54A Pre-application procedure: waivers

(1) An applicant may, at any time before or after making an application, submit a request in writing to the Secretary of State for a direction that any provision contained in this Part or in rules or regulations made under this Part shall not apply (or shall apply in part only) to the application.

(2) A request made under subsection (1) shall give reasons for the request.

(3) Where a request is made under subsection (1) and the Secretary of State is satisfied that it is impossible, impracticable or unnecessary for the applicant to comply with any provision contained in this Part or in rules or regulations made under this Part, the Secretary of State may—

(a) direct that the provision in question shall not apply, or shall apply in part only, to the application in question; and

(b) whether or not a direction has been given pursuant to paragraph (a), direct that the applicant shall comply with the provision in question, or any part of it, at such later date as may be specified in the direction.”.’.

New clause 8—Planning Act 2008 examination fees—

‘(1) The Planning Act 2008 is amended as follows:

(2) In section 4 (fees), after subsection (3) insert—

“(3A) The regulations may only require the payment of fees in relation to the examination of an application with reference to those days during the examination period when the application was actually examined by the examining authority.”.’.

I want to make a few observations. We have had a good, constructive debate, but it is worth putting on the record that the more that we have discussed the clause, the less convinced I am of the need for it in the first place. I am not sure whether that view is shared by all my right hon. and hon. Friends, but I am a little unclear why the clause is necessary. I stress that I do not disagree with the process. We had many difficult debates when the Planning Act 2008 was going through Parliament, and we accepted the need that, in some circumstances, it was necessary for big projects to have national determination as long as that was underpinned by a national policy statement. At the time, we were thinking particularly of big-kit projects.

Extending the use of the provision, as the clause will do, without a national policy statement and without some safeguards in place is perhaps a measure too far. Several people who either sent in evidence or who addressed the Committee directly said that the proposal was counter to the principle of local decision making  and that thresholds should be defined, so that only projects of truly national significance were included. We are not yet at that stage because we are not sure what will be included, but I accept that such matters will be subject to consultation.

The Town and Country Planning Association said that there was no evidence that local authorities were not already carrying out the role efficiently, so it was again questioning the need for the clause. Interestingly, it considered the two examples that the Department for Communities and Local Government had given to show why the clause was necessary. It said that the DCLG had

“offered two examples of the kinds of development which might be drawn into the new regime. These are large scale manufacturing sites and ‘leisure parks’. (Housing has been excluded). The TCPA is not aware of any evidence of delay to either form of development. The new Land Rover engine plant at Wolverhampton is a case of how public investment was backed by a Regional Development Agency (RDA), local authority cooperation and a timely planning process.”

We wonder therefore why such issues would then be brought into the regime or, indeed why a need would be suggested for such a regime. It went on to state that the

“planning system cannot be seen as any form of delay to this successful investment. In the case of Toyota in Derby there were criticisms of local authorities doing too much to facilitate development. The TCPA would question that a leisure park can constitute infrastructure of national importance.”

The point of the quote is that it questions not only the need for the clause in the first place, but, in particular, the examples that the Department has given as evidence that such measures are needed.

I will not rehearse the various points that my hon. Friends and other members of the Committee have made about the need to have safeguards. I look forward to seeing the outcome of the consultation process and, in due course, the regulations that will underpin the clause to ensure that adequate safeguards are in place.

I rise to speak to new clauses 7 and 8, which are, I understand, probing new clauses—no one intends to push them to the vote—that owe their inspiration to the National Infrastructure Planning Association.

It would be helpful to look at new clause 7 in terms of its ability as, for want of a better phrase, a barrier buster. It is intended to introduce some flexibility into a rigid and prescribed system, which reflects the fact that 2008 Act covers a wide range of projects and is a one-size-fits-all regime. Under the new clause, applicants would be free to ask the Government to waive compliance with certain requirements, such as which application documents are required and what they might show if compliance with the strict letter of the requirement would be impossible, unnecessary or impracticable. That would help to minimise pre-application costs and keep the pre-application period to the shortest possible. There is no reason to think that that would be abused by applicants and, anyway, all the discretion in deciding whether to give a waiver would lie with the Government.

An equivalent system has existed for some time in the Transport and Works Act 1992 regime, which was set up for authorising tramways, tube and docklands light  railway extensions. It has worked extremely well. I understand that the National Infrastructure Planning Association and others are talking to officials about such a waiver. I understand that the probing new clauses have been tabled to raise the issue now, but also to allow that discussion to continue and, if appropriate, to come forward on Report.

New clause 8 relates to something of a spat between the NIPA and the Planning Inspectorate. Any project is likely to be authorised by a development consent order, and the largest element of cost in that is the project examination. There seems to be a difference of opinion on what the relevant days are that PINS is charging for. In essence, it comes down to whether it charges for the entire length of time from day one to day x when it finishes, counting every day in that period, or the days that are worked by PINS on the project. The Minister will understand that that can make a significant difference to the project. The fee for a single inspector is some £1,400 a day, and if there are three or four inspectors, it can go up to £4,500 a day.

I raise those points in a probing nature, to allow the Minister to reflect and to continue to have discussions with officials and the National Infrastructure Planning Association.

We should only make law when it is necessary, and the Minister has said that he hopes that this is unnecessary, so it is a strange clause to have in place. It is necessary so that it is unnecessary. The challenge to us is well put in Lorraine Barter’s submission, in which she writes that clause 21 is the

“cause of some worry and alarm”,

and that it

“would give seemingly arbitrary powers to the Secretary of State to take away from the local community, local councillors and Local Planning Authorities, the power of local decisions on ever more increasing developments.”

She continues:

“The number of such developments could be minimal”— echoing the Minister’s hope that they will be minimal—

“but each one may give rise to alarm in any particular local community in the country”.

That is really the issue; the clause shifts the balance from localism to centralism, which is a balance that we are always concerned about. Having heard the Minister, I am not convinced, although he has worked hard to meet the concerns, for which he must be applauded. However, I do not think he has demonstrated the need for what he himself recognises as, we hope, an unnecessary clause.

I shall start by addressing new clauses 7 and 8, which were tabled by my hon. Friend the Member for Harrow East, who, unfortunately, is helping to form a quorum in the Backbench Business Committee, and were spoken to eloquently by my other hon. Friend the Member for Henley. I have a great deal of sympathy with the arguments that he made. He said that we should be looking at all times at the processes and procedures that we operate—in central Government just as much as in local government—to ensure that they are genuinely necessary and not just procedures that people have set up, that we have all got used to and that it is easier to carry on following than to think of  new ways to do things. It is always constructive and welcome for us in central Government to be prodded to revaluate and see whether there are quicker, more efficient ways to do things.

As my hon. Friend anticipated, I am not able to accept the new clauses, but I would like quickly to say why in each case. New clause 7 suggests that there would be a discretion to seek a direction from the Secretary of State for a waiver against certain provisions in the Planning Act 2008, specifically in relation to pre-application consultations and the information provided. We feel that, where a specific application may be taken away from a local authority and put into this route, whereby the Secretary of State makes the decision, the pre-application discussions are almost more important, because that is when local concerns can most readily be taken into account and shape the application. Similarly, with the information provided, it is almost more important that it is full at that point, so that local people have a chance to respond to and comment on it and make their representations. So, although I have a great deal of sympathy with the underlying intent to simplify and streamline, in this case that would be inappropriate and undermine local democracy and consultation.

With new clause 8, if anything, my hon. Friend made an even stronger point, which was that the Planning Inspectorate, like every other form of government—local, national or, indeed, European—should look carefully at its imposts on the taxpayer and ask itself whether they are fair and reasonable. Although I would not want to fetter the Planning Inspectorate’s already constrained ability to charge fees for the valuable work that it does, I nevertheless take on board the concern about how such fees are charged. I have already had conversations with the Planning Inspectorate about how exactly it measures time and whether that time measurement relates to work done rather than just the clock ticking, and I will be sure to keep on the case. On that basis, I hope that my hon. Friend will understand if I urge the Committee not to support the new clauses.

We have discussed the groups of amendments in full, so I would like very briefly to talk about the fundamental intent. There seems to be some mystification by the Opposition, not just on this clause, but on the point of the whole Bill. I would like to try to set it in context. The Government spent their first two years, across the board, consistently trying to find ways to restore power as closely as possible to the people whom decisions would affect. That is why we have given schools the ability to run themselves by becoming academies, and it is why we have put in place an enormous range of new powers, which my right hon. Friend the Member for Hazel Grove spent so much time on, to empower communities to take charge of the important assets in their areas, to set up community housing trusts and to do a whole range of things that they were not previously allowed to do without asking permission of other authorities.

We have given much greater freedom, a general power of competence and much greater responsibility to local authorities. What we find after two years—as is true in education and most other areas of public service—is that although the vast majority of local authorities have responded entirely positively to the new freedoms and  are fulfilling their responsibilities in a timely and serious way, a few are not. We believe that it is the right role for central Government, having backed off the business of actually making the decisions the whole time, to have the ability to fire a shot across the bows of those authorities that are persistently recalcitrant, to encourage them to improve their performance for fear of temporarily losing responsibility altogether. That is what underpins clause 1 on poorly performing authorities; it underpins the clause about affordable housing and section 106; and it underpins this clause.

Once again, the Minister deploys the argument that the clause is not there to hit large numbers of authorities, but just the most egregious examples of recalcitrant authorities who are failing lamentably to deliver. We know from the Local Government Association that 87% of authorities processed all their major schemes within a year, so we are talking about a relatively small number. Will the Minister name them, please?

It would not be right or proper for a Minister to go around naming specific authorities. [Hon. Members: “What about the Secretary of State?”] For a Secretary of State, there are different possibilities. For a humble Parliamentary Under-Secretary, there are certain things that would not be appropriate, and I do not intend to indulge in them.

The principle is clear. We are setting a limit to what people can get away with under the new freedoms and powers. There is in no way an intention to withdraw the responsibilities or to undermine the powers just given in the Localism Act 2011. We passionately believe that it was the right thing to do. Equally, we passionately believe that it is right for central Government every now and then to say, “Oi, you’re not delivering your responsibilities and we are going to take action to ensure that you do.”

The Minister has not really answered the question posed by my right hon. Friend the Member for Greenwich and Woolwich. If he cannot name an authority, could he tell us—yes or no—whether Hackney would be included?

I will not be tempted. Hackney is a fine authority. Its performance on education, having been woeful for decades, has been remarkable in recent years. I am not an expert, but I am sure that there are other areas where its residents might feel that its performance could be improved. However, if I may say so, that does not really relate to the clause, which is not about particular local authorities’ decision making; it is about schemes of major significance and whether they will be adequately dealt with through this route.

The Minister used the phrase “local authorities are getting away with.” Can he be clear about the things they are getting away with that the clause tries to address?

I was making a broad argument about the Bill. Of course, it is more relevant to the clauses on performance in timeliness of decision making on planning applications and on the renegotiation of no longer  viable affordable housing commitments in 106 agreements. It is less a case of wilful failure or wilful negligence by a local authority; it is more simply that some of the schemes are very big and complicated. If a scheme happens to be sited in the area of a small district authority, it could completely overwhelm them for very understandable reasons. We are simply making it possible for the promoters of such schemes to look at the situation, have pre-application consultations with the local authority, and then decide whether they feel that a decision that is in the national interest, because it is a nationally significant project, would be more likely to be reached expeditiously through this route than through the local authority route. To be clear, there is less implied criticism of local authorities in this clause than perhaps there is in clauses 5 and 1, where I have been very open about what that implied criticism is.

By raising clause 1, the Minister tempts me to bring back some amendments, but I will resist. I am pleased that he is now distinguishing clauses 1 and 21, because I was starting to get confused. Clause 21 does not relate to designated authorities, but to all authorities. Therefore a local authority that has been processing applications very well indeed, and taking local views on board and going along with the local plan, could find that under the clause decisions are taken away from it for no reason whatever.

The hon. Lady is a little unfair. She accuses the Government of having introduced a Bill that is a pudding without a theme. Then when I try to describe the theme, she accuses me of talking off the subject of the clause.

Sitting suspended for a Division in the House.

On resuming—

I think when we broke for the Division the Minister was on his feet. He is back in the nick of time.

Excuse me if I pant a little, Mr Howarth.

I want to be clear about the clause, lest there has been some misinterpretation, through my own fault and the confusing way I presented my remarks about the whole Bill. Some parts of the Bill deal with cases where local authorities abuse the powers and freedoms that we have given them, and fail to discharge their responsibilities in an efficacious way. The clause is intended to create an opportunity for promoters of major infrastructure projects to look into the possibility of taking those projects through the local authority planning route and to decide, for whatever reason—not necessarily because of the wilful negligence of the local authority, but perhaps, simply, as I said before the Division, because it is a small authority whose planning department has relatively small resources and relatively little experience of major schemes—that because they believe the project to be nationally significant and the local authority is not in a  position to deal with it efficaciously they will use the route of the nationally significant major infrastructure project.

We do not expect the clause to be used often. Our estimate is 10 to 20 cases per year; but that number of cases could, in the context of nationally significant major business and commercial projects, have a serious impact on employment growth, income growth and the competitiveness of the country. It would not take many such projects for the measure to be of serious import for the nation’s finances and well-being.

In relation to those 10 or 20 projects, what about the 10 or 20 communities who will feel disfranchised from any say in the way things are shaped, regardless of any economic importance, although I am sure that they would take that into account? The trouble with the clause is that it appears to be overriding communities and localism.

The difficulty with the hon. Lady’s suggestion is that it implies that schemes that currently go down that route—major infrastructure regimes that were put into law by the previous Labour Government—are also somehow denials of local democracy and local community concern. A Labour Government brought in that route, which we are now expanding for a few major business and commercial projects, but large energy and transport ones of the kind that the Labour Government specifically intended to take down that route would fall foul of it.

Such projects would fall even more foul in relation to the hon. Lady’s objection, because in that case the policy determining them would be the national policy statements, which were referred to by the right hon. Member for Greenwich and Woolwich, whereas, as I have made clear, the policy used by the Secretary of State to determine major business and commercial projects will chiefly be the national planning policy framework, which gives huge weight to the local plan. The local plan will therefore have greater weight in decisions about nationally significant business and commercial projects than it does in those about energy or transport projects determined according to national policy statements. I do not believe that the hon. Lady can have a concern about the proposal and not have an even greater one about what was proposed by her own Government.

I do not want to tease the Minister, but he said earlier this afternoon that the Government had not yet made up their mind not to have national planning statements. He has just implied that such a decision had been made, so will he now put the record straight?

I try to pick my words carefully, but I do not do so as expertly as the right hon. Gentleman. I have made it clear that we are far from persuaded of the case for national policy statements for two reasons. One is that we would have to do so many, because business and commercial covers so many categories. The other, as I explained to the hon. Member for North Tyneside, is that, by definition, those national policy statements would tend to undercut the NPPF and the NPPF’s weight in local plans. The NPPF has many things that involve material considerations, but the local  plan is a very important part of it, and a national policy statement would be liable slightly to undercut the weight of the NPPF. That is why we are very far from persuaded, but being very from persuaded does not mean we have completely closed our mind. I hope never to close my mind on any issue in this place, so I urge the Committee to back this important clause.

Question put and agreed to.

Clause 21 accordingly ordered to stand part of the Bill.