Wednesday 6th September 2023
(7 months, 3 weeks ago)
Lords ChamberLevelling-up and Regeneration Act 2023 View all Levelling-up and Regeneration Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 142-VI(a) Amendments for Report (Supplementary to the Sixth Marshalled List) - (5 Sep 2023)
Lord Lansley
“Drop-in Permissions(1) The Secretary of State may, by regulations, make provision in relation to applications for planning permission in respect of land in England which is already the subject of an existing planning permission.(2) Regulations made under subsection (1) may enable a subsequent planning permission to vary an existing permission without rendering the existing planning permission void, if the local planning authority is satisfied that the existing planning permission is able to be completed as amended.(3) The power to make regulations under subsection (1) includes power to make—(a) consequential, supplementary, incidental, transitional or saving provision;(b) different provision for different purposes.”
Lord Lansley (Con)
My Lords, this group of amendments is diverse in its scope and purpose, but they all relate to the determination of planning applications. Amendments 217 and 219 are my responsibility, and I will introduce them first. Amendment 217 takes us back to a subject that we discussed very carefully during Committee. It is about the circumstances where a planning application is received in relation to a site on which planning consent has already been granted and where the new planning application is for the purpose of varying the intended development on that site.
In the past, before the Hillside judgment last November, the working practice was that, if such variation was not so substantial that it did not prevent the physical completion of the original application, such a new consent could be given and a variation made to the existing permission. I will not go on about all that, but if anyone wants to see it in detail, it is in the report of the Committee proceedings. I am very grateful to my noble friend and officials for the work that has been done and the advice that we have all received from the British Home Builders Federation and the British Property Federation.
There is a serious practical problem here, which is that where there is a large site to be built out for development, often parts of that site require a change to what was the originally intended development. That may be because, for example, it was going to be executive homes and it has to be sheltered housing, or a school may need to be moved from one place to another. In the past, this has generally been able to be done in a relatively pragmatic way. However, the conclusion of the Supreme Court judgment was that there was not the scope simply to vary existing applications: the existing application is what it is and, if it is to be changed, a new application has to be made. This is of course severely impacting negatively on the possibility of being able to proceed on large sites by giving options for and allocations of that site to developers.
It is generally acknowledged, and I think my noble friend and the Government agree, that there is a problem here, and it stems from the fact that what was the practice is now no longer supported by case law. What we need, therefore, is for planning law to adjust for that purpose. That is the point of my Amendment 217. However, if I can get the assurances I am seeking from my noble friend this evening, I would certainly not wish to press my amendment, which is something of a placeholder to try to get us to the right place.
In Clause 104, to which the amendment relates, which is titled “Minor variations in planning permission” and would more accurately be called “Variations in planning permission”, we need it to be well understood that, where in new Section 73B(5) it says that
“Planning permission may be granted in accordance with this section only if the local planning authority is satisfied that its effect will not be substantially different from that of the existing permission”,
the meaning of those words is sufficient to encompass changes or variations in the existing planning permission which are not incompatible with the original purpose of the overall planning permission—then it would be invalidated. But if it is not made invalid by the additional application, then it ought to be able to be varied by this. If that is not sufficient and does not quite get us far enough, I hope my noble friend will also agree that the Government will look at using, actively if necessarily, the general development order power in Section 59 of the Town and Country Planning Act to specify what local planning authorities should do if they receive a planning application in relation to a site where there is an existing permission and where that permission would need to be varied as a consequence of granting consent but is intended to be consistent with the overall purpose.
I could well understand it, and would accept it, if the Minister said that there is a difference here with outline planning permissions or permissions in principle that need to be varied, where it must be understood that there could be quite significant variations in those planning permissions at that stage. Clearly, a narrower, more precise definition will need to be used in relation to sites where full planning permission has been granted. But, in many of these developments, what happens in practice is you have outline planning permission, and then the full planning permission for parts of that site comes forward in phases. The sector could live with that perfectly well.
It is of the essence for this to be proceeded with relatively quickly. I hope my noble friend agrees. At the moment, the sector and planning authorities are living with case law that is making it very difficult for them to build out on large sites with large developments. We need that to be resolved quickly. I hope that my noble friend can say that they will come forward with their proposals, and consultation on guidance and/or regulations if necessary, as soon as they can.
Amendment 219 relates not to that clause but to the later Clause 107, where Ministers are proposing to take a power to decline applications, extending the power in circumstances where somebody making an application for planning permission to a planning authority has failed to begin or has not proceeded sufficiently quickly with the buildout of an existing planning permission in that authority’s area.
The first objection to this, which I am not pursuing, is that planning permissions are granted in relation to land, not to people, so acting in relation to a planning application based on the circumstances of the applicant is not really in keeping with the structure of planning law. But let us put that aside for a moment and accept that, in effect, the Government are looking to have a stick with which planning authorities can beat those developers or others who are failing to build out at the pace they wish them to. That is fair enough. But then, in the clause, in addition to that, we have not just a person who has made an application for development in the area but one who has a connection of a prescribed description with the development to which the earlier application related. Who are these people?
I am afraid that my purpose in putting this amendment down was just to say that this is going too far. We do not know what the specified descriptions are, how far they could extend, or what sorts of people we are talking about. They could extend to large developers who are, in effect, banned by a local authority from undertaking any activity in that area—and some local planning authorities are quite large—or the shareholders in or partners of those companies, or people who have been involved in a development with them in some other place across the country. Where does this end? The Government need to act quickly to establish that the parameters of the connection they are talking about, if they have to have it at all, are made extremely clear and very limited, otherwise I worry that it might stretch too far.
There are many other important issues in this group, but I beg to move.
Lord Carrington (CB)
My Lords, I declare my interests in farming and land ownership, as set out in the register.
The reason for retabling Amendment 221 is to question the Minister on her response in Committee. I thoroughly understand that permissions in principle are currently used only in respect of housing developments. She explained that our National Planning Policy Framework strongly supports policies and decisions to promote sustainable development in rural areas and support a prosperous rural economy. She confirmed that local plans and neighbourhood plans should enable the development and diversification of agriculture and other land-based rural businesses.
However, many question the noble Baroness’s rather negative assessment of the amendment’s utility in creating rural economic development. I would be most grateful if she could expand on why it is unnecessary and would not work. My point is that although the National Planning Policy Framework strongly supports policies and decisions to promote sustainable development in rural areas, the planning system is so underresourced that it is not filtering through into local decision-making. It therefore seems highly desirable that the permission in principle route is extended to rural economic development and not just housing.
Let me reiterate the purpose and advantages of permissions in principle in the rural business context. The rural economy is 19% less productive than the national average, and for this gap to be closed, the countryside needs more rural economic development so that it can grow sustainably. Businesses are put off submitting planning applications to grow their businesses because of the risk of putting capital up front with an uncertain outcome. Planning applications are costly, risky and take a lot of time to submit.
The permission in principle route splits a planning application into two stages: the first stage is high level and sets out the principle of the development to be approved by the planners. The second stage, which involves the cost, is to confirm the technical details. Extending the permission in principle to rural economic development reduces the resources required to process applications and creates certainty as to what is required at the technical stage.
In her response in Committee, the Minister agreed to take the issue back and consider with officials how we can strengthen economic development in those rural areas. Perhaps the new discussion of this amendment will encourage her further to grant this request. If more applications were submitted and approved for rural economic development, businesses would grow, creating more employment opportunities and adding more to local rural economies. This sounds like an easy win in the levelling-up process.
Lord Goldsmith of Richmond Park (Con)
My Lords, before making a point about the amendment, I acknowledge that my noble friend on the Front Bench rightly feels a little blindsided by it. I apologise to her for that. I am a newbie on the Back Benches and I clearly have much to learn about the process here. In my defence, I shared my plans and the wording of the amendment with my friend the Secretary of State who, I am pleased to say, was excited by much of the contents, although not all of it.
I will be brief because this proposal is relatively simple and, in many respects, speaks for itself. Before I describe it, I will heap praise and thanks on a campaigner who is simply formidable. I am pleased that she is in the Gallery today, probably holding a swift box. Hannah Bourne-Taylor has single-handedly made what for many people appears to be a niche concern into a national campaign—not least by walking naked through London painted as a swift and causing quite a stir, as noble Lords can imagine. She has turned this into a national cause. It is because of her that this amendment exists.
Back in 2002 the British Trust for Ornithology cited the loss of cavity nesting sites as the key factor in the decline of cavity-nesting urban birds. Since then, four species—house martins, starlings, swifts and house sparrows—have been added to the dreaded red list of species of particular concern that, crudely speaking, face extinction. Worst hit among them are house martins. When I was preparing my notes, I was going to say that there has been a 37% decline, but I have since discovered that the figure is even worse at 50%. Swifts too have suffered horrifically; their breeding population declined by 60% between 1995 and 2020. That number continues to sink.
Despite broad agreement, not just in this place or the other place but across the whole country, that the UK—one of the most nature-depleted countries on the planet—requires urgent action or to introduce emergency measures to turn around these trends, the reality is that nothing of any real substance has yet been done. The problem, as noble Lords no doubt know well, is that sites for cavity-nesting creatures such as swifts have simply been lost. It is not because of evil or malign intent but because of repairs, house modernisation and even insulation—something of which we all in this House would like to see much more.
This simple proposal to include swift bricks in new builds is key. It is not just about providing a supporting hand to a species in trouble; it is critical, indeed essential. Modern new-build homes are simply not designed to accommodate nature. Swifts in particular rely completely on cavities, as noble Lords know. Without those, there are no safe or permanent nesting sites for them in Britain. Without manmade cavities in this sense, those birds have no future in this country. It is crazy, and something I learned only recently, that the simple swift brick is not even included in the biodiversity net gains metric.
The amendment that we are here to discuss today could not be much simpler. The swift brick is a zero-maintenance solution. It is just a brick in a wall that can be added to a building as any other brick could. For a refurb or a new build, it is cheap; it costs £30 or thereabouts. We know that they work because, wherever they have been tried and installed, they have worked. Surveys conducted on, for example, the Duchy estates, where swift bricks have been installed in numerous buildings, have resulted in a staggering 96% occupancy rate. Even that number continues to grow.
Obviously, not all the bricks are used by swifts. I have heard that as one of the counterarguments—“What about other creatures using these boxes?”—to which my answer is, “So what?”. Heaven forbid that a house sparrow might decide to use one of these swift boxes. Who would not be filled with joy at the prospect? It just seems to me to be such a non-argument as to almost not merit discussion.
If this amendment is adopted—I really beseech colleagues to support it—and it becomes national policy to ensure installation of these magical, simple, cheap bricks in all new homes, it will not only help counter the tragic loss of cavity-nesting birds but directly help the Government themselves meet what are, let us remember, legally binding targets to halt biodiversity loss by 2030. This measure has unanimous support—not all measures do—from ornithologists, all of whom agree and have gone to great lengths to explain that there is no downside.
By the way, swifts do not eat vegetation; they eat insects. They particularly enjoy mosquitoes and eat mountainous volumes of them, so there is yet another bonus to encouraging swifts in and around our homes. I am told that they also do not leave droppings; there is a reason for that, which I will not go into. I am sure that the expert up in the Gallery will know, but they do not leave droppings underneath their nest boxes. They tidy up—I will tell noble Lords what they do; they eat them, I am afraid, probably to recycle the mineral content. I do not know why, but for whatever reason they remove them. They are very tidy, conscientious and thoughtful creatures.
This amendment is also flexible for developers. Those I have heard from are all supportive. One major housebuilder, Thakeham, has actively appealed for an industry-wide commitment. Very recently the Irish Citizens’ Assembly on Biodiversity Loss voted to include swift bricks in all new builds. In the Netherlands, swift bricks are already installed as a mitigation measure.
There have been suggestions, and I understand where they have come from, that this should be a voluntary measure. I get that; no one wants excessive bureaucracy and mandates. But I am afraid we know that this has not worked. It is not through lack of caring: who does not want to see swifts flying in and around—maybe not in—their homes and gardens? Who does not feel better, frankly, when they have greater proximity to nature?
In fact, a petition that was initiated by Hannah in the Gallery attracted 110,000 signatures—
Lord Evans of Rainow (Con)
My Lords, noble Lords should not refer to people in the Gallery.
Lord Goldsmith of Richmond Park (Con)
As I said, I am a newbie on the Back Benches and that is yet another rule I have learned. I will cease referring to the person in the Gallery. But 110,000 signatures were collected by the person in the Gallery. I think that is pretty impressive, given the subject matter we are talking about.
National legislation is necessary because of the urgency of the situation. We have debated the issue over and over again; we understand that this country is in the midst of a biodiversity collapse. National legislation is necessary because nowhere near enough swift boxes have been installed, despite swift bricks being nationally promoted since 2019, including in guidance in the National Planning Policy Framework. That is not to diss the NPPF; it is a valuable piece of literature, but it has been largely ignored in the context of the issue we are discussing here today. A paltry 20,000 boxes have been installed at best—that is an optimistic assessment. District councillors and the vice-chair of the Association of Local Government Ecologists have all been clear that the current situation is not enough. We are simply not seeing take-up of these swift boxes. Of 455 local planning authorities in England, just nine have planning conditions around swift boxes, so the voluntary approach does not work.
We are asking here for something so small, so simple and so inexpensive, but something that will have a gigantic impact on these irreplaceable, iconic creatures. I really encourage the Government to think again about their opposition to a measure that is wildly popular and would do so much good for this country.
Lord Randall of Uxbridge (Con)
My Lords, I support my noble friend Lord Goldsmith, and I am delighted to have been a co-signatory of his amendment along with my noble friend Lord Blencathra.
The hour is late and, like the swifts, most of the Benches have migrated somewhere else, possibly to cavities unknown. The people remaining in the Chamber probably do not need me to tell them about the marvels of swifts so, whereas I was going to spend a lot of time talking about this iconic species and the fact that the sound of swifts overhead is always in dramas when it is summertime, whether it is dubbed or recorded.
It is not just about a lack of cavities. The reduction in insects and everything else means that they need help. I say to my noble friend on the Front Bench that I admire the gamut of what we have to deal with in this Bill and she is doing admirably—in fact, more than admirably: magnificently. It is just marvellous. I do not see how a Minister can have so much knowledge and briefing about all these different subjects.
However, I say to her that Gibraltar has done this very successfully for several years, if not longer, and it is something that we should be looking at seriously. I do not believe the Government are opposed to it; I think there is that sort of bureaucratic looping in to which we should probably, as my noble friend Lord Goldsmith alluded to, have given more time.
I am sorry that we do not have more time today to discuss this issue and see where we are going, but I urge the Government to look at it. I have had a briefing from house builders today with some marvellous ideas, so they are sort of onside. This is something that we can really get behind because it would not cost the Government anything. It would just show that this country and this Government are nature-friendly, and I would welcome any comments from the Front Bench to that effect.
Lord Northbrook (Con)
My Lords, I am not quite sure why the Control of Pollution Act is put in the same group as swifts. Anyway, my Amendment 282 is in this group.
My local authority, the Royal Borough of Kensington and Chelsea, unlike some local planning authorities, refuses to impose by planning condition any requirement on developers to mitigate noise, dust and vibration during construction work in accordance with an improved construction method statement that the developer is routinely obliged to submit as part of its planning application for a major development. Instead, with respect to such developments, it promises to encourage developers to submit applications for prior consent under Section 61 of the Control of Pollution Act 1974, failing which it promises that the council will issue a Section 60 notice.
These consents and notices create legal obligations on the developers but the Royal Borough of Kensington and Chelsea can take action only if a breach has been notified. However, the Royal Borough of Kensington and Chelsea does not publish the consents and notices anywhere on its website or even the fact that a notice has been issued or a consent agreed to. As a result, residents are not aware whether or when a notice has been issued, what measures a developer has promised to take, what the obligations are under the notice or whether an obligation has been breached. They therefore cannot notify the Royal Borough of Kensington and Chelsea that a breach has occurred. As a result, the system is rendered useless.
My proposed solution is simply that local planning authorities should be obliged to publish all such consents and notices on their planning websites promptly upon issue and not remove them. In the other place, the Minister’s response was that Section 69 of the Town and Country Planning Act 1990 requires local planning authorities to keep a register of applications. The Town and Country Planning (Development Management Procedure) (England) Order 2015 requires that these registers contain parts 3 and 4 containing details of local development orders and neighbourhood development orders respectively. Part 3, for instance, must include copies of any draft development orders that have been prepared but not adopted by the local planning authority and any adopted local development orders.
The Minister’s reply in the other place completely missed the point. Notices issued under Section 60 and consents given under Section 61 of the Control of Pollution Act are not planning applications or local or neighbourhood development orders. The reply in this place from the noble Baroness, Lady Bloomfield, in Committee showed that she did not seem to understand what the amendment was seeking to achieve or why. She said:
“Legislating for information to be published in a specific way would remove their ability to make decisions at local level, for little additional benefit”.
This is incorrect. It would not affect in any way local authorities’ ability to make decisions. She concluded, without explanation, that
“the Government believe the proposed amendment is unnecessary and cannot support it”.
On being pressed by my noble friend Lord Bellingham, she replied:
“Since this is a Defra lead, I will commit to write to my noble friend and share the answer with the rest of the Committee”.—[Official Report, 18/4/23; col. 577.]
She did not do so.
When an LPA imposes a planning condition to require compliance with an approved construction method statement, it is obliged by law to publish on its planning website the text of the condition and the fact that the condition has been imposed. No one argues that this removes or affects its ability to make a decision, nor have I ever seen it argued that there are any circumstances in which it would be justifiable to keep the imposition of a condition or its text secret. Measures whereby the developer promises to mitigate noise and disturbance during construction do not touch on privacy or national security. By analogy, I cannot think of any circumstances in which it would be justifiable for a local planning authority to keep the issue of a Section 60/61 notice or consent, or its contents, secret. The Government have not explained why keeping it secret might be justifiable, and that is why I tabled the amendment on Report.
Lord Blencathra (Con)
My Lords, I declare my interests set out in the register. It was a delight to listen to my noble friends Lord Goldsmith and Lord Randall describe the importance of swift bricks to the preservation of this species and to stopping their decline. I am delighted to be able to support it.
Installing these bricks is an absolute no-brainer. They cost between £25 and £35. Last year, the big four housebuilders—just four of them, Barratt, Berkeley, Persimmon and Bellway—made profits of £2.749 billion. I am sure they can afford a £25 brick for the 300,000 homes they might or might not manage to build next year. Installing the bricks is a no-brainer.
I learned today—I hope, wrongly—that the Government may be opposed to this measure. That, too, would be a no-brainer if they are. I wonder where the opposition has come from. I hope they have not been lobbied by the Home Builders Federation—the organisation which lied, lied and lied again about the Government blocking the building of 145,000 homes because of nutrient neutrality. That was totally untrue. Of course, housebuilders are sitting on more than 1 million planning applications and are land-banking until they can release them gradually and make maximum profits. If that is legitimate, so be it, but let us not let them attack the Government for holding up housebuilding when it is not the Government doing it.
I understand that in the Commons the Government said they could not mandate this nationally and it must be left to local voluntary discretion. Housebuilding left to local voluntary discretion? You cannot build a house anywhere in the country without the Government almost dictating the colour of the curtains. Look at the national regulations on every aspect of housebuilding: electrics; plumbing; the type of cement; the way the damp-proof course is laid; the tiles and insulation. Nearly every mortal thing of importance in the house—the width of the doorways, the bannisters, the boilers you may install after 2030—is dictated by central government, and rightly so. I am not complaining about that, but I am complaining about the apparent hypocrisy if the Government I support are now saying “Oh, we can’t order every house to have a little brick installed because that is taking national government interference too far”. If that is the case, I think that is nonsense.
I know that some Government Ministers have already installed these bricks. They have done it voluntarily, without guidance. If it is good enough for some Ministers, quite rightly, to save swifts out of their own volition, then it should be quite right that the Government support a measure to impose this nationally.
If it is the case that the Government are opposed to this, I would really like to know where that opposition came from in government. If it is true then some idiot—an adviser, spad or civil servant, but hopefully not a Minister—has decided to oppose this. I exempt my noble friend the Minister, as this is an environmental matter and nothing to do with her brief, but why in the name of God should a Conservative Government oppose this?
In the first three years of this Government, under Michael Gove and George Eustice in environment, we made the biggest strides forward in environmental and nature protection that this country has ever seen, with the 25-year plan and the Environment Act. Now we could lose that good reputation because of a trivial thing if we oppose installing a 25-quid brick in a house wall to save swifts.
Baroness Bennett of Manor Castle (GP)
My Lords, I speak in support of Amendment 221A on swift bricks, as your Lordships might expect. My noble friend Lady Jones of Moulsecoomb has, in the terms of the noble Lord, Lord Randall, flown back from a nearby cavity just to be here for this debate, but she could not be here at the start, so your Lordships get me instead.
This is something that I have been talking about. I was on TalkTV, talking to Julia Hartley-Brewer about restoring biodiversity. I happened to mention swift bricks in that discussion and the presenter said in response, “Isn’t that just a small thing? Don’t we have to do much more?”. Of course that is true, but, if you are a swift then a swift brick is not a small thing. The fact that you need somewhere to make your home and raise your young is a matter of life and death. As the noble Lord, Lord Goldsmith, said, there has been a 60% decline in the population in the last 25 years. These beautiful and utterly amazing creations of nature depend on having a place to rest and raise their young, and we are closing those spaces off.
The noble Lord, Lord Goldsmith, also made an important point about human well-being—how much we all benefit from having swifts around and what a wonderful addition they are to our environment. Think about young people, such as the toddler who says, “What’s that?”, and has it explained so that they learn more. That is crucial.
The state of our biodiversity is absolutely parlous. We are one of the worst corners of this planet for nature. As we heard passionately from the Benches opposite, surely the Government cannot oppose this—they cannot oppose what was said by MPs in the other place and is being said by so many petitioners. Please let us have some common sense here.
Lord Lucas (Con)
My Lords, I too wish to support Amendment 221A. Swifts, by their nature, nest in holes in trees but took advantage of the advent of human buildings to transfer their allegiance in our direction. Now in our towns, any tree with a hole in it is immediately felled as a danger to people and we are blocking up the places where swifts used to nest in buildings. We need to do something about that—it is absolutely our obligation.
We also have to deal with the quantity of insects, so bringing 30 by 30 into towns is really important too, but swift bricks seem to me an absolutely symbolic act. We would be saying that we will start to make room for nature around us and in our habitations. It would involve people, as Dasgupta wished, in direct contact with nature, rather than nature being somewhere else where they do not have to go if they do not want to. That makes this a really important symbolic advance.
I like the amendment: it is just that you put in a swift brick. There are no downsides, no penalties and no rules. You could fill it with cement a year later and no one is going to prosecute you. I have got scaffolding on my house at the moment, so we are putting up some swift boxes because it is not suitable for swift bricks. The best supplier I found said, “If you’re buying a swift box, why don’t you put a bat box on the back?”. I looked up the regulations as to what would happen if a bat actually occupied that box, and it is ridiculous. It would be tens of thousands of pounds off the value of the house, and all the regulations mean that you cannot do anything without bringing in a bat person if you have bats in a bat box. I could not paint it or shift it; I could not paint around it; I could not make noise next to it. The contrast between bat regulation and this proposal on swifts is stark. I am not putting in a bat box—I am not bats—but I am putting in swift boxes.
Baroness Hoey (Non-Afl)
My Lords, I support the amendment from the noble Lord, Lord Goldsmith. I was very sorry when he resigned from his position because I thought he was an extremely good Minister. In a sense, if this amendment goes through—and I very much hope it will, and that the Government are listening tonight and texting various senior people to say that we need to support this—then I think it would be a really good legacy for the ex-Minister. He has come here tonight to move this amendment, which he would not have been able to do as Minister.
As the noble Lord, Lord Blencathra, said, it is common sense, and we begin to think why nobody thought of it before. Why have we not done it before? Perhaps the noble Lord has suggested it in the past, but it is a useful, common-sense approach to something that should be worrying us all.
As a young child, I grew up loving birdwatching—watching swifts and all kinds of birds. Knowing how much joy and pleasure that gave to me, my concern is that we could have a future generation growing up who would not see birds in the same way. I say to the Minister and the Front Bench that sometimes you have to accept that you have made the wrong decision; this is an opportunity now to put that right.
Baroness Pinnock (LD)
My Lords, before I make a few comments about swift bricks, I thought I would address my remarks to the two amendments in the name of the noble Lord, Lord Lansley. He is making a case for large sites that take a number of years to build out and where, because of a change in circumstances, there may need to be a substantial change in the nature of the remainder of the site.
I have a bit of sympathy with that amendment, in that the principle has been agreed for developing the site. The question the noble Lord, Lord Lansley, is asking is whether it then matters if what goes on in the rest of the site does not comply entirely with the original planning consent. I then thought about the practical implications of his suggestion. For instance, if it changed from large executive four-bed properties to a higher density housing development for starter homes and so on for families, that would have potential implications for school places. They would not be funded under the planning conditions of the original application where a Section 106 agreement or an agreement under CIL would have enabled funding to be made available for school places, health facilities, play areas or transport requirements. Although I have sympathy with the approach that he has taken, there needs to be a new application if there is a substantial change. I will listen carefully to what the Minister says in response.
On buildout, I get frustrated by developers starting a site but not proceeding to complete it in a timely way. There is nothing worse in a community than seeing a site that has been started but not finished. It will not be like this now, but there was a fairly notorious one in the area of West Yorkshire where I live: the planning consent was derived in the 1940s and the first earth movements were made and tranches dug, but nothing substantial happened on that site until the 1990s. So I encourage buildout and, again, it would be good to hear what the Minister says about it.
That leads me to swift bricks—very swiftly, as one might say. I have an interest, as a member of the Royal Society for the Protection of Birds. Having said that, noble Lords will be able to tell that I favour and love watching birds, and I visit the RSPB sites as often as I can, because it is a joy. Over the years, I have seen a decline. Swifts are summer migrants, as everyone will know. I always look forward to seeing swallows and house martins when I am out delivering for the May elections—that is when I see my first swallow or swift. If it is a joy for me, it is a joy for many other people.
So swift bricks and nesting sites that have been lost, and swift bricks being an answer to the loss of those nesting sites, is important, and there has been a passionate argument in favour of the amendment in the name of the noble Lord, Lord Goldsmith. Obviously I obviously support swift bricks—who would not? I remember watching a “Countryfile” programme about them on the BBC, and about an individual, whose name I obviously do not remember, who made thousands of these swift bricks—perhaps they were swift boxes—because of his passion for that bird. So let us hear what the Government have to say; it is over to them to make a decision.
My final point is on Amendment 244 in the name of the noble Baroness, Lady Taylor of Stevenage, which would reduce barriers for SME builders to get contracts and to be part of the development process in localities. That has to be positive for the economy and local businesses. So I will support the amendment when the noble Baroness moves it, and I urge the Government to accept it.
Baroness Taylor of Stevenage (Lab)
My Lords, I will speak to my Amendment 244 in this group and I will then make brief comments on the other amendments. Amendment 244 is designed to cover an issue that arises almost at the intersection of planning and procurement. It can be the case that, where local authorities undertake major development, the nature of the planning system is such that the subsequent tender process will be enacted only for the totality of the development. Of course, the major contractors can subcontract works out, but this process does not always accrue maximum benefit to the local economy. Our amendment aims to ensure that whatever can be done at the stage of granting planning permission is done, to enable SME participation in, and engagement with, those contracts being achieved.
Amendment 217, from the noble Lord, Lord Lansley, applies a provision for “drop-in permissions”. We note that this is an acknowledged problem that may or may not require an amendment to planning law. I absolutely take the good point made by the noble Baroness, Lady Pinnock, about the provision of infrastructure where there is a drop-in permission, and we look forward to hearing the Minister’s view on whether the existing wording is sufficient to enable the necessary change to unblock buildouts on large sites.
In relation to Amendment 219, proposed by the noble Lord, Lord Lansley, we would of course support refusing permissions to those who have not made buildout applications previously; that is a welcome change. We greatly sympathise with the noble Lord’s point that doing this to someone with an undefined connection with the previous applicant is way too unspecific in terms of planning law, and who that undefined connection would be. We agree that this needs to be either tightened up or taken out altogether, because it could have unintended consequences if it is left in the Bill as it is.
Amendment 221, proposed by the noble Lord, Lord Carrington, recommends splitting planning applications into two stages for the purpose of encouraging rural economic development. We fully support the notion that anything that can be done within the planning system to encourage rural economic development should be done. But it is difficult to see how, in practical terms, a two-stage permission would work. There is already very strong provision and encouragement in the planning system for outline permissions to be submitted and then followed by detailed permissions for major developments. This is common practice, and I am sure rural areas are not excluded. I wonder whether that would be the type of process, or if there are things I am missing in the noble Lord’s amendment.
We were delighted to see Amendment 221A, proposed by noble Lord, Lord Goldsmith, relating to the provision of swift bricks. We very much enjoyed his enthusiastic and passionate advocacy in his introduction, and all speeches made by noble Lords in favour of this. The noble Lord’s amendment follows extensive public interest in introducing this step, which led to the public petition debate to which the noble Lord referred, and to very strong cross-party support. We note also that the Wildlife and Countryside Link is in favour of this measure, as are many recognised experts.
We believe that specifically including swift bricks as a measure in the Bill, to be incorporated in planning law, is justified because of the unique nature of these precious birds’ nesting habits. They add to the biodiversity of urban areas, and I am particularly keen that we support that. I grew up as a townie and the swifts and house martins were a real feature of my childhood growing up in a town. Their decline has been very visible and sad to see. If there is anything we can do to either halt that decline or hopefully turn it around, we should certainly do so. There is definitely a clear and present threat to these species. We hope the Government will accept this relatively a small step, which could make a world of difference to protecting our swift population, and that it will not be necessary for the noble Lord, Lord Goldsmith, to divide the House—but I hope he knows he has our full support in this amendment.
Amendment 282, in the name of the noble Lords, Lord Northbrook and Lord Bellingham, may relate to issues the Minister referred to in Committee. We comment only that, while we accept that notices published on local authority websites would usually be appropriate, of course there are other ways of drawing the public’s and stakeholders’ attention. We have some concerns about stating that anything must remain permanently on a website, but we understand his point.
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)
My Lords, Amendment 217, tabled by my noble friend Lord Lansley, would allow regulations to permit variations to an existing permission, without rendering that permission void. We recognise that there is concern in the sector about the impact of recent case law, particularly for large-scale phased development. This is an issue which we have looked at very carefully.
Clause 104 already introduces a new, more flexible route to vary permissions: Section 73B, where the substantial difference test can cover notable material changes. To assist the understanding of the new provision, we propose to amend the headings in the clause to make this clearer and avoid misapprehension. Existing powers in the Town and Country Planning Act 1990 would allow us to deal with this issue through secondary legislation, so we do not consider that a further power would be required. Instead, we propose to engage and consult the sector as part of the implementation of Section 73B and, if further action were needed, we would consider the use of our existing powers if warranted. I hope my noble friend is sufficiently reassured not to press his amendment on this.
Lord Lansley (Con)
My Lords, in view of the lateness of the hour, I know that noble Lords will forgive me if I do not attempt to respond to the debate on several issues. I thank my noble friend for what she had to say about Amendment 217 and the actions that the Government will consider, and I look forward, if I may, to supporting my noble friend in actioning those. In view of her positive remarks, I beg leave to withdraw Amendment 217.
““Agent of Change”: integration of new development with existing businesses and facilities(1) In this section—“agent of change principle” means the principle requiring planning policies and decisions to ensure that new development can be integrated effectively with existing businesses and community facilities so that those businesses and facilities do not have unreasonable restrictions placed on them as a result of developments permitted after they were established;“development” has the same meaning as in section 55 of TCPA 1990 (meaning of “development” and “new development”);“licensing functions” has the same meaning as in section 4(1) of the Licensing Act 2003 (general duties of licensing authorities);“provision of regulated entertainment” has the same meaning as in Schedule 1 to the Licensing Act 2003 (provision of regulated entertainment);“relevant authority” means a relevant planning authority within the meaning of section 84 of this Act, or a licensing authority within the meaning of section 3 of the Licensing Act 2003 (licensing authorities).(2) In exercising any functions under TCPA 1990 or any licensing functions concerning development which is or is likely to be affected by an existing business or facility, a relevant authority shall have special regard to the agent of change principle.(3) An application for development within the vicinity of any premises licensed for the provision of regulated entertainment shall contain, in addition to any relevant requirements of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (S.I. 2015/595), a noise impact assessment.(4) In determining whether noise emitted by or from an existing business or community facility constitutes a nuisance to a residential development, the decision-maker shall have regard to—(a) the chronology of the introduction of the relevant noise source and the residential development, and(b) what steps have been taken by the developer to mitigate the entry of noise from the existing business or facility to the residential development.”
Baroness McIntosh of Pickering (Con)
My Lords, I am delighted to move Amendment 220 in my name and in the names of the noble Baroness, Lady Henig, and the noble Lord, Lord Foster of Bath. I thank them both formally for co-signing it.
The purpose of bringing forward the amendment at this stage is to seek clarification and an assurance from my noble friend the Minister about remarks that she made in her summing up on the amendment in Committee. If I receive the reassurance that I am seeking, I shall be reluctant to press the amendment to a vote, particularly at this late hour. I am sure my noble friend realises that the hopes of the hospitality sector and, in particular, the night-time economy rest on her shoulders this evening.
I am proud of the work done by both the Select Committee on the Licensing Act 2003 and by the follow-up post-legislative scrutiny committee. One of our main conclusions in those two reports chimes with the thrust of the Bill before us and in particular Amendment 220, namely, on the agent of change principle. It is fair to say that modern planning policies, both local and national, encourage regeneration of urban centres and the reuse of brownfield sites—previously developed land—which preserves our greenfield countryside sites, including the green belt, which we recognise is a diminishing resource.
The night-time economy is a very important part of the national economy. I remind the House of how large this sector is. In preparation for this evening’s debate, I am delighted to have had a briefing from UKHospitality, which is the authoritative voice for more than 740 companies, operating in around 100,000 venues in a sector that, prior to Covid, employed 3.2 million people. My noble friend will appreciate that many of these hospitality businesses—pubs, dedicated music venues, restaurants, nightclubs and many others—utilise both live and recorded music, which is important for consumer pleasure, satisfaction, cultural benefits and for many other reasons.
It is fair to say that, so far, the agent of change principle is represented only in policy. It appears in paragraph 187 of the National Planning Policy Framework and, in virtually identical terms, in paragraph 14.66 of the Secretary of State’s guidance under Section 182 of the Licensing Act 2003. The same definition of “agent of change” is given there as in the proposed new clause which I set out this evening. In my view, we need to put those protections on a statutory basis in primary legislation, and this is the ideal opportunity to do so. We need to spell out that developers and decision-makers should have statutory duties in primary legislation to protect heritage assets in any development decision.
I agree with the view of the industry that the agent of change principle needs to have more legislative teeth. Amendment 220 seeks to do this by ensuring that licensing and planning authorities should have special regard to the agent of change principle, that developers must undertake a noise assessment and that authorities should consider such assessments and the plans in place by the developer to mitigate any noise issues ahead of the granting of approval for new developments.
The weakness of the system at the moment is that, in the first place, the current policy—being purely policy—is, by its very nature, ambiguous. Secondly, we need to secure a planning balance, which lies at the very heart of the planning procedure. I think we have accepted that planning and licensing policies compete with each other in a balancing exercise, and we need greater clarity. Thirdly, this should be a mandatory requirement, not just a policy requirement that can be ignored, as is the case currently.
Baroness Pinnock (LD)
My Lords, I thank the noble Baroness, Lady McIntosh, for raising what is often a bone of contention among residents of new properties where those properties have been built adjacent to businesses, often hospitality businesses. They are the latecomers. but they suddenly expect the business to comply with their requirements and not the other way round.
I will give one example that may illustrate the point made by the noble Baroness, Lady McIntosh. Near where I live, there is a long-standing working men’s club with space. Some new properties were built on the land adjacent to the club’s outdoor area. The club decided that, in order to increase its income, it would use the outdoor space as a pub garden. This is in Yorkshire where pub gardens do not get used all year round. The use would have been intermittent, let us say.
However, the residents of the new properties raised such a fuss about it that the working men’s club was forced to remove the tables and chairs—it did not have planning consent or something. As a result, in the end, a couple of years later the working men’s club closed. So I have a lot of sympathy with what the noble Baroness, Lady McIntosh, has said.
It is not just about places of hospitality but also existing business use and leisure facilities—particularly where flood-lights are used at night, on grass areas for football or whatever—that the complaints come. It would be good to hear what the Minister has to say in response to what is a very practical amendment from the noble Baroness, Lady McIntosh.
Baroness Hayman of Ullock (Lab)
My Lords, this has been an interesting if short discussion which picks up on much of the debate that we had during Committee. I thank the noble Baroness, Lady McIntosh, for bringing this back to us again today.
One thing that came across very clearly when we debated this in Committee was that it really is time to review the status and look at the situation. It is important that we return to this. As the noble Baroness, Lady McIntosh, has said, now and previously, we have got the change of use from office to residential space in town centres, we have the problem of many empty town centre premises, and there have been a lot of changes on our high streets and in our towns in ways that we have not seen before. These challenges are particularly acute for the night-time economy.
The agent of change principle has been with us for some years. This is why it is important that we use this Bill to ensure that it is fit for purpose and doing what we need it to do. As we have heard, it is in the National Planning Policy Framework, but does the licensing guidance, as the noble Baroness said, reflect the principles of the NPPF itself? The NPPF needs to be fit for purpose, as well as the agent of change principle that sits within it.
I asked at Committee and would like to ask again: is the NPPF, when we get to see it, going to reflect the likely focus of future planning decisions on this? How is that all going to be taken into account? This is genuinely an opportunity to enshrine this principle in legislation and get it right. It needs to be fit for purpose and it needs to do what it is supposed to do: to protect both sides of the discussion and debate when you have change of use coming forward. As the noble Baronesses, Lady McIntosh and Lady Pinnock, said, we need to get this right and it has to have teeth—I think that was the expression that the noble Baroness, Lady McIntosh, used. We completely support her request for clarification on the legislative change referred to by the Minister in Committee and hope that we can move forward on this issue.
Baroness Scott of Bybrook (Con)
My Lords, Amendment 220 in the name of my noble friend Lady McIntosh of Pickering tackles the important agent of change principle in planning and licensing. There was substantial discussion around this topic during Committee, a lot of it setting out the important conclusions of the House of Lords Liaison Committee follow-up report from July 2022. This built on the post-legislative scrutiny by the House of Lords Select Committee on the Licensing Act 2003. I thank the committee for its work and will briefly summarise how the Government are meeting the aspirations of that committee.
First, the committee’s report called for licensing regime guidance to be updated to reflect the agent of change policy in the National Planning Policy Framework. This is why, in December 2022, the Home Office published a revised version of its guidance made under Section 182 of the Licensing Act 2003, cross-referencing relevant sections of the National Planning Policy Framework for the first time. The Government have therefore delivered on this recommendation.
Secondly, the committee set out that it believes that guidance does not go far enough and that the Government should
“review the ‘Agent of Change’ principle, strengthen it”.
Recommendations such as this are one of the many reasons why we are introducing national development management policies. In future, and subject to further appropriate consultation, NDMPs will allow us to give important national planning policy protections statutory status in planning decisions for the first time. This could allow the agent of change principle to have a direct statutory role in local planning decisions, if brought into the first suite of NDMPs when they are made.
Finally, the committee called for greater co-ordination between the planning and licensing regimes to deliver better outcomes. We agree that such co-ordination is crucial to protect affected businesses in practice and it is why the updated Section 182 guidance, published by the Home Office in December 2022, is a significant step forward. The Government are committed to ensuring that their policies which embed the agent of change principle are effective, but we do not think that additional legislative backing is needed at this time. As such, I hope that the noble Baroness will understand why, although we entirely support its intention, we will not support the amendment. With that, I hope that she will be willing to withdraw it.
Baroness McIntosh of Pickering (Con)
My Lords, I am grateful to all those who have spoken and for the support from the noble Baronesses, Lady Pinnock and Lady Hayman of Ullock.
I recognise what my noble friend the Minister said in seeking to support the conclusions of the follow-up report of the House of Lords Liaison Committee, which in itself was very powerful, but I know that the industry and practitioners who appear before licensing and planning committees will be hugely disappointed that my noble friend has not taken this opportunity to give the agent of change principle legislative teeth. I record that disappointment. I would like to discuss with the Minister, bilaterally if I may, how NDMPs can have legislative effect if they are not in primary legislation, but that is something that we can take bilaterally.
I am disappointed for the industry and for practitioners that we have not got a mandatory statutory basis as a result of agreeing the amendment before us, but for the moment I beg leave to withdraw the amendment.
Baroness Scott of Bybrook
“(1A) The Secretary of State may make regulations under subsection (1) only if the Secretary of State considers that it is appropriate to make the regulations for the purposes of national defence or preventing or responding to civil emergency or significant disruption to the economy of the United Kingdom or any part of the United Kingdom.”Member's explanatory statement
This amendment adds a restriction into the new power to make regulations to provide relief from the enforcement of planning conditions in section 196E of the Town and Country Planning Act 1990 (inserted by Clause 115 of the Bill), so that the power can only be exercised for certain purposes.
Member's explanatory statement
This amendment limits the period that may be specified in regulations (made under new section 196E of the Town and Country Planning Act 1990, as inserted by Clause 115 of the Bill), within which a failure or apparent failure must have occurred or been apprehended to be eligible for relief from enforcement, to a maximum of one year.
Member's explanatory statement
This amendment corrects a reference to the “relief period”, which is defined in subsection (2) and not mentioned in subsection (1).