HL Deb 26 April 2004 vol 660 cc585-95

21 Clause 22, page 13, line 15, leave out "(other than a development plan document)"

The Commons disagree to this amendment for the following reason

21A Because it is not consistent with measures to speed up the plan making process.

Lord Rooker

My Lords, I beg to move that the House do not insist on its Amendment No. 21 to which the Commons have disagreed for their reason numbered 21A.

The Government have been clear from the outset that one of the key elements of our planning reforms is for the recommendations of the independent inspector, following an independent examination, to be the final stage in the preparation of a development plan document. However, the amendments seek to retain the status quo, which is totally unacceptable.

The government offices have told us of at least 18 development plans where progress has been or is being held up because the procedures have become long winded and mired in controversy. In some cases the local authorities have not wanted to implement the independent inspector's recommendations, which have been made as a result of careful examination and consideration of all the material available at a public inquiry, including the objections. In others, initial delays lead to other factors having to be considered as circumstances change and new national and regional policy needs to be incorporated. The introduction of binding reports could save several years, which would be good for everyone.

As regards the 18 cases—I have raised the point so I have to give a partial apology—it would not be appropriate for me to name any of the locations. Some of those could appear on the Deputy Prime Minister's desk and if any related to areas I deal with, that would be prejudging the case, and we might need to intervene in any subsequent decisions that rest upon the development plan. We cannot fetter discretion.

The binding reports of independent inspectors after independent examination in public of the issues, including those who object, have other benefits if they are binding on the parties concerned. They are a major incentive for tackling issues, proper debate and decisions early in the process. They ensure that investment by the community and others in making representations on a development plan document and participating in the independent examination will always be worth while. People will think that it is worth while. They will get the report from the independent inspector and something will happen whereas, as I have said, in some cases, years later nothing has happened. To have a report from an independent inspector following independent examination underpins sound plans.

The amendments, which I ask the House not to accept, would squander those benefits. The main argument put forward is that the inspector might make a mistake. Because of that risk it is argued that local authorities must have the opportunity to do something different from that which the inspector recommends. I developed this point at previous stages but obviously inadequately. We see the safeguards we are building into the system as much more sensible and a balanced response to the difficulty.

The local planning authority already sees the inspector's draft report and can point out factual errors. So, there cannot really be any excuse after the report is published for stating that it contains errors because the local authority will see the report and can point out factual errors. We propose that those arrangements should continue. There is the safeguard of the Secretary of State's powers in Clause 20 to direct changes or call in a development plan document.

I accept that the vast majority of inspector's recommendations are accepted by local planning authorities. We are not making a general sweeping case. The introduction of binding reports is a sensible measure, which will bite on those hard cases—for instance, the 18 I have mentioned, although not by locality—where the communities are denied the up-to-date plans they and their areas need.

There are a couple of points worth raising. If the authority refuses to adopt the development plan in line with the inspector's recommendations—assuming that the Bill is acceptable and as the Government would like it—any such authority in that case would be doing a grave disservice to its commmunity in denying it a sound, up-to-date development plan document having had the independent inspector's report and after examination. I accept, however, that there is a final safeguard, which is the Secretary of State's powers in Clause 20. We do not want to use those powers. They are there purely as a long stop. As I have repeatedly said, we do not want to run the system.

One other point is worth raising. It was raised at other stages of the Bill. An inspector taking evidence in public and producing a report might make changes to a development plan document. In other words, some issue might come into his mind when he was having a think about the matter one Sunday afternoon and drafting the report. I want to make it absolutely clear. The inspector will be able to recommend a substantive change to a development plan document only if people have had the opportunity to make representations on it, or if it has been considered at an examination and the representations or debate support that change. There is no possibility of the inspector slipping changes into a document on a hunch or a whim that have not been discussed at the examination.

The inspector may consider that the development plan document does not meet the test of soundness— it is useful to put this on the record—if the plan does not generally conform to national and/or regional policy. That is fair enough; I think that is what he would be there for. Also, if the plan is not supported by a sound evidence base. That is what an independent view with independent evidence is designed to tease out. In addition, if the local planning authority has not complied with its own statement of community involvement—it is fairly crucial that we have somebody who is independent to check on that—or if the local planning authority has not undertaken a suitable sustainability appraisal and strategic environmental assessment.

There are those issues. That is why we think that, as I have said, the vast majority of local councils accept an inspector's recommendations. However, we have cases around the country where they have been frustrated for years simply because local authorities have not wanted to implement the inspector's recommendations. That is incredibly frustrating. It adds to the vast uncertainty. It is frustrating for those people who want to put their money into development proposals—for example, by way of investment—let alone for those people who have put in their own personal assets, in the sense of their time, energy and effort, in giving evidence at the inquiry to see that all go to waste. The whole system is brought into disrepute if an independent inspector's report, having been taken through an independent inquiry, is simply ignored. It is just not good enough; hence the Bill's attempt to bring about the situation of binding inspectors reports. I beg to move.

Moved, That the House do not insist on its Amendment No. 21 to which the Commons have disagreed for their reason numbered 21A.—(Lord Rooker.)

Baroness Hamwee

rose to move Amendment No. 21B, as an amendment to the Motion that this House do not insist on its Amendment No. 21 to which the Commons have disagreed for their reason numbered 21A, leave out "not".

The noble Baroness said: My Lords, the provision is for all local development documents, including the development plan documents, to be dealt with in the same way as in the original bill, providing that the development plan document cannot be adopted other than in accordance with the inspector's recommendations.

The Commons reason for disagreeing with our amendment is that it would not be consistent with measures to speed up the plan-making process. The Minister has been very forceful on that point—far more forceful, if I may say so, than when we originally debated whether the inspector's report should be binding. At that time we were talking about periods of around six months; now, it is several years.

Ministers have talked about the opportunities open to local authorities if the inspector gets it wrong—recourse to the courts, reconvening the examination in public, preparing a new document and even requiring the intervention of the Secretary of State. It seems to me that any of those courses might take far longer than the six months, which is what we were told was in issue.

I understand the arguments that have been made during the discussion of this issue about the front-loading of community involvement, and that "soundness" as a criterion covers everything that the local authority would itself want to have regard to. That is so. Presumably, under the proposed new system, if a developer appeals against planning refusal on a matter on which the local planning authority takes a different view from the inspector, the local planning authority's views would not even amount to a material consideration. At the moment if there is a difference that provision comes into play. I do not know whether the Minister will be able to confirm or deny that.

What it comes down to is that the Government would prefer to trust an inspector—I shall not quarrel over his independent status, although I do wonder whether it is necessary to have an independent person to check whether a local authority is complying with its own policy, which is what has just been suggested—rather than an elected local authority. Even having listened to the argument made again today, I do not understand that. In a matter of judgment, is it not right that the democratically elected body not an appointee—an independent person but an appointee—should make the judgment?

It may be that the Government do not want to say that they do not trust local authorities not to obstruct house-building plans. We have heard the Minister describe the problems of nimbyism—I apologise to him for using an acronym because we have tried to avoid them—at local level, but the Government have not actually said that. If the inspector has done the job thoroughly, the local planning authority is likely only very rarely to object to the recommendations. At the price of six months, or perhaps just occasionally a lot longer—if it is a lot longer the position must really be very complicated and I would suggest that there must be many issues to sort out—is it not worth not just getting the development plan right but being able, by putting the weight of the local authority behind it, to show that it is right and widely accepted?

I have not yet been struck by lightning for suggesting that six months is not terribly long in the matter. The older I get—and we have all got a lot older during the course of the Bill—the shorter the period I feel that it is. Amendment No. 21D standing in the name of the noble Baroness, Lady Hanham, proposes that the authority cannot adopt a development plan unless it is certified as being in general conformity with the regional spatial strategy or spatial development strategy in London. As I said to her before we came into the Chamber, I am not entirely sure whether that is very cunning or whether it makes no difference in that general conformity would be required in any event because of that being about a part of the plan being sound—to use the technical term. I had hoped that we might hear whether the Government have comments on the amendment or indeed might accept it. We have not heard that, but I look forward to hearing the noble Baroness's arguments. I beg to move.

Moved, as an amendment to the Motion that this House do not insist on its Amendment No. 21 to which the Commons have disagreed for their reason numbered 21A, leave out "not".—(Baroness Hamwee.)

4.45 p.m.

Baroness Hanham

My Lords, I speak to Amendment No. 21C. It is undoubtedly a matter of great cunning, to follow up on the comments of the noble Baroness, Lady Hamwee. At Third Reading we debated what we perceived to be unsatisfactory proposals in the Bill that recommendations made by an examiner or an inspector of a development plan documents should be binding on the planning authority. The issue was bound to reappear for a further run if the Government were not prepared to agree to or to look at amendments.

I am disturbed to know that it is because of 18 recalcitrant local planning authorities that this clause is deemed to be germane. I am not sure how many planning authorities there are in this country. There must be in the region of 450 to 500 local authorities, so 18 is a remarkably small percentage to be dictating legislation.

The noble Baroness, Lady Hamwee, laid out the concerns that we expressed together last time, when she supported an amendment tabled in my name. She explained our difficulties with the clause.

We must emphasise that we do not stand here pulling all these amendments out of the top of our heads—or at least, not usually. They are normally supported by groups of people relevant to the legislation. The Local Government Association is certainly concerned about the matter, as are a number of other bodies relevant to planning.

Perhaps the Government do not understand—it may be more accurate to say that they are not prepared to understand▀×the importance that local government places on a planning authority having the final say on the contents of its own development plan document. That will have been prepared following detailed consultation, as the Minister rightly said, from the outset and representations. Although it must receive the inspector's scrutiny, it must be right that democratic autonomy should then be paramount concerning what is finally adopted as the plan.

Accountability for the implementation of the documents lies with the democratically elected representatives in local government. We can blur that as we like with regional planning bodies made up of elected and non-elected people and with anyone else with a role to play in the preparation of the document, but, at the end of the day, the system of government in this country is still that the local level is democratically elected representation. That is where final decisions on the content of the development plan should lie.

We must recognise, not least because we have had a battery of discussions on the matter during the course of the Bill, that the documents must be in general conformity—and we have heard the Government's interpretation of what "general conformity" as opposed to "conformity" means—with the regional spatial strategy. That is where we believe that there is room for a compromise over that whole delicate issue. Our amendments would require that the planning authority did not adopt the development plan document unless the inspector was satisfied that it was in general conformity with the regional spatial strategy. If it was not, the planning authority would have to comply with the regional spatial strategy.

The Minister may say that that is evident in any event in Clause 23(1). However, to rely on Clause 23(1) to ensure that general conformity would mean that the parties end up in the High Court, which may be reluctant to interfere. So that may not be an ideal solution and the matter may be better dealt with by the amendment. General conformity with the regional spatial strategy would then be the only part of the development plan document over which the inspector had binding control by his comments. The local authority could then make the final decision on the local development documents, which will have caused the most interest and concern to the local population, following the inspector's comments. I hear what the Minister says about the areas in which he would he able to take up those comments.

Whether or not my amendment or that of the noble Baroness is accepted, it would be incumbent on the Government to make provision in PPS12 for the inspector's report to be published in draft form, so that representations can be made on it. Again, that is a real problem. At present, a unitary development plan is open to the inspector's recommendations and an authority then responds to them. That does not resolve the problem that I am discussing because, at the end of the day, the local authority will want to make a decision, but it would at least be fair to ensure that there was some comeback.

The Government's concern with speeding up the planning process could not be seriously hampered if my amendment was accepted. Indeed, we would argue that it would not be hampered if the previous amendment spoken to by the noble Baroness, Lady Hamwee, were agreed to. But speed is not everything in planning. Indeed, in some cases it is positively harmful. To end up with local development plans with which the local authority did not feel comfortable would fall into the category of harm.

The development plan documents need to be acceptable to the community to which they refer. The amendment leaves control in the right place and for the right reasons.

Lord Rooker

My Lords, I am grateful for the way in which the noble Baronesses put their points. I cannot give all the examples—especially the worst cases, because they are probably the ones that will hit the desk of the Secretary of State—but I have four or five examples to put flesh on my point about delay.

I want to make the position absolutely clear because, if one listened only to our debate today, one would think that the independent inspector is doing the local authority's job for it. He is not. The independent inspector is not there to do the job of local government; local government has its task to do.

The noble Baroness, Lady Hamwee, said that local authorities should make the judgments, but it is local authorities that are making judgments about the policy proposals that go into the development plan, not the independent inspector. Local authorities then simply submit them for examination. The inspector will make a judgment on that plan only if the document is found to be unsound in some way. His judgment will be about what changes are needed to make the document sound. In many cases, he or she will refer back to the local authority or reconvene the examination. Some of the examples that I shall give in a moment will show that that is the case. The inspector is not there to perform the judgment about what goes in the plan to start with; that is up to the local authority.

The noble Baroness, Lady Hanham, said that local authorities must have the final say, but it is quite clear that the previous administration was prepared to contemplate that not happening. The power of the Secretary of State to intervene is in the Town and Country Planning Act 1990. So governments of both parties have thought that there needs to be a reserve power concerning the final say; the issue is not new with this Government.

I shall give a few examples of where there has been delay or prevarication—it depends on which side of the fence you are on as to what language you use. The first is Bromsgrove. That is an example of a long delay on a local plan where the authority took a long time to make difficult decisions, yet ended up with an outcome not very different from that which the inspector had first recommended. The inspector recommended in early 1997 that 230 hectares of land be safeguarded as areas of development restraint and the green belt boundaries being set properly for the first time to reflect that.

Bromsgrove chose not to accept that recommendation and did nothing for the next five years. It eventually adopted the plan in 2004 with 158 hectares of development restraint land. If it had accepted the inspector's line in 1997, the plan would have been adopted a long time ago and review would already be complete, giving up-to-date policies. So there is a case of a long delay.

In the case of Castle Morpeth, the public inquiry on the local plan was held in the summer of 1998 and the inspector's report was published in spring 1999. The inspector's report recommended rejection of a number of the housing policies relating to Morpeth, which was the main settlement in the district. The local authority was uncertain how to respond to the inspector's report and, for the next two years and more, planning policies were determined by a series of Section 78 appeal decisions. Proposed modifications were eventually published in July 2001; further modifications were published in April 2002; and the plan was finally adopted in March 2003. That is a fairly long delay.

The example of Chester-le-Street is worth putting on the record. The inquiry commenced in September 1999, and the inspector's report was published in December 2000. The report did not recommend any difficult or controversial change to the plan. Despite that, it took the local planning authority 20 months to prepare proposed modifications, which were eventually published in July 2002. A further round of modifications was published in March 2003, and the council finally adopted the plan in October 2003.

In Redbridge, a plan was deposited in mid-1999, and the inspector reported in October 2001. The inspector disagreed with the council's residential car-parking standard. The council did not want to set a maximum car-parking allowance for residential development as advocated in national planning policy. The inspector's report recommended that a maximum parking standard be added to the plan. The council did not accept the recommendation, and in its proposed modifications, which were not published until June 2002, sought to retain the policy unmodified.

The Secretary of State objected at that point to the proposed modifications, on the basis of Planning Policy Guidance 3. After three sets of proposed modifications, the council accepted the argument and made the necessary changes. That took considerable time, and the plan was not finally adopted until November 2003. All that added some 15 months to the time taken to prepare the plan.

I have other examples, but I shall not go over them, as the point has been made. There were no major, earth-shattering changes in any of the examples given, yet a good deal of time was lost. The average modification stage following an inspector's report takes six months to a year. The cases that I mentioned involved far longer delays.

On Amendments Nos. 21C and 21D, we are surprised that the noble Baroness proposes a special provision on general conformity with the regional spatial strategy, as the Bench opposite has been opposed to the principle throughout. It now seems to have in mind that the inspector's report should be binding on matters of general conformity. We are not sure whether the amendment would work, given the discretion that the authorities would have under its first limb—I do not claim that those are technical grounds. For example, the inspector may recommend changes needed for general conformity, and the authority may include those changes in its development plan document, but it may at the same time make other changes that bring the development plan document out of general conformity in other ways. I remind the House that the inspector will recommend changes only where necessary because the evidence shows that a development plan document is not sound. The changes that he or she recommends will be only those needed to make the document sound. It is well worth repeating that.

Under Amendment No. 21D, an authority could drop recommendations needed because the document failed one of the other important tests for soundness. The document may conflict with national planning policy or be unrealistic and impossible to implement. The proposal, therefore, is neither acceptable nor sensible. We do not think that we should single out one element, as the amendment would, on which the inspector's recommendations go ahead while ignoring other matters. We disagree that any community should face the uncertainty or delay about the plan for their area that some have experienced under the current arrangements— I have given examples. I am not making a great claim about the examples; they are not earth-shattering. We have several others, but I cannot bring them to the House, for the reasons that I have given.

Baroness Hamwee

My Lords, the noble Baroness, Lady Hanham, said that speed was not everything and that it could be harmful; I wholly agree.

We have heard examples. My noble friend Lady Maddock has more than a little knowledge of Castle Morpeth, one of the authorities referred to. I understand that the new administration after elections, and after the events described followed by elections, got to grips with the position. Is not that the way for things to be changed?

The Government have blanket arrangements for assessing and dealing with local authorities through the CPA process, yet we seem to be hearing that particular arrangements should be imposed on 450 minus 18, or whatever it may be, because of the bad examples. Hard cases make had law; we should not make bad law. I should like to test the opinion of the House.

5.6 p.m.

On Question, Whether the said amendment (No. 21B) shall be agreed to?

Their Lordships divided: Contents, 92; Not-Contents, 125.

Division No. 4
Addington, L. [Teller] Beaumont of Whitley, L.
Allenby of Megiddo, V. Bowness, L.
Ampthill, L. Brougham and Vaux, L.
Anelay of St Johns. B. Carlisle of Bucklow. L.
Astor of Hever, L. Clement-Jones, L.
Avebury. L. Colwyn, L.
Barker, B. Cope of Berkeley, L.

5.15 p.m.

[Amendment No. 21 C not moved.]