Infrastructure Bill [HL]

Lord Tope Excerpts

Thursday 10th July 2014 Grand Committee

A Bill that reclassified major housing projects as nationally significant infrastructure projects, as with the new definition for offices, sports facilities and all the rest, could make a really significant contribution to easing housing shortages and helping Governments of whatever political persuasion meet the targets that we all know we have to meet but which, at the moment, show very little likelihood of being met. I beg to move.

[Lord Tope (LD)]

My Lords, I added my name to this amendment and am very pleased to support the noble Lord, Lord Best. He has described the need for these measures and the reason for them very fully, and I do not intend to repeat all or, indeed, much of what he said, most of which I agree with.

I am a very strong localist. I am not sure I go wholly with him on his concerns about localism and housing need, but my party has a target in its policy to build 300,000 houses a year by the year 2030. We at least have the realism to describe that as an ambitious target. That is probably a modest description.

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Moved by

[Lord Tope]

79B: After Clause 19, insert the following new Clause—
“Requirement for planning permission
(1) Section 57 of the Town and Country Planning Act 1990 (requirement for planning permission) is amended as follows.
(2) In subsection (3) after “a local development order” insert “issued by the local planning authority”.
(3) After subsection (3) insert—
“(4) Where a local planning authority propose to make an order under this section they shall first prepare—
(a) a draft of the order; and(b) a statement of their reasons for making the order.(5) The statement of reasons shall contain—
(a) a description of the development which the order would permit; and(b) a plan or statement identifying the land to which the order would relate. (6) Where a local planning authority have prepared a draft local development order, they shall consult, in accordance with regulations, persons whose interests they consider would be affected by the order.””

[Lord Tope]

My Lords, this amendment stands in my name and the names of the noble Lords, Lord Davies of Oldham and Lord McKenzie of Luton, and would enable local authorities to set their own permitted development rights. I am grateful to have the support of the Labour Benches for this amendment. I take it to be a commitment on behalf of the Labour Party that this will become government policy, should it ever be in a position to make it so. As we all know, the current system is centrally set and nationally determined and local authorities have extremely limited opportunities to change or vary what is set down nationally.

The Minister has already said today, and on many occasions, and I know she firmly believes it, that the people best placed to take these decisions are local planning authorities. We heard this in an earlier debate this afternoon. Local planning authorities are in a position to know what local needs, priorities and circumstances are, they know best what is needed to determine and stimulate local growth, yet they do not have the opportunity to set their own permitted development rights. Surely, it must follow logically from all that we all say that local authorities should have the power and ability to set such rights themselves. That is the purpose of this amendment, and in view of what has been said in earlier debates today I am confident of its acceptance. I beg to move.

[Lord McKenzie of Luton]

My Lords, as the noble Lord, Lord Tope, indicated, we have added our names to this amendment and we support it. It took me back to a debate during the course of the Growth and Infrastructure Act when identical amendments were moved and rejected by the Government. The Government’s defence then was that the Article 4 direction would be a route that local authorities could use if they were not happy with what central government was doing. At that point, there was disagreement between the LGA and the Government about how user-friendly that route actually was. The Government were going to talk to the LGA to see whether those matters could be clarified, so it would be very helpful to know whether any clarification was forthcoming. In particular, there was an issue about how the Secretary of State should approach the use of Article 4. I refer to the debate on the Growth and Infrastructure Bill:

“Is it still the position that the Secretary of State’s general approach to making an Article 4 direction, as set out in paragraph 4.23 of planning policy guidance note 15—”

here I asked whether that policy guidance still existed—

“is that, ‘permitted development rights should not be withdrawn without clear justification’?”.—[Official Report, 12/3/2013; col. 195.]

It would be helpful to know whether that interpretation is still imposed upon the Secretary of State in dealing with any Article 4 direction.

Having said that and raised those inquiries, I thoroughly support the position of the noble Lord, Lord Tope.

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[Lord Tope]

I am grateful to the Minister for her reply and encouraging words. Clearly, I would like to take further advice and look more deeply at some of the things she said. Since the joyful days of the Growth and Infrastructure Bill, I have had some local experience of the use of Article 4. I have to say that it bore out all the things that I was saying because I was told that was what the situation was and I learnt from experience that that was the case. It is still far from satisfactory, but I am grateful to the Minister for what she has told us. I will look at this further with those who know better than I do. I beg leave to withdraw the amendment.

Amendment 79B withdrawn.

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This is all good stuff. Every generation, when it approaches the challenging question of creating new ways of living in new places and new spaces to live, has to come up with appropriate machinery. The old delivery mechanisms are not going to be sufficient. We really need to look at some of the powers and resources that are going to have to be put into the hands of the new development corporations. The Minister is very open-minded about these things, and I hope that she will give this a fair wind and that we might see it somewhere between here and the end of the passage of the Bill.

[Lord Tope]

My Lords, I echo all that the previous speakers have said. I share the gratitude that the noble Lord, Lord McKenzie, expressed to the TCPA about the extremely important work that it has been doing on all this. Like other noble Lords, I had its briefing today and was quite struck by its comment,

“There is a risk that Development Corporations might see themselves as ‘engineering’ departments rather than organisations engaged in the wider social enterprise of place-making”.

As the noble Baroness, Lady Andrews, has just said, it is very important that we are not just creating new towns; I referred earlier to my preference for calling them “garden communities” rather than “garden cities”, for exactly that reason. We are seeking to create new communities, and a sense of place is fundamental to all communities, but perhaps more than ever to new communities where it may not be immediately obvious. That is enormously important. The place-making and social enterprise—actually, “social enterprise” is probably the wrong phrase in the current context—rather, the social aspects of creating new communities are, I would argue, at least as important in the longer term as creating the mechanical and technical infrastructure. That is obviously necessary—the engineering part of the work.

Whether or not the Minister is about to accept the amendment in its entirety I do not know, but I hope and believe that she will take very seriously the points that are intended here, and that we can use the opportunity of the Bill, during what is going to be quite a long progress through both Houses, to try to have something in the Bill that reflects at least the intent of the amendment and the excellent work that the TCPA is doing to help us to create not just new towns but new communities.

[Baroness Whitaker (Lab)]

My Lords, following the eloquent advocacy of my noble friend Lady Andrews and other noble Lords, I would just briefly like also to register that it seems extraordinary that the Government should not take the opportunity of this new clause to put flesh on their announced intention to make new towns. There are pitfalls if they do not, from the point of view of a lack of overall comprehensive design; a lack of vision—this new clause could propel vision; and, at least as important, a lack of participation on the part of the people affected. The new clause would leave all these problems behind and advance us into a period of proper place-making, to use the word employed by the noble Lord, Lord Tope, which I think stems from an earlier Administration.

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[Lord Whitty (Lab)]

My name is attached to the clause stand part provision. While I think some of the amendments in the name of my noble friends would improve the situation, I think the Government need to think again on this. The Minister should take advice from the noble Lord, Lord Jenkin, and look more closely at what circumstances and processes the problem that the Government are trying to address needs. As it stands, this is a pretty draconian and open-ended provision. Clearly, for all sorts of reasons there can be delays in the local authority being able to assess whether a condition has been met. The conditions can be quite complex because they are not only in the area of heritage, as my noble friend Lady Andrews has said, but can relate to the natural environment, social implications, traffic implications and so forth. These things are not necessarily easily dealt with, particularly by hard-pressed planning departments. As it stands, the clause would allow the Secretary of State to come to this Parliament the day after the period of the condition lapsed with an order to override the non-decision of the local authority. That seems too harsh. It is important that there is some reserve power for the Secretary of State. I understand why the Government are looking for it, but it should be exercised with discretion. Frankly, this clause gives far too much power to the Secretary of State to interfere in what essentially must be a local decision which understands the complexity of local circumstances. This clause gives no indication of what should trigger the Secretary of State’s intervention and the suspicion must be—I put it at its most extreme, but nevertheless—that a developer who happens to be close to the Minister and is frustrated by the delay tips the Secretary of State off and we have a complete override of our planning process as a result, subject only to the negative procedure of this House and another place. That is too open-ended and I hope that the Government will think again between now and when we come back on this.

I should have declared an interest as a vice-president of the LGA. The LGA has great disquiet about this, and that is shared by a large number of other organisations which are engaged in the planning process. I hope that the Minister will be able to give us something on this and that she will have another look at it before we return.

[Lord Tope]

My Lords, I am reminded that I should probably also declare an interest as a vice-president of the LGA, although I think that that is quite well known by now.

Misgivings have already been expressed this afternoon, and I hope that the Minister will go a long way to reassure all of us on this. I would like to understand better the need for this legislation. I do not know to what extent failure to discharge planning conditions is a problem. What is the evidence of the extent to which there is a problem? I am sure that there must be occasions when local authorities fail to meet the time limit. Very likely, as the noble Baroness said, that is because there has been a huge reduction in the size of planning departments. That was a problem long before the budget cuts started. Too many planning officers were going off to much better paid jobs in the private sector. With the budget cuts, the planning department has been no more exempt from downsizing staff numbers than any other part of a local authority, and that has probably added to it. That may be in part a cause of a problem but I would like to understand the extent to which there is a problem. What evidence is there of the problem that we are trying to solve?

I then come to the question of whether this is the best or the most necessary solution to the problem. I can certainly understand that if there really is a problem—if local authorities are, to any significant extent, simply failing to respond and that is holding up the necessary work—then action needs to be taken. Possibly, in extremis, this is the right action, but let us understand better the extent and cause of the problem that we are dealing with.

A number of questions have already been asked but when the Minister responds perhaps I may seek an answer to another point on the scope of what we are dealing with. Can we be clear that we are talking here about a failure to respond and not a failure to agree? That is quite important because it deals with part of my concern about the extent of the problem. The Minister referred to the very pleasing number of planning consents that are being granted. I have to say that I am much more interested in the number of starts and even more interested in the number of completions rather than the number of consents that are granted, but I hope that it is an indicator that we are moving in the right direction. However, if you ask developers what the delays in implementing planning consents are down to—sometimes they are accused of having land banks and so on, which they all deny—the knee-jerk answer is always “The planning system”, but when you probe a bit more, it is not quite that simple. Therefore, I should like to be reassured that we have evidence that there is a problem here and that we are not just responding to the easy answer that usually comes from developers about the planning system.

As I said, I want to be clear that what we are dealing with here is a lack of response, not a lack of agreement. Part of the concern is that if a developer is not entirely happy with the planning conditions—that is not unknown—that can be used as a means of getting round, wriggling out of or avoiding a consent. I am sure that that is not the intention here but it is something that we all want to ensure is avoided.

There is another thing that I am not clear about. If the Secretary of State gives deemed consent to the discharge of planning conditions but the local authority does not agree with that decision—it may be the local authority’s fault for not responding quickly enough, but one of the reasons for it not responding quickly enough may be that the development is not as straightforward as the developer suggested—can it still use an enforcement order to apply those conditions? Does that happen? I do not know, but I would like to know whether it is still available or if it is also to be taken away. We all have concerns about the detail here, as we always do when more power is given to Secretaries of State. Are we to have secondary legislation that will set out the scope and circumstances of all this? I would assume that we are. If so, when are we likely to be able to see that legislation in draft?

While I do not have quite the strong hostility to this that the Opposition have expressed, I certainly share the misgivings and I wonder whether we are using a sledgehammer to crack a nut that could be better dealt with in a simpler and more straightforward way through discussion, negotiation and agreement—and, frankly, although I never thought I would say it, with more planners.

[Baroness Donaghy]

My Lords, I do not have the expertise of other noble Lords in this area, but I want to bring in the human element, which perhaps needs to be emphasised around this Judge Jeffreys clause. We need a balance between the needs of the entrepreneur and developer and the individual whose life is impacted by these proposals. We need to think about the protection of the individual. I and, I am sure, other noble Lords in this Room know how miserable it is when something is happening next door over which you do not feel you have any control. It might be an overlarge extension that cuts out the daylight from a much loved garden. The impact on an individual is greatly underestimated by the strong lobby that surrounds deregulation. What consideration has been given to individual rights and community cohesion because these things are extremely important?

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[Lord Jenkin of Roding]

I am extremely grateful for the announcement that there is to be a consultation on this. Will the Minister give us an assurance that the Government’s response to the consultation will come well before we reach Report on this Bill?

[Lord Tope]

I was going to ask the same question. I am grateful to the Minister for taking some time to explain and try to reassure us. I was very pleased, but not surprised, to hear about the consultation. We look forward to seeing that in some detail. What is of particular relevance to this Committee and to us is that we know the outcome of the consultation and, particularly, the Government’s likely response to that outcome in time for the Bill’s next stage in this House. If the Minister is able to give us that reassurance, we will go away a little less unhappy.

[Baroness Stowell of Beeston]

I am always eager to make sure that noble Lords do not leave here unhappy. On this occasion, and especially having felt that I was not doing what I always seek to do with my noble friend, I can confirm that the Government will respond to the consultation before we get to Report. That response will be available.

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Moved by

[Lord Tope]

83A: After Clause 20, insert the following new Clause—
“Board of development corporations: membership
The board of development corporations established by the Secretary of State shall include at least one local authority elected member who shall have full voting rights.”

[Lord Tope]

My Lords, in moving Amendment 83A, I wish to speak also to Amendment 83C, with which it is grouped. In many ways we now return to the debate we had on the amendment proposed by the noble Lord, Lord Best, and the question asked by the noble Lord, Lord Jenkin, about who would implement large-scale housing developments. Certainly, one solution that was offered was that of local development corporations. The Mayor of London already has that power as regards mayoral development corporations. This amendment seeks to extend that possibility to the rest of the country.

At this hour, I do not need to go into great detail as it is fairly obvious that Amendment 83C speaks for itself. It seeks to enable the Secretary of State to create local development corporations at the request of local authorities. Amendment 83A requires that any such development corporations so established,

“shall include at least one local authority elected member who shall have full voting rights”.

I hope that is self-evident and that it would happen anyway. I move that amendment as a probing amendment at this stage but hope to receive at least an encouraging response from the Minister. I hope that she and noble Lords opposite will at least support the intentions here. I beg to move.

[Lord Best]

My Lords, I declare the interest that I did not need to declare in my previous amendment, which is that I am president of the Local Government Association, which supports both these amendments. I see them as complementary to our earlier debate on nationally significant infrastructure projects.

I very much hope that wherever a local authority wants to get on with it and do these things, we should give it every possible encouragement. I hope that these amendments are both acceptable to the Minister but would just add that it is likely that housing associations would play a very significant role in the development corporations. Many local authorities will not themselves be undertaking development on such a scale, and co-operation and partnership with housing associations will also be incredibly important in making the development corporations work.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend Lord Tope for explaining the background to these amendments. As I said in response to my noble friend Lord Jenkin in an earlier debate, it is not that the Government do not support the purpose of what a local development corporation could achieve in terms of what a local authority could get from that.

We believe that what a local development corporation could achieve is possible for local authorities to do already. They already have plan-making and development control powers for their areas and powers to acquire land compulsorily where necessary. Should they wish to focus on particular geographic areas, they can, under their general powers of competence—new powers brought in by this Government—make appropriate arrangements to do so, whether informally through a sub-committee or through a formal structure such as a limited company. For example, Liverpool has set up a mayoral development corporation to drive growth and development in the city without there needing to be any specific primary legislation providing for this. Where local authorities want to work together to secure the development of an area that crosses local authority boundaries, they are able to pool their planning powers so that decisions about that area can be taken in one place.

It is quite a straightforward measure but I feel that, as I have already explained, because the powers are already there for local authorities to act in this way, I have very little more to add to that, really, in responding to the debate.

[Lord Tope]

I am grateful to the noble Lords, Lord Best and Lord McKenzie, for their support and to the Minister for her reply. I have no choice but to withdraw the amendment.

[Lord McKenzie of Luton]

Will the Minister just explain again? Are we saying that any powers that could accrue and be put in place for a local development corporation are, in total, otherwise available to a local authority on an individual or a joint basis? Is that what the Minister is saying?

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[Lord McKenzie of Luton]

Splendid.

[Lord Tope]

My Lords, I reassure the Minister that I did not feel short-changed and that I feel even less short-changed now. I beg leave to withdraw the amendment.

Amendment 83A withdrawn.

Moved by

[Lord Tope]

83B: After Clause 20, insert the following new Clause—
“Custom build housing
(1) Local authorities may make provision for custom build housing through the assembly of land within their area.
(2) Local authorities may charge a fee for this activity from interested parties to recover their costs.”

[Lord Tope]

My Lords, I have tabled Amendment 83B to enable us to have what I hope will be a short but interesting debate on custom-build housing. This will give the Minister an opportunity to respond with examples of the Government’s enthusiasm for it, which I know is there. I am conscious that this time on a Thursday evening is probably not the best time to initiate such an enthusiastic debate. I am not suggesting for one moment that this is the answer to the housing crisis we discussed earlier today. Plainly, it is not but it is a small and useful part of the answer. There is a growing interest in custom-build housing so perhaps I should be clear for the record what is meant by that. It includes both self-build housing, where the owner builds it himself, and those where individual commissions for building are of a house. I think that the phrase custom-build housing has now been adopted to cover both.

The LGA tells me that one in 10 new houses in the UK is custom-built. If that is the case, as I am sure it is, it is a small but significant part. It is one which is growing and in which there is considerable interest. My part of the Government are certainly very keen to encourage it and if this fairly simple amendment—which, as I said, was intended to create a debate—were enacted it would encourage local authorities to make provision for custom-build housing in their assembly of land. It would give further stimulus and encouragement to what is, as I say, a growing market and make a contribution—perhaps a relatively small contribution but a useful one—to meeting the housing need. It would also meet it in a way which most directly meets the needs of those who wish to use that housing, because it is their housing in every sense of the word. With that brief explanation and introduction, I beg to move.

[Lord Best]

I will not prolong the debate late on a Thursday, but I add my support to this amendment and note again that the LGA is keen on it. The major housebuilders have moved up from building 46% of the nation’s housing to building 70%. We are becoming incredibly dependent on a handful of very large housebuilders and we need to get back to having the SMEs, the small and medium-sized housebuilders, getting back into business. Many were wiped out during the credit crunch, the recession, and we need them back again. This is a way of ensuring that they can come back, because what they lack is the opportunity to get their hands on land. This is made easy for them by the use of the custom-build technique and this amendment would help in that process. In Germany, they build something over 40% of all their housing on this basis of land being assembled and housebuilders building sometimes a single house but sometimes several houses on the plots that are made available.

There is a slightly sinister aspect to the bringing back of the SME housebuilders, which is the notion that the smaller housebuilders and those developing smaller sites—smaller housebuilders and smaller sites often go closely together, because the big players do not want to deal with small sites—would not in future have a requirement for the provision of affordable housing attached to the consent. It is a government concept, which has yet to be enshrined in any way but is subject to consultation, that sites with perhaps fewer than 10 homes would not be required to have any affordable housing within the mix. One might think that with 10 homes that does not much matter, but in rural areas nearly all the village schemes for affordable housing for local people are of fewer than 10 homes. Something like 70% of all rural schemes are of fewer than 10 homes. The thought that this will help small housebuilders to do more is misguided.

It is the land, which is the subject of this amendment, which is preventing the small players doing the kind of housebuilding they used to do. They cannot get their hands on sites. It is not that they need to have special concessions and reduce the amount of affordable housing that they build, just as it is not the case that smaller schemes should have the requirements removed from them for sustainable housing for the move towards carbon neutrality by 2016. This amendment seeks to bring back those small and medium-sized housebuilders. Those amendments which seek ways of lowering standards or of removing the requirement for affordability are missing the point. It is this one which would help bring back those housebuilders in such a way that we do not make any sacrifices in terms of quality.

[Baroness Stowell of Beeston]

My Lords, I am very grateful to my noble friend Lord Tope for tabling his amendment. This is, as he suggested, not because I think it is necessary in order to achieve an increase in custom build, but because it provides us with an opportunity to discuss and debate this important matter. This Government very much support custom build and are doing a lot to enable it. The noble Lord, Lord McKenzie, outlined the way the Opposition propose to approach this issue. However, it is worth noting that, sadly, when they were in government there was no advancement in this area, so we have some ground to make up.

Finding a suitable building plot remains the single biggest barrier holding back thousands of new projects every year. Of course, some councils already provide land for custom build. For example, at Bicester, Cherwell District Council is bringing forward land for up to 1,900 custom-build homes. However, the Government want to do more to help custom builders and support this growing industry. I note what the noble Lord, Lord Best, said. This is an important way of encouraging those smaller building firms as well. That is why we announced a further package of measures in the Budget to tackle this problem. Last week, we invited local authorities to apply to become right to build vanguards. Later this year, the Government will consult on creating the new right to build, which will give custom builders the opportunity to buy suitable shovel-ready plots of land.

Local authorities are already required by the National Planning Policy Framework to assess and plan for their housing needs and our planning guidance makes clear that this should include people who want to build their own homes. Those authorities forging ahead on custom build show that they already have the powers they need to support custom building. They can also already recover the costs of sales. Stoke-on-Trent City Council is doing just that and other authorities such as Cherwell, as I indicated, plan to do the same. The Government are keen to continue to consider what we can do to support custom builders but, as I said, I do not feel that this particular amendment is necessary to do that. I wholeheartedly agree with my noble friend that we want to see more local authorities doing more to support custom build.

The other thing is that most noble Lords who contributed to the debates this afternoon are more experienced in the field of housebuilding and planning than I am. However, my father worked in the building trade and I feel very much that, when we talk about custom build, we should be careful to ensure that we paint a picture to people that it is not just the preserve of a small minority or a certain kind of people. Custom build should be available to everybody. With the measures the Government are putting in place, we are firmly on the path to realising that ambition. I am grateful to my noble friend Lord Tope for giving us this opportunity to discuss this matter, albeit briefly, but I hope he will none the less withdraw his amendment.

[Lord Tope]

My Lords, I am particularly grateful to the noble Lord, Lord Best, for his eloquent support. He is much more knowledgeable on the subject than I and he explained it very well. I am also grateful to the noble Lord, Lord McKenzie, for his support, too, and to the Minister for recognising that I put the amendment down to enable the debate and not with any intention of pressing it to a vote—not that I can—or expectation that it would appear in the Bill.

We have had a short debate, but it is important that we were able raise an issue that will be of growing importance. The Minister made some personal family comments. Actually, a few weeks ago I visited a house in Glastonbury that I had not known about before but which was built by my grandfather’s nephew. He was a small builder and built that house so that each of its four walls was in a very different style. It was built at the turn of the century and was a slightly odd-looking house, but I guess that it must have been one of the original show houses. You would visit the house and choose which type of stonework you wanted. It is now used as a bed and breakfast and if any noble Lord wants the details I am happy to give them. In the mean time, I beg leave to withdraw the amendment.

Amendment 83B withdrawn.