Clause 83 - Role of development plan and national policy in England

Levelling-up and Regeneration Bill – in a Public Bill Committee at 3:30 pm on 12th July 2022.

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Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Levelling Up, Housing, Communities and Local Government) 3:30 pm, 12th July 2022

I beg to move amendment 86, in clause 83, page 91, line 28, leave out lines 28 to 30 and insert—

“(5C) But the development plan has precedence over any national development management policy in the event of any conflict between the two.”

This amendment gives precedence to local development plans over national policies, reversing the current proposal in inserted subsection (5C).

Photo of Mark Hendrick Mark Hendrick Labour/Co-operative, Preston

With this it will be convenient to discuss amendment 57, in clause 83, page 91, line 30, leave out “national development management policy” and insert “the development plan”.

This amendment would require any conflict between a local development plan and a national development management strategy to be resolved in favour of the local development plan.

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Levelling Up, Housing, Communities and Local Government)

In moving to chapter 2 of part 3, “Development plans and national policy”, we confront an altogether more contentious set of issues than planning data, as the new Minister will be acutely aware.

Let me start by making it clear that, in general terms, we welcome efforts to strengthen development plans. Building on clause 82, which updates existing definitions and references to provisions in the Planning and Compulsory Purchase Act 2004 to reflect changes proposed in the Bill, clause 83 makes amendments to that Act in two important ways relating to development plans.

First, proposed new subsection (5B) provides that any determination of a planning matter under the planning Acts must be made in accordance with the development plan and any new national development management policies, unless

“material considerations strongly indicate otherwise”.

In other words, departures from a plan will require stronger reasons than at present, thereby giving residents more confidence that plans will be adhered to and that any safeguards woven into the fabric of such plans will be respected. That is an entirely sensible measure, and we fully support it.

Secondly, however, that measure is immediately undermined by proposed new subsection (5C), which stipulates that at the point an individual planning application is determined, if there is any conflict between a formulated development plan and any new national development management policy that the Government might introduce,

“the conflict must be resolved in favour of the national development management policy.”

The Bill makes it plain that we are not talking only about significant conflicts between local and neighbourhood plans and national development management policies.

Proposed new subsection (5C) is clear that conflict “to any extent” must be resolved in favour of national policy. That is a far more problematic measure that the sensible strengthening of plans provided for by proposed new subsection (5B), in that it clearly accords precedence and a large measure of control to the national over the local. The result is that, in the clause, the Government are giving with one hand while taking away with the other, making it harder to deviate from the local development plan at the same time as giving themselves powers to exert greater control over them.

The amendment would replace proposed new subsection (5C) and, in doing so, reverse the proposition currently in the Bill by making it clear that the development plan would have precedence over any national development management policy in the event of any conflict between the two. We believe that that is one of the most essential changes required in revising the Bill, and I hope that the Committee will forgive me if I explain why in some detail.

The Government contend that the creation of national development measurement policies will help to make local plans simpler and easier to produce by providing greater certainty on the question of whether policies in any individual development plan are consistent with national policy. There is a glaring paradox there, however, because to simplify all local plans sufficiently, NDMPs would have to cover an extensive range of issues in enough detail to be readily applicable to the huge diversity of local circumstances found across England. If they do ultimately cover the broad range of diverse policies that apply “in most areas”—as the policy paper suggests they will—they risk becoming meaningless.

Nor is it clear how NDMPs will actually enable the Government to prevent local planning authorities from duplicating large swathes of national policy in local plans. We should bear in mind that the national planning policy framework already instructs local planning authorities not to duplicate national policy, but most authorities—understandably—like to make it clear how national policies apply to their local area, which highlights the fact that one person’s duplication is another person’s tailoring to local circumstances.

When the Minister responds, could he explain—referring back to the debate we had earlier today—whether duplication of national policy in development plans is an issue that the Government believe can be addressed by the processing of planning data as provided for by chapter 1? Are clauses 75 to 81 intended, in part, to be a means of making local plans shorter? I struggle to see how NDMPs will, in and of themselves, lead to a simplification of local planning.

In any case, when it comes to local plans, the laudable objective of simplicity and certainty should not also require that development plans be subordinate to national policy, as clause 83(2)(5C) clearly renders them in the event of any conflict between the two. The Committee might wonder why such subordination is problematic, because should national policy not be clearly set by central Government, with local planning authorities given no discretion whatever to depart from it? Well, I would make two points in response.

First, we have absolutely no idea from the Bill, from the accompanying notes, or from the non-existent impact assessment, what might be covered by a national development management policy in future, other than that they are likely to relate to policies that, as set out in the policy paper, “apply in most areas”. The fact that none of us knows what future NDMPs might cover is deeply problematic.

As Victoria Hills, the Royal Town Planning Institute chief executive, put it to the Levelling Up, Housing and Communities Committee on Monday 20 June:

“As I sit before you today I could not tell you if 20%, 50% or 80% of local plans are due to be nationalised.”

That is an incredibly concerning state of affairs given the powers provided for by clause 84, which we will come to next, and it should trouble every member of the Committee.

The new Minister is a diligent parliamentarian, and I know that he will have read his brief over the weekend. I fully expect him to stand up and argue that the concerns expressed across the House about this matter are misplaced; that there is no need to worry because NDMPs will only ever relate to areas of policy that are naturally and incontrovertibly matters for national decision making; and that there are already legal protections in place that simply need to be interpreted for planning—policy relating to aspects of the protection of heritage assets, for example.

However, I say gently to the Minister, who I am incredibly fond of, that he will not be around forever. Indeed, as things stand, he is unlikely to make it past early September. Even if he does, on the basis of the average tenure of a Housing Minister under Conservative-led Governments since 2010, whoever replaces him will, by my reckoning, have until the summer of next year before they are also moved on. I am afraid that any personal reassurances that Ministers might offer—as the now previous Secretary of State did, including to the Select Committee—count for little. What matters is what the legislation says, and it offers us no guide to what will be covered by NDMPs.

Let us take as an example a particularly contentious area of policy: the green belt. Will rules on development in the green belt be the subject of an NDMP? If so, what will they specify? At the moment, we have no idea. That matters for the simple reason that there are no limits in the Bill on the scope of the national development management policies; the legislation enables them to be about anything that is common to most areas, which brings me to my second point.

As the Bill specifies no limit to what might be covered by an NDMP, there is potentially no corresponding limit to central interference in areas previously considered to be firmly within the preserve of local decision making. There is therefore no certainty whatever that the changes proposed will mean that local plans will deal with local problems, and national policy will deal with national problems.

It is worth pausing and considering just how radical a departure from the status quo proposed new subsection (5C) of clause 83 is. Its effect is clearly not to afford national policy equal status to the development plan. Indeed, in a response dated 30 June to a letter from the Chair of the Select Committee, the former Secretary of State acknowledged that NDMPs “would have precedence”. It is therefore not the case, as some have argued, that the measures in the clause simply have the effect of ensuring that national guidance matters as much in local planning decisions as rules contained in a local plan. If the Bill passes unamended, such guidance will matter more.

As things stand, national policy is set out in the national planning policy framework, and it is a material consideration throughout the entirety of the planning process. However, as much as it is implied by various provisions in various pieces of legislation, there is no statutory provision for the scope or legal weight of national policy; it is simply guidance issued by the Secretary of State.

As such, while the NPPF has to be considered alongside the development plan, while developments plans have to be seen to be consistent with the NPPF to be approved in examination, and while NPPF guidance has to be taken into account when determining individual planning applications, it is all policy rather than law. As such, it is extremely influential but accordance with it is not required by statute and, as a result, when there are good reasons to set aside particular elements of NPPF guidance, that can be done in an entirely lawful manner if adequately justified. In short, it is possible under the existing system to bring forward a local plan that departs in some ways from the NPPF.

In contrast, clause 83 will ensure that element of discretion is lost. It is therefore not correct to assert, again as the previous the Secretary of State did several times over recent months in the Chamber and to the Select Committee, that national policy already supersedes local discretion in a number of areas. And if it were the case, then what precisely is the rationale for national development management policies? Why not simply continue to utilise the NPPF as at present or, if its legal status is the problem, put it clearly on a statutory footing?

The reason is that what is proposed in clause 83 is a wholly different proposition from the current application of the NPPF. The clause says that areas of policy covered by NDMPs, which again I stress the Bill as drafted allows to be about almost anything, will not only have legal status but will trump local development plans in any instance there is found to be a conflict. That is what the Bill plainly says, and it is a very significant change from the current relationship of the NPPF and local development plans because it represents a radical centralisation of planning decision-making and a corresponding erosion of local control in a way that threatens to transform what is currently a local plan-led system into a national policy-led system.

It is firmly the view of the Opposition that the effect of the provisions in this clause fundamentally alter the status and remit of local planning and that that is deeply problematic—not because local is always and invariably best in every instance, but because giving NDMPs legal primacy over local plans could have a number of potentially damaging consequences. These include the stifling of local innovation on issues such as affordable housing, energy efficiency and nature conservation in cases where local planning authorities seek to be more ambitious than nationally determined policy; the erosion of local democratic control of, engagement in and scrutiny of the planning process in a way that further damages public trust and confidence in the planning system; the very real potential for significant legal delays where conflict between development plans and national policies is contested; and the prospect that new devolution deals will be undermined as a result of local leaders being prevented from exercising discretion over development management policies in way that would better stimulate growth.

Responding to the concerns that have been raised about the effect of these provisions on local planning in recent evidence he gave to the Select Committee, the previous Secretary of State urged the House to wait for the publication of the NPPF prospectus in July

“to make judgments about whether the protections”

That the Government intend to put in place “are sufficient”. However, we do not have that prospectus today, and even if we did, the policies it sets out would in no way be binding, so we must arrive at a judgment based on the text of the legislation.

On the basis that the Bill provides unlimited scope for what is to be covered by national development management policies and that it accords those policies both legal status and primacy over local development plans, we believe clause 83 represents an unacceptable centralisation of development management policy that will afford communities no protection from central interference in what is currently locally decided planning policy.

We absolutely recognise the need for national planning policy in a number of discrete areas but there is a fundamental difference between the freedom for local planning authorities to diverge within strict parameters and dictating what local planning authorities must do in any area of policy that Ministers see fit. Unless and until the Government clearly delineate, on the face of the Bill, the limits to what can be covered by a national development management policy and constrain the scope of such policies to override local development plans, we believe proposed new subsection (5C) should be removed from the Bill.

The Government clearly know that they have a problem here: concerns about this matter were raised by a significant number of hon. Members on Second Reading, including a great many on the Government Benches. As attested to by amendment 57, in the names of Theresa Villiers and the hon. Members for Buckingham and for Isle of Wight (Bob Seely), it is not just this side of the Committee that is seeking to force the Government’s hand on this matter. I therefore hope to hear from the Minister that the Government are minded to substantially overhaul the clause, even if they will not accept our amendment.

Photo of Tim Farron Tim Farron Liberal Democrat Spokesperson (Environment, Food and Rural Affairs), Liberal Democrat Lords Spokesperson (Communities and Local Government), Liberal Democrat Spokesperson (Housing, Communities and Local Government) 3:45 pm, 12th July 2022

This is an important amendment, as is the one in the name of the right hon. Member for Chipping Barnet. I will not go into a great amount of detail on this matter as we talked in earlier debates about the motivation for devolution. Who is it for? I am hoping to be persuaded otherwise, but my suspicion is that the legislation is mostly about trying to make local government a more efficient agency. What we really ought to be talking about is developing and delivering greater levels of power and control to local communities. Who is the Bill for? Who are development plans for? Is this even devolution, or is it just a form of delegation—tidying up the process to help Whitehall?

Plans have to mean something. One of the reasons I suspect some authorities do not have the plans that they should have, or that their plans are not as up to date as they ought to be, is that there is a lack of confidence in them. As we said earlier, there is a belief among communities that: “We may set out our priorities, but they will be overridden because they are in conflict with national policy, or the Government simply will not stand with us as a local community if we seek to enforce zero-carbon homes, to maximise the number of affordable homes being built or to ensure that infrastructure is provided for developments before they are made.”

There will be some who say, “If you give local communities the ultimate power over development plans, things won’t happen at all.” I think that is baloney. The evidence is that that is not true. If we give communities the ability to specify and enforce their priorities—for example, for the huge majority of homes being built to be affordable and zero-carbon, and to have the infrastructure provided for them in advance—we will find that those communities are much more likely to be willing to play ball in the first place. It is the opposite of nimbyism. I can name sites in Coniston, Hawkshead and Grasmere where people have fought to get hold of sites to provide affordable homes, because they were given agency. They were in the national park, where there was more power as a consequence.

That is why this question is important. Do we want to see the Bill as being about empowering local government, and therefore national Government having to step back and genuinely trust communities? Or are the Government going to simply see the Bill as an opportunity to exert more control, just in a slightly more efficient way? If the Government refuse amendments at least of this sort, then we will know that the Bill is not about devolution, but delegation, and that it is not for the communities or for levelling up, but for the convenience of Whitehall.

Photo of Greg Smith Greg Smith Conservative, Buckingham

I will not take up much of the Committee’s time on this issue, because we have already explored many of the key points that go to the nub of why these two amendments—57, tabled by my right hon. Friend the Member for Chipping Barnet, which I have been happy to sign and support; and 86, in the name of the shadow Minister, the hon. Member for Greenwich and Woolwich—are so essential.

I spoke on Second Reading to say that the Bill was fundamentally good, but that it needed some considerable polishing. This section of the Bill is one of those elements that, in my opinion, just has to change. None of the points I am going to make will come as any surprise to the Minister, given that, up to four days ago, he was my Whip—he has heard it all before. I do not doubt the cartwheels of delight across Nuneaton when the Minister, having been relieved of whipping me, found himself on the Bill Committee, where there are indeed a number of amendments that I have supported or tabled myself.

This group of amendments goes to the heart of whether we are serious about localism and the principles of subsidiary, or whether the default position is still “Whitehall knows best.” There are countless examples of developments across my constituency—this is before I even get on to High Speed 2—where the local council has said no, parish councils and town councils have said no, and the case against them has stacked up with the local plan, be it in the former Wycombe district or the former Aylesbury Vale district. They have even contravened the NPPF.

However, by the time those developments have got to the inspector, the rubber stamp has come down in the opposite direction. As the shadow Minister said, it is already a problem, and I fear that the clause will seek only to bake and lock into the legislation the ability—no matter the cause or the reason and no matter how strongly a community, neighbourhood, parish, town, borough or metropolitan authority feels—of Whitehall to come down and impose a different will on those neighbourhoods and communities.

I give the example of the village of Ickford in my constituency, which is to the very west of Buckinghamshire on the border with Oxfordshire. Every single person in that village knew that that land currently under development floods—not once in a blue moon, but four or five times every autumn and winter. The people who back on to that land know that it floods, because it floods their back gardens, too. The people who drive through that village know that it floods, because the roads flood when that field floods. Locally, that development from Deanfield Homes was turned down because, among other reasons, the land floods. By the time the inspector got his hands on it, it was approved with a peculiar statement that the development had a chance of flooding once every 100 years. Within days of that judgment being passed—guess what? The land had indeed flooded. I know, because I stood in it, and the water lapped up to the top of my Wellington boots.

I give that as an example of why local control and decision making must have primacy in planning, because local people, local councils, local parishes and towns—or whatever tier of local government—actually know what happens in their own back yard. They understand it. They see and feel and breathe and touch the problems that any proposed developments could come across. Therefore, as we look to the summer recess and to coming back in September to finish the Bill’s passage through Committee before it gets to Report, I really urge my hon. Friend the Minister to consider the real implications of baking into the Bill the position that national planning policy can overrule local people’s decision making.

If we are serious about making the Bill truly about localism, we need to seriously amend clause 83. As the great Ronald Reagan once said:

“There is no limit to the amount of good you can do if you don’t care who gets the credit.”

I really do not mind which amendment is chosen, because fundamentally they do the same thing, but I urge the Minister please to reflect on this serious, fundamental point that underpins the Bill and to see if we can find a better way of ensuring that it is local decisions that are made, and not with national overriding.

Photo of Rachael Maskell Rachael Maskell Shadow Minister (Digital, Culture, Media and Sport)

It is a pleasure to follow the hon. Member for Buckingham, and I agree wholeheartedly with his comments. Ultimately the clause comes with an air of arrogance from the Government. I am not looking at the Minister on that as I appreciate he is new in post, but it says to a community, “We, as Government, know best.” I think back to a few years ago, when many of us were involved in the debate about fracking, which was being imposed on our communities. We fought back on those measures. Fracking would clearly have impacted on the environmental and climate situation we are facing. That was a fight from within communities to protect themselves. The communities knew best about the impact that would have.

We should think about where that debate has gone over the subsequent years. If the national development management policy covered the area of fracking—I say “if” because the real problem is that we do not know what will be in scope—we can see that a detriment would have been created. There are many more examples that I could give.

Although I obviously understand why the Government want to control everything—it is in the nature of Governments to suck in powers to themselves—the reality is that the Government will forever be in a tug-of-war with the communities of our country. The Government should be thinking about co-production and working with communities, as opposed to fighting them. Listening to the heartbeat of our country—the people who live in those areas and know those communities so well—is really important. Therefore, I find it slightly obtuse that we are being asked to accept a clause on national development management policies and where they sit in the hierarchy of powers when we do not have the tight definition required to understand what that will achieve.

I therefore ask the Minister to reflect on that hierarchy of authority in the planning system and where those powers should really sit, because such reflection would give the Government the opportunity to think about how to work better with communities to ensure there is a win-win, as opposed to a tug-of-war that we all know will end up in the courts. That will be expensive and time consuming, and will create a lot of anger. That could be avoided if some of these provisions, such as clause 83, were reviewed, and the Government tabled amendments, perhaps after the recess or on Report, to placate some of that feeling and build a stronger planning system and a stronger outcome for communities.

I considered High Speed 2 as the shadow Minister at the time, and I understand why the Government want to have an upper hand on some of the planning decisions. However, we have seen what has happened with HS2, particularly in Yorkshire, in that we are not seeing a continuity. But a very suitable, alternative plan has been put forward by communities, which would have dealt with many of the challenges that Government were trying to wrestle with behind the scenes. That listening by a Government is important. We do not hear or see enough listening by Governments. We see a lot of telling, and actually, that is not what our communities want. They want respect and dignity.

The amendments provide an opportunity for the Government to really have a think. Earlier in the Bill, we were talking about new layers of authority, particularly with the county combined authorities, and giving them more responsibility. But if CCAs are created and do not have a real voice, what is the purpose of that additional tier of governance? Of course, planning is the most important thing that any authority deals with in building for the future and meeting community needs. I trust that the Minister has heard the deep cries from all of our communities across the House, and will give this issue some significant reflection in order to put us in a better place for a stronger planning system.

Photo of Marcus Jones Marcus Jones Minister of State (Department for Levelling Up, Housing and Communities) 4:00 pm, 12th July 2022

I thank hon. Members for their contributions on the amendments. It has been a somewhat lively debate. I will miss the conversations that I have had week on week with my hon. Friend the Member for Buckingham, but I am sure that those calls from me to him will now turn into calls from him to me as he pursues me, probably weekly if not on a more frequent basis.

The amendments, which aim to make the same change to clause 83—namely, to ensure that development plan policies always take precedence over national development management policies—come from the collective commitment of the hon. Members for Nottingham North and for Greenwich and Woolwich to support local democracy in planning. However, it is the Government’s view that it would be counterproductive to amend the Bill as proposed. Clause 83 reforms decision making, strengthens the role of the development plan, including local plans and neighbourhood plans, in practice. It states that the relevant decisions, for example, on planning applications will only be able to depart from the development plan where

“material considerations strongly indicate otherwise”.

It would no longer be enough for those other considerations merely to “indicate otherwise”, something that can be exploited to override local decisions. This will be the biggest change to the basis of planning decision making since the early 1990s, and will ensure local and neighbourhood plans have greater primacy.

Photo of Emma Lewell-Buck Emma Lewell-Buck Labour, South Shields

I am curious as to whether the Minister can give us an example of what will be designated a national development management policy?

Photo of Marcus Jones Marcus Jones Minister of State (Department for Levelling Up, Housing and Communities)

I am not in the position to give the hon. Lady that example today. As she knows, such policies are often developed through the process of making primary legislation, and then are developed beyond the process we have before us today. I take her comment.

As part of the reform, we are also introducing statutory national development management policies. Those policies would sit alongside those in local plans when relevant planning decisions are made, with clear statutory weight. National development management policies will be primarily those nationally important policies used for making decisions. The hon. Member for South Shields should note that a current example is green belt protection.

There are several reasons why we think national development management policies are an important and positive reform. First, they will make it easier for local authorities to produce their local plans. By dealing with universal planning considerations nationally and giving them the same weight as the plan, local authorities will no longer need to repeat those matters to ensure they have sufficient force.

Secondly, introducing national development management policies means that local plans can focus on matters of genuine local importance to communities—saving time and money for authorities, and making plans more locally relevant and easier to use. Thirdly, it will be easier for applicants to align their proposals with national and local policy requirements—something which we expect to be of particular benefit to small and medium-sized builders.

Fourthly, it will provide greater assurance that important policy safeguards that apply nationally, or to significant parts of England, such as protections for areas at risk of flooding, policy on climate change, and policies to protect the green belt, will be upheld with statutory weight and applied quickly across the country, including when any changes are made.

That brings me to the heart of the issue outlined by the hon. Member for Greenwich and Woolwich about the national development management policy taking precedence over local plans. It is extremely important to reiterate that where we have local plans that become very out of date, it is important that the protections set out in national policy continue to be reflected in the decisions.

Finally, this framework of basic national policies can guide relevant planning decisions if a local plan is significantly out of date and cannot be relied upon in certain respects. Introducing national development management policies and giving them statutory weight is, therefore, important to creating much greater clarity around the role of national policy in decisions. Increasing this clarity is crucial to reducing the number of planning appeals local authorities face, and therefore reducing the number of unanticipated developments communities face on their doorstep as a result. That point has been made a number of times this afternoon. That clarity also reduces the cost associated with those appeals, enabling local authorities to divert their resources to planning positively for their area. I think I can safely say that that is an outcome that we all want to deliver.

The amendment deals specifically with what to do in the event of a conflict between national development management policies and the development plan when a planning decision must be made in accordance with both. As I have indicated, I believe the current clause is a necessary safeguard in situations where plans are out of date and important national policies on the environment or other matters need to be reflected fully in decisions.

To explain that more fully, some local plans are woefully out of date. We heard one example in Committee this afternoon and there are a number of examples across the country where the plans, although not quite as out of date as the one mentioned by the hon. Member for York Central, have been out of date since the 1990s.

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Levelling Up, Housing, Communities and Local Government)

How does the Minister believe that this clause specifically will address the fact that there is not sufficient coverage of local plans across England? How will the provisions in the clause incentivise people to take up a local plan if they have not already done so?

Photo of Marcus Jones Marcus Jones Minister of State (Department for Levelling Up, Housing and Communities)

We have just discussed a clause that will compel local authorities to put in place an up-to-date local plan every five years. What we are discussing here is making sure that, where we get outliers and places with out-of-date local plans, green belt protection and other such things can be maintained through the national development management policies. This is a crucial point. We wish to use national policy to drive higher standards where those standards at the moment are not as they should be, especially on the environment and to tackle climate change. It is important that those policies can take precedence in the event of conflict with the out-of-date policies in plans.

I would nevertheless expect such conflicts to be limited in future, because we are making it easier to produce plans—we have discussed a number of situations today in which that would be the case—and because the Bill makes sure that new plans will be drawn up consistently with national policies, including the new national development management policies.

As I said at the outset, I appreciate the strength of feeling on this issue. Last week, the previous Secretary of State, my right hon. Friend Michael Gove, published his response to the letter from the Chair of the levelling-up Select Committee in which clarification was requested on this question. I have spoken to the new Secretary of State, Greg Clark, who took office this week. His view is the same as that expressed in the letter. We will provide a copy of that letter to members of the Committee.

We are also committed to providing more information about how we expect national development management policies to work in the future, which is why we plan to publish shortly the prospectus I referred to earlier, if not as articulately as I could have, so that we can look at our approach to the preparation of that prospectus. We will welcome views from hon. Members. With those assurances, I hope that the hon. Member for Greenwich and Woolwich will feel able to withdraw the amendment.

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Levelling Up, Housing, Communities and Local Government)

Given how long the Minister has been in post, I do not blame him, but the arguments he makes in defence of clause 83(2), and proposed new subsection (5C) in particular, are the same ones we have heard over many months. Frankly, I do not think they stack up. I note with interest the points he made about the new Secretary of State taking the exact same view. I do not think his line that it would be counterproductive to amend this aspect of the Bill will hold.

I do not intend to press amendment 86 to a vote, because we will almost certainly come back to this issue on Report, but I just ask the Minister to go away and satisfy himself that the powers in subsection (2) are appropriate and justified. Will he think through, as the hon. Member for Buckingham said, not only the implications for democratic control of planning, engagement and scrutiny of planning, and the impact on trust and confidence in the planning system, which we know is an issue, but the implications in terms of innovation, undermining devolution deals and the legal delays that I am certain will come if the Government try to use this power? They will have to think about this issue again, and we will certainly come back to it on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mark Hendrick Mark Hendrick Labour/Co-operative, Preston 4:15 pm, 12th July 2022

Does the Member who tabled amendment 57 wish to move it formally?

Photo of Greg Smith Greg Smith Conservative, Buckingham

I have heard the assurances that the Minister has given but agree with some of the reticence of the shadow Minister, so I urge my hon. Friend to consider these points very carefully over the summer. I will not press amendment 57 to a vote right now, but I underline the importance of getting this right for the whole Bill and its meaning.

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Levelling Up, Housing, Communities and Local Government)

I beg to move amendment 98, in clause 83, page 91, line 30, at end insert—

“, subject to subsection (5D).

(5D) But any conflict must be resolved in favour of the development plan in an area if—

(a) if, in relation to it, regulations under section 16 of the Levelling-up and Regeneration Act 2023 have been made to provide for the town and country planning function and the highways function and any functions exercisable under the Environment Act 2021 of a county council or a district council that is exercisable in relation to an area which is within a county combined authority area to be exercisable by the CCA in relation to the CCA’s area,

(b) if, in relation to it, regulations under section 17 of the Levelling-up and Regeneration Act 2023 have been made to provide for at least one function of another public body that is exercisable in relation to an area which is within a county combined authority area to be exercisable by the CCA in relation to the CCA’s area,

(c) it has a joint spatial development strategy, or

(d) it is in Greater London.”

This amendment would place limits on the primacy of national development management policies over the development plan where a Combined County Authority had been handed planning, highways, environmental powers and at least one function of another public body under a devolution deal, in areas covered by a joint spatial development strategy and in Greater London.

This is a probing amendment. Given that the Government have just declined to accept amendments 83 and 57, and reconfirmed their intention to have national development management policies override local development plans in the event of any conflict between them at the point of determination, amendment 98 is designed simply to try to elicit from the Government whether they will consider allowing any specific exemptions to that general principle.

The amendment would do so by specifying that any conflict between an NDMP and a local development plan at the point of determination must be resolved in favour of the latter in an area where a combined county authority has had key powers transferred to it under a devolution deal, where a joint spatial development strategy has been agreed, or in Greater London. The idea is that an exemption from the primacy of national policy in the form of NDMPs would be the reward, so to speak, for agreeing a devolution deal with the full panoply of powers available or for engaging in strategic planning by putting a spatial development strategy in place—or, it should be said, for taking part in a new joint spatial development strategy across authority boundaries.

Let me explain my reasoning further by using the example of an area where an SDS or a joint SDS might be taken forward. As the Minister will know, once a spatial development strategy is in place, it provides for a strategic framework for the development plan or plans, which should in theory supersede or take primacy over NDMPs that the Government might happen to bring forward.

While we remain of the view that no local development plan should be made subordinate to national planning policies in the form of NDMPs, if the Government are determined to ensure that they are—it sounded that way from the Minister’s comments in the previous debate—we believe that they should at least consider exempting from that centralising approach areas that have proactively taken on greater powers, including powers to plan strategically, so that they can use them to the full to reflect local priorities and innovate, having regard to national policy but not being unduly constrained by it.

On that basis, I hope that the Minister will give our amendment due consideration.

Photo of Marcus Jones Marcus Jones Minister of State (Department for Levelling Up, Housing and Communities)

I thank the hon. Member for his amendment 98, which relates to higher-tier authorities with planning powers. During the debate on amendments 86 and 57, I set out our case as to why it may be necessary for national development management policies to outweigh the development plan in the event of a conflict. Amendment 98 would prevent that from happening where there is a conflict in an area covered by a Mayor or a combined authority.

I understand that the argument behind the amendment is that it would support our efforts to promote devolution by exempting Mayors and combined authorities from any situation in which national development management policies might have precedence over their own. While I understand that argument, it is not one that we are able to agree with at this point. It makes complete sense for Mayors and combined authorities to use their strategic planning powers to make policies that support proper planning in their areas, but it does not follow that those should automatically outweigh national development management policies, given what those policies aim to do.

National development management policies will be nationally important policies, such as for the green belt or flood protection, as I have already mentioned. It remains important that those are not duplicated through strategic plans, which should restrict the chances of conflict occurring in the first place, especially where plans have been kept up to date. More details on what national development management policies could look like will be set out in the prospectus coming this summer, which will also indicate the scope for policies in plans to address matters that are locally important, or of strategic importance in the case of a Mayor or combined authority.

The other arguments made in relation to amendment 87 also apply here. There will be occasions when circumstances arise that mean the Government need to make an urgent change. That became apparent during the pandemic, when we had to act very quickly to protect temporarily closed theatres and live music venues from the threat of development. In those circumstances, it is right that national development management policy is able to override the development plan, even where there is a strategic plan-making body.

I hope that the hon. Member for Greenwich and Woolwich understands those reasons and will withdraw his amendment.

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Levelling Up, Housing, Communities and Local Government)

The Minister will appreciate that I am, naturally, disappointed that the Government will not countenance any exemption from the precedence that clause 83 affords to national development management policies, but I do not intend to press the amendment to a Division. The root of the problem is the powers in clause 83, rather than the specific issue raised by the amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Mark Hendrick Mark Hendrick Labour/Co-operative, Preston

With this it will be convenient to discuss that schedule 6 be the Sixth schedule to the Bill.

Photo of Marcus Jones Marcus Jones Minister of State (Department for Levelling Up, Housing and Communities)

On the basis that we have debated this matter at significant length, I commend clause 83 to the Committee.

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Levelling Up, Housing, Communities and Local Government)

I will be extremely brief because a Division is due in the main Chamber, but also because schedule 6 is largely a tidying-up exercise, amending the Town and Country Planning Act to add requirements for local planning authorities to have regard to material considerations in NDMPs when modifying or removing permission, granting outline permission, and enforcement and appeals.

However, reading the schedule prompted two questions in my mind. First, paragraph 12(b) to schedule 6 amends paragraph 8(2) to schedule 4B of the Town and Country Planning Act 1990 to insert paragraph (da), requiring neighbourhood development orders, which implement neighbourhood plans, to be in general conformity with NDMPs. Given that the Government are explicitly legislating in the Bill to ensure that neighbourhood development orders are consistent with NDMPs, can the Minister give the Committee a sense of what kind of national policies covered by an NDMP would have direct relevance to extremely local, sub-district plans, such that conformity with them needs to be required by the Bill?

Secondly, paragraph 15 to schedule 6 amends section 337(2) of the Greater London Authority Act 1999 to insert new paragraph (ca), which adds NDMPs to the list of matters that may require modification of the Mayor of London’s spatial development strategy prior to its publication. Given that the supposed thrust of the Bill is to enable greater devolution to regional authorities and leaders, could the Minister explain the rationale for making the London spatial development strategy subservient to centrally mandated policy?

Photo of Marcus Jones Marcus Jones Minister of State (Department for Levelling Up, Housing and Communities)

On the hon. Gentleman’s point about neighbourhood plans, as I have mentioned a number of times, a prospectus will be brought forward in the summer to explain how national development management policies may work. I urge him to wait and see those documents. When he sees the prospectus, he will no doubt provide a response. [Interruption.]

Photo of Darren Henry Darren Henry Conservative, Broxtowe

I am sorry, Sir Mark. I am trying to switch my phone off but I cannot.

Photo of Marcus Jones Marcus Jones Minister of State (Department for Levelling Up, Housing and Communities)

I reiterate the point that I made with respect to amendment 98. For the reasons I mentioned then, national development management policies will be nationally important policies, and like those for the green belt and flood protection, it remains important that they are not duplicated, so that we restrict the chances of conflict occurring in the first place, especially where the plans have not been kept up to date. My hon. Friend the Member for Buckingham in particular mentioned a number of situations in which planning decisions had been made and overturned, and clearly policies conflicting can quite often be the reason why that happens. It is therefore extremely important that we try to restrict the chances of such conflicts. With that, I commend clause 83 to the Committee.

Question put and agreed to.

Clause 83 accordingly ordered to stand part of the Bill.

Schedule 6 agreed to.

Ordered, That further consideration be now adjourned. —(Gareth Johnson.)

Adjourned till Thursday 14 July at half-past Eleven o’clock.

Written evidence reported to the House

LRB19 British Property Federation (further submission)

LRB20 Asylum Matters, Medical Justice and the Helen Bamber Foundation (joint submission)

LRB21 Linda Scarbro and others (submission from Linton-on-Ouse resident re: clause 97)

LRB22 Chartered Institute of Housing

LRB23 London Forum of Amenity and Civic Societies

LRB24 Professor Olga Matthias