TOWN AND COUNTRY PLANNING

HC Deb 20 February 1992 vol 204 cc553-60

Mr. Moate

I beg to move amendment No. 29, in page 9, leave out lines 29 to 33 and insert— '(2A) Subject to subsections (2B) and (2C), planning permission shall he deemed to be granted for development for which provision is made by an order under section 1 or 3 of the Transport and Works Act 1992. (2B) Development is not permitted by subsection (2A) if it consists of or includes—

1. (a) the erection, construction, alteration or extension of any building, bridge, aquaduct, pier or dam, or
2. (b) the formation, laying out or alteration of a means of access to any highway used by vehicular traffic,

unless the prior approval of the detailed plans and specifications of the appropriate authority is first obtained. (2C) The prior approval referred to in subsection (2B) is not to be refused by the appropriate authority nor are conditions to be imposed unless they are satisfied that—

1. (a) the development (other than the provision of or works carried out to a dam) ought to be and could reasonably to be carried out elsewhere on the land, or
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2. (b) the design or external appearance of any building, bridge, aquaduct, pier or dam would injure the amenity of the neighbourhood and is reasonably capable of modification to avoid such injury.

(2D) In subsections (2B) and (2C) "appropriate authority" means—

1. (a) in Greater London or a metropolitan county, the local planning authority,
2. (b) in a National Park, outside a metropolitan county, the county planning authority, and
3. (c) in any other case, the district planning authority.'.

Mr. Deputy Speaker

With this, it will be convenient to discuss amendment No. 69, in page 9, line 33, at end insert— '(1A) Part 11 of Schedule 2 to the Town and Country Planning General Development Order 1988 shall apply to an order made under section 1 above as if it were an order made under section 14 or 16 of the Harbours Act 1964.'.

Mr. Moate

The amendment provides that, once an order under clause I or clause 3 is made, the development for which the order provides would have the benefit of deemed planning permission in the same way as is the case for development authorised by a private Bill at the present time or by a harbour revision order. The provision made by the amendment is in exactly the same terms as part If of the 1988 order. Therefore, it provides exactly the same planning safeguards as those that currently apply in the case of development authorised by private Bills or harbour revision orders.

This question was considered in some respects in Committee and has been the subject of subsequent representations and discussions with the Minister. I put on record my appreciation of the way in which the Minister received representations and has endeavoured to meet these anxieties. However, I am still extremely worried, as I think others are, about the way that the Bill might work in practice with regard to a number of orders. Efforts have been made to satisfy those concerned that there is no cause for anxiety, but people are still very anxious because they believe that the Bill will not work in the way that it is intended to work.

My hon. Friend knows that I regard the present private Bill procedure as totally unsatisfactory in many respects, particularly for railway matters. The new procedure will be very much better. However, at the moment, the private Bill procedure means that, once all the parliamentary hurdles have been overcome and a Bill becomes an Act, there is certainty about planning permission. Our concern is that under the new proposals the same certainty will not apply once an order has been made.

I do not believe for one moment that the Minister, or anybody else, wants to cause further procedural delays, but my worry is that, as the Bill stands, it may be possible for an order to be made by the Secretary of State and for there then to be another planning procedure, another inquiry, which could cause considerable delay. The very fear of that second bite at the cherry could worry promoters and cause great concern and indecision about whether to proceed with a certain project.

As it stands, the Bill empowers the Secretary of State only to direct that planning permission shall be deemed to have been granted. However, the terms on which planning permission is granted are left entirely to the Secretary of State, in contrast to the present planning rules.

I understand that the intention to leave it in this optional form is not designed to make life difficult for British Rail or any other promoter: it is intended to be helpful. None the less, the fact remains that the Secretary of State has the option, if he so wishes, not to grant full planning permission. If we assume that normal planning permission would be granted at the same time as the order is made, that could happen only if—this is another anxiety —the promoters had submitted all the detailed design work so that the whole matter could be considered at the same time.

That is a risky process. If the very principle is in doubt, the promoter is risking enormous investment in planning all the gradients, all the work on the bridges, the design work and the like for a scheme about which there is some element of doubt.

We are then told that that is not necessarily what will happen. The promoters need only seek outline planning permission for the details to be resolved thereafter, perhaps with the local planning authority. That presents a problem because, on a controversial scheme, the local planning authority could make unreasonable demands and, in effect, call for another planning process to deal with all the details. We would then have had one order-making procedure, perhaps involving a public inquiry, determined by the Secretary of State, followed by another planning and consideration process.

Nobody wants the procedure to be drawn out. We want it to be streamlined and efficient. No one is suggesting that the public and the planning authorities should not have full input into the proceedings. However, it is paramount that it is wrapped up in one procedure. My concern is that, as the Bill is drafted, it might now always work that way.

I am satisfied that it is the intention of my hon. Friend the Minister and the planning authorities that it should be done in one procedure, but we cannot be certain that the statute would always be followed in that way. It is reasonable to place in the legislation the certainty that is currently in the private Bill procedure. All one is asking is that planning permission shall be deemed granted once an order has been approved. All that means is that, before making an order, the Secretary of State must go through all planning considerations and take into account all the representations and the detailed and outlined work. British Rail is the body most concerned about this, but it could be any body. Any promoters need to know that they can go ahead with certainty.

I hope that my hon. Friend can meet those anxieties and accept my amendment or that tabled by the hon. Member for West Bromwich, East (Mr. Snape), which has the same result.

Mr. Snape: At the risk of extending even further this mutual admiration society, I must congratulate the hon. Member for Faversham (Mr. Moate) on the content of his amendment and the way in which it was moved. I hope that I do not depart too much from the attitude of concensus if I say that amendment No. 69 is even better than his amendment, but I think that his is pretty good. I hope that the Minister can accept the principle behind both amendments and the chapter and verse of one.

Clause 16(1) as drafted would empower the Secretary of State on making an order under clause 1 relating to railway works and so on to direct that planning permission be granted subject to any conditions that he may specify. That is different from the position that obtains now under the private Bill procedure, which we are supposed to be reforming or improving, or under a harbour revision order.

At present, if Parliament agrees a scheme or a harbour order is approved, there is deemed planning permission for the scheme, subject to reservation of detailed matters under part II of schedule 2 of the Town and Country Planning (General Development) Order 1988. Reserved matters to be dealt with by the local planning authority would consist of the detailed designs of erections or extensions of buildings, bridges or the formation or alteration of a means of access by any highway used by vehicular traffic. The local planning authority could not refuse such detailed matters unless it was satisfied that the development could be carried out elsewhere on the land authorised for the works or that the design or external appearance of the buildings would injure the amenity of the neighbourhood and could be reasonably modified.

At present, the promoter of a scheme will not have to consider the planning side as a separate and distinct application from the overall consideration of the merits of the scheme. Planning issues such as environmental assessment and the scheme's relationship to local authorities' local plans and structure plans are all to be considered. Essentially, an overview is taken of the total project.

9.15 pm

In Committee, the Minister stated in column 229 of the report of the proceedings that planning merit should be considered on a case-by-case basis, which would enable the necessary planning conditions attached to the order to be tailored to suit a particular case and he said that matters such as the design details of a building or bridge could be approved by the Secretary of State. Furthermore, he stated that, in some cases, planning permission would not be required or might already have been granted.

Under the draft rules for the application for orders, there will have to be a prior notification of any scheme to the local authority and a certificate from the local authority about the status of the scheme in relation to the structure or local plan. All the various planning issues will be considered at a public inquiry, where one is held, as opposed to being considered under the private Bill procedure as at present.

However, there seems to be no justification from the Government of why there has to be an added complication in having a specific planning application before the Secretary of State. All the usual planning material will come before the inspector at the inquiry and the promoter will have provided sufficient detail to prepare the necessary plans and sections and for a clear description of the works. However, he will not necessarily have the design of buildings completed to the finest degree. Although he may have a pretty clear idea of the overall scheme, he may wish to hold back on further commitments of staff resources on a very detailed design until he or she has received the overall approval—that is, precise formation of station shelters or station buildings, if we are to use British Rail as an example.

If planning permission has already been granted by a local planning authority or it is not required, there is no particular planning issue for the Secretary of State to consider, and in such a case, the deemed planning permission provision need not apply. Where required, however, the present arrangements should apply.

In essence, while the same substantive issues are to be considered under the present and proposed procedure, the new procedure creates an unnecessary further application and complication. It gives complete control to the Secretary of State even on the detailed matters which are much more likely to be of great interest to, and, indeed, considered with greater awareness by, the local planning authority. In short, the Minister has not made a clear case for changing the present arrangements or planning procedures which have worked satisfactorily and are extremely clear and simple.

In tabling amendment No. 29, the hon. Member for Faversham sought the reintroduction of the present planning arrangement, but our amendment is framed in such a way that it equates with what the Government even now still propose for harbour orders—a deemed permission procedure. It is illogical, to say the least, that the deemed permission can apply only to harbour works, not railway works.

Again, I return to the central point of the Bill. It is supposed to simplify the procedure. If amendment No. 29 —or amendment No. 69—is accepted, it will do so. If not, it will further and unnecessarily complicate the procedure.

Mr. Cryer

I support my hon. Friend the Member for West Bromwich, East (Mr. Snape) and the hon. Member for Faversham (Mr. Moate). Amendment No. 29 is similar to amendment No. 69. It provides for safeguards for major works so that local authorities have some planning consent, but allows the planning procedure to be integrated into the making of the orders. That is very important because otherwise it could lead to British Rail, for example, being involved in significant costs in the preparation of designs and plans when development might be delayed or might come to nought.

Amendment No. 29 deals with major works such as the erection, construction, alteration or extension of any building, bridge, aqueduct, pier or dam and various means of access to highways which should be the prerogative of the local authority. This is not an erosion of local authority planning rights—it ensures merely that the planning procedure is not dealt with as an entirely separate matter so that expenditure is not made needlessly by a public body which is already very short of money for any new development. Therefore, I hope that the Minister will be able to accept either amendment, as the issue has cross-party support.

Mr. McLoughlin

I have listened to my hon. Friend the Member for Faversham (Mr. Moate) and to the lion. Members for Bradford, South (Mr. Cryer) and for West Bromwich, East (Mr. Snape). As my hon. Friend said, I also met him a short time ago to discuss the issue behind the amendments. I shall try to explain why I do not support the idea of a General Development Order approach. I do not agree that a convincing case has been made for amending the Bill. We considered adopting the General Development Order approach, but concluded that section 90 of the Town and Country Planning Act 1990 offered the most flexibility both to applicants and to the Secretary of State in determining orders. I shall explain why.

First, promoters will be able, if they wish, to make separate applications for planning approval to the local planning authority. Such a facility was proposed in the Government's consultation paper, "Private Bills and New Procedures", on the basis that applicants should be allowed the option of applying separately for planning permission. For example, the applicant may already have obtained planning consent, or may have been advised by the local planning authority that planning permission was not required when applying for a works order. That frequently occurs on preserved railway schemes which are subject to light railway orders.

The GDO approach, involving automatic planning permission to be deemed to be granted with the order, would encourage objectors to raise planning issues at the local inquiry, which under the section 90 approach the inspector would be able to disallow. The amendment could therefore seriously prejudice the interests of certain applicants, and result in two planning determinations on the same development.

Secondly, the procedure enables designs and specifications to be prepared in sufficient detail for planning consent to be deemed to be granted without the need for an application to obtain separate planning permission from the local planning authority. Perhaps, on very large schemes, the promoter would not want to risk heavy detailed design costs until an order had been made, but on smaller projects, where the promoter could be reasonably confident that the order would be authorised without significant amendment, it might be worth while for detailed designs to be submitted with the draft order, as that would save the time that would be spent in going separately to the local planning authority. The decision, however, would rest entirely with the applicant. If he wanted to adopt an arrangement on design work similar to that provided for in the General Development Order, he would be able to do so.

Finally, the Secretary of State has greater freedom on the conditions that he wishes to attach to a particular order. That might help the applicant, without prejudicing the position of the objector. For example, the Secretary of State might restrict the categories of construction works which need to be subject to separate planning consent to a shorter list than that contained in the GDO, or he might impose tougher conditions on the grounds on which the local planning authority might object to the detailed designs. Of course, much would depend on the amount of information provided about the scheme with the draft order. Consequently, the question whether outline or full planning permission was deemed to be granted would have to be considered case by case. But as the applicant would be in the driving seat concerning the level of detailed designs that he provided with an order, I cannot see how he could be prejudiced by the approach we have adopted.

Mr. Moate

I am sorry to interrupt my hon. Friend, understand what he is saying now, but he said earlier that on a larger scheme an applicant—a promoter—might wish simply to lodge outline information, because he would not wish to go to the expense of providing extensive design work until he was more sure that the scheme would be approved. It is important to establish whether my hon. Friend accepts that, in those circumstances, there would have to be a subsequent planning procedure, which would incur further delay and costs.

Mr. McLoughlin

I intend to deal with that point, and I hope that my hon. Friend will be happy—or, if not happy, at least content—with my answer.

It has also been suggested that, as the deemed planning permission would not be automatic, and the power in clause 16 is discretionary, the applicant could not be certain that the permission would be granted with the order. The power is discretionary rather than mandatory because, as I have said, some applications will not require planning permission. Although that means that the Secretary of State could, in theory, withhold or delay deemed planning consent, one has to ask why he would want to do so.

The planning merits are likely to be such an important and integral aspect of the approval process where development is involved that it is scarcely conceivable that the Secretary of State would approve an order without at the same time granting planning permission. The promoter would be bound to question the decision of the Secretary of State, and the Secretary of State would have to provide reasons. Such a decision would probably be unlawful, because it would be unreasonable, and no reasonable Secretary of State would have made it. We come back again to the position of a possible judicial review.

Amendment No. 69 would tie the orders to harbour orders. As we shall see when we come to amendment No. 123, harbour provision orders sometimes disapply the GDO because it is too inflexible. It enables them to deal with planning permissions more sensitively. I suspect that, if we were beginning again, we might use the provisions in clause 16 for harbours too.

For those who remain sceptical, I can give an unqualified assurance that, on all applications in which planning permission is sought as part of an order, the Secretary of State would always make a determination on the works order and deemed planning permission at the same time.

My hon. Friend the Member for Faversham suggested that the promoters of orders, such as British Rail, would not want to commit expensive design resources before the order was determined, and so would only be able to obtain outline planning permission. That would in turn leave them at the mercy of local planning authorities. British Rail, for example, would have to go to such an authority to obtain detailed planning permission. That may be true, but the same applies under the General Development Order. The local authority could refuse planning permission to the works, such as bridges, excluded from the permitted development, or could impose conditions on the means of access to the site.

It is a moot point whether certain other conditions, such as the imposition of working hours and noise insulation measures, which are not imposed under the GDO, should apply to railway developments. Those matters would almost certainly be raised at a local inquiry, and the Secretary of State would want to ensure that they were dealt with properly before approving the order. In any event, not all promoters would want to leave the detailed design for approval to the local authority. Some will see the advantage of going for detailed planning approval as part of the order and thus avoiding the need to apply separately to the local authority.

Our approach gives flexibility which the GDO does not. I hope that the reassurances that I have given my hon. Friend the Member for Faversham and Opposition Members show that our approach is the most flexible and does not disadvantage either promoters or objectors. I hope that my hon. Friend will not press the amendment.

Mr. Moate

By leave of the House, I shall reply to the debate.

Some of us find ourselves in some difficulty. The Minister's arguments are not unfamiliar and I am sure that they are backed by considerable expertise and by considerable authority. However, there are authoritative and expert views—I know that from many years of experience, especially of British Rail—which are sceptical about whether matters will work as my hon. Friend has said. We do not pretend to be planning lawyers and it is especially difficult to make precise judgments about what my hon. Friend has said. I hope that he understands that there is genuine concern that matters will not necessarily work in the way that he has described.

I am not sure what I am asking my hon. Friend to do. Without disrespect to the eminent consultant who has, no doubt, advised him so far, will my hon. Friend take a second opinion? That is not an unreasonable thing to do, because there is genuine concern. In some ways, my hon. Friend's words on the record are helpful. He said that the Secretary of State would "always" make a determination. As a statement on the record, that is helpful, but it does not bind my hon. Friend's successors and it is not in the statute. Sometimes the promoters could be at the mercy of a local authority after they have gone through all the previous procedures, so there is some alarm.

I do not feel that we can press the matter further at present. It is right that we should have registered concern and I urge my hon. Friend to get others to have another look at the issue to see whether there is some way in which to import certainty into the procedures so that we can be reasonably certain that at all times there is one procedure, not two, and that promoters are able to put forward a proposal with the certainty that there will not be undue expense.

That would be in the interests, especially for railways, of speedy construction and sensible streamlined planning procedures, coupled with fairer opportunities for public representation. I hope that my hon. Friend will look again at the proposal before the Bill goes to the other place. If he will do that, I am happy not to press the amendment.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.