Localism Bill

Lord Shutt of Greetland Excerpts

Monday 17th October 2011 Lords Chamber

Moved by

[Lord Shutt of Greetland]

211A: Clause 111, page 90, line 18, leave out “an” and insert “a pre-existing”

[Lord Shutt of Greetland]

This group covers all the government amendments on enforcement. Turning first to Clause 111 on retrospective planning applications, these amendments will, I think, allay the concerns raised by my noble friend Lord Avebury in Committee. He thought that the drafting of what is now Clause 111 was ambiguous in that it might be possible for a local planning authority to negate the purpose of this clause by both declining to determine a retrospective planning application and arguing that an enforcement appeal on ground (a) was also inadmissible. These amendments solve the problem. Amendment 211A specifies that the enforcement notice in question must be “pre-existing”. Amendment 211B defines a “pre-existing enforcement notice” as one that was issued before the application—being the retrospective application—was received by the local planning authority. To paraphrase what my noble friend Lord Taylor of Holbeach said in Committee, our policy is that those people seeking planning permission after the event should have one, but only one, bite at the cherry.

I move on to Clause 115, on powers in relation to unauthorized advertisements. In Committee, the noble Lord, Lord Borrie, supported by my noble friend Lord Black of Brentwood, was concerned that the provision for serving a removal notice for an allegedly illegal advertisement hoarding was not subject to a right of appeal to a local magistrates’ court, but only by means of a judicial review. Since that debate the Government have been convinced by the arguments made. We have therefore come forward with Amendments 213A, 213B, 213C and 214A. Amendment 213A says that removal notices should be subject to a right of appeal. Amendments 213B and 213C are minor drafting amendments for consistency of expression. Amendment 214A contains the right of appeal itself. The format of the right is very similar to those in new Sections 225C and 225H further on in Clause 115, but with some small differences to reflect that this right of appeal applies to notices requiring the removal of advertisement hoardings, rather than fly-posting or graffiti. I therefore hope that these amendments will meet the concerns of the noble Lords, together with their colleagues, the noble Lords, Lord Smith of Finsbury and Lord Rodgers of Quarry Bank. I therefore also urge the noble Lords not to press their Amendments 214 to 223, which have the same purpose as the government amendments, but do not quite work in the way intended. I beg to move.

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[Lord McKenzie of Luton]

My Lords, we obviously support the Government’s amendments on retrospective planning permission, particularly those in relation to unauthorised advertisements. I understand that my noble friend Lord Borrie and his colleagues will not press their amendments. The Government should be congratulated on listening to the arguments from across the House and the discussions that took place outside the Chamber. We have got a good outcome to this issue which we support. We thank the Government for listening.

[Lord Shutt of Greetland]

My Lords, I am grateful for those four splendid contributions.

Amendment 211A agreed.

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[Lord Beecham]

My Lords, I would have thought that this amendment is unnecessary. If an application for retrospective consent is a fresh application, it would, or should, be notified to those occupiers—not necessarily those who objected before, who might be living anywhere. However, surely it should be treated as an application de novo, and therefore the normal processes would apply. So those affected on a retrospective application would receive notice. I should think, unless the Minister disagrees, that the amendment is otiose.

[Lord Shutt of Greetland]

My Lords, I believe that the noble Lord is right on this. I thank my noble friend Lady Gardner of Parkes for bringing this forward. It is important that we get this absolutely clear. This word retrospective largely means that something happened for which there was no permission. Someone spots it and says, “Look here, you’d better put in a planning application”. That’s the position. In all instances where there is a change, there are requirements in place for local planning authorities to publicise and consult on those applications—that is, the retrospective ones. This is true when a new revised planning application is submitted, and where the holder of a planning permission wishes to delete or vary one or more of the conditions to which their existing planning permission is subject. The Government therefore believe that this amendment is a solution to a problem that does not exist. I hope that my noble friend will feel able to withdraw it.

[Baroness Gardner of Parkes]

I thank the Minister for that answer. I really find it surprising that I should have been unfortunate in two entirely different locations in this respect. But I accept what he says and beg leave to withdraw the amendment.

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[Baroness Gardner of Parkes]

My Lords, I am hoping that this one is equally unnecessary. I moved this amendment in Committee—or an amendment very like it—but when the government reply came, the Minister thought that I was asking about the right to take a new enforcement action well after six years, which is apparently the limit. That was not my point. My point concerns situations where enforcement action has been taken. Again, somewhere near me there is a property which is in foreign ownership; enforcement notices have been served; it has gone through the court process—everything—but nothing has happened for about 10 years now. They have absolutely failed to comply and cannot be contacted anywhere. That is really why I tabled the amendment. However, I hope that the Government will tell me that it is not necessary. I beg to move.

[Lord Shutt of Greetland]

I understand the concerns of my noble friend Lady Gardner of Parkes. Again, however, this amendment is not necessary. Section 171B deals with time limits for taking enforcement action—essentially, serving an enforcement notice. It does not deal with ensuring compliance with that notice. A valid enforcement notice—in other words, one that has not been appealed against, or has been upheld on appeal—remains in force indefinitely unless the local planning authority withdraws it. If the person on whom it has been served does not comply, they can be prosecuted. The maximum penalty is a £20,000 fine in the magistrates’ courts, or an unlimited fine on indictment, and can be subject to a repeat prosecution if they still fail to comply. The penalty is a daily fine until compliance. The local planning authority can also do the works in default and recover its expenses from the landowner. So I believe that there is no need for the amendment, and I trust that my noble friend will feel able to withdraw it.

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[Lord Beecham]

Heaven forfend that I should trespass on the griefs of the coalition about unfulfilled promises. It is already late enough and one could go on for many hours about unfulfilled promises, but I shall resist the temptation.

We cannot support either of these amendments. There is a balance to be struck between what is purely local and where there are other considerations which might well be of significance in regard to major areas of public policy, including that to which the noble Lord, Lord Reay, refers and about which he is exercised—it is right that he should be, if those are his views. There is a legitimate role for the Secretary of State to determine, at any rate, some appeals beyond those which the amendment would refer.

The amendment in the name of the noble Baroness, Lady Parminter, in addition to the general principle, also creates difficulties. A community right of appeal is an arguable proposition. Whether a community right of appeal could be said to be legitimately exercised by,

“a ward councillor for the area; … any parish council covering or adjoining the area of land to which an application relates; or … any overview and scrutiny committee for the area”,

as proposed in new subsection (2B) that Amendment 232ZB would insert into Section 78 of the 1990 Act, is indeed arguable. I cannot see that those matters are a very persuasive definition of a community right of appeal, even assuming one was in favour of a community right of appeal, which, on balance, I am certainly not—whatever the coalition parties thought they were going to implement.

In these circumstances I offer once again an unusual degree of support to the Minister if he declines to support these amendments.

[Lord Shutt of Greetland]

My Lords, I thank noble Lords who have spoken. I should like, first, to respond to Amendment 232ZB in the name of the noble Baroness, Lady Parminter, because it helps to set the scene. The amendment intends to give a new right of appeal for local councillors. Before going into detail it would be useful to start by setting out what we are seeking to achieve in the reforms and how communities can shape the area in which they live. The purpose of our planning reforms is to put the local plan at the heart of the system. In fact, the draft national planning policy framework explicitly says so. It is the plan where councils and communities weigh up and integrate different goals and long-term needs so that it sets the framework within which individual planning applications are assessed and decisions taken. We want planning decisions to be taken by local communities, not more appeals undertaken by unelected inspectors in Bristol.

Everything that we are currently undertaking in the Bill—removing unelected regional structures and the top-down targets which constrained local councils, stopping inspectors arbitrarily rewriting plans without a council’s consent and removing unnecessary central government monitoring regimes and interfering in local timetables—gives control, choice and responsibility for local planning back to councils and communities. Other reforms which introduce neighbourhood planning and ensure appropriate consultation with local people before proposals are submitted have also been to that end, so that local people will, in future, have a real say. They will encourage developers to work with the local community to develop proposals all can support, rather than setting them against each other.

Given this, I have considerable sympathy with the noble Baroness’s intentions here. She desires, as I do, to ensure that local communities and the plans agreed between them and their councils should remain at the heart of planning decisions and she is concerned that, in some cases, that does not always happen because of the way the system works. I do not think that her amendment is a solution here. We consider that this would risk adding unnecessary uncertainty and delay at this crucial time of recovery and growth. Applicants will have invested considerable time, money and effort in preparing their proposals and should expect a council’s decision to be a corporate one. However, I recognise that there are issues that we need to address.

First, I understand that local councils have often felt pressure to approve applications which have not been consistent with the plan. One reason is that officers may advise elected members that if they do not approve development, even where it is outside the plan, they may lose at appeal and have to pay costs. Therefore I can reassure the House that we will revise the costs award circular which governs this process so that where a council 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 council in question.

Secondly, in some cases applications are made and approved which fall outside the development plan. This is an important flexibility in the system. However, we must also be clear that if an application is outside the terms of the plan it should be approved only if locally elected representatives have considered the views of the local community and concluded that such a departure would be acceptable in planning terms. For this reason, we will consult on requiring departure applications to have compulsory pre-application consultation with the local community so that elected members are fully aware of local views before they decide an application. This will mean that local councils will have a clear understanding of local views when they deal with key applications, should have no fear of costs being awarded against them when they have followed the right procedures and will be able to decide cases in the long-term interests of local communities. These changes to the system will strengthen its resilience and ensure that our reforms achieve their objective of putting the local plan and the views of the local community at the heart of the system.

I pay tribute to the noble Baroness, Lady Parminter, for raising these issues so vigorously. By doing so, she has done a service to the House. Given our proposals to strengthen community influence and the involvement in planning as a whole, which I have outlined, I hope she will agree that our measures are strong and effective ways to ensure that community views are heard in the process, especially where a development might depart from an up-to-date plan, and that she will not press her amendment.

Turning to Amendment 232ZA, as the noble Lord, Lord Reay, said in Committee, planning is a matter of getting the balance right. I agree. We are committed to a system of fewer appeals and want development proposals to be determined locally. However, in the few cases where appeals are made, the Secretary of State, as decision-maker, must be entitled to take other material considerations into account, as can councils, on finely balanced matters of judgment—for example, where a local policy is out of date because it does not reflect the changing circumstances of the local area or more recent national policy. In such instances the law allows councils to consider other material considerations in making the right decisions for their communities. They should not be restricted and neither should the Secretary of State’s decision be fettered. Amendment 232ZA would therefore be unduly restrictive in this regard.

However, I understand the intention behind the noble Lord’s amendment. We shall take the measures that I outlined earlier so that councils and communities feel confident, if challenged at appeal, in defending planning decisions made in accordance with an up-to-date plan and where there is no conflict with national policy. I reassure the noble Lord that judicial review proceedings can already be brought if a decision was unlawful or due process was not followed. I hope therefore that he will be willing to withdraw the amendment.

[Lord Reay]

I thank my noble friend Lord True for his support for my amendment. I agree with him that we have not seen the end of this matter. I was sorry not to have the support of noble Lords opposite. For once they have revealed themselves in their centralist colours.

The Minister entered fully into the arguments on the amendment and I am grateful for that. He said that the Government want to limit appeals—they do not want everything decided in Bristol—but, of course, the effect of my amendment would be to reduce appeals. I appreciate that he repeated what was said at an earlier stage about costs awards and I appreciate what he had to say about the consultation that would need to take place with local communities. In those circumstances, I am happy to withdraw the amendment.

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Moved by

[Lord Shutt of Greetland]

232AS: Schedule 24, page 419, line 31, at end insert “(Transfer schemes),”

[Lord Shutt of Greetland]

My Lords, this not-quite-final group consists of minor technical and consequential amendments to Part 9 and the schedules to the Bill that have not been picked up in earlier groups. I beg to move.

[Lord McKenzie of Luton]

My Lords, I thought that we were going to have a short speech from the Minister. The first few amendments here are to do with transfer schemes and tax issues arising from the core cities amendments that we discussed earlier, so I am happy to support them, and indeed the rest of the amendments in this group.

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Moved by

[Lord Shutt of Greetland]

233: Clause 221, page 200, line 24, after “Act” insert “(other than a power under section 226)”

[Lord Shutt of Greetland]

This is a minor technical amendments dealing with commencement orders. I beg to move.

Amendment 233 agreed.

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[Lord Beecham]

My Lords, it is fitting that the noble Lord, Lord Jenkin, should effectively conclude Report stage after his many distinguished contributions to the Bill’s proceedings thus far and, indeed, his previous very substantial record in government. I have a couple of questions. I entirely endorse the thrust of the noble Lord’s amendment. I hope that it will be acceptable to the Government. This is more a matter of process. We are not entirely clear how the new system of post-legislative scrutiny will work and what pieces of legislation will be included in it. I hope that this will be one of them. I do not know whether the Minister can indicate whether that is so but in any case it is understood from the impact analysis that the Government intend to draw up the finer details of the review methodology in the months ahead, as they put it. Since the relevant document was written some time ago, that will presumably be done through a soon to be formed Localism Bill review steering group. Has such a group been formed or will it be formed? Who will be involved in it if it has not already been set up? When is it likely to report? How will it work? These are the crucial procedural questions. The noble Lord, Lord Jenkin, rightly refers to the financial aspect and we entirely endorse the view that as this will effectively be a new burden on local government, it will presumably be within the new burdens doctrine. It will be good to have an assurance on the record that any additional costs of that kind will be met by central government.

[Lord Shutt of Greetland]

My Lords, Amendment 249 would mean that the department has to produce a post-legislative impact assessment setting out the additional expenditure incurred by relevant authorities as a direct consequence of this Bill. An established process is already in place for post-legislative scrutiny of Acts. As set out in Cabinet Office guidance, departments are required to submit a memorandum to their departmental select committees three to five years after Royal Assent of an Act. This memorandum sets out a preliminary assessment on how the Act has worked out in practice, relative to objectives and benchmarks identified during the passage of the Bill.

In addition, each of the individual impact assessments for the specific policies in the Bill is accompanied by a post-implementation review plan. The amendment to insert a further requirement to produce a post-legislative impact assessment is therefore unnecessary. Inevitably, putting the provisions of this Bill into practice will mean local authorities taking on some new responsibilities. However, the Government are committed to ensuring that any additional burdens on councils are funded in accordance with the new burdens doctrine. The impact of the Bill has been assessed in the usual way, and the necessary funding will be made available.

I regret that I am not cited on the localism group referred to by the noble Lord, Lord Beecham. Obviously, I shall have to drop him a line on that point. I hope that my noble friend Lord Jenkin will feel able to withdraw his amendment.

[Lord Jenkin of Roding]

My Lords, I am very grateful for the kind remarks made by the noble Lord, Lord Beecham. I am not wholly reassured because this is such a very special and particular post-legislative assessment that it will be necessarily picked up in that form by the full PIR. However, my noble friend has made the Government’s case on this. I have argued that local authorities generally want to know early the total extra burden, but I am happy to withdraw the amendment.