Contrary to the Minister’s claim that this is the clause that will make the most positive impact on the planning system and the speed of development, the evidence heard by the Committee revealed that it is largely redundant and simply panders to the lobbying of certain major developers, rather than delivering any substantive change.
The Local Government Association branded the clause “legally incoherent,” because local authorities are already restricted to requesting reasonable information. Similarly, the British Property Federation questioned the efficacy of the move, pointing out that there would be no way of enforcing such a change and that the clause is simply tantamount to proclaiming motherhood to be a good thing. The fact that information requests should be reasonable is universally acknowledged, and the inclusion of the clause will not do anything. In an evidence session, Liz Peace asked,
“how do you implement it? What sort of sanctions do you have? Someone standing up and declaring that motherhood is great? What we actually need is the follow-up on that.”––[Official Report, Growth and Enterprise Public Bill Committee, 13 November 2012; c. 41, Q3.]
A number of the points I want to raise are about how the Minister seeks to implement the provisions of the clause.
Amendment 63 would ensure that requests for information are appropriate. It is already in law that requests for information should be reasonable. What we think the Minister is getting at—obviously it is for him to tell the Committee himself—is that the request should be appropriate. As I said, the provision would sit alongside the existing requirement that requests are reasonable and would reinforce rather than simply restate the existing law. It would be more likely to bring about a change than the clause as it stands, as it seems to be a legal tautology.
In the longer run, however, or the next time Downing street and the Treasury panic about the lack of growth and the Minister wants to be seen to be doing something, he should perhaps look elsewhere. In this context I ask him to consider what steps he is taking to deliver the changes set out in the Killian Pretty review commissioned by the Labour Government in 2008. It recommended that information requests be refined—not, may I remind him, defined. Publishing responses to the consultation on streamlining information requirements for planning applications which closed two months ago might also be a good start.
I am nervous about asking the Minister to publish anything, because I usually find that he has done so 10 minutes before I get to my feet. In these circumstances I am reasonably confident that this has not yet been done. I therefore ask him to go away and look at this. Let us be clear. We all want information requests to be reasonable. A number of people who gave evidence to the Committee talked about not being clear, at times, why they were being asked to present information regarding a particular planning application. This measure is already in law and we want it to be appropriate. The Minister cannot achieve it simply by stating that it must be the case.
I have another set of questions about the clause which relate to how it sits alongside the national planning policy framework. As the Committee will know, avid followers of planning as we all are, the NPPF was presented by a previous planning Minister and the Secretary of State as cutting through red tape, getting thousands of pages of planning guidance down to 50 pages. This was an incredible achievement. However, it seems that, rather than the NPPF being allowed to set the framework in which planning decisions are made, it is now being underpinned by legislation of which the Bill is a part, and by guidance underpinning that legislation.
It might help to demonstrate my point if I briefly read out the relevant paragraphs of the NPPF, to which I need to understand how the measures in the Bill relate. Indeed, they call into question what the Minister and his Department think its status is. Paragraph 192 states:
“The right information is crucial to good decision-taking, particularly where formal assessments are required (such as Environmental Impact Assessment, Habitats Regulations Assessment and Flood Risk Assessment). To avoid delay, applicants should discuss what information is needed with the local planning authority and expert bodies as early as possible.
Paragraph 193 states:
Local planning authorities should publish a list of their information requirements for applications, which should be proportionate to the nature and scale of development proposals and reviewed on a frequent basis. Local planning authorities should only request supporting information that is relevant, necessary and material to the application in question.”
The next paragraph states:
“Local authorities should consult the appropriate bodies” on what is necessary.
Given that the information is already set out in the NPPF and the requirements, which are pretty precise about what local authorities should be doing, it is not clear to us why the clause is necessary. It has added to my nervousness that the Government think the NPPF is not strong enough and needs to be underpinned by legislation and guidance; so everything that we heard about planning guidance being reduced to 50 pages was absolute nonsense, as we suspected at the time.
My hon. Friend makes a good point about the centrality of the NPPF and the danger of the clause. Does she agree that one of the concerns that came forward strongly in the evidence is that clause 4 may lead to local authorities not asking for all the information necessary to make good decisions on behalf of local people, which could lead to poor quality planning decisions, to the detriment of localities?
Indeed. My hon. Friend clearly demonstrates the need for this amendment, because a number of people who gave evidence, either written or in the evidence-taking sittings, made it clear that what they really wanted from local authorities was clear guidance about what information was needed to help make the decision, and for it to be made more clearly and easily. There was some concern that it was not always apparent why local authorities needed particular information.
We are asking that any information that is requested should be appropriate. As the NPPF is already suggesting that the information should be proportionate, it is not at all clear to me why the Minister would not approve the amendment. It is simply there to be helpful, and to be as reasonable as the existing law. What the Minister is getting at is that requests should be appropriate. I am sure we do not want to usher in a set of circumstances where local authorities do not have the information they need to take a decision, because that would slow down the development process.
Is the problem with the clause that it encapsulates the whole problem with the Bill? As we would describe it in Lancashire—I remind hon. Members that it is Lancashire day today, and we should be celebrating—it is just faffing around the edges of what is required. That is the problem—not just with the clause but the Bill in totality.
Thank you, Mr Howarth, for clarifying that faffing around is parliamentary language. It will be a phrase that we employ from time to time to describe the Bill, I fear. I apologise to my hon. Friend the Member for Rochdale for not acknowledging at the outset that it is Lancashire day today and we should be celebrating some sort of birthday, if that is what it is.
Before moving away from amendment 63, I want to ask the Minister to clarify the role of the NPPF. Amendment 64 deals with the fact that no evidence was presented at earlier stages—or, as far as I can see, in any of the Bill’s accompanying documents—to suggest that local authorities were purposefully requesting superfluous information in order to be vexatious. In fact, the National Housing Federation underlined the point that excess information also works against local planning authorities. According to the NHF chief executive, David Orr, it gets
“completely bombarded by vast amounts of information that do not help to determine whether the planning application is consistent with the plan.”––[Official Report, Growth and Infrastructure Public Bill Committee, 13 November 2012; c. 57, Q40.]
As such, we can clearly see that it is in the local planning authority’s interest as much as anyone else’s for requests to be proportionate. It is therefore understandable that the relevant local authority should determine whether a matter will be a material consideration. That is not what the Government have implied. For instance, the impact assessment says that the intention of clause 4 is to ensure that information requests are of “genuine relevance”. That seems to suggest that local authorities are deliberately requesting information that they consider might not be relevant.
Those of us who have sat on planning committees know that it is really important for members to have clear evidence, the direct relationship of which to the decision that is to be made is absolutely apparent, and background documents, where necessary, that are referenced in a way that makes it easy for members to access the information. The Minister might want to turn his attention to the way in which information is presented. However, we accept that in some ways, the NPPF deals with this matter already, and we are not sure why it has not been allowed to bed in and change behaviour where necessary. Such a change is probably not necessary in as many cases as the Minister thinks, but we are particularly conscious of the need to ensure that councillors get the information they need. We know that it is a balancing act, and that it can be difficult to always get things exactly right in the case of individual applications. As with amendment 63, what is needed is for everyone to sit down in the early stages of the planning process, decide what information is required and ensure that it is appropriate for the sort of decision that needs to be made. The decision needs to lie within the gift of a particular local authority, which needs to be able to look at what is genuinely relevant.
Does my hon. Friend recognise that the evidence we have seen is not only from organisations such as the Local Government Association, but from developers such as RenewableUK and Barratt? They are concerned that the ambiguities within the clause might lead to greater litigiousness and greater problems. Her amendments are helpful in putting forward a more positive way.
Indeed. My hon. Friend once again makes an excellent point. Several developers gave evidence. They wanted to be clear about why information was needed, and about the form and time scales it was needed in. They were asking for certainty and clarity, and effectively made the point that I made earlier: if a decision gets to committee and someone finds that a critical bit of information is not present, that will only slow down the decision-making process. That is why it is essential that all the information appropriate to an application be gathered and presented to the committee in a timely manner. That is why we have suggested the amendment.
Amendment 64 would ensure that that is a decision that rests with the local authority, so it is about getting some balance back into the Bill. I am terribly concerned that the Government seem to be using a number of the clauses to hammer local planning authorities and make life much more difficult for them in already challenging circumstances. I hope that the Minister will take on board some of our points in the two amendments. As my hon. Friend the Member for Scunthorpe said, the Opposition are genuinely trying to be helpful at all times. We want to see those important NPPF paragraphs implemented, and we want requests for information to be appropriate and in the determination of the local authority, rather than of the Secretary of State, the Minister or developers, which is what the current wording of the clause implies.
I thank the hon. Lady for asking questions that, while in the main misplaced, make it clear to me that we might need to explain from the start why the provisions are necessary in addition to the measures in the national planning policy framework.
To go back to where things started, the Killian Pretty review was commissioned by the previous Government in 2008. It identified a need for the Government to tackle the increasing complexity in information requirements, with case study research indicating a variation in the consistency and reasonableness on the part of local authorities in information requests. Case study research carried out as part of the Killian Pretty review found that almost half—48%—of the cases surveyed had a problem with the registration procedure, with 20% reporting substantial problems causing delay and exhibiting poor practice. That is why the review recommended that changes be made, to clarify and tighten the definition of the information that could be requested in advance or alongside a planning application.
The hon. Lady said, “All of us want information requests to be reasonable”, and I am sure that the Committee and most people outside agree. The question is how to achieve that. She is right to say that in paragraph 193 of the NPPF we make it clear that local authorities should indeed be seeking information relevant to the planning decision. The fact remains, however, that the current statute that applies to information requests for planning applications is much less clear and much broader, which has led to some rather difficult judgments, not least the memorably named Poostchi judgment of 2009, which effectively found that the statute gave extraordinarily broad powers to local authorities, basically to ask for any information that they wanted. The problem is that the NPPF on its own is insufficient to overcome the precedent that that judgment created based on existing statutes.
Our intention, both through the Bill and the secondary legislation that will swiftly follow, is effectively to restore what used to exist, which is a right of appeal for applicants where they feel that a local authority’s requests for information, which then form the basis of its refusal to validate a planning application, are unreasonable. We need to start that process by adjusting the statutory framework, which is what clause 4 does. We are moving away from the position of the Planning and Compulsory Purchase Act 2004, which gives local authorities that broad power, and trying to narrow that down to make it consistent with what was set out in the NPPF. That will be accompanied by secondary legislation that allows applicants to appeal where an application has not been validated due to what they consider to be an unreasonable information request.
The hon. Gentleman will understand that the NPPF was an incredibly important piece of work and I share his esteem for my predecessor—the Financial Secretary to the Treasury, my right hon. Friend the Member for Tunbridge Wells (Greg Clark)—who created the framework and shepherded it through Parliament with the help of many members of this Committee. However, it is not statute. There is provision for it to exist in statute in the Localism Act 2011, but it is not statute. Where there is statute that is uncorrected and unamended and which directly conflicts with it, that creates a problem that leads to judgments such as the one that I have mentioned. Given that we have the Bill and this opportunity, we are trying to bring the statute in line with the intention contained within the framework that the hon. Member for Rochdale was so complimentary about.
I have regular discussions with the leadership of the LGA and the leaders of many authorities of many political colours about different aspects of what is proposed. It is of course sometimes hard for local authority leaders who rise to positions of leadership with the LGA or other representative bodies to understand some of the dysfunctional behaviour that a few poorly run authorities can indulge in. Generally, those leaders tend to be running pretty tight ships; otherwise they probably would not have earned the respect of their peers and the elevation to various elected positions in their representative associations. However, the fact remains that the experience on the ground is of some unreasonable behaviour. This measure simply brings the statute into line with the intention of the NPPF, so that we do not find that court cases are being overturned.
“sometimes…the information asked for seems to have little relevance to the application. We would support this clause and the test of reasonableness”.
Mike Spicer of the BCC said that
“the evidence from our members and from Professor Ball about the extent to which companies going through the planning application process have to rely on outside consultancy support is a reflection of the complexity of the system and how much information is required. Businesses are in a situation in which they have to hire outside experts just to understand the requirements.”––[Official Report, Growth and Infrastructure Public Bill Committee, 13 November 2012; c. 27, Q54.]
The hon. Member for City of Durham made the important point that some larger developers have said they do not find the proposal such a problem. We are not just in the business of making the planning system work for very large developers. It is always the case that large companies can cope with regulation, whether of employment, planning or anything else, because they have whole departments that do just that. In truth, it becomes a bit of a competitive protection to them and a barrier to entry by smaller companies that want to do good things.
We have to make the system work fairly for all applicants and that includes the sort of businesses represented by the British Chambers of Commerce and others that do not have specialist departments that probably quite like the idea of getting all their environmental audits and bat reviews done and dusted up front, because they know that, at some point in the process, they will be needed. We need to help those who are not necessarily in that position and make sure that they are not being prevented from developing.
The Minister makes an interesting point about smaller development companies. Nevertheless, even smaller development companies need to provide the information that is appropriate to the development. Fairness does not relate only to the developer, but to the local community and the local community representatives charged with making the decision, and who need to have the correct and appropriate information in front of them so that they can make the decision.
The hon. Gentleman said that regulations will be underpinning the clause. I refer to the consultation on streamlining information requirements for planning applications that, I think, closed several months ago. Will the outcome of that consultation be known before the regulations are drawn up? It is only then that we can assess whether the regulations will tackle the particular issue that the hon. Gentleman raised.
Before I give way to my hon. Friend the Member for Henley, I want to draw attention to the fact that the hon. Member for City of Durham is in a bit of a logical trap. Is she proposing a distinction without a difference, which is a distinction between appropriate and what is proposed under the clause, which is that, first, an information request should be reasonable and, secondly, that it should be relevant to the planning decision?
If there were something meaningful about the hon. Lady’s alternative, which is “appropriate”, presumably that suggests that something might be unreasonable or might not be relevant to the planning decision, but is somehow appropriate. I cannot believe that she honestly wants to suggest that applicants should be required to provide information that is unreasonable or not relevant to the planning decision.
“Or appropriate” is just another way in which to put “reasonable and relevant to the planning decision,” in which case we will be better off to stick with the current wording because “reasonableness” and “relevance” are strongly tested legal concepts and will therefore not provide the judgments that have caused such a problem in the past. I hope that the hon. Lady will understand why we prefer to stick to our decision.
Ian Murray rose—
I am glad to buy my hon. Friend a bit of thinking time so that he can respond to the Opposition. I take him back to the Killian Pretty report which identified such a problem. It identified that one size does not fit all, and that the way in which information requirements had been built up tended towards establishing them as a body of evidence that would be used in each case. That simply did not apply. The Library note makes clear the piecemeal nature of the legislative basis for such matters, and the provision is merely a piece of tidying up.
I thank my hon. Friend. I might have set a hare running when I said that the clause was one of the most important in the Bill. He is right that it is a tidying-up provision. I happen to think that the tidying up is deeply significant. We have heard evidence, particularly from those representing smaller businesses, that this can be a huge burden on them. Small business representatives —developers and others—in my constituency have talked about being presented with a tick-box list, where a planning officer has ticked all the different audits, reviews and consultancy reports that they will require in the process, without much regard to the stage the decision had reached.
One developer made clear to me that the proposal can often become reasonable at the stage of detailed planning permission, but officers ask for it at the point of outline planning permission, when it is entirely unnecessary. Developers have to incur that cost when they have no outside financing in place; it has to come straight out of their equity reserves. It would be more reasonable to ask them to bear that cost when they have outline permission and therefore have the funding in place. Although such differences might seem small in legal terms they can be crucial for the viability of schemes for small developers.
Does the Minister agree that there is an attitude in some planning departments of protecting their backs? If they do not tick every box they might find themselves at risk. For very small applications and ones where a bit of common sense should apply, it is just not necessary. If a building is on the top of a hill it probably does not need a flood assessment. There are plenty of other examples that we could all give from constituency experience.
My right hon. Friend is absolutely right. I have some sympathy for the planning officers involved. The Prime Minister referred last week to the bane of judicial review creeping into every aspect of life. It is not entirely unreasonable for some planning officers to ward against any risk of getting into trouble by doing that. However, it has a corrosive effect on the cost of development and that is why we are trying to sort it out.
I am just going to answer the hon. Lady’s question before I forget and then I will be delighted to come back to the hon. Gentleman.
With regard to the consultation, we are currently considering responses to the consultation on streamlining information requirements. We are looking to bring forward the regulations early next year. There will obviously be a proper process of looking at those. We are not going to start applying this provision until we have the regulatory support in place.
I have just acquired more detail. There will be two sets of regulations: one will be brought forward early next year for consultation in July, and one later, probably at the time of Royal Assent for the Bill. The latter will reintroduce the right of appeal. That package will, I hope, produce a situation that is streamlined, clear and fair.
Before giving way to the hon. Member for Edinburgh South, I want to refer to one more point raised by the hon. Member for City of Durham. She mentioned the importance for communities of being sure that all the necessary information had been provided. She is right, but it is also the case, as anybody who has served on a parish council knows, that sometimes a body can be presented with a yea-high pile of information and reports. Do they, as volunteers with busy lives and kids with homework to do, have the ability to wade through all that and form a judgment? We are trying to restore the balance so that everybody is able to access the decision-making process and give their views based on the relevant information that is reasonably required.
I should like to go back to the body of evidence. The LGA said clearly in its response to clause 4 that what the Minister is portraying is very anecdotal. I should have thought the Minister would have come to the Committee and said, “Here are four examples across the country of where this has not worked and where the clause would help.” He has yet to do so; perhaps he could.
I have a second point to make while I am intervening. Local communities are often in the best position to determine what is happening locally. Often they can tell a local authority that they think a bat survey should be done or that there are underground mine shafts that have been there a long time. When I was vice-convenor of a planning authority in Edinburgh, local communities would often come to the planning authorities saying, “We have the local knowledge to try to make these things better,” which helped the developer.
The hon. Gentleman quotes the LGA at me but then does not accept it when I quote at him two of the major business representative organisations which said, in evidence that he heard, that this is a positive clause. It has won their support and is needed because their members are affected by it. I trust them to have a view and that is why we are bringing forward a clause that directly addresses the recommendations of the Killian Pretty review, which was set up by the Labour Government and published in 2008. We are directly fulfilling those recommendations which in their last two years in office that Government failed to do. I hope that the hon. Gentleman would welcome it.
I want to come back to the powerful point that my hon. Friend made about the benefits of the clause and the important principle that we should seek to reduce radically the amount of information needed to make a judgment about a planning application so that it is in a form and size that allows communities to properly interrogate it. The principle that underlies this clause and its linkage with the NPPF is powerfully articulated by my hon. Friend when he says it will help communities as well as developers.
Exactly. It is often the case, as my hon. Friend points out, that these sorts of bureaucratic overload do not help anybody. They do not help the applicants because it costs them a huge amount of money to put it through. They do not help the planning authority because the process of determining a planning application is also extremely expensive. We all know that the fees that authorities get for a planning application do not cover the full costs and they rely on Government grant, which is fixed and not related to the amount of work involved in an individual application. And it does not help the communities who want to comment. It does not help anybody and that is why the role of Government is to clarify, simplify and ensure that the process is reasonable.
The Local Government Association and others are asking for some evidence as to why the clause is necessary. Let me take the Minister back for a moment to the point made by the Prime Minister about judicial review and planning applications. We now know that judicial reviews of planning applications are about 1% of all judicial reviews. So why the Prime Minister highlighted it as an issue is quite beyond me. What it shows is that the evidence base does not necessarily concur with the Minister’s views or with the anecdotal evidence. We are asking the same thing about what underpins the clause.
Where is the evidence base? In particular, has the Department carried out a survey of the local authorities that use planning portals for their information on their websites? A number do, and it enables information to be interrogated without everything having to be downloaded and without there having to be a huge lot of paper available to parish councils or anybody else who might want it. Indeed, the form of the information is important as well. That is not mentioned at all in the clause. Is it intended to put all of this in regulations?
I confess that I am slightly amazed by the approach the hon. Lady is taking. The Government whom she supported set up a review. The review said, “There is a problem with this. Do something about it.” Yet they did not. We introduced the national planning policy framework, which they now claim to support, although I do not seem to remember them supporting it when my right hon. Friend the Member for Hazel Grove and others were taking it through the House. [ Interruption. ] They certainly had a pretty funny way of showing it. They have admitted that that makes it clear that what we are proposing today is the reasonable position, and they were therefore asking, “Why is it that somehow the framework is not applying?”
The hon. Lady has completely failed to explain how “appropriate” is either meaningless, because it is the same as “reasonable” or “relevant”, or meaningful, in which case something can somehow be appropriate but unreasonable and irrelevant. She is saying that we have no evidence for that when I have already given her quotes from an evidence session in which she sat and asked the witnesses—the CBI and the British Chambers of Commerce—questions; I did not ask them any questions. I have given her an awesome example. If she prefers anecdote to the evidence of the people employed to represent the business community, I have also given her an anecdote from my constituency, and without a doubt, we can all give her more anecdotes.
There is plenty of evidence to show that the provision is long overdue. It was a product of a review set up by the hon. Lady’s Government. I hope that she will withdraw the amendment, which would add nothing and would provide, if anything, obfuscation to the clause. I hope that she will allow us to get on with the job of ensuring that the planning system works for developers large and small, for local authorities that want to help growth happen in their communities, and for local people who want to be able to respond to relevant information, not irrelevant twaddle.
There is a difference between evidence and opinion. We got a lot of opinion; what we did not necessarily get was evidence, hence the nature of my question.
The hon. Lady is prone to use quotes as evidence when they support her arguments, and suddenly they become opinion when they support mine.
I do not agree with that observation.
What we know from what the LGA has said is that the clause is redundant. From what we have heard from the Minister, it will be useful to see the outcome of the consultation on streamlining information requirements and the regulations in due course. On that basis, I beg to ask leave to withdraw the amendment.