§ 11.32 a.m.
§ The Minister of State, Office of the Deputy Prime Minister (Lord Rooker)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Lord Rooker)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 47 [Planning contribution: regulations]:
§ [Amendments Nos. 119C to 119E not moved.]
Baroness Hanham moved Amendment No. 119F:
Page 36, line 3, at end insert "or at some other stage before the development is completed and occupied
§ The noble Baroness said: Before I start on this amendment, I would like to say two things. We caused the Committee to be adjourned during our previous 803 sitting in order to obtain copies of the statement that the Minister had and, where possible, the result of the consultation on the tariff system for Section 106. At that stage, the Minister informed me that he had sent them both to me. I do not know about other Members of the Committee, but I still have not received them. If it had not been for the efficiency of the Library, I would still not have the result of the consultation. I would be most grateful if the Minister would note that that information has still not come in our direction.
I would also like to make one point of correction for Hansard. What I said was that I would like the Minister to get us copies of the statement. I did not say that I would like him to get us coffees, which is what it says in Hansard. Although I am sure that the House would love to be able to adjourn on many occasions for coffee, I fear that it may be a precedent that the Minister may not want to set. It was certainly not one that I was aiming for, although a coffee would have been very nice.
I have grouped for today's purposes Amendments Nos. 119F, 119G and 119H. We had an extended discussion on the tariff system and Section 106 at our previous sitting. It might be helpful to today's proceedings if I discuss those amendments.
Clause 47(6) provides, as a possible enforcement mechanism, that conditions can be attached to a planning permission requiring a planning contribution to be made before development has begun. This requirement can be, and often is, imposed in planning obligations. These planning benefits are often provided part-way through developments; for example, affordable housing units cannot be provided on site before the development is well under way.
Many developments, such as housing estates, will take years to build. These are the type of schemes that are likely to require payments to the local authority for off-site improvements, such as improved highway junctions, open space and extensions to local schools. The demand for these improvements is increased as the development proceeds. More classrooms might not be needed when there were 50 houses, but would be needed when 600 had been built. It is common for contributions to be paid over many years, as different stages are reached. On a major housing scheme, the development claims can total over £1 million. Front-loading the contributions would significantly increase financing costs and risks. This amendment would allow contributions to be made at a variety of stages.
Amendment No. 119G prevents a local planning authority retaining indefinitely money received as a planning contribution. It would mean that the Secretary of State could direct in regulation that after a prescribed period any money left over would be repaid with interest if it is not spent on the purposes mentioned in subsection (3)(c).
While it is hard to believe, even in these days of cash-strapped local authorities, many authorities have substantial planning obligation receipts that have not 804 been spent after many years. That should be stopped, and this amendment will do just that, by providing an incentive to spend the sum in full and in time.
An important protection for landowners is the ability to apply to discharge or modify planning obligations. An obligation may become out of date. It may prevent development, or restrict the intensity of development beyond what is subsequently desirable. It might frustrate development that the Secretary of State subsequently grants planning permission for. The Section 106 procedure allows for formal applications to be made to the local planning authority, and appeals then to the Secretary of State. Amendment No. 119H allows for appeals. I beg to move.
§ Lord Rooker
I apologise unreservedly for the inadequacy of the government postal mechanism. The documents clearly have not arrived. That is not on. If we cannot get post across the road, how on earth can we persuade people that we can run the country? It is unacceptable to Parliament that the Government do not provide the documents, especially when I was told that they were put in the post, although I do not know how physically that was done. To be honest, it is not on. It leaves me in a very awkward and embarrassing position, and I give an unreserved apology for our inadequacy.
On the other hand, I do not have to do that in reply to the amendments. I can give adequate replies to the amendments, by pointing out that they are not necessary. In one in particular, the point is met elsewhere in the Bill. I can understand why the amendments have been proposed, particularly Amendment No. 119F. Clearly, there will be some circumstances in which a planning contribution could not be made prior to the commencement of a development. For example, the development may be economically marginal, and the developer may have no funds with which to make a contribution until the development is complete and he gets his return. It may be that the development itself satisfies the terms of the planning contribution for the provision of, for example, affordable housing units.
I should emphasise that the local authority would be entitled to vary the condition that we propose. In the same way that by default conditions are attach to planning applications limiting their life to five years, local authorities can vary this, so local authorities could require planning contributions to be made at times other than at the commencement of the development. They would have flexibility not to use the condition proposed here, provided they could enforce this through a similar condition or the terms of the planning agreement. The flexibility that is sought in the amendment already exists.
So far as Amendment No. 119G is concerned, I understand the concern of the noble Baroness, that planning authorities should spend optional planning charge income on matters that they say they will. It would be tedious to read out all my notes, but if I point out that Clause 47(7)(a) is specifically intended to secure that very purpose. It reads,The regulations may—require the local planning authority to apply receipts from planning contributions made by the prescribed means only to purposes mentioned in section 46(3)(c)".805 I hope that shows that the amendment is unnecessary. So far as Amendment No. 119H is concerned, it is similar—in fact my answer is the same as the one that I have just given, because Clause 47(7)(a) is intended to secure this point.
I hope that answers the points made by the noble Baroness at the end of this debate on planning obligations, which has been very interesting and very useful to the department, as was the meeting that I had this morning with developers, planners and others when this issue was raised. I made the point that we debated it at length in your Lordships' House on Monday. I have sent a message back to my planning colleagues that we must do better on Report, which was very well received.
§ Lord Lucas
Perhaps I may encourage the Minister to remind his officials that we are now only 11 months away from the dawn of e-government in 2005, and that sending us such documents by e-mail might avoid some of the difficulties. Since the intervention of the late Lord Williams I now get a third of my Written Answers by e-mail. I hope that we will do better over the coming months, but I would be delighted to receive all correspondence on the Bill by e-mail. It would mean receiving things much earlier.
§ Baroness Hamwee
I was going to make the same suggestion, but privately. I know of a third party who received an e-mail on Friday afternoon containing a Statement. However, I have not stood up to have a go at the Minister about that. Can he confirm that the regulations under Clause 46(3)(c), to which he has just referred, on the purposes to which the contributions will be put, will be a matter of consultation with local authorities? take the noble Baroness's point, but the matter ought to be discussed with them.
§ Lord Rooker
The bald answer is that we do not issue regulations without consultation, except in the most extreme circumstances. These regulations are not extreme. Throughout the Bill we have said that we will carry out much more consultation. Obviously, in many ways the Bill will be enforced by a lot of regulations, therefore we must have proper consultation.
§ Baroness Hanham
I thank the Minister for his reply. There is not much more to say on Amendments Nos. 119F and 119H, but I wish to tax him further on his reply to Amendment No. 119G. The amendment relates specifically to the local planning authority having to return to a developer any money not used, if for some reason a development does not go ahead or something happens during the process, so that money belonging to the developer is returned with interest. I struggle to understand how subsection (7)(a), which merely requires the local planning authority to apply receipts made by prescription only to the purposes mentioned, underscores the requirement to repay the 806 money if it is not used. Subsection (7)(a) does not resolve the problem. The Minister may wish to reconsider it.
§ Lord Rooker
I am happy to elaborate, as we are in Committee and I have not used half of the briefing note on Amendment No. 119G. I am happy to put the note on the record, because it will assist in ensuring that we do not have to return to the matter on Report.
Where the parties negotiate it is likely that the agreement will set out the matters on which the contributions will be spent, and provide for repayment if they are not spent by the agreed date. Such an agreement would be enforceable, but in the courts. Where the applicant decides to pay the charge, the matters on which the charge will be spent are not specifically identified in the agreement but in the local planning obligations policy. The whole point of the charge is that such matters are laid out in the local planning obligations policy, where everyone can see what is required. That transparent approach is referred to in Clause 46(5)(a).
In short, the provisions ensure that the same redress is available to an applicant who has paid the charge as it is to one who has negotiated an agreement. All that we are doing is moving the agreement on what the income will be spent on out of the negotiated agreement and into the local planning obligation policy prepared in advance. That is a plan-led approach, and the policy will have to be specific enough to give the applicant certainty about what the charge will be spent on; otherwise, the applicant would simply decide not to pay the charge.
We intend to introduce other accountability mechanisms to ensure that spending is appropriate. It is intended, for example, that the way in which local planning authorities spend planning contribution funds should be set out in an annual report. That is, again, part of the more open, transparent and certain system for planning obligations being introduced. The planning obligations that will be sought must be set out in a policy, and information on what they are being used for will also be available publicly. Those concerns arise only where the charge is paid in cash. Where the charge is paid in kind, the developer can be absolutely certain that the charge is spent appropriately—in effect, he is spending the charge in the same way. I hope that that further explanation satisfies the noble Baroness.
§ 11.45 a.m.
§ Baroness Hanham
I hear what the Minister says. I understand from his response that, if the money had to be returned, the planning agreement would state the conditions under which that would happen. I was surprised at the detail in this part of the Bill about the planning conditions. An important aspect of a planning obligation is that people can get their money back if, for some reason, things go wrong. I do not promise not to return to the matter, as so much is on the face of the Bill that it is odd that this provision is not. For the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 119G and 119H not moved.]
§ Clause 47 agreed to.
§ Clause 48 agreed to.
Lord Bridges moved Amendment No. 120:
Before Clause 49, insert the following new clause—
"APPEALS AGAINST PLANNING DECISIONS
§ The noble Lord said: Since retiring from public service more than 10 years ago, my wife and I have spent a lot of time as members of the county branch of the CPRE, looking at planning matters in our local community. In general, I am very enthusiastic about how our planning system is set up and works. Shortly after starting that work I felt that I needed to know more about how the inspectorate was recruited. I wrote to the department to request details about how that was done. The Permanent Secretary kindly sent me a massive dossier explaining how the inspectorate was chosen, trained and invigilated. It is clear to me that the department puts great effort into that work with very positive results on the whole.
The purpose of my amendment is modest. It is intended to improve further the planning system, because there are occasions on which it goes wrong. I shall cite briefly two such examples that explain why 808 we need to have a carefully defined right of appeal. The first case concerns the choice of a park-and-ride site near Ipswich in Suffolk. The moving spirit behind it was Suffolk County Council, an authority currently under a Liberal Democrat and Labour coalition. The county council had successfully promoted two park-and-ride schemes to the north and west of Ipswich. Those facilities having proved quite popular, the council wanted another scheme on the eastern fringes of the borough. The case had certain factors working in its favour. Ipswich is a thriving town that suffers, like many others, from traffic congestion. The principle seemed commendable.
However, it was difficult to find a site. After lengthy discussions a site was chosen at a wooded copse at the junction of two main roads—the A12, which is the London to Lowestoft artery, and the A1214 between Woodbridge and Ipswich. The site was controversial, involving considerable damage to the little piece of woodland, an intrusive complex of 16 traffic lights on the junction of a roundabout and fears of dangerous congestion. The local planning authority, supported by our county branch of the CPRE, among others, objected.
The district councillor, a Liberal Democrat, who is also a county councillor, was supported at the meeting of the county council. Having been rejected by the district council, the proposal was taken back to the county council. It appeared that the county council was likely to refuse it. However, the county council decided to defer the decision for a month, at which point the councillor in question did not take part in the vote—although a member of the coalition parties, he refused to support their proposal. The proposal was duly carried and is now operational, in spite of the earlier refusal by the planning authority at district level.
The second case concerned a public house on the A12, the main road. It had been a successful venture until it changed hands a few years ago. The new owner applied for a change of use to convert the pub into a private dwelling. The local plan had a provision to retain key facilities in rural communities unless there was proof that the existing use was not viable and there was no alternative plan to make it so. The application was strongly opposed by the parish council, CAMRA, local residents and an amenity society. It was refused by the district council planners.
Some months later the owner reapplied, producing accounts to show that she could not make a living out of the pub. Local opinion suggested that the pub was no longer open seven days a week and that its premises were less welcoming to customers. Council officers again recommended refusal. At the planning meeting of the council this case was the first item on the agenda. Under recent new rules the applicant spoke briefly to support and the parish council chairman to oppose. However, there was no contribution by other members—no discussion, no debate. The acting chairman then asked for a vote. This resulted in two votes in favour of the applicant, one against and five unexplained abstentions. Several members present were substituting for absentees. The application thus succeeded. I believe the acting chairman might have 809 devised a means of deferring a decision until the next meeting or arranging a site visit to allow councillors to reflect. This is a minor case but it has caused considerable local dismay in the parish in question.
I have cited these two cases as it seems to me it should have been possible for local residents who had sent in written objections to the proposal to ask the Secretary of State to review the circumstances in which the planning system could be said to have failed. The only other recourse is to appeal to the High Court which is clearly beyond the means of such communities.
The Minister may feel inclined to repeat the adage that hard cases make bad law. Maybe, but bad decisions, or inaction, can be even more damaging. I hope that he will undertake to look at this amendment in a sympathetic light. Local democracy arouses feelings no less keenly than national issues. In order to allow visible justice to get a fair hearing, a limited right of appeal available to third parties would be desirable. It is possible to include a number of restrictions. I have suggested some in my amendment, such as that the person who wished to appeal to the Secretary of State must have lodged a written objection to the application. Other conditions could be written into this wording if the Minister feels it is desirable. I hope the Government will understand my motives and give careful consideration to an amendment along these lines. If they cannot agree, perhaps they would care to think of alternatives. To use another adage: where there's a will there's a way. I beg to move.
§ Baroness Hamwee
We have tabled Amendment No. 126A, which forms part of this group of amendments. It is almost identical to Amendment No. 120 but excludes paragraph (e). On the issue of third party rights of appeal, at an earlier stage the Minister appeared to indicate a good deal of sympathy with the problem. I understood him to say that this was something that had exercised his mind when he was an MP. Perhaps today he can tell us why there should not be a limited right of appeal by third parties. And can he explain to the committee whether there are real objections to the proposal or has the Government decided to put it into the "too difficult" pile?
Perhaps he can also expand, like the Minister in another place, on whether the statement of community involvement, which is part of the new provisions in the creation of the new local development framework—I may be using the wrong terminology here—is adequate protection for third parties. I support a plan-led system. I support community involvement at the time a plan is being created, but we all know that there are limits in that respect. One has to produce more effective consultation and greater community involvement than many of us have seen, though not for want of trying. It is a very difficult exercise.
A report entitled Third Party Rights of Appeal in Planning was published in September 2001 by a number of organisations, including the CPRE, RSPB, WWF, TCPA, ELF, the Civic Trust, ROOM and Friends of the Earth. I apologise to noble Lords for using so many acronyms, but those organisations are 810 better known than LDFs and LDDs and RPBs. The report summarised (on page 10) the case against third party rights of appeal as follows. First, that there is insufficient evidence of a problem. The current discretionary system could be used more by the greater use of independent arbitrators with less reliance on locally elected councillors. I will not take the bait of going into the role of elected councillors, though I suspect others might wish to do so. However, there is a problem. It is still a current issue, people still raise it.
Secondly, the report said that landowners need to be able to appeal because their right to develop is being taken away, while third parties do not have a right that is being denied. The community—third parties—do have an interest in the area. That is not the same as a legal right but neither is it nothing. Thirdly, it said that there are already ample opportunities for third parties to express their views and have them considered before the decision is made. Yes, there are opportunities to express views; but that is not the same as having them heard by an inspector, who will determine the application. Fourthly, the report said:Any benefits will be outweighed by disadvantages, not least the delay to development".Well, the benefits and disadvantages in this instance— if the disadvantage is delay—really are chalk and cheese.
However, in its summary of the case for third parties to have a right of appeal, the report finds that there is a perceived unfairness in the procedures. Prospective developers may appeal, third parties cannot—by definition, that is what we are discussing. There should be an opportunity for those disadvantaged and aggrieved by planning approval to seek redress from an independent body. The examples given in the report relate to people directly affected by the development, nearby local authorities, interest groups and concerned persons, statutory agencies (if their objectives would be impeded or their advice on planning applications overridden) and government departments, if their policies would be compromised. Further, the report states that such a right would raise standards in planning authorities and redress the present imbalance by making them as accountable for their approvals as they are for their refusals. Reference is also made to other countries with advanced democratic planning systems having such rights, which are reported as having led to better decisions.
I have summarised quite a long report, which also refers to possible alternatives to third party rights of appeal: the local authority conducting an internal review—that would not be impartial; the Secretary of State calling in the application—that is discretionary and a bit of a lottery; judicial review—this is limited to points of law and does not amount to an appeal; and taking the matter to the Local Government Ombudsman, which would not allow for the detailed analysis that an appeal would afford. That is something all the major political parties have called for and has concerned many honourable Members in the Commons.
In 1996, the Association of County Councils, the Association of District Councils and the Association of Metropolitan Authorities—I am not aware that this 811 view has changed now that we have the Local Government Association—called for a limited right where there is a significant departure from the development plan, where the local planning authority is the owner of the land in question, or where the local planning authority is also the applicant. Of course, the second and third of those may go hand in hand on a single application.
Those three points are central to the issue, and I think that they are generally regarded to be so. I hope that the Minister can use today to share with Members of the Committee what research the Office of the Deputy Prime Minister, or possibly its predecessor, has undertaken into how many cases fall into the categories that have been acknowledged as the real problem areas for some time, so that the delay point— the point that exercises developers most—can be answered. We are referring here to quality, transparency, probity and accountability, which I know are matters dear to the hearts of all Members of the Committee.
§ Lord Lucas
I am a little surprised—well, not surprised because the Liberals always surprise me in this way—that a party which says that it is in favour of local democracy should suddenly be in favour of local "quangocracy" and removing or questioning all possible decisions to be made by local councillors. There might be a case for it when the local authority is at once the applicant and the judge or when an agreed local plan in which local people have participated is being bust wide open in some way. But where it is just a question of whether a pub should be a house or a pub, surely that should be decided locally. Surely that is a local decision. If the locals have not bothered to elect decent local councillors, do not care to vote or to find out the local issues, that is their responsibility.
§ Lord Chorley
I spoke at Second Reading on this subject. I agree with both of the amendments; I do not mind which of them goes forward. As the noble Baroness said, only paragraph (e) of the amendment is different. My noble friend made a strong case, but I do not agree with the noble Lord, Lord Lucas. The noble Baroness, Lady Hamwee, took us through the arguments in great and thorough detail, which I shall not go over again.
In his winding-up speech at Second Reading, the Minister also touched on the subject. In his usual disarming way, he said that he had always been in favour of third party rights of appeal when he was an MP. But apparently he had a Damascene conversion on the road up Whitehall and has changed his mind. All politicians, particularly when they become Ministers, find themselves having to do that. One of the reasons he gave at Second Reading was that third party rights,''would be inconsistent with our democratically accountable system of planning".—[Official Report, 6/1/04; col.163.) The noble Baroness touched on that point.
812 I found that a strange argument to advance in cases where the local district planning authority is making a favourable decision on its own application. I think that the noble Lord who has just spoken took that point. In this House, rightly, we make a huge fuss about conflicts of interest in public authorities. If ever there was a conflict of interest, surely this must be one. Moreover, what if the planning authority is a national park? As I see it, that is not an elected body. There have been cases where national parks have made decisions in their own favour, many of which have been extremely controversial.
The Government make the point that a feature of the Bill is community involvement, about which the noble Baroness spoke. But how are communities defined in those circumstances? I do not know; I hope that the noble Lord will be able to explain. What is the local community of a national park? In one sense, it is the nation. The hallmark of a national park is that it is national, but we tend to forget that.
Again, at Second Reading, the noble Lord said:We tried to find a way for third party rights of appeal that were tightly limited in scope, but every time a draft was presented, we were warned by the lawyers and parliamentary counsel that if we went down that road, the chances are that we would snuff out any and every development".—[Official Report, 6/1/04; col. 163.) But lawyers and parliamentary counsel are always saying that things are too difficult. Perhaps I may encourage the Minister, who has a very independent mind, to be bold. As my noble friend Lord Bridges said, where there is a will there is a way. I doubt the reality of the Minister's remark that we could snuff out any and every development. I look forward with enthusiasm to the Minister's reply.
§ Lord Marlesford
I apologise to Members of the Committee that I was not here for the first few moments of the opening speech made by the noble Lord, Lord Bridges. Of course, it is a well known subject, with which we have all wrestled at various times, where, in the immortal words, something needs to be done; but it is very difficult to determine what.
I certainly would favour the Liberal amendment over the amendment proposed by the noble Lord, Lord Bridges. Under paragraph (e). one of the grounds for appeal would be where the local planning officer had been overruled by the elected council; that is clearly contrary to the whole democratic principle. In theory, every planning application is determined by the elected councillors on the advice of the planning officers. It is entirely because there is such a huge volume of applications coming before planning committees that the great majority of them are determined by planning officers. Certainly, in my book, that is not a reason for saying that where the council takes a different view from a planning officer, that is a reason for appealing against a consent.
The noble Baroness, Lady Hamwee, raised the question of call-ins. When I was at the Countryside Commission we had constant worries of fairly major planning applications that we thought would go wrong and where we were worried because there was no right of third-party appeal. The only way of trying 813 to ensure that an irreversible step, or a very hard to reverse step, did not take place would be to get it called in. But, of course, the resources of the central planning people in Bristol are very limited. For resource reasons, there was always a very understandable reluctance to agree to call-ins unless they were important subjects. Therefore, that is not a sufficient solution. As the noble Baroness pointed out, a judicial review is not really relevant to this particular issue.
Undoubtedly, there are one or two examples of something unacceptable. One has been highlighted already; namely, when an authority gives itself planning permission. On the face of it, that seems to be contrary to natural justice. I am familiar with an example in which I have no personal interest other than a third-party interest, a pro bono interest. The Braintree District Council has repeatedly given itself planning consent to erect advertising hoardings along the A12 Witham bypass, which is totally contrary to PPB policy. When I have raised the issue on a number of occasions, it has said unashamedly and crossly, "Well, we are getting £30,000 in rent from these advertising hoardings". That is precisely the kind of thing that the local authority should not be able to do. That illustrates one of the areas where something must be done. But I shall sympathise with the Minister if he says it is extremely difficult to find a solution. However, I would have thought it not beyond his wit to do so, and this Bill is clearly an opportunity of doing something.
§ 12.15 p.m.
§ Lord Rooker
Have the Conservatives nothing to say? I do not want to stifle any debate on this. I wonder why there is silence. This is certainly the most important issue we will deal with today on this Bill. I have two speaking notes—one is a long one and one is massive. I was tempted to use the long one but I am going to use the longer one because we are in Committee and I need to put some of the issues on record, especially as we will come back to this at Report. To cut things out in Committee will make a rod for my own back and does not do a service to the House.
I must refuse to comment on any particular applications, some detailed examples of which we have heard. This is particularly so with regard to Ipswich, because I claim the credit of having at one time had more jobs there than anybody else in the late 1960s, when I was doing real work outside Parliament. I understand some of the issues but I must not comment in detail on any of the applications.
I think—from the speeches and the amendment—that the difficulties created by any blanket third party right of appeal have been understood. I am encouraged by the fact that the clause—both clauses, since we are in effect dealing with the same clause—constrains the right of third parties to appeal. A blanket right has not been requested, but not all the proposed measures are appropriate. I admit that I am on record as saying that I was in favour of third party rights of appeal until I became the planning Minister, so it is more precise than "going up Whitehall". The reason I was doing it for my 814 constituents is that I saw the way of just stopping development. That is why we wanted third party rights of appeal. We were not looking to amend developments. Most of us were looking to stop them; so was I at the time. I thus make my declaration of interest absolutely clear. The reason we wanted third party rights was because we had failed to stop development. That was the main reason for some of the individual cases I dealt with.
The Government have considered a limited scope; we want to be reasonable. However, the reasons for ruling out even a limited scope of appeal for third parties were set out in the planning Green Paper. Any right of appeal for third parties would slow down the system, though that is not a substantive argument against it. It would not be consistent with our democratically accountable system of planning.
At some time I will address the national parks issue. National parks are different in the sense that they are statutory bodies, but they are not directly elected. I take that point. It is the responsibility of local planning authorities to act in the general public interest when looking at applications. They are supposed to take account of the views of local people on planning matters before taking decisions. Elected members must justify their decisions subsequently to the electorate. They do not always like doing that; I accept that.
Part of my daytime responsibilities are the three major growth areas in the south-east. There is no doubt that councillors are reluctant to stand up in their local areas and say they support the growth. One cannot always rely on the democratically elected bodies to go along with the big picture of policy. I have known examples where councillors have said, "We will get this turned down so that it can go to appeal and then we can say that the Government are responsible together with the planning inspector for making the decision. We did not make the decision. We will say this to our constituents so that they do not vote us out". I have heard that said by local councillors. However, the Government do understand the situation. One of the reasons for this Bill is to get a faster, more balanced planning system. There is common consent on that.
We have acknowledged that we need greater community involvement in the planning process. It is right that anyone affected by, or with an interest in, development in the area should have the opportunity to make their views known, and to have those views taken into account. The planning system already provides opportunities for that to happen but this Bill builds on that and strengthens those opportunities.
Public participation must be at the right stage of the process; that is, before the decision is made. That is a fair and legitimate point. What nobody wants—perhaps somebody does—are increased opportunities for argument and debate after the event. That clearly is a requirement by some people, but that does not benefit anybody. It is the Government's intention to make the planning system more accessible, more transparent—I have rejxatedly made that clear—with strengthened opportunities for community involvement. The provisions will strengthen the 815 opportunity for people to comment on and influence development proposals much earlier in the process, even well before a planning application has been submitted.
I accept that this is going to be hard work because most people will only jump when their back yard or community is affected. They will not get involved when development plans or non-site specific proposals are being put together; it is only when something is on their doorstep that people get wound up to take an interest. Generally, people are getting on with their lives.
However, it is important that people's concerns are listened to up-front, and that once a decision is made people can see why it was reached. That is another important aspect; it is part of the process of opening up the planning obligation process so that people do not argue that someone has bought the planning decision behind closed doors. In that way the Bill will minimise the need for action after a decision has been made; it should ensure that the system is fairer and that everyone participates on as equal a footing as we can give.
Clause 17 of the Bill provides for a statement of community involvement. We are seeking effective participation by the community in the preparation of local development documents and in the exercise by the local planning authority of its development control functions.
Not only will it become a statutory requirement to prepare a statement as to how the local planning authority intends to involve the local community in the planning process, but that statement must itself be tested through independent examination. This is a major step forward.
Members of the Committee may already be aware that the Government are providing almost £4 million over the next three years to Planning Aid, an organisation that provides free and independent professional advice and assistance to members of the public who cannot afford to pay for advice on the planning process. I pay tribute to Planning Aid. I used the organisation umpteen times as a Member of Parliament in order for my constituents to have their cases heard both at the beginning and sometimes at the appeal process. It is a first-class organisation. We have made far more funds available.
The funding will enable Planning Aid to become more proactive and develop a greater role in targeting communities which traditionally do not get involved in the planning system—particularly groups in disadvantaged areas and those representing the socially excluded. We believe that the solution is not extra bureaucracy and lawyers, but meaningful engagement with local communities throughout the process, and greater transparency and clarity in the decisions taken.
Last year the Government extended the requirement for local planning authorities to provide a summary of reasons for granting a planning permission even where there were no conditions applied. This was done in order to improve the openness and transparency of the system. This is a major step forward. Local authorities were not required to say why they had approved an 816 application; they were required to say why they had refused one, but it almost went by default. To now require them to say why they granted planning permission is a very important step forward.
It has been argued by some parties that this underlines the need for a third party right of appeal. On the contrary, it should ensure that planning decisions are properly explained so that any confusion or concerns that may exist which would be the substance of a third party right of appeal could be met—as long as that right did not have as its objective to stop the development, as opposed to change or modify it. More information will alleviate that need.
Regarding the scenarios cited in the proposed new clauses, we have already established clear and strict rules and procedures to ensure the propriety of the decision-making process and the decisions taken.
First of all, planning permission must be decided in accordance with the development plan unless material considerations indicate otherwise. Where proposals for developments do not accord with the development plan, the Secretary of State must be notified so that he can consider whether to call in the application for his own determination. It is already the case that the Secretary of State may similarly be requested to call in other applications, including those that are accompanied by an environmental impact assessment.
Members of the Committee may find it useful to know that approximately 1,000 applications each year are notified to the Secretary of State where a local planning authority is minded to grant permission for a planning application that is contrary to the local plan. Of course, the Secretary of State may exercise his discretion on whether to call in the application for determination by him rather than the local planning authority.
That system works in practice. During the 12 months or so that I was planning Minister, dozens of cases went across my desk on which we had to make a judgment on whether to call in. Those decisions were taken by Ministers. We were given advice but we did not necessarily follow it in every case, either to call in or not call in as the case may be. Decisions contrary to advice were reached both ways, which is the right approach. Ministers are accountable for those decisions.
Just over 5 per cent of the notifiable departures are called in by the Secretary of State. The reasons for deciding that the Secretary of State should determine a case include those where the issues may conflict with national policies, where they have significant effects beyond their immediate locality or may give rise to substantial controversy. A set of guidelines is available, based on a Written Answer in the House of Commons given by Richard Caborn when he was planning Minister. We rely on those for our policy, in particular when answering the dozens of letters written every week by Members of Parliament asking us to call in various applications. So very tight criteria govern what is and is not called in. An inquiry is then held to enable full consideration of the issues involved and to hear the concerns of interested parties.
817 The proposal in the new clause in which Members of the Committee may see particular merit is for applications where the local authority has an interest. There appears to be a level of concern that a local authority will act improperly in deciding such cases. However, I should say that local authorities operate under very strict rules to deal with possible conflicts of interest and to avoid any impropriety where an application is one in which the local authority itself has an interest. Moreover, in the event that impropriety can be shown, judicial review by the courts is available.
Local authorities are often required to take decisions on issues in which they have a dual interest. There are around 5,000 cases a year in which local authorities have an interest in land to which they grant planning permission. It must be borne in mind that these will include town centre sites and often involve regeneration projects that will bring real benefits to local communities in terms of homes, jobs and environmental improvement. These are the very projects we need to ensure are delivered quickly and are not hampered by subsequent challenges.
However, where there are concerns about the ability of local authorities to act in a fair and unbiased manner in cases where they have a pecuniary interest in the proposed development, safeguards will apply to such decisions For the benefit of noble Lords, I shall briefly outline some of those safeguards.
Local authorities are under an obligation to act fairly in relation to persons affected by planning decisions and to adopt decision-making procedures which provide adequate fairness safeguards to comply with the Human Rights Act 1998. Decisions are subject to control by means of judicial review in the courts. This ensures that decisions are taken in accordance with the law and within the authority's powers, and that they do not act for any illegitimate purpose or extraneous motive such as bias or vested interest.
In addition to these legal safeguards, a number of administrative safeguards ensure propriety in local decision making. The local government ombudsman has powers to investigate allegations of maladministration. Guidance on ethical conduct by local authorities is available, including the National Code of Local Government Conduct. Also, local authorities' own monitoring officers are charged with investigating allegations of maladministration or injustice. Arrangements are in place for the discharge of planning functions under the new constitutions for local governance, under which planning decisions are the responsibility of the planning committee and not the executive, to ensure propriety on land disposal and the promotion of specific developments. There are special procedural arrangements which already apply to local authorities' own development, including the need to notify the Secretary of State of proposals not in accordance with the development plan.
That forms a set of constraints on local authorities when they are dealing with matters where the planning permission is directly related to the local authority. We would argue quite strongly that those safeguards render third party rights of appeal in whatever shape or form unnecessary.
818 I turn to the suggestion that a third party right of appeal should be available where officers' recommendations to reject an application are overturned by elected councillors. This challenges the very heart of the democratic process. I imagine that noble Lords would not want elected members to feel that they cannot reject their officers' advice so long as they have good and decent reasons for doing so. That would echo what is done by Ministers; I have done it myself. As long as people act rationally rather than on a hunch, there are no vested interests and people do not consider anything with which they are even remotely connected—because my former constituency was located in the region, as planning Minister I never dealt with anything whatever to do with the West Midlands—this system, with its checks and balances, operates in a fair way and these issues are covered.
In circumstances where councillors reject the advice of officers, they must have good planning reasons for doing so. I stress that planning reasons must be given. I had constantly to say to constituents, "You can't use competition reasons for trying to stop a development. You must use planning reasons. Here are a few planning reasons for you to take away and flesh out". A reason such as claiming that there are too many of a certain kind of shop in an area is not a planning reason, it is a reason of vested interest in competition. Again, however, it is the case that judicial review is available where there is evidence of impropriety or the decision can be shown to be irrational or perverse.
It is difficult to assess the level of challenges to local authorities' decisions by means of judicial review as the Secretary of State has no locus in such challenges and we do not have that information. However, to the best of our knowledge, between January 2002 and November of last year—a period of almost 21 months—there were 16 instances we know of where third parties brought judicial reviews of local authorities' decisions to grant planning permission. These were successful in seven of the 16 instances.
This shows, first, that judicial review is actively employed by third parties. It will always act as a form of nuclear deterrent, in a way, because it is so expensive. Secondly, decisions of local planning authorities have been overturned as a result. I am not building a massive case on 16 instances, but those 16 decisions were thought sufficiently bad for someone to provide the funds to go for judicial review. In roughly half of those cases, the challenge of the review worked in the sense that the decisions of local planning authorities were overturned. One could argue that the system is working at the extreme end, in major cases where it is thought that something is seriously wrong. The numbers of such cases will always be small, but I would argue that the system worked in those cases.
I do not gainsay the argument that because the number of cases is low, it does not count; we would not expect there to be regular resort to such proceedings. Judicial review is out of the range of most people, but it is not the sole recourse in the event of an allegation of impropriety in the process; there are other ways.
819 Debates in Westminster Hall involving my colleagues as planning and other Ministers are held on individual cases on a regular basis. That, too, is quite right.
I have presented the difficulties, but I want to address just a few more issues. It is my understanding that the new clause envisages that the right of appeal would apply to anyone who had objected at application stage, and additionally to anyone else at the discretion of a person appointed by the Secretary of State for that purpose. Providing a right of appeal to anyone who had objected at application stage is likely to encourage the submission of objections in order to safeguard the right of appeal should permission be granted at application stage. This would confuse and slow down the initial consideration of the planning application, not necessarily for good reason.
Providing a right of appeal to anyone else at the discretion of a person appointed by the Secretary of State for that purpose would inevitably lead to delay. Introducing an additional procedure to be gone through to establish whether an appeal can proceed would mean that the developer would be unable to implement his permission until such sifting processes had been completed. Frankly, it is difficult to envisage the circumstances in which a person could legitimately seek a right to appeal against a proposal to which he did not object in the first place, but he would be able none the less to frustrate the development. It seems to us that that proposal as it stands is a recipe for chaos.
I believe that the third party right of appeal could be used to delay or effectively veto many otherwise acceptable developments which would bring benefits to local communities in terms of homes, jobs and the regeneration of neighbourhoods.
Challenges are not ruled out. However, in my experience, such a step was taken not to delay but to stop developments. Developers need certainty in order to invest in local areas and they want decisions quickly. Third party right of appeal would mean that planning approval could not be implemented pending an appeal and that would inevitably lengthen the decisionmaking process.
I have explained at length why the Government are not persuaded and why I am not persuaded. I am happy to defend this position. Our proposals for greater community involvement in the planning process are a major step forward. These proposals, coupled with the range of procedural and legal safeguards that exist, render even a limited third party right of appeal unnecessary. For those reasons I see no merit in introducing a third party right of appeal.
To answer the noble Baroness, Lady Hamwee, regulations require the local planning authority to consult when preparing local development documents. All the bodies she suggested—regional planning boards; the Mayor; regional development agencies; the rail authorities; local authorities in neighbouring areas; electricity, gas, water and sewage companies; voluntary bodies; bodies representing religions and disabled people; local businesses—can comment and the local planning authority has to take any comment into account.
820 The statement of community involvement also provides an opportunity for third parties to be involved in significant planning applications. That is an important process, which I admit did not exist when people made complaints some years ago. The Green Paper was issued, but a Green Paper is not a firm proposal for legislation. There have been substantial changes since we produced the Green Paper. Those changes meet many of the demands made by people seeking a third party right of appeal on the issues I have mentioned. Having given that lengthy explanation, if this issue comes back on Report, I hope I can then use a shorter version because I will be able to refer back to Hansard
§ 12.30 p.m.
§ Baroness Hamwee
Was that the long version or the massive version? I was going to ask if we could have the massive version in order that we could anticipate what might be said at the next stage, as the Minister anticipates that there might be further discussion.
I will not attempt to deal with all the Minister's points but I will make some observations. Picking up on what the Minister said towards the end, it would not be possible to veto development simply by a third party having a right of appeal. That is because the inspector would rely on all items relevant to the decision. The fact that the third party had a right of appeal would still have to be limited to arguments within the development plan and so on. He mentioned possibly using judicial review, but I understand that is limited to a point of law.
I understand what the Minister said about community involvement, but it does not seem to answer the proposals for a right where there is a departure, or a significant departure, from the development plan, nor when the local planning authority owns the land or is the applicant. I am not sure the Minister was attempting to use that as the basis of his argument. Given that there have been serious concerns about this for a long time, I understand many of the points made. I think the issue is whether the proposals go far enough. Is there something else that can be done and can this Bill be used to do it? I was going to say that I look forward to reading the massive version—I will read the massive version, although I am not sure whether I look forward to doing so. I thank the Minister for sharing it with the Committee.
§ Lord Bridges
This has been an interesting debate and some hits have been registered on my proposal, which I must consider. I agree with the noble Lord, Lord Lucas. He is right to say that we get the councillors we deserve. Something he did not emphasise is that they operate within a system. However good or bad the councillors, the effect of the system may be as important as the quality of the councillors. This is a subject we shall have to think about again.
In listening to the Minister's full speech, which deserves much study, I could not detect his earlier interest in this idea. As my noble friend, Lord Chorley, 821 said, the Damascene conversion seems to have been more or less total. It reminds me of the celebrated remark made by the late Ernest Bevin when he was invited to do something of which he, sensibly, felt suspicious—I suspect it was something in the secret intelligence line. He made the memorable observation that he would not open the Pandora's box because it was full of Trojan horses. It is a subject to which the Minister must return. I shall read the full text of the Minister's remarks with much interest. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 49 [Appeal made: functions of local planning authority]
Baroness Hamwee moved Amendment No. 120A:
Page 37, leave out lines 15 to 17 and insert—
(6) The additional period shall be eight weeks from the date of the submission of an appeal to the Secretary of State under section 78(2)."
§ The noble Baroness said: This amendment will be shorter. In moving Amendment No. 120AI speak also to Amendment No. 120B.
§ The purpose of the amendments—one relates to planning applications and the other to the listed buildings Act equivalent—is to specify the length of the dual jurisdiction regime on the face of the Bill instead of leaving it to be determined in a development order to be issued by the Secretary of State. This is dual jurisdiction for an appeal. The period allowed for an appeal is important because it is possible to miss out completely if the period is missed. It is also important as a matter of principle. I do not mean to be rude, but it is not something that should be left to the Secretary of State's whim. It should be able to be altered relatively easily. I beg to move.
§ Lord Bassam of Brighton
Clause 49 allows a local planning authority to continue to determine a planning application for an additional period after an applicant appeals to the Secretary of State on the grounds of non-determination.
I understand that the amendments would fix the additional period at eight weeks in both the principal Act and the listed buildings Act. They would also remove the flexibility to alter the additional period, which is to be prescribed by development order.
We suggested an additional period of four weeks for considering such an appeal. This will allow a local authority up to four weeks more to continue processing the application and to reach a determination without encroaching too far on the relevant appeal procedure. The length of the additional period was part of a full consultation on proposed changes to the Town and Country Planning (General Development Procedure) Order 1995, which ended on 16 January 2004.
Officials are now analysing responses to that consultation. Early indications are that the additional four-week period is welcomed and may reduce the 822 work involved in non-determination appeals. For that reason, we think we have this provision about right. I can understand the cautionary approach behind the amendment but I urge the noble Baroness to withdraw it.
§ Baroness Hamwee
The response seems to go to the period, but not to the point of whether it should be on the face of the Bill.
§ Baroness Hamwee
Obviously my point was not tempting enough. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 120B not moved.]
§ Clause 49 agreed to.
Baroness Hanham moved Amendment No. 120C:
After Clause 49, insert the following new clause—
"ABOLITION OF DEEMED PLANNING PERMISSION
Section 90 (development with government authorisation) of the principal Act is repealed.
§ The noble Baroness said: Section 90 of the Town and Country Planning Act 1990 enables the Secretary of State to grant deemed planning permission for various developments without a planning application being made to the local planning authority. These include developments by local authorities or statutory undertakers where authorisations are required from a government department, and consents for electricity generation under the Electricity Act 1989. These include power station projects, which are frequently contentious. Last year, Electricity Act consent and deemed planning permission for the installation of gas-firing equipment at Littlebrook power station in Dartford was quashed by the High Court because the environmental impact assessment was carried out inadequately. Small wind farms require planning permission which will be considered locally, but large wind farms can receive permission from the Secretary of State.
§ Electricity lines above ground can obtain deemed planning permission from the Secretary of State. Such schemes are often highly contentious because of their visual impact and health concerns. Transport and works orders for major infrastructure projects can also receive deemed planning permission.
§ Often deemed planning permission will be granted without a public inquiry. So decisions on major projects will be taken remotely, without local democratic decision and without the safeguard of an inquiry. Local politicians find that planning matters of substantial public concern are out or their hands. It is strange that the public would have greater ability to object to a house extension than, for example, to a power station.823
§ Additionally, local authorities are perfectly capable of deciding planning applications on such schemes. They do so regularly. They can take responsibility for schemes in their areas. I beg to move.
§ Lord Rooker
Amendment No. 120C seeks to repeal Section 90 of the Town and Country Planning Act 1990 which deems planning permission to be granted for development authorised by a government department under statutory authority. At the moment, Section 90 applies where the authorisation of a government department is required for the carrying out of development by local authorities, national park authorities and statutory undertakers. The section is available for use for major infrastructure development under the Electricity Act 1989 and the Transport and Works Act 1992. The section covers instances where consent is granted to the appropriation of land for development or a compulsory purchase order is confirmed.
The principal effect of repealing the section would probably be that infrastructure projects which at present require only the authorisation of a government department, granted under whatever procedure the relevant Act applies, would also require planning permission. This might be granted by the local planning authority, or by the Secretary of State on appeal or call-in, or as a major infrastructure project under the new rules of the Bill. In short, the repeal would lead to duplication of effort and delay for infrastructure projects, with consequential cost implications. We do not see how this could be thought to be in the public interest.
I do not accept the analogy that more work is carried out on private houses build than on a power station project. That may be the case, but the national policy relating to both is important. The effect on a local community of a growth in housing is important but, needless to say, the development of a power station or other such project requires a procedure to be gone through.
Speaking now without the aid of notes, I should remind the Committee that we have abolished Crown immunity, which is an important point. When I was at the Home Office we deliberately went out of our way to make it clear that the Home Secretary had decided that, even with proposals we had in mind for building certain establishments for which we did not need planning permission, we would go through the planning process. A fat lot of good that did us. But, nevertheless, it was important to do that in order to gain public acceptance of our policy on these sensitive issues.
Decisions on major infrastructure projects of national importance and local significance need to be made by government. If, for example, the amendment 824 sought to remove the Government from the decision-making process—I am not sure whether the noble Baroness said that—it would fail to do so. As I have indicated, the amendment requires local authorities to grant planning permission in addition to the approved procedure by government under the legislation. So there would still be call-in and, ultimately, the Government would still have a role to play.
§ Baroness Hanham
I thank the Minister for his reply. Local authorities would also have a role to play. Among the concerns are the major wind farms which are being gradually plonked down. There is more and more encouragement from the Government to reach their target of 10 per cent of our electricity requirement being met through wind power. Wind farms will be sited not only at sea but, in many cases, in areas of outstanding natural beauty and quite close to people's housing; and, again, local authorities will have no say in the matter.
There will be many major projects where it will be inappropriate for the Secretary of State to be the sole decision maker. Under the Electricity Act—I referred to this briefly when we discussed the dimensions that appear in the Energy Bill—huge projects can be undertaken. Pylons dangling across the countryside are not welcomed and, again, people should have a right to comment on such projects.
I have heard the Minister's reply. Unless he wishes to add anything more, I should like to test the opinion of the Committee.
§ 12.47 p.m.
§ On Question, Whether the said amendment (No. 120C) shall be agreed to?
§ Their Lordships divided: Contents, 89; Not-Contents, 93.825
|Division No. 1|
|Addington, L.||Glentoran, L.|
|Ampthill, L.||Goodhart, L.|
|Anelay of St Johns, B.||Goschen, V.|
|Astor of Hever, L.||Greaves, L.|
|Attlee, E.||Hamwee, B.|
|Avebury, L.||Hanham, B.|
|Biffen, L.||Hanningfield, L.|
|Bradshaw, L.||Harris of Richmond, B.|
|Brooke of Sutton Mandeville, L.||Harris of Richmond, B.|
|Brougham and Vaux, L.||Henley, L.|
|Buscombe, B.||Higgins, L.|
|Byford, B.||Hodgson of Astley Abbotts, L.|
|Carnegy of Lour, B.||Howe, E.|
|Coe, L.||Howe of Idlicote, B.|
|Cope of Berkeley, L. [Teller]||Jopling, L.|
|Craig of Radley, L.||Kimball, L.|
|Dholakia, L.||King of Bridgwater, L.|
|Dixon-Smith, L.||Kingsland, L.|
|Dundee, E.||Kirkham, L.|
|Elton, L.||Knight of Collingtree, B.|
|Ferrers, E.||Linklater of Butterstone, B.|
|Flather, B.||Livsey of Talgarth, L.|
|Fookes, B.||Livsey of Talgarth, L.|
|Gardner of Parkes, B.||Lucas, L.|
|Mackay of Clashfern, L.||Rogan, L.|
|Maddock, B.||Roper, L.|
|Mancroft, L.||Rotherwick, L.|
|Mar and Kellie, E.||Saatchi, L.|
|Marlesford, L.||Saltoun of Abemethy, Ly.|
|Mayhew of Twysden, L.||Sandberg, L.|
|Miller of Hendon, B.||Scott of Needham Market, B.|
|Montagu of Beaulieu, L.||Seccombe, B. [Teller]|
|Mowbray and Stonrton, L.||Selborne, E.|
|Newby, L.||Selsdon, L.|
|Noakes, B.||Skelmersdale, L.|
|Northesk, E.||Smith of Clifton, L.|
|Northover, B.||Strathclyde, L.|
|Norton of Louth, L.||Thomas of Walliswood, B.|
|Oppenheim-Barnes, B.||Tordoff, L.|
|Pilkington of Oxenford, L.||Trefgame, L.|
|Plummer of St. Marylebone,||L. Trumpington, B.|
|Rawlings, B.||Wallace of Saltaire, L.|
|Redesdale, L.||Wilcox, B.|
|Rennard, L.||Williams of Crosby, B.|
|Rodgers of Quarry Bank, L.||Windlesham, L.|
|Acton, L.||Hollis of Heigham, B.|
|Ahmed, L.||Howarth of Breckland, B.|
|Amos, B. (Lord President)||Howells of St. Davids, B.|
|Andrews, B.||Hoyle, L.|
|Archer of Sandwell, L.||Hughes of Woodside, L.|
|Ashton of Upholland, B.||Hunt of Kings Heath, L.|
|Bach, L.||Janner of Braunstone, L.|
|Bassam of Brighton, L.||King of West Bromwich, L.|
|Bernstein of Craigweil, L.||Lea of Crondall, L.|
|Billingham, B||Lipsey, L.|
|Blackstone, B||Macdonald of Tradeston, L.|
|Blood, B||McIntosh of Haringey, L.|
|Borrie, L.||McIntosh of Hudnall, B.|
|Brooke of Alverthorpe, L.||MacKenzie of Culkein, L.|
|Brookman, L.||Marsh L|
|Campbell-Savours, L.||Masseyof Darwen, B.|
|Christopher, L.||Merlyn-Rees, L.|
|Clarke of Hampstead, L.||Mitchell, L.|
|Clinton-Davis, L.||Morris of Aberavon, L.|
|Colville of Culross, V.||Nicol, B.|
|Crawley, B.||Parekh, L.|
|Davies of Oldham, L. [Teller]||Pendry, L.|
|Desai, L.||Pitkeathley, B.|
|Dixon, L.||Prys-Davies, L.|
|Donoughue, L.||Ramsay of Cartvale, B.|
|Dubs, L.||Randall of St. Budeaux, L.|
|Elder, L.||Rooker, L.|
|Evans of Temple Guiting, L.||St. John of Bletso, L.|
|Falconer of Thoroton, L. (Lord Chancellor)||Scotland of Asthal, B.|
|Farrington of Ribbleton, B.||Sheldon, L.|
|Faulkner of Worcester, L.||Simon V.|
|Filkin, L.||Stone of Blackheath, L.|
|Finlay of Llandaff, B.||Strabolgi, L.|
|Fitt, L.||Strange, B.|
|Fyfe of Fairfield, L.||SymonsofVernhamDean, B.|
|Gale, B.||Temple-Morris, L.|
|Gavron, L.||Tenby, V.|
|Golding, B.||Thornton, B.|
|Goldsmith, L.||Tomlinson, L.|
|Gould of Potternewton, B.||Triesman, L.|
|Grabiner, L.||Walpole, L.|
|Graham of Edmonton, L.||Warner, L.|
|Grocott, L. [Teller]||Whitaker, B.|
|Harrison, L.||Williams of Elvel, L.|
|Hayman, B.||Woolmer of Leeds, L.|
|Hogg of Cumbernauld, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.826
§ 12.56 p.m.
§ Clause 50 [Duration of permission and consent]:
§ The Deputy Chairman of Committees (Lord Carter)
I should tell the Committee that if Amendment No. 121 is agreed to I cannot call Amendments Nos. 121A or 121B on the ground of pre-emption.
Baroness Hanham moved Amendment No. 121:
Page 38, line 15, leave out from "amended" to "after' in line 18 and insert "so that
§ The noble Baroness said: I shall not read out the group of amendments. They all refer to Clause 50.
§ Clause 50 would reduce the duration of permissions and consents from the default position of five years, as at present, to three years. We have received innumerable representations stretching well into double figures. It is fair to say that the provisions of the Bill have been universally condemned. Many concerns have been expressed. I shall try to summarise them for the Minister.
§ First, there is confusion as to why changes need to be made to the current system. Hence, the amendment to which I have added my name to remove Clause 50 from the Bill. Local planning authorities already have the power to shorten the consent from the defaul t five years if they deem it necessary.
§ Instead of Clause 50, the Government should issue best practice guidance on when it will be appropriate for councils to exercise their existing right to issue shorter consents such as when there is a strong likelihood of housebuilders banking land or on very simple developments which could be completed quickly.
§ There seems to be general consensus that far from saving a local planning authority time and resources, as it will no longer be able to grant extensions to planning permissions, applicants will be forced to submit an entirely new application and the local authority will be burdened further. It will then have to devote much time to going through the process again simply because time ran out.
§ For many developments, three years will not be long enough. This short consent will serve only to put off potential developers. That is especially so for major brownfield, city centre and mixed use developments— precisely the type of development the Government are keen to encourage as part of their sustainable communities agenda. Marginal schemes on complex sites in regeneration areas will be made more difficult. Funding commercial and mixed development is already problematic as it is much more risky than traditional housebuilding. The changes in the Bill would make it harder still. What the Government are trying to achieve with one hand, successful urban regeneration, will be undermined by the other. By reducing the duration of consent, developers will be discouraged from taking on precisely that type of project.
§ Many of the organisations that I spoke to on the issue pointed out the number of processes, many of which are outside the developers' control, which must be completed before work can start on the site. That may involve subsequent consents from the Highways 827 Agency, the Fire Brigade and the Environment Agency. Compulsory purchase may be necessary, and there will be issues such as decontamination of land, pre-letting, negotiating finance, tendering contracts and assembling interests. There will be many planning conditions that require details such as landscaping, drainage, internal plans and the external material for buildings to be submitted and approved before the planning can be implemented.
§ A three-year period will cause difficulties for many of the developers of which the Government are most supportive. In the vast majority of cases, it is costly for the developer to sit on land and it would be in their own interests to get on with the development as quickly as possible. It will not encourage developers to introduce desirable schemes more quickly. If permission is about to expire and planning policy and its planning merits still support the scheme, the developer will be able to renew the planning permission. Neither a local planning authority nor the Secretary of State will refuse planning permission for a project that they support simply because the original permission has not been implemented.
§ Clause 50(2) relates to outline planning permission. The effect of the Government's change to the planning Act is that an application to the approval of reserved matters must be made within three years of the grant of planning permission. The developer then has two years from the final reserved matters being approved by the local planning authority to begin development.
§ That has a number of strange results. First, while the Bill considers that full planning permission should be implemented within three years, outline planning permission will have five years or more. Three years are given to apply for reserved matters and some time for them to be approved, and two years afterwards. The Government's intention to reduce the period for implementing planning permission applies only to full planning permission.
§ Secondly, if reserved matters are approved and granted within six months of the grant of outline planning permission, the developer will have to start development in the next two years—that is, two years and six months after the grant of planning permission. If not, the permission cannot be implemented. However, the developer who failed to implement within two years and six months can make a further reserved matter application towards the end of the three-year period. That reserved matters application could be identical to the one previously approved. The local planning authority would have to consider it and, if it were approved, the developer would have a further two years to implement the permission. He would have resurrected the planning permission.
§ That is an odd result and comes about because the Bill proposes to revoke Section 92 of the planning Act, rather than amending the five-year period in the Act to three years. The Government have made a minor concession on the issue for the case of complex regeneration schemes, making provisions in the regulations for the local authorities to "look favourably" at requests for longer periods of durations for such schemes. However,
828 that is really not enough. As a default position, experience shows that it would require substantial effort by developers to convince local authorities of the need for a longer time-frame than three years.
§ Beyond the clause stand part debate, I have tabled a number of additional amendments designed to change the effect of Clause 50 in a number of ways. Amendments Nos. 121, 121A, 122, 123, 125, 125A and 126 would remove the provision to reduce the default time limit for implementing planning permissions from five years to three years. That would prevent many of the negative consequences of the clause as it stands. Five years is a much more realistic time-frame, especially for major projects on complex sites.
§ Amendments Nos. 122Aand 126ZA would remove the provision expressly stating that nothing in the clause prevents the development being started when the permission or consent is granted. I beg to move.
§ 1 p.m.
§ Baroness Hamwee
We have two amendments in this group, Amendments Nos. 121A and 125A, and have put our names to several others. The short point is that we seek to understand why existing legislation is not being used. There is certainly widespread misunderstanding that local planning authorities can grant permission for periods that are more or less than five years, but it seems to us that we should not consolidate that misunderstanding or in any way support planners ignoring what they can or cannot do now.
I look forward to hearing what the evil is that the Government seek to cure. If it is "land banking"—to use a phrase now in common use—by developers, who are thought not be getting on with providing housing, for example, in particular, why is the amendment needed, given the provisions of the 1990 Act? Section 91(2) of that Act provides that the period within which a development must be started can be longer or shorter, and should be the period that the local planning authority considers appropriate, having regard to the provisions of the development plan and any other material considerations. I assume that will still apply, but I would be grateful if the Minister could confirm that, as it is not always easy to read one's way through interlocking provisions. Presumably, it would still apply but with a default period of three years. I simply do not understand why the existing provision is not an adequate tool.
I wonder whether the new provisions, proposed by the Government in Clause 50(1)(b), will encourage judicial review. I am not suggesting that legitimate opposition—or any opposition, perhaps, because until it has been tested one does not know whether it is legitimate—should be stifled. However, is it not better to have mechanisms in the planning legislation itself rather than have to go outside it and to use judicial review? If the Government are concerned that local planning authorities do not know what their powers 829 are now, there must surely be a place for issuing fresh guidance to remind the authorities and make the position absolutely clear.
§ Lord Lucas
I have a couple of amendments in this group, but I shall not speak long as my noble friend Lady Hanham has gone over the ground extremely well.
Of course I would not want the wording of Amendment No. 121B in the Bill; it merely sets out the concerns as to the reasons why three years will on many occasions be the wrong length of time. The ideal system is as set out by both opposition Front Benches: that we have guidance on the application of the existing arrangements, which can bias local authorities towards choosing three years where that is appropriate, when something is going to be done straight away and there are no complications.
Even in domestic situations, five years strikes me as the right default time. If one gets planning permission to put a third storey on one's house, which one might do before one sells it to clarify the planning arrangements, it might take two years to sell the house—and then the new purchaser is stuck with an extremely short timescale to implement the planning permission. Five years is the accepted, organised and reasonable time scale. I can see that with particular developments that a local authority wants done quickly, to shorten the timescale would be reasonable. However, five years seems the right default, certainly when one is dealing with anything at all complicated, as my noble friend says—when one needs to build up the site or to deal with problems on the site.
On Amendment No. 124, with the Bill as it is at the moment, a local authority that does not want a development to take place merely has to grant planning permission for it with a three-month timescale to start with, and then wait for the developer to be unable to comply with it. Under those circumstances, the developer would then be unable to appeal against the three-month timescale as being unreasonable, and would be blocked for two years under the other clauses of the Bill from submitting a repeat planning application. Surely, that is not the Government's intention. I hope that it is a misreading but, if not, I believe my amendment to be the right one.
§ Lord Cobbold
I rise to echo what has been said by the noble Lord, Lord Lucas, and what was said from the Front Bench by the noble Baroness, Lady Hanham. The question about this clause, and about other clauses, is whether it improves the situation or whether it would be better left as it is. It seems to me that, as the noble Lord, Lord Lucas, has said, five years is the logical period, not just for the big developers, for whom it is important, particularly with major schemes on regeneration, but also for the smaller schemes. One can have situations where finding finance is very difficult, where business circumstances change or even where economic circumstances change. All of those factors make a longer period necessary. Given that, under 830 existing law, local authorities are able to restrict the period to three years I query whether the proposed clause is appropriate for the Bill.
§ Lord Bassam of Brighton
It will not surprise noble Lords opposite and the noble Lord, Lord Cobbold, that I cannot agree with what is being offered. As has been described, it would essentially perpetuate the current system. Our view is that it is important that development, particularly where it relates to regeneration, should be begun as soon as possible.
Like other noble Lords who have been involved in these debates, I was involved in local government for a long time. I am well aware of land assembly and funding issues. But we can cope with that. The system that we are setting out will enable us to have the flexibility. Clause 50 is intended to encourage developers to start work on developments earlier and to prevent them sitting on planning permissions which, as noble Lords would accept, can be a problem, particularly when one is trying to regenerate an area that has long been neglected. I am sure we can all think of such areas from our local knowledge of planning development and regeneration issues. What we do not want is that sites should exist that are long unused and have planning permissions but where for a variety of reasons, sometimes understandable, sometimes less understandable, those planning permissions are not executed.
In our view the default period should not be as long as five years. The majority of permissions are implemented within a three-year period and for that reason we do not consider a three-year default period unreasonable. Developers that wish to extend the life of a permission should be required to submit a new application for planning permission. I appreciate that that will enable the local planning authority to consider the entire application afresh, enabling it to take account of changes to national guidance as well as to local circumstances and local funding issues. I do not think that is unreasonable because over a three-year period matters move on. We all appreciate that.
We recognise that there will be cases, particularly when complex regeneration issues are involved, when three years will not be sufficient time for a developer to commence work. Local planning authorities already have the power, as several noble Lords have suggested, to impose a period longer or shorter than three years. Therefore, when it grants a planning permission the planning authority will have the discretion to extend the period of validity for such cases. It will be plain where there is that complexity. For these reasons we do not wish to set the default period proposed in Amendment No. 121B of five years for major complex projects, those involving a high degree of risk or those with substantial upfront costs. In any case, these would be difficult to define in legislation.
We want to have flexibility for local planning authorities and developers to discuss what is appropriate in each case, rather than to set further arbitrary fixed periods. I find that notion particularly attractive because it will enable scope for discussion 831 and negotiation. The term "negotiation" has been used in many of our debates and noble Lords have recognised its importance.
We have already consulted on draft guidance that encourages local planning authorities to consider whether three years is likely to be long enough for the development in question and encourages applicants to seek to agree with the local planning authority that any permission or consent granted should be subject to a longer time period. The draft guidance formed part of a Bill-related draft secondary legislation package on development control issues.
Amendments Nos. 122A and 126ZA would prevent a developer beginning any work on a site where a consent had been granted but had been taken to judicial review. It would be entirely up to the developer to decide whether it wanted to start work. It is extremely unlikely that it would start work, and commit money and resources, on the back of a consent that could subsequently be overturned. However, there are works—for instance, on contaminated land sites—that would need to be completed, regardless of the type of development eventually granted. We want this type of work to be able to proceed.
We think that we have the package about right. We think that the flexibility is there. Certainly, we think that there will be scope for negotiation and discussion. I think that the example given by the noble Lord, Lord Lucas, would be subject to flexibility and that the local planning authority would have the necessary discretion to deal with those smaller issues which, I fully recognise, can occur with smaller scale developments. All of that said, I think we have the balance about right here. I stress the importance, particularly where regeneration sites are involved, of the need to make progress and move matters on. Where communities have waited a long time for an important site to be unlocked, it is right that we have the shorter timeframe so that progress can be made.
§ 1.15 p.m.
§ Baroness Hamwee
The Minister has talked about why the period should be three rather than five years, but not, in a way that I can follow, about why it is necessary to change it on the face of the Bill, rather than having a period that is not the default period. Section 91(2) of the 1990 Act states that the period, which at the moment is five years,shall be a period which the authority consider appropriate having regard to the provisions of the development plan and to any other material considerations".Do the Government take the view that that subsection is inadequate to cope with the kinds of things that they have been talking about?
§ Lord Bassam of Brighton
We do take that view. We have established that there is a get-out; there is flexibility and scope for negotiation if a longer timeframe is needed 832 for development to take place. We rely on that to provide the necessary space for such matters as land assembly, finance and funding to be put together.
§ Baroness Hamwee
Does putting funding together and so on fall within this subsection? Developers will want to know. The subsection refers to,the development plan and to any other material considerations".I do not think that assembling the site and organising funding are material considerations for planning purposes.
§ Lord Bassam of Brighton
The indications that I am getting from the box suggest that that is right. Obviously it is important that there is scope for negotiation with the local planning authority and that the issues are understood by the planning authority when a longer time period is required.
§ Lord Lucas
I should be very grateful for an answer to the points I made on Amendment No. 124 concerning the way in which I see the Bill as it is being used. Let us suppose that a local planning authority does not want a planning permission to succeed. It grants the planning permission with an extremely short time scale. There is no appeal under subsection (3) against that time scale because planning permission has been granted. It is not obvious to me how one then proceeds. Presumably one has to go through the whole process again. You cannot just appeal the time scale because of subsection (3). If you had a planning permission that had been granted and which had come to an end, one would have to go through the whole process again.
§ Lord Bassam of Brighton
I do not have an adequate response to the noble Lord's question. If I may, I shall provide him with a note on it. However, I think that this provision will not necessarily worsen the problem he foresees. I do not want to go any further than that. I want to provide him with a proper and full answer.
§ Baroness Hanham
What has most impressed me about the complaints and difficulties with this clause is the number of those who have received enormous legal advice—they have lawyers sitting all over them— telling them that this clause is an absolute nightmare as regards major projects. For minor projects such as putting on roofs, three years is probably sufficient; it is certainly sufficient for the people next door who are worried about what will happen to their light and view in the future. However, I respectfully ask the Minister to think again about major projects.
Like the noble Lord, Lord Bassam, I have seen a number of regeneration areas where it has taken a very long time to proceed even after planners had put together the whole scheme and obtained a perfectly proper and valid planning permission. It seems to me that developers do not have the time always to be looking over their shoulders and saying, "The two years and six months have nearly run out, after which we will have to put together and start this whole thing all over again".
833 I also do not think that it is adequate to say, "Oh, well. After three years they can put in a new application for planning permission". Major planning applications and the rest of it cost enormous sums, particularly if it is being suggested that the local development orders or local development policy may have changed in the interim and they ought to be taking account of that. I do not think that we will have any regeneration if this sword of Damocles is hanging over people' heads.
I would be interested to know what those who have made representations to us think about this after they have read Hansard and understand what the Minister said. I will make sure that they do give us feedback. I do not think that the Minister's response will measure up to the particular problem. I think that there is more to come on this. For the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 121A and 121B not moved.]
§ Lord Rooker
I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage resume not before 2.25 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.