Relevant document: 20th Report from the Delegated Powers Committee
Moved by Lord Greaves
102CZA: After Clause 143, insert the following new Clause—
“Limitations on planning obligations
Regulation 123 of the Community Infrastructure Levy Regulations 2010 (further limitations on use of planning regulations) is repealed.”
My Lords, this is a small issue, in a sense. It is a kite-flying amendment not directly related to what is in the Bill, like many other amendments we have been discussing. However, it is an important issue for local authorities that are affected by it. Regulation 123 of the Community Infrastructure Levy Regulations refers to Section 106 agreements. When the CIL regulations were brought in, it was tagged on to them, almost without anybody noticing—although I complained about the regulation when it came to be approved by this House.
I am challenging not the regulation as such but the bit of Regulation 123(3)(b) that restricts the number of Section 106 agreements within the area of one local planning authority to five,
“which provide for the funding or provision of that … type of infrastructure”.
That means that a local planning authority can have only five Section 106 agreements in place anywhere within its area for one particular type of infrastructure. I hope that the Minister will understand the very specific point I am making. I will come to it in a minute.
I want to be clear that I am not objecting to the requirements of Section 106 which nowadays have to be site specific. It used to be that you could have a planning application at one end of an authority and get some money for a playground miles away at the other end of the authority. That was quite rightly stopped. Agreements have to be site specific—in other words, related to the particular planning application or piece of land, as the Minister said earlier. I am not objecting to the restrictions on pooling Section 106 contributions to build up a pot for large schemes, and there is a limit to how far that can be done. It is just ordinary, small Section 106 contributions that are typically connected to retail developments, housing developments and so on. Again, I am not talking about the affordable housing things that we were talking about this morning.
The limit to five schemes is not logical for four reasons. First, there may well be more than five separate schemes that are relevant or appropriate to particular developments, even though they are of the same type. For example, it may be that Section 106 contributions are being used to support a local bus service—the kind of bus service which is subsidised or supported by the local highways authority under the Transport Act—and a contribution may be made in order to extend the route to serve a particular housing estate or so that it serves the supermarket or whatever. I have had a lot of experience in past decades of helping to support local bus services through this means, and at the same time providing public transport to new housing developments or new supermarkets.
It may well be that a Section 106 agreement is required for a public open space, and it is silly to say that you can have only five open spaces if you have seven developments that would benefit from this provision. So there is no logic to it. It came in as part of the restrictions on making Section 106 agreements site specific and stopping people building up big pots, but it is not now necessary.
The second reason is that, because Section 106 agreements are now site specific, there is no reason to limit the number. Logic says that the number should be determined by the number of appropriate developments and appropriate schemes. Thirdly—and here I am talking to some extent against a small authority such as my own—the limit applies per local planning authority, however big or small. So it is five for a huge area such as Northumberland or Cornwall, five for a little authority such as Rutland, five for small district councils and five for big cities. It is an arbitrary number and there is no sense to it.
Finally, it causes particular problems where a local authority has no CIL contributions. Where the level of CIL has been assessed as zero, it cannot be levied. The kind of councils I keep talking about during this Bill, including my own in Lancashire and lots of other councils in Lancashire and the north of England, cannot levy a CIL because if you levy a CIL, it takes developments completely over the border into being unviable. In areas where developments are only marginally viable on the best greenfield sites, you cannot levy a CIL.
Therefore, the contributions for local infrastructure that come from a CIL are not available in areas of that kind, and those areas are by their very nature probably poorer in different ways than the more prosperous parts of the country that can levy a CIL. So poorer areas do not get the infrastructure levy. Therefore we have to rely on what we can get from Section 106, and this restriction on Section 106 is arbitrary and illogical. I hope that the Government will take it away and have a look at it. They do not have to bring it back in this Bill; they can simply make a minor change to the CIL regulations. I beg to move.
My Lords, I thank the noble Lord, Lord Greaves for his amendment. The Government introduced the pooling restriction in Regulation 123 of the Community Infrastructure Levy Regulations 2010 in order to ensure that planning obligations are used appropriately. The regulations have encouraged 107 charging authorities to bring forward the levy, which provides greater certainty for developers about the cost of developments and helps those authorities provide certainty to their communities about how their infrastructure needs can be met.
Pooling restrictions limit the use of Section 106 to no more than five for a specific infrastructure levy type or project, as the noble Lord said, but this has helped to incentive the adoption of the levy. Adoption nearly trebled in the year prior to the pooling restriction taking effect in April 2015, and it has continued to grow since. While acknowledging that Section 106 still has a role to play in site-specific infrastructure, the Government launched a review of the levy last year to ensure that it provides an effective mechanism for funding infrastructure. The review is considering, among other matters, the relationship between the levy and Section 106 planning obligations. I would be happy to ensure that the panel is aware of the noble Lord’s thoughts on the repeal of the regulation. With that in mind, I hope that he will withdraw his amendment.
I am grateful for the last sentence of that reply. I am talking not about pooling Section 106 contributions for bigger projects but about the limit on the number of small projects that can be funded directly linked in a site-specific way to particular developments. The perfectly justifiable intentions of the Government to stop Section106 being an alternative to CIL has caught the small schemes and small contributions in a way that was not intended. That specific point ought to be looked at.
Having said that, the other point is that it is okay having lots of incentives to levy CIL—but not if the consequence of levying CIL is that no development at all takes place. Remember, I come from an authority where getting into three figures of new starts or completions a year is proving very difficult indeed. In one recent year it was in single figures and that is not for the lack of trying to build, as far as the authority is concerned. Indeed, in one recent year when 50 or 60 completions took place, they were almost all built by the authority. The private market hardly exists—or has hardly existed in the last few years.
Therefore, you cannot levy CIL. Well, you can levy it, but the effect will be to stop all development. The decision on the CIL will go to inspection. If we tried to levy a CIL, it would almost certainly be kicked out at inspection because all the developers would complain. We cannot levy CIL, so we have to rely on Section 106. Here is something that has happened as a result of the legislation which is stopping perfectly sensible local contributions to something near to or next to something site specific, such as a local bus service. It is a fairly straightforward thing. I am sure it is not beyond the competence of draftsmen to draft something which stops the pooling—which is the intention—but allows small things like this that are separate and discrete to go ahead. Having said that, I welcome what the Minister said and if I can find the time I will write to her about it as well. On that, I beg leave to withdraw.
Amendment 102CZA withdrawn.
Clause 144: Development consent for projects that involve housing
Moved by Lord Greaves
102CA: Clause 144, page 73, line 17, leave out “related” and insert “subsidiary”
My Lords, we now move on to the part of the Bill that is about housing development linked to applications for development control under the 2008 Act for nationally significant infrastructure projects. This series of amendments probes the provisions which will take the housing element of such projects—where they are linked to infrastructure projects—out of the hands of local authorities and allow people to make the application for development consent under the infrastructure system and to include the housing provision within that application.
The purpose of tabling these amendments is to ask some related questions. A very useful briefing note from the Department for Communities and Local Government, called the Housing and Planning Bill: Nationally Significant Infrastructure Projects and Housing, does answer some of the questions I had in my mind when I tabled these amendments. Nevertheless, some questions remain, and one fundamental issue has a big question mark against it.
Amendment 102CA would name the housing projects which are linked with the infrastructure projects “subsidiary”, which seems to me an appropriate word. It is important that they be seen to be subsidiary or ancillary and not a major part—even if they are 30% or 40% of the reason for the development. Housing ought not to be the reason for the development. Infrastructure projects are the reason for the development.
Amendment 102CC, to new subsection (4B) of Section 115 of the Planning Act 2008, states:
“‘Related housing development’ means development which … (a) consists of or includes the construction or extension of one or more”, new dwellings. I take it that “consists of” is okay—it “consists of” housing or “includes” housing. What else is there? That is the question. I take it that the “what else” is not the infrastructure, but something else. Therefore, why do things other than housing need to be included?
Amendments 102CF and 102CG challenge the geographical reason for allowing people to include housing in an application for development consent. The briefing note on page five sets out clearly that the Government intend that there will be two reasons for allowing housing development. The functional need ought to be allowed. Paragraph 17 states that:
“Where housing is being provided on the basis of a functional need”, the limit for the number of houses can be up to 500, which seems rather a lot, even for a functional need. Perhaps the Government can tell us under what circumstances an infrastructure development might also require 500 houses. But paragraph 16 states:
“Where housing is being provided on the basis of geographic proximity to an infrastructure project, the maximum amount of permanent housing that could be granted consent”, is also 500 houses. I do not understand why the Government are going to allow a national infrastructure project to be put forward with up to 500 houses when the only connection between those houses and the project is geographical proximity: either adjacent or, as my Amendment 102CD puts it, “close to”—the briefing note says up to a mile away.
It seems that the planning permission for new housing estates of up to 500 houses—perhaps most are smaller—is being taken out of the hands of local planning authorities just because the estate in question is next to, or within a mile or so of, a new infrastructure project. I cannot understand the logic of this. I can understand why landowners might want to link them together and perhaps fund one out of the other. Five hundred houses, by any standards, is a big new housing development. It ought to be in the hands of the local planning authority. The guidance sets out that the Secretary of State, in making his decision on the application for development consent, will have to take account of the local plan and the national planning policy framework, and whether it is in a national park or ecologically significant, for example. All these things will need to be taken account of. Local planning authorities do that all the time. However, issues such as design, the relationship between the new development and the existing communities, local highways issues, access, or even Section 106 agreements for new bus services ought to be in the hands of the democratically elected local planning authorities, not put into the hands of the Secretary of State.
There are very good reasons why the national infrastructure planning system exists for national infrastructure projects. There are reasons that I can understand for housing being part of the project—when it is directly related to those projects because it is for people who are going to work there—and it is sensible to put in a planning application for development consent. However, I see no reason at all why local authorities should have this decision seized from them by the Secretary of State simply because a project is next to a new national infrastructure project, even if none of the people living in those houses is going to be associated with, connected with or working at the new development. It seems to be a step too far in the centralisation of the local planning functions of local authorities, and yet another move away from localism to centralism. I beg to move.
My Lords, my name is associated with Clause 144 stand part, and I agree entirely with what my noble friend Lord Greaves has said. I regard this as a very important issue because it effectively cuts out local authorities from the planning process on a nationally important infrastructure decision. Simply permitting an applicant to go straight to the Secretary of State to secure approval seems to me to be the wrong approach. What my noble friend said helps us to solve the problem.
I am very grateful to the noble Lord for setting out the basis of his amendment. This clause will allow the Secretary of State to grant development consent for housing that is related to a nationally significant infrastructure project. I hope I can reassure noble Lords about the Government’s intentions and the protections that are in place to ensure that this provision is appropriately restricted.
Clause 144 allows consent to be granted for housing where the housing is functionally linked to an infrastructure project—for example, housing needed for employees at the project. It also allows housing to be consented if it is close to the infrastructure. Any housing that is granted consent within the nationally significant infrastructure regime must be secondary to the infrastructure by satisfying the requirements of being appropriately linked by function or location. The clause will not allow projects that are housing-led.
The noble Lord, Lord Greaves, indicated that he felt that responsibility for granting consent for such housing should lie with local authorities, not the Secretary of State. We believe that this would inhibit developers from realising some significant benefits. For example, a key aim of the Planning Act 2008 was to provide for a single consenting regime. This clause will mean that developers do not have to make a further separate application to the local authority for housing as well as their application to the Secretary of State for consent for the infrastructure. We believe that this strikes the right balance between the two.
It is very important that we recognise that the development of infrastructure projects may well bring important new opportunities to develop housing that were not previously available. A new road or a rail project, or improvements to existing projects, can make land available for housing development that might not previously have been suitable. Although there are only a limited number of nationally significant infrastructure projects that seek consent each year—49 projects have been consented since 2010—the clause offers an opportunity to provide a small but important contribution to the provision of new housing.
The Government have ensured that safeguards will be in place so that existing local and national planning policies will not be undermined. For example, as the noble Lord said, we have made clear in draft guidance that the amount of housing that is likely to be consented will be limited to 500 dwellings. As I have said, we believe that that may be appropriate if some infrastructure projects create new opportunities for housing. Existing planning policies set out in the National Planning Policy Framework—for example, those that may limit development in designated areas, and policies set out in local plans—are likely to be important and relevant considerations that will be taken into account by the Secretary of State when decisions are taken.
I hope I can reassure noble Lords that local authorities and interested parties can play a full role in the process leading up to any decision by the Secretary of State under the Planning Act regime for deciding nationally significant infrastructure. In particular, local authorities can produce what are known as local impact reports, which set out the impacts of the development in their area. Such reports are specifically identified as something the Secretary of State must have regard to when taking a decision.
The noble Lord asked why we say “includes housing”. “Includes” means that related development can include local infrastructure. The nationally significant infrastructure planning regime already requires significant local engagement in consultation, as I said. Applicants are required to engage and consult with local communities and local authorities from the outset, and developers will be expected to engage with local authorities on the housing element of their scheme in the same rigorous manner.
I hope that my responses have provided reassurances to the noble Lord, and I ask him to withdraw his amendment.
I am grateful to the Minister for explaining the Government’s position in great detail. Having heard it again, I am even more sure that it is wrong. Sorry about that, but when you find out what things actually mean, sometimes you think they are okay but sometimes it confirms your view that they are wrong. The idea that 500 houses are a minor part of a development, in any area, is nonsense. In terms of their impact on a community and how it operates, 500 houses anywhere are a lot of houses. I accept that if such a development is directly associated with the infrastructure scheme and required for it in a functional way, it is reasonable for one application to take place. However, the only real argument that has been put forward is that it is a good idea to build next to a new infrastructure because new roads and access will be put in. In planning terms, it might be a good idea, or it might not be. In planning terms, it might be a very bad idea because of the disadvantages of living next to whatever the new infrastructure is. Or it might be a very good idea. That is a decision that ought to be taken by the local planning authority. It just seems unnecessary to say that 500 houses that are not related to the infrastructure scheme at all, but are simply next to it, ought to be taken away from the decision-making of the local authority. The only argument that I can think of is that it is again just more convenient and easy for the developers. That is the second time today that I have said that too much of this Bill seems to be about making life easier for developers and blow the consequences for everybody else. I am unhappy as I think it is the wrong decision. We might bring it back on Report; but for now, I beg leave to withdraw the amendment.
Amendment 102CA withdrawn.
Amendments 102CB to 102CJ not moved.
Moved by The Duke of Somerset
102CK: Clause 144, page 73, line 40, at end insert—
“(7A) Guidance referred to in subsection (7) must include a requirement for the developer to pay development value for land that is compulsorily purchased for housing as part of any nationally significant infrastructure project.”
My Lords, I will also speak to the other amendments in this group. I do so on behalf of my noble friends Lord Cameron of Dillington and Lord Lytton, who are unable to be here today. We have had suggestions for some of these amendments from the CLA, of which I declare my membership.
For a long time, compulsory purchase in this country has been a messy compilation of many pieces of legislation and is well overdue for reform. As time has gone on, it has become ever more unbalanced in favour of the acquiring authorities and the agents of the state. Indeed, many privatised utility operators have gained compulsory purchase powers—and apparently, at the last count, there are 172 of them.
I turn to the amendment. I mentioned in our Second Reading debate my concern that it was unfair for an acquiring authority to be able to purchase land for housing as part of an NSIP at current use values. Last week, the Minister made a strong case in resisting an amendment from the noble Lord, Lord Campbell-Savours, who wanted an agricultural use valuation for local authority compulsory purchases. He spoke of land being valued by the “no-scheme world” and said that market value took into account the effect of planning permission already granted and thus “hope value”. I therefore feel that it must follow that once an NSIP has been granted planning permission, then the value of adjoining land for housing is substantially enhanced by the very existence of the scheme. Thus, development value is established and should be applied where the proposed land for housing within one mile of such a scheme is valued. It is the same as if the land had been purchased on the open market. Will the Minister explain to the House why an NSIP should make the principle of fairness so different? It is still confiscatory. Is it the Government’s intention that the retail purchasers of the new houses should benefit from this largesse, or is it for the benefit of the acquiring authority? I find Clause 144 rather offensive.
I turn now to Amendments 103BC and 103BD. There are normally two imperative concerns for farmers and landowners faced with compulsory purchase. The first is the effect on the smooth continuation of their businesses: perhaps the splitting of the land, for example. Their second concern is how much and when they will be paid. In the past, payment has routinely been late and after entry. This is unfair and needs to be changed. Farmers already have to cope with supermarkets’ delayed payment exploitation. Moves are afoot to improve this, so why should we not legislate properly now—and in the same spirit—to establish the principle of payment in advance of entry for compulsory purchase? In these circumstances, owners face extra costs and need promptly to replace assets lost in order to continue in business. Why should they have to delay or borrow—through no fault of their own—to continue their businesses?
The Government have proposed to improve the interest rates applicable, but I do not believe that they are realistic or raised to the commercial rates of lending. The CLA has suggested rates in line with late commercial payments, and those are similar to those set out in Amendment 103BD, which I support. I believe that the Government are consulting on this, and I await the outcome. Nevertheless, the principle must be payment in advance or no possession, with proper interest rates applicable for failure to follow that. At any rate, it should be cheaper to do this, as landowners will be disinclined to fight the order knowing that they will get a fairer price for their assets. Of course, if the primary principle is adhered to, there should be no need to invoke the 8% penalty rate that is mentioned in the amendment, as the standard 4% rate should encourage the authority to pay promptly.
Acquiring authorities are in a strong position while negotiating, so Amendment 103BF in this group is consequential. It would help to prevent bullying by introducing a new duty of care to ensure fairness between the parties by setting out guidelines on behaviour. This is in effect a good-practice clause, which is needed as acquiring authorities usually have the upper hand in negotiations against the landowner, who is thus in a weaker position.
Other amendments in this group in the name of the noble Earl, Lord Lytton, are intended to tidy up a series of procedural anomalies and have been suggested by the Compulsory Purchase Association, of which I am not a member. Amendment 103BAA is necessary to safeguard the acquiring authority’s position where—even though it exercised due diligence in seeking to identify those interested in the land and entitled to a notice to treat—after serving notice of entry it becomes aware of a previously unknown person with a relevant interest in the land to be acquired.
Under the current provisions of the 1965 Act, if new interests come to light between serving a notice to treat or notice of entry and taking entry, a new notice needs to be served, resulting in 14 days’ delay. This does not give rise to serious problems at present with only 14 days’ notice of entry but it would become a significant problem with the longer notice period of three months proposed in the Bill.
Acquiring authorities rely on information provided by claimants as to who has a relevant interest in land. I am told that it is quite common to be provided with incorrect information, such as trading names rather than company names or the names of individuals. If an acquiring authority has acted in good faith in serving the notices, such as relying on information provided under Section 5A of the Acquisition of Land Act 1981—the questionnaire requiring information on legal interests—it should still be entitled to proceed, which is what this amendment would facilitate.
Another material adverse side-effect of the Bill’s provisions as drafted is that those served with notices could effectively ransom a promoter by creating a new interest every time a new notice was served. Controversial projects could simply be prevented from ever acquiring land by opponents to the scheme using such a device. This amendment would therefore also prevent acquiring authorities potentially being ransomed by the creation of a new interest in land after service of a notice of entry.
Amendment 103BG relates to circumstances where a claimant considers that the land proposed to be compulsorily acquired cannot be taken without material detriment to the remainder. This is sometimes referred to as the “all or nothing” provision and it is already contained in the compulsory purchase rules under Section 8 of the Compulsory Purchase Act. The amendment is necessary to ensure that, subject to adequate notice, the acquiring authority is able to take possession of the land originally proposed to be acquired, even where the owner has served a counter-notice requiring additional land to be taken. This is the same as the current position and it works quite effectively without any prejudice to landowners who contend that the acquiring authority should also be obliged to acquire more land than that initially proposed to be acquired. However, paragraph 5(a) of new Schedule 2A in Schedule 17 to the Bill provides that on service of a counter-notice, all notices of entry relating to any interests in the land proposed to be acquired would cease to have any effect. As such, this would have a seriously deleterious effect on the timing and costs involved in compulsory purchase and on implementing a project. This would not arise if the Bill were amended as proposed.
Finally, Amendment 103BH is necessary to give effect to paragraph 5 as amended in the way that I have just proposed. I beg to move.
My Lords, I do not want to exhaust the patience of the Committee but once again I draw attention to the fact that the problem of high housing prices in this country stems from the cost of land. These amendments, clearly promoted by the Country Land and Business Association, which represents the interests of landowners—the people who will benefit from the exorbitant and inflated prices being paid for land in the United Kingdom—should be opposed by the Committee. I oppose them, and anyone with any sense will oppose them, as will the great majority of the British people.
One day we are going to have to deal with the problem of inflated land prices in the United Kingdom, which are almost unique in the world outside of the great capital cities, and we are simply ignoring it. This situation cannot carry on as it is. We are removing the right of millions of people—whole generations—to own their own home, unless they are prepared to take on huge mortgages, simply to fill the pockets of people who own land. I object, as no doubt do the great majority of the British people.
My Lords, Amendment 103BB deals with a minor but to some people significant point, which is the compensation to be payable when land is acquired by a development corporation. The amendment simply provides that the Secretary of State may by order set out a formula for determining fair compensation to the landowner in those circumstances. That seems a reasonable proposition.
My Lords, I turn to the detail of the compensation amendments, Amendments 102CK and 103BB, tabled by the noble Lord, Lord Cameron, and the noble Earl, Lord Lytton, but spoken to today by the noble Duke, the Duke of Somerset.
I will outline briefly the principles of compensation for land taken by compulsion. These points have arisen in an earlier amendment in Committee. The compensation code is underpinned by the principle of equivalence. This means that the owner should be paid neither less nor more than his loss. The code provides that land shall be purchased at its open-market value, disregarding the effect of the scheme underlying the compulsory purchase.
The land is valued in a construct called the no-scheme world, whereby any increase or decrease in value that is due to the scheme is disregarded. Land will always have its existing-use value but market value also takes into account the effect of any planning permissions that have already been granted and of the prospect of future planning permissions. This is generally known as hope value, as the noble Duke eloquently pointed out. In the context of compensation for compulsory purchase, this is assessed according to the planning assumptions in the Land Compensation Act 1961, which require the valuer to assume that the scheme underlying the acquisition is cancelled. I remind the House that these were extensively revised and debated in the Localism Act 2011.
In some situations, there will be no hope value, because the individual claimant could not have obtained planning permission for some more valuable use. For instance, the land might be in an isolated rural location where permission for development would have been unlikely to be granted in the absence of a comprehensive scheme requiring compulsory purchase powers. In other situations, perhaps where land is acquired near an existing settlement, there will be pre-existing prospects for development on the land. In lay man’s language, that is development potential that existed prior to the scheme. The strength of those prospects will be reflected in the market value of the land.
On Amendment 102CK, it has been said that land acquired for housing by means of a development consent order should always attract development value. If the land had development potential in the absence of the scheme underlying the development consent order, that hope value would be reflected in the market value and the compensation to be paid. But an increase in the value of the land that is solely attributable to the scheme would be disregarded under the compensation code.
I turn to Amendment 103BB. The noble Lord, Lord Beecham, and the noble Baroness, Lady Andrews, have suggested that there is something unique about the land taken for new towns that requires the Secretary of State to provide a formula for compensation. New towns may well fall into the class of case 1 mentioned earlier, where there is no pre-existing hope value, as there is no reasonable prospect of development in the absence of a comprehensive scheme requiring compulsory purchase powers. In this situation, compensation in the no-scheme world is likely to be at or close to agricultural values. Schedule 1 to the Land Compensation Act 1961 makes it very clear that for new towns any increase in value that is attributable to the development of other land in the new town must be disregarded, where that development would not have been likely to be carried out had the area not been designated as a new town.
I thank the noble Earl, Lord Lytton, for the amendments spoken to by the noble Duke, the Duke of Somerset. I suspect that your Lordships will not be very keen to be further enlightened this afternoon by a technical debate on these particular matters. However, we shall look carefully at what the noble Duke said, and I shall write further to him and the noble Earl before Report about these matters.
I am not in a position to make any guarantees this afternoon, but I will certainly include all noble Lords who have taken part in this debate, and copies will be placed in the Library of the House.
I turn to the compulsory purchase policy elements and Amendments 103BC to 103BF. I am very grateful to the noble Lord, Lord Cameron, and the noble Earl for raising these important matters, again spoken to by the noble Duke, the Duke of Somerset. They concern the matter of ensuring that advance payments of compensation are not only paid, but paid on time. This links to the equally important question of the way that acquiring authorities should treat claimants when land is being purchased by compulsion.
Starting with Amendment 103BC, having considered the responses to the spring 2015 consultation, the Government think that penal rates of interest on outstanding advance payments are the most appropriate sanction, and we are providing for this in Clause 174. Taken together with the new arrangements for making claims and obtaining further information in Clauses 172 and 173, we think that the prospect of a penal rate of interest will sufficiently concentrate the minds of acquiring authorities, so that advance payments will be made on time.
I now turn to Amendments 103BD and 103BE. The Government think that setting interest rates in a Bill is too restrictive. Provision to set both rates is available in secondary legislation. Coming to the detail of the amendments, the Government think that it is premature to decide on the punitive rate of interest for late payments of advance payments of compensation—as proposed in new subsection (1A) of new Section 52B in Amendment 103BD. The noble Lord, Lord Cameron, and the noble Earl, Lord Lytton, will know that the Government published our consultation paper on phase 2 of our compulsory purchase reform programme on
The second part of Amendment 103BD—proposed new subsection (1B)—would overtake the existing provisions in Section 32 of the Land Compensation Act 1961 to set the rate of interest for compensation unpaid at the date of entry. This rate is not punitive, as there are often legitimate reasons for some compensation to be unpaid at that date. The final claim for many businesses, for example, cannot be finalised until their relocation has been completed.
Noble Lords will recall from the spring 2015 consultation that the Government consulted on increasing this rate of interest from 0.5% below the base rate. The Government confirmed in their response to consultation that the rate would be increased to 2% above the base rate. The Committee will be interested to hear that new regulations are in preparation by the Treasury and will be published in due course.
The new rate of 2% above base is intended to achieve an equitable and fair settlement between the claimant and the acquiring authority. The interest on unpaid compensation from the date of entry is not the same as the interest on commercial lending. It may be helpful if I say that it is more likely that it will be based on a formula which will compensate the claimant for interest which he or she would otherwise reasonably be receiving, had the money been otherwise invested. We can have a separate debate on that, I am sure.
I now turn to Amendment 103BF, which focuses on introducing a statutory duty of care to be owed by acquiring authorities to claimants. There is no doubt that claimants should be treated with fairness and courtesy and kept up to date with developments. This is best practice, and all competent professionals should be advising their clients to act in this way. The Government believe that a new statutory duty of care for compulsory purchase is not necessary and would not help relations between acquiring authorities and claimants. The kind of assistance which should be provided by an acquiring authority may differ depending on the circumstances.
A broad duty of care may be imprecise in nature and difficult to enforce. The professionals working in compulsory purchase suggest that clear guidance on good practice would be a better way forward.
The recently updated compulsory purchase guidance, published on
Of course, I believe it will be best for me to include the technical details in the letter that I am already writing and will place in the Library of the House.
My Lords, I thank the Minister for his very full reply and the two noble Lords who have contributed to this short debate. Some of what we heard was good news; some of the rest not so good. I am sure that the noble Lords who tabled the amendments will, like myself, take great care in reading the reply.
The noble Lord, Lord Campbell-Savours, knows that the Committee has debated on a number of occasions his feelings about acquisition values. May I repeat what has been said on other occasions? Expropriation simply means that less land will come forward. It has been tried twice before and each time the development land tax has been a failure and has been withdrawn. Basically, any gains made through the sale of development land are taxed through the normal tax system. Finally, a lot of community benefit is funded out of the market value of these developments. I therefore do not go along with his hypothesis.
I look forward to hearing more about the consultation and thank the Minister for his reply. I beg leave to withdraw the amendment.
Amendment 102CK withdrawn.
Clause 144 agreed.
Clause 145: Processing of planning applications by alternative providers
Moved by Lord Greaves
102CL: Clause 145, page 74, line 6, at end insert—
“( ) A local planning authority may only be specified under subsection (1) if it so consents.”
My Lords, at last we arrive at perhaps the remaining flashpoint in the Bill. I rise to move Amendment 102CL and speak to my other amendments in the group. There are two other very useful amendments from noble Lords in the group.
Clause 145 is a major, very controversial innovation. It may be the first step towards the privatisation of development management and yet it was dumped on the Commons on Report. There was a very short explanation by the Minister, one speech by Clive Betts MP at 1 am and the Minister refused to answer his questions—there was no reply from the Minister.
Here we are in the Lords at the very end of the Bill, at the end of the afternoon on day nine of nine, and we must try at least to give it some intelligent consideration. I have no doubt that the issue will come back on Report anyhow. The Government are saying that this is intended to be a pilot, but the Bill appears to give the Secretary of State untrammelled powers to introduce this provision to any extent he or she wishes at any time in the future, so the question of how it can be limited is an issue that the Committee ought to look at.
I have referred previously in Committee to the Technical Consultation on Implementation of Planning Changes, which is an extremely useful document for helping to understand what is in Part 6 of the Bill. I say again that it is a pity that it was not sent to us as well. The technical consultation is very interesting on this matter and raises more questions than answers in my view. The first paragraph of the chapter headed, “Testing competition in the processing of planning applications”, reads:
“One form of innovation that we are keen to explore is competition in the processing of planning applications”.
The second paragraph says, referring to local authorities generally:
“The majority of research studies suggest cost savings of up to 20 per cent for competitively tendered or shared services”,
Cost savings are right at the beginning of the reasons for doing this, and the first reference to it is about local authorities collecting refuse 30 years ago. Other references suggest that the savings might be less than 20%, but all of them are old, including a reference to a study from 2008. What collecting refuse 30 years ago has to do with processing planning applications is a mystery to me, particularly after the huge reductions in spending that have been forced on local authorities, which have already produced what are either a lot of efficiency savings or a lot of inefficiency savings due to not having enough staff to do the work.
The Royal Town Planning Institute funded some useful research in the north-west of England which found that staffing in planning departments in the north-west had reduced by one-third since 2010: there are 37% fewer staff in planning policy departments and 27% fewer in development management. If local authorities are doing the same amount they did six years ago, they have already achieved that amount of efficiency savings. One would have imagined that was enough, but perhaps not.
The technical consultation goes on to say:
“These benefits could include giving the applicant choice, enabling innovation in service provision”— which is usually management-speak rubbish, but never mind—
“bringing new resources into the planning system, driving down costs”— on the basis of refuse collection 30 years ago—“and improving performance”. I am being a bit cynical reading this out but as somebody who was involved in reducing costs in one local authority in particular, and peripherally in the county council as well, I know how much of this is going on now and how much innovation is taking place to achieve it.
I turn to choice. Development management is a local authority function and part of democratic local government—or local governance, if your Lordships prefer. It is part of the local planning system, closely integrated with plan-making and other functions, such as enforcement—often a poor relation—tree preservation orders, environmental management issues generally and the council’s involvement in promoting economic development in their areas, which, over the 45 years that I have been a councillor, has become more and more important. It hardly existed 45 years ago and is now a fundamental function, closely integrated with the planning system. But as well as all those things, it is a regulatory function. It is quasi-judicial at the point of determination and requires exercise of judgment. It is not a matter of ticking boxes, as building regulation control tends to be and some of the local authority functions may be. It requires the exercise of judgment at almost every stage of the operation—judgment in the light of policies at all levels, but it is required. It is not an appropriate service to be privatised, whether on pilot schemes or more widely, at any time.
One can think of other similar services provided by the public sector. Will we be able to choose which firm of tax inspectors we have to determine how much tax we pay, or will we have competing firms of parking wardens, some of whom might charge more, or be friendlier and let you off? Will we be able to choose the bailiffs who come to our door if we do not pay our council tax? I should say that I have paid mine for next year already. If we run cafés or fish shops, will we be able to have competing food standards officers from different firms, and to choose the ones we think might be more lenient to us? Will schools have an alternative private provider to Ofsted—that might be a good idea, actually—whereby they can choose which inspectors they want? The whole concept of privatising public regulatory services is flawed.
Will the new system undermine the viability of planning departments, which are already struggling under the cost-cutting being enforced by their finance departments and the local authority budget? Could it increase the costs to the local planning authority if it has to employ underemployed staff, since they will not know what the workload will be from one month or year to the next? Will we have competition by outcomes? Competition on the basis of efficiency may be fine, but will we have competition by fees, as some people charge lower fees than others? The consultation says that,
“benefits could include giving the applicant choice”.
Will people game the system and discover that planning applications for extensions are more easily passed if they choose one lot and not the other? On the basis of experience, that is the kind of view that will be taken locally before very long.
What will the relationship with elected councillors be? At the moment, elected councillors tend to be involved at an informal level right through the process, if it is in their ward or they are chairman of the planning committee, or whatever it is. In my part of the world, who knows where the designated person—that is, the firm that will do it—will be? Will they be in Manchester or London? Will they be local? Who knows? Will we have two different sets of people doing the same things in the same area? What about contacts for residents and other people who will not know what is going on because there will be a different system according to who is carrying out the process?
What about cost recovery? Full cost recovery of processing and determining planning applications does not happen now. It is subsidised by local authorities. So how will it work with private providers? Will the provision in the Bill that the Secretary of State can make payments to private providers result in their being subsidised when in competition with the local planning authority? How will it work?
It is all very well arguing for efficiency from the private sector, but before it starts being more efficient—and I am not sure what it will be doing if all providers are based in Manchester or London—it has to make a profit on top of its costs before it can gain in efficiency, assuming that that is possible. Will there be a level playing field? Will the charges be the same? Will the private sector be able to undercut? Will it charge more and provide a better service—in other words, provide more recommendations for approval?
What about the work by the local planning authority that will have to take place even if a different provider is doing it? What about pre-application work? It may be that somebody has all the pre-application discussions with the local planning authority and then, at the point of putting it in, goes to the alternative provider. The local planning authority would be doing a lot of the work and getting none of the fee. How will that work?
What about information? Will it all be on the local authority’s website and will the local authority have to maintain that? How will that work? Or will people have to go to different places according to who is dealing with the planning application? How will people cope with that? How will the pre-decision review of reports, information and recommendations work? Who is going to advise a planning or department control committee when it is making a decision? Will the private provider come to sit at the committee and act as an officer?
Will a council planning officer going to be there to provide help and advice to the committee? Try going to the planning committee of a local authority and not having a planning officer there because they are all down with flu. I ended up suggesting all the reasons why we should turn something down. I cannot remember whether we won that appeal. You need officers there to provide technical legal advice. What happens if the planning officer’s recommendation is different from that of the alternative provider? Which prevails? Does the committee get two reports? How does that work?
I do not think that this has been thought out properly. There are lots of amendments in this group and I shall not go through them now. The Minister will have answers to them all; I will listen to the answers carefully and I may bring up later any with which I am not satisfied when I reply to the debate on this group. This seems to us to be a scheme which has been dreamed up on the back of the traditional fag packet, or whatever people use nowadays, and dumped on the Commons at the last minute. The best thing this House could do is send it back to the Government and say, “You might have a case, you might not have a case, but go away and bring it back when you have thought it out properly”. I beg to move.
My Lords, I respectfully adopt most of the arguments advanced by the noble Lord in his critique of this very unsatisfactory set of clauses. After the triumphant successes achieved with the privatisation of services such as prisons, probation, aspects of the NHS, electronic tagging, work capability assessment, residential care and so much more, we are now asked to endorse the involvement of the usual suspects—G4S, Serco, Capita, Sodexo et al—all in the name of efficiency in the planning process.
Many councils have found outsourcing to be expensive both in terms of cost and quality, but government dogma dictates that the process must continue, beginning in the planning field with what the technical consultation, to which the noble Lord has just referred, published last month, describes as:
“Testing competition in the processing of planning applications”.
But this is more than just a matter of councils being at first able—and, no doubt, eventually required—to outsource the work. It allows the applicant to choose who will do the work. The notion of a potential conflict of interest does not seem to have entered ministerial heads—or, if it did, it has been ignored.
As the Town and Country Planning Association has pointed out, this is not necessarily to be confined to a limited number of pilot projects or developments. Once again, secondary legislation may be employed, this time to extend the process to any form of development. The TCPA found no evidence of any prior consultation on these proposals. Can the Minister say whence this policy was derived, who was consulted before it was enshrined in the Bill and, in particular, whether any potential external providers were consulted or offered views before these clauses were drafted?
What is the problem the proposal is intended to address and from whose perspective does it exist? Councils can, if they choose, outsource the work anyway—but with the cardinal difference that in that case the work is done not for the applicant but for the public, as represented by the local authority. Under the Bill, it would be the applicant’s adviser, not the adviser to the planning authority, who would have to make judgments about the process, as the noble Lord has just reminded us: for example, even in relation to consultation. Critically, Clause 146(2)(g) provides—the Committee will be surprised to learn—that,
“the circumstances in which, and the extent to which, any advice provided by a designated person to a person making a planning application is binding … on the responsible planning authority”— which effectively privatises decision-making, not merely the application process. As the TCPA points out, this constitutes,
“a fundamental change in how the planning … process operates”.
The DCLG avers that binding advice would apply only in very limited circumstances. What circumstances? How limited? Who will decide the question in the course of any individual application? Why has this significant change been inserted into the Bill without prior consultation? Is this another product of one of the Government’s favourite think tanks, where the thinking is all too often limited but the process is tank-like and destructive in its lumbering progress? How very reassuring it is that, as the Minister Brandon Lewis told the House of Commons, the Secretary of State will be able to decide who is able to offer their services to process planning applications. The terminology is wonderful. The notion almost implies organisations motivated by the purest altruism coming to the aid of applicants and planning authorities, and magically overcoming any conflict of interest between the applicant and the community represented by its elected council.
The TCPA raised the question of how the right to legal challenge by judicial review would be affected by the proposal. JR applies to public bodies. If a council outsources its services, JR is still available, where it is relevant, because the work is deemed still to be carried out by a public body. But under the Bill, the alternative provider is engaged by the applicant, not by the local authority, and therefore the process will be immune from such a challenge. How can the Government justify this or do they not care whether the lawfulness of the process may be subject to question in these circumstances?
No one would defend delays and inefficiency in the planning process. But, as the noble Lord, Lord Greaves, has already reminded us, the huge pressure on council budgets is leading to significant staffing problems. That is a consequence of government policy that we appear doomed to suffer for at least four more years. But what are the Government going to do about the hundreds of thousands of extant and unused planning permissions—a much more important issue than that with which this clause purports to deal? Ideally, the Government should drop the provision. At the very least, they should accept Amendment 102DAA in my name, which would restrict the definition of a designated person to councils and public bodies and not to whoever may set themselves up, under the provisions of the Bill, as a performer of an external planning service.
My Lords, so often during our deliberations on the Bill we have been hampered by a lack of information. We have not seen the draft regulations—we have discussed that many times. We have not even seen the result of the consultation that is currently taking place. Of course, we should remember that that consultation is not due to finish until
Furthermore, we have not seen the Government’s response to the excellent report by the DPRRC. I remind noble Lords that last night the Minister, the noble Baroness, Lady Williams of Trafford, said:
“I also confirm to noble Lords that I will be responding to the DPRRC report tomorrow, as well as giving my intentions for Report”.—[Hansard, 22/3/16; col. 2276.]
I have been checking on an hourly basis, with all relevant bodies, including the Committee Office, whether they have received that response. I say to the Minister that I am certain that even though that has not yet been made public she will have a copy of it, and I hope that when she replies to this debate she will furnish the House with details of the Government’s intentions in relation to this part of the Bill and their responses to the committee’s recommendations and concerns, of which there are a large number.
Those concerns are in addition to those raised by my noble friend Lord Greaves and the noble Lord, Lord Beecham—concerns that I share. They add to what the committee says. It talks about the Bill being drafted very widely, in terms of the powers conferred on the Secretary of State, and goes on, in paragraph 38, to say:
“These are important provisions which, in effect, empower the Secretary of State to require local authorities chosen by him to privatise the processing of planning applications for a trial period. The impact on local authorities and their staff, and on those submitting planning applications, could be considerable”.
Yet we have no details to enable us to work out in detail what that impact would be.
The committee goes on to say:
“It is striking that the clauses contain no requirement on the Secretary of State either to consult before making pilot regulations, or to publish a report on the outcome of pilot schemes”.
This is a point raised, quite rightly, by the noble Lord, Lord Beecham, and is covered by an amendment from my noble friend, which comes later.
Most damningly of all, the committee then goes on to describe the powers given to the Secretary of State as “almost unfettered discretion”, on an issue about which we have no details with which we can work out what should be done. Not surprisingly, therefore, the committee goes through a long series of recommendations —changes to the legislation that it would like. There is a requirement to set out the intended purpose of the pilot regulations on the face of the Bill; to specify that the affirmative procedure should apply to every exercise of the powers conferred by the clauses; to require the Secretary of State to consult local authorities and other interested parties before making regulations; and to provide on the face of the Bill for the maximum duration of pilot regulations. The committee’s report goes on to say:
“We also consider it inappropriate for the Bill to confer these highly significant powers on the Secretary of State without also requiring him to prepare and lay before Parliament a report on the outcome and effectiveness of each pilot scheme”.
My point, in going into some detail about that, is that we know that the Minister will have with her now a response to each of those points. It is incumbent on her to share those responses with the House before we finish our deliberations on these clauses in Committee. However, we also need from the Minister some clarity on other issues—for example, the pilots themselves—because we have at last been furnished with a timetable for the various bits of secondary legislation that will come before us. I am grateful to the ministerial team and their staff for providing us with that, but it is not a great deal of help when every single page that we have been given has a heading that helpfully says:
“Timings are indicative and may change as policy develops”.
I remind the House what it says in the limited information with which we have been provided in relation to the section headed “Processing of planning applications by alternative providers”:
“How many SIs are currently planned? One. What procedure? Negative”, which I hope will change to affirmative. It then asks:
“What will they deal with?”, and says that:
“The regulations will cover … the scope of the pilots”.
Later on, it talks about “pilot areas” and so it goes on, with reference to pilots in the plural. Indeed, we know that in the memo to the DPRRC the memorandum said:
“It is likely that different procedures may be trialled in different pilots, to see what works best”.
It is quite clear that the intention is to have a number of pilots, yet when I look at the question:
“What are the key timings?”, it tells me that is not going to be a long time. It says that the consultation,
Here the word is singular: there will be one type of pilot rather than multiple pilots, so confusion begins to set in as well.
There are then confusions in relation to other aspects of the legislation. We had a discussion at a late hour last night, instituted by the noble Baroness, Lady Gardner of Parkes, with her excellent amendment at midnight on the issue of planning fees. What we learned during that deliberation was that the vast majority of councils lose a great deal of money from the planning process. The average recovery is about 50%. We know that London boroughs, for instance, are losing somewhere in the region of £40 million each year on the operation of their planning departments. We also discovered that the increase which the Government are considering is to be no more than inflation since 2012 and that some councils deemed to be underperforming will get less than that. From the current plans, we therefore know that local authority planning bodies will continue to lose a great deal of money from this process.
The question then has to be asked: if in some places we are going to privatise the process and bring other bodies in, how are those bodies going to come in knowing that if they have the government-prescribed fee scheme they will lose a great deal of money? It is simply not going to happen, so what is in the Government’s mind in relation to the setting of fees? I have done a detailed analysis of all the documents to try to help me work out what the fees should be. I looked, for example, at the technical consultation document with this very intriguing headline, which suggests that we will get a good detailed answer:
“Question 8.2: How should fee setting in competition test areas operate?”.
But it reads:
“In competition test areas, applicants would select who they want to process their planning application and pass it direct to the provider with the appropriate fee”.
That is all it says about the fee structure within the technical consultation document. The Explanatory Notes are equally helpful, telling us that:
“Clause 147 provides that regulations may set out how fees will be set, published and charged”.
But since we do not have any of the details because we do not even have draft regulations, we are in a great deal of difficulty.
The Government are going to find themselves in real difficulty if they allow full cost recovery and a profit for some people who come in, compared to local councils, which will charge only 50% of that price. That is hardly a good way of testing the so-called competitive market. It fails to take account of the many difficulties that different local authorities will face. We will have an opportunity to discuss this in a bit more detail in deliberations on some of the other elements of this legislation.
I want to end with one other area of confusion. It is pretty clear from all the documentation I read that the Secretary of State is going to decide which local authorities’ planning departments will have competition forced on them. I have looked very closely at the Government’s consultation document and I wish to read to the Minister what it says in chapter 8, paragraph 8.1:
“Nor is this about preventing local authorities from processing planning applications or”— and these are the words from the Government’s own document—
“forcing them to outsource their processing function”.
Can the Minister tell us whether this is about forcing some councils to do this, or not? You cannot have a situation where the Government go out to consult on something and tell the people whom they are consulting one thing, when the reality of what they are planning is totally different.
My Lords, I do not wish to repeat the concerns I have had for some time over the amount of information that is available about this Bill, the regulations and the like. We are debating the Bill in these circumstances and therefore I remind the House what the planning system is for. It is a disagreeable necessity. We have to have it because you cannot have a circumstance in which the unlimited, private ownership of land has an effect on neighbours and communities. It is not about land owned by the local authority. The owner owns the land. Whenever I hear planning discussed by the parties opposite, I am fascinated because you might think it was owned by the local authority and that it should come back to the fact that this is a local authority matter.
The House has to recognise that there is an international agreement on human rights in which property is a basic human right—not only under the United Nations, but under the European Union of which I am sure we shall remain a full and active member, even though there is such nonsense spoken about it by the Brexit people. I am not getting on to that, of course. Even if they do not like the European Union, they are stuck with the United Nations human rights declaration, which we signed.
I happen to care about the right to property. It is basic in a community. It is basic for democracy. If you want to destroy democracy, the first thing you destroy is the right to property because it gives people independence. It enables them to stand up against government; it enables them to put two fingers up to a local authority if that is what it thinks. Yet, when I hear a debate like this, I understand precisely why I am on these Benches. Very often I find myself arguing not entirely on the side of the Government. However, I have been very much reassured, by the speeches of the noble Lord, Lord Greaves, and particularly of the noble Lord, Lord Foster, and I understand why I am not a Liberal Democrat. It is because they are neither liberal nor democratic. That is the reality.
All the Government are suggesting is that it would do local authorities a lot of good to recognise that this is not a little bit of business which they do themselves in the way they want to do it. It is something which should be open to public concern and public alternatives. Of course, we can produce all sorts of scare tactics about what might happen and what people could do and all the things that might arise. What we are really arguing in the amendment is that we should not try anything else—there should be no opportunity for alternatives and no one ought to deal with this. Why? Because local authorities do not like it and because that well-known organ of democracy, in which I declare an interest as an honorary vice-president, the TCPA, does not hold with it.
The TCPA does not hold with a lot of things, mainly because it is still burdened by the memory of that dreadful old man, Ebenezer Howard—still thinking in the past, not understanding that we are in a world in which people do not expect there to be one provider or just one lot of people to go to. Today people expect that we test it all the time. The noble Lord, Lord Beecham, went through a whole list of things, but in every one of those cases the nationalised provider is a lot better because there is an alternative. There are better prisons because they do not all have to be done in one way. Even when you have failures, the fact that there is an alternative is crucial in a democracy and crucial for the efficiency of the national system.
I come to the nature of planning. I cannot believe that there is anyone in this House who thinks that the planning system works well. That does not mean to say that an alternative would be better; sometimes planning may be thought of as Churchill thought of democracy—that it is a thoroughly bad system, but there is not a better one. Sometimes I think that that is the best definition of planning that we have. I have declared my interest and my pastimes; although I shall certainly not be involved in anything that may come out of this, I try to help people to produce sustainable buildings. One business with which I have an association tries to make buildings better, more sustainable and energy efficient. But in the course of that, I have to deal with planners, and we have very great difficulties sometimes. There was the lady who said to one of my constituents who wanted to have the next-door very small, knobbly and unimportant field as part of his garden, “You don’t need a bigger garden—therefore you won’t get the right to use it as a garden”. That is ludicrous, to have to ask planning permission to turn a field into a garden. I can think of nothing more ridiculous than telling people that they have to get planning permission to do with their own land what most of us would like them to do, which is to turn it into a garden. But no—that is one of the things, because at some stage some local authority thought that it would be better telling people what to do with their land than people can do themselves.
The noble Lord is very entertaining although I am not sure what his speech has to do with this Bill. But if a local authority requires planning permission for the conversion of a piece of a field into a garden, that is precisely because government regulations in the general development order, or whatever it is now called, require that to happen. If the planning system is not working well—and every time I get a chance to debate planning anywhere, including in your Lordships’ House, I announce it to be bust, because I believe that it is bust—it is almost entirely the fault of the national Government and detailed national rules and regulations, which tie the whole thing down.
I am so pleased that I tempted the noble Lord to intervene at that stage, because I can now tell him that I tried to change the law on that when I was the Minister, and who opposed me? Every blooming local authority—they were the ones who demanded to keep this power and said that it was so important. So I want us to come back to what the Government are asking. This is entirely relevant. I am glad that it is amusing to the noble Lord, but I believe it to be central to the amendment. The Government propose that we give the Secretary of State the power to see whether there are alternative ways in which to handle something that, in the noble Lord’s words, is in many ways bust. That is what he says, but if it is bust, would not it be a good idea to see whether there are ways of unbusting it? This is one of the suggestions.
What do we get? Not a series of suggestions about how we might refine it, improve it, make the tests rather better or come forward with various suggestions about how the various pilots might be carried through. Instead, we get an onslaught on the basis that the only people who can do this are local authorities or public bodies. The Government have produced something which is worth trying. If it does not work, we have not done anything bad. If it does work, we have learned something.
The worst thing in politics is to say that we cannot do something because we have not done it before, that we cannot do something because it will not work or that we cannot do something because we do not want to try. This is the moment when we ought to say that we may be a very old House and many of us in it may be very old, but at least we are young enough to recognise that it would be a good thing to have a go at something different.
My Lords, I listened very carefully to the noble Lord, Lord Deben. He seems to think that the problems that might arise—I think he used the words “might arise”—should not really concern us at this stage. That is what Parliament is about. It is about identifying issues, legislating and, in the event that we foresee problems arising, amending our position to ensure that those problems are avoided.
I want to target a very narrow area. It is the issue raised by the noble Lord, Lord Greaves, about the relationship between the planners in the planning authority and the planning contractor in the meeting with councillors. We are told that the proposal is that the contractor will be making the recommendation, but it is unlikely that the planner from the planning authority, who has a relationship with the councillors that probably goes back many years, may not wish to influence events. Whether it is done formally or informally, the planner in the residual planning department might come up with a very different conclusion or recommendation and indicate to the councillors exactly what he or she thinks. That is why I am a little worried about this reference cited by my noble friend on the Front Bench, who said:
“The regulations may make provision about … the investigation of complaints or concerns about designated persons”, and
“the circumstances in which, and the extent to which, any advice provided by a designated person to a person making a planning application is binding … on the responsible planning authority”.
In other words, can the Secretary of State say, “I require you”—the local authority—“to dismiss any comments, recommendations or views of your own planning department and to accept the views being expressed by the independent contractor”.? I would worry about that because it would completely overturn the principle on which I understand planning operates within local authorities. As I understand it—but it is 40 years since I was on a council—it is normal for the Secretary of State to interfere only on appeal. That provision suggests to me that the Secretary of State can intervene in circumstances which would not be particularly helpful.
I go back to what I said at the beginning of my comments. I am concerned about what happens in the meeting and in the documents that flow between the contractor, the planning officials and the councillors, and about the conflict that might arise. I suggest that that is where the problem will arise and what will sink the whole project.
My Lords, I rise to speak to Amendment 102D. I declare many different property interests, both directly and through companies in which
I have registered an interest. They comprise land directly held by me and by companies, and also land held under options in Sussex, London, Oxfordshire and Scotland. Many of these companies are in the process of developing land and some have planning applications outstanding. I am also a trustee of many charities with property interests.
I support Clause 145. It will do an enormous amount of good, even as drafted, but I am aware that some objectors have concerns with it. It seems they are worried that a “designated person'” will not only be able to process the application, but will have the delegated authority to actually make the planning decision. That would be concerning. So it may be worthwhile to explicitly state that it is not the Government’s intention to allow a designated person to decide the outcome of an application. The actual decision should be reserved for the democratically elected councillors, all as part of greater localism.
The Minister may say that this is clear enough from the existing drafting of Clause 145, but if so I would ask why so many different people have misunderstood it. My amendment, which is supported by noble Lords from three different parties, would save time in the long term. If there is confusion among objectors and developers now, they will simply waste time by misunderstanding the existing clause.
I respect the opinions of many noble Lords who would prefer that this whole Bill not pass, but if it is to pass, they want it to be as clear as possible. I do want it to pass, but I also want it to be as clear as possible. I therefore want to amend Clause 145 to make it explicitly clear that a designated person shall not have any power to determine a planning application. I beg to move.
This is a useful amendment. Perhaps I am tempted to intervene by the rodomontade of my noble friend Lord Deben, who certainly seemed to me an admirable candidate to be a designated person advising on green applications. He would do it better than most, and I look forward to the opportunity that he was extolling.
I also speak as a leader of a blooming local authority which has tried to be creative. I remind my noble friend that my education department is now a social enterprise. I have no problem with privatisation. I do not follow that route at all—my problem with this is that I do not like law made in a hurry. The process here is bad; there is not enough opportunity for consideration.
No—if the noble Lord had been here earlier, he would have heard that this came in at a very late stage in the Commons and was dealt with quickly, and this was the first opportunity your Lordships have had to discuss it. All I am saying is that that is inappropriate at this time and place.
The noble Lord, Lord Campbell-Savours, is on to a very pertinent point. I am not going to go into all the issues; we have not had long enough to discuss planning fees. Local authorities should be properly funded for performing this important function. Funding other bits of sticking plaster—effectively, in some ways, that is what it is—to do that is not going to answer that core problem of under-resourced statutory function.
My problem with this comes down to the point of decision. At the end of the day, that decision must be independent. We have a court system in this country which is full of privatisation. People are advised by private solicitors. Their cases are pleaded by self-employed barristers. There is nothing wrong with private operators. When we get to the point of decision and recommendation, the planning committee, as noble Lords who have attended or been members of planning committees will know, is like a jury in effect, although it has a quasi-judicial effect. Under this provision, one of the parties—the applicant—will very often be a powerful figure who will, in effect, be summing up for the jury. That is what is in the documents here: it is solely for the designated person to make a recommendation to the local planning authority how, in their professional opinion, the application might be termed. So a piece of paper goes to the planning committee with the word “recommended” on it in bold. Under this provision, the private operator, who has a link with one party, is the person who does that summing up to the jury. To my mind, that is the difficulty. I have no problem with private operators being involved, as long as the poor bloomin’ local authority is allowed to properly function in doing what it seeks to do.
I am sorry if I am now in the third minute of my speech. I know that brevity is the soul of wit although sometimes, as shown in parts of the speeches by the noble Lord, Lord Greaves, within longiloquence there can also be pearls of wisdom.
I am concerned about this provision. It allows another local authority to be designated to do the job for local authority No. 2. We are told that that is because one of those authorities may be inefficient. Now, any Government can do this, not only my noble friend’s Government but perhaps Mr Jeremy Corbyn’s Government or that of—I cannot remember; was it Mr Farron? The point is that any Government with a policy preference could say to a local authority that was compliant or friendly, or perhaps did not worry too much about the green side or the affordable side, “We will have an experiment. We will give the work of the authority that is being too green or too difficult with developers to another authority that does not worry too much about green issues, and let them do it”. So there is a risk of moral hazard there—political moral hazard, if you like—from the involvement of any Government. If this measure goes forward, that part needs to be thought about.
My next point comes from long experience of trying sometimes to get things done on a bloomin’ local authority in the public interest. Getting development done is difficult, and one of the reasons why is the suspicion among the public of the planning system. We are an incredibly uncorrupt country, with many high-quality public servants in many local authorities and central government. Still, how many times do people come up to me and say, “Oh, there’s something going on in your planning department. The thing is rigged”? They feel that the system is unfair and rigged against them. If we had a system where the powerful, as conceived, were trying to get something done and were advantaged by having someone working for them who could get to the point of giving the summing-up to the jury, that would increase suspicion of the planning system and would not improve it.
I say to my noble friend: I wish this had been thought out a little more. Perhaps this is too swift a timescale to do it on. However, if we are to go forward with involving much more private activity and competition—I am not against the principle of that, unlike those opposite—can we please think about those very vulnerable points in the process? I would not be quite as dramatic as the noble Lord, Lord Campbell-Savours; I think, rather, that it might sink or swim. Still, the points that I have tried in my rather halting way to put forward are extremely important.
We also have to be careful about the scope of the secondary legislation. When I look at Clause 145(4), I am surprised that the Delegated Powers Committee did not take issue with the wording:
“The regulations may … apply or disapply … any enactment about planning”.
That seems to be the ultimate Henry VIII power, even in respect of an experiment.
I say to my Front Bench: please be cautious. Do not be put off entirely from looking for experiment, as noble Lords opposite were saying. But please think about that process at the point of decision, the nature of engagement of the Government and of powerful parties and how that might be perceived, and the moral hazard and indeed the actual hazard that might arise.
My Lords, I rise primarily to speak to Amendment 102D, to which my name is attached, but I cannot resist commenting on the paean of praise from the noble Lord, Lord Deben, for landowners. I could not help thinking that he might have a desire to involve the local planning authority if a large basement were being dug underneath his property or someone was proposing a building that did away with most of the light that fell on his property. I think then he might develop a bit of enthusiasm for planning, as opposed to the rights of landowners.
I accept the right to experiment, but to say that, because we, on this side of the Committee, suggest that there could be some problems with the idea and that we would like to subject it to scrutiny, it somehow means that we are totally Luddite or that we are opposed to any experimentation whatever, is a trifle over the top. I do not know whether my name says that I am young enough to meet that compliance, but I hope that my attitude is, anyway; so on the assumption that this might go through, the purpose of the amendment is to raise a perfectly legitimate and necessary concern. Whoever it is contracted to, the final decision—and legislation should be very explicit on this—must come back to the local authority. It must come back to the elected people to make that decision. That might be infuriating—on many occasions it is. There is a development going on in my area that has taken three years up till now. I would not blame the planners; a group of nimbys are doing their best to ensure that this development does not take place, but that is what you get with local democracy.
It is right to be sure. I looked at the phrase in the Bill that I assume the Government put in as a safeguard. It says:
“The regulations must provide that the option to have a planning application processed by a designated person … does not affect a local planning authority’s responsibility for determining planning applications”.
I can see that that is what this is about. The phrase, “does not affect” ought to be stronger than that; that is why I am supporting this amendment.
Finally, I hope that the Government will ensure—after all the consultation and the pilots—that there is clear government guidance for whoever is to carry out this work. There should be declarations of interest and an ethical responsibility in the way the work is carried out. Those are legitimate concerns, some of which were expressed by the noble Lord, Lord Greaves, and my noble friend Lord Beecham.
My Lords, I do not intend to detain your Lordships’ House for very long on this; everything that needs to be said probably has been said. However, I want to add my voice in support of my noble friend Lord Borwick on Amendment 102D. This not because I think that this amendment is probably necessary; I am sure the Government have no intention of ensuring that developers can prejudice the decision that is taken by the local authority by choosing a contractor to undertake the work who will produce a report—which the developer has paid for—that is in the developer’s favour. Although I am sure that that is not the intention, it is a clear misconception that is accepted by a great many people outside this House. We need to make it perfectly clear that the designated people who are producing the planning report are doing it on a highly professional basis and that all they are doing is undertaking the mechanical work of processing a planning application. What they are not doing is prejudicing the decision that will be taken by the local authority. If they are prejudicing or influencing that decision, we are going slightly too far in the Bill. The decision on planning has to be a democratic decision that is taken by the councillors in the local authority. It could be argued that too often in local authorities those decisions are dedicated to officers, and ought to be retained by the planning committee and the councillors themselves.
I am looking forward to receiving the reassurance that I think many people in this Committee are looking for. All we are proposing is to provide additional resources to the council, however they are paid for, for the mechanical process of taking a planning application from its initial lodging with the council through to the point at which it is capable of being assessed by the planning committee. I agree totally with my noble friend Lord True that privatisation in that regard is fine, but privatisation which privatises the democratic decision is, in my view, unacceptable.
My Lords, I support everything that has been said on this side so far and, in particular, Amendment 102D in the name of the noble Lord, Lord Borwick. I suspect that I will be supporting every amendment that comes forward on Report but this particular amendment adds value. Personally, I would like to scrap the whole Bill—it can be consigned to my wood burner any time. However, if that is not an option, at least we should clarify things as much as possible. As a former councillor, I understand that this tiny amendment is crucial in order to save an awful lot of stress, argument and anxiety down the line. Therefore, I urge the Government to accept it.
My Lords, I refer the Committee to my pre-declared bunch of interests. I do not know whether I have to declare them again—someone will have to explain the rules to me.
I am sure that noble Lords will be surprised to hear that I am not that bothered whether local government has to face competition in dealing with planning decisions. On the basis that they already cost local government a fortune, I would be very surprised if, under the current fee structure, anybody from the private sector came anywhere near them. So I see this part of the Bill as a chance to get value for money for councils and, if the private sector does get anywhere near it, we will be able to get an increase in planning fees. Therefore, from a councillor’s point of view, I welcome the competition because it can only drive prices up, not down, and in this case I am happy with that.
I should point out that the comments of my noble friend Lord Carrington about those producing the planning report being involved only in the mechanics of the process does not give the whole picture. There is a presumption in favour of development, so somebody will have to recommend to the committee either that the application complies with a presumption in favour and therefore it must be granted, leaving the matter to be democratically argued, or that it should be rejected because it is not sustainable development. Whoever prepares the report, whether they are independent or council-based, must come forward with a recommendation to either grant or refuse, but the final decision must be made by politicians who are accountable to the affected community, and something needs to be put in the Bill to make sure that that is explicit. I am not sure whether these amendments do that but the Government will need to ensure that it is done somewhere.
I am making a brave step out, as I am going to try to take on one of the big beasts for a bit of sport. My noble friend Lord Deben talked about attaching farm fields to gardens not being a problem and being fairly straightforward. It would be fairly straightforward if gardens did not then become previously developed land and thus brownfield, leaving them more susceptible to development in areas where that might not necessarily be sustainable. Before anyone on the other side laughs, they need to remember that under the brownfield policy vaunted by the previous Labour Government, 60% of the brownfield land that they managed to develop during their time in office was reclaimed garden land. So there is a good reason why councils are very cautious about changing use from farm fields to garden land.
My Lords, I recognise that it is late in the day to be contributing to this amendment but I have put my name to an amendment in the very last group, so I am simply delaying myself getting home. I want to remind the Committee about the findings of the Select Committee on the Built Environment, on which I have the privilege to sit, and the very worrying evidence that we heard from planning departments across the country about their ability to recruit experienced professional planning staff and about their viability for the future.
I absolutely support the concerns about this proposal, and I think that Amendment 102D is well worth supporting as a safeguard in terms of the moral hazard issue, but I think that we also need to take account of the fact that at the moment there is a real shortage of suitably skilled and experienced planning staff. If we set up alternative economies in a commercial planning capability, we will find that local authorities are rapidly hollowed out in terms of their planning capacity. It is very close to that at the moment. They have next to no specialist planning skills in heritage, environment and other areas. They are finding it difficult to afford planning staff of their own. So in this proposition we need to take account of the viability of planning departments for the future if skilled and experienced staff are likely to be attracted towards a commercial planning capacity in a competitive sense.
We also need to think about whether we are trying to solve the right problem. There is a real issue about the quality and capacity of planning departments across the country. We saw in our work with the Select Committee impressive alternative models. Local authorities gathered together to create more critical mass and to allow themselves to maintain a range of specialist planning officers. These authorities had voluntarily contracted out their planning support to commercial organisations.
Importantly—and here I disagree violently with the noble Lord, Lord Deben, a rare event in my experience—the planning authority was very much in the driving seat. The worry I have about these proposals is that if you are paying a fee to a commercial provider of planning-support services you will expect them to be on your side. They will be professional and I hope that a quality-assurance process will be put in place to ensure that professional standards are maintained.
As the noble Lord, Lord True, said, the reality is that when you are in front of the jury you will have your man arguing your case, not the local authority’s man helping the local authority’s elected officers take a dispassionate look at what the decision in the public interest should be. As I say, I disagree with the noble Lord, Lord Deben. I am a great fan of the planning system, which is one of the last genuinely democratic processes in this country. It is the responsibility of the local authority and the officers who support it to take a decision in the interests of the local community, balancing all the economic, social, environmental and other issues. I fear that if we do not handle this set of changes carefully we will find that we have tipped the balance too far in the direction of the developer.
My Lords, I agree with the noble Baroness, Lady Young of Old Scone. I have two amendments in about half an hour from now and I am conscious that we have reached a point where virtually all the issues around Clause 145 are being discussed. The noble Baroness has rightly identified that the balance is about to be tipped. I hope that the Minister, in replying to this debate, will answer the question posed by the noble Lord, Lord Beecham: what exactly is the problem that the Government are seeking to solve? Unless the problem is properly defined, the solution can ultimately give rise to a whole set of new problems that have not been forecast.
There is a real issue about being able to dissociate the democratic decision from the designated person who is writing the recommendation. This was put so well by the noble Lord, Lord True, who rightly defined that the process of making a decision is dependent on what the person who writes the recommendation actually says. It is a whole and a continuum. It is not a function separate from making the decision.
A further issue of major concern to me relates to what the noble Lord, Lord Deben, was talking about earlier. It is wrong in principle to privatise public regulatory services. That is now happening. There are issues around cost, as to whether it would be more expensive to go down that route, but the principle of a planning decision in practice being privatised is a major issue about which we must be very careful. A designated person who is writing a recommendation has to be independent and to be seen to be independent.
I have concluded that Clause 145 is now not fit for purpose and should be withdrawn in its entirety. If the Government can explain how they can bring it back at Report better than it now is, meeting the public interest test of independence, we might be willing to look at it—but at the moment I see no evidence base that convinces me that Clause 145 should remain part of the Bill.
I thank all noble Lords for their contributions to an extremely interesting debate. Before I respond to the specific amendments, perhaps I can make some broad comments, although I will try to keep them brief.
We all want a planning system that is fit for the 21st century: one that can effectively support the delivery of homes that people need, and one that is efficient, responsive and resilient. To ensure this, there have been calls for greater flexibility in the way that fees are set, provided that any changes are linked directly to the quality of service.
We want to address resourcing concerns, but the answer is not simply to ask developers to pay for all local authority costs that go unchecked. The level of planning fees is one side of the resourcing equation. How planning applications are processed is just as important: continually transforming processes to drive down costs and deliver the most effective service possible.
Currently, local planning authorities have a monopoly on processing applications for planning permission which denies the user choice and does not incentivise service improvement and cost reduction. My noble friend Lord Deben made a strong case for why we need to look at this area. Local authorities can do more to transform their planning departments. Many have, as the noble Baroness, Lady Young, identified. Some have introduced new ways of operating through outsourced and shared service approaches and shown that performance can be improved and costs reduced—but more should be following their lead. We believe that it is incumbent on us to test new ways to improve the planning system. Therefore, we want to use the pilots to test the benefits of introducing competition to processing planning applications.
Clause 145 will give the Secretary of State the power, by regulations, to introduce pilot schemes for competition in the processing of applications for planning permission. Regulations will set out the legal framework and the detailed rules for how the pilot schemes will operate. Clauses 145 to 148 set out the scope of what can and cannot be included in the regulations.
Let me now try to be clear on a number of points. This is about competition for the processing of applications, not the determination of applications. I can assure noble Lords that the democratic determination of planning applications will remain with local planning authorities during the pilots, and that they will not be able to delegate this function to private sector providers. We do not intend to make a report or recommendation from a designated provider to a local planning authority about whether or not the authority should approve the planning application in any way binding, and the authority will be able to reject the recommendation and set out its reasons for doing so. Local authorities will continue to determine planning applications, as they currently do.
Reports from the authority’s officers to a planning committee are not currently binding on the committee. Similarly, reports from a designated provider making a recommendation about how an application should be determined will not be binding. Planning committees or officers taking decisions under delegated authority will be able to reject the recommendation—although, of course, they will need to set out the reason for doing so. The public will be able to comment on planning applications in pilot areas, just as they do now, irrespective of who is processing the application.
We are not forcing local authorities to privatise or outsource their processing service. In pilot areas, the authority will keep its service, but with other providers able to compete with it to process applications in the area. If the authority’s service is the best, why would applicants not still choose it? We are not about to let just anyone become a designated provider. We expect that regulations will require those selected to meet high professional standards and not process applications in which they have an interest.
What is to stop an applicant going to the contractor and saying, “Look, I won’t give the local authority the business, I’ll give you the business, but you’ve got to recommend yes on my application”? What is to stop that happening?
The final decision on the application will be up to the committee. The noble Lord, Lord Beecham, mentioned conflicts of interest and the noble Baroness mentioned quality assurance. We will be returning to those matters in the next group, so I will not dwell on them now.
Can the Minister confirm whether an independent council planning officer who is employed by that council will be able to write a critique of the recommendation that has been written by the designated person? This takes up the point raised by the noble Lord, Lord Campbell-Savours. If it is simply a report written by the designated person, how will it be known that it is accurate—and will an independent council planning officer be able to challenge it?
The problem that my noble friend might reflect on is that paragraph 463 of the Explanatory Notes states that,
“it will be solely for them”— that is, the designated person—
“to process the application and make a recommendation to the local planning authority on how, in their professional opinion, the application might be determined”.
In my world of reading planning reports every week, that is what is in the planning recommendation: there is a point of recommendation. That is the difficulty which I would like us to look at between now and Report: whether building on the excellent amendment moved by my noble friend Lord Borwick one could put in further defences. The other difficulty is in Clause 146(2)(g), where, as has been pointed out, circumstances are envisaged in which the designated person’s advice might be binding.
Finally and briefly, once the thing goes before a committee with a recommendation, the planning committee, if it does not agree, has to overturn that advice, which needs to be dispassionate. The suspicion is that it might not be dispassionate in certain circumstances. When the inspector looks at that, he is looking at a planning committee which has overturned professional advice. The dice are therefore rather loaded when this goes to the inspector. I am not opposed to this in principle, but the point about the element of decision needs to be considered further between now and Report.
I will respond to my noble friend first. It would be inappropriate to tell the planning inspector what weight they must place on the paperwork provided by the appellant and by the local planning authority making the decision. It is right that the inspector judges each piece of paperwork on its merits. But we will reflect further on the issues that he has raised.
In answer to the noble Lord, Lord Campbell-Savours, we will use regulations to prevent conflicts of interests and maintain ethical and professional standards. Local planning authorities will retain responsibility for deciding the planning application, having received a report with a recommendation from the provider to whom the planning applicant chose to submit their application for processing. We will set out regulations, actions and procedures that approved providers will have to follow to ensure unbiased reports.
I will take that back and write to the noble Lord. I will respond on one other general point before moving on to the amendments. My noble friend Lord True asked about the moral hazard involved in selecting who processes planning applications. We are not selecting who processes a particular application: it is the applicant who chooses. There will be an approved list of providers that the applicant can go to, but they will choose their provider.
We welcome the scrutiny that the Delegated Powers and Regulatory Reform Committee has brought to these clauses, which was mentioned by the noble Lord, Lord Foster. A response will be published by the end of today, but as noble Lords know, we are not quite sure when that will be.
I am sorry but the Minister specifically said yesterday that it would be before the House rises. That is for the Minister to sort out, but can she give us an assurance on this? The assurance that her colleague gave us was that, before we leave this Chamber, we would have a copy of it in our hands so that, should we wish to, we can refer to it in any subsequent amendment.
I will come back to that in a second, but as I say, we will be publishing the response by the end of today. We therefore believe that Amendment 102CLA, tabled by the noble Lord, Lord Greaves, is premature.
I thank the noble Lord for Amendments 102CL and 102DB about consent. An effective test of competition is likely to be achieved with a set of pilots which reflect the different types, sizes and geographic locations of local authorities. To answer the question of the noble Lord, Lord Foster, there will be a number of pilots, not just one. Local authorities have consistently told us that a fair test of competition must include weaker authorities at the lower end of the performance spectrum—pilots cannot just include top-performing, progressive authorities. However, they are concerned that weaker authorities are unlikely to volunteer to be in pilot areas. Therefore, we need powers which give us the necessary flexibility to select an appropriate mix of pilot areas and to be able to respond to the sector’s concern if necessary.
I do not see how compelling a local authority to be a designated provider would work in practice. How would we actually force a local authority, against its will, to compete for work in another patch and to do that work to a high standard? We do not therefore intend to compel any local planning authority to be a designated provider.
I turn now to Amendment 102D. We have been very clear that during any competition pilots we bring forward under Clause 145, the responsibility to determine planning applications will remain with the local planning authority in the pilot area. I will put this as clearly as I can: only the local authority can decide on an application. Clause 145 will give the Secretary of State the power, by regulations, to introduce pilot schemes for competition in the processing of applications for planning permission. Subsection (1) allows the regulations to make provision for a planning application to be “processed” by a “designated person”, and subsection (6) says that “processing” the application means any action “other than determining it”.
Amendments 102CM, 102DA, 102FA and 102FB, tabled by the noble Lord, Lord Greaves, would remove intended safeguards. For example, Clause 145(3), which would be removed by Amendment 102CM, leaves room for the Government to exclude from the pilots certain types of application where local government and others can make a compelling case that they are so significant or sensitive that they should continue to be handled by the relevant local planning authority. Clause 146(1)(a), which would be removed by Amendment 102FA, enables us to specify circumstances where it is inappropriate for a designated person to process an application, for instance because of a conflict of interest. The removal of text that would result from Amendment 102FB would leave us unable to specify the circumstances in which a planning authority should take over an application from a designated person. They could either potentially take them all over without limit, or none, and we believe removing the safeguard is impractical and unworkable.
Amendment 102DAA was tabled by the noble Lords, Lord Kennedy and Lord Beecham. Enabling the private sector to compete with local planning authorities is likely to drive greater reform than if we leave things solely to authorities, as the noble Lords would wish. We are proposing pilots to test the benefits of introducing competition in planning application processing.
My apologies. However, my argument stands. We want to encourage the private sector to be involved as well, but I apologise for that misreading of the noble Lord’s amendment.
Amendment 102EA would extend the definition of “planning application” to include permission in principle and technical details consent. I thank the noble Lord, Lord Greaves, for his amendment. We intend to give it some further thought.
We intend to design the pilot schemes collaboratively with local government, professional bodies and the private sector. We are already consulting on how they might operate. Furthermore, an extensive dialogue with key partners is under way and in the last six weeks we have met with more than 80 local authorities through a range of events. The noble Lord, Lord Greaves, raised a number of technical points. Obviously, these are issues that will be addressed through the pilot schemes.
The noble Lord, Lord Foster, asked about the draft regulations. As I hope I made clear, we are engaging extensively with the sector and consultations are currently out for consideration. As I said, we have already spoken to more than 80 local authorities. I would be happy to write to him to provide an initial summary of the issues raised so far during our engagement with the sector.
I apologise, but will the Minister answer my other question about the technical consultation? It may have been a drafting error by the Government, but paragraph 8.1 specifically says:
“Nor is this about preventing local authorities from processing planning applications or forcing them to outsource their processing function”.
If that is correct, the first amendment in the group, which would mean that local authorities would have choice in the matter, is presumably accepted by the Government. Alternatively, this is an error and the Government have gone out to consult on a document that contains a fundamental error about the purpose of this section of the Bill.
I said earlier that we do not intend to force local authorities to outsource their functions. I will have to read further what the noble Lord said and respond in writing.
I have given the noble Lord the answer that I can. I am sorry that he is unhappy with it. I will go back and have a look to see whether I can provide him with any other information.
The noble Lord will also not be happy with my response to his question on the DPRRC report. I am afraid that it depends on what time the House rises as to whether noble Lords get it before we rise, but they will get it today. On that basis, I ask noble Lords not to press their amendments.
My Lords, there is a lot there to look at, read and think about. In the last argument there was some confusion between compulsory outsourcing and being forced to be subject to competition. Those are different things. I think the Government are saying that some authorities may have a designated person or persons forced on them in their area, but some clarification would be very helpful. The Bill certainly says that that is possible.
I thank everybody who took part in the discussion. Some were more entertaining than others. The noble Lord, Lord True, took us into the details of planning committees, which some of us have spent far too much time in our lives chairing, being members of or whatever. On the point about the relationship between the committee and its planning officer regarding applications where the committee may overturn the recommendation of the officer, there are applications where it is obvious which way they will go: that they will be rejected, or passed. While people may argue one way or the other, there are no sensible reasons and it is a fairly cut-and-dried case. But in most cases where recommendations are overturned, they are arguable both ways. If the planning committee overturns cases where it is not arguable both ways, it is not a very good committee. It is behaving pretty irresponsibly, really.
Under those circumstances, the reports written by planning officers are balanced. They will put forward the reasons an application has been made and the arguments for it; they will put forward the objections to it and the reasons it might be turned down; then they will come down on one side or the other. If the committee takes a different view and it then goes to appeal, a sensible inspector will look at all the original reports and everything else and he will come to the view that it was a perfectly reasonable decision by the committee.
The danger is that if we get private providers who are not plugged in to that particular local authority, who do not have relationships with the councillors, they will simply make a recommendation without the balanced nuances and that will render an authority much more liable to costs than it would be on a sensible report. There is a real danger there. If there is going to be a designated person, that designated organisation, in effect—a commercial company—needs the time and the experience to build the relationships with that local authority to get sensible reports and sensible decisions. I doubt that that will happen in the pilots.
I do not want to go through all the amendments. I am grateful to the Minister for her detailed responses. I think she misunderstood some of the amendments, particularly those where I wanted to find out how things were working, and she was telling me I was just throwing it all away. I understand that.
The noble Lord, Lord Deben, introduced an ideological component to the Committee which has not always been present. I understand why he is not a Liberal Democrat now more than I did before, which is helpful. I would love to spend the rest of this evening discussing these matters with him but I think we would be on our own. All I will say is that I agree that private property owning is fundamental to personal autonomy and to democracy. The problem is that if too few people own too much of the property, it leaves most people owning none, and that is not a liberal society and it is not a good society.
When it comes to the balance between the community—society as a whole—and individuals, it is easy to think of planning departments as being a group of bureaucrats who increasingly just look at the rules and try to apply them, because there are so many of them being poured down from on high, in a fairly arid system. I think the planning system is bust, I must say. Nevertheless, the noble Lord, Lord Deben, is famous, justifiably, as an environmentalist and an environmental campaigner, and environmentalism is all about the community and the environment in which the community lives.
That is why the planning system is not just an arid bureaucracy or a necessary evil, but a very good thing. It is fundamental to maintaining the balance between the interests of the wider community and the environment in which that community lives, and the selfish wishes of individuals. I use the word “selfish” without denouncing it, particularly. We are all selfish in what we do and we all have our personal autonomy. That is fundamental and it is why I am a Liberal. As for the land, I remind the noble Lord of the old, famous Liberal hymn, which we still sing: “God made the land for the people”. People who own the land look after it on behalf of everybody. That may be where we have an ideological difference.
If I go on any more like this, I shall be shot down by everybody else in here.
It is a very constructive point. There is time to discuss this part of the Bill further before Report. We are coming back straight to Report, but I do not imagine we will get to Part 6 for quite a while; for several days, anyway. I ask the Government to convene meetings of people around the House to look at the practicalities. If the Government can persuade us that in a practical sense, this will work, or that it might work—that it is worth trying—we can think about practical, working amendments to it. If they cannot persuade us, some of us will want to remove it all. I beg leave to withdraw the amendment.
Amendment 102CL withdrawn.
Amendments 102CLA to 102DB not moved.
Moved by Lord Greaves
102DC: Clause 145, page 74, line 36, at end insert—
“( ) The Secretary of State may not designate a person who—
(a) provides services in a professional capacity to persons in connection with development proposals or applications for planning permission or is employed by or associated with a company which provides such services,
(b) is employed or remunerated, whether on a full-time or part-time basis, by persons or companies which undertake development, or
(c) has within the past five years been employed by a local planning authority in any capacity that involved dealing with planning applications.”
My Lords, I put this in a separate amendment because I wanted it set out and because it is the fundamental thing that people outside the system are going to complain about with regard to private provision of the processing of planning applications. The potential for conflicts of interest is high. The Government say they will produce regulations to stop that and make sure it does not happen. We will see how they do that.
There is a perception of conflicts of interest in a system that, as was said earlier, is already believed by many people to be utterly biased towards large developers and against ordinary people—rightly or wrongly, there is a widespread belief that that is the case. If, instead of being processed by local government officials, planning applications are processed by private companies, people will look for the links between those private companies and developers putting in applications and, whatever safeguards the Government put in, they will find them. They will find family relationships, school relationships, board memberships and so on—all manner of relationships. It is a huge can of worms.
If the Government are going ahead with these pilots, this is a fundamental issue that they have to tackle and do their very best to get right. I doubt they can get it right but it is at the heart of this proposal. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Greaves, for putting this unexpected discussion before the Committee. I am conscious that there are 11 more groups, which, in the course of a normal Thursday, would need to be discussed in the next hour and seven minutes. Perhaps I can abuse the fact that I am now standing up to say that it would be very helpful if we could have a statement from the Government Chief Whip in, say, 15 minutes, explaining his intentions for the remainder of Committee. It is clearly unreasonable—to the Minister and the shadow Ministers—to be continuing in this way, making such slow albeit quite proper progress, because these are important issues. It would be extremely helpful if we had a statement from the Government Chief Whip about the Government’s intentions for dealing with the Bill because, frankly, this is not a sensible way for legislation to be properly scrutinised by your Lordships’ House.
My Lords, I hate to intervene because the hour is getting late. These matters are generally decided through the usual channels. I guess that they are having discussions at the moment and, if the Chief Whip comes in, I am sure he will make a statement to the Committee. For now, can we get on with the Bill?
The noble Lord’s Amendment 102DC is excessive, not least because local authorities tell us that it cannot be beyond us to work together to design a robust system of checks and balances to maintain professional standards. As I have said, we believe that the private sector could bring valuable innovation and efficient techniques to processing and managing planning applications. That said, it is entirely reasonable and understandable to ask how we will maintain accountability, integrity and professional standards with private sector involvement. Key to this is who makes the decision—who can be a designated person, what applications designated persons are allowed to process, and legal safeguards in the planning system.
I have been crystal clear that responsibility for deciding planning applications will remain with local planning authorities, and they cannot delegate that to a designated person. A designated person will not be able to decide on a planning application. Notwithstanding a separate amendment from the noble Lord, Lord Greaves, Clause 146(1)(b) already allows us to specify circumstances where a local authority could take over a planning application from a designated person, including where it has demonstrable concerns about the designated person’s work. Persons designated by the Secretary of State will be expected to meet high professional standards and have expert planning knowledge that would enable them to operate in pilot areas with unique characteristics. We will expect them to demonstrate the ability to engage with local communities and councillors so that they can operate successfully in these pilot areas. We expect to put in place mechanisms to address any failure in standards and integrity, such as removing a provider’s designation, or, as I said a moment ago, enabling poor work to be redone.
Our engagement work with local authorities and the private sector has also highlighted the obligations of Royal Town Planning Institute membership, which was mentioned by noble Lords during discussion of the previous group of amendments. All members of the RTPI are bound by a code of professional conduct, underpinned by a complaints process, setting out required standards of practice and ethics for chartered and non-chartered members. RTPI members are required to adhere to five core principles: competence; honesty and integrity; independent professional judgment; due care and diligence; and professional behaviour. We will look to build these and similar standards into the selection and performance monitoring of designated persons. Crucially, I agree with the noble Lord, Lord Greaves, that a designated person must not be allowed to process a planning application in which they have an interest. Furthermore, after extensive dialogue with local authorities, professional bodies and the private sector, we will set out in regulations the actions and procedures that a designated person must follow in processing a planning application.
I also draw the noble Lord’s attention to Section 327A of the Town and Country Planning Act 1990, concerning requirements for processing planning applications. A local planning authority must not entertain a planning application where the formal manner in which the application is made, or, crucially, the formal content of any document or other matter which accompanies the application is not compliant with the requirements for processing a planning application. Therefore, an application which has not been appropriately processed by a designated person, or has involved a conflict of interest, could be considered null and void.
I can assure noble Lords that, given the importance of this issue, we will continue this dialogue to ensure that we get the design of the pilots right. I hope that, with this brief overview, the noble Lord, Lord Greaves, will withdraw his amendment.
My Lords, I will. That was extremely helpful and I will read it carefully. On that basis, I beg leave to withdraw the amendment. I too want to get home tonight, and if helps the noble Lord, Lord Harris of Haringey, I shall not move the next group of amendments, because I think that we have more or less finished the debate on this for tonight.
Amendment 102DC withdrawn.
Moved by Lord Harris of Haringey
That the House do now resume.
My Lords, given that the Government Chief Whip has not yet arrived in the Chamber to explain what the intention is—although we may be about to get a message from him—to expedite matters, in order to see exactly what the Government’s intentions are, I beg to move that the House do now resume.
My Lords, I argue that the House should not resume. Discussions are ongoing with the Chief Whip as we speak. I suggest to the House that we continue. The Chief Whip will come into the Chamber as soon as he is able to update us on progress on the Bill.
On the basis of that assurance that the Government Chief Whip will be joining us in about 10 minutes, I will not press my Motion to a vote at this stage.
Amendments 102DD to 102EA not moved.
Clause 145 agreed.
Moved by Lord Greaves
102F: After Clause 145, insert the following new Clause—
“Review of the plan-making process
(1) Not less than six months after the coming into force of this section the Secretary of State must establish a comprehensive review of the procedures, costs, time-scales and efficiency of the plan-making processes under planning legislation (“the plan-making review”).
(2) The plan-making review must invite evidence from planning authorities, users of the planning system, and any other persons.
Briefly, my Lords, there were suggestions earlier from the noble Lord, Lord Deben, who is no longer in his place, that the planning system needed an improvement. I apologise for tabling this amendment in a rather strange location in the Bill; that was by accident. I tabled it to suggest that it was time for the
Government to pursue an inquiry and reforms to the plan-making system, as opposed to the development control system.
Since then, I have discovered that such an investigation has been taking place. I have a copy of a report which came out a few days ago—I think it was on
There are defects in the development control system. While nobody is perfect, everybody who gets involved in that system is frustrated by some of the things that have to happen. Nevertheless, it has been my view for a number of years—I have expressed this in your Lordships’ House on a number of occasions—that the main inefficiencies and problems in the planning system are with plan making rather than development control. Plan making is cumbersome, bureaucratic, top-down, top-heavy and not very democratic. Reform is needed, particularly if local plans are to be the basis for planning in principle, so I am delighted by the document that I have received. In order to give the Minister a chance to reply, I beg to move this amendment.
I thank the noble Lord and I will respond very briefly. We recognise that the process of getting local plans in place can sometimes seem lengthy and complicated, which is why we gave a commitment in the productivity plan to bring forward proposals to streamline them. In September last year, Ministers invited an eight-strong group of experts to examine what measures or reforms might be helpful in ensuring the efficient and effective production of local plans. As the noble Lord rightly said, that group published its report on
My Lords, I am happy to beg leave to do so.
Amendment 102F withdrawn.
Clause 146: Regulations under section 145: general
Amendments 102FA to 102H not moved.
Clause 146 agreed.
Clause 147: Regulations under section 145: fees and payments
Amendments 102J and 102K not moved.
Clause 147 agreed.
Clause 148: Regulations under section 145: information
Amendment 102L not moved.
Clause 148 agreed.
Clauses 149 to 151 agreed.
Moved by Lord Harris of Haringey
That this House do now resume.
I am sure that this will be helpful. It is clearly progress and we all want to get on with this. But it would be useful for the House to know what the intention of the Government is as far as the progress of this Bill is concerned. So, unless we are going to be given more information, I will again put a Motion that the House do now resume.
My Lords, I am sure that that is the case, but I am not a member of the usual channels. There are Members sitting in this Committee who are interested in this Bill or in particular clauses or aspects of it. We have a right to know the intention in terms of the remaining groups on this Bill. That is why I therefore move that the House do now resume.
My Lords, perhaps I might speak as the Minister who is on the Bill. We have spent many weeks on it. The one thing that we do not do is the job of the usual channels. With respect to the noble Lord, I ask him to respect this convention and allow the Chief Whip to make a Statement at 7 pm. In the mean time, could we please get on with this Bill because we all want to go home?
My Lords, we now have nine groups which has normally been a day’s work. Are the Government expecting us to finish nine groups within the next hour or so? We need to know where we are going. Within the matter of the last few minutes we have already dropped one string of amendments to suit the House. The noble Lord, Lord Greaves, was prepared to concede one group to help expedite proceedings but we still have all these other groups left. We need a Statement before 7 pm.
My Lords, my noble friend has been very clear. Following discussions with the usual channels, my noble friend the Chief Whip will provide an update at 7 pm. Meanwhile, we have time before us where we can make progress and continue the very good work of this House. As to the noble Lord’s assessment of what progress can be made on groups in time, I remember being advised that, when his party were in government, it was quite regular for them to be making much speedier progress on groups than we have been doing lately. I would urge noble Lords to continue their very important work and see how far we can get, rather than spend any more time now talking about what may or may not happen once we get to 7 pm.
I say to the noble Lord that the best thing for us to do now is just to continue with the work of the House. My noble friend the Chief Whip has been in the Chamber very recently; he is talking to his counterparts in the usual channels. What we can most usefully do in the Chamber is to do our very important work of scrutinising this legislation, debating it and making the great progress that has been made this week, to which the noble Lord has contributed, alongside many other noble Lords in this Chamber, all of whom want to continue with that work. I suggest to the noble Lord that that is what we do right now.
That might be the view of the Leader of the House, but it is not my view. The House is being unfairly treated. For those watching our proceedings from outside, we should explain that this Bill is being opposed by a large number of Members of this House on the basis that it is a skeleton Bill, which is being driven through Parliament without all the controversial areas being debated. That is why it is important that we have enough time to debate the nine or 10 remaining groups of amendments. What is happening now in this Chamber is that the Government are trying to find a way in which to secure the passage of the Bill this evening. That is what is going on. The public outside should know that it is a scandal.
I absolve the noble Lord, Lord Campbell-Savours, because he has been present for most of the Bill, which is not true of all noble Lords who are seeking to intervene on this question. We normally do not finish until 7 pm on a Thursday. As a courtesy to all of us who have spent a long time here, can we proceed to do the business of this House, which is dealing with legislation, instead of faffing about procedure, delaying and trying to force the Bill timetable on? People who were here after midnight last night and people who have worked hard deserve the courtesy of being allowed to complete the job that we started. Let us hear the Chief Whip at 7 pm and get on with it. That is my view.
My Lords, for the convenience of the House I shall now seek, representing the opposition Chief Whip, discussions with the government Chief Whip and the noble Lord, Lord Newby, as soon as I have left the Chamber. I hope that my noble friends will allow us to continue business until that is concluded.
My Lords, if it helps the House, given the assurance from my noble friend that these discussions will take place and that we will get a report, I beg leave to withdraw my Motion that the House will be now resumed—but I may come back to it if there is no sign of progress.
Moved by Lord McKenzie of Luton
103: After Clause 151, insert the following new Clause—
“Development corporations: objects and general powers
(1) Section 136 of the Local Government, Planning and Land Act 1980 (objects and general powers) is amended as follows.
(2) After subsection (2) insert—
“(2A) Corporations under this Act must contribute to the long-term sustainable development and place making of the new community.
(2B) Under this Act sustainable development and place making means managing the use, development and protection of land and natural resources in a way which enables people and communities to provide for their legitimate social, economic and cultural wellbeing while sustaining the potential of future generations to meet their own needs.
(2C) In achieving sustainable development and place making, development corporations should—
(a) positively identify suitable land for development in line with the economic, social and environmental objectives so as to improve the quality of life, wellbeing and health of people and the community;
(b) contribute to the sustainable economic development of the community;
(c) contribute to the vibrant cultural and artistic development of the community;
(d) protect and enhance the natural and historic environment;
(e) contribute to mitigation and adaptation to climate change in line with the objectives of the Climate Change Act 2008;
(f) positively promote high quality and inclusive design;
(g) ensure that decision-making is open, transparent, participative and accountable; and
(h) ensure that assets are managed for long-term interest of the community.”
(3) Section 4 of the New Towns Act 1981 (the objects and general powers of development corporations) is amended as follows.
(4) For subsection (1) substitute—
“(1) The objects of a development corporation established for the purpose of a new town or garden city shall be to secure the physical laying out of infrastructure and the long-term sustainable development and place making of the new community.
(1A) Under this Act sustainable development and place making means managing the use, development and protection of land and natural resources in a way which enables people and communities to provide for their legitimate social, economic and cultural wellbeing while sustaining the potential of future generations to meet their own needs.
(1B) In achieving sustainable development, development corporations should—
(a) positively identify suitable land for development in line with the economic, social and environmental objectives so as to improve the quality of life, wellbeing and health of people and the community;
(b) contribute to the sustainable economic development of the community;
(c) contribute to the vibrant cultural and artistic development of the community;
(d) protect and enhance the natural and historic environment;
(e) contribute to mitigation and adaptation to climate change in line with the objectives of the Climate Change Act 2008;
(f) positively promote high quality and inclusive design;
(g) ensure that decision-making is open, transparent, participative and accountable; and
(h) ensure that assets are managed for long-term interest of the community.””
My Lords, I rise to speak briefly—that was the plan—to Amendment 103, tabled by my noble friends Lord Kennedy and Lord Beecham. In many ways, it picks up on a debate that we had yesterday. The amendment inserts place-making objectives for both urban development corporations in the Local Government, Planning and Land Act 1980 and for new town development corporations in the New Towns Act. It was prompted by the situation in which we find ourselves—a country with a major housing crisis—looking back to those times when it was recognised that we needed to build on a large scale if we were going to make inroads into the housing crisis. That took us back to the era of new towns. The realisation that this needs to be done is encouraging many to look back at that programme, through which Britain built 32 new towns and today provides homes for more than 2.5 million people. The creation of those new towns was made possible because of legislation that is still on the statute book today, but that does not mean it does not need to be updated. The purpose of our amendment is to ensure that the objectives of this are firmly linked to the long-term sustainability, development and place-making of the new communities. Under these amendments,
“sustainable development and place making means managing the use, development and protection of land and natural resources in a way which enables people and communities to provide for their legitimate social, economic and cultural wellbeing while sustaining the potential of future generations to meet their own needs”.
The amendment addresses both the Local Government, Planning and Land Act 1980 and the New Towns Act 1981. I shall not spend time going further into the detail of that as it is set down clearly in the amendment.
I note that there are two further amendments in this group, which have not yet been spoken to, about the need for proper consultation. That is also a reflection of the more modern era, and we support them. I beg to move.
My Lords, I shall speak to Amendments 103A and 103B and in support of Amendment 103. Given the hour and the timing, I will say much less than I would have liked to on this issue, about which I feel quite passionate. I will restrain myself despite the fact that, as a Cornishman, I have already missed my last train home. A little bit of me feels that I could speak for a few hours and bring noble Lords the same pain that I already feel. I am quite grateful that the Motion to adjourn was withdrawn; at least I get the chance to speak to these amendments, having missed my train.
For some years, I have been arguing that it is extraordinarily important that we find ways to deliver the amount of housing needed and that we give local authorities new options for doing that. The principles of the new towns were abandoned in the early 1980s because housing need was basically being met by housing supply at that point and there were projections of big falls in population so there was an assumption that we did not need large new settlements to come forward. We are now in period where the number of over-65s will go from 10 million today to 19 million by 2050, while more babies were born last year than in any year since 1971. We are seeing big increases in population but we are no longer delivering the houses to meet them.
We should offer local authorities and local communities the option of creating new garden villages—settlements to meet local need—that can capture the value of land, rather than making multimillionaires of lucky landowners or lucky speculative developers, and can create fantastic places that have doctors’ surgeries, schools, parks, shops and all the facilities to create a genuine community and restore our faith in ourselves that, just as our predecessors built wonderful villages and towns, we can do the same. At the moment, that is near impossible because so much value is captured in the process, so what we get are bland estates without facilities. If anyone is going to pay for those facilities, it is the taxpayer, while a few people make themselves very rich indeed.
That is why I have argued that the powers in the New Towns Act should be extended to communities, and I was delighted last week to see the Government making commitments to do that. However, if we are to do that, we need to be clear about the role of the development bodies that will do that place-making, create those fantastic places and ensure that the houses and communities are built in a timely way and at prices people can afford. If the land value has been captured, they can be affordable homes. The remit of that place-making body is critical. Amendment 103 goes to the heart of that because the existing duties are long outdated and will need bringing up to speed. We will need to be clear about that remit. Amendment 103 is a very good first amendment on that. There are other elements that can be brought to it. I hope the Minister will be able to come back with some proposals on that, given the commitments that the Government made last week.
My own amendments are about modernising the process. Let me be absolutely clear what I believe that process must be for these local scale communities.
That process must be one that is locally led. This is not something forced on communities. It is a new opportunity for communities to deal with their needs in a different way, and then protect themselves much more effectively from unwelcome development that otherwise might take place on appeal—or perforce around existing historic market towns and villages, many of which, frankly, are at bursting point and congestion point and cannot go on developing in that way.
The starting point will be the local plan process—or amendment to the local plan—and it would then go through all the normal community consultation and examination. The question is then: what is the next stage? At the moment, to bring forward a new town involves a public inquiry process, as if that local plan-making had not taken place at all, but no proper parliamentary scrutiny process, let alone any up-to-date parliamentary scrutiny. The old system quite simply is not fit for purpose.
I was going to run the Committee through what happens under the old New Towns Act and what can happen under a modern urban development corporation-type approach. I will not do that because people can do without the lecture. I was recently appointed a professor of planning and I guess the temptation is now always to lecture. I definitely will not do that. I understand that I have missed my train, but other noble Lords have not missed theirs. All I would say is that it is incredibly important to have a system that is modern and fit for purpose. The Government have made a commitment to go down this route. The Bill provides an opportunity to provide a modern, accountable, fit-for-purpose way of delivering these development bodies.
My Lords, I intend to make myself extremely popular by not speaking to this amendment, other than to say that I am extremely supportive of the amendments in my name and that of the noble Lord, Lord Taylor of Goss Moor—and to say that my speech is available by email if anyone would like to read it later.
My Lords, I want to speak to this group of amendments because I think they are very important. Earlier on in the Committee today, I specifically raised the importance, in terms of planning, of looking at the concept of what is the community that you are trying to create—and making sure that the community is sustainable and has all the benefits you would hope for.
Over the past 20 or 30 years there has been enormous progress in understanding what makes a community work. It is not simply the number of homes. It is not simply the mix of homes. It is also what else is there. That is the place-making function. This is the content of Amendment 103, moved by my noble friend: it has focused on the series of expectations about the role that the new town development corporation—or whatever else—might use in trying to create a community.
The issue is not simply identifying the possibilities for development and putting up more new homes. That would be the route to some of the urban disasters that we have seen over the past 30 or 40 years. It is about creating a place. It is about creating an environment in which people can live and have a sense of community.
The content contained in the amendment refers specifically to the vibrant cultural and artistic development of the community. It talks about protecting the natural and historic environment and the importance of high quality and inclusive design. This is about creating places in which people actually want to live. That should be fundamental to the whole planning process, and writing those into the legislation—the Local Government, Planning and Land Act, and the New Towns Act 1981 —is exactly the right way forward for the Bill. However, my concern is that they have not been included in the Bill up to now. I hope that the Minister—she is now nodding, so perhaps that is a good sign—will be able to tell us that the Government accept the principles behind my noble friend’s amendment.
On the point that has just been made by the noble Lord, Lord Taylor, about the importance of consulting and involving communities, communities live and thrive only if they have the support of the people who are going to live there. That is why consultation and involvement in that process are such a critical part of making sure that those communities and places are indeed viable. That is my understanding of the intention of these amendments, and I hope that the Minister is going to tell us that the Government wholeheartedly embrace that and are going to accept them.
My Lords, the amendments are indeed very timely. On Amendment 103, I say at the outset that I wholeheartedly endorse the importance of creating sustainable, well-designed places and I agree that, as the Budget announcement makes clear, statutory delivery vehicles can have an important role to play in achieving that. However, I echo what my honourable friend from the other place said: I am wary of creating new definitions and prescribing a long list of objectives for new town development corporations and urban development corporations, however worthy those objectives are in principle.
The NPPF already provides a clear view of what sustainable development means in practice, and to a very large extent it incorporates the objectives set out in the amendment. However, I accept that there is a case for change, and I am happy to look further at the objectives of the new town development corporations and how they could be extended, with a view to introducing an amendment that reflects this debate on Report. I hope that in light of this undertaking the noble Lord, Lord McKenzie, on behalf of his colleagues, will withdraw his amendment.
I am grateful to the noble Lords, Lord Best and Lord Taylor, for Amendments 103A and 103B. The Government are committed to updating the New Towns Act 1981 so that we can better support local areas that want to bring forward new garden towns and villages. I emphasise that our focus is on locally led new garden towns and villages, and we will back proposals that have been developed locally with local support. We will absolutely not impose new towns and villages on communities.
The amendments set out one of the key changes that need to be made to the New Towns Act 1981, which is sound in its fundamentals but is showing its age. I am supportive of a modernised process that is consistent across both types of delivery vehicle, and therefore ask noble Lords not to move these amendments with a view to the Government producing similar amendments, which we will table on Report. I hope that I have reassured noble Lords.
My Lords, I am grateful to the noble Lords, Lord Taylor and Lord Best, and my noble friend Lord Harris for their support for these amendments. I am particularly grateful to the Minister for the commitment that even though she is not able to accept the amendments in the terms in which they appear on the Martialled List, there will be consideration and some government amendments moved on Report. Between now and the time when those amendments are to be tabled, we would welcome an opportunity for discussion about the content, and I am sure that the noble Lord, Lord Taylor, would like to be involved in that as well.
Obviously I will not seek to press these amendments but I very much welcome what the Minister said. I would have liked to have spoken at great length about how much I welcome what is clearly a cross-party consensus on moving forward on this basis. It has the potential to provide a huge and new opportunity for local communities to deliver fantastic places, not just fantastic homes that people can afford.
I beg leave to withdraw the amendment.
Amendment 103 withdrawn.
Amendments 103A to 103BA not moved.
Clauses 152 to 159 agreed.
Schedule 14 agreed.
Clauses 160 to 163 agreed.
Schedule 15 agreed.
Clause 164 agreed.
Clause 165: Extended notice period for taking possession following notice to treat
Amendment 103BAA not moved.
Clause 165 agreed.
Clauses 166 to 169 agreed.
Schedule 16 agreed.
Clause 170 agreed.
Amendment 103BB not moved.
Clauses 171 and 172 agreed.
Clause 173: Power to make and timing of advance payment
Amendment 103BC not moved.
Clause 173 agreed.
Clause 174: Interest on advance payments of compensation
Amendments 103BD and 103BE not moved.
Clause 174 agreed.
Clause 175 agreed.
Amendment 103BF not moved.
Clause 176 agreed.
Schedule 17: Objection to division of land following notice to treat
Amendments 103BG and 103BH not moved.
Schedule 17 agreed.
Schedule 18 agreed,
Clauses 177 and 178 agreed.
Clause 179: Power to override easements and other rights
Moved by Baroness Parminter
103C: Clause 179, page 93, line 21, at end insert—
“( ) a right, easement, restrictive covenant, covenant, liberty or privilege in respect of land belonging to the National Trust for Places of Historic Interest or Natural Beauty (“the Trust”) which is held inalienably, within the meaning of section 18(3) of the Acquisition of Land Act 1981 (National Trust land held inalienably), or
( ) a restrictive covenant held by the Trust, within the meaning of section 8 of the National Trust Act 1937 (power to enter into agreements restricting use of land).”
My Lords, in the absence of the noble Baroness, Lady Andrews, who has a long-standing engagement in Cardiff, I rise briefly to move this amendment. The Government have said that the clauses are intended to aid regeneration projects on brownfield sites through allowing covenants, easements and other rights to be overridden more easily by public bodies. However, the clause would also affect covenants and rights held by the National Trust to conserve some of our most special and valued places for everyone to enjoy. I declare an interest as a member of that august organisation, as I am sure are many Members around this House.
Typically, these covenants and rights apply to land surrounding National Trust-owned land, to buildings or land not owned by the trust but which have historical significance, or to beautiful or wildlife-rich landscape worthy of protection. Crucially, the rights held by statutory undertakers such as utility companies and Network Rail are already sensibly protected from the scope of the clause, because of the important public benefit that these rights give. I contend that National Trust covenants and other rights give comparable public benefits, and this should be recognised in a similar way. I hope this is an unintentional oversight by the Government and that they will see it as a helpful amendment and will accept it. I beg to move.
My Lords, I thank the noble Baroness, Lady Parminter, for raising this very important issue in the context of Clause 179. As the noble Baroness set out, Amendment 103C would reflect the special protection accorded to land held inalienably by the National Trust in compulsory purchase legislation. The Government are sympathetic to the thrust of the argument that the power in Clause 179 to override easements and restrictive covenants when carrying out works on, or using land acquired by, a body with compulsory purchase powers could have an adverse effect on rights benefiting the trust’s inalienable land. The Government have also noted the concern that it may impact on other land over which the trust has covenants under Section 8 of the National Trust Act 1937. As the noble Baroness has pointed out, to avoid such a possibility, consideration should be given to the trust being accorded a similar exemption to that in Clause 179(8) for the rights of statutory undertakers. Doing so would safeguard the trust’s covenants, easements and other ancillary rights so that the trust’s management and our enjoyment of the trust’s land and properties were not compromised. The Government will therefore consider this matter very carefully. With that in mind, perhaps the noble Baroness will be content to withdraw the amendment.
I thank the Minister most warmly for those very encouraging words. I shall obviously discuss the matter with the noble Baroness, Lady Andrews, over the recess, but, being mindful of the time, I beg leave to withdraw the amendment.
Amendment 103C withdrawn.
Clause 179 agreed.
Moved by Lord Skelmersdale
104: After Clause 179, insert the following new Clause—
“Presumed diversion or extinguishment of footpaths or bridleways which pass through the curtilage of residential dwellings
(1) Where a footpath, bridleway or byway passes through the curtilage of a residential dwelling, including the gardens and driveways of the premises, the council shall make, and the Secretary of State shall confirm, either—
(a) a public path diversion order, or
(b) a public path extinguishment order, unless—
(a) the Secretary of State or the Council are satisfied that the privacy, safety and security of the premises are not adversely affected by the existence or use of the footpath, bridleway or byway,
(b) the premises have been unlawfully extended to encompass the footpath, bridleway or byway,
(c) where a public path extinguishment order is considered, it would be possible instead to divert the footpath or bridleway or restricted byway such that the privacy, safety and security of the premises are not adversely affected by its use, or
(d) where a public path extinguishment order is considered, the footpath or bridleway or restricted byway provides access to a vital local service or amenity not otherwise reasonably accessible.
(2) In this section—
“public path diversion order”,
“public path extinguishment order”,
“restricted byway” have the same meaning as in the Highways Act 1980.”
My Lords, after the last half hour, it goes without saying that we have had a long and exhaustive debate on the Bill, so I shall keep my remarks to an absolute minimum, especially as we now turn from the purely built environment, with which the Bill is chiefly concerned, to a few of the people who live in that environment and the problems that footpaths can cause them.
A tiny fraction of a percentage of the 140,000 miles of public rights of way go through the gardens of private family homes. Unfortunately, once they are recorded on the designated footpath map, it is as though they are set in concrete, and they will of course be at the cut-off point in 2026. Even where councils make a mistake, it seems impossible to change their mind. I know of one case where the council confirmed a footpath going straight through a home owner’s sitting room, subsequently saying that it could not correct its admitted error. That is a clear nonsense.
When a footpath goes through a garden, however—which is my reason for putting down this amendment—it does not take much imagination to appreciate that this can cause immense hardship for the owners of the property, effectively causing the loss of the normal use of the garden. I know of at least 25 such cases. Would any of your Lordships be comfortable if your children or grandchildren, or indeed pets, were to be left alone in such a garden? Nor is it beyond the wit of a nefarious character to peer into windows to see whether a house is worth burgling. So there are obvious security, safety and privacy issues. Homes whose owners have spent a lifetime paying off the mortgage can become unsaleable and the owner trapped.
Many of these paths are little used and most of the general public have no wish to go through a family garden. However, local government is required by statute to keep these paths open, in some cases even requiring home owners to remove the gates to their gardens. There are examples of bankruptcy, breakdowns and even suicide, and these will become more frequent as the population grows. This cannot be in the public interest and, to my mind anyway, is against the spirit of Article 8 of the Human Rights Act.
The last Government, in last year’s Deregulation Act, pledged to create a presumption in favour of diverting or extinguishing such paths. That is a principle established in, for example, the Land Reform (Scotland) Act 2003, but this goes way over the top. In agreement with the stakeholder working group, Defra is to produce guidance to local authorities on the subject. A small group of affected people belonging to the Intrusive Footpaths campaign has had meetings with Defra and much time has been invested by all parties in trying to improve this guidance. It strikes me as odd, to say the least, that the stakeholder group the Government consulted apparently also has to approve the guidance, and rumour has it that this guidance is to be less forceful than the original working group agreement. I ask the Minister whether that is true. Whether it is or not, it is the opinion of at least three independent specialist rights of way lawyers that it is a matter of legal fact that, no matter what is in the guidance, it will in most cases be rendered ineffective by existing statutory tests, which are to be found in the Highways Act 1980. Guidance cannot override statute and as such cannot on its own deliver the Government’s declared policy objective. To make matters worse, this guidance is not even statutory, which it certainly should be, overriding such existing law that gets in the way of reducing this undoubted problem.
My amendment, however, goes much further than this. It calls for local councils, backed up by the Secretary of State, automatically to extinguish footpaths or divert them to the curtilage of domestic properties, unless they are satisfied that privacy, safety and security, which are the important points, are not affected by the existence of a footpath, bridleway or byway. Whether this amendment is acceptable or not—and I strongly suspect that it is not—a statutory footing for the Government’s policy is essential. I beg to move.
My Lords, I declare my interest as the vice-president of the Open Spaces Society, as well as my other outdoor activity interests, which are in the register.
This amendment is a sledgehammer to crack a nut. The noble Lord makes it sound as though the countryside of England is a nightmare. This is absolutely not true. There are perfectly workable procedures for dealing with the kinds of circumstance described by the noble Lord, Lord Skelmersdale. In particular, Defra has found a mechanism through the stakeholder working group, which represents people from all parts of the countryside, from recreation to landowners and other users. This is a mechanism by which changes in the law take place by agreement and consensus. It has been extremely successful, has worked very well and continues to do so. To drive a coach and horses through that at this or at any stage would be very unwise. I hope that the Minister will explain that, apart from anything else, the amendment really does not belong in this Bill.
My Lords, this amendment has my name attached to it. My noble friend has gone into the detail of it, so I will not repeat that. The noble Lord, Lord Greaves, knows that we had quite a long discussion on this issue in considering the Deregulation Act. While he said that on the whole people do not abuse it, trouble is still being caused. He may say that this is not applicable in this Bill, but I think that it is. I shall be referring later to towns and cities as well, so I hope that he will stay with me and forbear my support of this.
It was said at that time by the Open Spaces Society:
“We consider that the discretionary power of moving paths should have low priority and we advocate that councils refuse to consider a path change unless there is a clear public benefit. Otherwise they are using their slim resources on a mere power, to the advantage of owners and occupiers rather than the public, instead of on the duty which benefits everyone”.
This is a very difficult situation. I do not think that the amendment is a sledgehammer to crack a nut. Clearly there are families who are finding this extremely difficult. It was suggested that the working group would get together and that that difficulty would be resolved, and clearly that has not happened. I support my noble friend in raising the issue today.
I move on to a concern—I have given the Minister notice of it—that has been raised with me on existing public paths, as they are, in cities and towns. Public paths that were incorporated into building developments in the 20th century were often acknowledged and placed on a definitive map as part of the planning process. In towns and cities, however, the Edwardian and Victorian developments often included paths to enable easy foot passages from one place to another. The land over which they pass may still belong to the estate upon which the development was constructed, or may have been sold to individual householders, or acquired by the local authority.
The reason that I raise this today is to make sure that, in the enormously important work that we are doing with the Bill, there will not be reflection later on something that we should have spotted at the time. As I said, I have given the Minister notice and it was obvious to me that the issue raised by my noble friend Lord Skelmersdale has not been resolved. I want to ensure that we do not walk into another difficult situation.
My Lords, like the noble Lord, Lord Greaves, we have concerns with the amendment. The Countryside and Rights of Way Act 2000 was one of the most successful and supported pieces of legislation in this area of policy—although not always in your Lordships’ House. It strengthened and consolidated the aims of Labour’s original National Parks and Access to the Countryside Act 1949. Since then, the most recent Labour Government introduced the Marine and Coastal Access Act 2009, extending the right further.
We on these Benches are concerned that the amendment would unpick the agreement of the Natural England stakeholder working group which, as we have heard, brings together users, landowners, local authorities, ramblers and the Country Land and Business Association. I urge the noble Lord, if he wants further proposals to be brought forward, to work with the stakeholder working group to deliver a consensus on them.
I might also ask why the noble Lord feels the measure necessary when, as I understand it, there are already powers that permit landowners to apply to a local authority to make changes to such footpaths. A presumption in favour of a diversion would take power away from local authorities and reduce the ability of communities to have a say. I am not sure that that is in accordance with the Government’s localism agenda, although that is a bit thin these days. Local communities, through their local councils, should be able to shape their local area. We should support the rights of all to access the countryside and maintain existing rights of way, especially as the local countryside offers our citizens benefits in terms of health, exercise and mental well-being.
I applaud my noble friend Lord Skelmersdale’s efforts to help those who face problems with a public right of way that passes through their farm or garden. He will know through his contact with Ministers in Defra that the Government have considerable sympathy for those people who face these issues and who may feel that the system has let them down. Where these cases occur, people may experience acute problems: my noble friend has cited some examples, and I can think of others. Although the numbers are comparatively few, and we should ensure that any changes we make to legislation are proportionate to the extent of the problem, nevertheless, the Government are determined to help by putting in place a remedy.
Noble Lords may recall the passage of a suite of measures in the Deregulation Act 2015 which aimed to reform the system of recording and diverting public rights of way, to which my noble friend referred. The Government are now in the process of implementing these measures, which will come into effect later this year. We believe that the combined effect of these measures, which received cross-party support in both Houses, will make a significant difference, and that we should not legislate further before seeing how they work out in practice. A package of measures such as that, which is being implemented through agreement among stakeholders, is far more likely to prove successful in practice.
There is clear agreement among the stakeholders on the working group that developed the package of reform that the major difficulty for landowners is in getting local authorities to make a diversion or extinguishment order in the first place. Our plans to implement the right to apply for such orders will overcome this. The right to apply will enable a landowner to make a formal application for the diversion or extinguishment of a public right of way. With that will come the right to appeal to the Secretary of State if the authority rejects the application or fails to act on it. Therefore, local authorities will no longer be able to ignore requests or dismiss them out of hand. They will be obliged either to make an order or to be prepared to justify their reasons for not doing so on appeal to the Secretary of State.
The provisions in the Deregulation Act allow the right to apply to be extended to land-use types other than agriculture, forestry and the keeping of horses— for example, private residential gardens. The right to apply will be supplemented by guidance that will effectively act as a presumption to divert or extinguish public rights of way that pass through the gardens of family homes, working farmyards or commercial premises where privacy, safety or security are a problem.
The noble Lord references guidance and I will come back to that in a moment. A further hurdle is to get an order confirmed. However, according to the Ramblers, which keeps accurate records of these matters, of the 1,257 diversion orders which have reached a conclusion in the past three years, 94% did not attract any objections. Of the 6% that did, less than 1% were not confirmed following submission to the Secretary of State. The guidance will give authorities more scope to confirm orders made in the interests of the landowner in circumstances where a right of way may cause hardship because it goes through the garden of a family home, a working farmyard or other commercial premises.
There is no intention to water down the guidance, which was deposited in the House Library during the passage of the Deregulation Act. Defra officials continue to work with the stakeholder working group and the Intrusive Footpaths Campaign to finalise the drafting. We believe that the combined effect of the right to apply and the guidance will have the desired effect and we should not rush to legislate further before seeing how these measures work in practice. Moreover, under the right-to-apply provisions, the Defra Secretary of State will be the confirming authority for all disputed orders.
I am happy to reaffirm the commitment made by the previous Government that we will review, within two years of implementation of the reforms package, how effective the right-to-apply provisions and the accompanying guidance have proved to be. The review will send a message to authorities that the Government are determined that the new policy should work and that if guidance does not bring about sufficient changes, we will consider the introduction of further measures.
The amendment, which was also spoken to by my noble friend Lady Byford, is also concerned with public rights of way. However, she refers to urban routes in current use which are not recorded on the legal record of public rights of way, the definitive map and statement. The amendment would reduce the work of local authorities by removing a whole class of routes from the work to update the record.
I referred earlier to the package of measures in the Deregulation Act 2015 concerned with improving the processes for diverting, extinguishing and recording public rights of way. I also mentioned that the Government are working closely with the stakeholder working group which developed the original package of measures.
The secondary legislation will include regulations made under Section 54(1) of the Countryside and Rights of Way Act 2000—mentioned by the noble Lord, Lord McKenzie—which allows the Secretary of State to specify descriptions of unrecorded routes which will not be extinguished in 2026. The working group and the Government are mindful of the need to consider urban as well as rural. We think that no further primary provisions are required to achieve the outcome sought by my noble friend. With these assurances, I hope that my noble friend will be persuaded to withdraw the amendment.
My Lords, I am very grateful to my noble friend Lady Byford for staying so late, I believe at the expense of her dog. Be that as it may,
I was surprised to be maligned by the noble Lord, Lord Greaves, who called my amendment a sledgehammer to crack a nut. I was surprised because I admitted that I know of very few people who are affected by this problem. However, I remind the noble Lord of a dictum of my late noble friend Margaret Thatcher, who said:
“We are not in politics to ignore people’s worries. We are in politics to deal with them”.
I fully accept that the Minister believes that the problem has been dealt with and the solution in the Deregulation Act will solve it. I am absolutely convinced it will not, so I was delighted to hear that the Government are prepared to give it a chance of two years and then decide whether I am right or the Minister is right. On that basis, I beg leave to withdraw the amendment.
Amendment 104 withdrawn.
Clauses 180 to 182 agreed.
Schedule 19 agreed.
My Lords, I have had discussions in the usual channels, and we are going to be able to make quite a considerable amount of headway very quickly indeed. If noble Lords will bear with me, I said I would make a statement at 7 pm or thereabouts. I am willing to do so, but I know that the next group of amendments to be debated will be brief. I am also assured that the subsequent group will not be moved. There are then two groups of government amendments. I have agreed with those who have tabled the last group of amendments—which we will not reach—that they can be brought back on Report and debated under Committee rules. That is a practical solution, and I hope that noble Lords will agree it is a sensible way forward.
Does bringing the amendments back on Report and debating them under Committee rules mean we will have the opportunity to debate those particular amendments on two separate occasions prior to Third Reading? Is that what it means or are we simply absorbing the amendments that are due to be moved into Report? That is not what I understand has been agreed.
I am sorry, but I do not think that the noble Lord understands exactly what I am saying. I would be grateful if we would allow business to continue. We do not normally close until 7 pm, and it is not 7 pm.
My Lords, I have my name on one of the last two amendments and seek clarification from the Government Chief Whip. If it is being proposed that our amendment will take place on a Committee basis on the first day the Bill is dealt with when we return, and that we will then move to Report stage and have a chance at the end of it to re-debate that amendment if we choose to bring it forward at that point, having had the benefit of the Minister’s response, fair enough. But if we are simply saying that when we get to the relevant point in the Bill on Report, Committee rules will apply, I am afraid I cannot personally undertake not to put forward the amendment.
I will be very happy if we resolve all these amendments this evening, but it has been suggested that we will not do so because of the pressure on time. It is up to the House to decide how it deals with this matter, but I hope that noble Lords will take my advice. There is very little left to do on this Bill in Committee—please let us continue.
No, that was my first option because I understood that noble Lords were very keen to go away and not debate the issue. I would be very happy if noble Lords wanted to debate this. The noble Lord, Lord Krebs, and the noble Baronesses, Lady Parminter and Lady Young, are here, and I am very happy that we should do that. The House has to sit until Royal Assent is given to two Bills that have arrived from the Commons, so there is no question about time—we will be here. It is a question of whether noble Lords wish to deal with the business that is before us.
We sat here until after midnight on Monday. The public outside should know that we sat here until after midnight on Monday and after midnight last night. The Chief Whip now proposes that we should sit here longer than we should sit here. It is all right dealing with this other business, but the fact is that there is not enough time to complete the Bill under normal Committee arrangements. The Government are ramming the Bill through. It is wrong and we object.
My Lords, I have been a cause of trouble on the Bill, in that I was very keen that we finished exactly at 7 pm. That seems to me now to be ridiculous. Everybody wants to finish at 7 pm. In the last hour we have wasted a quarter of an hour arguing about whether we finish at 7 pm or 7.15 pm. My very strong view is that we should now continue to the end of the Bill, which we will do very shortly.
My Lords, I think I have moved that the House do now resume. Can I just clarify before I decide whether to press that to a vote whether we have now heard the Chief Whip’s Statement or whether he intends to make his Statement at the conclusion of the next group? Have we now got a procedure for going forward or has he now amended it?
I urge the noble Lord not to press his proposal that the House do now resume so that the Committee can continue with the business on which it has embarked and on which it is determined. I am very pleased to have the support of my noble friend Lord Newby. I believe that I have the support of the majority of the Members of the Committee. Therefore, my view is that we should do our business.
Clause 183: Engagement with public authorities in relation to proposals to dispose of land
Moved by Lord Tope
105: Clause 183, page 95, line 15, after “authority” insert “outside Greater London”
My Lords, in moving Amendment 105 I will speak very briefly to Amendments 106 to 118. I am very grateful that so many Conservative Peers have come in to hear what I have to say. I am afraid that I will disappoint them because I will be extremely brief. I have had what I hope was a very helpful meeting with the noble Lord, Lord Bridges, from the Cabinet Office, who is making his first attendance at this Committee. Why he has waited for nine Committee days to come to experience it, he must now be wondering.
I was going to explain all these amendments rather more fully. Clearly, that is neither necessary nor desired at this moment. Very briefly, the amendments would, in summary, give the Mayor of London and the mayors of combined authorities—that is very important—the right of first refusal on surplus public sector land that comes up for sale in their area. They would give the Mayor of London and the combined authorities further power to direct public bodies in their area on the disposal of surplus public sector land. They would include the Greater London Authority as a public authority in Clause 183, ensuring that Ministers must engage with the Mayor of London on the disposal of their interest in any land in the capital. They would allow for regulations to be issued to ensure that other public bodies looking to dispose of their interest in land in London must engage with the mayor and allow the mayor to issue guidance around the engagement. Finally, they would allow for regulations to ensure that reports on surplus land holdings by public bodies can be provided to the Mayor of London and mayors of combined authorities with land commissions.
As I said just now, I had a very helpful meeting with the noble Lord, Lord Bridges. I am delighted to see that he is here and has sat patiently through the last hour of our proceedings. I now wait to hear, briefly, that he accepts my amendments. I beg to move.
My Lords, I will not give the House a heart attack, but would the noble Lord consider before Report that surplus land in London might also go to boroughs, as well as to the mayor?
My Lords, I know that the noble Lord, Lord Tope, will be surprised at this, but I support his amendment. If you believe in the concept of a strong mayor—whether a strong Mayor of London or a strong mayor in combined authorities—what is proposed in these amendments is absolutely right. And if you believe in a localist agenda, which I understand that the Government purport to do, this is the right approach. This should be how decisions about surplus land should be made.
On the basis of the comments I have made during the course of today’s Committee, it is important that there is the opportunity for people to make places. The people best placed to do that in this instance will be the mayors; the Mayor of London and the mayors of combined authorities. This is an opportunity. If it the case—and I believe that my interventions in the last hour perhaps helped facilitate the discussions that may have led to an agreement—that the Government are going to accept the principles behind this, then I, for one, will be delighted.
My Lords, I, too, will try to be relatively brief. It is very good to be here at last; good things come to those who wait. The noble Lord has just raised some important points about these amendments. Let me turn directly to Clause 183, which requires Ministers of the Crown, in developing proposals for the disposal of their interests in land, to engage on an ongoing basis with each local authority in whose area the land is situated and other public authorities specified in regulations.
Clause 183 was inspired by local authorities who have experienced varying levels of engagement from central government, ranging from excellent to none at all. The aim is to ensure consistency in the way the Government engage with them. Amendments 105 to 109 would undo that common approach by making separate provision for the way authorities in London engage with each other. Amendment 108 could create particular confusion by requiring authorities in London to have regard to two sets of guidance, one published by the Secretary of State and the other by the mayor.
Turning briefly to Amendment 106, Clause 183 provides for the Minister for the Cabinet Office to issue statutory guidance on how the duty to engage is to be complied with. The clause is framed in this way to allow for flexibility. The duty to engage is new and we want to be able to monitor how it works in practice so that the detailed requirements can be fine-tuned if necessary. However, I agree that the regulations and guidance will need to take account of the role of the mayor in London. The mayor has a fundamental role in housing, planning and regeneration in London and has wide powers to acquire land, including by compulsion, and to develop or dispose of land as appropriate to a given scheme. Noble Lords will know much about that.
In view of that important role, I can reassure the noble Lord and the noble Baroness that we will specify the Mayor of London in regulations made under this clause, so that Ministers and public bodies, when developing proposals for the disposal of land in London, will need to engage with the Mayor of London.
Clause 184 is a transparency measure. It aims to incentivise bodies to release land in a timely manner, and where they have good reasons for not doing so, ensures that these are made transparent. Reports are not intended to be provided to a particular body, but made available publicly so that bodies can be held to account in respect of their use of surplus land. Reports will be readily accessible by the Mayor of London and there is no need for the express provision sought by Amendment 110. However, it will be important to ensure that the mayor is made aware of any reports under Clause 184 which include land in London. We will therefore undertake to consult the mayor when drawing up regulations under subsection (9) to ensure that the mayor’s views on how they should be published are taken into account.
Turning to mayoral combined authorities, I am unconvinced that the amendment would be helpful, as it would add to bureaucracy and reduce efficiency by requiring authorities to provide information to the mayoral combined authority or requiring the mayoral combined authority to request information from local authorities in its area. Individual local authorities will take decisions as to which land is surplus and will have this information readily to hand. Requiring individual authorities to report is the simplest and most straightforward approach.
Amendments 112 and 113 would insert two new, almost identical clauses which would prevent a relevant public body from disposing of any surplus land without first giving a mayoral combined authority, or the Mayor of London respectively, the right of first refusal to acquire that property, either at best consideration or at a sum that is less than best consideration by consent of the Secretary of State. Here, I point out that the mayor already has significant powers in relation to land. The mayor can acquire land, including compulsorily with the consent of the Secretary of State, and can develop and dispose of land and property. Where large, strategic opportunities arise, the mayor is empowered to designate a mayoral development area, which then triggers the establishment of a mayoral development corporation. For smaller opportunities, the London Land Commission has been established to play a strategic role in brokering agreements between land-owning bodies and government departments to facilitate development.
I am concerned that the amendments would add time and complexity to the disposal process without guaranteeing the best disposal routes. While there will be instances in which the mayoral combined authority or Mayor of London will be an appropriate disposal route for sites, they will not always be so. Schemes such as large urban extensions or garden cities require authorities to work with a number of developers and other partners, often over a number of years. In such instances it would not be appropriate for authorities to offer land to a mayoral combined authority or the
Mayor of London, or for the mayoral combined authority or Mayor of London to dictate what the disposal route should be. Moreover, the proposed process would add considerable time and complexity to the disposal process.
Amendments 114 and 115 would amend Clause 185 to devolve the power to order disposal to the Mayor of London for relevant public authorities in Greater London. The bodies to which the power applies are not limited to local authorities but include a range of authorities with public functions, which span the whole country. How authorities with a national focus use their land must be judged in the wider context, taking account of their strategic need for land now and in the future. It would be inappropriate for the Mayor of London, with functions concentrated within the boundaries of Greater London, to make a judgment on whether a given piece of land within London is surplus to requirements. Devolving the power could risk undermining the ability of such bodies to carry out their functions properly. Government Ministers have the strategic overview necessary to identify where local directions to dispose of land may have a broader impact nationally.
Finally, Clause 183 already provides for regulations to be made setting out how relevant public authorities should engage with other relevant public authorities when taking forward plans to dispose of land. Clause 184 would require authorities to publish details of land that has been declared surplus for two years or more, or six months in the case of residential land. The Government are also consulting on updating the transparency code to require local authorities to record details of their land and property assets on the Government’s electronic property information management system. Given these new measures, which will improve engagement and increase transparency, it is unclear what Amendments 117 and 118 would add.
I hope I have dealt in some detail with some of the points raised by the noble Lord and noble Baroness, that I have been able to give some reassurance in the area in which it was sought, and that the noble Lord, Lord Tope, will feel able to withdraw his amendment.
My Lords, before the noble Lord, Lord Tope, decides whether or not to withdraw his amendment, can we have a little more clarity as to why the Government believe that Amendments 112 and 113 would add significantly to the time taken to dispose of assets? This is simply giving the Mayor of London or the mayor of a combined authority an opportunity to consider whether to acquire or to refuse to acquire, whereas the route that the Minister described required the creation of a mayoral development corporation. That seems to be a much longer, more drawn-out process than the one in the amendment of the noble Lord, Lord Tope.
I would be happy to discuss this with the noble Lord privately to explain our views. We believe it would add unnecessary bureaucracy, time and complexity, but I am happy to discuss this further with him.
My Lords, I am very grateful to the noble Baroness, Lady Valentine, for coming in to demonstrate her support and having to do that so very briefly under these circumstances. I am also grateful to the noble Lord, Lord Harris of Haringey, for his support. It is not quite as unusual as he seemed to think. There have been many occasions over the years when that has happened. I also thank him for raising the point he did just now. Finally, my colleague, the noble Lord, Lord True, sent me the message very clearly although very briefly, and I take his point.
This is clearly not the time to pursue this further. It is clearly not the time to test the opinion of the House. Therefore, I beg leave to withdraw the amendment. In doing so, I ask the Minister, if he is to have a further meeting, to include those who spoke to this amendment.
Amendment 105 withdrawn.
Amendments 106 to 109 not moved.
Debate on whether Clause 183 should stand part of the Bill.
My Lords, before we proceed I have a question on Amendment 183. I do not intend to delay the House very long. The Corporation of London has a specific problem with Clauses 183 and 184. The Corporation is very much a hybrid body, in that it is both a local authority and a corporation under the corporation Acts. It is unclear, in these clauses, whether it is covered in its private capacity as well as in its public capacity. I would like reassurance that that will be covered in the regulations.
My Lords, I sense that an answer is winging its way to me. I am aware of these concerns, and we will specify its functions as a local authority. I will meet the noble Lord to discuss this issue, but we are very alert to it and will address it.
Clause 183 agreed.
Clause 184: Duty of public authorities to prepare report of surplus land holdings
Moved by Lord Bridges of Headley
109A: Clause 184, page 96, line 33, after “means” insert “—
My Lords, I beg to move this amendment in the name of my noble friend Lady Williams. This is a minor technical government amendment. It corrects the drafting of Clause 184 to give proper effect to the intention that the duty on a Minister of the Crown to report on his or her surplus land holdings should apply to all their surplus land, regardless of whether it lies in England, Wales or Scotland.
The current drafting of Clause 184 does not achieve this in respect of Scotland, as a result of the interaction of this clause and paragraph 3 of Part III of Schedule 5 to the Scotland Act. An example of the sort of land that should be covered by the duty to engage is the former Army headquarters site at Craigiehall near Edinburgh, which the Ministry of Defence announced in January was being released for new homes. The intention was, and is, to cover all reserved matters that are the responsibility of Ministers of the Crown. This amendment achieves that aim. I beg to move.
Amendment 109A agreed.
Amendments 110 and 111 not moved.
Clause 184, as amended, agreed.
Amendments 112 and 113 not moved.
Clause 185: Power to direct bodies to dispose of land
Amendments 114 to 116 not moved.
Clause 185 agreed.
Amendments 117 and 118 not moved.
Clause 186 agreed.
Schedule 20 agreed.
Clauses 187 to 191 agreed.
Clause 192: Commencement
Moved by Baroness Williams of Trafford
118A: Clause 192, page 100, line 27, after “135,” insert “137,”
My Lords, I propose to make a minor change to Clause 192, through Amendments 118A and 118B, to enable the power to make regulations in Clause 137 on registers of land to come into force on Royal Assent, rather than two months after Royal Assent. This is a technical amendment that does not alter Clause 137 itself. It means that the power to make implementing regulations could be used sooner after Royal Assent, but the regulations themselves will not come into force until at least two months after Royal Assent. There is no question of local authorities being taken by surprise or being rushed as a consequence of these amendments.
The requirement to hold a register of brownfield sites suitable for housing is linked to our commitment to require local authorities to have registers of what is available, and to ensure that 90% of brownfield sites suitable for housing have planning permission in place by 2020. It makes sense for local authorities to have the tools in place to help them meet this deadline as soon as practicable, and to help them get their registers in place. I beg to move.
I think that 70 local authorities are taking part in the pilot scheme. I should declare that one of them is my local authority. Will these regulations apply to that pilot scheme, once they come in, or is that separate?
My Lords, the regulations will apply to the pilot schemes.
Amendment 118A agreed.
Moved by Baroness Williams of Trafford
118B: Clause 192, page 100, line 32, leave out “, 137”
Amendment 118B agreed.
Moved by Baroness Parminter
119: Clause 192, page 100, line 34, at end insert “, subject to subsection (3A).
(3A) The Secretary of State may not make regulations appointing the days on which any provision of Part 1 or Part 6 of this Act comes into force unless he or she has first made provision bringing into force section 32 of the Flood and Water Management Act 2010 (sustainable drainage).”
My Lords, I am grateful that we have the opportunity to discuss these amendments this evening. While my name is to both of them, I shall speak only to Amendment 119.
The Government have rightly launched a national flood resilience review, which is due to report in the summer, but that review will come too late if the Bill paves the way for 1 million new homes without due regard for their flood resilience. New homes increase flood risks for developments and for surrounding communities. Concreting over a catchment speeds up run-off, increasing the likelihood of flooding. After the 2007 floods, the flooding review by Sir Michael Pitt recommended sustainable drainage as a way forward, which moved the Government to bring forward the Flood and Water Management Act. It was suggested in the Act that there should be further use of SuDS, with soakaways such as swales, ponds and other natural means to ensure that sewer networks were not overwhelmed during periods of heavy rainfall. We all know that well-designed SuDS can contribute to water quality, to coping with overheating and to biodiversity. But this Government delayed implementation and then abandoned that approach altogether, in favour of an “expectation” that major planning applications would include SuDS.
This was not because of the costs. Defra recognised, in its own consultation document, that,
“sustainable drainage systems are generally cheaper to build; and maintaining them will be cheaper (or need be no more expensive), than the … cost … required”, in conventional drainage. The result of this expectation that the SuDS approach would work is that last year Barratt Homes, the UK’s leading housebuilder, included no provision whatever for sustainable drainage in a third of its developments. The Committee on Climate Change has analysed 100 planning applications in areas of flood risks and found that fewer than 15% proposed SuDS. If the Government wish to challenge that evidence, what monitoring are they doing at a national level of the uptake of SuDS?
The National Policy for the Built Environment Committee of the House of Lords, on which I and other noble Lords sat, has looked at this issue. In its report last month, it argued that the Government should take a more proactive approach to the provision of SuDS. In legislating to provide for new homes, we must seek to contain the time to plan for them—absolutely. But we need a process ensuring that new homes are built to a standard that will protect them from flood risks and not exacerbate risks for established communities. I shall not list the many organisations which have written to the Minister in support of this amendment, because we do not have time. I will merely beg to move and hope that other Members might pick up some of the points that I know need to be raised.
My Lords, I shall speak briefly to this because the noble Baroness, Lady Parminter, has made most of the points that I would want to make. My name is also on Amendment 119 and I would like to go on to refer to Amendment 120, on which my name comes first. But to add briefly to what the noble Baroness has said, the real problem is that developers still have the automatic right to connect to the existing sewerage system. We know from estimates that more than half the existing sewers are already overloaded. While developers have the automatic right to connect, they are not incentivised to look at other ways of managing surface water flooding. Furthermore, when SuDS are installed, there is no clarity in the current regime about who should pay for the maintenance once they have been built. In any case, the current guidance applies only to developments of 10 homes or more, so small urban infill developments which could be creating some of the biggest long-term problems are not covered. Around 100,000 minor planning applications are approved each year which are not subject to the new safeguards.
So the aim of this amendment is to ensure that SuDS are the default option in new developments and to help achieve this by removing the automatic right to connect to existing sewerage systems. Connecting new developments to existing sewers should be the absolute exception, once other options have been exhausted.
I turn to Amendment 120 on developer liability. This amendment focuses on the long-term costs for society arising from continuing development in the flood plain and presents a simple, workable proposal to address the current lack of incentive for developers to make new properties safe and resilient to flooding. We know that, at the moment, more than 100,000 homes have been built in the flood plain since 2008—28,000 of these in areas at a greater than one-in-100 annual chance of flooding, taking into account the protection provided by any flood defences. The consequences are that, in the long run, owners of new homes are being exposed to unnecessary flooding risk.
A one-in-100-year chance sounds very small. We have to remember that this is the chance of flooding in a particular place. If there are 100 such places, then there is the likelihood that someone will get flooded every single year. In fact, in this century, we have already had 12 significant flood events in 15 years. If we carry on as at present, we can more or less guarantee that someone, somewhere, is going to suffer the trauma of flood damage each year.
Data are not collected on whether or not new homes that are built in flood plains are made resilient. I declare an interest as the chairman of the adaptation sub-committee of the Committee on Climate Change As has already been mentioned by the noble Baroness, Lady Parminter, our data suggest that fewer than 15% of new homes have been built with sustainable urban drainage systems.
Are we putting too much faith in flood defences to protect new developments, when they are typically built to a one-in-100-year standard? There is evidence that developers and planners are taking what might be called a compliance approach to flood risk— following the process but putting too much faith in limited protection from flood defences and not taking into account the uncertainty in even the best flood models.
A recent example, of which I am sure noble Lords are well aware, is Bridge End Court, a residential care home and sheltered development in Cockermouth. It was built in the meander of the River Derwent, on land that had flooded badly in 2009, on the very edge of a flood zone 3, where it would not have been deemed appropriate development. After the 2009 flood, the local authority had the chance to require the development to go elsewhere but it allowed it to go ahead in the same place. In spite of the ground floor supposedly being set above the height of even a one-in-1,000-year flood, the care home was flooded in December and the residents had to be rescued.
What constitutes a one-in-1,000 standard is highly uncertain. This is where developers come in. Developers are required to produce a flood risk assessment for a site, but they bear no liability if they take risks or simply get it wrong. The assumptions in the flood models that underpin a flood risk assessment can be selected either to increase the assessment of flood risk or to make it appear lower than reality. I should emphasise that I have seen no evidence that developers are manipulating flood risk assessments but, in principle, they could.
It is worth noting some Environment Agency figures. The Environment Agency has to be consulted on developments and it objects to about 3,000 applications per year on grounds of flood risk. In a sample of nearly 1,700 objections between 2009 and 2013, 20% of those objections were because the developer had produced no flood risk assessment whatever and 54% of them were objected to because the flood risk assessment was unsatisfactory. Among the reasons they were unsatisfactory were that they did not take into account future sea level rise, future increases in river flows or future increases in surface water flooding.
So what happens if a home owner in a new development is flooded out? Their only option is to claim on their insurance, which is likely to produce an increase in the cost of insurance in future. Furthermore, the value of their property is likely to fall. There is a simple way in which to address this problem without putting the burden on the home owner, at the same time as increasing the level of confidence in the planning system. That is to make developers liable for any flood damage to new homes—not, of course, in perpetuity, as that would be difficult to impose, but for a fixed period, perhaps the first 10 years after the property is first sold, as the amendment suggests. This would bring things into line with the 10-year NHBC buildmark warranty available for new homes. The policy currently explicitly excludes flood damage.
If developers were made liable, it would create a direct financial incentive for housebuilders to assess flood risk properly and introduce measures needed to prevent flood damage. If developers are already managing flood risk appropriately, this will be a zero- cost measure yet will still provide added confidence in the system. My amendment will help to protect those who buy new homes built on a flood plain, and I hope that the Government will give it serious consideration.
My Lords, I am conscious of the fact that noble Lords are dying for me to shut up, because I am probably all that is between them and going home. But I think that this is an important issue—and it is important for two reasons. I rise to promote Amendment 119 in my name and support Amendment 120, proposed by the noble Lord, Lord Krebs. There are 4 million people at risk of surface water flooding and climate change, and increasing urbanisation will make that worse, so it is a really important issue. More important is the fact that this Parliament agreed the Flood and Water Management Act 2010, which included provisions for sustainable drainage—but the relevant sections have not been commenced. I am very ambiguous about the Government’s habit of not bringing into being the will of Parliament. Instead, they have decided to rely on planning measures through the NPPF and have provided two pages of non-technical standards to guide developers.
The presumption in planning that sustainable urban drainage should be included in new developments is not working. It has created uncertainty for developers and created a diversity of interpretation of what is acceptable. Planning authorities—poor souls—are leaned on to ignore it if developers suggest that the costs of providing sustainable urban drainage affect the viability of the development. Local planners at the moment have neither the expertise nor the time, and cave in under these viability challenges.
As the noble Lord, Lord Krebs, said, the planning rules include no structure for formal adoption or long-term maintenance of sustainable urban drainage schemes, which has been a problem for years, with schemes being created and then left orphaned with nobody to look after them and make sure that they continue to be safe and effective. Of course, it is not just about sustainable drainage and flood protection. There are also potential additional benefits of amenity, water quality and biodiversity that have not been garnered.
I had the privilege of talking briefly to the Minister about this and she indicated that the Government’s intention was at least to run the scheme on the planning presumption basis for two years while it was monitored. My further inquiries since meeting her have revealed that no body has been charged with keeping these records—so I am not clear that the Government will be able to say at the end of the two-year period that the scheme is or is not working.
So far, the evidence we have been able to glean from people such as members of the Chartered Institution of Water and Environmental Management—of which I should declare that I am an honorary fellow—is that the situation is now worse since local flood authorities took over responsibility for surface water drainage. Noble Lords have heard the figures from the adaptation sub-committee and the quotation from Barratt Developments that about one-third of its developments do not include sustainable drainage.
We appear to be fiddling while Rome burns in anticipation that at the end of two years, we will be better informed, when in fact the figures will not be available to demonstrate whether it is working. We should press for the implementation of Schedule 3 to the Flood and Water Management Act. That would fulfil Parliament’s will, cost no more than conventionally engineered drainage systems, help reduce flood risks and the costs of flooding, provide improvements in water quality, biodiversity and amenity and give developers a degree of certainty.
In the interest of brevity the noble Baroness, Lady Parminter, said she would not list the diverse range of expert bodies. I will list but a few of them: the Institution of Civil Engineers, the Royal Institute of British Architects, the Chartered Institution of Water and Environmental Management, the Construction Industry Council and a few others—I have forgotten what the acronyms stand for, so I shall not bore noble Lords with them. We should re-enact your Lordships’ previous support for this provision, which is enshrined in legislation.
I support the interesting Amendment 120, which was tabled by the noble Lord, Lord Krebs. When I first read it and was asked to support it, I was slightly wary because it seemed to be a bit bonkers. But, having thought about it and having read it in detail, I think it is one of the more cunning pieces of win-win, incentive-based legislation I have seen for many a long year, in that it would mean that developers would have to think harder about developing more flood-resistant properties and about developing on less flood-prone sites in a way that would not require any cost from them provided they did it well. That is what a good amendment looks like, and I commend it to the Government.
My Lords, I declare an interest as chairman of the Committee on Climate Change, and I rise to support these two amendments. They are both based upon advice given to the Government by the Committee on Climate Change. We are talking about a very serious issue. Tens of thousands of houses have been built on flood plains and in circumstances which are more vulnerable than Cockermouth. This is serious. If we go on like this, we will be creating problems which we will have to meet. We cannot avoid it. This is going to happen. Not to do in this Bill what we can do is to avoid an opportunity, to the detriment of very large numbers of people.
The Adaptation Sub-Committee of the Committee on Climate Change told the Government that there are a number of simple things that should be done that could help protect us in future. For example, water companies are not at the moment compulsory consultees to planning decisions, which means that they are in the very peculiar position of neither being able to comment under the statute on a planning decision, nor being able to refuse to connect the houses then built to an inadequate sewer. We have to put this right. When the committee suggested this to the Government, their official reply was that it would be inappropriate to do this. The word “inappropriate” may have been the right word before the floods in Cumbria, but to suggest that it is inappropriate to do this is stretching the English language beyond any possible appropriate use.
My noble friend may be unable to accept these two amendments at the moment, but it seems to me that it would be pretty impossible to explain to the public that we are prepared to continue with a position in which houses are being built without proper and adequate means of getting rid of the surplus water that they create, and without proper protection of the surplus water that is created outside. These amendments make sure that we have modern, sustainable drainage in a form which this House and the other House have already agreed, and which the Government support. Secondly, they ensure that developers have a duty to develop in a way that makes houses resilient to the normal circumstances of life.
I can think of no more moderate or reasonable amendments to put down, and I remind the Minister that they are based upon the advice of the body that spent a great deal of time researching independently what should be done. Therefore, if she is not able to accept them now, I hope she can give us some hope that between now and Report, the Government will take this opportunity to do two very simple things which will save maybe the lives—and certainly the property and the future—of a large number of people.
I support strongly Amendments 119 and 120, which are important. Before turning to them, I point out that today, we have truncated the last nine groups of amendments to suit the Government’s timetable agenda. Some of us had to concede that because we wanted to ensure that we had two opportunities to debate these amendments, in Committee and on Report; under the proposal made by the Patronage Secretary, that was not precisely the case.
For those Members of the House who have not been following our proceedings and have wondered what was happening this evening—and there will be those who have not—the central issue in this whole Bill has been the fact that it is a skeleton Bill. We have not been able to discuss all the controversial provisions because they are to be introduced later, after Royal Assent, in the form of statutory instruments which we cannot amend. That is the fundamental objection here. That is why all these arguments have taken place.
Amendment 120 would offer at least some security for prospective purchasers of housing. In the event of flooding, at least on the first occasion, the cost of dealing with a property that had been flooded would fall on the developer, not the insurer. Of course, the amendment does not deal with what subsequently happens, when the insurer would carry the liability; but under it, a developer would have to have in mind the potential cost to themselves of failing to design the property they were constructing to deal with the potential for flooding.
I hope this amendment will be enshrined in law, because it seems to me eminently sensible. It contains the phrase:
“the housing developer to be liable for the full cost of flood damage to a new dwelling if such damage occurs within ten years of the property being first sold”.
Of course, the developer can go bankrupt—and then where is the liability? Who then is responsible for paying the bill? In the event that this were enshrined in law, provision would surely have to be made for the developer to buy insurance to cover the possibility of flooding happening at some stage. I presume that the credit rating of the developer would influence the amount of premium payable on the insurance policy.
Amendment 119 would ensure that a requirement to construct adequate systems of culverts and watercourses was firmly enshrined in the law before Parts 1 and 6, which deal with new starter homes, were introduced. We would be protecting the public who buy these properties from potential damage from faulty culverts and watercourses.
I have personal experience of this. I live in Keswick, very near Cockermouth, the town that the noble Lord, Lord Deben, was referring to. What happened with the flooding in Keswick over a number of years was that the culverts broke—it was not the river that did the damage but the culverts breaking. I actually watched a property being built in Keswick on the flood plain at a time when we knew that the culverts were at fault, but we could do nothing about it because the local planning authority had given permission. If this amendment were accepted, that would be highly unlikely to take place.
I say to Ministers that I hope these very sensible amendments will be treated seriously. The incentive my noble friend referred to for developers to see in advance the potential problem and address it before it arises is one the Government might wish to take into account in deciding to accept these amendments.
My Lords, I will speak—with the greatest brevity—in support of these amendments. My only reason for doing so is that I raised this matter at Second Reading. For those who are prepared to read my views—although I do not expect that many of your Lordships will—they are at cols. 1222-23. I very much hope that the Government will look with sympathy on this amendment because it is of great importance to ongoing developments that we address this very serious problem, which causes a lot of suffering to millions of people. Sorting out the flooding that took place last year cost between £1.2 billion and £2.2 billion. I look forward to hearing what the Minister has to say.
My Lords, I am pleased to endorse the comments made by noble Lords from around the Committee on these amendments. The recent floods brought into sharp focus that the damaging effects of climate change are not being matched by our skills in managing increased water flows. Both the Government, through their establishment of the national flood resilience review, and the Environment Agency are being forced to reconsider their flood management strategies.
In the mean time, there are steps that we can take that will make a difference, and we have heard examples this evening. It is now commonly accepted that the removal of trees and hedges has reduced the absorbency of our land. In urban areas, the paving over of gardens and green spaces has left nowhere for excess water to drain. The building of new dwellings connected to the existing sewerage system takes no account of the need for increased capacity. At the same time, it remains literally incredible that housing developers apply to build new homes in areas designated as a flood risk by the Environment Agency, and even more incredible that some local authorities continue to grant planning permission in these circumstances.
So we very much support the concept of sustainable housing development, and these amendments are important in bringing some sanity back into the planning process in this regard. Sustainable drainage systems need to be a core feature of future planning, using green space and natural water features that can mimic the known advantages of natural land drainage and help return water flows to a natural equilibrium.
Whether these principles should be applied cannot be left to local interpretation. Sadly, what we have learned over the past few winters is that inaction in one place can often have a catastrophic effect further downstream, so localised decision-making is not the answer. The rules have to be applied consistently, and this, of course, is what Schedule 3 to the Flood and Water Management Act attempted to achieve. It remains inexplicable that the schedule was not enforced in the first place; I hope that the Minister will be able to explain the reasoning behind that. Now is the time to put that matter right.
Amendment 120 is an excellent attempt, once again, to try to rein in the perverse activity of developers building homes on designated flood areas. When this happens and properties subsequently flood, we are all drawn into the net of supporting those communities and helping them turn their lives around, whereas the developers can simply walk away, having pocketed their profit. They do not even have a responsibility to warn potential purchasers of the risk inherent in the purchase of those properties.
This amendment, therefore, puts the responsibility and the financial risk firmly back in the hands of the developers, which is where it belongs. It will hopefully be a tool to encourage more responsible and appropriate housing development in the future. A number of comments have been made this evening on the technicalities of that amendment, and I know that some more work will need to be done on it, but we very much support the thinking behind it.
My Lords, I do not know how to add this new interest into the debate, but at some point, I will have another company set up that will put me back into doing small-scale development with my son-in-law. The accountants are working on it now, and I am going to put this in the register as soon as it is done, but noble Lords need to know it now, because I am going to speak specifically from a developer’s point of view—even though, technically, I am not yet a developer. I am also going to speak as the leader of South Holland District Council, which covers an area that, if we were not allowed to build on flood plains, would become a ghost town, because we are on a flood plain. We would build nothing anywhere in my patch if we followed the idea that, notionally, the designation of a flood plain by the Environment Agency was true and accurate.
We have not flooded since 1947; adequate flood management schemes can deal with it. Amendment 120 would create companies set up to build one development that would then go bankrupt—and, as the noble Lord, Lord Campbell-Savours, said, on that basis we would have to insure against that, so that would add more expense in some areas disproportionately to others.
If I remember rightly, where we are sitting now is also on a flood plain, so all of the people around this area would also be moved out of town if we applied that. We cannot be frightened by water; we have to manage it properly. We cannot retreat from it. We are people and we can deal with it, and we cannot deal with it just by saying, “You can’t build anything anywhere”, which Amendment 120 would have us do; or create perverse incentives to get people to set up businesses that are going to go out of business every time they earn some money.
My Lords, perhaps I may respond briefly to that last comment. I do not think that Amendment 120 in any sense precludes building on a flood plain. It simply asks—and provides a possible answer—to the question of who should bear the liability if somebody buys a house that has just been built in a flood-risk area and that house floods. While it might be true that, in the noble Lord’s particular area, there has not been a flood since 1947, that does not mean to say that there will not be a flood next year. The people who bought homes that were built recently in those areas should have some form of protection. That is what the amendment is trying to provide.
My Lords, I shall deal first with some of the latter remarks. Following December’s floods, it was clear that the rules that we thought applied did not apply, and that what we thought were blip events were becoming trend events. Therefore, there were lessons to be learned from both last year’s floods and the previous one-off-event floods. Following the December events, we established the National Flood Resilience Review, led by Oliver Letwin, to assess how the country could be better protected from future flooding and increasingly extreme weather events. This review will identify any gaps in our approach and pinpoint where our defences and modelling need strengthening, allowing us to take prompt action.
I understand the intention behind Amendments 119 and 120, but Amendment 119 seeks to place unnecessary provisions into the Bill, as national planning policy has already been strengthened to deliver sustainable drainage systems, and there would be problems with implementing the second proposal.
On Amendment 119, following enactment of the Flood and Water Management Act 2010, proposals to implement the provisions under Section 32 and Schedule 3 were put out to public consultation. The response to that consultation gave rise to a number of issues. These included the potential impact on the delivery of new development under a system that required the approval of sustainable drainage systems under a consenting regime separate from that for approving planning applications. There were concerns that this could add undue delay to the consenting process and impact on the speed of planning decisions.
The coalition Government listened to that response and in the autumn of 2014 put forward for consultation a new proposal to make better use of the existing planning system to deliver sustainable drainage systems, otherwise known as SuDS. In the light of the response to that consultation and a subsequent government announcement in December 2014, national planning policy was strengthened with effect from April 2015. The strengthened policy makes clear the expectation that SuDS will be provided in all major new developments, such as developments of 10 dwellings or more, unless demonstrated to be inappropriate, and it ensures that clear arrangements are in place for ongoing maintenance over the lifetime of the development.
This strengthened policy applies alongside the existing policy expectation that SuDS will be given priority in new developments in flood-risk areas, as well as the drainage requirements of building regulations. Despite the strengthened planning policy, the amendment would require provisions for a new consenting regime for sustainable drainage systems to be brought into effect before important provisions in the Bill could come into force.
We need to give these new arrangements time to show that they can work effectively. We are meeting key stakeholders to gauge their views on how the changes are bedding in, and we will undertake similar reviews at intervals in the future. The noble Baroness, Lady Young, asked where the reviewing process had got to. As I said, we have taken the views of key stakeholders and we intend to have a more in-depth review in a year’s time, which will be two years post change.
Can I prevail upon the noble Baroness to write to us indicating which stakeholders she has taken views from? The evidence that we appear to be getting from stakeholders is that it is not working.
I will certainly do that. We would also welcome suggestions from the Adaptation Sub-Committee based on its ongoing evidence gathering, as that would obviously help to build up a fuller picture.
I am not being unreasonable in asking this but have Ministers fully considered the effect that the cuts in local authorities’ budgets are having on their ability to clear culverts? As they cut back on that clearing programme, they aggravate the problem. Particularly in terms of starter homes, we are now dealing with the more vulnerable buyers—the people who are buying discounted properties and cannot afford to take that risk. I wonder whether Ministers have thought through the consequences of local authorities being starved of cash.
My Lords, it depends where the culverts are. Clearly some are on private land and some are on public land. Local authorities will expect private developers to clear areas, particularly when assessing flood risk. So, depending on the circumstances, there are various obligations on various stakeholders to undertake some of these matters. However, the noble Lord raises an important point.
Amendment 120 covers any development located anywhere—even in areas where, for example, flood risk had not been identified. The housebuilder would be liable even where floods could not be foreseen. The amendment does not differentiate between causes of floods, so if flood defences were overwhelmed, the housebuilder would be liable. It requires the full costs to be covered, even for those for which the householder’s domestic insurance would provide cover, which I am afraid is a fertile area for dispute between developer, insurer and the housebuilder. It would also cause potential confusion with existing warranty schemes for new homes. However, I take the noble Baroness’s point that development should not add to flood risk and I would like to describe the Government’s approach to that important matter.
Flood risk is an important consideration in the planning system and there are already strong policy safeguards in place. The national planning policy is designed to ensure that if there are better sites in terms of avoiding flood risk or if a proposed development cannot be made safe from flooding, it should not be permitted. Local planning authorities are expected to steer new development to areas at least risk of flooding wherever possible. They should apply this approach through their local plan and in planning decisions take advice from people such as the Environment Agency and other flood risk management authorities, which might include the water authorities.
I am sorry to prolong the sitting but I should declare an interest as a former chief executive of the Environment Agency. The point of sustainable drainage systems is not necessarily about the location of development, which the sequential test that the Minister has just described attempts to deal with, but about the fact that increasingly with climate change we are seeing much heavier downpours of rain in rather random places that fill the drains up and flood no matter where you are. I have a house on top of a hill. Two Wednesdays ago a lake that had not been there for 50 years appeared as a result of torrential downpours of rain in Northamptonshire. It is that sort of situation we are looking for protection against in sustainable drainage systems. That can happen virtually anywhere. Were the noble Lord, Lord Kerslake, in his place, he would testify to the fact that in the big flood of 2007, Sheffield did not flood as a result of the river but as a result of the drainage system. Protection against that is what we are looking for in the sustainable urban drainage package.
I completely take the noble Baroness’s point, but I reiterate our point that local planning authorities are expected to steer new development to areas at least risk of flooding. That is not to say that we will not have one-off events. Nowhere is safe from that sort of one-off event.
If I have interpreted my noble friend’s words correctly, he tells us that he lives in an area that is quite low lying. We are sitting in an area that is in a flood plain, so it is not at all unusual for areas of high flood risk to be built upon, albeit that London has been built upon for the past 200 or 300 years. Going back to my original statement, the review by Oliver Letwin going forward and the total way in which we approach water management must take on a new meaning. That is not to take away from the noble Lord’s point. I think that my noble friend was making an entirely different point, which is that in some places we build on flood plains.
Where development is necessary in a flood risk area, it must be made safe, without increasing flood risk elsewhere, and be appropriately flood resilient and resistant. We have recently seen examples of where building in one place has increased flood risk elsewhere. Where appropriate, developers need to identify through a site-specific flood risk assessment all the flood risks to and from the development. This should accompany the planning application to the satisfaction of the local planning authority. Our planning guidance, which supports the NPPF, is very clear that all local planning authorities are expected to follow the strict tests set in the framework to protect people and property from flooding.
Can my noble friend explain why the Government are not willing at this stage at least to say they will look into the unanimous advice that the Minister has had to insist that it is no longer compulsory that the water authority should link up to the local sewerage system just because a development has been put up? The developer should be responsible for making a connection that is not damaging. Why can we not make such a simple and necessary change to the law?
My Lords, my noble friend brings up a really important point, but some of these things will be discussed in the round as we consider how we manage flooding in future. I am sorry—I have lost my train of thought. I wonder whether it is the lateness of the hour. The work of my noble friend’s committee will be invaluable to that thinking.
I come back to the issue of flood resilient construction. Currently, building regulations do not require building work to incorporate any flood-resilience or flood-resistance measures. This is because local authorities can already ensure through plans that measures to address flood risk are incorporated into new development where appropriate. Nevertheless, approved document C of the statutory guidance which supports the buildings regulations promotes the use of flood-resilient and resistant construction.
We recognise the importance of the issue and have asked the Building Regulations Advisory Committee, the statutory committee which advises Ministers on building regulations matters, for its advice on this. I know that the committee has been considering the issues, and we expect to receive its advice shortly.
I do not think I can give that assurance, but I shall certainly try to put a timescale on it before Report, if that suits the noble Lord.
I hope that the noble Baroness will feel able to withdraw her amendment, but I also hope that the Committee will indulge me; I know everyone is anxious to get away. We have spoken about how planning applications for housing can often take an extraordinary time to complete. After some very long nights in this Chamber, I believe people are beginning to say the same thing about planning Bills. I pay tribute to everyone who has spoken in debates today and through the whole course of the Bill so far. The expertise which noble Lords have displayed has greatly enhanced consideration of the Bill, as well as my thinking about how we can improve its implementation.
I know that many noble Lords will not believe me when I say this, but I look forward to continuing the debate on Report. Although we will continue to disagree on some issues, we will, I hope, move closer to agreement on others. Over the Recess, therefore, I shall be tabling a number of government amendments which will take into account some of the points that noble Lords have raised. Given the hour, I will write to noble Lords with further details shortly—and I mean shortly.
I am sorry that the noble Lord, Lord Foster, is not here—oh no, there he is in the corner. I have also written to the DPRRC, responding to its 20th and 21st reports and have placed a copy of that letter in the Printed Paper Office, as noble Lords requested. I am happy to be making a number of positive changes. I will not detail every point here now, because I fear that noble Lords have heard enough from me, but I hope that my response will be helpful.
One final Easter present to you, my Lords, before we rise: within the past couple of hours, we have launched our consultation on starter homes. During Committee, noble Lords from across the House raised a number of questions about the implementation of the starter homes programme. I heard their concerns, and in response we have decided to consult on a number of proposals. We will spend the next eight weeks actively engaging with the housing industry and local government, and I am happy to ask my officials to brief any noble Lord who wants to know more. I have written to noble Lords with further detail and, again, asked my officials to place the consultation in the Printed Paper Office and the House of Lords Library.
That is it for now. I thank your Lordships again for the depth in which we have scrutinised the Bill and wish you a very happy Easter.
Briefly, I thank the Minister for her recognition that the issue of sustainable homes is serious. I have two quick points. The Government’s defence for not accepting the amendments seems to be that they want to ensure that the new arrangements have time to bed in. I am grateful that they are offering us more information about the stakeholder meetings. I am sure the Committee will agree that stakeholder meetings bear no comparison to national monitoring of the situation, both of the number and quality of SuDS. The evidence we have seen from major housebuilders and the adaptation sub-committee shows that this is not working.
Secondly, I am grateful to the Government for confirming that costs are not stopping them moving on this issue, it is the issue, as they put it, of undue delay. My argument would be that one extra stage in the process of planning is worth the price that will be accruing to the benefit of home owners, the wider community and the environment from the introduction of SuDS. On that basis, I will go away with colleagues and consider the response. I thank colleagues around the Committee who have joined in promoting this cause. We may well wish to return to it on Report.
Amendment 119 withdrawn.
Amendment 120 not moved.
Clause 192, as amended, agreed.
Clause 193 agreed.
Bill reported with amendments.