Lord Shipley
Main Page: Lord Shipley (Liberal Democrat - Life peer)Housing and Planning Bill
Lord Shipley Excerpts
Lord Shipley (LD)
My Lords, I note that this amendment has been supplied to us only today in the form of Amendment 107B, having previously been Amendment 107A. The basic thrust behind the amendment is broadly the same but the wording has altered. I had some doubts about Amendment 107A, and I still have those doubts. Perhaps, in replying, the Minister or the noble Lord, Lord Lucas, could explain the position. I do not want to see one of the cornerstones of British democracy, which is the town and country planning system, upended by this amendment. Certainly the previous version, particularly subsections (1) and (3), was very worrying. Those subsections have been altered in Amendment 107B, but a number of questions still arise.
The first question is around how neighbourhood planning fits with this structure. A great deal of emphasis has been placed on the importance of neighbourhood planning. However, I am looking at subsection (3)(c), subsection (4)(a) and subsection (5), and although they refer to consultation that is deemed to be adequate, there is no indication of what “adequate” consultation is. Nor is it clear what would happen if the local reaction of a neighbourhood is very negative to a proposal. It is also not clear how the summary views expressed—let us suppose that 90% are against—will be considered by the Minister. That is one aspect of this that causes me concern. I do not really understand how we can have a system of neighbourhood planning and then alterations to a planning system, as proposed in this amendment.
Secondly, there is the issue of sustainability. I do not understand to what extent planning freedoms would mean that a local area could disregard issues of sustainability. I am thinking of issues around drainage and water supply, but there are other examples. I feel uncertain about exactly what is being proposed here and why it is deemed to be so important, with an assumption that the current planning system cannot deliver the answer that is required: to build more houses. We already heard earlier, in the debate about the neighbourhood right of appeal to a planning approval on neighbourhood planning, that 10% more homes are being built in areas with neighbourhood plans than would otherwise have been the case.
I am struggling to understand what problem the mover of this amendment is attempting to solve. It would help enormously to have some concrete examples to work with. When I hear about combined authorities, which are huge structures that do not have much connectivity with electors, I wonder how this will build public confidence in the current planning system.
Lord Beecham (Lab)
My Lords, I also come to this without a full appreciation of the implications. In particular, I wonder whether schemes would be able to depart from what might become requirements elsewhere; for example, in relation to energy efficiency or other aspects that one would expect to be part of planning consent for new schemes.
I do not quite understand what the decision-making mechanism would be. Once the scheme had been floated, would it still involve applications having to be approved within the new framework by something equivalent to a development control committee or sub-committee of the kind that most councils now have, or is it to be a sort of executive process without member involvement at the level of individual local authorities or perhaps a combination of authorities when one is looking at a wider area? It is not quite clear how the practical side would be handled.
I share the doubts of the noble Lord, Lord Shipley—if not doubts, then questions—about the nature of public involvement and how that would be fed into the process. Can the noble Lord identify any experience in another jurisdiction—one which is somewhat analogous to ours—of this kind of approach? Is there experience of this way of dealing with applications that we might learn from in terms of how it might develop here? I would certainly be interested in seeing the matter progressed, but I do not think that we have enough information positively to affirm that it should go forward as part of the Bill—it is a bit early for that without knowing a good deal more about how it might work. It may be that some further indications can be given and the Minister wants to take the matter back, although not necessarily with a view to dealing with it in a week’s time at Third Reading—we are pretty late in the process to bring something as potentially radical as this into the Bill. Even if it does not go very far on this occasion, it is certainly a concept that is worth exploring, but if I were the Minister, I do not think that I would be jumping at incorporation into the Bill quite at this stage. However, she may have a different view.
Baroness Williams of Trafford
My Lords, I thank the noble Lords and my noble friend Lady Gardner of Parkes for speaking to this amendment, which would allow local authorities to go beyond cost recovery. We currently work with the Town and Country Planning Act and the Local Government Act 2003, which places a duty on authorities, requiring them to ensure that, taking one year with another, any income derived from planning fees or fees from discretionary services does not exceed the cost of providing the service. However, what cost recovery means in practice in terms of fee levels and increases could vary widely. I am deeply concerned that this amendment, and another we will debate later, have no protections or safeguards to prevent local authorities setting excessive and unreasonable fees, leaving the potential for substantial increases in fees for applicants. My noble friend Lord Porter outlined some of the snags in this approach. Although noble Lords might argue about recovering costs, where is the protection for applicants so that they are not simply funding a highly inefficient service, as he said? Without safeguards for applicants, this amendment, and the one we will debate later, are flawed. There are real technical challenges with the amendments we are debating. That said, it has been interesting to hear noble Lords’ comments, so I shall go into further detail about some of the issues raised.
I appreciate the strength of feeling on this issue, particularly from my noble friend Lady Gardner. It is easy to be seduced into thinking that resource and performance challenges in planning departments can be resolved by localising fee setting. The arguments for and against local fee setting are more complex and nuanced than has been suggested. However, to give carte blanche to local authorities to recoup whatever their costs, whether or not they are efficient, cannot be right. This is why we want to test and learn from different approaches to fee setting to better understand how we can secure well-resourced and top-performing planning departments.
I shall set out why I am not convinced that allowing local planning authorities to set their own planning fee levels at this time is the answer to resourcing challenges. Local authorities have told us, supported by some evidence from the NAO, that there have been disproportionate cuts to planning services since 2010. Such local decisions suggest that additional income from local fee setting may not necessarily make its way into planning services, particularly against the backdrop of local government arguing for, and gaining, reductions in ring-fenced budgets and income. Local planning authorities are monopoly providers of planning services in their area, which does not provide much incentive to innovate, reduce costs and provide the most efficient and effective service. Local fee setting could compound this because it enables planning authorities to pass on their costs to applicants, despite any inefficiencies in their planning service. Fees could rise in a way that dissuades small or medium-sized developers from undertaking developments. Local authorities tell us that resource pressures are most acute in small development schemes, and fees for this type of development could rise proportionately the most significantly. While local authorities have transformed many of their services, they have been slower to transform their planning services. Those that have introduced new ways of delivering planning services have shown that performance can be improved and costs reduced.
We have set out three proposals for tackling resource pressures in planning departments. First, we have consulted on increasing national fees in line with inflation since the last fee increase in 2012 for those authorities that are performing well, with annual increases thereafter also linked to inflation and performance. We have also proposed testing the provision of greater flexibility in fee setting, on top of our proposals for national increases in fees linked to inflation, where local areas come forward with ambitious plans for reforms and improved performance. This could mean some limited, localised fee setting in a few areas or small additional increases in fees above inflation. This approach will allow us to test and better understand whether fee flexibility directly linked to service reform and performance can secure better planning services for communities and developers alike. We want to introduce pilots to test competition in the processing of planning applications. We think that the market might work best where service providers are free to set their own fees so we are minded, subject to consultation, to enable authorities in pilot areas to set their own fee levels.
Section 303 of the Town and Country Planning Act 1990 allows the Secretary of State to provide, in regulations, that local planning authorities can set their own level of fees up to cost recovery. We already have the powers to enable local fee setting, but handing local planning authorities a blank cheque in this way does not guarantee a better-resourced planning department or incentivise authorities to drive down their costs. This is why we want to test the approaches that we are developing to tackle resourcing pressures in local planning authorities.
I have already set out that there are legislative provisions that prevent authorities from going beyond cost recovery. Additionally, the Government’s guidance on handling public funds, entitled Managing Public Money, states that charges and fees, such as those for planning applications, should be set at cost recovery so that the Government do not profit at the expense of applicants. The proposed amendment also does not have any safeguards—for example, to prevent local planning authorities from profiting from fees set at excessive levels that could dissuade applicants, particularly smaller ones, from bringing forward development—or any requirement on authorities to consult on fee proposals. I feel very strongly that it is up to local authorities to determine how fees are used and that the income generated from planning fees remains with the council.
Lord Shipley
My Lords, before the Minister sits down, I just want to say that we will be returning to this issue next Monday, as the issue of pilots and testing is in a later set of amendments. There is one under my name to be debated then. Does the Minister accept that local planning authorities are not recovering their costs now and does she believe, in principle, that they should be entitled to do so?
Baroness Williams of Trafford
My Lords, although there has been the ability for fees to go up in line with inflation, there is a general acceptance of the anecdotal evidence from local planning authorities that their costs are not being met, but we have to marry that up with performance and efficiency.
Lord Kennedy of Southwark
I know that we are going to come back to this next week but, before the noble Baroness sits down, can she confirm that, when we have all these reviews, she does not envisage a situation where we end up with the local authority being able to charge one set of fees for a planning application, while a lot more could be paid to another provider who could also do it but at a more expensive cost? I think that it would be totally wrong to allow there to be two levels of fees—you could have the council charging a fee but allow some other provider to do the same job for a larger fee.
Lord Shipley
Before the noble Lord sits down—that is actually the subject of the amendment that I shall be moving next Monday.
Baroness Williams of Trafford
My Lords, what we are discussing at the moment are fees that go beyond cost recovery. I am talking about efficient and effective local planning—
Lord True
My Lords, the hour is late and I should make it clear that I have never had any intention of pushing this amendment to a Division. The reason that I bring it before your Lordships is that this clause is effectively a proposal to set up a new quango. I welcomed the meeting that I had with officials earlier, and I was grateful to Ministers for facilitating it. I was told that it will probably not be formally a quango but a new, independent body to be served by people as yet unspecified. It will have a series of functions as set out in part over several pages of Schedule 13, which might have been drafted—it is a bit late, so I am perhaps a bit free with my words—as in that famous scene with Groucho Marx and the contract and “the party of the first part”. There is a whole mass of regulatory powers, with prescribed persons not defined and circumstances which the Secretary of State will determine later.
This clause was introduced to Parliament in the other place on Report, after midnight and with a 185-word introduction by the Minister. There was no debate on the subject and the technical consultation that went out really answered no questions at all. Theoretically, I believe in arbitration, but to set up a statutory process of compulsory arbitration without defining particularly what you are about is risky. I would much prefer to have seen this properly scoped and perhaps included in subsequent legislation, if there were some. What is this new body? Who will staff it? Where will it be based and what will its budget be? Quangos and their functions are never cheap.
Statutory arbitrators will be sent in at the request of unspecified third persons—in some circumstances, not even the two parties to the dispute. We do not really know who those third persons are yet, although the Government are asking who they might be. Will they be interested local people? The new body can charge fees. Well, any government body likes to charge fees and we can be sure that the fees will not be cheap—and it will probably expand.
I do not want to labour the issue but I did raise it in Committee. While I do not criticise my noble friend on the Front Bench—she has done an absolutely fantastic job on the Bill in my submission—it was in a large group so there was no real response on what it was all about. As I said, 185 words were spoken in the Commons, and there was no response.
What is the calculated impact on affordable home provision? What local knowledge will these statutory arbitrators require? What will be their qualifications? How will they relate to the existing inspectorate, which is supposed to resolve difficulties between local authorities and developers? Will their decisions be judicially reviewable? Any statutory body lets the lawyers loose.
If she can, I should like my noble friend to say at what stage those questions will be answered for Parliament, because I am concerned that, well-intentioned though this might be, we risk creating a statutory body that will run out of control, cost more and lead to more delay in the system rather than less. Will the public be able to make representations to these arbitrators? Will they meet in open session? If so, what role is there for the planning committee? Where do we go with appeal afterwards? We could have a three-stage process.
I beseech my noble friend and her colleagues to think about what this new statutory body might be. They might even know what it might be called.
Lord Shipley
My Lords, I speak in support of the amendment of the noble Lord, Lord True, who asked a set of important questions. I shall not repeat them, and I am pleased that a large number of Members of the House are here to hear him ask them. This is an example of the creation of a bureaucracy that may not solve a significant set of problems. In other words, because there may have been some difficulties in a limited number of cases in some places, we may set up a large bureaucratic structure to solve them.
I have read the impact assessment and the Bill very carefully, but I am still at a loss to understand what problem the Government are trying to solve. It may in some cases speed up some Section 106 negotiations but, in the main, I am not sure that it will. It may create a set of unintended consequences. When I read line 1 of the impact assessment—
“The Government wishes to provide for someone to be appointed to help resolve, within a set timescale, outstanding issues about planning obligations relating to individual planning applications”—
I immediately wonder who the “someone” will be. How will you ensure that they do not have some kind of interest? How will you know that there is a firewall between that person and their conclusions? For example, the impact assessment does not answer the question asked by the noble Lord, Lord True: what might the impact be on starter homes? That is a very important question, because the funding of starter homes comes from reductions in the amount of Section 106 money received by local authorities.
On page 167, at lines 10 to 12, the Bill states:
“The local planning authority must not refuse the application on a ground that relates to the appropriateness of the terms of the section 106 instrument”.
I understand that statement in one sense, but at the heart of our debate about starter homes is the fact that Section 106 provision will be reduced to help to provide the developer subsidy for those starter homes. There are major implications in this, and I see more potential problems over Section 106 negotiations. I am not convinced that setting up the kind of bureaucratic structure that the noble Lord, Lord True, described, will actually help us to solve that problem. It will be solved if local planning authorities are properly resourced, have the proper powers and there is a proper context within which they are to work to build the homes that the country needs.
Lord Beecham
My Lords, I wholeheartedly endorse the critiques of the proposal by the noble Lords, Lord True and Lord Shipley. Several real problems have already been identified, but it is worth reminding ourselves that this is yet another incursion on the rights and roles of local authorities, imposing an external component on to the resolution of what ought to be determined locally between the local authority and the applicant. Moreover, the whole thing is another bureaucratic nightmare. There are five pages of the schedule. The Explanatory Notes make it clear that there are also to be regulations—surprise, surprise, once again made by the Secretary of State. They say:
“The Secretary of State can also make regulations setting out … who, other than the local planning authority and applicant, could make a request for the appointment of a person”.
So it need not even be the planning authority or the applicant who makes that application. Who else might make it is presumably at large—anybody could. The regulations can also deal with,
“the timing and form of requests”,
and,
“that a person can be appointed if outstanding issues have not been resolved within set timeframes”,
as well as,
“further detail about appointments … what qualifications or experience the appointed person must have”,
and “fees payable”. Those will all be determined by regulations.
The Explanatory Notes say:
“The appointed person must take into account any template or model terms published by the Secretary of State. Regulations can also set out other details … Regulations can also set out restrictions on the local planning authority’s ability to ask for additional obligations”,
as well as,
“periods for determining planning applications after a report is issued;
circumstances or cases where the consequences in this Schedule don’t apply; and
any further steps required to be taken by the appointed person”.
Once again, we are going to have myriad regulations, the sight of which is withheld from us, presumably because they have not yet been drafted. They will be produced at a later date, again without any prior consideration by Parliament at the time when the Bill has gone through. There is also the possible perverse effect that, given that applicants may have, as they perceive it, difficulties with the local authority, why should they not seek the involvement of the appointed person—not so much by way of an appeal but in the initial part of the process? They could delay things even more. If they thought that they were not going to get entirely what they wanted from their application, why not go through this process? That unintended effect seems to me a ridiculous proposition, and I very much hope that the noble Lord will test the opinion of the House—and, if he does not, I will.