Levelling-up and Regeneration Bill (Eighteenth sitting)

Marcus Jones Excerpts

Committee stage
Tuesday 6th September 2022 Public Bill Committees

[The Chair]

You are all very welcome. I am glad that our Galleries are swelling with even more Members; that is excellent. Welcome back after the recess, Committee. I have a few preliminary announcements. Please switch off your electronic devices or at least put them on silent. No food or drink is permitted, except of course for the water on the tables. If you wish to remove your jacket, please feel free to do so, as it is very warm today. Please provide your speaking notes to Hansard colleagues; you know the email address. And we will get right down to business.

Clause 99

Development commencement notices

[The Minister for Housing (Mr Marcus Jones)]

I beg to move amendment 74, in clause 99, page 116, line 27, leave out from beginning to “for” in line 28 and insert

“planning permission has been granted under section 70 or 73”.

This amendment corrects a cross-reference.

[The Chair]

With this it will be convenient to discuss Government amendments 75 and 76.

[Mr Jones]

As ever, it is a pleasure to serve under your chairmanship, Mr Paisley. I hope that colleagues had a good summer and, in many ways, are suitably refreshed and raring to go with our consideration of the Levelling-up and Regeneration Bill in Committee.

These three amendments are aimed at ensuring that proposed new section 93G of the Town and Country Planning Act 1990, which is created by clause 99, works as intended. The amendments propose two changes. First, new section 93G does not refer to the correct section of the 1990 Act as the basis for the grant of planning permission. Therefore, the two technical corrections set out in Government amendments 74 and 75 are considered necessary to make clause 99 legally accurate. Secondly, to ensure that references in new section 93G concerning when new development has begun have the same meaning as those elements set out in existing section 56(2) of the 1990 Act, a consequential amendment is required. This is set out in Government amendment 76.

Overall, the amendments will ensure that clause 99 works as intended, without ambiguity. For those reasons, I hope that members of the Committee support them.

Amendment 74 agreed to.

Amendments made: 75, in clause 99, page 117, line 25, leave out “58(1)(b)” and insert “70”.

This amendment corrects a cross-reference.

Amendment 76, in clause 99, page 117, line 29, at end insert—

“( ) In section 56 (time when development begins), in subsection (3), after ‘92,’ insert ‘93G,’.”—(Mr Marcus Jones.)

This amendment adds a consequential amendment to section 56 of the Town and Country Planning Act 1990 (which determines the time when development begins).

Question proposed, That the clause, as amended, stand part of the Bill.

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

It is a pleasure to reconvene after the summer recess under you in the Chair, Mr Paisley.

Clause 99 will insert proposed new section 93G into the Town and Country Planning Act 1990, as the Minister said. The new section will require those carrying out certain development types to serve a commencement notice to the relevant local planning authority before any development takes place. Such development notices will be required to outline the expected start date of construction, the details of the planning permission, the proposed delivery rate for the scheme, and other relevant information. The example in the explanatory notes accompanying the Bill suggests that this provision will most likely apply to large-scale residential schemes as a means, albeit a limited one, of preventing land banking and slow build-out by larger developers.

We welcome this sensible new duty. However, I would be grateful if the Minister provided further clarification as to what kinds of developments are likely to fall within the “prescribed description” bracket in subsection (1)(b) of the proposed new section and therefore be required to submit one of the new commencement notices.

[Mr Jones]

As I am sure the hon. Gentleman will appreciate, the description of the particular type of development he refers to will be dealt with in regulations and we will bring forward further details in due course. We will do so in consultation with both local authorities and industry.

Question put and agreed to.

Clause 99, as amended, accordingly ordered to stand part of the Bill.

Clause 100

Completion notices

[Mrs Emma Lewell-Buck (South Shields) (Lab)]

I beg to move amendment 170, in clause 100, page 118, line 31, at end insert—

“(3A) But notwithstanding subsection (3) the completion notice deadline may be less than 12 months after the completion notice was served if the local planning authority are of the opinion that—

(a) development has not taken place on the site for prolonged period,

(b) there is no reasonable prospect of development being completed within a reasonable period, and

(c) it is in the public interest to issue an urgent completion notice.

(3B) A completion notice may include requirements concerning the removal of any buildings or works authorised by the permission, or the discontinuance of any use of land so authorised, at the end of the completion period, and the carrying out of any works required for the reinstatement of land at the end of that period.”

This amendment would enable the issuance of completion notices withdrawing planning permission with a deadline of less than 12 months when certain conditions are met, and enable completion notices to require that building works be removed from a site or a site be reinstated to its previous condition.

Thank you, Sir Ian—Mr Paisley.

--- Later in debate ---

[Matthew Pennycook]

Very briefly, I congratulate my hon. Friend the Member for South Shields on this excellent amendment, which we support. She made clear that the problem she has highlighted of private plots lying derelict for extended periods of time with no real prospect of development being completed has a real impact on local communities. Allowing the 12-month completion notice deadline to be circumvented in the circumstances set out in the amendment, with the proportionate requirement set out in proposed new subsection 3B, is sensible and we urge the Government to consider it seriously.

[Mr Jones]

I listened closely and carefully to what the hon. Member for South Shields said. I am sure she knows that because of the role of Ministers in the planning system, I cannot discuss that particular situation in detail, but I can say that I am aware of such situations, even in my own constituency. I am sure there are similar situations across the country.

Amendment 170 relates to the proposed updated legislative framework for completion notices in clause 100. Those notices are an existing tool available to local planning authorities that can be served on developments that, in the opinion of the local planning authority, will not be completed in a reasonable period. We want to equip local planning authorities with the tools necessary to deal with sites that have experienced long periods of inactivity or slow delivery. That is why, through clause 100, we propose to modernise the procedure for serving completion notices to make them simpler and faster to use, giving more control and certainty to local planning authorities in the process. To achieve that, clause 100 will remove the need for a completion notice to be confirmed by the Secretary of State before it can take effect and allow for a completion notice to be served on unfinished developments sooner, providing the planning permission has been implemented.

Amendment 170 proposes two fundamental changes to clause 100. First, there would be a shorter completion notice deadline below the current 12-month minimum in certain circumstances. Those are where a local planning authority is of the opinion that development has not taken place on a site for a prolonged period; that there is no reasonable prospect that the development would be completed in a reasonable period; and that it is in the public interest to serve a notice.

While I support the intention, I remind the Committee that completion notices, when served by a local planning authority or the Secretary of State, must provide the recipient with an opportunity to complete the development. To put it another way, a completion notice requires a person to use or lose their planning permission. Therefore, that person must be afforded the chance to use the planning permission and complete the development before the granting of that permission is removed. Providing the opportunity to complete is a critical aspect of the procedure governing the use of completion notices and reflects the longstanding position that planning permission is a development right and that revoking that right should be subject to compensation.

[Mrs Lewell-Buck]

Will the Minister give way on a point of clarification?

[Mr Jones]

Of course.

[Mrs Lewell-Buck]

I thank the Minister. How long do developers have to complete if they are served a notice by the local authority?

[Mr Jones]

In the case we are talking about, the current minimum once a notice is served to use or lose planning consent is 12 months. Clearly, we think that that is proportionate in giving the chance for a development right to be used by the developer. The penalty for failing to complete the authorised development within a specified time period is the removal of planning permission for the unfinished parts of the development. The person served with a completion notice must have a reasonable period in which to finish development and avoid that outcome. As I have said, a period of 12 months is proportionate and gives developers a fair opportunity to deliver on their permission in full.

[Mrs Lewell-Buck]

Will the Minister give way again?

--- Later in debate ---

[Mr Jones]

I will in one moment. Half-completed developments can be complicated to complete. That minimum 12-month period is also consistent with other elements of the planning system and the approach to compensation. In particular, 12 months is the period given under section 108 of the Town and Country Planning Act 1990, where compensation is payable for the revoking of a planning consent granted under a development order.

[Mrs Lewell-Buck]

I thank the Minister for giving way again. What does he envisage would happen if somebody kept renewing their planning application? How is the Minister proposing to stop situations such as the one that I outlined in proposing this amendment?

[Mr Jones]

As I am setting out, there are a number of ways in which we will ensure that development gets built out as quickly as possible. That is important because, clearly, it is the expectation of communities for a planning consent to be followed through once it has been granted. I will continue to explain how that will happen, because the second change sought by the amendment relates to removing finished parts of a development, where a site could not be completed before planning permission was withdrawn, and restoring the land to its previous state.

I recognise the importance of being able to remove unfinished developments, and appreciate that the local planning authority should have the power to provide for that as a last resort. I remind the hon. Member for South Shields that powers are already available to planning authorities to seek the removal of unfinished developments. Section 102 of the Town and Country Planning Act 1990 enables local planning authorities to make a discontinuance order, which can, among other things, require discontinued use of land, alterations, or removal of buildings or works. Therefore, I believe the proposed change is unnecessary due to the powers that are available through existing legislation.

On that basis I hope that my comments have reassured the hon. Member and I hope, as she mentioned at the start of her comments, that she will not seek to divide the Committee.

[Mrs Lewell-Buck]

I do not seek to divide the Committee at this stage on this matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss that schedule 10 be the Tenth schedule to the Bill.

[Mr Jones]

As part of the measures in the Bill to provide greater transparency around the delivery of new development and to bring about the timely build-out of planning permissions, through clause 100 we will be speeding up, simplifying and modernising the framework for serving completion notices. The power to serve completion notices is available to local planning authorities in sections 94 and 95 of the Town and Country Planning Act 1990. The Secretary of State can serve notices under section 96 of the 1990 Act.

A completion notice may be served on a development that, in the opinion of the local planning authority, will not be completed in a reasonable period. The notice will set a deadline after which the planning permission will become invalid and, if development is not completed by that deadline, planning permission will be removed for any unfinished elements of the development. In effect, a completion notice requires a developer to use it or lose it.

At present, however, completion notices are rarely used, with only 13 notices served since 2011 and just three since 2014. This partly reflects the fact that they are, and should remain, a tool of last resort. However, local planning authorities should not be discouraged from using them where appropriate and where the existing process for serving notices is long, slow and unnecessarily complex. Completion notices, for example, cannot take effect unless until they have been confirmed by the Secretary of State. In practice, this requirement has added an average of three months to the process for the nine notices confirmed since 2011, the longest of which being over six and a half months.

--- Later in debate ---

[Matthew Pennycook]

Clause 100 would amend the provisions in the Town and Country Planning Act 1990 relating to completion notices. It does so by removing two requirements: that the Secretary of State must approve a completion notice and that the notice must be served only after the deadline for commencement of the planning permission has passed. We welcome these sensible revisions to the 1990 Act. I do, however, have two questions for the Minister, but I am more than happy for him to get back to me in writing if needed.

First, given that the changes sought by clause 100 are intended to work in conjunction with the new duty provided for by clause 99 on commencement notices, will the Minister explain why such notices are restricted to certain types of as yet undefined development, while the changes made to completion notice provision will continue to apply to all types of development? Secondly, subsection (2) of proposed new section 93H makes it clear that a local planning authority can serve a completion notice if it is of the opinion that the development will not be completed “within a reasonable period”—a power that in theory would allow the cases my hon. Friend the Member for South Shields just raised to be addressed in a timelier manner. Will the Minister clarify what is meant by “within a reasonable period”? If he cannot, can he tell us who will determine what it will mean in due course and whether there will be any limits whatsoever, given how ambiguous the phrasing is?

[Mr Jones]

On the first question, I will take up the hon. Member’s offer to write to him. To his second point, that reasonable period of time will be set out in guidance. The local planning authority will be the one to deal with the matter directly, rather than getting the Secretary of State involved. The authority will be able to determine how to deal with a particular situation by taking into account the factors relating to each development involved.

Question put and agreed to.

Clause 100 accordingly ordered to stand part of the Bill.

Schedule 10 agreed to.

Clause 101

Time limits for enforcement

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clause 102 stand part.

[Mr Jones]

The Government are clear that effective enforcement action is important to maintain public confidence in the planning system. This chapter introduces a number of measures long called for by colleagues in this place to strengthen the enforcement powers of local authorities and to close loopholes. Local planning authorities presently have a wide range of enforcement powers, with strong penalties for non-compliance, to tackle such situations. While we believe that the current enforcement framework generally works well, we acknowledge that we could make improvements in a number of areas. We want to strengthen planning enforcement powers and sanctions, reinforcing the principle that unauthorised development should never be viewed as preferential to proper, up-front planning engagement.

Within the planning enforcement framework, there are statutory time limits for the commencement of enforcement action. It is necessary to have a statutory time limit to provide certainty when the passage of time means that enforcement action is no longer feasible. However, there are currently two time limits for commencing enforcement action, depending on the nature of the breach. For a breach of planning control consisting of building operations or the change of use to a single dwelling, the time limit for commencing enforcement action is four years. For any other breach of planning control, the time limit for commencing enforcement action is 10 years from the date of the breach.

Stakeholders have raised concerns that the four-year timeframe can be too short, and in some cases can result in opportunities to commence planning enforcement action being inadvertently missed. For example, a person may not initially raise concerns with their local planning authority, assuming that a neighbouring development has the correct permissions or will not cause disturbance. Should the development prove disruptive, they may then try to come to an agreement with the person responsible for the development. By the time they raise their concerns with the local planning authority, some time may well have passed. The local planning authority may not initially be aware of that, prioritising other investigations. When an investigation begins, it may then become clear that the time limits for commencing enforcement action have inadvertently passed.

The four-year time limit can cause frustration for communities, whose initial pragmatism may result in unauthorised, harmful development becoming inadvertently immune from enforcement action. The clause will bring the time limit to commence enforcement action in England to 10 years in all cases, either from the date of substantial completion or the date of the breach, depending on the specific nature of the breach. That will provide greater confidence to local planning authorities that they will have the time to take enforcement action, and indicate to the public that planning breaches are taken seriously and should never be viewed as a preferential approach to proper engagement with the planning system. I commend the clauses to the Committee.

Question put and agreed to.

Clause 101 accordingly ordered to stand part of the Bill.

Clause 102 ordered to stand part of the Bill.

Clause 103

Enforcement warning notices

[Matthew Pennycook]

I beg to move amendment 116, in clause 103, page 122, line 36, at end insert—

“(4) The Secretary of State must provide sufficient additional financial resources to local planning authorities to enable them to implement the provisions in this section.”

This amendment, along with New Clause 36, would require the Secretary of State to provide sufficient additional resources to local planning authorities to enable them to implement the changes required by Chapter 5 of Part 3.

--- Later in debate ---

[Mr Jones]

Clause 103 provides local planning authorities in England with a new power to issue enforcement warning notices. The notice invites a retrospective planning application for a development that does not have permission, but that may be acceptable in planning terms, or may be made acceptable by the imposition of planning conditions. It does this by stating the matters that appear to be a breach of planning control and stating that further enforcement may be taken if a planning application is not received within a specified period. This formalises a process that the majority of local planning authorities already carry out informally. Formalising the process brings certainty, such as by setting out the specified period for an application to be submitted, and it constitutes taking enforcement action, ensuring that the time limits for commencing enforcement action cannot inadvertently expire.

However, the use of enforcement warning notices by local planning authorities will be discretionary. It will not create significant additional resourcing burdens for local planning authorities. We recognise many local authorities have capacity and capability challenges. We will publish guidance to assist local planning authorities in using enforcement warning notices. Although we are not changing fees through the Bill, we intend to consult on proposals to increase planning fees to ensure that local planning authorities are properly resourced to improve their services.

[Rachael Maskell (York Central) (Lab/Co-op)]

The Minister is talking about local planning authorities being properly resourced. In York, we no longer have a chief planner. There are serious deficits in funding in our local authority. As hon. Friends have said, planning is often the first thing to be cut. How will the Minister ensure that they are properly resourced to take on these additional responsibilities?

[Mr Jones]

I thank the hon. Member for York Central for that important point. I have acknowledged that there are capacity and capability challenges. I have also acknowledged that the Government want to go further by allowing local authorities to bring in more income. We have discussed and put the principle out there of doubling fees for retrospective planning applications, which often put often unnecessary additional pressure on local authorities, if people would have put forward their planning applications in the first instance in the proper and usual way.

On new clause 36, effective enforcement action is important to maintain public confidence and trust in the planning system. The package of enforcement measures in the Bill will strengthen the enforcement powers available to local planning authorities. Generally, the provisions make the existing framework easy to use by enforcement officers and, as such, they will not create significant additional burdens or resource pressures for local planning authorities. The use of new tools, such as enforcement warning notices, is discretionary. We are also working with partners to deliver a capacity and capability strategy to support the implementation of our planning reforms so that local planning authorities have the right skills and capabilities to make creative decisions and drive forward ambitious proposals, and we are committed to new burdens principles.

For those reasons, we cannot accept amendment 116 and new clause 36. I hope the hon. Member for Greenwich and Woolwich is sufficiently reassured to withdraw the amendment.

[Matthew Pennycook]

I regret to inform the Minister that I am not sufficiently reassured. I note what he said about fees and about the strategy the Department intends to bring forward. Yet, what I hear time and again in responses to amendments that seek to press the Government on local authority resourcing is a seeming unawareness of how acute the problem is. The Minister referred to it in very diplomatic terms as capacity and capability challenges, but it goes way beyond that. Local planning authorities are under acute pressure, which has a direct impact on planning services in those local authorities and, because it is a discretionary service, on the enforcement part of those planning services.

I am concerned to hear the Minister say that he does not think the provisions in this chapter constitute additional work pressures. It seems to me that they do. When looked at in the round, the measures introduced in the Bill certainly constitute additional work pressures on departments. I am not going to press these proposals to a Division, but we will come back time and again to the issue of local authority resourcing, because planning is under acute pressure in terms of capability and skills, and the Government have to provide stronger commitments as to what they will do to address that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Mr Jones]

On the basis that we have debated clause 103 at some length, I commend it to the Committee.

Question put and agreed to.

Clause 103 accordingly ordered to stand part of the Bill.

Clause 104

Restriction on appeals against enforcement notices

[Mr Jones]

I beg to move amendment 73, Clause 104, page 123, line 19, after “authority” insert “or the Secretary of State”

This amendment extends new section 174(2AA)(b) to cases where the Secretary of State declined to determine an application for planning permission.

Clause 104 closes a loophole that currently allows those who have breached planning control two opportunities to obtain planning permission retrospectively, once by appealing an enforcement notice and once by appealing the refusal or non-determination of a retrospective planning application.

The amendment corrects a drafting error. The new provisions in clause 104 apply to cases where either the local planning authority or the Secretary of State is the decision maker. Subsection (2AA)(b) erroneously refers only to the local planning authority. The amendment corrects that error, bringing applications that are declined to be determined by the Secretary of State within scope of the subsection.

Amendment 73 agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clauses 105 and 106 stand part.

[Mr Jones]

The retrospective planning application process is a necessary part of the planning system. It allows those who have made a genuine mistake to remedy the situation. However, we are aware that it is also used by people who have intentionally undertaken development without permission, who then attempt to delay enforcement action.

Prior to the Localism Act 2011, an appeal could be made both against the refusal of a retrospective application and against enforcement action, on the ground that permission ought to be granted. Through the 2011 reforms, we reduced the circumstances in which an appeal could be made, preventing an appeal on the grounds that permission ought to be granted if an enforcement notice was issued before the end of the statutory determination period. However, the reforms inadvertently created a loophole, which has allowed appellants to continue to appeal twice in certain circumstances, against the refusal or non-determination of a retrospective planning application and against an enforcement notice, on the ground that permission ought to be granted. Both appeals, in effect, assess the planning merits of the case.

The loophole exists because, in some circumstances, a local planning authority might not issue an enforcement notice before the end of the determination period for a related retrospective application. That could be because the local planning authority might have invited the retrospective application in the first place, and does not want to be seen to prejudge the outcome, for example. In such cases, if the development were subsequently found to be unacceptable and retrospective planning permission was refused, an enforcement notice would be issued after the end of the determination period.

There would remain two opportunities to obtain permission retrospectively: first, by appealing the refusal of the retrospective application, and secondly, by appealing the enforcement notice on the ground that permission ought to be granted. A similar situation would occur if the determination of the retrospective application were delayed and the appellant appealed the retrospective application on the ground of non-determination.

Therefore, the clause will extend the period during which an enforcement notice can be issued and during which an appeal on the ground that permission ought to be granted can still be prevented to two years. The applicant will not then be able to appeal an enforcement notice on the ground that permission ought to be granted during that extended period. Instead, they will have only one route to obtain planning permission retrospectively—through a successful appeal of the refusal or the non-determination of the retrospective planning application. Appealing an enforcement notice on other grounds will still be permitted.

The clause will reinforce the message that people should seek planning permission before they start a development. Where they do not do so, they should have only one opportunity to obtain planning permission after the unauthorised development has taken place so that the matter can be rectified as soon as possible. That will speed up enforcement action and prevent resources from being wasted assessing the planning merits of the same case twice. I therefore commend the clause to the Committee.

[Matthew Pennycook]

I would like to make some further remarks on clauses 105 and 106. Clause 105 will give the Secretary of State a new power that allows them to dismiss an appeal in relation to an enforcement notice or an application for a lawful development certificate in England should it appear to them that the appellant is causing undue delays to the appeals process. This is another point of clarification, but I simply wish to get a sense from the Minister of what causing undue delays as per proposed new section 176(6) of the Town and Country Planning Act 1990 will be taken to mean in practice.

Clause 106 will amend sections 187A and 216 of the 1990 Act in relation to England to increase the maximum fine for failing to comply with either a breach of condition notice or a section 215 notice. We do not oppose those changes, but I would like reassurance from the Minister that the Government have properly considered the possibility that increasing the maximum fine in such a way might have the unintended consequence of discouraging from seeking retrospective permission those who have, for whatever reason, made genuine mistakes on their planning applications.

[Mr Marcus Jones]

I thank the hon. Gentleman for his questions. On clause 105, let me give him an example of an undue delay. Such a delay could constitute not allowing a planning inspector to access land for a site visit. That is one circumstance in which the process would be frustrated.

On clause 106, I gently say to the hon. Gentleman that, while I understand his concerns, many members of the public, particularly those who have been affected by unauthorised developments, would be keen for us to be tougher on such developments. Therefore, I think this is more about ensuring that we put in place a regime that deters people from embarking on unauthorised development. I therefore believe that increasing the fines that will be payable is the right thing to do.

Question put and agreed to.

Clause 104, as amended, accordingly ordered to stand part of the Bill.

Clauses 105 and 106 ordered to stand part of the Bill.

Clause 107

Power to provide relief from enforcement of planning conditions

[Rachael Maskell]

I beg to move amendment 137, in clause 107, page 125, line 35, at end insert—

“(1A) But regulations under this section may not provide for relief from a planning condition relating to the development of a type or volume of affordable housing in a development.”

This amendment would exclude planning conditions relating to the delivery of agreed on-site affordable housing in developments from the power to provide relief from the enforcement of planning conditions.

Where affordable and social housing is identified in plans, the obligation to provide that tenure in the planning process must never be overridden. We have a national crisis with regard to the availability of affordable homes for our constituents. I certainly see that in York, where it is skewing the economy and having a severe impact on the way my community works. We have been overrun by so many second homes and holiday lets that it is even impinging on our ability to deliver statutory services in my community.

Far too often, developers start to build out their plans, starting with the high-value housing, only then to return with the plea that the site is no longer viable to provide social or affordable housing. That housing is therefore not built, and the funding is banked but never spent, because the argument is played out time and again on future sites. High-end, high-value housing is therefore taking precedence over the development of affordable housing. We simply cannot allow that to happen at any point in the development process. My brief amendment would recognise that in statute to ensure that there can never be an excuse for not delivering vital affordable housing on the basis of viability.

--- Later in debate ---

[Mr Jones]

I thank the hon. Member for York Central for her amendment. It seeks to ensure that relief from enforcement action under clause 107 cannot be granted with respect to planning conditions relating to affordable housing delivery. The aim of clause 107 is to enable the Secretary of State, by regulations, to limit enforcement action against non-compliance with prescribed planning conditions or limitations for a specified period of relief. Members of the Committee will recall that the covid pandemic demonstrated that the planning system needs to be sufficiently flexible to support businesses to respond to and recover from periods of disruption quickly and confidently.

During recent years we have taken steps, through written ministerial statements, to encourage local planning authorities to take a considered approach to enforcement action against non-compliance with certain planning conditions that have placed unintentional burdens on businesses. That includes conditions that govern the operative uses of development, such as construction working hours, delivery times and opening hours. Clause 107 will place on a statutory footing similar provisions to those that we introduced through policy, and it is intended that the measure will be used in relation to those types of operative use conditions as periods of disruption arise in the future.

The hon. Member’s amendment concerns those conditions that relate to affordable housing specifically. Affordable housing provision is principally secured through a section 106 agreement rather than planning conditions, so the practical benefit of the proposed exemption would be limited and this is not the sort of operative condition that the clause is aimed at. Furthermore, we are proposing to change the way affordable housing for a development is determined, as part of our plans for the new infrastructure levy, which the Committee will debate shortly. Through regulations for the levy, we intend to introduce a new “right to require”, to remove the role of negotiating in determining levels of onsite affordable housing, and we propose to consult on the approach shortly. Therefore, I consider the amendment not to be necessary and I ask the hon. Member for York Central to withdraw it.

[Rachael Maskell]

I thank the Minister for his response. I will certainly be following the debate on schedule 11 very closely, to ensure that it does fulfil all the commitments that the Minister has alluded to in his speech, but I will withdraw the amendment at this point. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Mr Jones]

On the basis that I have explained how clause 107 works during our discussion of amendment 137, I do not propose to make any further comments on it. I commend the clause to the Committee.

Question put and agreed to.

Clause 107 accordingly ordered to stand part of the Bill.

Clause 108

Consultation before applying for planning permission

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clauses 109 to 112 stand part.

[Mr Jones]

The Government are committed to increasing opportunities for meaningful and early community involvement in planning decisions. Throughout the Bill, we are introducing measures that do just that. Communities should be given a say on developments that affect them, and should have those views taken into account when decisions are made. We are also keen to ensure that issues are dealt with early on, so that decisions are not unduly delayed. That is why we are introducing this minor but important change.

Clause 108 will make permanent the powers in sections 61W to 61Y of the Town and Country Planning Act 1990 that enable the Secretary of State to mandate the types of applications for which applicants will be required to carry out consultations with those in the vicinity of the development, and with any other specified people—for example, statutory bodies—before submitting a planning application to the local planning authority. The powers also require applicants to have regard to any responses received in the pre-application consultation, including views expressed by local communities.

The powers have been used only to require pre-application consultation on onshore wind turbines where two or more turbines are being installed, or where the hub height is over 15 metres. We want to explore additional opportunities to use the powers where pre-application engagement will be most beneficial, and we will engage on that before bringing forward the necessary changes through secondary legislation. Making the powers permanent will allow the Government to further strengthen community engagement with the system. I commend the clause to the Committee.

Question put and agreed to.

Clause 108 accordingly ordered to stand part of the Bill.

Clauses 109 to 112 ordered to stand part of the Bill.

Clause 113

Infrastructure Levy: England

[Matthew Pennycook]

I beg to move amendment 142, in clause 113, page 131, line 38, leave out “a charge” and insert “an optional charge”.

This amendment would ensure that application of the Infrastructure Levy would be optional rather than mandatory.

--- Later in debate ---

[Tim Farron]

The hon. Member for Greenwich and Woolwich has just provided almost infinitely more detail than there is in the Bill. My understanding is that the whole point of a Bill Committee is that we get to grips with the detail, and yet the Government are providing us with very little.

This really matters. I will set out a particular case of my community experiencing the real sharp end of the crisis, but every community in the country is experiencing a crisis of housing quality, availability and genuine affordability. This just tickles it, if we are lucky. We have a lack of detail. The idea itself is vague, and what we do know about the infrastructure levy is that it is likely to be complex, and the more complex it is, the more we favour the developer. In a situation where the nervous planning authority errs on the side of caution and, therefore, lack of ambition when seeking planning gain, the more the developer manages to gain advantage for itself. Given that there is no guarantee that any value from the levy will accrue to the community where the development will take place, the likelihood of communities opposing developments will increase, therefore making them less likely to go through.

On top of all of that, as has already been mentioned, a fundamental flaw of using GDV as the measure for what the levy should be in practice is that we are basically putting all the risk on the community and not the developer. That is obvious. It is probably why developers have been relatively silent over this—because they see that it is potentially in their favour. It is also why housing associations and others, including housing charities, have been very concerned—because they worry that is a slow, downward slope towards reduced delivery of affordable housing.

It may well be that, when the detail is forthcoming—and if not now, why not now?—we may be pleasantly surprised and, incrementally, we might find that the infrastructure levy, in detail, after pilots, does add value. However, the concern that many of us have is that this is untested and replacing a scheme which, while imperfect, does deliver some affordable housing.

The problem with section 106 and the infrastructure levy is that it is an entirely incremental, weak and fairly tepid approach to a massive problem. Our way of developing affordable housing is just to get the odd scattering of homes per development, if we are lucky and can find a system that will make a planning gain and gain something of the land value uplift that a developer has from the project. The reality, however, is that communities such as mine—I will speak specifically to the issues in Cumbria—have high house prices, an evaporated, almost non-existent long-term private rented market, and vast numbers of second homes, meaning properties not lived in all year around.

Cumbria is a nice part of the world—absolutely beautiful. Eden and the south lakes is a very beautiful place. If someone builds a five-bedroom house there, it will fly off the shelf within hours. There is no problem with building homes for demand. The Minister and the Government must understand—and I hope the new Prime Minister understands—that what is desperately required when it comes to housing policy is that, for a period at least, we stop building for demand and start building for need. The reality is that, as things stand, the infrastructure levy and section 106 only skim the top of the problem. That demonstrates a complete lack of ambition behind the concept of levelling up. We are not levelling up; we are getting some crumbs from the table. It is just a different way of getting some crumbs from the table, not actually producing any real bread.

[Mr Jones]

Clause 113 introduces the new infrastructure levy. It is well known that new development creates demand for public services and infrastructure. Local authorities should secure contributions from developers to share in the land value uplift that comes from granting planning permission and use that value to deliver infrastructure and affordable housing for communities.

One of the main criticisms of new developments in local communities, however, is that they are not accompanied by the infrastructure that communities often need. The current system of developer contributions is uncertain and fragmented. Local planning authorities can negotiate section 106 agreements to secure affordable housing and contributions to infrastructure, and can choose to charge the community infrastructure levy to collect money from developers for infrastructure that is not affordable housing.

The protracted negotiation of a section 106 agreement delays the granting of planning permissions. Agreements can be renegotiated as the development progresses—a point that has been raised by several Opposition Members. Both negotiation and renegotiation generate uncertainty for local communities over how much affordable housing will be available and what infrastructure will be delivered by a development. On the other hand, the community infrastructure levy is a non-negotiable charge, and it is optional as to whether local planning authorities charge it. Only half of local planning authorities currently charge the CIL. Of those that do not, more than a third believe that introducing it will increase their ability to capture land value. Common reasons for not implementing CIL include concerns that the extra charge will reduce the amount of affordable housing delivered because, unlike the levy, CIL cannot be used for affordable housing.

Also, CIL and section 106 do not capture all of the increases in value that occur as a result of increases in house prices. Average house prices in England have increased by nearly 22% over the past two years. CIL rates do not increase to capture more of that uplift, as they are based on the value when planning permission was granted. Although some section 106 agreements may capture an element of the uplift, many will not. As a result, local authorities are not capturing as much value for key services as they could.

Clause 113 provides for the introduction of a single charge that will largely replace the existing system of developer contributions. The infrastructure levy is an opportunity to deliver better outcomes for communities and to address shortcomings in the system that incremental change is unlikely to deliver. The levy will aim to capture land value uplift at a higher level than the current developer contribution regime by charging rates based on the final value of developments. I hear what the hon. Member for Greenwich and Woolwich has said about that, and the concerns he has raised. To clarify that point, the gross development value can be captured because we know what the sale price of that property is when it is sold, just as we do when stamp duty land tax is charged.