HL Deb 26 April 2004 vol 660 cc606-14

45 Insert the following new Clause—

"Duration of planning permission and consent

  1. (1) Section 91 of the principal Act (limit on duration of planning permission) is amended by inserting at the end of subsection (2) the words "and any other matters which the authority consider relevant".
  2. (2) Section 18 of the listed buildings Act (limit of duration of consent) is amended by inserting at the end of subsection (1)(b) the words "and any other matters which the authority consider relevant"."

The Commons disagree to this amendment for the following reason —

45A Because it is not necessary to make the provision to which the Lords amendment relates.

Lord Rooker

My Lords, I beg to move that the House do not insist on its Amendment No. 45, to which the Commons have disagreed for their reason numbered 45A. In moving the Motion, I shall also speak to Amendments Nos. 46 and 47.

I recall that at earlier stages of the Bill's passage—I am not sure whether it was Report or Second Reading—the noble Baroness, Lady Hamwee, moved Amendment No. 45 to address the concerns that when a local planning authority considered the length of time that a planning application should remain valid, it should not consider such matters as the length of time it takes to assemble the site and organise funding. The noble Baroness intended the amendment to be helpful in the context of a three-year default period for the duration of a permission or consent. Section 91(2) of the Town and Country Planning Act 1990 and Section 18(1)(b) of the Planning (Listed Buildings and Conservation Areas) Act 1990 require the local planning authority to consider "any other material considerations". If a local planning authority, when considering the time needed for a planning permission, thinks that the time needed to assemble finance and land is relevant, that matter will be a material consideration to which the authority must have regard. The amendment is therefore not necessary.

Amendments Nos. 46 and 47 would leave out the provisions making the default period for the duration of planning permission and listed building consent three years. The Government proposed with Clause 50 to reduce the period of validity of a planning permission, listed building consent or conservation area consent from five to three years. Local planning authorities will be able to agree longer periods than three years where appropriate—for example, in complex regeneration projects. There is a right of appeal to the Secretary of State.

The clause also prevents a developer seeking to extend a permission by submitting an application to vary a condition. Any developer wishing to extend the time limit will have to submit a new application for planning permission, and the local planning authority will consider the entire application afresh.

Reducing the default period for permission and consent from five to three years is a crucial part of our agenda to speed up the operation of the planning system. The default period refers to the time limit for the commencement of development. A three-year default sends a clear signal about the importance of delivery. We are, of course, pressing local authorities to speed up their planning processes, and we are showing an even-handed approach towards developers with a three-year default period.

We know that circumstances can change, and a three-year default period will allow changes to national guidance to take effect more quickly. We previously introduced an amendment providing that where planning permission is granted and that grant of permission is subsequently challenged in judicial review proceedings, the duration of permission will be from the date of the grant until three years—or other period as directed by the determining authority—after the completion of the proceedings. That amendment was inserted in response to concerns raised by developers that the shorter validity period, coupled with the associated removal of the provision that enabled developers to seek to extend the life of the consent, could mean that the validity period had expired before the judicial review proceedings had been completed. I accept that that would be complete nonsense.

During your Lordships' earlier consideration of the clause, it was argued that even expert lawyers would find it difficult to calculate when judicial review proceedings were concluded. We have been persuaded by that argument and have tabled amendments to deal with the issue.

Commons Amendment No. 46A in lieu of Amendment No. 46 provides that, where a planning permission is granted subject to a time limit by virtue of a condition imposed under Section 91 of the Town and Country Planning Act 1990 or, by virtue of Section 91(3), as amended in each case, and the grant or deemed grant of that planning permission is challenged, the period is statutorily increased by one year in relation to that permission. Commons Amendment No. 47A in lieu of Amendment No. 47 makes a similar change in relation to the Planning (Listed Buildings and Conservation Areas) Act 1990.

The Government have listened to criticism during the consideration of the clause, as indeed we have during consideration of the whole Bill. We have proposed amendments to deal with problems arising from legal challenge. However, a three-year default period for planning permission is a central part of the programme for speeding up the operation of the planning system.

During consideration of your Lordships' amendments in the other place on 19 April, the spokesperson for the Liberal Democrats expressed sympathy with the Government's proposal to change the default period for planning permission from five years to three. He took the view that planning officers might not know that they could vary the period. He proposed that the Government should make it clear that local authorities could vary the period and that longer periods should be allowed, for example, for complex applications.

The Government have listened to that argument, and the Minister for Housing and Planning has today published a statement that makes it clear that the current flexibility to vary the length of permission or consent will remain. The statement notes that the time limit for commencement of development will normally be three years from the date of permission or consent, but a local authority may direct a longer or shorter period, as it considers appropriate.

The statement says that local planning authorities should look favourably on requests for longer periods of duration where there are valid planning grounds for such a request. There will he cases in which three years is unlikely to be long enough to allow developers to complete all the preparation needed before starting work. Longer periods are likely to be appropriate, as I have already said, in complex regeneration projects, for example.

The statement also notes that after the Planning and Compulsory Purchase Bill has completed its parliamentary passage, the Government will issue guidance to local planning authorities on the new provisions. In that guidance, we will make clear the need for flexibility on the part of local authorities in their dealings with applicants on the duration of permissions and consents.

I hope that is considered to be reasonable. It certainly meets the points that have been made in this House and in the other place during the Bill's passage. We have listened and have tried to be practical where we can, while keeping the central message that there has to be some change.

Moved, That the House do not insist on its Amendment No. 45, to which the Commons have disagreed for their reason numbered 45A.—(Lord Rooker.)

6 p.m.

Baroness Hamwee

rose to move Amendment No. 45B, as an amendment to the Motion that the House do not insist on its Amendment No. 45 to which the Commons have disagreed for their reason numbered 45A, leave out "not".

The noble Baroness said: My Lords in speaking to Amendment No. 45B, I shall speak also to Amendments Nos. 46B and 47B. Amendment No. 46B is slightly defective. Any defect is significant at this stage but, as the Minister says, I am reading out what it says on the Marshalled List, so I had better stick to what it says. It should read, as an amendment to the Motion now before the House to leave out from "House" to the end and insert "do insist on its Amendment No. 46". When I phoned the Public Bill Office last week to ask for guidance in drafting, they said, "It's very complicated, my Lady—you tell us what you want to do and leave it to us to draft it".

We do not at all take issue with the Government's objective of actually seeing the end product of the plans for much needed housing, or of achieving a very high percentage on brownfield land. The issues that we considered in the previous debate related to the length of the default period and to what the local planning authority can have regard in extending, or indeed shortening, that default period.

Most householder applications can be taken through to completion within three years—the side extension, the conservatory and so on. We talked at Report about the need to give sufficient time for an individual to get organised. I do not want to make things difficult for individuals, but I do not believe that that is the central issue. The issue is about achieving the significant developments.

The recent Barker review, which we shall debate in a couple of weeks' time, thanks to the noble Lord, Lord Lucas, identifies as a factor that the housebuilding industry's response to risk and the speculative nature of land leads to reluctance to build out large sites quickly. However, that is only one of five factors that are identified. The review talks of the increasingly complex nature of sites, especially brownfield sites, where significant remediation is required; the difficulties of site assembly, where ownership is fragmented; the planning system, its influence over the amount of land available, and whether the infrastructure is there to support the development; and the politically contentious nature of land use. However, the review has found little evidence, at least across the country as a whole, to substantiate concerns that option contracts and the practice of land banking allow housebuilders to erect barriers to entry into the market". The difficulties of site assembly, obtaining funding and dealing with contamination resulted in my being concerned about the reduction of the default period. I welcome the statement made today about site assembly and funding being capable of being regarded as material considerations. I should like to have heard that whatever the local planning authority believes is relevant is de facto relevant.

The other issue expressed to us as a concern by the industry related to obtaining consents from other agencies, such as the Highways Agency, the water authorities, the Environment Agency, English Heritage and English Nature. I would be glad to be corrected, but it does not appear to me that obtaining those consents would fall within what could be considered as material considerations.

I acknowledge the Government's amendment in response to concerns about how to calculate when a period starts running in the event of judicial review. However, that is not quite the end of the matter—nor, perhaps, is guidance, unless the new proposed guidance is very strong. We are waiting to see what it is like. Your Lordships may have received letters from the various industry organisations on that matter.

I share the concern that in practice local planning authorities will follow the statutory period and impose three years. I hope that what the Government do following these debates will mean that, if one told a planning officer that it was possible to vary the default period, the answer would not be, "Not a lot of people know that". I hope that these debates will have brought that out very fully into the open. Clearly the industry's concern, which I have shared because I share the Government's own objective, still remains. I beg to move.

Moved, as an amendment to the Motion that this House do not insist on its Amendment No. 45 to which the Commons have disagreed for their reason numbered 45A, leave out "not".—(Baroness Hamwee.)

Baroness Hanham

My Lords, I have an amendment within this short group, which provides what I hope is the spectacular and usual British comprise. Instead of "three years", we have moved to "four". There has been great concern about the matter, although not for the smaller scale application. We are not talking about the length of time taken over planning permission for a small-scale development, although, having said that, a long period in that regard can sometimes sterilise what happens to a property. We are talking about the larger developments. There has been great concern that if the five-year duration was not to be adhered to, three years was far too short a time to deal with all the problems that might be associated with a larger site, as the noble Baroness, Lady Hamwee, said.

I note the Minister's amendment, but it will help only in an extreme case, when judicial review has been implemented. It does not really take us very far. The applications in question, relating to something more than a small domestic extension, probably amount to about 20 per cent of any local authority's applications.

The Minister says all the time that the whole purpose of the Bill is to speed up the planning process. However, it represents a serious slowing down of the process if a developer who gets to the end of the three years for a development of 50 or 200 houses on a brownfield site and is not quite ready has to put in a whole new planning application. If at the outset he is told that he can have a longer time if necessary, the issue may be resolved. But if he comes up to the end of the three-year period and is not ready to go and has to put in a new application, timescales will move forward in any event.

It is also true that when an application for renewal is considered, it is not exactly a fresh application or a fresh field. I have recently had this experience as a member of a planning authority. A material consideration for the planning committee is whether or not approval was given. It is a different hearing from a hearing in consideration of a fresh application. All that can take extra time.

Four years is certainly not three years and certainly not five years, but it would represent a half-way house. It would give more time for major developers to bring their plans to fruition and, perhaps, ensure that it was not necessary for them to put in a new application because they might complete the process within that time.

I hope that this amendment is helpful, in the context of a vexed situation over the length of planning permissions—vexed for the local authority and for any developer trying to assemble a site and introduce something that is not entirely straightforward or run of the mill.

Lord Lucas

My Lords, I am disappointed that the Government should have chosen not to accept the amendments on this matter. It seems to me that the Barker review demonstrated quite clearly that there is no evil that needs dealing with and that by and large sites are built out as soon as they reasonably may be given all the problems of putting them together and the commercial considerations surrounding the site, and that there is no delay that needs dealing with. All the Government are doing is, I think, creating potential for chaos in a small number of cases and inconveniencing many. It saddens me that the Government should have come back on this but unless my noble friend or the noble Baroness, Lady Hamwee, jumps up and calls us to a Division, I suspect that I shall have to put up with it.

Lord Rooker

My Lords, the noble Lord should not be so sad as he sounds. Anyone would think that the Government had not moved on the matter. The other place has put amendments before your Lordships' House, to which it seeks your Lordships' agreement, that show considerable movement. The statement by the Minister also shows movement. It is quite clear that if a development is perceived to need a period of four years or five years, it will get it. The relevant issues are debated beforehand so there is a degree of certainty there.

The noble Baroness, Lady Hamwee, made a fair point about the agencies and the other bodies. They are a law unto themselves but they are statutory bodies—that is why they are a law unto themselves. I hope that I can answer her question in that regard. If when considering the duration of time needed for a planning permission a local planning authority thinks that the time needed to assemble the finance and the land and to consult other bodies is relevant, that matter will be a material consideration to which the authority must have regard. In other words, the "other bodies" will cover the agencies plus other relevant bodies in addition to those that the noble Baroness mentioned. A matter can be considered a material consideration. I think that is the central question that the noble Baroness asked me.

I believe that we have a good compromise. The flexible three-year period is almost like flexible retirement. One thing is certain—it is not a rigid three-year period. That was made absolutely clear in the statement made following the points raised in the other place. The three-year period is flexible. It is a default three-year period as opposed to a five-year period: we want to speed up the process. The flexible three-year period should not give developers any problems whatever. Even at this final stage of the Bill the Government have tried to compromise, as we ever seek to do when listening to reasonable arguments. We have a compromise here. I repeat that the three-year period is flexible, not rigid. If it started out as a rigid three-year period, I apologise. There was always a degree of flexibility there, but I do not suppose that we highlighted that as we should have done.

Baroness Hamwee

My Lords, it is clearly important that the Government are making the position clear to the planning and development community, if I can call it that. Issuing new guidance is important but it does not change things. I do not want to sound too scratchy as I welcome what the Government are doing, but I do not think that the Minister can quite claim that they have moved in the way that he suggested. The Government are clarifying the 1990 Act. Welcome as that clarification will be, we know that concerns remain. I would not like to deprive the noble Lord, Lord Lucas, of the opportunity to express his view because I should like to express mine. I should like finally to test the opinion of the House.

6.14 p.m.

On Question, Whether the said amendment (No. 45B) shall be agreed to?

Their Lordships divided: Contents, 87; Not-Contents, 114.

Division No. 4
CONTENTS
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.
Craigavon, V. Noakes, B.
Cumberlege, B. Northover, B.
Dahrendorf, L. Norton of Louth, L.
Denham, L. Oakeshott of Seagrove Bay, L.
Dholakia, L. O'Cathain, B.
Falkland, V. Pearson of Rannoch, L
Fearn, L. Phillips of Sudbury, L.
Flather, B. Plummer of St. Marylehone, L.
Fowler, L. Reay, L.
Garel-Jones, L. Redesdale, L.
Geddes, L. Rees, L.
Goodhart, L. Renton, L.
Gray of Contin, L. Rodgers of Quarry Bank, L.
Hamwee, B. Roper, L.
Hanham, B. Russell, E.
Hanningfield, L. Saltoun of Abernethy. Ly.
Harris of Richmond, B. [Teller] Sandberg, L.
Hodgson of Astley Abbotts, L. Scott of Needham Market, B.
Howe, E. Selborne, E.
Howe of Aberavon, L. Sharp of Guildford. B.
Howell of Guildford, L. Shaw of Northstead, L.
Jenkin of Roding, L. Shutt of Greetland, L.
Kimball. L. Smith of Clifton, L.
Kingsland. L. Stewartby, L.
Lamont of Lerwick, L. Swinfen, L.
Livsey of Talgarth. L. Thomson of Monifieth, L.
Ludford, B. Tope, L.
McColl of Dulwich, L. Tordoff, L.
Maclennan of Rogart, L. Trumpington, B.
McNally, L. Tugendhat, L.
Maddock, B. Waddington, L.
Mancroft, L. Wade of Chorlton, L.
Marlesford, L. Wakeham, L.
Mayhew of Twysden, L. Wallace of Saltaire, L.
Miller of Chilthorne Domer, B. Walmsley, B.
Miller of Hendon, B. Walpole, L.
Monro of Langholm, L. Wigoder. L.
Naseby, L. Wilcox, B.
Newby, L. Williams of Crosby, B.
NOT-CONTENTS
Acton, L. Dubs, L.
Ahmed, L. Elder, L.
Amos, B. (Lord President of the Council) Evans of Parkside, L.
Evans of Temple Guiting, L.
Andrews, B. Falconer of Thoroton. L. (Lord Chancellor)
Archer of Sandwell, L.
Ashton of Upholland, B. Farrington of Ribbleton, B.
Barnett, L. Faulkner of Worcester, L.
Bassam of Brighton, L. [Teller] Filkin, L.
Berkeley, L. Fitt, L.
Bernstein of Craigweil, L. Fyfe of Fairfield, L.
Billingham, B. Gale, B.
Blackstone, B. Gavron, L.
Blood, B. Gibson of Market Rasen, B.
Borrie, L. Golding, B.
Brooke of Alverthorpe, L. Goldsmith, L.
Brookman, L. Gordon of Strathblane, L.
Brooks of Tremorfa, L. Goudie, B.
Campbell-Savours, L. Gould of Potternewton, B.
Carter, L. Graham of Edmonton, L.
Chandos, V. Grantchester, L.
Christopher, L. Gregson, L.
Clark of Windermere, L. Grocott, L. [Teller]
Clarke of Hampstead, L. Harris of Haringey, L.
Clinton-Davis, L. Harrison, L.
Cohen of Pimlico, B. Haskel, L.
Corbett of Castle Vale, L. Hayman, B.
Craig of Radley, L. Hilton of Eggardon, B.
Crawley, B. Hogg of Cumbernauld, L.
David, B. Hollis of Heigham, B.
Davies of Oldham, L. Howarth of Breckland, B.
Dean of Thornton-le-Fylde, B. Howells of St. Davids, B.
Desai, L. Howie of Troon, L.
Dixon, L. Hoyle, L.
Hughes of Woodside, L. Puttnam, L.
Hunt of Kings Heath, L. Ramsay of Cartvale, B.
Irvine of Lairg, L. Rendell of Babergh, B.
Jones, L. Richard, L.
Jordan, L. Roll of Ipsden, L.
King of West Bromwich, L. Rooker, L.
Kirkhill, L. Sainsbury of Turville, L.
Lea of Crondall, L. Scotland of Asthal, B.
Lipsey, L. Sheldon, L.
Lockwood, B. Simon, V.
Lofthouse of Pontefract, L. Stallard, L.
Macdonald of Tradeston, L. Stone of Blackheath, L.
McIntosh of Haringey, L. Symons of Vernham Dean, B.
McIntosh of Hudnall, B. Taylor of Blackburn, L.
Mackenzie of Frarnwellgate, L. Temple-Morris, L.
Marsh, L. Thornton, B.
Mason of Barnsley, L. Triesman, L.
Massey of Darwen, B. Varley, L.
Merlyn-Rees, L.
Mishcon, L. Walton of Detchant, L.
Mitchell, L. Warner, L.
Morris of Aberavon, L. Warwick of Undercliffe, B.
Morris of Manchester, L Watson of Invergowrie, L.
Nicol, B. Whitaker. B.
Orme, L.
Ouseley, L. Whitty, L.
Parekh, L. Wilkins, B.
Pendry, L. Williams of Elvel, L.
Peston, L. Williamson of Horton, L.
Plant of Highfield, L. Woolmer of Leeds, L.

On Question, Motion agreed to.

Division No. 5
CONTENTS
Addington, L. Maclennan of Rogart. L.
Anelay of St Johns, B. McNally, L.
Astor of Hever, L. Maddock. B.
Avebury, L. Mancroft, L.
Barker, B. Marlesford, L.
Beaumont of Whitley, L. Mayhew of Twysden, L.
Bridgeman, V. Miller of Chilthorne Domer, B.
Brougham and Vaux, L. Naseby, L.
Campbell of Alloway, L. Newby, L.
Clement-Jones, L. Noakes, B.
Coe, L. Northbrook, L.
Colwyn, L. Northover, B.
Cope of Berkeley, L. Norton of Louth, L.
Craigavon, V. Oakeshott of Seagrove Bay, L.
Dahrendorf, L. O'Cathain, B.
Denham, L. Park of Monmouth, B.
Dholakia, L. Phillips of Sudbury, L.
Elis-Thomas, L. Razzall, L.
Fearn, L. Reay, L.
Fookes, B. Redesdale, L.
Fowler, L. Rees, L.
Garel-Jones, L. Rennard, L.
Glenarthur, L. Renton, L.
Goodhart, L. Roper, L. [Teller]
Hamwee, B. Russell, E.
Hanham, B. Sandberg, L.
Hanningfield, L. Scott of Needham Market, B.
Harris of Richmond, B. [Teller] Seccombe, B.
Higgins, L. Sharp of Guildford, B.
Howe, E. Shutt of Greetland, L.
Howe of Aberavon, L. Simon of Glaisdale, L.
Howell of Guildford, L. Skelmersdale, L.
Jacobs, L. Smith of Clifton, L.
Jenkin of Roding, L. Stewartby, L.
Jopling, L. Stoddart of Swindon, L.
Kimball, L. Swinfen, L.
Kingsland, L. Tope, L.
Liverpool, E. Tordoff, L.
Livsey of Talgarth, L. Waddington, L.
Lucas, L. Wakeham, L.
Lyell, L. Wallace of Saltaire, L.
McColl of Dulwich, L. Walmsley, B.
MacGregor of Pulham Market, L. Walpole, L.
Williams of Crosby, B.
NOT-CONTENTS
Acton, L. Brooke of Alverthorpe, L.
Ahmed, L. Brookman, L.
Allenby of Megiddo, V. Campbell-Savours, L.
Alli, L. Carter, L.
Amos, B. (Lord President of the Council) Chandos, V.
Christopher, L.
Andrews, B. Clark of Windermere, L.
Archer of Sandwell, L. Clarke of Hampstead, L.
Ashton of Upholland, B. Clinton-Davis, L.
Barnett, L. Crawley, B.
Bassam of Brighton, L. [Teller] David, B.
Berkeley, L. Dean of Thornton-le-Fylde, B.
Bernstein of Craigweil, L. Desai, L.
Billingham, B. Dixon, L.
Blackstone, B. Dubs, L.
Borrie, L. Elder, L.
Brennan, L. Evans of Parkside, L.
Evans of Temple Guiting, L. Mackenzie of Framwellgate, L.
Falconer of Thoroton, L. (Lord Chancellor) Mason of Barnsley, L.
Merlyn-Rees, L.
Farrington of Ribbleton, B. Mitchell, L.
Faulkner of Worcester, L. Morris of Aberavon, L.
Filkin, L. Nicol, B.
Fyfe of Fairfield, L. Orme. L.
Gale, B. Palmer, L.
Gavron, L. Pendry, L.
Gibson of Market Rasen. B. Pitkeathley, B.
Golding, B. Plant of Highfield, L.
Goldsmith, L. Puttnam, L.
Gordon of Strathblane, L. Ramsay of Cartvale, B.
Goudie, B. Rea, L.
Gould of Potternewton, B. Rendell of Babergh, B.
Graham of Edmonton, L. Richard, L.
Grantchester, L.
Grocott, L. [Teller] Robertson of Port Ellen. L.
Harris of Haringey, L. Rooker, L.
Harrison, L. Scotland of Asthal, B.
Haskel, L. Sheldon, L.
Hayman, B. Simon, V.
Hilton of Eggardon, B. Smith of Gilmorehill, B.
Hogg of Cumbernauld, L. Stone of Blackheath, L.
Hollis of Heigham, B. Symons of Vernham Dean, B.
Howarth of Breckland, B. Taylor of Blackburn, L.
Howells of St. Davids, B. Temple-Morris, L.
Howie of Troon, L. Triesman, L.
Hoyle, L. Turnberg, L.
Hughes of Woodside, L. Varley, L.
Hunt of Kings Heath, L. Walton of Detchant, L.
Irvine of Lairg, L. Warner, L.
Jones, L. Warwick of Undercliffe, B.
Jordan, L. Watson of Invergowrie, L.
King of West Bromwich, L.
Kirkhill, L. Weatherill, L.
Lea of Crondall, L. Whitaker, B.
Lipsey, L. Whitty, L.
Lockwood, B. Wilkins, B.
Lofthouse of Pontefract, L. Williams of Elvel, L.
Macdonald of Tradeston, L. Williamson of Horton, L.
McIntosh of Haringey, L. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.24 p.m.

On Question, Motion agreed to.