Lord Tope
Main Page: Lord Tope (Liberal Democrat - Life peer)Growth and Infrastructure Bill
Lord Tope Excerpts“(za) the local planning authority has been given 18 months prior notice by the Secretary of State ahead of their designation for the purposes of this section;”
Lord Tope
My Lords, I shall speak also to Amendment 32 in the name of my noble friend Lord Greaves and to which I have added my name. Clause 1 gives the power to the Secretary of State to designate a local planning authority as deemed to be failing, thus enabling applicants for major projects to apply direct to the Planning Inspectorate should they so desire. I said at Second Reading, and I will say again, that I am very grateful to Ministers in the other place for the assurances that they have given for the criteria that have been proposed and for the reassurance that the clause is not quite as bad as it seems. But I still say that it is directly contrary to the spirit of localism, which we have spent many happy hours discussing in this House.
I understand that the Government are determined to keep the clause in the Bill and, of course, I respect that. The Local Government Association has described it as using a sledgehammer to crack a nut. I am bound to say that I am inclined to agree with that description. However, if we are to have the clause, it is the role and duty of this House to make it as workable as it can be—some might say, to make it as harmless as it can be. The Government have said that they wish to keep the clause as a deterrent. I would feel happier if we could approach this on the basis of keeping it as an incentive. The latter approach calls for a different state of mind. The Government are adopting a sort of target-led approach whereby an authority that does not meet certain criteria will be designated. I think we all accept that there have been, are, and sadly probably always will be some local planning authorities that do not perform as well as they should. There is a different debate to be had about exactly what we mean by performance and how we measure it, but let us start from that basis.
I believe that the best way to improve a poorly performing authority with regard to planning as to most other things is first and foremost through what is normally called sector-led improvement to enable it to improve itself, not to punish it in some way by taking away its authority. The purpose of Amendment 1 is to require the Secretary of State to give 18 months’ notice of designation. That 18 months would allow the local authority to look at how it can improve its performance and then to be judged on the way in which it improves, not on the way in which it has performed in the past.
I am aware that Amendment 32, to which I have given my support, suggests a period of 12 months rather than 18 months. At this stage I do not want to get too hung up on the difference between 18 months and 12 months. The important principle with this amendment is that the Secretary of State should give a lengthy period of notice to enable a local authority to improve itself, helped and assisted by other local authorities and, indeed, by the Local Government Association. The Local Government Association thinks that 18 months is probably a more appropriate period, primarily because it enables better and more realistic data collection so that we can see the direction of travel that that authority is taking. Is it gradually improving? If it is improving over that period, designating it would be a considerable disincentive, not an incentive. If it is making no improvement, or indeed even getting worse, that is more justification for the designation.
A poorly performing local planning authority may well need to recruit better planning officers and better staff to enable it to improve its performance. However, it takes considerable time to recruit and embed those staff and for the improvements that we hope they can bring about to work and be seen. It takes time, of course, to engage effectively with other helpful authorities or outside sources in order to improve. For all those reasons, the Local Government Association thinks that an 18-month period is more appropriate. However, the important point is that we have a lengthy enough period—be it a year or 18 months—to enable a local planning authority to improve itself before the imposition of the final, and frankly draconian, measure of designating and taking away its right, and therefore the right of the local people, effectively to decide their own major planning applications. I beg to move.
Lord McKenzie of Luton
My Lords, we have Amendments 36 and 37 in this group, which I shall come to in a moment. If I may respond directly to the noble Lord, Lord Tope, he said that the Bill is not as bad as it seems. We may part company on that proposition but I think that we share company in wanting to mitigate its worst effects, if we cannot get rid of it in its entirety.
As regards Amendment 1 and the 18 months’ prior notice, certainly the thrust of this amendment is one which we can support, although it begs the question of the criteria for designation. However, I know that we are going to come to that point in due course.
As proposed in the consultation document, a designation would follow automatically from the criteria. The first is planned for October 2013, based on performance data for 2011-12 and 2012-13. On this basis, an 18-month lead time would mean designation in January or April 2015—not necessarily a bad thing if the authority has to wait that long. Obviously, the 18-month notice would give it time to improve its performance, but there would be only one more year of performance data. Some process of representation on improvements is needed, and we have amendments to cover this.
Amendment 36 requires the Secretary of State to,
“serve a notice of intention to designate”—
a parallel proposition—and for the local authority in question to have the chance to make representations as to,
“why designation would be inappropriate”.
We should be clear that our preference would be for the clause not to proceed at all but, if it does, it has to have a range of necessary safeguards built in.
It is the Government’s expressed intention that designation will be automatic following publication of the statistics relating to speed of determination and levels of successful appeals, although there will be an opportunity in year one to correct gaps or errors in the existing data. It is accepted that this would have the merit—if one could call it that—of providing information to authorities on how close they were to being designated, but this approach would not impact all authorities equally, which is why we consider that the opportunity to make representations should be allowed. This might be particularly important for smaller districts where the numbers of applications for major developments might be quite small. Indeed, we received some data a short while before Committee today. I do not know if all noble Lords received it, but some authorities in the year to March 2012 received as few as two major applications to deal with. Others received more than 160. Therefore, this process will not impact on all authorities equally. One or two applications might have a significant impact on an individual authority’s metrics and the circumstances may be outside its control. The delay may be down to the applicant or consultees; indeed, if problematic applications are in the pipeline, someone might try to game the system to push an authority towards designation. The delay might also be down to community issues. Applications relating to Gypsy and Traveller sites seldom go through on the nod.
Amendment 37 requires the Secretary of State to bring forward an improvement programme before designation can take place. This is an alternative formulation to that in the amendment of the noble Lord, Lord Tope. The programme could be a sector-led improvement or a combination of processes to ensure that local authorities have the opportunity to improve. However, what we must be clear about is that the clause cannot stand in its current formulation, and we need, one way or another, a range of the sort of protections that are dealt with in these amendments.
Baroness Hanham
My noble friend would know what they are if he had read the consultation document, which, knowing his experience, he will have done. The criteria put out to consultation are that local authorities will be designated if they should not have achieved the statutory requirement in 30% of applications and if they have had 20% of appeals overturned. I think that those are the figures in the consultation, and the consultation is where the criteria stand at the moment.
As regards the other information, the consultation has just closed. It will probably be quite difficult to get a full response by the time we get to Report, but we can certainly give noble Lords an indication of the responses to the consultation, which may be helpful. I am not going to guarantee that we can give the Government’s response by Report, because I think that it may require more consideration than the time available allows.
Lord Tope
My Lords, I am very grateful to all who have taken part in this debate over the past hour and a half or so. I think it is customary, if undesirable, that the first debate on the first amendment in Committee tends to range just a little wider than the precise nature of the amendment. That has certainly been the case today and it has been none the worse for that.
The noble Lord, Lord Deben, has introduced me to a new word: “vocality”. Like him, I do not know if such a word exists, but I remember looking up “localism” in the dictionary and finding that it was not there at all, so I now look forward to the “Vocality Bill” in the next Session.
I will try to deal simply with the amendments, particularly Amendment 1 in my name. It struck me that when the noble Baroness, Lady Hanham, got up to speak, she referred to it as the amendment which sought to delay designation. I thought that was quite telling; I have to accept that that is certainly the effect, but it is not actually the intention. The intention is to find a better way of dealing with the problem that the Government perceive. Its intention is to try to help the Minister achieve the aspiration of never having to use this provision. The designation is not about seeking to delay—although that is the inevitable effect—it is about seeking a much better and more effective way to bring about the improvement that, in fairness, everybody wants, not just the Minister.
The Minister will have heard—and I am sure that she will take this away from this debate—considerable concern on all sides of the House about the clause as it presently stands and the support from all sides of the House for these amendments in order to bring about the objective to which I referred: namely, to find a better and more effective way of bringing about the improvements that we all seek. Obviously we are going to return to this clause on Report; I do not know what will happen then or what noble Lords will say. However, if it is to be supported by many sides of this House, we need to have some reassurances in the Bill from the Government along the lines of those that we are talking about today.
We have proposed criteria which I am told would currently catch only six local authorities; I would be very interested to know which six local authorities they are. I wonder whether those authorities themselves know that they are, in effect, on a danger list. I would like to know what size of authority they are, and to what extent and in what way they are apparently failing to meet the criteria. Is the failure on the quality, if that is the right expression, of their losing appeals—I think not, from what the noble Lord, Lord Best, has said—or is it simply on the time measure? All these things are of interest and relevance.
The criteria are not going to be in the Bill, and it is certain that at some stage during the lifetime of the Act, when this Bill is enacted, those criteria will change; they are bound to change. It is equally certain that the Planning Minister will change in the lifetime of the Act; it is even possible that the Government may change in the lifetime of the Act, and we may find a time when we have a less benevolent Planning Minister, a less benevolent Secretary of State and even possibly a less benevolent Government. Therefore, when we legislate here, we need the assurances that these amendments seek to achieve. They may or may not be the right way or the best way to achieve them, but I discern from this debate that noble Lords on all sides of the House are seeking those assurances before we pass this clause. I hope the Minister will take that concern back to her ministerial colleagues and see what the Government can bring forward to meet the concern that has been expressed. In the mean time, I beg leave to withdraw the amendment.
Lord Tope
My Lords, Amendment 8, standing in my name, is in this group. It largely speaks for itself. It requires the Secretary of State to take into account improvements—or otherwise—that the planning authority has made in the five years prior to his considering it for designation. The purpose is that the Secretary of State should not just take a snapshot, or even just take into account the two-year period that has been referred to, but should look at the direction of travel of the planning authority. Has it remained poorly performing over a significant period? Has it got worse over that period? In that case, the Secretary of State must truly be looking at designation. However, if an authority is making significant improvements over that period—in our previous debate, the noble Lord, Lord Best, referred to Northumberland making significant improvements over time—it would be heavy-handed, and I would say quite wrong, to consider that it should be designated. If it shows evidence over a significant period that it is putting its house in order and improving its performance, surely the Secretary of State must take that into account.
Amendment 34 is in the name of the noble Lord, Lord True. As he explained in the previous debate, unfortunately he had to leave just now to attend a meeting of his local council, of which he is leader. As my name is on the amendment and I support it, I will refer to it and say that the concern is that time taken over legal proceedings under judicial review should not be counted in this regard. He would like the Minister to take account of this and will welcome her comments, which he will be able to read in Hansard, before we consider what action we may wish to take on Report.
Lord Jenkin of Roding
Encouraged by the noble Lord, Lord McKenzie, I will say something about Amendment 28. When I was Health Secretary, I had to suspend the Lambeth, Southwark & Lewisham Health Authority because it was refusing to live within its cash limits. That suspension was overturned by the High Court on the grounds that I had put no limit on the time of suspension. The embarrassing consequence was that I had to bring legislation before Parliament to validate what the commissioner whom I had appointed had done in the intervening period. Has my noble friend taken into account what the courts might say about what would appear to be an indefinite period of designation, or does she envisage that a designation will always include a time limit during which it could be considered, reconsidered and if necessary renewed? I was stung once, and one can use one’s experience to ask what I hope is a not wholly frivolous question.
Lord McKenzie of Luton
My Lords, I shall speak also to Amendments 5 and 25 in this group. These amendments would preclude the Secretary of State from including in the types of application that can be made to the Secretary of State, rather than a designated authority, certain types of developments. We have a parallel amendment grouped with this that would preclude any planning authority with responsibility for all or part of any of these areas from being designated. These include developments affecting flood risk areas, world heritage sites, national parks, areas of outstanding national beauty and sites of special scientific interest. Our natural environment and our heritage are precious assets that require special consideration in this context. Indeed, issues around conserving and enhancing the natural and historic environment, and meeting the challenges of climate change, flooding and coastal change, rightly feature robustly in the NPPF.
Our major concern, not allayed by discussion at the other end on this matter, is that the focus on process and timing under Clause 1 will drive the behaviours of local planning authorities and the speed of decision-making to run contrary to a wider, quality-led approach, which the NPPF demands. What it demands entails significant engagement, and not just from the applicant. It is clear from the Government’s consultation document that they see the speed of decision-making as paramount and are intent on increasing the threshold for designation in subsequent years, so excluding these situations from designation entirely is a necessary protection.
The Government have made great play of having clarity over designation, indicating that it will follow automatically after some transitional issues. However, we may have a qualification on that as a result of our last exchange. There seems no scope for local planning authorities charged with these responsibilities to explain their position on a case-by-case basis. From what the noble Baroness said a moment ago, perhaps she will say that that is now not the case.
I will comment in due course on Amendments 6, 7 and 26 when they have been spoken to, but it looks as though Amendments 7 and 26 have a substantial overlap with our Amendments 5 and 25. Clearly, we expect to be able to support them on that basis. I beg to move.
Lord Tope
My Lords, Amendment 6 stands in my name and has been suggested by both the Local Government Association and the Campaign to Protect Rural England. It would of course mean that only local authorities which do not already have a local plan in place could be designated as poorly performing. In other words, it would immediately remove from the possibility of designation all those authorities that have a local plan in place. As we all know, the preparation and adoption of a local plan is a lengthy process. It is sometimes too lengthy a process but it is fully democratic and shows that the planning authority concerned is performing to proper democratic accords. On that basis, it is believed that they should be excluded from this threat.
Good, sensible local plans are forward-looking. They are intended and designed to encourage and stimulate growth. It is felt that they are in themselves probably a better measure of how well an authority is performing than individual planning applications—I think that this point has been made in earlier debates today—however major the project for which they are submitted. As I said, the intention of this amendment is to exclude those authorities that have adopted a local plan over the previous 20 years, as it suggests.
Lord Beecham
My Lords, is 20 years a reasonable period? The point has already been made in debate that there is an issue with the effectiveness of local plans. If we are going back as long as that, it could be argued that that is not really a sufficient incentive to authorities to bring their plans up to date. They cannot be done annually but two decades is an extremely long time.
Lord Tope
My Lords, before the Minister responds, may I respond briefly to the noble Lord, Lord Beecham? He questioned whether the 20 years suggested in my amendment might be too long. He may well be right and it may well be so. At this stage, my consideration is more to get the principle accepted rather than a specific time period. Part of the reason for that is that I think we would all want to incentivise the surprisingly large number of local authorities that still do not have a local plan in place. The positive intent, if you like, of the amendment is to provide that incentive. I suggest that whether the period is 20 years, 15 years or any other period is less material at Committee stage than the principle that the amendment is trying to achieve.
Having said that, perhaps I could comment on what the noble Lord, Lord Deben, has just said. Again, I think that most of us who propose amendments in Committee do not expect that they will eventually appear in the Act, but they cover the particular issues that we wish to raise in order to air our concerns, to hear the Minister’s response and, most importantly, for the Minister to be able to take it back to her ministerial colleagues so that the Government can come back on Report in exactly the way that the noble Lord is suggesting.
Lord Greaves
My Lords, I wonder if I can respond very briefly to the noble Lord, Lord Deben. Surely it is the case that because the criteria for granting planning permission in national parks are much more rigorous and strict than in many areas, many developments will actually need more time for negotiation and discussions with the applicants to make them acceptable within a national park context. In national parks particularly, it may well be that some of the authorities are not as efficient as they might be—I can quite believe that—but in general I would expect that similar applications in national parks will take longer than in what I might call ordinary areas, for those reasons.
The statistics are interesting and worth putting on the record. In the past year the Lake District had 19 major planning applications—far more than most others, which is interesting—and the Broads Authority had 13. Of the rest, Dartmoor had two, Exmoor had two, the New Forest had seven, the North York Moors had seven, Northumberland had two, the Peak National Park had five and the Yorkshire Dales had three. With that level of application, it would clearly be ludicrous to apply anything like a strict 30% rule or any other simple cut-off.
Lord McKenzie of Luton
My Lords, when Amendment 6 —which was spoken to by the noble Lord, Lord Tope— was debated in the other place, my colleagues tabled a similar amendment and it was pointed out by the Minister that only one authority in the land had not had a local plan for 20 years. I am not sure how it got away with it for that long.
Lord McKenzie of Luton
Indeed. My point was going to be that if this is a way of wrecking the clause, I am all in favour of that, but let us do it at clause stand part and do it properly. If it is structured as a means of incentivising people to get on with their local plan, I would have more sympathy.
I side with the noble Lord, Lord Greaves, on the national parks. The number of applications seems relevant because you might have two applications to deal with in a year, which several of these authorities did. If you determine each within 14 weeks of application, you would be designated. I think that would be the consequence of the fairly strict rule.
The noble Lord, Lord Deben, said that it is important that we are happy about this because it is objective. We say yes to an objective approach, but that does not mean a blanket approach where exactly the same criteria apply to all because if that 30% criterion applies, when you have authorities with a very small number of applications, it could work in a perverse way.