Clause 39 - Local development orders
Planning and Compulsory Purchase Bill
2:45 pm
Mr Matthew Green (Ludlow, Liberal Democrat)
I beg to move amendment No. 240, in
clause 39, page 21, line 12, leave out 'Complusory' and insert 'Compulsory'.
Mr Peter Pike (Burnley, Labour)
With this it will be convenient to discuss amendment No. 244, in
clause 44, page 32, line 5, leave out 'satisifed' and insert 'satisfied'.
Sir Sydney Chapman (Chipping Barnet, Conservative)
I congratulate the hon. Gentleman on his eagle-eyed spotting of two typographical mistakes. I read the Bill and did not spot them, but he did—good luck to him. As his eye is
more eagle than mine, I want an assurance from him that there are no more typographical errors in the Bill. [Laughter.]
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
I would love to say that there is a technical term ''complusory'' that is different from compulsory, but I can only congratulate the hon. Gentleman on identifying the mistake. However, I ask him to withdraw the amendment purely because of the technical difficulties with printing, as it would cost an enormous amount to reprint the Bill between now and Tuesday next. I cannot tell the hon. Gentleman how much, because I do not have the details to hand. On the premise that I assure him—
Mr Peter Pike (Burnley, Labour)
Order. I advise the Minister that if he does not accept the amendment, Government amendments will have to be moved at some stage. Although the errors are clearly typographical, they will continue to remain in the Bill, so the changes will have to be rendered through amendment at some stage.
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
That is what I was coming to. Like the hon. Member for Chipping Barnet, I do not have confidence that there are only two errors or that, given his busy recent schedule, the hon. Member for Ludlow has picked up all of them. I undertake that my counsel will go through the Bill to find all the typos, so that we can clean them up in one fell swoop.
Mr David Wilshire (Spelthorne, Conservative)
On a point of order, Mr. Pike. The Minister said that in the event of the amendments being passed, the Bill would have to be reprinted straight away, and he used that as a reason for rejecting them. My understanding is that a Bill is reprinted at the end of the Committee stage, after all the changes have been made. Unless the Minister is saying that he will not accept any changes on principle, it will have to be reprinted at some stage.
Mr Peter Pike (Burnley, Labour)
I shall take that point of order, but I will let the Minister intervene, too.
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
Further to that point of order, Mr. Pike. I meant to get across the point that there may be other typos. I am grateful that the two in question have been picked up, but we should get officials on the case to check the whole Bill before it is reprinted, so that those two are not sorted with a bunch of others still in the Bill.
Mr Peter Pike (Burnley, Labour)
The position is that after amendments have been agreed in Committee, including Government amendments to take care of any such printing errors, the Bill is then reprinted. If the two amendments are accepted today, it will ultimately be reprinted, but not straight away.
Mr David Wilshire (Spelthorne, Conservative)
Further to that point of order, Mr. Pike. If the Government are suggesting that the amendments should be withdrawn and that the Government will return with their own amendments, am I right in thinking that we can table amendments to any clause, even if it has been debated? If we do not deal with the errors now and move on to subsequent clauses, does the Government have the power to table an amendment to a provision that we have already disposed of?
Mr Peter Pike (Burnley, Labour)
The Government may not do that until Report. The hon. Gentleman is right. The Bill will stand with the errors until Report, when it would be possible for someone to move amendments again, if the Government did not do that.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
We have properly established parliamentary procedure in which we scrutinise Bills line by line in Standing Committees. Here are two of the simplest errors that one could possibly wish to encounter, and the Government are resisting changes. The Committee would look completely incompetent if we reported the Bill to the House with two glaring spelling mistakes uncorrected. The Government are asking us to do an extraordinary thing. It is as plain as a pikestaff that the Minister is absolutely determined to send the Bill out of Committee with no amendments. We should shout from the rooftops if the Government do not accept these two amendments—the Green amendments—which are excellent. The errors were well spotted, and the hon. Member for Ludlow deserves the Committee's congratulations.
Mr Matthew Green (Ludlow, Liberal Democrat)
I had no idea that two spelling mistakes would cause so much debate. Frankly, I do not mind whether the amendments are accepted now or on Report.
Sir Paul Beresford (Mole Valley, Conservative)
Might the hon. Gentleman tell the Government which superior form of spell check he uses?
Mr Matthew Green (Ludlow, Liberal Democrat)
I did not put the Bill through a spell check. If the hon. Gentleman were to read my speaking notes, he would find many more spelling mistakes in them.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
I hope that the hon. Gentleman will push his amendment to a vote. It would be extraordinary if the Committee allowed the Bill to go unamended when it contains spelling mistakes. The Government must respond.
Mr Matthew Green (Ludlow, Liberal Democrat)
I am at a loss to know what to do. I am assured by the Minister that he will bring the matter back on Report, perhaps finding even more spelling mistakes before then. I understand his reasons for wanting to do that, but I remain dumbstruck that two spelling mistakes should have generated quite so much interest. I had thought that I would just stand up and say that they were there, and that by the time I had sat down, the amendments would have been accepted. Clearly, that was not the case.
None the less, I shall have to disappoint the hon. Member for Cotswold. I am prepared to accept the Minister's assurance that he will go through the Bill with a fine-toothed comb to find any further spelling mistakes, and will table amendments on Report. I am not here to win victories about spelling mistakes; I came into politics to be involved in bigger issues than that. I beg to ask leave to withdraw the amendment.
Mr Peter Pike (Burnley, Labour)
As an hon. Member has objected to leave being withdrawn, I must put the Question on the amendment. For the guidance of the Committee, the Question will be on amendment No. 240, in clause 39, page 21, line 12, as listed on the Amendment Paper.
Mr David Wilshire (Spelthorne, Conservative)
On a point of order, Mr. Pike. I really am not clear what we are to vote on.
Mr Peter Pike (Burnley, Labour)
I want everyone to be clear, which is why I have referred to the amendment. The procedure is unusual, but it is in order. Once the amendment has been moved, it is the property of the Committee. When the Question was put that leave should be given to withdraw it, the Committee disagreed. I shall now put the Question on the amendment to the Committee.
Mr Matthew Green (Ludlow, Liberal Democrat)
Further to that point of order, Mr. Pike. I am sorry but I am relatively new to this place. Are we to vote on whether my amendment should be withdrawn, or on the amendment itself?
Mr Peter Pike (Burnley, Labour)
I gave my guidance so that hon. Members would know exactly what they will vote on. I am putting the Question on the amendment, and all hon. Members should now know what they are voting on. If one voice dissents, an amendment cannot be withdrawn. The vote to come will be on the amendment. Is everyone clear on that?
Question put, That the amendment be made:—
The Committee divided: Ayes 3, Noes 8.
Division number 13 - 3 yes, 8 no
Voting yes: Paul Beresford, Geoffrey Clifton-Brown, David Wilshire
Voting no: Huw Edwards, Barbara Follett, Hywel Francis, Ivan Henderson, Tom Levitt, Tony McNulty, Dan Norris, David Wright
Mr Peter Pike (Burnley, Labour)
Let me make it absolutely clear that when an amendment is put at the end of a debate, if the mover seeks to withdraw it, there is a question before Members. The Chairman always puts that question to withdraw, and I have put that every time. If an hon. Member objects, I have no option but to put that amendment to the Committee.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
I beg to move amendment No. 217, in
clause 39, page 21, line 29, at end insert
'but only after giving one year's notice'.
Mr Peter Pike (Burnley, Labour)
With this it will be convenient to discuss the following:
Amendment No. 368, in
clause 39, page 22, line 30, leave out subsection (8).
Amendment No. 218, in
clause 39, page 22, line 31, at end insert
'but only after giving one year's notice'.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
We now move on to part 4 of the Bill, which is on development control. The first clause in that part is on local development orders. It might help the Committee if I quote the first sentence
of the explanatory notes on clause 39 to put it into context:
''By providing for local permitted development rights, clause 39 introduces a new procedure to allow local planning authorities to expand on the permitted development rights set nationally by way of development orders.''
Those permitted development rights allow the developer or applicant to carry out a particular development without having to obtain planning permission. They were originally set out in the general permitted development order.
Under this new procedure, the general permitted development order can be varied by the individual local planning authority. That is quite a radical procedure, laid out carefully in the Bill. Amendment No. 217 relates to new section 61A(6), which says:
''A local planning authority may revoke a local development order at any time.''
To put that into context, developers, applicants and others will know from their local authority what permitted developments are allowed, without having to obtain planning permission. A statement of development principles will be drawn up by the local authority at some stage, and everyone will be entitled to obtain a copy.
If a local development order can be revoked at any time, a developer might be on the point of carrying out a material development but suddenly find that the local authority has withdrawn the permitted development right on a whim. It seems right to us that that should be allowed only after giving one year's notice. I do not know whether one year is the correct period, but the local authority should not be able to withdraw that right immediately, on a whim. It should have to give some notice.
The only exception to that should be if a local authority is trying to prevent an immediate abuse or nuisance. If that is the Minister's defence against our amendment, he should be able to frame a specific amendment to deal with those exceptional circumstances.
Amendment No. 368 would leave out subsection (8), which says that schedule 4A makes provision in connection with local development orders. Again, the aim seems sensible. There has to be some certainty in the system, and we need to find out from the Minister exactly what subsection (8) means.
Amendment No. 218 is intended to do the opposite. It would prevent an order from coming into effect until one year had passed. The orders may involve a negative power, preventing some form of development, or a positive power, allowing a particular class of development.
It may help the Committee if I give examples of what is covered under the general permitted development order. One widely used power is the general extension of houses by up to 10 per cent. of floor area. The clause might vary that power. Another example is where an agricultural building is a certain distance away from the highway. It does not have to have planning permission, but its design still has to be
approved by the local planning authority. Another power under the general permitted development order is for certain activities—for example, car boot sales—that can take place in less than 14 days. If they take place more than 14 days, they need planning permission.
All those events and developments might be varied by the clause. In the same way that we seek to fetter the local authority's ability to withdraw an order without giving notice, so we seek to fetter the Secretary of State's powers. He should have to give notice of one year, as in amendment No. 218, before revoking or modifying any powers. That seems only reasonable.
This is a relatively complicated matter, and other aspects will be covered by further amendments, but it will be useful to hear what the Minister has to say.
Mr David Wilshire (Spelthorne, Conservative)
Amendment No. 368 relates to what seems a very curious subsection. It says that schedule 4A makes provision in connection with local development orders. I am at a loss to know why that appears in that form: it is a statement of the obvious. Either schedule 4A makes provision or it does not.
Mr Matthew Green (Ludlow, Liberal Democrat)
I, too, am at a loss. Amendment No. 368 relates to subsection (8) on page 22, not subsection (8) on page 21, to which the hon. Gentleman is referring. Perhaps he can clarify that.
Mr David Wilshire (Spelthorne, Conservative)
I stand corrected and I am grateful to the hon. Gentleman, but I believe that the Minister wants to respond to my curiosity about the subsection to which I was referring. If he says that all statements of the obvious should appear in the Bill, we will have an awful lot of amendments. That subsection adds nothing. It does not say why that reference exists. I will not repeat the point at the stand part stage, but perhaps the Minister can cover it at some point.
Amendments Nos. 217 and 218 relate to giving notice, as my hon. Friend the Member for Cotswold said. I am not wedded to one year either; it is the principle that matters. Someone might do an awful lot of work making plans and preparations and incur a fair amount of costs, because they know that what they are about to do is covered by a local development order and that they do not need permission for it. All of a sudden, that is revoked with no notice at all. One day the order is there; the next it is not. Suddenly, all that effort, time and money is wasted because the local planning authority or the Secretary of State, who have to be pursued, say no. People will have incurred expenditure and made preparations in good faith only to find that it cannot be done.
Solving the problem by insisting on giving notice may not appeal to the Minister. I can imagine him arguing that in the six months before the change, all sorts of people could get up to something that the Secretary of State or local planning authority do not want. Alternatively, we could allow the Secretary of State or the local planning authority to compensate people for their wasted time, effort and expenditure.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
May I help my hon. Friend, whom I may have led down the path of error? I also read a reference to page 21, but it should be page 22,
and amendment No. 368 is designed to delete subsection (8) of proposed section 61B, which states:
''The appropriate authority may at any time by order revoke a local development order if it thinks it is expedient to do so''
at any time. My hon. Friend would agree that that is a draconian power.
Mr David Wilshire (Spelthorne, Conservative)
I am grateful. If what I said earlier is the only rubbish I speak in Committee, I shall be eternally grateful and quite surprised. Now that my hon. Friend has drawn my attention to what I should have been talking about, I shall accept his invitation to continue.
Subsection (8) confers once again jackboot powers on the Secretary of State. The local planning authority may be content with a plan, but the Government do not care about local democracy or what local people want, so the Secretary of State can order them to carry out the Government's plans. If the Minister will not accept the ''giving notice'' argument, I hope that he will accept that jackboots are not good for local democracy. We are not wedded to one year and would accept any reasonable period, but the Minister should comment on the problem.
Mr Matthew Green (Ludlow, Liberal Democrat)
The Conservatives have a point, but the one-year period may be over the top. If someone were half way through building an extension under permitted developments and the local authority were subsequently to remove the right to permissive development orders, what would be the legal liabilities in each direction? The Bill does not address that problem. As I said, a year is probably too long, but some notice should be given and we need clarification of the position where work has already been started and the Secretary of State changes an order. People could find that their project, begun legally, had been deprived of legality. The hon. Members for Cotswold and for Spelthorne have acknowledged that they are not wedded to the one-year period, but the problem remains of what will happen if an order is withdrawn.
Sir Sydney Chapman (Chipping Barnet, Conservative)
I support my hon. Friend the Member for Spelthorne on amendments Nos. 217 and 218. I believe that one year is about right, though I am open to persuasion about other periods. If a local authority can revoke a local development order at any time, the power may be used unfairly. Surely it is right to provide reasons and to give notice—a simple point about fairness and equity.
The British Property Federation has made another point, which takes the opposite approach. As I understand its point, which is powerfully engrained on my memory, it is not just a question of revoking the order but the possible consequences of doing so. It would be unfair if a planning permission were taken away. It would be immensely helpful if the Minister could assure us that the revocation of any order, arbitrarily or not, by a local planning authority could not lead to the arbitrary termination of a planning consent, provided that that planning consent was carried out within the normal time given under the principal legislation.
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
I am grateful to Opposition Members. They have clearly alighted on the issue of what to do about development work that is started in a
particular area. We are jumping the gun a little. I will have more to say on that when we come to amendment No. 366. Amendments Nos. 217 and 218 would require the LPA, the Secretary of State or the National Assembly of Wales to give one year's notice. That presumably is to allow developers who intend to take advantage of the permission to develop rights granted by the order the opportunity to carry out works before the rights are withdrawn.
For reasons that I will come to, I do not agree that a year's notice should be required. There may be circumstances where the authority, the Secretary of State or the National Assembly discovers that a local development order has had an unwanted impact on an area. In such cases the order should be revoked as soon as possible. Any development completed before revocation would have been lawfully completed. This is not about getting something torn down because an LDO has been revoked.
Amendment No. 368 would prevent the Secretary of State or the National Assembly from ever revoking a local development order. The power to revoke would be used only in extreme circumstances. We have no intention of using it on a whim, but it is important for the Secretary of State and the National Assembly for Wales to have that power as there may be cases where, although the policy in a development plan document was acceptable, the effects of the related order would have an unwanted or unwarranted impact on the national planning policy that became apparent only after it had been made.
Sir Paul Beresford (Mole Valley, Conservative)
I am interested that the Minister is saying that when anything is completed, it would be allowed to stand. Normally in planning that is the case when anything is commenced. What would happen in the situation described by the hon. Member of Ludlow, when a project is part of the way through construction?
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
That is precisely the point that I said I would deal with under amendment No. 366, which deals specifically with uncompleted developments. In the cases that I described, the local planning authority may not see any need to revoke the order, but the Secretary of State and the National Assembly for Wales should be able to do so if they think it necessary. That would not be done in a capricious, wilful or whimsical way, but because of its impact once it had been started or completed. Revoking a local development order does not mean that the development cannot take place, merely that it goes through the usual requirements for planning permission.
Section 108 of the Town and Country Planning Act 1990, as applied by new section 61C(2), deals with the compensation point and provides that a local or planning authority will be liable to pay compensation if an application for development, which would have been allowed under local planning 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 echoes provisions relating to changes to national permission to develop rights
and will ensure that a developer is not disadvantaged if local permission to develop rights is withdrawn.
On another small point, schedule 4A makes provision in connection with the local development orders. Subsection (8)—the rogue subsection (8) that we debated to begin with—states:
''Schedule 4A makes provision in connection with local development orders'',
referring to schedule 4A of the Town and Country Planning Act 1990, in which the permitted development rights are laid out in the first instance.
Sir Sydney Chapman (Chipping Barnet, Conservative)
The Minister has been extremely helpful, but I want to clarify matters. The reason I raised amendment No. 366 before we reached it was that we shall of course vote on the present group before we come to it. If amendment No. 366 had been tabled by, I should have been more confident.
I confess that we are dealing with a point that I had missed—assuming that it is true. Is the Minister saying that even if a local development order—or plan, because we are dealing with the existing legislation—were arbitrarily revoked by a local planning authority, the principal Act would take precedence, to the extent that it specifically states that any planning permission given remains valid even if the development order or local development plan is revoked? If I could have that assurance, my mind would be at ease.
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
Part of the confusion arises when the hon. Gentleman talks about planning permission. The establishment of a local development order would effectively be a collectivised—I should not have said that—version of permitted development rights in an area, outwith the normal permitted development rights that the hon. Member for Cotswold referred to, such as entitlement relating to a house. If, for the duration of the order, something was built entirely legitimately in the terms of the order and completed before the revocation, it would stand. It would have been created within the local development order zone, entirely appropriately, before revocation. Revocation is not imposed retrospectively.
It is half cheeky of me to do this, perhaps, but with your indulgence, Mr. Pike—because I take the point about the order of voting—I may, to help the Committee, mention that amendment No. 366 raises an important question. I have a lot of sympathy with it, and undertake to consider it. I do not want to get involved in a debate about it, but perhaps it would be useful, bearing in mind that other decisions must be taken first, to put that offer on the table now.
Mr Matthew Green (Ludlow, Liberal Democrat)
One thing that strikes me about the withdrawal of the local development order is the absence of any provision insisting on publicity. I realise that once an order is revoked, it is revoked, and the person concerned has a duty to find out, but I think that some requirement should be imposed on the local authority to ensure that architects and others who would normally be consulted by a person who was taking advantage of a local development order would know as soon as the order was revoked. They
should not just be expected to realise that there had been a change without being told.
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
Unless I am told otherwise in a hurry, I shall assume that the publicity and information dispersal duties of a local planning authority that are set out in the broad development control legislation and functions will prevail under the clause as elsewhere, and that the local planning authority will have a duty to make its decision known at the earliest opportunity; I suspect that the ways in which that would be done are already established, either through the development control legislation or functions, or under the umbrella of the statement of community involvement, which would contain the whys and wherefores of how a local planning authority intended to consult and to publicise information about any aspect of its planning and development control functions.
That is my assumption and no one is telling me otherwise. If I find out that I am wrong I shall let the hon. Member for Ludlow know, but the overarching duty of local planning authorities for publicity and the dissemination of information and decisions is as appropriate for local development orders as for any other aspect of the Bill. In view of that, I urge the hon. Member for Cotswold to withdraw the amendment and look forward to generosity on the next item.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
We have had a useful debate on the important matter of permitted development rights. I am not sure that we are all talking exactly the same language. To make the matter absolutely clear, the rights in question are permitted development rights that do not require planning permission. They are enshrined in the principal Act, as my hon. Friend the Member for Chipping Barnet has made clear. We are talking about local planning authorities being able to amend those general permitted development rights. If they amend them, and if they have gone through the procedure of producing a statement of amendment, it seems totally wrong, unless abuses or emergencies have taken place, that the local authority or the Secretary of State should have the power to revoke them. Under the rules of natural justice, applicants or developers should be allowed a reasonable time in which to be informed of the changes. Indeed, I should have thought that the rules of natural justice would also require a procedure that allowed people to make representations.
Having said that, my words will be on the record, and I have no doubt that others, more knowledgeable on the matter, will look at the matter carefully in another place. The Government may have to consider whether a period should normally be allowed before those draconian powers are operated. However, for the moment, we have discussed this matter as fully as we can. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr David Wilshire (Spelthorne, Conservative)
I beg to move amendment No. 366, in
clause 39, page 21, line 29, at end insert—
'(6A) Any development permitted by an order revoked under subsection (6) which has been started but not completed shall be entitled to be completed notwithstanding the revocation of the order permitting the development.'.
I rise, Mr. Pike, with huge anticipation. Can it possibly be, for the second time in an undistinguished career that spreads over 15 years, that I shall make a change to a Government Bill? If I achieve that trick for the second time, I sincerely hope that it will not have similar consequences to those of my last success, which was a change to a local government Bill.
Mr Peter Pike (Burnley, Labour)
Order. I was a member of the Committee that considered that Bill. We should not go too far down that road, because it was a controversial clause.
Mr David Wilshire (Spelthorne, Conservative)
To put the Committee out of its misery, Mr. Pike, you and I know that it has become known as section 28. I wonder whether there is likely to be any abseiling from the Gallery in the other place, or demonstrations outside, if the Minister gives way on this amendment. I suspect not.
I shall not delay the Committee except to say that two issues are involved. I say that so that the Minister can understand where my mind was going when I tabled the amendment. As far as I can see, if someone has already started a development when a change is made, the chances are that he will be entitled to complete it. I am not sure, and the Minister can probably clarify that point. That is my first worry. If the Minister wants to deal with that, and I hope make clear it that that is not what the Bill would do, I shall applaud him and be grateful.
The other issue is best explained by using an example; the one that comes to mind is that of a housing association that wants to improve a large and fairly old housing estate. A lot of repetitive work is involved—perhaps an extension at the back of each house on the estate—and the work is covered by the order until it is revoked. The housing association might have done 40 houses and have another 100 to go, but suddenly—chop!—it is told to stop.
If someone has started to build a garage, they must be able to finish it. However, if a developer has started doing something on a grand scale that involves a series of jobs that, in themselves, are complete entities, it would be unfair and unreasonable, half-way through the redevelopment, to say that the developer could not continue or that he would have to ask for permission to do it differently.
Sir Paul Beresford (Mole Valley, Conservative)
I am sorry to have taken precedence over my hon. Friend. It was accidental.
Sir Paul Beresford (Mole Valley, Conservative)
I am sorry to be a little Machiavellian, but the clause will delight the lawyers. It is a classic example. My hon. Friend points out that natural justice dictates that if one has commenced one ought to be able to finish. However, I can think of one rather Machiavellian and difficult gentleman in one of my local planning areas who has been a thorn in the side of the local authority for a considerable time. Will the Minister give me a definition of ''started''? I can imagine that gentleman, and I shall not name him,
moving three bricks and then saying to the committee that he had commenced because he had had the development vaguely in mind for the past 15 years but had not quite got round to it.
It will be intriguing to hear the Minister because a great many holes are being dug in this Bill and a great many lawyers are looking at the cash register.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
I was very pleased that you called my hon. Friend the Member for Mole Valley first, Mr. Pike, because it gave me a few seconds to consult the principal Act, the Town and Country Planning Act 1990. Section 55(1) defines ''development'' and is engrained on the heart of every planning practitioner:
''Subject to the following provisions of this section, in this Act, except where the context otherwise requires, 'development,' means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.''
Planning practitioners knew it parrot-fashion; they had to learn it for exams; they almost dreamed about it. Having described what a development is, the Act defines time when a development had begun in section 56.
1) ''Subject to the following provisions of this section, for the purposes of this Act development of land shall be taken to be initiated—
(a) if the development consists of the carrying out of operations, at the time when those operations are begun;
(b) if the development consists of a change in use, at the time when the new use is instituted;
(c) if the development consists both of the carrying out of operations and of a change in use, at the earlier of the times mentioned in paragraphs (a) and (b).''
I hope that the Minister will say that our probing amendment is unnecessary. However, if any of the above things have happened, the development is considered to have begun. It would be quite wrong for the local authority or the Secretary of State using the powers proposed in clause 39 to revoke that permitted development right. I hope that our probing amendment will elicit from the Minister the answer that I seek.
Sir Sydney Chapman (Chipping Barnet, Conservative)
I wait with bated breath to hear the Minister's response. May I clarify one point? Whether we are talking about planning permission that has been given or a permitted development, which does not need planning permission, we are not necessarily talking about a development that has started. Usually, there is a five-year period, although it may be reduced to three years, between the granting of an application and starting the development. If a development has started, only to have the local development order revoked, it is vital that it be permitted to continue. I also want an assurance that any planning permission given or permitted development existing at the time should be allowed its original time span.
I ask this because clause 39 adds sections to the principal Act, and I want to know whether there is a section in the principal Act that deals with the point that I raised. If there is, I will be satisfied; and my hon.
Friend the Member for Spelthorne need not press amendment No. 366. If there is not, however, it becomes extremely important—irrespective of whether there is compensation—in the interests of equity and fairness to press my hon. Friend's amendment.
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
Many of the comments made are entirely fair. As I said earlier, this is worth considering further. To answer the hon. Member for Chipping Barnet, clause 39 was drawn up to follow on from the general permitted development order rather than the development clauses that the hon. Member for Cotswold referred to. Under current law, if the Secretary of State issues an amendment to the general permitted development order, anything counter to that stops, however advanced or detailed, and planning permission must be secured in the normal fashion.
I have a lot of sympathy with the amendment, which would allow
''Any development permitted by an order revoked . . . to be completed notwithstanding the revocation''.
That would give the LDOs some degree of certainty to developers, which is partly their purpose. If a development is permitted, then when the developers start, they will not suddenly find that the commission is no longer valid if the LDO is revoked.
It is worth considering the matter further in relation to our desire to fit the development order at the local level into the broad framework of the GPDO with regard to permitted development rights. However, I accept what the hon. Member for Chipping Barnet said, notwithstanding compensation and other issues. That is not least for the reasons that his hon. Friend the Member for Mole Valley (Sir Paul Beresford) alluded to about what ''started'' means in that context. Is it as sections 54 and 55 say in the 1990 Act, something more germane in the GPDO, or something in between? The matter is worthy of further scrutiny, and I should like to consider it much further.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
Far from my hon. Friend the Member for Chipping Barnet receiving the assurance that he seeks on the five-year period after withdrawal of the GPDO, the Minister has said something far more draconian. I want to know whether I have understood correctly. Suppose that the local authority development order allowed a 10 per cent. extension generally, that somebody had started that development, and that the Secretary of State revoked that power. Would that person then have to stop and seek planning permission?
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
I was trying to be kind earlier. The matter has nothing to do with individual household's permitted development rights. It has nothing to do with an extension, 10 per cent. or otherwise, of volume on current permitted development rights—
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
It does not. The provisions seek to replicate the national GPDO at a local level, in the context of a local development scheme. They are about broader concerns than people's extensions and how they relate to the volume of their house. For example, a
local authority might want to revitalise a town centre. Applications for particular parades to go from non-retail to retail use will be approved on the nod, rather than revision being sought, because the local authority wants retail in that high street. The authority will not give that permission to any non-retail application, or to any application to change from retail to non-retail, as an attraction to get people back into the high street for retail. The provisions have absolutely nothing to do with 10 per cent. house extensions, which are currently covered by the permitted development order—they go far beyond that. The hon. Gentleman should please know what he is talking about.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
The Minister is digging himself into quite a big hole. As I read the clause, it would be perfectly possible for a local planning authority to vary the general permitted development right from, say, 10 per cent. of the floor space to 12 per cent., as a general permitted development right within its locality. Suppose that that happened, as I think the clause would allow. Is the Minister really saying that if somebody in that locality had started a development for which they had permitted development rights, whether it were an extension or a wider development—the Minister alluded to the regeneration of a whole town centre—they would have to stop and seek full planning permission if the local authority or Secretary of State revoked or withdrew that right?
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
I wish the hon. Gentleman would listen, as his hon. Friends seem to manage to. What he says is precisely not what I am saying, even if we use his example, which I do not accept. The amendment alludes to a position on which the clause is extremely weak. Even if a local development order were legitimately revoked, what would we do if it had been started? The hon. Member for Mole Valley asked what we mean by ''started'', which is worthy of further exploration and scrutiny, and I have asked the hon. Member for Spelthorne to remove amendment No. 366 to allow us readily to examine the matter.
I do not know where the hon. Member for Cotswold got half of his contribution, which certainly did not come from listening to his colleagues or me because I have said nothing of the sort. I exhort the hon. Member for Spelthorne to withdraw the amendment, although his point is worth looking at, and I am grateful to him for raising it.
Mr David Wilshire (Spelthorne, Conservative)
When a Government have a large majority, one has to be grateful for small mercies. It would be unkind and unfair not to say that I am pleased to have persuaded the Minister to reconsider something. It would have been nicer if he had said, ''This is what we are going to do'', but that would have been expecting too much—I do not mean that unkindly. I accept the spirit in which he has made his offer and am satisfied that he will think constructively about the spirit of what has been said. I look forward to a further debate on the issue and I hope to be able to support the Government on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Matthew Green (Ludlow, Liberal Democrat)
I beg to move amendment No. 242, in
clause 39, page 22, line 13, leave out
'matter which it thinks is relevant',
and insert 'material considerations,'.
Mr Peter Pike (Burnley, Labour)
With this it will be convenient to discuss amendment No. 367, in
clause 39, page 22, line 14, at end insert
'and must take account of all representations received'.
Mr Matthew Green (Ludlow, Liberal Democrat)
I know that the Minister does not believe that Opposition Members might try to be helpful, but amendment No. 242 is an attempt to be helpful. The clause deals with the powers of the Secretary of State or the National Assembly for Wales to call in a proposed local development order and direct the local planning authority to modify the order before it is adopted. In considering a local development order called in by the Secretary of State, subsection (3) requires the appropriate authority to take account of any matter that it thinks is relevant.
I am not a lawyer, but I understand that the wording is legally vague and could give rise to a legal challenge on whether the Secretary of State is right to think that an issue is relevant. The advice that I have been given is that it would be clearer to relate the provision to a relatively understandable planning term by requiring the Secretary of State to take account of any material consideration. The amendment would have the effect of narrowing the factors to purely planning considerations. It may have other implications, but to avoid lawyers running up large bills, a matter to which members of the Committee continually allude, the Minister might be minded to be kind. Given that he is showing signs of kindness, today is obviously the day on which to consider such amendments.
It is interesting that amendment No. 367 has been grouped with amendment No. 242—I am not questioning the Chair's judgment—because it relates to other things. It would strengthen the right to public consultation, and if that is its intention it is worthy of consideration. I will be interested to hear the Minister's advice on whether amendment No. 242 will assist in tightening up the cause for legal challenges.
Mr David Wilshire (Spelthorne, Conservative)
Amendment No. 367 prompts me to say that one wins some and one loses some in this business. It is inferior to amendment No. 242. The hon. Member for Ludlow suggested that there might be broader subtleties to it, but there are none. It may have become clear to the Committee that there are occasions when I have tabled an amendment and have struggled later to remember what I had been thinking of at the time. However, on this occasion I am very clear as to what I was thinking—exactly the same as the hon. Member for Ludlow.
What concerns me about this subsection, as it stands, is the wording:
''The appropriate authority may take into account any matter which it thinks is relevant.''
That is unhelpful. Any authority, if it does not like what it hears, could say 'you may think it is relevant, Mr. Pike, but we do not'. I am sure that is not what is intended. What I sought to do in amendment No 357 was to take away the power to dismiss something if it was not convenient, by saying they must take account of everything even if they do not agree with it.
The hon. Member for Ludlow has used fewer words. We must take account of material considerations and there can be an objective debate about what is a material consideration. What matters are deemed relevant is subjective, and it is very difficult to mount an appeal against that. I shall not seek to press amendment No. 367 but would be happy to support amendment No. 242.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
The hon. Member for Ludlow has hit upon a useful topic with amendment No. 242. If I may echo what my hon. Friend the Member for Spelthorne said, the wording
''which it thinks is relevant''
is unsatisfactory. If the matter ever came to judicial review the judge would have to make a subjective judgment as to what it was reasonable for the local authority to consider, not what was reasonable in the circumstances. Therefore the hon. Gentleman's wording provides greater certainty and clarity.
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
With respect, that all sounds very good, but it is not. There is nothing magical about ''material considerations'', which is an accepted phrase in planning terms. It is an entirely accepted phrase in terms of material planning matters when dealing with individual applications. In the context of the discussion of local development orders, what the hon. Gentleman considers to be material planning matters will be just as open to challenge as the phrase already in the clause. The reason why the clause is slightly broader is that broader issues may well arise, such as those that we have debated on land use. Those matters might not be captured by a narrower definition of material considerations. However, they are captured, albeit in a clumsy phrase, by using the word ''relevant''. In that regard, it would on balance be unhelpful to use words that planners know to mean certain things in a context in which they would mean something quite different. Material considerations are appropriate for the planning or application process.
Mr Matthew Green (Ludlow, Liberal Democrat)
Will the Minister consider the rather clumsy wording in the current Bill? In the light of recent groups of amendments, will he see how it could be tightened to reduce legal challenges? That was my intention. If he is prepared to do that, I will consider withdrawing.
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
Being generous twice in a row would make me far too tired to consider the rest of our deliberations. In one sense ''material considerations'' will narrow things down too much. I refer to the example I gave earlier. If we are talking about the economic vitality of a particular shopping precinct, or part of a high street, several other factors above and beyond the narrowly defined—albeit well established—concerns and material considerations
should be considered. However clumsy it is, the phrase as it stands captures the meaning, but I take on board the broad thrust of what the hon. Gentleman suggests.
Mr Matthew Green (Ludlow, Liberal Democrat)
I was not hoping that the Minister would take on board the words ''material considerations'' because I see where he is coming from when he says that they are too narrow. I was hoping that he would find some way of tightening the wording in order to bring forward an amendment. That may be a suitable way forward.
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
I will happily look at the wording because I described it as clumsy, but the hon. Gentleman should not hold his breath. I cannot be more honest than that. I will certainly look again at the wording on the premise that the amendment is defective. I ask for it to be withdrawn.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
I would like to put on record the advice given by the Law Society:
''In legal terms, this wording is too vague and could give rise to legal challenge is the Secretary of State right to 'think' an issue to be relevant. It would be clearer to relate the provision to a relatively understandable planning term by requiring the Secretary of State to take account of any 'material consideration'.''
The Minister has said that he is prepared to look at the wording again. He is right to do so, and we welcome that.
Sir Sydney Chapman (Chipping Barnet, Conservative)
My hon. Friend is on to a good point. The phrase ''material considerations'' is used in clause 37(6). I accept that there are different definitions.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
My hon. Friend is absolutely right. He will know from his professional experience that the term ''material considerations'' is used frequently in other planning Acts.
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
Absolutely, but that is within the context of planning decisions and the development control process, not the process under discussion. At the risk of sounding slightly facetious, given that so many amendments are coming in from so many quarters, we should keep a running score sheet. The Law Society has not done terribly well today.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
I do not think that it is very helpful to slate the Law Society or any other group. It provides material in order to improve the Bill, which is the business of the Committee. The Law Society has raised a legitimate point, which is on the record. No doubt others reading the record will consider the point, and it may be raised again, either in the other place, or on Report.
The lead amendment was tabled by the hon. Member for Ludlow. No doubt he will decide whether he wants to withdraw it.
Mr Matthew Green (Ludlow, Liberal Democrat)
The Minister has taken the point on board. Although he says that I should not hold my breath, I will half hold it in the hope that he finds a way of tightening up the wording. It is in everyone's interest that it is made as tight as possible, which will prevent legal challenge. Hopefully, the Minister and his team will see if it can be improved in some way.
With that assurance from the Minister, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Matthew Green (Ludlow, Liberal Democrat)
I beg to move amendment No. 243, in
clause 39, page 22, line 24, at end insert
'and must provide reasons for that direction'.
The amendment would require the Secretary of State to provide reasons for any direction to a local planning authority to modify a local development order. Suggested new section 61B to the 1990 Act provides the Secretary of State or the National Assembly for Wales with a power to call in a local development order and direct the local planning authority to modify the order before it can be adopted. There has to be some duty on the Secretary of State to provide reasons for any direction. I am sure that the Secretary of State would mean to provide reasons, and I am sure that the Minister will tell us that that would happen anyway. It would be useful to include that requirement, so that any future Secretary of State is held to account.
There needs to be a duty on the Secretary on State to provide reasons for any direction to an authority to modify an order, otherwise there could be a legal challenge to the direction. The power to direct is currently linked to the Secretary of State thinking that a local development order is unsatisfactory, which is a vague term. I make no bones about the fact that I am attempting to help the Government. I hope that this is something that the Government would want to do anyway and that they will accept the amendment.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
Again, the hon. Member for Ludlow is on to something. As he said, under subsection (5)(b) of the proposed new section, when the appropriate authority, which is the Secretary of State or the National Assembly for Wales, approves or rejects an order, it has to give reasons for that decision. Yet subsection (6), to which his amendment relates, states:
''If the appropriate authority thinks that a local development order is unsatisfactory it may at any time before the order is adopted by the local planning authority direct them to modify it in accordance with the direction.''
That is a fairly powerful directive power. If the local authority, having gone through the due process in the Bill, comes up with a local development order, the Secretary of State should have to give reasons for varying that order. If he does not give reasons, I suspect that the matter will rapidly end up in the High Court on an application for judicial review. I hope that the Government will think carefully about the matter between now and the Bill receiving Royal Assent.
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
As the hon. Member for Ludlow said, Amendment No. 243 requires the Secretary of State or the National Assembly for Wales to provide reasons when issuing a direction to the LPA to modify a local development order. I appreciate the sentiments of the amendment. We would expect both the Secretary of State and the Assembly to provide reasons for the direction. However, we do not consider that it is necessary to specify that in primary legislation. 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 direction? The direction does not flutter down from on high in a vacuum; nor does it come down by diktat or jackboot or anything else. Clearly, the appropriate authority must inform the local authority why it thinks that there are deficiencies and provide the reasons given for its being deficient.
Mr Matthew Green (Ludlow, Liberal Democrat)
Is there any reason why the words in the amendment should not be included in the Bill to make it clear that that is exactly what the Secretary of State or the National Assembly for Wales will do? The Minister has just told us that that is exactly what they will do, so why should that not be in the Bill to make things clear to everyone?
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
Because there is a huge difference between clarity and superfluousness. The amendment is unnecessary. One could not interpret the Bill to mean that if and when the appropriate authority fancies it, it can tell a local planning authority, without giving substantive reasons, ''Change that local development order. We don't like it.'' As the hon. Member for Cotswold said, if that were the case, there would be High Court writs and judicial reviews flying around all over the place, as a matter of due process and good administrative law. So I accept the sentiments, but that degree of clarity is unnecessary. It is implicit in the entire arrangement that that is what will prevail. Things do not happen in a vacuum. In that context, the amendment is otiose, unnecessary and would not add clarity because it relates to something that will happen anyway. I ask the hon. Member for Ludlow to withdraw his amendment.
Mr Matthew Green (Ludlow, Liberal Democrat)
The Minister has assured us that the appropriate authorities will give reasons. I find it slightly baffling that he does not accept the amendment, as he cannot give any reasons for not doing so apart from the fact that it adds a few words. I suspect that the real reason why he has not accepted it is that he has probably given his dose of kindness to the Opposition today.
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
Not necessarily.
Mr Matthew Green (Ludlow, Liberal Democrat)
This is an exciting day. In the interests of moving on to that exciting opportunity when we get another bite at the cherry, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Peter Pike (Burnley, Labour)
I hope that I am in the Chair when we reach that exciting moment.
Question proposed, That the clause stand part of the Bill.
Mr. Clifton-Brown rose—
Mr Peter Pike (Burnley, Labour)
Order. Before I call Mr. Clifton-Brown, I must say that I had considered not having a clause stand part debate. However, I am prepared to allow a fairly concise and tight debate.
Mr Geoffrey Clifton-Brown (Cotswold, Conservative)
I must ask for the Committee's indulgence. The Law Society has provided a slightly
long note on this. However, having read it several times, it is worth putting on the record.
The Law Society says:
''The power to specify an area where a local development order can not be made will have a significant economic impact. It will have the effect of blighting the prospect of development in that area by means of a local development order.
This runs contrary to the intention of the Government's policy on local development orders, namely that they will implement policies in a development plan document and provide a means of encouraging and speeding up development in specific areas.
Surely if the Government objects to a development, either in a specific area or of a specific nature, it should intervene at the time of the preparation of the development plan document rather than waiting until the local authority comes to implement that policy through a local development order.''
It continues:
''Potentially that policy will have far reaching implications. If there was a local development order favouring the construction of tall buildings in part of an urban centre, there would in effect be no means of objecting to the granting of permission for an office tower block, for example. In our view that would be grounds for challenge under the Human Rights Act as contrary to the European Convention on Human Rights.
Again, would the existence of a local development order override the requirement for an environmental impact assessment of a particular development proposal? We suspect that the Government has chosen not to implement proposals for Business Planning Zones, where planning restrictions would be less restrictive, and regards local development orders as the means to achieve the same result.
If that assumption is correct, then the Government should be more frank about the policy underlying local development orders.''
The Law Society regards the proposals on local development orders
''as an alternative mechanism whereby development control can be relaxed in a particular area or type of development when it would be more appropriate for that objective to be achieved through the creation of a Business Planning Zone.''
It also suggests that the Bill
''will need to provide for the situation where a development has been granted permission under a local development order which is subsequently revoked. The example of section 89(2) of the Town and Country Planning Act 1990 provides for planning permission in an enterprise zone to cease unless the development authorised has been begun.''
Proposed new section 61A will impose a fairly draconian power, which will be useful. However, I am slightly concerned about the inconsistency that will exist between one authority and another. Moreover, a large developer with a development in a different planning authority will find it difficult to know which regime he is operating under, especially if the Secretary of State starts to use his revocation powers because he likes one authority's plans and not another's. That could become quite messy.
The Government will need to clarify that point in their mind, and I suspect that we may return to this complex matter on Report or in another place. I have no objection to the clause standing part of the Bill, and I hope that my hon. Friends will not object to it either.
Mr Tony McNulty (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Harrow East, Labour)
I apologise for rushing out and in again; I had a call of nature. I should be courteous and tell everybody, although I am sure that they would rather not know.
I wish to respond to one simple point. We shall, by order, ensure that LDOs in no way impinge on the environmental impact assessment process. Other than that, I am grateful for the Committee's acclamation of the clause.
Question put and agreed to.
Clause 39 ordered to stand part of the Bill.