Clause 26 - Deemed discharge of planning conditions

Infrastructure Bill [Lords] – in a Public Bill Committee at 2:45 pm on 6th January 2015.

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Photo of Roberta Blackman-Woods Roberta Blackman-Woods Shadow Minister (Communities and Local Government) 2:45 pm, 6th January 2015

I beg to move amendment 50, in clause 26, page 25, line 6, at end insert

“and where a local plan is in place”.

We now come to the extremely interesting topic of deemed discharge of planning conditions. Amendment 50 would ensure that the provisions of clause 26 allow for the speeding up of planning consents by deemed discharge only where a local plan is in place.

The Government have made much of the importance of local councils having a local plan in place, so it seems curious that they would allow local flexibility in determining adherence to planning permissions without a local plan being in place to shape the nature of those conditions and give some solace to the local population that their council has a firmly thought through and tested grip on local planning issues and policies.

We will come later to the issue of requiring councils to have a plan in place, but surely, given the centrality of local plan making to the NPPF, it is important for the Minister to explain why he would not encourage local authorities to have a plan in place before deemed discharge can take place. The Minister will know that the Local Government Association has not been entirely happy  about the deemed discharge conditions. It might help bring local authorities on board with the provisions of the clause if it were restricted to authorities with a plan in place in the first instance.

The points raised by the Local Government Association are interesting. It suggests that joint working between councils and developers is the most effective way to deal with concerns about planning conditions. That is already happening now, and the Government should not bring forward provisions in the clause that would interfere with that process. The LGA states that it is already working with the Home Builders Federation, the Planning Officers Society and the British Property Federation to develop the best approach to deliver more starts on site and speed up delivery, without needing the procedure in this clause.

In the light of that, perhaps the Minister could explain why deemed discharge conditions would not be better left to the local authority, particularly where there is a local plan in place.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Full Member)

Although the clause is quite lengthy, it seems to me that the guts of it are fairly concise. I think it is likely, therefore, that in the course of the debate on this amendment and the next group of amendments, we shall probably have dealt with most of the matters arising from this clause. I say that so that hon. Members may, if they wish, seek to make a broader range of comments now rather than have a stand part debate. Of course, that is in the hands of the Committee.

Photo of Stephen Williams Stephen Williams The Parliamentary Under-Secretary of State for Communities and Local Government 3:00 pm, 6th January 2015

Thank you, Sir Roger. Those remarks enable me to say why this clause is needed and what deemed discharge will address.

Too often, applicants and communities are left waiting and wondering when new housing, or other important developments that will boost their local economy, can proceed, because the local authority does not reach a decision on an application to discharge a planning condition in a reasonable time. Deemed discharge will bring an end to much of that uncertainty and the delay and financial costs that it can bring. It is about addressing the issue of timeliness, not undermining the important protections that the planning system affords.

In particular, the deemed discharge measure will not curtail the ability of a local planning authority to impose a planning condition on an application or to refuse the discharge of a planning condition within a reasonable time scale if it is not satisfied with the proposals made by the applicant. I understand that the Opposition have recognised the importance of improving timeliness and getting that into the process, and that they have confirmed their support for the measure by making the delivery of deemed discharge a key recommendation in another of their reviews. We heard a lot about the Armitt review in our discussion of clause 25, but in this case it is relevant to cite Sir Michael Lyons’ recent review.

I turn to amendment 50 which the hon. Member for the City of Durham has just spoken to. Although I can see what she is trying to achieve, I am concerned that the amendment would result in unintended consequences. As I have noted, nothing in our proposals will curtail the ability of local planning authorities to impose conditions  where it is appropriate to do so. Furthermore, regardless of whether there is an adopted local plan in the area or not, if the local planning authority is not satisfied with the proposals made by the applicant to discharge condition, it may refuse consent. We firmly believe that having a plan in place is vital if local authorities are to play their part in delivering the development that we all want to see.

To update the hon. Lady and the Committee, all local planning authorities in England have some form of local plan in place against which planning applications will be judged. Some 60% of local planning authorities in England have a post-2004 adopted local plan, and 80% have a post-2004 plan that they have published. Of course, the Planning Inspectorate and others are working with authorities to ensure that we get to a position where every local planning authority has published, and will eventually adopt, an up-to-date local plan.

The amendment would not materially alter the ability of local planning authorities to resist inappropriate development, but it may perversely appear to encourage local authorities that have failed to get a local plan in place. I hope that the hon. Lady finds those remarks reassuring and will withdraw the amendment on that basis.

Photo of Roberta Blackman-Woods Roberta Blackman-Woods Shadow Minister (Communities and Local Government)

I do find the Minister’s comments helpful. We tabled the amendment to test whether the Government thought it could be helpful in encouraging local authorities to adopt a post-2004 national planning policy framework-compliant local plan. If the Minister thinks that measures being taken elsewhere are suitably encouraging local authorities to bring their plans forward, then I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Roberta Blackman-Woods Roberta Blackman-Woods Shadow Minister (Communities and Local Government)

I beg to move amendment 51, in clause 26, page 25, line 11, at end insert

“except that it does not apply to any condition designed to mitigate direct impacts on animal welfare, public amenity, health and wellbeing, local infrastructure”.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Full Member)

With this it will be convenient to discuss amendment 52, in clause 26, page 26, line 9, at end insert

“or where a planning performance agreement is in place”.

Photo of Roberta Blackman-Woods Roberta Blackman-Woods Shadow Minister (Communities and Local Government)

The Opposition are concerned about the provisions for deemed discharge outlined in the clause 26. If they are not handled properly, they could lead once again to the needs and views of local communities being bypassed on planning issues. With amendment 51, we are trying to extend the sets of circumstances in which they will not apply.

The Town and Country Planning Association has been doing a lot of work on the issue of conditions and emphasises that they often provide a vital role in securing public interest outcomes by ensuring that the impacts of approved development are properly regulated. What conditions should apply to a development is one of the  few things that communities have a degree of say in. They are able to press local authorities to put particular conditions on planning approvals.

We are concerned that too much deregulation of the system might remove important safeguards. Clause 26 would allow for the dismissal of conditions solely on procedural grounds. We are concerned that that could have a negative impact on the quality of life of residents. Not only could it affect those living in the area at the time, but it could have a negative impact on any future sustainable place making.

I am fully aware that the Department for Communities and Local Government’s technical consultation on planning issued last July contained a number of assertions about the conditions that are sometimes applied to planning permissions being burdensome and making the build-out of sites subject to considerable delay. It might help the Committee’s deliberations if the Minister could remind us of the evidence base on which those assertions were made. The Government also seek to earmark pre-commencement conditions for particular ridicule. Again, the evidence base that is being relied on, as far as I can tell, is at least seven or eight years out of date.

That seems particularly inappropriate in the context of clause 26 and deemed discharge of conditions. The NPPF itself set six tests for planning conditions. They have to be necessary, relevant to planning, relevant to the development, enforceable, precise, and reasonable in all other respects. Are the Government really saying that the NPPF is not working and that planning authorities are largely ignoring its provisions in setting conditions? Let us assume that the NPPF is being followed and that conditions are reasonable and relevant. Why, then, would the Minister think that it is good procedure simply to allow deemed discharge?

The Government have produced new guidance on the use of planning conditions, which contains a number of fairly clear messages about what the intention of conditions should be and their possible impact on development. It is therefore a bit strange for the Government to be meddling further at this point in time, especially as the guidance has recently been produced and provides great detail on how the six tests in the NPPF should be interpreted in practice.

Despite the recent publication of new guidance, the technical consultation document outlined four areas for further Government action on deemed discharge. They are where deemed discharge conditions should apply and what the appropriate time limit should be; reducing the time for the return of fee applications for confirmation of compliance; requiring draft conditions to be shared with developers before planning permission is granted; and further justification by local authorities of why conditions are necessary. Surely the clause will add to the bureaucracy rather than reduce it.

The Government response to the technical consultation document is interesting and is extremely relevant to the clause. It states:

“A wide range of views were received in response to the Government’s request for general comments on its intention to introduce the deemed discharge measure.”

In fact, most people wanted examples of when it would be necessary to have the measure in place, and only some people representing the development industry appeared to support the Government’s approach. In  particular, local authorities said that delays in discharging planning conditions were often due to the actions or inaction of third parties, rather than being the direct responsibility of the local authority.

The consultation produced quite a long list of proposed exclusions. Suggestions were made about exempting matters related to land contamination, highway safety, archaeological investigation, other historical assets, sites of special scientific interest and so on. I could add to that list, but most of the major areas are covered in my amendment, to which I will return in just a minute.

In their response to the consultation, the Government say that their intention is

“to introduce supporting secondary legislation on the procedural detail of a deemed discharge once the primary power is confirmed.”

That means that at this point, we are not clear about the detail of which exceptions will be allowed, except in a very broad sense through the categories listed—flood risk, highways, remediation of contaminated land, and archaeology.

What the Government have chosen to ignore is perhaps more interesting than the list of exemptions that they have given. There is nothing about species protection, noise, heritage assets, public amenity or local infrastructure. Indeed, the list does not include many impacts of development that local people consider most important, such as the impact on local landscapes, especially ones containing important heritage assets, on local wildlife, public amenity, local health services or services generally, or on the overall quality and well-being of a neighbourhood. Perhaps the Minister will explain why those matters, which are so important to local communities, are being ignored.

However, I am pleased to note that a notice must be issued by the developers to notify of circumstances of deemed discharge applying. Could the Minister explain the details of how that will be applied in the secondary legislation, and indeed when the secondary legislation is likely to appear and by what procedure it will go through both Houses of Parliament?

Amendment 52 would prevent the procedures outlined in clause 26 from applying when a planning performance agreement is in place. I have not seen any comment by the Government, in any of the consultation documents, on whether the procedures in the clause will apply where a planning performance agreement is in place. Not saying anything about that is somewhat peculiar given how many planning permissions rely on PPAs. They are used increasingly, because they are often an effective management tool, setting time scales for action between the local planning authority and the applicant. The Department’s website tells us that PPAs should cover the pre-application and application stages, but may also extend through to the post-application stages—presumably, after the application of conditions.

PPAs provide greater transparency and certainty in the process for determining large and complex applications, and they can help to ensure a more efficient process. Critically, they encourage joint working between the applicant and the local planning authority. They can also help to bring together other parties such as statutory consultees—exactly the groups of people who, according to the Government’s own consultation, are often responsible for holding up the discharge of conditions.

We know that planning performance agreements can be extensive. They can cover housing, heritage, community infrastructure and open space. They can include a review local transport policies. They can examine cycle routes and pedestrian routes, road networks, wider environmental issues, urban design, finance, sustainability, employment and so on. That is an extensive list of issues. They get agreement between the local authority and the developer about how all those issues will be addressed and the time scale for addressing them. My question to the Minister in moving the amendment is: should applications that are covered by PPAs not be exempt from deemed discharge? Otherwise, he surely risks putting a note of discord into the planning system where, at the moment, we have agreement.

Photo of Nick Raynsford Nick Raynsford Labour, Greenwich and Woolwich 3:15 pm, 6th January 2015

I will not detain the Committee long, but I want to reinforce the point that my hon. Friend ably made about the potential adverse consequences of the clause. I start from an understanding that we all want to speed up the process. We want to cut out unnecessary delays and ensure that the planning process works reasonably fast. However, there is a risk in the blunt instrument that the Government have adopted in the clause, which will allow deemed discharge to apply after a mechanistic period of time has passed, irrespective of the merits of the discussion or the complexity of the issue in question.

In our debate on amendment 50, the Minister talked about the risk of local authorities having a perverse incentive not to get a plan into place because of the wording of the amendment tabled by my hon. Friend. There is an equal risk of a perverse incentive in the clause as it stands. A developer who is not keen to come up with a possibly quite difficult and expensive solution to a particular problem could simply delay in order to get to the point where that mechanistic time frame has lapsed. They would therefore benefit from deemed discharge without having made proper efforts to resolve the problem.

As my hon. Friend rightly said, there are a lot of difficult, complex and serious issues affecting local amenity, environment, infrastructure and other things that matter enormously to local communities. I remind the Minister that when the Government came into office, they talked a lot about localism and the importance of giving local communities power to determine things. The clause will take power away from local communities. There may be a justification for limiting their power in the interests of speeding things up, but there is a serious risk that as a result, benefits that matter to a local community, and on which a local authority has been negotiating on behalf of that community, are lost because of a rather crude, mechanistic time frame.

I urge the Government to think further about the measure and reflect on what the purpose of planning should be. Should it be to produce satisfactory, successful schemes that can command the support of local communities, or is it just about getting things through as fast as possible to satisfy developers? I hope that it is not the latter, but there is a slight whiff of that thinking behind the clause. I am therefore very happy to support my hon. Friend’s case.

Photo of Stephen Williams Stephen Williams The Parliamentary Under-Secretary of State for Communities and Local Government

I agree with the hon. Member for City of Durham that we need to get the appropriate safeguards right to ensure that deemed discharge will  serve its intended purpose. However, what she is proposing would severely undermine the effectiveness of this important measure. I will read out the amendment, as the hon. Lady did not speak clearly to what her own amendment actually said. I point out to the Committee that amendment 51 effectively proposes to block the deemed discharge proposed in clause 26,

“except that it does not apply to any condition designed to mitigate direct impacts on animal welfare, public amenity, health and wellbeing, local infrastructure”.

Those are such broad terms—the phrase “public amenity” in particular—that this would effectively operate to frustrate this process altogether. I am sure that many of us on this Committee, either as candidates, Members of Parliament or perhaps in the past as councillors, when trying to think of grounds for objecting to some planning application have fallen back on the phrase “will detract from public amenity”. We use this if we cannot actually identify something rather more tangible in the local plan for us to hook our community campaign on to. I am sure that we have all done that; I own up to it myself even if no one else is willing to do so. Amendment 51 opens the door for everyone to be able to say that a local authority will not deal on a timely basis with conditions it has approved if this detracts from public amenity. The amendment put down by the hon. Lady is so widely drawn that, even though we hear that the Opposition support the concept of deemed discharge, they would frustrate that happening.

We have accepted that there should be exemptions, and these were consulted on over the summer. We have given considerable thought to the suggested exemptions that came forward from that consultation, and in our response to the consultation we can now say what those are. In contrast to the hon. Lady’s very broad blockages to deemed discharge, for the Committee’s benefit I will list the exemptions we will propose when we introduce the secondary legislation to implement this clause, if it is passed:

“All conditions attached to development that is subject to an Environmental Impact Assessment;

All conditions attached to development that is likely to have a significant effect on a qualifying European site;

Conditions designed to manage flood risk;

Conditions that have the effect of requiring that an agreement under Section 106 of the Town and Country Planning Act 1990 (as amended), Section 278 of the Highways Act 1980 to be entered into; and

Conditions requiring the approval of details for outline planning permissions required by reserved matters.”

Also included are:

“Conditions relating to the investigation and remediation of contaminated land;

Conditions relating to highway safety;

Sites of Special Scientific Interest; and

Conditions relating to investigation of archaeological potential.”

This list—which the Government came up with as a result of holding that consultation—is quite exhaustive, but it is also quite precise. That is essentially what we are deciding on when I either urge the Committee to reject this amendment, or urge the hon. Lady to withdraw it. Compare those precise conditions, where we acknowledge that there will need to be protection from this deemed discharge procedure, to her completely broad-brush  approach as set out in her amendment 51. To make sure that sensitive local environments will be protected, and to avoid any unintended risk to the health and safety of the public, we have decided to expand the original number of proposed exemptions where the deemed discharge would not apply. Those are the exemptions I have just listed.

I turn now to amendment 52 and the matter of how the deemed discharge would work where a planning performance agreement is in place. The clause already provides that deemed discharge can only take effect once the planning authority’s time to make a decision has expired. I understand that this time limit is eight weeks. The right hon. Member for Greenwich and Woolwich referred to an arbitrary sanction on local authorities. That is the existing provision; there is an expectation that, after local authorities set planning conditions, when the applicant comes forward with their proposals for meeting those planning conditions, then the local authority has eight weeks from that point to say whether the applicant has satisfied those requirements that the planning committee or the officer has put down in order for work to start.

This means that a decision period, even if extended by agreement between the parties, has to have passed before a deemed discharge can actually have effect. Clause 26 also allows for the applicant and the local authority to agree an extension of time between them to allow the authority more time to determine an application to discharge condition, so it already allows the parties to postpone that statutory date specified in the deemed discharge notice as the date on which the deemed discharge takes effect. A planning performance agreement is one suitable mechanism through which such an extension of time could be agreed. As the clause already takes account of such agreements, the amendment tabled by the hon. Member for City of Durham is therefore not necessary.

Before I invite the hon. Lady to withdraw her amendment, she asked for some evidence and alluded to the fact that the evidence base was either flimsy or old. There was some evidence and research undertaken by the previous Government in 2009—now nearly six years ago—which showed that 36% of decisions on conditions had not been taken within that eight-week time limit and nearly a quarter took longer than 10 weeks. If that was the only basis on which we were relying, she would have reasonable grounds to say that clause 26 was reliant on an old evidence base.

However, the Local Government Association undertook some new, fresh evidence in late 2013, so just over a year ago and rather more up to date. It indicates that in between 2007 when they last looked at it and 2013, the average time taken for a scheme to progress from obtaining planning permission to starting on site had increased from seven months to 12 months. The most up to date research that we have was published last month by the National House Building Council Foundation. It found that 74% of its respondents of small house builders—so, three quarters—said that the time to clear planning conditions was a serious impediment or something of a challenge to their business.

There is, therefore, compelling evidence. Some of it is, indeed, relatively old and from the time of the previous Government, but there is also fresh evidence on which we can rely. If clause 26 is passed unamended, it is our intention to come forward with secondary legislation,  which was one of the questions that the hon. Lady asked, and we will, of course, be laying that secondary legislation as soon possible after Royal Assent is given to the Infrastructure Bill. If it helps, I can commit to sharing a draft of that proposed statutory instrument with her in advance. With those remarks, I invite her to withdraw the amendment.

Photo of Roberta Blackman-Woods Roberta Blackman-Woods Shadow Minister (Communities and Local Government)

I thank the Minister for his comments. However, I do not think he addressed my essential point in amendment 51, which was the areas that the Government have sought to ignore in terms of exemptions from deemed discharge. The reason that I read out the list of the Government exemptions, and the list of things that were not approved by the Government in the exemptions list, including all of those that are in my amendment, was to demonstrate clearly that the areas that the Government are ignoring are those issues that are often most important to local communities. An example is animal welfare. There may be a condition applied to a planning application where there has to be protection for badger setts or that particular bat boxes have to be provided. As I understand it, what can happen at the moment is that if that condition has not been approved when it hits a particular deadline, there will simply be a notice given by the developer to say “We have now hit the deemed discharge. Local planning authority, we have provided 50 bat boxes and secured the badger sett.” How does anybody know that is the case?

I seriously request that the Minister takes that away and looks again at the list of exemptions to see whether impact on animal welfare and local services, including local infrastructure, could be added to the list of exemptions, without negating the point of the clause, which is to allow in some circumstances for deemed discharge to take place.

The Minister’s response to amendment 52 was more helpful, but he did not make it clear whether a planning performance agreement and the measures contained within it could override the provisions of deemed discharge. It might already have been agreed that different time scales be set in the planning performance agreement. My point is that we would not want deemed discharge to get in the way of an agreement that had already been made. It was not clear from the Minister’s response whether a planning performance agreement would override provisions of the clause. I will let the Minister ponder that and perhaps he could clarify at a later stage, if not now.

Photo of Stephen Williams Stephen Williams The Parliamentary Under-Secretary of State for Communities and Local Government 3:30 pm, 6th January 2015

I thought I was reasonably clear. A planning performance agreement, or indeed any agreement, between the developer and the local authority could effectively substitute for the clause. It is always open for them to agree some longer timing.

Going back to amendment 51 and the list of exemptions, as I said, that list will appear in the statutory instrument that I have offered to share with the hon. Lady before it is considered towards the end of this Parliament. Some of the other issues she mentioned, including animal welfare, will fall under the exemptions provided, including the qualifying European site. The hon. Lady also mentioned  listed buildings. We will think again about that and discuss it with her when we share the draft text of the SI with her.

Photo of Roberta Blackman-Woods Roberta Blackman-Woods Shadow Minister (Communities and Local Government)

That was a helpful intervention from the Minister. On the basis of that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 ordered to stand part of the Bill.