Neighbourhood Planning Bill

Lord Shipley Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 31st January 2017 Grand Committee

[Baroness Andrews (Lab)]

My Lords, I support the amendment. The account that we heard from the noble Baroness at Second Reading was pretty shocking. It seemed to be a failure of process but also of principle. The case she told us about then, and again today, seemed to contradict the basic assumptions on which neighbourhood planning is based. After the degree of detail that we went into when it was first proposed in this House and the expectations that were raised, it also raised issues about the nature of localism and its credibility—not only at a local level; I think it actually contradicts the core principles of the National Planning Policy Framework.

When you look at those core principles—of course, a neighbourhood plan, like a local plan, has to subscribe to the NPPF—the NPPF says that the Government are committed to a plan-led system,

“empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out a positive vision for the future of the area”.

Planning should,

“not simply be about scrutiny, but instead be a creative exercise in finding ways to enhance and improve the places in which people live their lives”,

and it should,

“proactively drive and support sustainable economic development”,

to deliver business and employment. All that should indeed be contained in the neighbourhood plan, rather than having a plan that is driven simply by housing requirements, however important they are. We know they are important—in that part of rural Sussex they are really important. But it is very important indeed that the principles are upheld, that the coherence and richness of the plan are upheld, and that local people are involved. From everything the noble Baroness said at Second Reading, it appeared that much of that had not happened but had in fact been ignored.

One of my questions to the Minister is: to what extent do we think that the sort of example that the noble Baroness, Lady Cumberlege, gave is happening in other parts of the country? What evidence does the department have that these sorts of things are happening in other places? Some time ago I asked a Question in the House about the number of appeals that had been made on housing decisions. There is a common phrase in circulation: “We’re having our planning by appeal rather than by local plan”. I would be very interested if the department could look at the figures for the number of appeals that have been made and let the Committee know so that we have some sense of whether that is a phenomenon.

When you look at the amendment, a lot of it is absolutely what we already expect to happen. Of course, there is a massive issue about resourcing. I do not think the problem that was identified in the noble Baroness’s example was an issue of resourcing but resources drive the capacity of the local authority to stand up for the local plan where there is a local or neighbourhood issue. The loss of experienced planners and conservation officers—the people who defend the principles, whether environmental or regarding sustainability—is significant when it comes to making the case against the inspector.

No amendment is perfect and I am sure the noble Baroness will understand if I raise a couple of issues. I am concerned, and have been concerned for a long time, that the definition of sustainability in the NPPF is not particularly strong. Therefore, it makes it relatively easy for forms of development to be pushed ahead outside the notions of sustainability. The role of the inspector and the planning authority is to get the balance right and to ensure that everybody makes the right judgment. Of course, that involves making the right judgment about the balance of housing, infrastructure and everything else. But I am slightly worried about the phrase,

“except in exceptional circumstances of national importance”,

because you can always make that case, especially in terms of housing. Is there a way of strengthening the local capacity to hold to its neighbourhood plan irrespective of such claims? I just put that into the debate.

The other point I want to make is about informing the local community. It should not need to be said because it is so fundamental to the whole democratic foundation of a neighbourhood plan, but I understand that in the case which we cannot discuss there was a considerable lack of information at the relevant stages and a positive exclusion, as it were. In that respect, if we are going to be consistent and logical, and if we believe in neighbourhood plans and want to make them work, the final subsection of the proposed new clause, which states that any agreed additional housing has to be decided by the local community, seems in all logic to be the beginning and the end of the conversation that a community would have about its neighbourhood plan and where it wanted new housing put—as well as about what sort of housing for what sort of community it had in mind.

[Lord Shipley (LD)]

My Lords, I should remind the Committee at the outset that I am a vice-president of the Local Government Association. I want briefly to express my support for the objectives set out by the noble Baroness, Lady Cumberlege, in her amendment, which provides a foundation for and gives a clear sense of direction to the Bill. The crucial word of course is “duty” in that the amendment seeks to place in the Bill a duty on the Secretary of State to undertake certain actions, one of which is to uphold neighbourhood development plans and not simply to think that such a plan can actually be overwritten because a planning inspector or the local planning authority suddenly feels that the neighbourhood plan is out of date or may no longer apply. This is important because if the duty does not exist, it means that local people cannot have confidence in the fact that the neighbourhood plan they have produced will actually stand the test of time. The second duty on the Secretary of State would be to ensure that local planning authorities had sufficient resources to enable them to own, implement and defend—a very important word—neighbourhood development plans.

This amendment is important and I hope that discussions may be held prior to the Report stage at which the Minister might give us some indication of what the Government are prepared to do to give greater force than is provided by the Bill to the development of neighbourhood plans which can stand the test of time. One problem we have had to date is that local planning authorities have not been as supportive as perhaps they ought to be, and as I said at Second Reading, there has been a problem about the creation of a five-year land supply. A neighbourhood plan, where it has been adopted in advance of the local plan being agreed, then finds itself under pressure which may, in the view of the Secretary of State, lead to it having to be revised.

The noble Baroness, Lady Cumberlege, has said many wise things, one of which was to express her concern about poor-quality development in defiance of good planning principles. This Bill is about building communities, not just building houses. The noble Baroness reminded us of how the roles are confused between the Secretary of State, and through the Secretary of State the Planning Inspectorate, the local planning authority and the neighbourhood plan. This needs to be sorted out and I hope very much that the Minister will be agreeable to trying to find a way to do so that gives even greater weight to the statutory importance of neighbourhood plans.

[Lord Greaves (LD)]

My Lords, I should declare my interests again as we begin a new stage of the Bill. I am the deputy leader of Pendle Borough Council and a member of a development control committee. I am also a member of the neighbourhood planning steering group for the parish of Trawden Forest, which may provide an interesting view of the planning situation from different sides, not the least of which is discussing a new piece of legislation about it today.

Neighbourhood planning is new, which I suppose is why the Government are feeling their way along with everybody else and why we seem to get an annual Bill to fettle the legislation a little. Although some 1,800 projects have been started, and some finished, around the country, it is still very much a minority pursuit throughout England—that is something I want to return to on another amendment.

It seems more and more important for local planning authorities and neighbourhood planning bodies, whether forums or parishes, to work closely together and have good working relationships. It is becoming clear that in some places where difficulties are occurring in getting neighbourhood planning off the ground or carrying it out it is because those relationships do not exist. From the planning authority point of view—the district, the borough, the unitary authority or whatever it is—there is not an openness and a willingness to change the way they work and to accommodate the whole idea of neighbourhood planning, which can make things a great deal more complicated.

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[Lord Greaves]

I have a question for the Minister about Amendment 6, which he spoke to some time ago, while I also support my noble friend with her more ambitious amendment. Amendment 6 would amend paragraph 8 of Schedule 1 to the Town and Country Planning Act, and is about notifying parish councils and so on of planning applications. The inclusion of neighbourhood forums here is extremely welcome, giving them the right to have this. However, parish and town councils already have this right. Reading the amendment, I cannot quite understand what would be different in practice for parish councils from the rights they already have to be told about planning applications when they come in and to have their views on them taken into account—in other words, to be consulted. What is the difference? Why is all this extra wording needed for parish councils over and above what is there already?

[Lord Shipley]

My Lords, I found this a very helpful debate and conclude that if not now at some point soon the Minister will have to define words. The noble Baroness, Lady Cumberlege, drew our attention to an important issue around the definition of the word “modification”. When I read the Bill for the first time, I assumed that it would be really very minor in practice. However, it may not be and I am not sure that we can wait until a month after the coming into force of Part 1 for that word to be defined. It is material to what is in the Bill.

Clause 3(2) states:

“After subsection (4) insert … A local planning authority may at any time by order modify a neighbourhood development order they have made if they consider that the modification does not materially affect any planning permission granted by the order”.


The word “materially” starts to become very important. What is the difference between affecting and materially affecting a planning permission? We need to get this sorted out so that we understand it, otherwise we will end up with a modification which I thought was minor actually having the potential to be much more substantial, as the noble Baroness, Lady Cumberlege, pointed out. In addition, I should like to be clearer about what a material effect would be on a planning permission granted by the order. I want to understand that before we reach the Report stage. However, the debate as a whole has been extremely useful.

[Lord Beecham]

My Lords, I declared my interest earlier as a vice-president of the Local Government Association, as I suspect are half of the Members present in this Committee, and as a member of Newcastle City Council, where 20 years ago I was for a couple of years the chairman of the planning committee. But I have to say that I defer absolutely to the noble Lord, Lord Taylor of Goss Moor, whose expertise is much more current than mine and, I would guess, more profound as well.

I want to raise just a couple of points. The noble Lord, Lord Greaves, referred to the provisions set out in Amendment 6 amending Schedule 1 to the Town and Country Planning Act 1990 by inserting new sub-paragraph (1B). I have a slightly different point to make. The provision states:

“The local planning authority must notify the neighbourhood forum of”,


a variety of matters. What I do not know is the extent to which a neighbourhood forum is under an obligation to notify residents about these matters. In an ordinary planning application, the usual practice is for the planning authority to notify the residents in an area within a reasonable range of a projected application of its existence. The assumption here seems to be that the neighbourhood forum itself constitutes the community for these purposes. While it may have a representative role, that does not imply that every resident will get to know of matters which would have been raised by the local authority with the neighbourhood forum. Perhaps, if not today then later, the noble Lord could indicate whether I am right in my assumption that the provisions of this new clause are meant simply to notify the neighbourhood forum and whether there is any further obligation on the neighbourhood forum or anyone else to notify residents and other people with an interest.

I turn briefly to the point made by the noble Baroness, Lady Parminter, about the remedy if things do not go well. Given that there is a statutory responsibility here if it is not carried out, I would have thought that the remedy is that of judicial review. That is not an inexpensive process, I am afraid, but I suspect that if there has been an omission in complying with the requirements of the legislation, it is the remedy available to those who have a grievance. Again, possibly after taking advice from those behind him, I hope that the noble Lord will clarify the position.

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[Baroness Cumberlege]

My Lords, I accept the suggestion but my concern is that these things can drag on and on, and unless one has a cut-off time, I fear that while the issues continue to be talked about and worked on, nothing actually happens. I am quite anxious to have a deadline and times within which people have to deliver their responses.

[Lord Shipley]

My Lords, I express my support for the amendments in the name of the noble Baroness, Lady Cumberlege, but I want to speak in particular to Amendments 9, 10 and 11. They are important because once again they are about the definition of words. We discussed earlier the meaning of “modification” and “material”, and now we have to define “significant”, “substantial” and “exceptional”. The noble Baroness, Lady Cumberlege, has drawn our attention to the fact that these words can be interpreted in different ways.

First, paragraph 12(1) of new Schedule A2 refers to the “general rule”. If a rule is a general rule, it means that sometimes it is not. I think a rule needs to be rule. The elimination of the word “general”, which leads to doubt, seems the right thing to do. I hope the Minister will take the point that that word should be removed. Looking very closely at the Bill, paragraph 10(1) of the new schedule says that it is for the examiner to,

“determine whether the modifications contained in the draft plan are so significant or substantial as to change the nature of the neighbourhood development plan which the draft plan would replace”.

There we have the introduction of the words “significant” and “substantial”. However, it is then left with the examiner to proceed by the written representation route. So a substantial or a significant change is to be dealt with by the written route and, in paragraph 12(2), only the examiner can,

“cause a hearing to be held for the purpose of receiving oral representations … in any case where the examiner”—

but not anybody else—

“considers that there are exceptional reasons for doing so”.

So there are substantial and significant changes but unless the examiner thinks they are exceptional, there cannot be a formal hearing.

We need to get this right. I foresee a lot of trouble arising if those who have taken part in developing a neighbourhood plan are suddenly told that a substantial or significant change to it can be dealt with only by the written procedure, whereas they may have things that they wish to say and to be heard. If the process is to be sound, we should be encouraging more oral hearings where people can listen to the evidence and contribute to the discussion. I hope the Minister will take on board that these definitions really matter. Something that is significant or substantial should have an oral hearing; something less important than significant or substantial could have written representations. But simply to say that it must be exceptional in the eyes of the examiner does not seem right.

[Lord Cameron of Dillington (CB)]

My Lords, I support Amendments 6A and 6B. For the purposes of this Committee, I declare an interest as a farmer and landowner. Both amendments are about ensuring that the procedure governing an examiner’s report on a neighbourhood plan allows the neighbourhood to meet him halfway, as it were, or allows him to make helpful compromise amendments rather than full-scale deletions, which I gather is all too often the case.

As has been said frequently today, planning is a very complicated subject for the average lay man—that very definitely includes me. The noble Lord, Lord Horam, said that he was not a planning expert. If he is not a planning expert, I am a babe in arms. I have heard planning described as a minefield covered in a mist. In spite of this, villages, communities and neighbourhoods work really hard to master this misty minefield and over a long period of time—two years, five years, whatever it might be—they try to get to grips with the complications of the planning system, not to mention the complications of the diverse needs of their community and the divergent local views on how it should be developed, in line, of course, with the local plan and the NPPF. That point has been made several times and I thoroughly endorse it.

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[Lord Bourne of Aberystwyth]

My Lords, perhaps I may say as I crawl across the minefields in the mist having been battered by iron fists and with my feet held to the fire, that I will try to deal with some of the issues that have been raised quite fairly by noble Lords relating to this group of amendments. It may help if I first try to put this in the context of what the Government have done to promote and improve neighbourhood planning—just so that we do not lose sight of what is important.

The measures introduced by the Housing and Planning Act have sped up and simplified a number of processes, with, for example, new time limits being imposed on planning authorities and more transparency in committee reports. We have provided £22.5 million-worth of support for neighbourhood planning groups and have provided more than 1,800 grants to the value of over £10 million. Also, some £13 million has been paid out to local planning authorities to help them meet their responsibilities. I have referred to the Written Ministerial Statement of December 2016, which was provided to address the issue raised by communities about the transition problems around the operation of the five-year land supply requirements. This Bill will put it beyond doubt that decision-makers must have regard to neighbourhood plans that have passed examination—it is important to nail that. It also makes clear the advice and assistance that local planning authorities are able to provide to neighbourhood groups and it will bring neighbourhood plans into legal force as part of the development plan at an earlier stage, all of which is important.

Before I turn specifically to the amendments tabled by my noble friend Lady Cumberlege, perhaps I may address a couple of points raised by the noble Lord, Lord Shipley, in the context of Schedule 1 relating to the procedure for examination as set out in new paragraph 12(1). The words “the general rule” replicate the language used in the Localism Act 2011 under the coalition Government. I appreciate that that is not the whole of the answer, but the phrase has been put in for good reason in that there is a substantial amount of case law that defines what “the general rule” is. I will endeavour once again in the compendium letter that I will send round to give examples of how it would operate.

I would also say to the noble Lord that new paragraph 12(2) makes it clear that it is not just the examiner who can initiate an oral hearing, or at least that it may be but he would be required to do so under new paragraph 12(2)(b),

“in other such cases as may be prescribed”.

It is not as if he has a totally unfettered discretion. Indeed, we may want to examine this heading when we discuss the specifics because it does provide for cases to be prescribed.

[Lord Shipley]

Can the Minister explain what and who it is who will do the prescribing?

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[Baroness Cumberlege]

My Lords, I understand that the Grand Committee is a place where noble Lords cannot move a Motion that a noble Lord be no longer heard. Your Lordships have my sympathy and I apologise that I am again on my feet. This amendment is really important and is about a neighbourhood development plan including a phasing condition on development.

I have tabled this amendment because we have already seen communities being overturned, which can cause real social problems. Phasing is important to assimilate people coming into a community. However, on a practical level, the Bill is part of a vehicle to enable the Government to announce the building of a record number of houses. It will coincide with the inevitable changes that Brexit will bring, many of which we still know nothing about. They are incalculable. Some may be good, others may not be so good. We may see jobs leave the City, for instance. I was interested to read in the Times of 25 January a headline on financial clearing houses which stated that loss of clearing would cost the City 85,000 jobs. Of course, that may or may not be the case. However, if a loss of those jobs on anything like that scale occurs, it will make a huge difference to developments that are in train or have already been built.

We must also consider what will happen if we have fewer immigrant builders. What will be the effect of that on the housing market, which has traditionally had its ups and downs? We do not want new buyers to be plunged into negative equity or find they have new homes that they cannot sell. That would serve nobody well. Developers are business people and I am sure that they will not be seduced into building homes that they cannot sell. They would prefer a longer-term strategy, and I support them in that. At this very uncertain time, it is judicious not to try to break records for the sake of political expediency. I strongly believe that building cosy nests on a rotten bough can end in tears. The phasing of developments makes sense. I hope that my noble friend will agree that it should be incorporated in the Bill on Report. I beg to move.

[Lord Shipley]

My Lords, the noble Baroness, Lady Cumberlege, has moved a very wise amendment. I hope that the Minister will accept it in due course.

[Baroness Scott of Needham Market (LD)]

My Lords, I, too, support the noble Baroness. I assure her that she need not apologise for anything as she has raised some very interesting issues in the course of the Grand Committee, and has done so with great passion and commitment.

I raise a related, but perhaps slightly tangential, issue concerning the impact of having a lot of development all at once. Currently, developers argue that Section 106 or community infrastructure levy contributions should relate only and very specifically to the development they are undertaking. That may sound a reasonable argument but it is highly problematic as it completely fails to take into account the cumulative effect of a number of developments taking place around a village, or, indeed, taking place over time. It is very difficult to argue with legal certainty that the need for a new school, for example, is related simply to one development as opposed to the cumulative impact of a number of developments. Therefore, that issue needs to be looked at as it goes to the point about the acceptability of development to local communities. They also need to feel that the funding mechanism will be there. Furthermore, developers often argue that the money should be used only for very narrow purposes and not for the benefit of the wider community. The Government need to look at the acceptability of development in this regard.

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[Lord Beecham]

My Lords, this amendment is in my name and that of my noble friend Lord Kennedy. It deals with referendums. We now have some experience of referendums in this country—perhaps rather regrettably. Of course, the position in the local scene is that it is an issue which would test the degree of support for local initiatives of the kind that the Bill envisages. I do not know but perhaps the noble Lord is in a position to say what kind of turnout has been engendered in the referendums that have been held. I understand that they are not required to be held and there are other means of consultation. However, it seems important to secure and recognise a substantial degree of public support, as reflected through a reasonably pitched turnout.

Forty per cent does not seem excessive, but it would show a degree of engagement and interest on the part of the local community which ought to be recognised. I suggest that it would give an incentive to local communities and their authorities to debate issues very fully. I should have said that the amendment has the support of the Local Government Association, as did the previous one. In the circumstances, I hope the Minister will acknowledge that this measure would be an incentive to authorities and local groups to engage fully with their communities to ensure a turnout that adequately reflects public engagement with an important process. I beg to move.

[Lord Shipley]

My Lords, I do not support this amendment as it implies that a huge amount of work in developing a neighbourhood plan could be lost if 39.9% of the electorate turned out to vote on it. We have in this country a history of assuming that those who do not vote are abstaining. It seems to me that the current system works perfectly well. If some people—perhaps a majority of the electorate—decide not to vote, that is their right. It would be very wrong if all the work of a lot of people over a substantial period of time could be lost because an arbitrary figure of 40% was imposed. The noble Lord, Lord Beecham, has not justified that figure. I would remind him that a large number of local councillors would not have been elected to local government if a 40% turnout figure had been imposed. Indeed, I remind him that he himself in 2014 was elected in the Benwell and Scotswood ward of Newcastle upon Tyne with a turnout figure of 32.1%. However, I do not think that anybody in your Lordships’ Chamber would wish to say that that result was not valid. I hope that the noble Lord will think very carefully about proposing a requirement that there should be a 40% turnout of the electorate on a referendum relating to a neighbourhood plan.

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[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lords, Lord Beecham and Lord Kennedy, for raising this matter. I am not sure whether they believe in the 40% figure, 4% or 2% because that is not entirely clear. Perhaps I may say that I do not think that their hearts are quite in it. The most alarming thing about the debate is that on this basis, Newcastle would have been deprived of the noble Lord, Lord Beecham, and Lewisham possibly deprived of the noble Lord, Lord Kennedy, to the detriment of our national life. I would have thought that the presence of the noble Lord’s name on the ballot paper would have ensured a really high turnout. More seriously, this is not something that we can pursue.

[Lord Shipley]

Just to assist the noble Lord with further information. In fact, the noble Lord, Lord Kennedy of Southwark, was elected on a turnout of 40.61%.

[Lord Bourne of Aberystwyth]

My Lords, I think we now know why the figure of 40% appears in the amendment.

In all seriousness, clearly we would all want to see higher turnouts, but regrettably much of our national life turns on low turnouts. In May 2016 the overall turnout in English local elections was 33.8%—the noble Lord, Lord Kennedy, bucked the trend. The average turnout for neighbourhood planning referendums is 32%. The principles of neighbourhood plan and neighbourhood development order referendums are consistent with all referendums and elections in our country. People are given the right to vote but are not obliged to do so. With this in mind, we cannot support the 40% threshold. The Electoral Commission’s data show that the overall turnout in English local elections since 2007 has exceeded 40% in only three years.

As the Minister for Housing and Planning, Gavin Barwell, highlighted in the other place when a similar amendment was tabled in Committee, of the approximately 240 neighbourhood planning referendums that had been held at that point, around 170 had had a turnout of less than 40%. The amendment would drive a coach and horses through the legislation and could jeopardise the whole neighbourhood planning process and the hard work of so many people and communities to produce neighbourhood plans, which the Government support. With this clarification, I hope the noble Lord will withdraw his amendment.