Levelling-up and Regeneration Bill (Twenty Fifth sitting)

Debate between Greg Smith and Matthew Pennycook

Committee stage
Tuesday 18th October 2022 Public Bill Committees

[Greg Smith]

New clause 16 is relatively straightforward. It addresses an issue that arose from talking to Conservative and other councillors up and down the country in areas where rogue development—build now and seek to apologise or get retrospective planning permission later—has caused significant issues. The new clause would give the planning authorities the ability to take into account an applicant’s character, such as whether they have previous form on rogue or illegal development, when considering any fresh applications. It is relatively straightforward and aims to give our planning authorities more ability to protect their communities from rogue development.

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

It is a pleasure to serve with you in the Chair, Sir Mark. New clause 37 in my name and that of my hon. Friends, is, like new clause 16, a simple amendment. I will not devote too much time to making the case for it.

We all agree that it is essential that the integrity of the planning system is upheld, not only to ensure that unauthorised development cannot blight local communities, but to maintain public trust and confidence in the planning decision-making process. When considering chapter 5 of the Bill, we had a number of debates about how planning enforcement might be improved as well as better resourced. A number of members of the Committee, including my hon. Friend the Member for South Shields, have spoken at length about the impact that rogue developers can have on communities across the country.

New clause 37 seeks to probe the Government on a specific issue of concern. As the hon. Member for Buckingham has just made clear, at present it appears that it is entirely permissible for an individual developer to consistently breach planning control, with the only risk being that they face enforcement action in respect of that specific breach. We believe that it is right that enforcement of planning law and regulation is based on the principle of proportionality and that when it comes to cases of alleged unauthorised development, local authorities have discretion to determine how the breach can be remedied. However, we also believe there is a strong case for changing the law so that certain categories of proscribed persons, in particular those who breach planning control and make no efforts to rectify those breaches, can be prohibited from carrying out development of any kind.

New clause 37 would allow that sanction to be applied to those who persistently offend when it comes to contraventions of planning law and regulation. Its objective is the same as new clause 16, on a character test and the prior record of an applicant. Adopting new clause 37, or a version of it, would reduce the burden on local authorities that are attempting to deal with the minority of rogue developers of this kind, and would also strengthen the integrity of the system overall. I hope the Government will give it serious consideration.

[Lee Rowley]

I thank my hon. Friend the Member for Buckingham and the hon. Member for Greenwich and Woolwich for their new clauses. I am extremely sympathetic to some of the concerns. I agree with the hon. Member that ensuring the integrity of the planning system is paramount. We will all have examples from across the country of where development does not occur in the way that is sanctioned, or before it is sanctioned, and then an attempt is made to gain planning permission retrospectively by those who are not necessarily following either the letter or the spirit of the rules as set down. It is extremely frustrating.

By the same token, we have to tread extraordinarily carefully here. There are a set of principles, which my hon. Friend and the hon. Member acknowledged in their speeches—that the planning system is based on a specific application, which should be judged accordingly on its merits. It is challenging to bring forward a form of character test within those principles, although I recognise that there is an issue here that many communities up and down the land are seeing.

As those who have debated it for longer than I have will know, the Bill already includes a significant package of measures that will help tackle persistent abuses of the system. Those will speed up the enforcement process, restrict the circumstances in which an appeal can be lodged, increase fines for non-compliance and discourage intentional unauthorised developments that rely on a slow enforcement timescale. The Government acknowledge some of the concerns and are trying to find appropriate levers with which to approach them.

While offering a commitment to continue to talk about this issue, although wanting to be being clear that it is extremely difficult in terms of legislation, as my hon. Friend and the hon. Member acknowledged, the Government are not minded to accept the new clauses. I therefore ask both Members not to press them.

[Greg Smith]

I welcome the commitment my hon. Friend has just made to carrying on the conversation. I accept the complexity, in a system that looks at individual cases, of bringing in a more universal test. However, there are other areas of life where people—for example, those with particular criminal records—are barred from doing certain activities—particularly where children are involved. If we could extend the principle and precedent whereby somebody who has form with rogue development—that is, turn up, build now and apologise later—which blights communities up and down the land, is barred through legislation that is practical and that does not undermine the planning system, I am up for carrying on that conversation. If not through the exact wording of this new clause, then perhaps by another means, we could find a happy solution that protects our communities from those who, I am sorry to say, continue to blight them by building out schemes that they do not have planning permission for.

[Matthew Pennycook]

I thank the Minister for that response. I agree that we have to tread very carefully in this area; the principles that we have all spoken about, in terms of planning system proportionality and judgment on individual applications, are important. The Minister was not on the Committee at the time, but the Opposition broadly supported the measures outlined in chapter 5 of part 3, which strengthened enforcement. I welcome his commitment to continue the discussion outside the Committee, but I hope he gives the issue some serious thought.

I accept what the Minister said about the difficulties, particularly in terms of a character test, but at the same time it does not seem beyond the talents in this Committee Room—I will put it that way—to come up with a system that proscribes certain categories of person. Even if it was a threshold of a certain number of planning breaches in the past, beyond which someone cannot bring forward applications, there must be some way of doing it. A minority of rogue developers are causing havoc for communities and lots of work for planning departments in local authorities. We think the Government should give further thought to making progress on the issue.

[Greg Smith]

I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 17

Community right of appeal

“(1) The Town and Country Planning Act 1990 is amended as follows.

(2) After section 78 (right to appeal against planning decisions and failure to take such decisions) insert—

‘78ZA Community right of appeal

(1) The Secretary of State must by regulations make provision—

(a) enabling communities to appeal against a decision to grant planning permission or permission in principle for a development, and

(b) about such appeals.

(2) The regulations may require a certain number or proportion of residents of a local area to record objection against a decision for such an appeal to proceed.

(3) The regulations may, in particular, make provision the upholding of such appeals and the revocation of permission if—

(a) the development is inconsistent with a relevant neighbourhood plan, or

(b) due process has not been followed in relation to the planning application.

(4) The first regulations under this section must be laid before Parliament before the end of the period of six months beginning on the day on which this section comes into force.’” —(Greg Smith.)

This new clause would introduce a community right of appeal against the granting of planning permission.

Brought up, and read the First time.

Levelling-up and Regeneration Bill (Twentieth sitting)

Debate between Greg Smith and Matthew Pennycook

Committee stage
Thursday 8th September 2022 Public Bill Committees

[Greg Smith (Buckingham) (Con)]

It is a pleasure to serve under your chairmanship, Mrs Murray. I join you in welcoming the Minister of State, Department for Levelling Up, Housing and Communities, my hon. Friend the Member for Sutton and Cheam, to his place on the Front Bench. It is also a pleasure to follow the hon. Member for York Central; I recognise the point she made about green lungs in urban environments, and about parkland and green spaces being in towns and cities up and down the land.

Listening to her comments, I remembered my own time in local government some moons ago, in the London Borough of Hammersmith and Fulham. We gave planning permission to one of Europe’s largest regeneration projects on brownfield land, crossing the London Borough of Hammersmith and Fulham and the Royal Borough of Kensington and Chelsea, around Earl’s Court and West Kensington. That development had multiple parks and lots of green space locked into its design, and into the planning permissions that were granted. It was, in fact, the incoming Labour council in 2014 that undid all of that and turned it over. While I have not been there in some time, I think I am right in saying that Earl’s Court still sits in rubble, as opposed to housing and beautiful green parks.

I will speak principally to amendment 59, which is tabled in the name of my right hon. Friend the Member for Chipping Barnet (Theresa Villiers), to which I too have put my name. It goes to the nub of the concerns that many Members across the House have about planning reform and the way we should go forward. There is a debate about where we should build; should we build on brownfield, or should we build on green space—green belt, greenfield, agricultural land and so on? When I look at my constituency, covering 335 square miles of north Buckinghamshire, 90% of that land is agricultural land. We have seen substantial development over the last 20 or 30 years. Some villages that started off small are now almost unrecognisable because of the vast housing estates that have been built, and which continue to be built on greenfield land around them. I think of villages such as Haddenham—close to my home village, for total transparency—where, yet again, another huge acreage of agricultural land is being built on for homes right now. Buckinghamshire Council, a good Conservative-run council, has a clear vision to build the housing the county needs through the light densification of some of the towns in Buckinghamshire.

However, what amendment 59 principally talks to is the need to incentivise developers to consider brownfield sites when they look at where to build the homes needed in Buckinghamshire and the rest of the country, and that they are not disincentivised because it is so much easier for them to build on greenfield, where they do not have the decontamination costs and all the other expensive costs of developing out brownfield sites. We can use the infrastructure levy to do that. If there is a sliding scale that says to developers that we can create that incentive through the taxation system and the infrastructure levy and potentially make these things cost-neutral, we can take the challenges of decontamination and other costs associated with brownfield land out of the equation for them. In that way, they will pay less infrastructure levy for building out on brownfield sites than they would for destroying the great British countryside.

It is not a perfect solution by any stretch of the imagination, because we still need the money for the roads, the GP surgeries, the schools and everything else the infrastructure levy is there to provide. However, unless we can create a system that really does come good on the Government’s welcome and solid commitment to building on brownfield first, I fear—and I had another developer in my inbox yesterday wanting to build out on a partially greenfield site in Waddesdon in my constituency—that all we will see is planning applications come in for greenfield development, and the brownfield first policy will not be realised.

I therefore urge the Minster to consider how we can use the infrastructure levy, in the spirit of amendment 59, to ensure that there are not financial penalties on developers for developing on brownfield land, so that we make that brownfield first policy come true. In that way, we can give local authorities that have lost a considerable chunk of greenfield and agricultural land in recent years—food security is important to all of us, and it is a pretty simple proposition that the more agriculture land we lose, the less food we can grow—the tools and powers as planning authorities to say that certain proposals are not what they need right now. In some areas, the proposals might be fine and might be what they want but, to use Buckinghamshire as an example, we could put in the differential rate enabled by this amendment to protect our greenfield and agricultural land and to drive development of the homes, commercial units and businesses we need on to the brownfield sites that exist predominantly in towns, and in some villages, in Buckinghamshire.

I urge the Government to look at the spirit of the amendment and to incorporate it into what will undoubtedly, after the leadership election, be quite a different Bill by the time it emerges on Report, to see whether we can make these proposals a reality.

[Matthew Pennycook]

First, I congratulate my hon. Friend the Member for York Central on amendment 168. She rightly speaks about the importance of green space in urban areas and about how we can increase the rate of it, if anything, when it comes to individual planning applications.

I will speak primarily to amendment 59, because I think it is worth putting the following on the record. I understand the point that the hon. Member for Buckingham is making, but my reading of the Bill is that the framework established in part 4 already allows charging authorities to set different IL rates according to existing and proposed uses, and those could include different rates for greenfield and brownfield sites. So the means to resolve the issue he is driving are already in the Bill, and Buckinghamshire Council will be able to set different rates on brownfield and greenfield sites if the Bill is given Royal Assent.

Our concern is that, by seeking to make mandatory a sliding scale of charges relating to land type or existing typologies by site, amendment 59 could result in reduced infrastructure contributions and lower levels of affordable housing in areas where development mainly or exclusively takes place on brownfield land, because it would prevent charging authorities from setting rates that are effective and suitable for their area and that consider local circumstances. For example, a mandatory sliding scale of charges, as proposed in the amendment, could result in the expectation that a charging authority whose development sites are entirely or mainly on brownfield land would set low IL rates to incentivise development in that area and disincentivise development in other areas with fewer brownfield sites.

Furthermore, brownfield development in higher-value areas will almost certainly generate sufficient values to support higher levels of contributions than would be possible on greenfield sites. As such, a mandatory sliding scale of charges would mean the loss of developer contributions that could viably have been delivered on brownfield sites, with no assurance that this would be offset by a higher level of contributions on greenfield land. Labour firmly believes in the principle of brownfield first, as do the Government, and that is absolutely right. However, we feel strongly that the setting of different IL rates for different land types should ultimately be determined by individual charging authorities taking account of local circumstances, rather than by the method proposed in amendment 59.

Levelling-up and Regeneration Bill (Nineteeth sitting)

Debate between Greg Smith and Matthew Pennycook

Committee stage
Tuesday 6th September 2022 Public Bill Committees

[Greg Smith]

I will not detain the Committee for long. The amendment very much speaks for itself. It enables a charging schedule to require that, where an infrastructure levy is required, it be paid up front, or, where the infrastructure levy requires the developer to build something out themselves, that the infrastructure they are building—the GP surgery, school, road, or whatever it might be—be built first. It is a straightforward amendment. Having heard so many colleagues speak in the House or around the place, the great frustration that I have seen in my constituency, and that I have heard from others, is that, when in particular big housing developments or huge industrial parks are built, the infrastructure comes far too late.

I congratulate the Government, and welcome their presumption that infrastructure should come first. Through the amendment, which for clarity I will not press to a Division today, I urge them, as the Bill progresses to Report stage, to really think about locking their own desire and stated policy for infrastructure to be built first into the Bill. I warned that I will not press the amendment to a Division because, having lived through the glorious summer recess leadership election, we have heard a lot of talk and commitments about planning policy and the things that are in the Bill and which the Committee is talking about. I suspect that on Report it will be a wholly different Bill from the one that we have been debating over the past few months in Committee. The point that I wish to push is that the amendment marries up with what the Government have stated that they want to do, and I appeal to Ministers to find a way of incorporating the spirit of the amendment into the Bill on Report.

[Matthew Pennycook]

When speaking to the first group of amendments to this part of the Bill, I outlined in great detail why the decision to make GDV the metric for the new levy is likely to result in applicants making their IL payments at the end, rather than the beginning of the development process. As I argued when making the case for charging authorities to have a choice when it comes to adopting the new levy or retaining the present system, if a levy with GDV as its metric is made mandatory, the final IL liability will almost certainly not be known and become due until near the point where a development is completed. Given the problems inherent in attempting to design a levy system that enables interim payments or payments on account, that convinces sufficient local authorities to borrow against future levy receipts with all the risk that entails, or that overcomes the problems that will arise from paying for infrastructure on one site with levy contributions extracted from others, the most likely outcome is a situation where the infrastructure required to support development will not be in place when it is needed, as the hon. Member for Buckingham has just outlined. That is deeply problematic because, as I said earlier, we think it will mean fewer overall approvals, more unsustainable development when it does occur and greater local opposition.

Amendment 161 seeks to address that issue by specifying in proposed new section 204R on levy collection that the payment of IL must take place within a reasonable period of a development or phase of development commencing or in accordance with any instalment policy adopted by the charging authority. In doing so, it simply aims to avoid additional delays to the provision of infrastructure that will be necessary to support development and the resulting pressure that that would place on existing local infrastructure.

Amendment 58 in the name of the right hon. Member for Chipping Barnet (Theresa Villiers) and others similarly seeks to revise the Bill so that IL payments are made earlier than is currently proposed by the Government. We support the principle, for the reasons I have outlined. However, in enabling charging authorities to require developers to pay either their full IL liability or sufficient amounts of it to enable a development to be built before development commences, that amendment goes much further than currently provided for by either CIL or section 106 agreements, which are typically paid prior to implementation of a development or phases. Because it is not mandatory for planning permissions to be implemented, we are slightly concerned that amendment 58 could lead to a situation where IL contributions are paid and infrastructure provided on development that is not subsequently completed. Mandating the payment of IL before development commences would also impact on developer cash flow and viability, particularly in cases of phased developments, which could have the consequence of reducing IL rates and thus the overall level of affordable housing and infrastructure contributions provided.

Lastly, the problems inherent in a levy based on the metric of GDV—in terms of multiple valuations having to be undertaken at different stages in the development process, with the final liability not being known until years after the application was submitted—would be magnified were a provision to be introduced mandating the payment of IL before any development commences. For those reasons, and with all due respect to the hon. Member for Buckingham—I agree with him on the principle—we believe that amendment 161, which merely requires IL payments to be made within a reasonable period of a development or phase of development commencing, is the more proportionate response to a problem that is clearly recognised across the Committee. I hope the Minister will give serious consideration to accepting our amendment so we can ensure that, if the levy is introduced, it allows for the infrastructure required to support development to be in place when it is needed.

Levelling-up and Regeneration Bill (Nineteenth sitting)

Debate between Greg Smith and Matthew Pennycook

Tuesday 6th September 2022 Public Bill Committees

[Greg Smith]

I will not detain the Committee for long. The amendment very much speaks for itself. It enables a charging schedule to require that, where an infrastructure levy is required, it be paid up front, or, where the infrastructure levy requires the developer to build something out themselves, that the infrastructure they are building—the GP surgery, school, road, or whatever it might be—be built first. It is a straightforward amendment. Having heard so many colleagues speak in the House or around the place, the great frustration that I have seen in my constituency, and that I have heard from others, is that, when in particular big housing developments or huge industrial parks are built, the infrastructure comes far too late.

I congratulate the Government, and welcome their presumption that infrastructure should come first. Through the amendment, which for clarity I will not press to a Division today, I urge them, as the Bill progresses to Report stage, to really think about locking their own desire and stated policy for infrastructure to be built first into the Bill. I warned that I will not press the amendment to a Division because, having lived through the glorious summer recess leadership election, we have heard a lot of talk and commitments about planning policy and the things that are in the Bill and which the Committee is talking about. I suspect that on Report it will be a wholly different Bill from the one that we have been debating over the past few months in Committee. The point that I wish to push is that the amendment marries up with what the Government have stated that they want to do, and I appeal to Ministers to find a way of incorporating the spirit of the amendment into the Bill on Report.

[Matthew Pennycook]

When speaking to the first group of amendments to this part of the Bill, I outlined in great detail why the decision to make GDV the metric for the new levy is likely to result in applicants making their IL payments at the end, rather than the beginning of the development process. As I argued when making the case for charging authorities to have a choice when it comes to adopting the new levy or retaining the present system, if a levy with GDV as its metric is made mandatory, the final IL liability will almost certainly not be known and become due until near the point where a development is completed. Given the problems inherent in attempting to design a levy system that enables interim payments or payments on account, that convinces sufficient local authorities to borrow against future levy receipts with all the risk that entails, or that overcomes the problems that will arise from paying for infrastructure on one site with levy contributions extracted from others, the most likely outcome is a situation where the infrastructure required to support development will not be in place when it is needed, as the hon. Member for Buckingham has just outlined. That is deeply problematic because, as I said earlier, we think it will mean fewer overall approvals, more unsustainable development when it does occur and greater local opposition.

Amendment 161 seeks to address that issue by specifying in proposed new section 204R on levy collection that the payment of IL must take place within a reasonable period of a development or phase of development commencing or in accordance with any instalment policy adopted by the charging authority. In doing so, it simply aims to avoid additional delays to the provision of infrastructure that will be necessary to support development and the resulting pressure that that would place on existing local infrastructure.

Amendment 58 in the name of the right hon. Member for Chipping Barnet (Theresa Villiers) and others similarly seeks to revise the Bill so that IL payments are made earlier than is currently proposed by the Government. We support the principle, for the reasons I have outlined. However, in enabling charging authorities to require developers to pay either their full IL liability or sufficient amounts of it to enable a development to be built before development commences, that amendment goes much further than currently provided for by either CIL or section 106 agreements, which are typically paid prior to implementation of a development or phases. Because it is not mandatory for planning permissions to be implemented, we are slightly concerned that amendment 58 could lead to a situation where IL contributions are paid and infrastructure provided on development that is not subsequently completed. Mandating the payment of IL before development commences would also impact on developer cash flow and viability, particularly in cases of phased developments, which could have the consequence of reducing IL rates and thus the overall level of affordable housing and infrastructure contributions provided.

Lastly, the problems inherent in a levy based on the metric of GDV—in terms of multiple valuations having to be undertaken at different stages in the development process, with the final liability not being known until years after the application was submitted—would be magnified were a provision to be introduced mandating the payment of IL before any development commences. For those reasons, and with all due respect to the hon. Member for Buckingham—I agree with him on the principle—we believe that amendment 161, which merely requires IL payments to be made within a reasonable period of a development or phase of development commencing, is the more proportionate response to a problem that is clearly recognised across the Committee. I hope the Minister will give serious consideration to accepting our amendment so we can ensure that, if the levy is introduced, it allows for the infrastructure required to support development to be in place when it is needed.

Levelling-up and Regeneration Bill (Thirteenth sitting)

Debate between Greg Smith and Matthew Pennycook

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[Greg Smith]

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.

[Matthew Pennycook]

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.