§ 11.36 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 38 [Sustainable development]:
Baroness Hamwee moved Amendment No. 111ZF:
Page 21, line 21, at end insert —
( ) under Part 4 in relation to all development control matters;
§ The noble Baroness said: In moving Amendment No. 111ZF, I note that grouped with it are our Amendments Nos. 111ZG, 111A and 112ZC. Also grouped with the amendment are Amendments Nos. 111ZFA, 111B and 112—to which I and my noble friend Lord Addington have added our names—and Amendments Nos. 112ZA, 112ZB, 112A and 113B together with the Question whether Clause 38 shall stand part of the Bill. Of course, if I had mentioned sustainable development rather than recounting a list of the amendments in the group as noble Lords were leaving the Chamber, that might have attracted them to stay. I want to record that in Hansard
§ We have reached a hugely important part of the Bill. I suppose that it is in the nature of scrutinising legislation that not only do the scrutineers from time to time seek to delete or alter provisions, but when we support them we seek to improve them, if I can use the term without incurring too much wrath, or, as is perhaps the case here, to extend their effect. I make all my remarks on this group of amendments with that in mind and hope that the Committee will understand that that is our intention. We are keen to strengthen the provisions regarding sustainable development and to ensure that they have a practical effect.
At present Clause 38 provides that persons or bodies exercising certain functions must do so,
with a view to contributing to the achievement of sustainable development".
§ I am aware that the Government are concerned not to use primary legislation to lock us all into a definition of "sustainable development" when the concept and the term are developing, if I can put it that way. I believe that a new version of planning policy guidance note 1 is to be issued shortly which will address that. I share 324 the Government's concern about the matter. It is important not just to get it right for this moment but to get it right in a way that will stick.
§ My name is added to Amendment No. 112. I am not sure whether the noble Baroness, Lady Wilkins, will be able to speak to it because she is not in the Chamber, but it is her amendment. I wish to speak about paragraph (a) of her amendment, which raises the issue of access as part of the question of sustainability. I had prepared a probing amendment to cover just that aspect, but as this amendment had been tabled my name was added to it.
§ The noble Baroness rightly raises the question of access as part of the social limb of sustainable development because there is a risk of it being sidelined and limited to development control rather than to strategic planning.
§ Amendment No. 111ZF seeks to extend the duty to contribute to the achievement of sustainable development, or whatever term we end up with in Clause 38(2), to development control. Clause 38(1) refers to the regional spatial strategy function and to local development documents. It may be that the Minister will tell me that it is not necessary to refer specifically to development control because of the reference to Part 2 and local development documents which will obviously have to be had regard to when a local planning authority exercises development control functions. That reference means that the concept does apply.
§ Amendments Nos. 111ZG and 111A go to the heart of our concerns. The words "the objective of achieving" sustainable development, as they appear in Amendment No. 11ZG, have been urged on us—and no doubt on the Government—by a very large number of organisations. The words "with a view to", "contributing to" or "having regard to" in the Bill are not as strong as we would like them to be. The amendment is designed to make the actual achievement of sustainable development a primary rather than a peripheral concern.
§ I understand that the term "objective" has been litigated, so it will not be new to the courts or something which they would have to define. Amendment No. 111A suggests that the persons exercising the functions must do so with a view to the "principles of sustainability". That is a home made amendment, but one which seems to me to express something more than sustainable development as it is now. It takes us back to what sustainability and sustainable development are about. I believe that it might be helpful.
§ Amendment No. 111ZC requires impliedly that policies and advice are the subject of Clause 38(3). We want guidance in this instance. Whatever form it takes it must address what is meant by sustainable development.
§ We disagree with the view that sustainable development, if it is not capable of definition or if there are difficulties with it, should not be part of the Bill. That seems to us not to meet the argument at all. The definition may change as we as a society understand 325 the concept more and as culture changes. So we need to find a way to ensure that the legislation remains up to date.
§ At Second Reading the Minister spoke about finding a form of words which would meet the Government's requirements—he referred particularly to the sustainable communities plan—while not meeting with adverse comment from lawyers. On this occasion it is the lawyers who need to find the words to say what almost all of us seek to see the Bill achieve. I beg to move.
§ 11.45 a.m.
§ Baroness Hanham
I have three amendments in this group. All of them relate to the extremely important point about the definition of sustainable development. Part 4 of the Bill relates to development control in England and Part 6 to planning in Wales.
Clause 38 is a potentially beneficial clause of substantial effect in planning decision-making. However, at the moment it fails to achieve its objective on three counts. First, it excludes from its ambit local development orders and statements of development principle, the former being found under Clause 39 and the latter under Clause 41. Although at the moment we object to the statements of principle, they are in the Bill at present. Together with the local development orders they form the bedrock of the Government's local planning decision-making and local development control under the new system.
Excluding Clauses 39 and 41 from Clause 38 would unreasonably limit the statutory requirement for the achievement of sustainable development at a local level in making day-to-day planning decisions. By doing so the Government would be abdicating their responsibility in this respect and causing an apparent anomaly. The requirement would be applicable to the planning of schemes and plans but not to the coal-face, which is development control.
Secondly, an undeniably important part of the planning system in this country is to stimulate economic activity and regeneration. The Department of Trade and Industry relies on it. It is recognised by the Office of the Deputy Prime Minister and by the Department for Environment, Food and Rural Affairs. Adherence in the clause to sustainability alone gives insufficient weight to economic regeneration. It is a vital component of planning decision-making for business and commerce, and hence the amendment to ensure sufficient recognition of economic regeneration factors in the decision-making.
Thirdly, sustainability can mean all things to all men. However, it is capable of definition as we demonstrate in our succinct new clause. But to leave the definition to secondary legislation or policy made by the Secretary of State, or to leave it to the courts to sort out later, would be to shirk responsibility within the terms of the Bill and it is unwarranted.
A definition is important to give guidance to the public and those in the planning system as to what the Government and, more importantly, Parliament 326 means by this otherwise potentially nebulous word. As it carries a couple of clauses with it, it is important for people to know what it means.
The meaning that we propose in our new clause has legal basis. It has as its derivation the definition concluded at the UN Human Environment Conference 1972 in Stockholm. It appears on the Government's own website. As time passes and definitions become more and more extensive and complicated, as Amendment No. 112 demonstrates, our amendment takes us back to the root definition of 1972, updated by the words "and natural". It is simple, universal and it has been recognised for the past 30 years. We believe, therefore, that this is a definition which will stand not only the test of time, but put on the face of the Bill, will stand as the definition of sustainable development which, after all, is what the Government are seeking to achieve in many ways in this planning Bill.
§ Lord Greaves
I have two amendments in this group—Amendments Nos. 112ZA and 112ZB—which are amendments to Amendment No. 112 in the names of the noble Baroness, Lady Wilkins, and my noble friends Lady Hamwee and Lord Addington.
As I understand it, Amendment No. 112 has been tabled in order to engender a discussion on the aspects to be included in the concept of sustainability. The noble Baroness, Lady Hanham, has just said that sustainability is very often all things to all men; I would no doubt add "to all women, too". However, that is the precise difficulty. What "sustainability" means to a business person and what it means to an environmentalist are entirely different. It risks becoming a weasel word about which everyone says, "Yes, it's a wonderful idea. It's like motherhood and apple pie, and we are all against sin". But, unless we talk about what it means, it becomes relatively meaningless.
Amendment No. 112 talks about social progress and the environment. Paragraph (c) refers to,prudent use of natural resources",and paragraph (d) talks about,maintaining high and stable levels of economic growth and employment".All those things are important. Yet neither in this amendment nor in the debate about sustainability is there a recognition of the ways in which different types of sustainability may conflict and the best ways in which they can be maximised in order to provide the best possible outcome involving trade-offs, compromises and, inevitably, priorities.
My first amendment would merely add the word "communities" to the concept of social progress. I am not sure that it would provide the most elegantly worded amendment in that there would then be a reference to "access to communities". However, at this stage, these amendments are for discussion and not for writing into the Bill. Therefore, I am not too concerned if the wording is not as elegant as it might be.
327 However, it seems to me that communities are the most fundamental part of the concept of social sustainability. Ultimately, everything else—whether public services or access to education and employment or housing—comes down to the local communities of which they form an important part.
My second amendment—Amendment No. 112ZB—is rather more important. It is an attempt to tease out from the Government what they see as the priorities between economic growth and all other desirable issues, particularly environmental ones. We cannot get away from the fact that a conflict often arises there and one must make a choice. You can engage in some form of development which results in higher economic growth in the short term or you can say, "No. Considerations of protecting the environment", in this case, "or perhaps longer-term sustainable economic growth must take priority over the immediate—perhaps selfish—interests of those of us who live here and now and would benefit from that immediate economic growth".
There are conflicts. Most of the arguments surrounding major planning applications encapsulate the conflict between people who say, "This has to happen because it produces more jobs or more housing for people", and those who say, "Yes, no doubt it may do that, but the environmental or ecological consequences, or whatever, are not worth it. The short-term economic gain is not worth the longer-term environmental loss". Therefore, this amendment suggests that the emphasis should be firmly on the environmental aspects and the prudent use of natural resources rather than on short-term economic growth. That is certainly where I stand.
I tabled the amendment to find out what the Minister has to say about it and to tease out again just how far this Planning and Compulsory Purchase Bill is intended to stimulate economic growth at the expense of other factors, such as the rights of people to object to that growth or to take part in the system. In particular, I want to find out how far it is intended that the planning system, as amended by the Bill, will make economic growth easier at the expense of other factors, such as environmental ones.
§ Lord Marlesford
This group of amendments highlights the problem that exists in respect of planning law in deciding what should be on the face of the Bill—that is, in primary legislation—and what should be in secondary legislation. I believe that the old system of PPGs, which is now the system of PPSs, has served us well. It has two big advantages. First, it is possible to put into the PP system far more detail than one can ever really put into a Bill. Secondly, as the world moves on, it is possible to amend the PP system in a way in which, on the whole, one cannot amend primary legislation.
I believe that primary legislation should give an indication of the major considerations to be taken into account in framing secondary legislation. It should be 328 an indicator of the constraints and of the areas to be addressed by such secondary legislation. However, I do not believe that it should be too tight. That is why I support my noble friend's Amendment No. 111B. It would merely add the words "and economic regeneration", whereas I consider Amendment No. 112, for example, to be far too detailed to be included in primary legislation. It would be quite unsuitable. There are many good aspirations in it but it is not suitable for primary legislation. Frankly, it could lead to endless examples of judicial review and other problems, which would be a barrier to making any kind of progress.
I speak, of course, with an environmental hat on due to my concern for rural England. However, I recognise that, if the Bill is eventually to come out well, it must help, where possible, to speed up planning legislation and make it more efficient. That is why I hope that the Government will feel able to support my noble friend's amendment as an appropriate insert into the Bill. It is merely one of the factors to be taken into account in framing the secondary legislation, which I believe will always have to give the detailed indications of the planning policy.
§ Lord Cobbold
I am one of those who has serious problems with the concept of sustainable development. I am afraid that I cringe every time I hear the word "sustainable" mentioned. It seems to me to be a classic bureaucratic mantra. It is planning-speak for "good intentions". How long will anything be sustained? Who is to sustain it? How is it to be sustained? To me, sustainable development can only be a subjective concept; it defies objective definition.
Amendment No. 112 attempts to provide a definition but it lists only a range of factors against which development plan documents and development plans should be judged, many of which, as has already been said, by their nature are conflicting. One person's or one authority's desire to maintain high and stable levels of economic growth and employment is likely to conflict with another's effective protection of the environment, as the noble Lord, Lord Marlesford, has just noted. At the extreme, airports or motorways and wind farms generate fiercely opposing views.
Clause 38, as it stands, contains no definition of "sustainable development", perhaps because the Government recognise that it is impossible to define. Yet, elsewhere in the Bill, as we have already seen—namely, in Clause 18(5)—local planning authorities are required to carry out an appraisal of the sustainability of their proposals and to prepare a report on their findings. That seems to me to be an unnecessary piece of bureaucracy.
The origin of the phrase "sustainable development" was, I believe, from a 1994 paper entitled Sustainable Development: The UK Strategy. But the most common definition is in PPG1, which describes sustainable development as,development which meets the needs of the present, without compromising the ability of future generations to meet their own needs".329 That definition has the beauty of brevity, but leaves plenty of room for disagreement on whether a particular development is or is not likely to compromise the needs of future generations. It is hard to see how any appraisal of success or failure can be made without the benefit of an opinion from those future generations.
Planning is an art form. No one can accurately predict the future. Planning is the art of reconciling a range of competing and often conflicting aspirations and finding the optimal compromise between various interests in any particular situation. The noble Baroness, Lady Hanham, was right to call for objectives to be set out in planning and to attempt to meet them. But objectives will vary from one part of the country—region, county or district—to another. I believe that the Bill should set out a range of objectives against which planning documents and applications should be measured. That could be done in secondary legislation, as the noble Lord, Lord Marlesford, suggested, rather than on the face of the Bill. One of those conditions should have to be good design, as has been mentioned.
Local authorities would then need to prioritise the objectives and criteria that they deem to be important in their development documents and plans, against which planning proposals would be judged. But there is likely to be a variation in the relevance of different objectives to different parts of a district. Flexibility and judgment must always have a place in the planning process.
I hope that the Minister will at least acknowledge the impossibility of providing an objective definition of "sustainable development", but I expect it is too much to hope that the dreaded phrase can be completely left out of the Bill.
§ Baroness Hanham
Will the noble Lord take it from me that "sustainability" goes back earlier than 1994—it comes from the United Nations conference in Stockholm in 1972? The exact effect of my amendment was agreed in Stockholm and is on the Government's website—I can tell the noble Lord how to find it. But the phrase dates from much earlier than 1994. I, too, agree with him that sustainable development is subjective.
§ Lord Lucas
I am attracted to Amendment No. 113B, tabled by my noble friend, because it gives the first definition of sustainable development that I have seen anywhere that can be evaluated in individual planning applications. There is so much guffery surrounding the subject. If one is trying to balance the benefits to the current generation against the benefits or costs to future generations, how can that be evaluated when someone wishes to put an extension on the back of their house? In Amendment No. 113B one can make that equation. For example, someone can be given permission to extinguish a small amount of grass, with the loss of life of a few ants, because his proposal to put up bat boxes would be acceptable as a reasonable compromise. Something practical would 330 have been agreed. In any case, if the amendment is accepted, we shall need secondary legislation to ensure that enough information is available, so that people making planning applications can understand how they are to make their proposals, and, taken as a whole, contribute to sustainable development. It will be a difficult piece of secondary legislation to write, but I hope that the Minister will indicate some of its contents and the practical effects of Clause 38, of which I thoroughly approve.
My own Amendment No. 112A looks at one aspect of the way in which the introduction of Clause 38 might affect the way that we look at planning decisions. It goes back to points raised by the noble Lord, Lord Rogers of Riverside, at Second Reading. He said that a sustainable city is a multi-centred city. Yesterday, I had the dubious pleasure of spending a considerable time in Willesden Junction, where the undertaker seems to be the most prosperous business. It is probably the happiest, too, because at last one could leave Willesden Junction if one was a customer of the undertakers. But it should not be that way. It is reasonably accessible to the centre of London and has plenty of space. London has become too centre-heavy. The parts around the periphery rely too heavily on the centre and become as denuded, desolate and unkempt as Willesden Junction. I have been in smarter streets in Kabul than in Willesden Junction. It is a decrepit place. That it should be part of our capital city is not what is meant by sustainable development.
We should develop concepts of the type espoused by the noble Lord, Lord Rogers, which seem to encapsulate the idea of sustainable development. That concept should also apply to little villages. My home in Hampshire is not in a sustainable village. It relies heavily on facilities provided outside. It no longer has a shop or a school; one cannot exist there without relying on a car for transport. Every need other than having the house is supplied from outside the village. If we are looking at sustainable communities, we must develop villages in a more sustainable way and make them large enough to command some level of local provision. I would like to see practical evolution of that concept and its effects on the development of the countryside and towns. When we consider the secondary legislation, the Government will have to give many steers and pointers on how Clause 38 will work in practice if we are to use it effectively. Otherwise nothing will happen, because it will be possible to argue any case in any way and there will be no way of reaching even decisions around the country.
§ Lord Chorley
Like many noble Lords, I supported Clause 38 at Second Reading. Most of us probably regarded it as a starting point to the debate we are having now. I will not speak to all of the amendments in the group as there are many of them. Amendment No. 111ZG, tabled by noble Baroness, Lady Hamwee, is important because it makes Clause 38 operational rather than a pious hope. I do not particularly mind Amendment No. 111B, tabled by noble Baroness, Lady Hamwee, on economic regeneration. Although I 331 am not sure that it sits comfortably in a clause about sustainable development, it is there and I do not mind it.
Regarding Amendment No. 112, like everyone who has spoken, I agree that it goes too far in trying to define that elusive and developing concept of sustainable development. It is far too ambitious and detailed and for that reason alone is dangerous, because it ties the legislation down in many odd areas.
The noble Baroness, Lady Hamwee, talked about access under paragraph (a). I agree with her. The noble Lord, Lord Marlesford, spoke about the issue in general terms and I agree that it is not right. The proposal embroiders far too much and muddies what I understand to be the Government's definition. It calls for,social progress which recognises the needs of everyone … effective protection of the environment … prudent use of natural resources … maintaining high and stable levels of economic growth and employment".That is better, but it goes a little too wide.
I agree with the noble Baroness, Lady Hanham, that we need to return to the original concept of the Stockholm conference of 1972. All things considered, I would prefer that route and not the Government's definitions.
Finally, I want briefly to comment on the amendment tabled by the noble Lord, Lord Lucas. When I read it, I thought that he was somewhat dotty—if he will forgive me saying so—because I did not understand what he was getting at. I now understand, but I am not sure whether his amendment achieves his aim. I like the concept of the noble Lord, Lord Rogers, that properly designed cities are the only way forward for sustainable development, but I do not know whether it is worth putting that into the Bill. I like the idea of the importance of design, contained in the amendment tabled by the noble Lord, Lord Lucas, and probably I would leave it at that.
§ Baroness Maddock
I support Amendment No. 111ZG tabled by my noble friend Lady Hamwee because it is important to try to beef up what is contained in the clause, however difficult that may be. At Second Reading, that seemed to be the desire of many noble Lords. If we can include sustainable development as an objective, that will be a step forward and perhaps during forthcoming debates we can agree measures that will make it more forceful.
I agreed with much of what was said by the noble Lord, Lord Lucas, and I want to comment on the sustainability of our housing. The Minister has said many times that one of the objectives of the Planning and Compulsory Purchase Bill is to speed up the process by which we provide homes. We have been creating households at a much greater rate than we have been building homes. All of us share that objective. However, we have seen what has gone wrong in the past and we have demolished some of the developments of the 1960s.
332 It is important that we address that issue and that in drawing up plans at whatever level we are aware of the problems. Today we need to think about the different tenures which make a community sustainable; about the materials that are used in construction; how much waste we create; and what its removal means in traffic movement.
We also need to think about the natural resources that our homes use. I am concerned in particular about water, on which I have spoken previously. Climate change brings an increased risk of flooding, yet we build many estates on ground that does not allow water to drain away and where there is much more hard-standing. We still install in houses water and sewerage systems that are uneconomical in their use of resources. As the noble Lord, Lord Lucas, said, when we are designing new home developments we must be aware that people need to be near to schools and hospitals.
However we resolve the issue of sustainable development today or at later stages of the Bill, I hope that the Government will ensure that the points I and other noble Lords have raised appear in all other aspects of the Bill, whether in guidance or in secondary legislation. We all want to ensure that the issues we have raised today improve the Bill as it passes through your Lordships' House.
§ 12.15 p.m.
§ Lord Rooker
I am genuinely grateful for all the speeches that have been made today. Most were extremely helpful to the debate. I take note in particular of what was said by the noble Lord, Lord Marlesford, about separating out the primary legislation and deciding what detail we want. For obvious reasons, it is easier to change that. I was speaking at a conference earlier today when that very issue arose in terms of planning policy guidance. It can be changed and does not necessarily require a legislative slot.
This is an important debate on an important part of the Bill and I want to make a few preliminary comments. But one thing I will say—and this gives nothing away because I am in no position to do that—is that I do not want to be dogmatic. I do not want to sound dogmatic. I have to resist these amendments at this stage, but that is not to say that we have finished looking for other forms of wording.
I have previously explained why Clause 38 is drafted in the way that it is. We accepted at the outset that there were strong arguments to have in the Bill a statement of what we are planning for. We wanted something that would work and be practical. There are two extremes. We could include a lot of fine words that will look good and make us feel good, but which are quite meaningless—I have seen drafts of such paragraphs—or we could attempt legal definitions which could get us into all kind of problems. There is one that I will share with the Committee when I come to address a particular amendment because it is an example of a possible problem over legal definitions.
333 We decided not to tie the requirement to specific functions. We have a planled system, so the right place for the duty is at the plan-making level. That is how the clause is currently drafted. It bears on the regional planning body and local authority when they are preparing a revision to the regional spatial strategy or preparing local development documents. The planled system provides for decisions to be taken in accordance with the local plan unless there are other material considerations.
The local plan provides the policy framework for the planning decisions and, as a consequence, does not specifically cover development control, as would happen under Amendment No. 111ZF, or any of the procedures covered by Part 4, such as those referred to in Amendment No. 111ZFA. It simply does not need to do that.
A plan in itself cannot achieve sustainable development, as noble Lords will accept. It sets out a framework, but it is the actions that follow which lead to sustainable development. That is why we used the "contributing to the achievement of wording.
We used the words "with a view to" in order to make it clear that the regional planning body or local planning authority should have a positive intent towards sustainable development in exercising the duty. If we had simply said, "with the objective of achieving", there would be a risk that we would place a weight on the plan-making function that we do not believe that it could bear.
Achieving sustainable development will require action on a far wider front than is provided for by what we can do through planning and the planning system. People may argue that the plan has not achieved sustainable development because of issues that the plan could not hope to have addressed. On the other hand, issues that were covered in consultation or the examination, but which were rejected by that process, could be reopened through a legal challenge under the terms of the amendment. That is what we seek to avoid.
We are keen to ensure that the wording in Clause 38(2) is effective. We want to ensure that it works and sends the right message as well as being robust legally. So we shall study the words,with a view to contributing",further, to see whether they can be improved. That is why I can say I am not being dogmatic. I also have to say—because it says it in the brief—that after the work it took to get to where we are, I cannot give any guarantee that we shall be able to find better words.
I can genuinely assure the Committee—of course in the early days the Bill was in my policy ownership—we spent an enormous amount of time with various drafts on this aspect of the Bill and that has continued with the current planning Minister, Keith Hill.
The varying definitions offered up in contribution to this debate all help to underline the point that I am sure Members will expect me to make. That is not to belittle the amendments or the importance of the subject matter. To take the amendments as they stand, the issue is whether one puts a definition on the face of the 334 Bill or whether one uses guidance. The specific amendments use words that are fine in guidance—giving advice on when the concept of sustainable development could apply. None of them causes me any problems in the sense of what is implied behind the words.
The problem is the idea of putting them on to the face of the Bill. They would bring uncertainty in legislation. If the matter went to court, a court would be required to define "social progress", or there could be a debate in a court about maintaining high and stable levels of economic growth. We have the problem of putting words in the Bill that could be used to delay and tie up the planning system in the courts.
Recently—last week or the week before—we published a consultation paper on a proposed urban development corporation for west Northamptonshire. The areas covered in the document included Northampton, Daventry and Towcester. By common consent, when we discussed this matter with our partners in the area, there was a concern that Brackley should be included in that list. Frankly, we wanted to include it, but we were prevented doing so on legal advice. The reason was that to set up an urban development corporation under the current legislation there has to be a regeneration reason. The point was that the case could not be made strongly enough in legal terms to put Brackley on the list, although in that general area it would be impacted by other changes.
In regard to the words of Amendment No. 111B—"and economic regeneration"—I can give one example, on which I have not taken advice. It is an example that I have dealt with recently, in which we could not make the case for regeneration for Brackley, but that does not mean that it should be excluded from the benefit of being in the growth area and what we will operate with the UDC in the other areas. It came down to the fact that there was a problem with the legal term "regeneration"; we could not satisfy the requirements of legislation that has been put on the statute book for those reasons.
I give that as one example, but that is not the reason why we shall not look at it. Certainly it is an example that comes to mind and it appears to be a good idea—we all agree with economic regeneration in areas—but putting it into principal legislation could give rise to all kinds of difficulties if it ever came to court. That is why we should make it clear what we mean by "sustainable development" and why it should be put in guidance. That is the purpose of subsection (3), that in fulfilling the duty the regional planning body and the local planning authorities should have regard to the guidance issued by the Secretary of State. That guidance will explain what we mean by "sustainable development" in this context.
On a number of occasions, in earlier debates, I have mentioned what the Government see as the four broad objectives for sustainable development that will be set out in the forthcoming consultation draft of planning policy statement 1. I shall say more about that in a moment. The four objectives are sustainable economic development, social inclusion, protection of the 335 environment and prudent use of resources. I am extremely disappointed that I have not been able to provide a draft of planning policy statement 1 before now. It is a document that we have to get right. From what I know about it so far, I am confident that it will meet many of the concerns expressed in today's debate.
Without talking out of school or misquoting anyone in particular, in an interview in Planning on 5 December, Jonathan Porritt, who is the chair of the Sustainable Development Commission and one of the Prime Minister's advisers on the issue, indicated that,he has seen a draft of PPS1 and is happy with what he saw".That comes from a rather long article. In other words, the early drafting meets the point. It comes down to the main argument of whether one puts it into principal legislation or into guidance.
Another question is whether one has it right in the first place. First, we need to get it right; whether in guidance or in primary legislation, we have to get the definition of what we are talking about right. Secondly, there is the practical issue, in terms of the legal process and the parliamentary process, of putting it in guidance or on the face of the Bill.
I hope that in due course we shall be able to convince the Committee that we have the matter right. I can give a firm promise to have a draft of planning policy statement 1 ready for the next stage of the Bill. That means that we need it before Report stage so that people can look at it and table amendments. I must not just give it out as we start Report stage. It must be available before Report stage.
Planning policy statement 1 will make it clear that planning authorities should facilitate and promote sustainable patterns of urban and rural development by making suitable land available for development in line with economic, social and environmental objectives to improve the quality of life; by contributing to sustainable economic growth; by protecting and, where possible, enhancing the natural environment and the quality and character of the countryside and existing successful communities; by ensuring good quality and good design; and by ensuring that development supports existing communities and contributes to the creation of safe, sustainable and liveable communities.
I hope that that gives a flavour of the way in which we are working. Although I have not referred to them specifically, each set of paragraphs has covered a group of amendments. I am afraid that Amendment No. 112ZC is unacceptable. It would result in different types of guidance based on the way they impact on the planning authority. Currently, planning authorities must have regard to guidance. That is right because it recognises that, however comprehensive and up to date, there are likely to be situations that the guidance has not foreseen or that the guidance has not addressed in detail, or other issues may need to be considered. That is why the concept of material considerations allows the planning authority to take account of those situations so it is not forced to follow only guidance in 336 developing policies or making decisions. That is crucial. The guidance is important but that concept of material considerations allows a degree of flexibility at local level.
The effect of the amendment would be to remove any discretion from the planning authority. I understand that the term has been used in other legislation, but it would send an unwelcome precedent in planning legislation. I understand also that case law has confirmed that the effect of this formulation is to remove all discretion from the relevant authority. That is a highly dangerous way to operate. We could find ourselves in a position where local authorities are forced to follow the guidance come what may, even when they know it is the wrong thing to do because there are other issues that need to be addressed. We could also end up with a different hierarchy of guidance depending on whether it is guidance which must be followed or guidance to which regard must be had. This is a recipe for confusion and challenge and yet more time in the courts.
I regret that I do not have available the draft guidance. I hope that I have said enough to indicate that we are on the right track. In the end it will come down to the issue of whether or not we put the wording in the legislation. I have given an example of Brackley and regeneration. In order to sustain my argument, before the next stage I shall try to find examples where there has been a court case about such words as are used in the amendments so that I can explain to the Committee why it might be a dangerous route to follow.
We do not want a form of words which those who wish to stifle development out of a principled ideological argument can use to frustrate. I do not claim that any noble Lord has remotely hinted at anything like that; nor do I cast aspersions on outside bodies. But the law is for everyone to use. Therefore, we have to be very careful how the Bill is drafted. We are in some ways in uncharted waters because we have not attempted anything like this before. A planning Bill comes along about once in a decade. We need to get it right, therefore, so that we do not have to wait a decade before correcting a mistake.
I hope that that gives a flavour of the Government's approach. I hope that we shall have available more substance before the undoubted debates on Report.
§ 12.30 p.m.
§ Lord Lucas
I was encouraged by the noble Lord's remarks. As I listened, I considered again Amendment No. 113B. From the Minister's remarks on PPS1, I understand that most of that amendment will be included. However, I hope that he will include "and" which is a crucial piece of drafting. It provides that any development must enhance the natural environment. That is "do-able" already at the big end. If one wants to build a new port facility on the Solent, displacing some ducks and wading birds, one has to include in the development another bit of coast which one spends some time enhancing. I cannot see why that would not be a constructive way of looking at development in the future.
337 if one wished to add 300 houses to a village, by building them in a wheatfield one does not harm the environment very much, a wheatfield being a pretty desolate thing as regards the environment; the odd pond would probably satisfy. However, if one were developing on a more slightly attractive area (in environmental terms), why not be obliged to improve some of the neighbouring woods and meadows so that the environment as a whole was improved by the development? I cannot see why that would not be a good route to follow. It has been adopted very constructively for some big developments and, I would hope, for small ones too.
§ Lord Cobbold
I thank the Minister for his response. It was excellent. He understands the problems that we have with this clause.
§ Baroness Hanham
I am sorry that the Minister did not reflect a little more closely on Amendment No. 113B about which I am most interested and concerned. If it would be helpful, I am happy to give the Minister's researchers the website on which this definition appears. While the words "and natural" have been added to help with exactly the matters the Minister spoke about which will appear in draft PPS1, the definition is universally accepted and has been since 1972. It seems a great pity that we go round trying to reinvent the wheel.
Economic and social exclusion and prudent use of resources are all encompassed in the amendment. I accept that the Minister refers to draft PPS1. The amendment would put on the face of the Bill a definition of sustainable development and it would then be explained in the guidance. At present, the real flaw is that it is just a heading. If we are not careful, "sustainability" becomes jargon. Everyone uses the word without having the faintest idea what they are talking about. It is a wide definition. The amendment confines it to areas about which we are concerned: housing, education, health, land, newts, trees—it encompasses everything.
I do not want the Minister to think that I was so clever that I found this definition myself—perhaps I should say that that was so—but I have been guided towards it. I have also had checked by planning counsel how they would handle it if they ever had to defend it in court. The planning counsel I have asked see it as acceptable.
I am pushing the Minister slightly. As it stands, "sustainable development" in Clause 38 is unacceptable. It gives no clues as to what is being talked about. One can hardly put on the face of the Bill, "Please see draft PPS1" because that will not work either.
"Sustainability" is mentioned not only in Clause 38 but throughout the Bill. Somewhere along the line there has to be a broad definition of it. I urge the Minister to think again about the amendment to which we shall return and perhaps have a longer discussion on it. I believe that it does exactly what the Minister suggested it needs to do and is then susceptible to guidance thereafter if that is what is required. But to 338 leave the Bill without any clues about the meaning of "sustainable development" will probably be unacceptable. I leave the website with the Minister, if it is helpful for him. It is based on the conclusions of the United Nations meeting in Stockholm in 1972 which were agreed by the entirety of the United Nations so for once I have other people on my side.
§ Baroness Hamwee
It is tempting to start the discussion all over again. I shall indulge myself to this extent. The way in which my noble friend Lord Greaves raised the important issue about communities was helpful although he said that it was his secondary point. I have always considered that one could not achieve sustainable development without including economic issues and economic regeneration as part of the whole approach.
The Minister has been helpful. No doubt messages are winging their way to many organisations that he is not dogmatic and that the Government are still looking for the best way. We all look forward to seeing the draft PPS1.
I turn to the particular amendment. I should be willing to forgo Amendment No. 112ZC if we can make Section 38(2), as the Minister said, both robust and send the right message. That is one aspect of the matter to which I am sure we shall want to return, but it is perhaps time to move on. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 111ZFA to 112A not moved.]
§ Clause 38 agreed to.
§ [Amendments Nos. 113 to 113C not moved.]
§ Clause 39 [Local development orders]:
Lord Hanningfield moved Amendment No. 113D:
Page 22, line 23, at end insert "following the expiration of the period of one year commencing on the date on which it shall have given notice of the intended revocation in accordance with regulations under Schedule 4A
§ The noble Lord said: We come now to a part of the Bill that seems to me—in microcosm—to sum up some of the difficulties with which we must concern ourselves on planning legislation.
As we have heard throughout our debates on the Bill, planning is a matter of carefully calibrated checks and balances. Indeed, the objection of many noble Lords to the Bill is that it disturbs that carefully calibrated balance.
Local development orders illustrate the point well. In principle, I am in favour of anything that aids local autonomy. It seems right that we should trust our democratically elected representatives to lead their communities and that we should hold them accountable for their actions.
Local authorities are well placed to exercise their judgment on what development is needed for their communities and how best to pursue that development. As I understand the matter, these provisions mean that local planning authorities will 339 now be able to determine local development orders by themselves, whereas currently this power is held by the Secretary of State.
I hope my understanding is correct. If so, I restate my position. In principle we support providing local authorities with the power to exercise responsibilities towards their communities. In practice, we believe that local authorities are better able to carry out that task than the Secretary of State.
I would encourage the Government to try removing a power from the Secretary of State and giving it to local authorities more often. At the same time, we believe that the existing planning system has served this country rather well for a great many years. We are somewhat nervous of major innovations that would sweep away many of the protections afforded by the current system.
On the whole—balancing these imperatives—we are not opposing local development orders in the amendment. We seek to engage constructively with what we think they are trying to achieve.
The amendment simply ensures that there is an element of stability in the system. There is a concern that developers will simply not understand the parallel planning jurisdictions operating in a specific area. In order to share that, we do not find ourselves in a situation where confusion reigns. The amendment is designed to ensure that proper notice is given on any changes to planning designations.
I hope my understanding of this part of the Bill is correct; that the Minister will understand why I have moved the amendment; and that he will answer my points. I beg to move.
§ 12.45 p.m.
§ Baroness Hamwee
Our Amendments Nos. 113E and 113F are grouped with the amendment. Amendment. No. 113E seeks to clarify the basis on which the Secretary of State or the National Assembly for Wales should review a local development order which has been called in for approval. In new Section 61B, subsection (3) requires account to be taken of any matter which the appropriate authority thinks is relevant. I am advised by the Law Society of its concern that the wording is too vague. The Minister has talked this morning—quite rightly—about the dangers of vagueness and how that can give rise to legal challenge. Is the Secretary of State right to think that an issue is relevant? The term "material considerations", contained in Amendment No. 113E, would narrow the factors to be considered to purely planning considerations.
In Standing Committee, the Minister said that there was nothing magical about this—although he accepted that it is an accepted phrase—in dealing with individual applications. He went on to say:The reason why the clause is slightly broader is that broader issues may well arise".—[Official Report, Commons Standing Committee G, 21/1/03; col. 313.]340 He also said that those matters might not be captured by a narrower definition of "material considerations". They are captured by using the word "relevant", although that is a clumsy phrase. As the Minister then said that he would look at the wording again, can he take the matter any further now?
Amendment No. 113F seeks to require the Secretary of State to give reasons for any direction to a local planning authority to modify a local development order. I accept that the Secretary of State or the National Assembly for Wales will give reasons. I again refer to what the Minister said. He stated:When informing the LPA of the changes that it should make, the appropriate authority will need to explain how the document is deficient. How can it ask the LPA to modify what it considers to be deficient if it does not point out the deficiencies, which are the reasons for the directions?".—[Official Report, Commons Standing Committee G, 21/1/03; col. 315.]Indeed. But one needs to be sure that the reasons are adequately explained. There seems to be no burden on the Secretary of State or the National Assembly for Wales to be required to give reasons. When a similar point was raised on Tuesday by the Conservative Front Bench, in a different context, the noble Lord, Lord Bassam, said that there was,comity … with a measure of agreement".—[Official Report, 27/1/04; col. 141.]He also said that he would consider how to deal with the matter. Perhaps the comity can also extend to this provision.
Noble Lords on these Benches have indicated an objection to Clause 39 standing part of the Bill. Perhaps I can address that now. This is not least because when the matter was dealt with in the Commons, the honourable Member for Cotswold read into the record some extensive comments by the Law Society. It appears from reading Hansard that the Minister had to leave the room. On his return he merely referred to "LDOs"—he does not have the same distaste for acronyms as the noble Lord, Lord Rooker. He continued:LDOs in no way impinge on the environmental impact assessment process … [and] I am grateful for the committee's acclamation of the clause".—[Official Report, Commons Standing Committee G, 21/1/03; col. 318.]I am not quite sure about that point.
I understand that local planning authorities already have the power to make local development orders covering a specific area or about a particular type of development—for instance, they can provide that there should be no restriction on development for industrial use within the area of the business park; but it is not a widely used power. I thought that it might be worth tabling an objection to the Question whether the clause should stand part in order to give the Government an opportunity to explain their thinking and the need for the provision, particularly given the retention, in effect, of powers by the Secretary of State and the National Assembly to direct the local planning authority to submit the local development order for approval and to bar the local planning authority from making the order unless it is specified as necessary by its local development plan or a development plan document.
341 I am not clear—I do not know whether the Minister can help me on this today—about the extent of a local planning authority's powers. For instance, could it amend a general development order to vary the amount of floor space that could be added to an existing building? At present the amount is 10 per cent. Could it be changed locally to a different percentage?
Other concerns have been voiced about whether, because of different arrangements in different areas, local development orders will create and add to the confusion that we have already outlined in our concerns relating to a good deal of the Bill. Of course, we must always be aware that that may damage public understanding of and confidence in the planning system. It has also been said—I do not wholly share the view—that local development orders could lead to widespread environmental damage. Clause 38 certainly needs to be robust enough to protect from such damage.
We all know that relatively small developments and a disproportionate amount of time spent on them by planning officers, local councillors and Members of Parliament can cause enormous anxiety to neighbours. Therefore, a local development order could be a helpful or very unhelpful tool in the new tool kit.
§ Viscount Ullswater
I rise to support my noble friend Lord Hanningfield in his approach to this section. General permitted development orders have proved very successful in helping householders to undertake minor alterations to their properties without the need and cost of applying for planning permission. It appears that local development orders extend that principle on a locally determined basis and should be given a cautious welcome. Until now, the Bill has taken away from local authorities much of their present power of determination. Development plans approved by an inspector must be adopted, and the Secretary of State, even at the end of the road, can adopt a plan on behalf of a local authority. They should therefore be given a cautious welcome.
However, as the noble Baroness, Lady Hamwee, has just said, it is unclear on the face of the Bill what can be undertaken under a local development order. If such an order is to provide for minor relaxations of planning control that everyone can understand, albeit variably applied across the country, so be it. However, will the Minister confirm that, perhaps under new Section 61 A(2)(b) of the principal Act, structures such as wind turbines will not be included in a local development order? Structures of that nature would be most worrying. I understand that, when first erected, mobile phone masts were allowed under general development planning orders.
§ Baroness Hanham
Before the Minister replies, I clearly support what my noble friend Lord Hanningfield said about welcoming greater power for local authorities. However, prompted by my noble friend Lord Ullswater, I have two questions.
342 First, it seems that local development orders will be local Article 4 orders, in that they will grant permitted development by way of a local development order. Perhaps the Minister will confirm whether that is correct.
Secondly, what sort of consultations will have to take place with local communities before a local development order grants planning permission? Under Section 61 A(2), a local development order may grant planning permission, which may relate to all land in the area of the relevant authority, any part of that land and a site specified in the order. In relation to wind turbines and large areas of land, therefore, it would have very wide powers that may affect people quite substantially. At the moment Article 4 directions are sometimes applied to prevent nearby buildings being composite, but also to stop development that would affect other people. I should like to know the extent of that power and what kind of consultation it is expected will take place before those orders are made. If it is correct that the order itself will grant planning permission, what redress will there be by way of appeal?
§ 1 p.m.
§ Lord Bassam of Brighton
To set matters in a useful context, I am tempted first to describe the effect of Clause 39 before I deal with the various amendments.
Clause 39 allows local planning authorities to introduce local development orders that grant planning permission for development without the need for a specific planning application. In effect, it introduces local permitted development rights—a point made by one Member of the Committee—which extend those set nationally in the general permitted development order.
Local development orders can be used by local authorities to implement only policies set out in an adopted development plan document. For example, a development plan document may contain policies aimed at reducing the number of offices in a town centre and increasing the number of shops. A local planning authority might implement that policy by granting specific planning permission by a local development order for the change of use of an office to a shop anywhere in the desired area.
The use of local development orders would have benefits for both local planning authorities and developers, because it would reduce the number of applications that an authority would have to determine, but where its consent was expected to be given. It has that streamlining beneficial effect. It will be entirely up to a local planning authority whether to introduce a local development order. Therefore, that important element of local autonomy—the useful expression used by the noble Lord, Lord Hanningfield—will be preserved.
An authority may also revoke an order at any time, although it will be liable to pay compensation if an application for development that would have been allowed under the order is submitted within a year of the order being revoked and is refused or approved subject to conditions.
343 Clause 39 also introduces Schedule 1, which sets out the procedure for making local development orders. The clause inserts new Sections 61A to 61C into the Town and Country Planning Act 1990. Section 61 A(5) allows the Secretary of State or the National Assembly for Wales to make an order to specify areas or kinds of development for which a local development order may not be made. At present we expect to use that provision to exclude development related to listed buildings, conservation areas and development for which an environmental impact assessment is required.
Section 61B provides the Secretary of State or the National Assembly for Wales with an opportunity to intervene before a local development order is adopted. In such cases, the Secretary of State or the National Assembly for Wales may approve or reject an order or may direct a local planning authority to modify it. New Section 61B also allows the Secretary of State or the National Assembly for Wales to revoke a local development order that has already been made by an authority. That power would be used only in extreme cases, but may be needed where, although the policy in a development plan is acceptable, the effects of a related order had unwanted, adverse impacts that became apparent only after it had been made. So it is a fall-back provision.
New Section 61C enables planning permission granted by a local development order to be granted unconditionally or subject to conditions specified in the order. That may answer the noble Baroness, Lady Hamwee, who asked whether the local development order can be varied. Conditions may be placed or it may be granted unconditionally.
Schedule 1 introduces a new Schedule 4A to the Town and Country Planning Act 1990. Paragraph 1 of Schedule 4A allows the Secretary of State and the National Assembly for Wales by regulation to make provision for the procedures to be followed in preparing, submitting, approving, adopting, revising and withdrawing a local development order. It also allows the Secretary of State and the National Assembly for Wales to introduce requirements in respect of notice, publicity, inspection and consultation—consultation is important so that there is transparency to the order.
The processes from preparing to adopting a local development order will generally mirror those for the local development plan document to which it relates, although independent testing will not be required. It is generally expected, although it is not a requirement, that an order will be prepared at the same time as the development plan document to which it relates, so the burden of preparing an order should be minimal.
Paragraph 2 of Schedule 4A concerns the revision of a local development order. An authority may revise an order at any time. It must do so if so directed by the Secretary of State or the National Assembly for Wales, or if a policy in a development plan document that the order implements is revised or revoked.
344 I hope that that context has given some reassurance to Members of the Committee who have asked questions, because it explains quite well how we see the process working. I shall now go back through the amendments.
Amendments Nos. 113D and 113G would require a local planning authority, the Secretary of State or the National Assembly for Wales to give a year's notice of an intention to revoke a local development order. I understand the caution that motivated the noble Lord, Lord Hanningfield, to table those amendments, but they would allow developers who intend to take advantage of the permitted development rights granted by the order the opportunity to carry out works before the rights were withdrawn. We cannot agree that any notice should be required. The local planning authority, the Secretary of State or the National Assembly may discover that a local development order has unwanted impacts that were apparent only after it had been made. Orders should be revoked as soon as possible in such situations.
The Bill has already been amended in response to concerns raised about what should happen where a developer had already started work permitted by a local development order only to find that the order had been revoked before the development had been completed. Clause 40 allows a local development order to provide that any development started under the order power may be completed even if the local development order is revoked. There is no time limit on when such development should be completed. That ensures that if development is permitted at the time it is started, it remains valid if a local development order is revoked.
Revoking a local development order does not mean that the development cannot take place, merely that planning permission will be required. As I said, compensation is payable under Section 108 of the Town and Country Planning Act 1990 if an application for development that would have been allowed under the local development order is submitted within a year of the order being revoked and is refused or approved subject to conditions other than those imposed by the order. That will ensure that a developer is not disadvantaged if local permitted development rights are withdrawn.
I turn next to Amendment No. 113E, tabled by the noble Baroness, Lady Hamwee. It is not directly consequential on the other amendments, and I am unclear why the noble Baroness proposes it. I assume that she wants to narrow the effect of that part of the clause. It is certainly true that the words "material considerations" are well known. They are used in the context of determining planning applications, as Section 70 of the 1990 Act requires regard to be had to the development plan,so far as material to the application, and to any other material considerations".It may be thought that it would be helpful to use the same words in new Section 61 B(3). We think that to be mistaken. The matters to which the appropriate authority may wish to have regard in considering a local development order made by a local planning 345 authority may not be the same as the material considerations that need to be taken into account in a planning application.
The Secretary of State may want to take a wider view. He may, for example, want to take account of public opposition expressed through the consultation process that he may consider relevant to the issue of approval of a local development order, but which has been held not to be a material consideration in relation to a planning application. It is for such reasons—so that a broader view can be taken of wider public opinion—that our wording is superior and more flexible. He may also want to take account of emerging policy that has not yet reached the stage of being a material consideration.
Finally, I turn to Amendment No. 113F, which was also tabled by the noble Baroness. I have read it and am attracted to it. We want greater transparency in the planning process. In general, the Government's view is that reasons should be stated. If the noble Baroness will agree not to press the amendment today, I am happy to take it away to see how we can meet the concern that has been raised and add an extra layer of transparency.
Those are my considered views on the issues raised. I think that I have answered most of the questions posed. The noble Viscount, Lord Ullswater, asked what could be done under local development orders. Our view is that they can be used only to implement policies as part of the local development plan document. I think that his example and particular concern was wind turbines. We do not think that the practical working of the legislation would be likely to include wind turbines. I understand his caution: he does not want the general capacity that the LDO creates to be exploited. I think I made clear when speaking generally that because of our concern about environmental impact, and so on, we envisage such things being ruled out by the working of the process. I hope that provides the reassurance that he sought.
I hope that the amendments will not be pressed.
§ Baroness Hamwee
I, for one, want to reflect on what the Minister said about the scope of local development orders. They are clearly important, and I want to think further about what he said. He said that he was unsure why I tabled Amendment No. 113E. It was tabled because of concern that the Bill's wording was a little vague, and because the Minister in the Commons said that the Government would reconsider. One always wants to give the Government the opportunity to say that they have reconsidered, just in case they do not volunteer that information themselves.
In planning matters, I always find the extent to which we take account of emerging policy a difficult issue. It emerges through consultation processes, and so on, but how far should it bite until it is finally adopted? So that again goes to the heart of the issue about the scope of a local development order. Having 346 said all that, I am grateful to hear that the Government will consider the points made under Amendment No. 113F and of course I do not intend to press it today.
§ Lord Hanningfield
I thank the Minister for that reply. As I said right at the beginning, I welcome anything that gives more autonomy to local government. This is one of the better parts of the Bill. As the Minister has explained, as long as the local development order is very much tied into the local development plan, it removes some of the fears that my noble friend Lord Ullswater highlighted. I reiterate my noble friend's remarks and give this a cautious welcome. It is important that it does not increase confusion about the changes in planning legislation. It needs to be presented and explained well. However, I thank the Minister for that answer. He has covered the points raised and I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 1113E to 113G not moved.]
§ Clause 39 agreed to.
§ Schedule 1 agreed to.
§ On Question, Whether Clause 40 shall stand part of the Bill?
§ Baroness Hamwee
I apologise for not warning the Government of this. I certainly do not expect an answer today. This is another of my lawyer's points which I apologise for in advance. Late last night I realised that the term used in Clause 40 for the start of development was that the development is "started". But the principal Act in Section 56 uses the terms "initiated" and "begun". There may be no subtle difference, but can I raise it—certainly not expecting an answer now—because if we do not address it, it could earn a lot of other people a lot of money in the future?
§ Lord Rooker
Ten out of ten. I guarantee that I will get an answer and I will not wait for Report before I tell the noble Baroness.
§ Clause 40 agreed to.
§ 1.15 p.m.
§ Clause 41 [Statement of development principles]:
Baroness Hamwee moved Amendment No. 113H.
Page 25, line 11, leave out "must" and insert "may
§ The noble Baroness said: In moving the amendment, I speak also to Amendments Nos. 113J, 113K, 113L, 132B, 134A, as well as the issue of whether Clause 41 stand part. The noble Baroness, Lady Hanham, has Amendment No. 113M in this group. This takes us to Clause 41 dealing with the statement of development principles and alongside that, the whole issue of what happens to outline planning permission.
There has been a great deal of concern, both at local authority level and in the construction and development industry about the workability of new 347 Clause 61E. Is this clause capable of independent life outside of the old Section 92—the outline planning permission clause? I hope that the Minister can reassure us today and take the opportunity to amplify the Statement made by the Minister for Planning on 15 December. He indicated that government thinking has moved on a good deal in the year or so between the consideration of these provisions in another place and when the Statement was made. The Minister said on 15 December that on the basis of representations he was content to consider further the removal of provisions from this Bill that abolish outline planning permission.
Amendment No. 113H relates to new Clause 61 E(1) and provides that the local planning authority must issue a statement of development principles on request. Subsection (5) allows it to decline to do so only on limited grounds, such as disagreeing with a similar request within the previous two years. There are obvious concerns about workload here. Will speculators go on fishing expeditions and get the local planning authority to do the work for them? If the local development documents are worth anything—and I hope they will be—then what would be the value of this particular subsection? I wondered whether it was equivalent to what I am accustomed to referring to as a site brief. This is where the local planning authority sets out criteria for development deals with parameters and perimeters, access and so on. However, I believe this is quite different. Therefore I have tabled the word "may" rather than "must" in this context. I have written down what worried me when the Minister said in another place:
I see no reason why the Local Planning Authority should not be obliged to form and state its view on that question."—[Official Report, Commons, Standing Committee G, 21/1/03; col.327.]
Is that equivalent to letting the authority decide whether it should determine an application for planning? Local authorities may well not understand what would be required of them. Can the Minister tell the Committee whether the work that would be done in these statements is something for which a local authority can charge? I say that because I was the chair of the local planning authority which imposed a charge only to recover costs for advice to developers. The judgment was heard in your Lordship's House in the case of McCarthy & Stone. I felt very sad that the outcome was not as I would have wished it. However, we have the recent Local Government Act which may or may not affect this.
Amendment No. 113J is not one that I wish to make too much of. As all these amendments are also in the names of the noble Baroness, Lady Hanham and the noble Lord, Lord Hanningfield, they may wish to speak to them. Amendment No. 113K requires sufficient information to have been provided by the applicant to enable a decision to be made. Again I was worried by what was said in another place. The Government said that they intend to specify in a development order that someone requesting a statement will need to provide as a minimum a site location plan and a description of the proposed development. If they wish to provide more
348 information such as detailed drawings, they will be able to do so, but the Government do not intend to require more. I thought that that amounted to making the local planning authority do the potential applicant's work. Although planning should be a cooperative, deliberative process with a lot of dialogue, not just something to which the local planning authority reacts, there are limits to that.
Amendment No. 113L relates to an environmental impact assessment of the proposed development. I see from a letter—it is only a letter, so perhaps something should be put on the record—sent to Members of the other place that the Government do not intend to introduce a requirement for an environmental statement to be prepared. The Minister may want to explain that, as it will be of concern to many people, myself among them. If an environmental impact assessment is not required, can the planning authority say, "We've got to do it before making the statement"? If the statement amounts to an agreement to the principle of development, an environmental impact assessment after the statement can do nothing more than address compensation and mitigation. It certainly cannot prevent the development.
Amendments Nos. 132B and 134A are about the repeal of Section 92, which relates to outline planning permission. Statements from the Government before last December were on the lines that, as and when statements were up and running, the Government would repeal the provisions relating to outline planning permission. I do not want to take too much longer, but, as I said, it must be understood that we do not see the statements as an effective alternative to outline planning permission, and neither, it is clear, does the industry. The statements are not fundable, and there will be no certainty for investors. If no outline planning permissions are available, there will be difficulties for the development industry.
I can sum it all up as being too simplistic. Outline permissions are a tool in major proposals, and the industry, which has been consulted and, I hope, will be consulted further by the Government, does not want the change. Local planning authorities are fearful. The Government would need strong justification to go ahead. Certainly, they should give an explanation, as none of those scrutinising the Bill appears to have found their reasons convincing. The Government must give a more convincing explanation. I beg to move.
§ Lord Hanningfield
I am happy to support the amendments. I realise that we are under pressure of time, but I am afraid that I have a lot of comments to make.
As has been said, we welcome some of the changes that the Government propose in Part 4. Nevertheless, Amendments Nos. 113H to 113M and 132B are necessary, as the Government have not thought through properly the introduction of statements of development principles.
Amendment No. 113H would give local authorities more discretion in the issue of statements of development principles than is proposed in the Bill. 349 Amendments; Nos. 113Kand 113L are complementary to that aim, in that they support specific aspects of local authority discretion. The three amendments would enable local authorities to decline to issue statements of development principles on the basis of insufficient information.
Amendment No. 113J is a probing amendment. With the amendment, we simply seek clarification from the Government of whether it will be local authorities that ultimately decide whether the development plan is material to the request for a statement of development principles.
Amendment No. 132B would mean that provisions for outline planning permission would not be omitted, at least not yet, from the Town and Country Planning Act 1990. Finally, Amendment No. 113M is a probing amendment designed to test the Government's thinking on how they propose to minimise the level of deliberate frustration in the planning system. If Amendment No. 113H were accepted, Clause 41(5) would be unnecessary anyway.
As far as I can judge, the statement of development principles is being introduced as an eventual replacement for outline planning permission. Apparently, that will provide speed and certainty for a developer, when considering a project. The Government should explain exactly why they believe outline planning permission to be deficient in either speed or certainty. We strongly believe that the Government have not yet made the case for how statements of development principles will add value to the planning system in this country. We have met a lot of developers and have heard a lot of concern. They use outline planning permission to obtain finance and acceptance for the development. They borrow from the bank on the basis of outline planning permission, but they are not certain that they will be able to do that under the new process. There is a lot of fear in the system.
We appreciate and support the Government's aim of adding transparency and, by extension, more certainty to the pre-application process, but it seems doubtful that statements of development principles will achieve that. As far as I can see, there is no discernible benefit to applicants, local authorities or the public. If the overall aim is to address the weaknesses associated with outline planning permission, why not address those problems directly—for example, by encouraging earlier discussions in the application process between developers and planning departments? Why must we get rid of the outline planning permission process completely, albeit not immediately, to achieve more certainty? It is worth pointing out that developers and planning departments have not been persuaded that statements of development principles will add more certainty to the process, as I said.
Amendments Nos. 113H and 113K would ensure that local planning authorities will not feel compelled to approve or refuse applications, when they simply do not have sufficient evidence by which to judge the merits of an application. That could happen because, 350 as the Bill stands, there is no provision to allow the local authority to decline a request to issue a statement of development principles on the grounds of insufficient information. Local authorities may be put in a position in which they do not have the confidence in their legal position to say that an application is entirely unacceptable, which, I believe, is the only ground on which they can decline to issue a statement of development principles, even if they also feel that they have not been provided with sufficient information—for example, information about design or infrastructure—on which to base their decision.
As organisations such as the Campaign to Protect Rural England have pointed out, that would put pressure on local authorities to issue statements of development principles that agreed with the proposed developments and then spend valuable time and resources trying to decide what safeguards and conditions should be placed on them to meet any eventuality. With a national shortage of skilled planning personnel, the Government should not be devising extra unnecessary work for planning departments. It will simply clog up the system, and we are trying to speed it up. Of course, it is important that a statement of development principles is not used inappropriately. Just as with outline planning permission, it may be an important material consideration in the final decision on planning permission.
Amendment No. 113L would address our concern that the statement of development principles does not have to take into account whether a proposed development would require an environmental impact assessment. We are aware that the Government have stated that, because the statement of development principles does not itself grant consent to allow a development to go ahead, an environmental impact assessment is not a requirement. We would like reassurance from the Minister that this arrangement, whereby the principle of a development has been agreed prior to the outcome of an environmental impact assessment, will not undermine the integrity of the environmental impact assessment and its capacity to reach a different conclusion from the statement of development principles.
As I have already mentioned, with regard to the workload of planning departments, we also believe that statements of development principles would mark an unacceptable shift in the burden of planning applications away from the applicant to the local authority.
This is not simply an argument about planning authorities having had insufficient information and then dealing with the consequences. It is also partly because the number of requests for statements of development principles will be much higher than outline planning applications. It flows from the fact that anybody can ask a local authority for a statement of development principles.
Thus, in relation to Amendment No. 113M, I would like some reassurance from the Minister that the new procedures for statements of development principles 351 will not be used to frustrate legitimate development. Our concern is that in some circumstances, local authorities might be asked to determine requests for statements of development principles before the information on which requests should be judged is available.
New Section 61E(5) states that,a local planning authority may decline to issue a statement of development principles before the end of the period of two years",if it disagrees with the principles of the development. Thus, a local planning authority could quite legitimately issue a new statement of development principles that agrees with the developer's proposal before the end of that two-year period.
As I said earlier, I am really probing the Government's thinking at this late stage about whether they see the discretion afforded local planning authorities in subsection (5) as a mechanism by which to deal with any potential exploitation of statements of development principles by those who just want to stop all development, regardless of its benefits. I would be grateful for clarification on that.
I also believe that deleting subsection (5) of New Section 61E would be in line with the preceding amendments, the fundamental point being that it would be much simpler and more democratic to give local planning authorities the discretion to decide whether to issue statements of development principles to any particular development.
This is a very complicated process. We will obviously have to discuss it further, but I have put it on the record, and I would like the Minister to give us some assurances on these issues.
§ 1.30 p.m.
§ Lord Marlesford
I will not detain the Committee. However, as I heard the Minister say a moment ago when my noble friend rose to speak, this is a very important clause and a very important matter. Although one commends the Government for devising the statement of development principles as a means of increasing transparency, and so forth, it could be very dangerous. Ultimately, what matters is that developments do not take place if they should not take place. That is what this should be about.
I fear there are echoes in the way in which the clause could be used that might result in that happening. I have one example; it is not directly related but it has often been a worry to those of us who are concerned with these matters. I refer to the way in which, so often in the past, local authorities have been intimidated by developers in certain cases more or less threatening to claim damages in instances where a planning application is refused and then granted on appeal. That philosophy could be used by people in getting these outline permissions without having given sufficient information so that a proper decision can be made by the local authority. So I would be happier without the clause, unless it can be reworked.
§ Lord Avebury
The clause says that the local planning authority must issue a statement of development principles in relation to a proposed development. My noble friend suggests that "must" should be replaced by "may". In that context, will the Minister explain how this clause interacts with the policies of the local authority under the Licensing Act 2003? So far we have not had the guidance under the Licensing Act, and we do not know to what extent local authorities will be allowed to impose limits on the number of licensed premises to which planning permission will be awarded. Until that guidance is published, I cannot see how the local authority would be able to interpret a requirement that it must issue a statement of development principles. If it does not have guidance under the Licensing Act, it does not know to what extent the local authorities may impose some numerical limits on the number of licensed premises to which planning permission is awarded.
As the Minister will be aware from the debates on the Licensing Bill many months ago, there is considerable anxiety among local authorities about the extent to which they can exercise limits on the number of licensed premises by means of planning controls.
§ Lord Rooker
In answer to the question about licensing from the noble Lord, Lord Avebury, I do not have a clue but I will find out and write to him. I will not be able to give him an answer today.
I am delighted with the new-found interest in the proceedings of this Bill, given the greater attendance in your Lordships' House at this part of our proceedings. On the other hand, if I was misunderstood and anyone has come for the other Bill, I suggest they go and get a cup of tea, because I have the largest speaking note on this group of amendments than on any other.
As the noble Lord, Lord Marlesford, heard me say, this clause is very important. To keep everyone happy, my officials have ruthlessly edited the speaking note, so it will not be the 17 pages that I had planned to use, but I will do my best. I will not curtail my speech unnecessarily because this is a crucial part of the Bill. It is where the Bill starts to get interesting and sexy, if you like. It has been a little boring until now, but when we get on to outline planning permissions and situations such as this it becomes much more interesting.
The statement of development principles is a new procedure for anyone wishing to obtain an indication from a local planning authority about whether all or part of a proposed development would be acceptable in principle. The statement of development principles is halfway between an officer's informal view and an outline planning permission. A statement of development principles will be a material consideration for the purposes of determining an application for planning permission for a similar development that is submitted within three years. A statement of development principles does not grant the applicant any consent to do the works. That being the 353 case, it may stop the applicant raising finance, and I fully accept the point made by the noble Lord, Lord Hanningfield.
As far as the relationship between the statement of development principles and outline planning permission is concerned, there has been much debate about this proposal. Statements of development principles will at first supplement and might eventually replace outline planning permission. We believe that the way in which outline planning permission is currently handled by some authorities has significant faults. At its worst, it allows redlining on a map of an area or site for development for a particular use or uses of land with no detail shown. This is not an acceptable state of affairs. Local communities should have early opportunities to engage in discussion of proposed developments. The Government are laying increasing emphasis on the importance of pre-application discussions. Good developers will undertake such discussions. The Government want this best practice to become standard practice. A statement of development principles is one means of formalising the dialogue between a developer and a local planning authority.
We said in a Written Statement on 15 December—I cannot go further than that today—that if we retain outline planning permission, we will need more detail. We are waiting for a response from the development industry. I certainly hope that by the time we reach Report we will be able to have better particulars in that respect.
The outline planning permission would need to provide sufficient information for a local authority to make an informed decision about whether an environmental statement is required. On community involvement, the Government consider that a local planning authority statement of community involvement should set out how the community should be involved in significant planning applications. Outline planning applications should provide sufficient information to allow the community to comment in a meaningful way.
We are considering possible mechanisms for ensuring that additional information is required at the stage of application for outline planning permission. One mechanism might be guidance; another might be the use of secondary legislation.
Clause 42 allows for a development order to make provision as to documents or other materials that are to accompany a planning application. The general development procedure order might be used to require a design statement to accompany an application for outline planning permission. That is by way of an example that could be given. If we were to pursue that approach, the new system of development control could include both statements of development principles and outline planning permission. Statements of development principles would provide developers and local planning authorities with an additional tool for building up an agreed development prospectus for a site. Outline planning permission could be used either after or instead of a 354 statement of development principles. That would be for the applicant to decide. I understand that the issue of being able to raise the funds necessary is a crucial link, but the developer would have the opportunity to decide. Full planning permission, requiring the submission of all details of the proposed development, would not change. It would therefore remain the case that development could not commence until reserved matters had been approved.
We do not agree with Amendment No. 113H. If an application for a statement of development principles is received, a local planning authority should be required to come to a decision. In issuing its decision, the local planning authority will have to indicate whether it agrees with the principle of all or part of the proposed development.
Amendment No. 113J would require the local planning authority to have regard to the development plan rather than having regard to the plan so far as it was material to the request for a statement of development principles. The existing wording mirrors existing provisions such as Section 70 of the Town and Country Planning Act 1990, which requires local planning authorities considering planning applications to have regard to the development plan,so far as material to the application".The deletion of those words cannot be right, because it cannot be right for a local planning authority to have regard to the development plan if it is not material to the application.
Amendment No. 113K is coupled with Amendment No. 113H. It would give the local planning authority discretion whether to decide on a statement of development principles depending upon the adequacy of the information submitted. By itself, it would have no effect, since the authority would be obliged to issue the statement of development principles whether or not sufficient information had been provided. I consider it right that a local planning authority must issue a decision, but it can only make its decision on the basis of the information submitted by the applicant. If the application lacks detail, so will the statement of development principles. But in issuing its decision, the local planning authority would be able to include details of any information that it would require to accompany an application for planning permission.
Amendment No. 113L would make an environmental impact assessment a possible requirement and a possible material consideration for a local planning authority in considering a statement of development principles. We see no need for that. An environmental impact assessment will not be required on an application for a statement of development principles, because such a statement is not a development consent. We propose to provide in the secondary legislation that if a local planning authority considers that a proposed development would require an environmental impact assessment, it must state in the statement of development principles its opinion as to the information to be provided in an environmental statement. Its agreement to the principle of the 355 development would be subject to such information being provided with an application for planning permission.
Amendment No. 113M would prevent a local planning authority from declining to issue a statement of development principles where it had issued a statement disagreeing with the principle of all or part of a similar development within the previous two years. I can understand the concern that an authority might decline to issue a statement even where a potential developer has changed some factors of a proposed development in order to address concerns raised by the local planning authority in the first statement. However, it would be illogical to require an authority to deal with repeated requests for statements of development principles when, elsewhere in the Bill, we are proposing to provide them with the power to decline to determine repeated requests for planning permission. That is an issue that we shall come to, though certainly not today.
Amendments Nos. 132B and 134A would retain outline planning permission in the Town and Country Planning Act 1990. We are considering the retention of outline planning permission. That would be on the basis that it provided a level of information that would enable local authorities to assess all the significant environmental impacts from proposed developments. Discussions with representatives of interested parties, including the development industry, are ongoing as I speak—but probably not at the rate of pace at which I am speaking. But it will be okay, Hansard—honestly—because I stuck to the script.
I hope that I have given a flavour of how we want to proceed. This is an issue on which we do not have a closed mind; we made that clear in the Statement on 15 December. There are important financial aspects; nevertheless, we wish to get over the problem that exists at present, with the sometimes scandalous situation that arises regarding outline planning permissions. I had that as a constituency Member in the other place. Some of the issues that arise as a result of an outline planning permission being granted are quite disgraceful. The noble Lord, Lord Rogers, or another noble Lord, made the point that the development that turns up later may have no relation whatever to what people believed was in the outline consent. We have to deal with that, and we are trying to find ways in which to do so; I hope that, by the time the Bill reaches the statute book, there will be an agreed way by consent across the Floor to find a solution. Therefore, I hope that the amendments can be withdrawn.
§ 1.45 p.m.
§ Lord Hanningfield
I thank the noble Lord for that answer. He had a lot to read, just as I did when I had my notes to read through.
Many concerns were raised, and I am sure that the noble Baroness, Lady Hamwee, will address some of them in a moment. The Minister said that discussions were ongoing, but discussions must speed up, because 356 before we get to Report stage we would like to know more of how the Government can accommodate many of the fears within the industry and a lot of the bureaucratic nature of the work for the planning authorities. Those hard-pressed authorities will not have the resources to fulfil some of the Government's requirements. However, the fears are there in the development industry in particular. As the Minister said, discussions are going on, and Report stage will be the next opportunity to discuss those matters in detail. I hope that the Government are then able to accept some of our amendments.
§ Baroness Hamwee
I do not believe that the Minister dealt with my question about charging, but I do not blame him for that.
§ Lord Rooker
No, I can do—at least, I did have a note on that, although I seem to have lost it. We retain an open position on the work under the statement of development principles. It may be that there will be an element of charging, but no final decision has been taken. I am sorry that I do not have an answer to the noble Baroness's question.
§ Baroness Hamwee
I am grateful to the Minister, and hope that the open mind comes to the right decision.
At this point, I do not want to go through the Minister's comments in detail. I do not want to impugn the Government's good faith in pursuing the issue—and I take the Minister's point about the difficulties regarding outline permissions. Some people refer to them as "trophy architects". However, that strongly suggests to me that Clause 39 should not remain in the Bill and that Section 92 of the 1990 Act should not be subject to abolition when the Secretary of State decides, unless the matter has progressed very considerably by the next stage in the Bill.
The Bill began its passage in October 2002, and I cannot remember how long before the Bill the Green Paper was published. Of course, I do not for a moment object to consultation; it is absolutely essential to hold consultation with everybody who is concerned. However, it would be quite wrong for the House to be asked to agree to take a very substantial step in the absence of something much closer to a conclusion about what will be put in place. We shall put that to the House next time, unless there is a lot of progress before then. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 113J to 113M not moved.]
§ Clause 41 agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.