Localism Bill

Lord Reay Excerpts

Wednesday 20th July 2011 Lords Chamber

[Lord Reay]

My Lords, I put my name down to oppose that Clause 124 stand part of the Bill. A report was issued in 2007 by BERR—as noble Lords will remember, it was a department which existed before BIS and DECC came into being—which was entitled Delivering Community Benefits from Wind Energy Development: A Toolkit. It included this statement:

“There is a strict principle in the planning systems in all parts of the UK that a decision about a particular planning proposal should be based on planning issues; it should not be influenced by additional payments or contributions offered by a developer which are not linked to making the proposal acceptable in planning terms … To put it simply, planning permission cannot be ‘bought’”.

Do the Government still stand by that statement?

I am grateful to the Minister for circulating the most recent, six-page, briefing from her department on Clause 124. That document states that whereas Section 106 payments, or planning obligation payments as they are called, must relate to the planning merits of the specific development to which they relate, CIL income can be used more widely. However, local planning authorities, it goes on to say, should not have regard to considerations that are not material, and if they do their decisions will be unlawful. Deciding on the scope of what, as a matter of law, could be material to a planning decision remains principally a matter for the courts.

So what has changed? The Government say nothing has changed, except that the current legal position has been clarified by putting it into statute, presumably by removing it from case law. The Government have not stated clearly what happened to make them take the step of suddenly producing this clause at Report stage in another place. I should be grateful to the Minister if he takes the opportunity today of stating why that is so. In doing so, perhaps he could explain why the Government wanted to remove decisions about what count as material considerations in planning matters from case law, and what he thinks the effects of doing that will be.

I should also like my noble friend to state that the Government stand by the BERR statement from 2007 that I quoted—that it is not the Government’s intention that planning decisions can be bought. I would also welcome it if the Government were able to support Amendment 166WA, which was moved by the noble Baroness, Lady Hamwee. Incidentally, I should also like the Minister to say when we can expect the national planning policy framework, as this is the last day before the Recess on which we can receive that information directly.

[Lord Best]

Perhaps I could speak before the noble Lord, Lord McKenzie, who will bring everything together thereafter. I know that opposition to Clause 124 relates to the effects on planning decisions of taking into account, in particular, the financial benefits from the community infrastructure levy and, very importantly, the newly formulated new homes bonus. In relation to the community infrastructure levy, I think the Government were absolutely right in reworking and reintroducing the CIL concept. I hope that planning decisions will take full account of the benefits that these levies can bring.

I shall now consider the potential impact of the new homes bonus. I am a supporter of the bonus, and I pay tribute to the Housing Minister, the right honourable Grant Shapps, for bringing forward this way of rewarding those local authorities that take their leadership role seriously, often in the face of considerable and vocal opposition, and seek to increase the number of new homes built in their areas. We know how important it is that acute shortages of decent housing, particularly in the southern half of England, should be urgently addressed. Planning can be the fundamental barrier to new homes getting built; but it can also be a positive force that facilitates badly needed new homes, even though the beneficiaries—the proposed new residents—have no voice in the local decision-making because they have not yet moved in.

The new homes bonus provides a mechanism for local authorities to give something back to the existing communities affected by new development: money to enhance local facilities, improve the local environment and reward those who are bound to be inconvenienced by building works close by and probably by increased traffic. Councillors can stand before the sceptics and protestors and declare that not only will the new housing serve the needs of young families seeking a home, but it will bring benefits directly or indirectly to the local community too. Some district councils in the Home Counties—exactly the places where opponents of new homes are often most vociferous—could gain significantly from the bonus payments by taking a pro-growth line. In these difficult times, these payments could mean that local authority services, which would otherwise have to go, may be retained. Conversely, those councils that succumb to every pressure and oppose new homes being built in their areas will lose out. I wish the new homes bonus every success and would hate to see planners ignoring the benefits it could bring.

My starting point, therefore, has been to look favourably at Clause 124’s intention that planners should recognise the positive financial considerations for their localities that a planning decision can achieve. However, the arguments from the noble Baronesses, Lady Hamwee and Lady Parminter, and the noble Lords, Lord Jenkin and Lord Reay, cause me to think again. If there is a danger that this measure could lead to accusations of planners selling planning permissions, to objectors being able to argue that financial incentives have improperly influenced decisions, and to legal challenges and long delays, then I can see that it would be much better not to tackle this through legislation. If reliance on existing legislation—with some extra guidance—is the safer option then, as a firm advocate for the new homes bonus who would not want to put it at risk, I would support the amendment and that the clause stand part.

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Moved by

[Lord Reay]

170A: After Clause 124, insert the following new Clause—
“Windfarms: appeal costs
Where an appeal is made against the decision of a local planning authority to reject a planning application for an onshore windfarm, and the matter is taken to a public inquiry, the costs incurred by the authority in contesting the appeal, as well as any reasonable costs incurred by any registered rule 6(6) party under the Town and Country Planning Appeals Rules 2000, shall be paid for by the appellant.”

[Lord Reay]

My Lords, in moving my Amendment 170A, I should like to start by quoting what the Minister, Mr Greg Clark, said in another place at the Report stage of the Bill:

“There is also a case for looking at the fact that the costs of losing appeals can sometimes hang over local authorities. Sometimes the threat of losing an appeal dissuades a local authority from turning down an application that it might want to turn down. We should look at that”.—[Official Report, Commons, 17/5/11; col. 274.]

My only quarrel with that statement is that it is not so much the threat of losing an appeal as the costs of fighting one, whatever the result, that can dissuade a local authority from turning down a planning application that it should turn down and/or might otherwise want to turn down. This is more true today than ever now that local authorities are having to make severe budget cuts.

Following my having taken up that point at Second Reading, my noble friend the Minister kindly wrote to me on the 20th of last month and ended her letter by saying that she hoped to be able to update me shortly with news on,

“how we propose to do that”;

that is, deal with the concerns about appeal costs. I am hoping that she may be able to tell us today what that is.

I have singled out onshore wind farm applications because it is particularly scandalous that it is the subsidies that wind farm developers are promised that place them in a position to outbid local authorities and local action groups. Without those subsidies, the planning applications would never be made in the first place. Just to remind noble Lords, the subsidy takes the form of a promise to take on to the grid for 20 years all the electricity that the wind farm can produce at a price which is currently over twice the market rate. If for some reason the grid cannot accept the electricity, as we have seen happen recently and I am sure we will again, it will still pay for it at the subsidised rate. It is of course the consumer, including the consumer who is being pushed into fuel poverty, who is then charged on his electricity bills with these costs, and who thus pays for the subsidy.

This of course creates the very antithesis of a level playing field. The result is that this is an area where final planning decisions are emphatically not taken by local authorities or local communities. Localism does not rule. It is routine for developers to waste no time in appealing once the local authority has rejected, if it has had the courage to reject, their planning application. In the first place, the developers hope to intimidate the local authority with the threat of a protracted and expensive public inquiry into granting their planning applications. If, nevertheless, the local authority stands up to them, they hope to defeat the local authority at the public inquiry. As developers are invariably able to afford better legal and administrative representation than the local authority, and certainly than the local action groups, they are favourites to win.

The Government are complicit in this unjust process because they maintain the subsidies. The Government also apply immense pressure on the Planning Inspectorate through statements in every conceivable piece of legislation and guidance to help deliver, through its decisions at public inquiries, the Government’s renewable energy targets. In many cases the inspector does give priority to local concerns or to landscape considerations, but it still seems to be the case that in a majority of cases he will give priority to government policy. So by means of the subsidies to renewable energy electricity generators and the pressure on the Planning Inspectorate to deliver the Government’s renewable energy targets, the Government are doing everything in their power to thwart local opponents of onshore wind farm schemes. Yet they still claim to want to devolve decision-making powers in planning matters to local communities. How do they justify that blatant contradiction? I am afraid that it invites the charge of hypocrisy.

Yet it is still the case that the Government have signalled their recognition that the ability of developers to intimidate local planning authorities into granting planning permission because of the costs of going to appeal represents a problem, which is why I hope that my noble friend will say today what the Government propose to do about it. My amendment might result in developers thinking twice about taking local planning authority refusals to appeal. In doing so, it might give some encouragement to local authorities to stick to their guns with the result that more final decisions might be in accordance with the wishes of local communities. Perhaps naively I thought that that was meant to be the main purpose of the Bill. I beg to move.

[Lord Whitty]

My Lords, I trust that the Government will give no credence to this intervention by the noble Lord, Lord Reay. Government policy for encouraging the development of alternative energy—which is essential to our future—includes onshore wind farms. If he wishes to pursue his opposition to that policy, he should pursue it under energy Bills and the various regulations that are brought before this House under the energy Bills. He may well have done so. However, this is not the appropriate point to do it.

His amendment would do the opposite of what he is suggesting. It would discriminate against developers of wind farms as compared with any other developer, as well as cutting across what has been a cross-party consensual position in terms of encouraging alternative energy, including wind farms. In reality, the number of wind farms that have been rejected on planning grounds is at least equivalent to those that have gone forward and the number on which a decision has been challenged.

I do not want to use the same intemperate language as the noble Lord, Lord Reay, but, in practice, on wind farm applications, the nimbys have generally won. In this, at least, let us recognise that there is an overriding national consideration that this Government, the last Government and all parties in this House have accepted. This is not the point at which to further discriminate against wind farm developers.

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[Lord Shutt of Greetland]

My Lords, I thank the noble Lord, Lord Reay, and other noble Lords who have taken part in the discussion on this amendment. It is accepted practice that all parties to an appeal should normally meet their own costs, but cost awards may be made by the planning inspectorate if a party behaves unreasonably. There are no special circumstances that apply to onshore wind farm appeals compared with appeals against other forms of development, nor is it clear why there should be. This proposal to require appellants to pay all parties’ costs for onshore wind farm appeals will treat wind farms differently from any other types of development. It would create pressure to extend the provision to other types of development. What will it achieve? Is it meant to encourage more proposals for wind farms to be refused, irrespective of their merits? Local planning authorities will already consider whether a proposed wind farm is acceptable in terms of their development plan and other considerations. These can include national planning policy and relevant planning issues raised by local communities.

I appreciate that wind farms can be controversial, but that in itself is not a reason to refuse them. Wind farm developers, like local communities, should expect a level playing field. Local planning authorities should be confident in refusing development that is clearly contrary to an up-to-date development plan, and defending their decision at appeal. It is our intention that local plans will become more prominent in decision- making, and there should be a presumption in favour of sustainable development at the heart of the planning system.

I have just been handed a note that the Minister is to revise the costs awards circular—circular 03/09—to make sure that it is clear that where a local planning authority refuses a development proposal on the grounds that it is contrary to an up-to-date development plan and there is no issue of conflict with national planning policy, there should be no grounds for an award of costs against the local planning authority.

I trust that with these remarks the noble Lord will feel able to withdraw his amendment.

[Lord Reay]

My Lords, I am grateful to my noble friend the Minister for his concluding remarks, although I am rather surprised that he should have received this as a last-minute piece of information from his officials considering that this amendment has been down for quite a considerable amount of time.

I am grateful for what he said; I would like to study the implications of it. I can understand that he does not wish to make any distinction between wind farm developments and any other form of planning application. That really relates to the issue of renewable development which the noble Lord, Lord Whitty, said was no matter for this Bill. He might say that to some of his noble friends when they try and introduce an obligation to pay more attention to climate change and what should be done about it, because that is an example of exactly the same thing.

I am extremely grateful to my noble friend Lord Marlesford for his support, and to the noble Lord, Lord Judd. I entirely agree with him: planning is a matter of getting the balance right. The party opposite is rightly proud of what the planning system has achieved in this country. It has preserved the countryside from, among other things, ribbon development and inappropriate high-rises. All of us are now proud of that consequence, and it is extremely important that we succeed in the future in maintaining the balance that is implied by that, and that we do not give overriding consideration to some overarching concern like renewable energy. On that basis, I am happy to withdraw my amendment.

Amendment 170A withdrawn.

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Moved by

[Lord Reay]

170CCA: After Clause 124, leave out lines 45 and 46

[Lord Reay]

My Lords, the present appeal system is unbalanced. Developers have an untrammelled right of appeal against the refusal of any planning application by a local planning authority. The appeal goes to a planning inspector—usually at a public inquiry—who hears the case as if for the first time. He can reverse the local planning authority’s decision on whatever grounds he chooses. Local communities, on the other hand, have no right of appeal. Once a planning permission is given by the local planning authority, that is the end of the story.

Prior to the general election, that was a situation that both the parties now in government recognised was unfair and promised to redress. Open Source Planning, which set out Conservative planning policy, promised to make the system symmetrical both by allowing appeals against local planning decisions from local residents—the broad purpose of the amendment of the noble Baroness, Lady Parminter—and by limiting the grounds on which developers could appeal to, first, where the correct procedure had not been followed, whereby cases were to be dealt with by the Local Government Ombudsman, and, secondly, where the decision contravened the local plan. I believe that Liberal Democrat policies were similar.

Both those policies would have advanced the principle of localism; both have now been abandoned by the Government. The arguments they use are incoherent. In opposing the third-party right of appeal, the Minister said that he wanted fewer appeals to the Planning Inspectorate and more decided locally. In that case, why not limit the developer’s right of appeal?

Planning policy has been captured by the Treasury, which seems to believe that any balance in planning policy threatens economic growth, and the Treasury is no doubt being cheered on by the Department of Energy and Climate Change, desperate to carpet the country with its useless wind farms.

I wholeheartedly support the amendment of my noble friend Lady Parminter, which seeks to reintroduce a community right of appeal. Such a right of appeal must clearly be circumscribed in some way and, as she explained, the amendment limits those entitled to appeal to local ward councillors and local parish councils.

However, there is one condition that my noble friend has introduced which I question, and I have tabled Amendment 170CCA to remove it—namely, that an appeal can go forward only if the planning officer recommends refusal. In other words, only in cases where the local authority had granted a planning application against the recommendation of the planning officer would the community right of appeal come into play. For the community, everything would hinge on what the planning officer recommended. If the planning officer recommended acceptance, and the local authority endorsed that recommendation, then the community would have no right of appeal.

That seems to me to give too much power to the planning officer. I do not see why it is the unelected planning officer who will in effect be able to decide whether there is any right of appeal against the decision of the local planning authority. If my amendment, and that of my noble friend to which mine is an amendment, were adopted, the effect would be that, whatever the recommendation of the planning officer, the community would have a right of appeal against decisions of the local planning authority. That seems to me to be more democratic.

Amendment 170CF, the other amendment in my name, seeks to deal with the developers’ right of appeal. That was suggested to me by the CPRE. I do not feel committed to it in its present form; indeed, I can see that there are reasons why it might be preferable to have a simpler amendment that would require any appeal to be confined to where the original decision by the local planning authority had contravened the local plan. If the refusal of the local planning authority were in conformity with the local plan, the developer would have no right of appeal. That would put Conservative and perhaps also Liberal Democrat policy back to where it was before the election. It would also chime with what Ministers keep saying about their wish to make the local plan sovereign, as my noble friend has pointed out. Would the Minister be tempted by such an amendment?

On the other hand, if the Government were to persist in their refusal to allow a community right of appeal, and at the same time do nothing whatever to limit the current right of appeal of the developer, so allowing the present unlevel playing field to be maintained, they would have revealed their words about wishing to ensure that fewer decisions go to public inquiry to be much empty waffle. The intentions that they express to give primacy to local concerns would be exposed as insincere, sacrificed to the Treasury's false belief that this is the way to get economic growth going and to the lunacy of the Government’s climate change fanatics.

[Lord Judd]

My Lords, the noble Lord, Lord Reay, is nothing if not challenging intellectually. I find myself very much in support of some of the issues which he raises in his amendment, but I do not support one of them. On one point, I strongly disagree with him. The profession of the planning officer is a very honourable and demanding one, and with all the subjective pressures which operate in society—sometimes very crudely with very considerable amounts of money and innuendo about possibilities and non-possibilities—it is very important to have the objectivity of a professional in the middle who can look at the law and at the overall social challenges and get matters right. It seems to me that, if a person has put his profession on the line and made a particular recommendation, that is very important in deciding whether an appeal is appropriate. I am afraid that on that issue I strongly disagree with the noble Lord, Lord Reay.

I certainly do not see my role in this House as helping to put the Conservative or Liberal Democrat policy back on course, but we have a responsibility to try to be objective and to see valid points that are made and, when they are made, to support them. In the middle of this, there are some very important and valid points. I referred to some of them in an intervention on a previous amendment. I am deeply concerned about the trend towards putting commercial economic interests above social, environmental and scenic issues. I strongly support anything that can be done to increase the well-being and dynamism of our economy—of course I want that—but my thinking does not totally coincide with that of the noble Lord, Lord Reay, as I also believe very strongly that wind power has a contribution to make. I put it to the noble Lord that if you have alternative energy, it will always be an aggregate of less dramatic quantities of energy than we have had from some of the methods with which we are familiar.

Therefore, I do not think it is an issue of being on the side of wind power or against it. I am very worried by those who turn anti-wind power positions into a kind of ideological cornerstone. The issue is where you put the wind farms; and the issue is how you take into account the social challenges and social needs, so that you do not end up with the least articulate members of society becoming the waste bin for all projects because everyone else has been able to fight them off. There is a huge social planning job to be done, but planning will succeed only if it carries the sympathy and understanding of the population as a whole. There is of course a great deal to take seriously in the Government’s position, about making democracy as meaningful and relevant as it possibly can be, and as near to the people as possible. Therefore, the position of the communities is crucially significant.

I believe that, if one looks at the Bill as a whole—not just on this issue, but on a lot of the issues that have been so painstakingly debated by colleagues in the course of the Bill—there is a very strange underlying paradox. The name of the Bill, and the cause of the Bill, is localism and enhancing local democracy; the effect of the Bill is an unprecedented concentration of central power. That has to be countered. It seems to me that from that standpoint the noble Lord is right. It is of course a great temptation to have increased authority for the Secretary of State at the centre, and all his civil servants working with him. If I was a civil servant with responsibilities in this area, I would get terribly vexed and frustrated at all this local democracy that was getting in the way of absolute logic; but if we are to have such increased authority at the centre, then it is very important that we make sure that there are firm rules about how that frustration is brought into play.

I think that the amendment of the noble Lord, Lord Reay, does something helpful: it in a sense takes the whole theoretical purpose of the Bill, and says, “Right, if we really mean what we say here, we must have codes by which the Minister is operating in his decisions which override local wishes, and we must make sure that those are limited, and that they are clear, explicit, and understood”. As for the amendment of the noble Baroness, Lady Parminter, she is absolutely right: it is a charade, a nonsense and a provocation to talk about a Localism Bill and then deny the community the right to appeal. Of course the community should have that right.

I conclude by making one point again—and I know that the Minister, who has not himself been participating in this debate, has been very good on this issue, and very sympathetic and understanding, as have some of his colleagues. If we talk about the importance of generating a vigorous economy, and giving priority to the measures that are necessary to make our economy strong, why do we want this? It is because we want a decent, civilised place in which to live. We want to have a society worth living in, and such a society needs a strong economy underpinning it. That is the whole point about the issue of balance: how do we ensure that we have strong policies, but at the same time that they are not so unduly, at the price of the quality of the wider dimensions of our society? That is why I repeatedly come back to the point of how previous generations ruined the countryside unnecessarily: we can now see with hindsight that it could all have been done much better. I think that the noble Lord is right, again, to be vigilant on these issues, although I profoundly disagree with him on some of his observations. I hope that the Government will take seriously what he and the noble Baroness have been arguing in their amendments.

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[Lord Shutt of Greetland]

My Lords, as ever, we come back to this whole business of things being decided locally. I thank noble Lords who have taken part in the debate. This is my third appearance today and I am having, once again, to suggest that these amendments are not ones that the Government wish to support at this stage. Planning has got a key role to play in creating the conditions for economic recovery. We should not lightly agree to any measures that add uncertainty, cost and delay to recovery and growth. Development that is permitted after consultation with communities and consideration by the local planning authority should not have unnecessary hurdles placed in its way. A similar amendment seeking a community right of appeal was considered in the other House. In the relatively small number of cases where a decision is made that grants planning permission that is not in accordance with the development plan, it is only right that the locally elected planning authority should make that decision and not the Planning Inspectorate. The local planning authority is ultimately responsible for exercising its judgment in reaching a decision. Safeguards are already built in to the system of decision-making. Applicants will have invested considerable time, money and effort in preparing their proposals. They should expect the local planning authority’s decision to be a corporate one and not subject to challenge by other members of the council.

I agree with the noble Lord, Lord Reay, that the plan should be the starting point for the determination of a planning application. Legislation already provides for this. Local planning authorities should feel confident in defending planning decisions made in accordance with an up-to-date plan, if challenged at appeal. Where appeals are made, the Secretary of State must operate within the law. As a decision-maker, he is entitled to take other material considerations into account when reaching his decision. This is essential if we are to ensure that the planning system creates the conditions for economic recovery and sustainable development. Material considerations may change over time and should not be tightly defined, as this amendment seeks to do. The amendment on determination of appeals goes too far. It is unnecessary and will have a negative impact on growth and sustainable development. I hope the noble Lord appreciates why we do not therefore accept it.

The noble Lord put it to me that I might be tempted. Words have been spoken about why there may be changes in position—I am not aware whether there are any such changes, but I understand what has been said and accept it. All I would say is that at 5 pm on 20 July, I do not think I am in a position to say that we will accept this. However, the rest of July and August beckons and I do recommend that noble Lords use it well. If they believe that they have got concerns that can be drawn to the notice of the Government about ways that this Bill may be still further changed, I recommend that they use their endeavours. This is, as I have said before, Committee stage, but I trust that in the circumstances at the moment, the noble Baroness will feel able to withdraw her amendment.

[Lord Reay]

I will say one thing in reply to what the noble Lord, Lord Judd, said about planning officers. I have no intention of denigrating planning officers. They do an invaluable job and can be highly impressive. However, their job on the whole is to advise the democratically elected planning authorities. The amendment would put them in quite a different position, unlike the position that they normally occupy. However, in view of what the Minister has said, I am happy, for the moment at least, to withdraw my amendment.

Amendment 170CCA (to Amendment 170CC) withdrawn.