities are clear, consistent and certain in why they think that information is going to be relevant to the determination of the application in question. Changing the test to “likely” will weaken the effect of this important principle.
Amendment 55 seeks to respond to the criticism that there is no statutory definition of what is “reasonable” by suggesting one. The definition attempts to set out circumstances which could definitively be considered “reasonable”. These would include information requests made by a government department, government agency or statutory consultee. As I have already said, the purpose of including “reasonable” in the tests is to require a local authority to justify why it considers information is necessary for the application to be validated. The likely requirements of a statutory consultee would clearly be a relevant justification as long as they are warranted by the circumstances of an application.
However, a tick-box attitude to the local list—there are indeed local lists of what information would be required—without consideration of the relevance of any particular item for a particular application will not do. Attempting to draw up in primary legislation a definitive list of what is and is not reasonable is not likely to be helpful and could create confusion. The tests that apply are already clearly set out in the NPPF and the clause as it currently stands clearly emphasises this.
What we really want is for local authorities and applicants to think these matters through together and, where differences emerge at validation stage, to have a sensible discussion about what is reasonable in the individual circumstances of the case. The concern that has prompted this change is that the law as currently drafted allows local authorities to refuse to validate planning applications indefinitely and simply to impose information requirements unilaterally on applicants.
In summary, I fully understand and respect the need for us to safeguard the ability of local authorities to request information from the applicant where it is essential to the determination of a planning application. Clause 5 and the associated proposed changes to secondary legislation achieve this. No harm will be created by the requirement for such requests to be justified and, if necessary, enabling matters to proceed to appeal for a decision. Indeed, we consider that Clause 5 will encourage both applicants and local authorities to work more closely together to ensure that the likely impacts of development are fully appraised in the documentation submitted with the planning application in question.