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Grand Committee

Thursday, 10 July 2014.

Infrastructure Bill [HL]

Committee (3rd Day)

2 pm

Relevant document: 2nd Report from the Delegated Powers Committee

Clause 16: Invasive non-native species

The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab): My Lords, welcome to the Grand Committee on the Infrastructure Bill.

Amendment 71 not moved.

Amendment 72

Moved by Lord Davies of Oldham

72: Clause 16, page 16, leave out lines 5 and 6

Lord Davies of Oldham (Lab): My Lords, I shall also speak to Amendment 73, with which Amendment 72 is grouped.

As I thought to construct a speech on this issue, I found myself in the most extraordinary philosophical and political position. All my political life, I have seen the lines of conflict over issues drawn in the following way. Going back to Finance Bills in the 1970s, for instance, I recall that the Labour Government were always accused of drawing up excessive invasive powers—in particular for tax authorities to appropriate property—and the Conservative side was always expressing the rights of the landowner and the liberal proposition that the state should be kept at bay. In fact, on one famous occasion, I remember a Conservative member of the committee telling me, “If this amendment to the Finance Bill is carried, there will be the knock on the citizen’s door and it will be the knock of the French revolutionary of 1789 saying, ‘Ouvrez, au nom de la République!’”, such were the terrors that were being visited upon the British in 1976. I had the temerity—I was a PPS at the time—to suggest that the historical analogy did not quite hold up, not least because the French Republic was not declared until 1793, and therefore he was four years premature in suggesting that the revolutionary was asking for entry in the name of “la République”—after all, Louis XVI did not meet his death until 1793.

However, with this issue here, the position is exactly reversed. The current Government are producing a power of entry that we regard as being quite exceptionable and needing some mighty justification. I do not know whether this proposal in the Bill has emerged from a Conservative Party that has gone soft on supporting landholding interests or from the malign influence of those in the Liberal wing of the coalition, who have decided that they should have regard to the landed

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interest. However, we are agin this proposal, and I shall go on to explain, as clearly as I can, why. It seems quite unnecessary to give an authorised person,

“to determine whether to offer to enter into a species agreement with a person”,

this excessive right to demand entry. Surely powers of entry must be handled delicately. As a liberal-minded socialist, I would say that powers of entry should always be handled delicately, because the citizen in a democratic state has rights. There needs to be a balance between the interests or rights of the property owner and the rights of environmental authorities wanting to eradicate invasive non-native species.

Of course, we are all with the Bill in its attempt to tackle what we all recognise is a very severe problem, but the authorised person would be seeking to obtain an agreement. It does not seem right, therefore, to allow a power of entry at an early stage in the process before the property owner might even be aware of the need to enter into a species agreement. The persons concerned have not got anywhere near the negotiation stage; as far as one can see, they have not even necessarily identified that there is a problem at all, but there could be this knock on the door from the authority.

In England and Wales, the entry on to private property by any person is a trespass, unless consent is given or the entry is otherwise authorised by statute or by common law. It is also the case, of course, that this concept is enshrined in Article 8 of the European Convention on Human Rights, which provides a right to respect for private home and family life. In this respect, Article 8 can only be interfered with if it is prescribed by law as a legitimate aim and is necessary in a democratic society. It is particularly difficult to describe species control agreements as a pressing social need for action. After all, if the concept anticipates an agreement as the achievement of the policy, what is the pressing need for forthright rights of entry? Moreover, the Home Office’s powers of entry gateway, which regulates powers of entry, sets out tests which must be satisfied, including “Necessity”, “Proportionality” and “Safeguards”. Such powers should be used only when necessary and not routinely, but these powers in the Bill are routine—they come in at first base, as it were, and condition the nature of action.

Will the Minister justify how allowing a power of entry on to someone’s land merely to decide whether to enter into an agreement fulfils the requirements set out in the European Convention on Human Rights? The property holder is going to be asked to enter into an agreement. Of course I recognise the problem that may arise if agreements cannot be achieved and if the threat to the wider society is significant—none of us is going to underestimate the damage which some invasive species can do. We all know that it would be absolutely pointless if one householder dealt with Japanese knotweed alone. The capacity of one householder to deal with Japanese knotweed alone beggars the mind, but if he did succeed in dealing with Japanese knotweed alone it seems absurd to suggest that agreement would not be necessary. Next door would have to be involved; otherwise, one would not have a solution and one would be more likely to have a situation in which the problem was extended.

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It may be thought that I am being excessive in challenging the Government on these issues and recalling other occasions when these issues have been raised, when the boot has been on the other foot and I watched Labour Ministers wrestle with arguments from landowners and Conservatives. The crucial issue is that the Law Commission review addressed this issue and highlighted the fact that concerns were raised regarding potential overuse of powers of entry. It concluded that there should be a formal safeguard against potential overuse of powers of entry. Of course, we subscribe to the objectives of the Bill with regard to tackling the problems caused by invasive species, but we believe that we are entirely justified in probing the limits of the power of entry as regards when and how it will be used. I beg to move.

The Minister of State, Department for Transport (Baroness Kramer) (LD): My Lords, I resist Amendment 72, as circumstances may arise in which Natural England has reason to believe that a non-native invasive species is present on someone’s land but the owner denies access to verify this. However, without that verification, one cannot proceed to issue a control order. If there is no voluntary agreement, the landowner can avoid the imposition of a control order. Typically, Natural England will approach the landowner and give him at least 48 hours to respond. The reason for having this tight benchmark is that sometimes one can determine whether a non-native invasive species is present even when one is off-site. However, that cannot always be done, as sometimes the species is tiny and is therefore difficult to pick up in, for example, an aerial photograph.

The expectation is that arrangements will be voluntary and collaborative with rare exceptions—for example, in emergencies. The Committee will know about Asian hornets. We have almost the equivalent of an alert system around the country, watching out for the arrival of Asian hornets. I am advised that, if they are found, eradication needs to take place very rapidly, possibly within 48 to 72 hours, or they will pose a threat to native bees, with all the consequences that flow from that. Therefore, on occasion, it is absolutely necessary to move fast. It would be problematic to provide a landowner with a mechanism to resist even entering discussions about a voluntary agreement and therefore to avoid triggering the process that would eventually lead to a control order. I fully recognise the issues that have been raised. However, given the purpose of this legislation and the implications of allowing a rapidly increasing invasive species to get out of control, I ask the Committee to recognise that this power is necessary and I ask the noble Lord to withdraw the amendment.

Amendment 73, which is also in this group, is slightly different. It would require an environmental authority to ensure that, whenever it exercised a power of entry, it must leave the premises as effectively secured as they were on entry rather than, as stated in the Bill, to do so when the premises are unoccupied or the owner is temporarily absent. We want very much to ensure that unoccupied premises or premises where the owner is absent are left effectively secured. As regards Amendment 73, we take the point that there might be grounds for a more general application of

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the provision. One of the things we are concerned about is the need to think through the language that is used, as we do not want to encourage people to “booby-trap” premises, as it were, with expensive systems that would then have to be replaced. Therefore, I am sympathetic to the intent of Amendment 73 but, given the importance of being able to control invasive species, we need to retain the powers in the Bill, which would be negated by Amendment 72.

Lord Davies of Oldham: My Lords, I am grateful to the Minister for her sensitive approach to Amendment 73. We will look again at the wording of that amendment to see whether we can persuade her to change her mind on that matter. It seems a pretty obvious thing to require that, if an authority moves in for the very good reasons that it would have in those circumstances, it should leave the place in the same order that it found it. Otherwise, it seems that we are giving extraordinary powers to those who carry out this action.

2.15 pm

On Amendment 72, the noble Baroness produced the Asian hornet. I will not deny that fact that I have never met an Asian hornet yet, but I am certainly persuaded that, if I did, it would be an extremely unpleasant experience and I would want to get rid of it. I did not spend an hour at Defra the other day without becoming increasingly nervous about the things that I might bump into in the night. That was probably the purpose of the exercise—or its secondary purpose.

However, in those circumstances the officers carry with them clear evidence. They would not act and invade premises unless they had clear evidence of the threat they were to deal with. Would anybody turn them down and say, “You cannot come here that day because I am not scared of Asian hornets”? It is not conceivable that that is how people would react. I am not talking about minor things where it might take five years or so before their damage was visible. If what is being quoted is something that has arrived, is evident and distinctly threatening to the environment, I cannot see that the concept of the agreement necessary is much more than a knock on the door, “We’ve come to solve an absolutely massive problem that you’ve got”, and, “Thank you very much”. After all, people want rid of pests. Has anybody ever seen dear old ladies who have wasp nests in the lofts of their houses? They are absolutely terrified of what will happen unless the nests are removed that very day—despite the fact that the wasp nest is most likely to have been there several months or more.

I know that there are all sorts of awkward cases in society, particularly about property. However, the basis of the action is to reach agreement with the property holder. I still maintain that the one instance of the Asian hornet will not deflect me from the feeling and belief that the Bill, as constructed at present, is not acceptable to us. I will dwell on what the noble Baroness said and I know she has thought about these issues very seriously, but so have we in constructing the argument and we will go away and think about this as well. I beg leave to withdraw the amendment.

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Amendment 72 withdrawn.

Amendment 73 not moved.

Amendment 74

Moved by Lord Davies of Oldham

74: Clause 16, page 18, line 17, at end insert—

“( ) the standards of animal welfare required when carrying out species control agreements and orders.”

Lord Davies of Oldham: My Lords, I move on to slightly gentler territory this time but of great import nevertheless. We all recognise that, in seeking to do the right thing by wider society, we have real problems about how the actions are to be carried out by the authority. That is why Amendment 74 seeks to insert the words:

“the standards of animal welfare required when carrying out species control agreements and orders”.

I am sure the whole Committee will endorse the view that we must ensure that we abide by the highest level of protection for animal welfare. Concerns have been raised by a number of bodies, including the National Farmers’ Union, Animal Aid and the National Anti Snaring Campaign, which have all cited the threat to animal welfare. We must be alert also to the fact that these control orders might prevent farmers and growers being able to react to market opportunities by growing new varieties of crops. That is why those concerned with the countryside argue for an appropriate system of checks and balances to protect their interests. I am not sure that the Bill meets that test at present. The Government have failed to include anything in this schedule to protect animal rights, despite the fact that we know that representations have been made by the International Fund for Animal Welfare, the Woodland Trust and the Law Commission that the legislation should indeed provide for the inclusion of animal welfare provisions. I fail to see why these representations, made while the Bill was being drawn up, have not registered effectively with Ministers.

Perhaps that is to do with the fact that Ministers are fresh from the horrors of the badger cull and the problems they had over that issue; there are also the problems we have all had over dangerous dogs legislation in recent years. However, the Government were quick to denounce the presence of beavers from sightings in Devon and to suggest their ability to carry a disease when, from what I can see, the Government have produced no proof or scientific evidence to back up these contentions. What assessments do the Government make when deciding whether an animal is considered dangerous or harmful? Is the fact that it is just strange and new sufficient for forthright action to eliminate it?

Reports show us that there is a case that animals such as beavers might have an effect that is as positive as it is negative. I know that we all have to come to terms with the development of new species when they arrive. I am told that beavers would cause a great deal of trouble wherever floods were likely to occur, but I had thought that beavers were rather good at building dams and that most of the demands being made from the Somerset Levels and elsewhere during the past

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year were to say, “We want more defences”. Why can we not get the helpful beaver to chip in with his little bit? At the least, I am not quite sure why he is condemned outright before he has had the chance. It seems that the Government are obsessed with controlling anything that they think to be a threat, without properly assessing whether it is a threat or not—and certainly without even beginning to think that there might be benefits.

The Government do not have the best track record in following the advice of scientists, especially when it comes to the natural environment. Their failure over the badger culls, where they have been heavily criticised across a whole spectrum of informed opinion, is a clear example. We must make sure that species control operations are conducted and introduced on the back of a clause that enshrines the need to look at the preservation of animal welfare. I am hopeful that the Minister, while she might think it rare, will see this as a constructive amendment from the Official Opposition and look kindly upon it. I beg to move.

Baroness Donaghy (Lab): My Lords, I support my noble friend. There was a good example in Australia, which I could perhaps relay to the Committee. My brother, who lives in housing association accommodation, was invaded by a possum. It was in his roof for about three years before he was able to persuade the housing association to do something about it. Of course, the possum is a protected species but eventually along came Paul, the “Possum Whisperer”, whose job it was to persuade the possum to leave the premises without endangering the species. He did that without any harm to the premises or to the possum, but the end of the story was that the possum re-emerged slightly later, next door but one. The neighbour knocked on my brother’s door and said, “Hey, I’ve got this possum—any advice about how to get rid of it?”. My brother said, “Well, Paul the Possum Whisperer is the person that you need to go to”. So there was a job creator as well as a very skilled person, who could act in a humane way to protect the animal. It may be that the Government could indulge in some job creation activity here by creating skills such as sheep whisperers and beaver whisperers to get these animals off the premises without any harm. This is a very good amendment, which we should support.

Baroness Parminter (LD): On these Benches, we have some sympathy with this amendment. When we are looking at how we take forward species control agreements, it is important that some principles are set up out front. While I would not go so far as the noble Lord, Lord Davies, and talk about animal rights, we on these Benches support animal welfare.

There are two reasons why this amendment has some merit. First, we need these species control orders to be effective and humane. That is where I have a slight difference of opinion with the noble Lord, Lord Davies of Oldham. We may have disagreements about the outcomes of the Government’s badger-culling pilots, but the Government went in on the basis that the pilots were to test whether a cull was effective, humane and safe. These species control orders should follow the same principles of being effective and humane.

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My second point, which may find more favour with some in government, is that clearly whether species control orders go ahead and the cost attached to them will depend on how they are undertaken. It is a damn sight cheaper to free shoot than it is to trap and shoot. Whether a form of species control is humane will have an impact on the cost. Therefore, when we are setting up the principles behind these species control agreements, it is important that a marker is set down that they should be humane, because that will have an impact on the cost, which will be determined on a case-by-case basis for these species control agreements.

For those two reasons, this amendment has some merit. Equally, I think it has the merit that it does not stipulate the control method to be used for each of these species control agreements but talks about the principles for the code. That is what we should be doing. We should be setting down some fundamental principles in the code which can then be interpreted on a case-by-base basis for each of the species control agreements.

Baroness Kramer: My Lords, the noble Lord, Lord Davies of Oldham, is quite right that most people who find that there is a non-native invasive species on their land are glad to co-operate. Unfortunately, about 5% will not. We have experience of this, particularly in the south-east, where it has been extremely difficult to get access when there has been a suspicion about the presence of the North American bullfrog, which eats every amphibian it comes across, and there have been various problems caused by floating pennywort. Unfortunately, there is a history of non-co-operation with access as well as non-co-operation with eradication. We have to be realistic about the consequences of that.

We are attempting to capture beavers and test them because the great fear is that they are Bavarian and come with an extremely nasty disease that is common to Bavarian beavers. Frankly, I had not heard of it before this Bill, but it is a zoonotic disease that I am told one must avoid at all costs.

Amendments 74 and 78 would require the respective codes of practice to set out the standards of animal welfare required when carrying out species control agreements and orders. We agree that control operations need to be consistent with existing published government policy on the welfare of wild animals. Your Lordships may wish to know that the EU invasive alien species regulation that is expected to come into force on 1 January 2015 requires that,

“animals are spared any avoidable pain, distress or suffering”,

in the carrying out of eradication or management measures for those species subject to the regulation.

As the noble Baroness, Lady Parminter, underscored, we have a very useful code of practice that is going to play a very significant role in the use of these control orders. I give a commitment to take a look at that code of practice and see whether there is a sensible way in which to specify welfare obligations in that. If there is, we will come back with a response before Report, because it is our intent to make sure that animal welfare is appropriately protected. I hope that that is sufficient reassurance to allow the amendment to be withdrawn.

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2.30 pm

Lord Davies of Oldham: My Lords, I am grateful to the Minister for those concluding remarks. Of course, we accept the outcome of her investigation of the situation. I think that that is a safer path, for her, than quoting the European Union control orders, which might be a little inflammatory in some parts of the House, though not on my side. I beg leave to withdraw the amendment.

Amendment 74 withdrawn.

Amendment 75

Moved by Lord Davies of Oldham

75: Clause 16, page 18, line 21, at end insert “and the Environmental Audit Committee of the House of Commons”

Lord Davies of Oldham: My Lords, this amendment and the others grouped with it seek to add to the list of those who have a crucial part to play. None of us has anything but great respect for the work of the Environmental Audit Committee in the other place, which has done a tremendous job in reviewing invasive non-native species and highlighting what needs to be done and how we can improve the situation. It would surely be hugely beneficial to have it involved in the process of issuing, revising or replacing the codes of practice for invasive non-native species. That committee is on record as being very supportive of the implementation of the Law Commission’s proposals and some time ago highlighted the need for this to be a priority for the Government. We think that there is a clear role for that committee, particularly against the background of there being more limited resources to hand for the Government in carrying out this crucial evaluative work.

Our remaining amendments involve the local authorities and local nature partnerships. The simple fact of the matter is that most local authorities do not have the capacity or the ability to assess biosecurity risks and to take a proactive or intelligence-led approach to reducing them. Two-thirds of our local authorities no longer employ any ecologists, according to the Association of Local Government Ecologists. The evidence suggests that ecological capacity within local government is stretched very thin indeed, but it has a very wide policy agenda. We are here debating this Bill because that agenda is extending, and we are trying to respond to those difficulties. There is clearly an ecological skills gap within the planning system and a clearer understanding of the specialist ecological competence is required, especially in understanding exactly what the discharge of statutory obligations involves. Having that clearer understanding would enable local government to allocate better its resources against the risks associated with the fact that it no longer has the level of technical expertise that it once had. When dealing with biosecurity issues such as diseases, pathogens and invasive non-native species, 75% of local government ecologists indicate that only “basic” or “capable” levels of competence are required at that stage. There is a worry about the ability of local authorities to play their part effectively, and that is why we would like a reference to local authorities in the Bill in addition to the crucial role of the Environmental Audit Committee.

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It may be thought that I am putting enormous stress on a committee of the other place, but so much competence for dealing with these areas has been swept away that inevitably we have recourse to those obvious locales where expertise exists and can be called upon. The Environmental Audit Committee report has been of the greatest significance in the development of policy. I am seeking to strengthen the role of those who have some capacity to assist the Government, with their limited resources, in carrying out the necessary functions under the Bill. I beg to move.

Viscount Hanworth (Lab): My Lords, the comments that I wish to make may have some relevance to the codes of practice that will accompany the Bill. Amendment 71, in the name of the noble Lord, Lord Berkeley, which has already been debated, could have been a cue in its own right for a wide-ranging and interesting debate.

The noble Lord, Lord Berkeley, proposed the definition of a species. A species is commonly defined as the largest extent of a group of organisms that is capable of interbreeding and producing fertile offspring. That is similar to the definition that the noble Lord, Lord Berkeley, was advocating, which also mentioned the exchange of genes. However, his definition did not include the fertility of the offspring as one of its conditions. Moreover, we know that bacteria of widely differing species can exchange genes via plasmids, which are small DNA molecules that can be separated physically from the chromosomal DNA. One might wish to exclude bacteria from the definition.

These are abstruse matters and I do not wish to pursue them further. Instead, I propose that in place of “invasive non-native species”, the legislation should be talking simply of “pests”. I assert that it is inappropriate to talk only of non-native species. The objection might be raised that the word “pest” is too vague to serve the purposes of this legislation. What is a pest in one context might be a harmless organism in another context. However, this is one of the realities that ought to be taken into account. I will mention the well known example of the English rabbit. When transferred to Australia, it became a major pest that threatened the viability of Australian agriculture. Rabbits destroyed the grazing land and by eating native plants and grasses exposed the top-soil and left it vulnerable to erosion. One way of overcoming an infestation is to alter the ecology by introducing a predator of the pest, or by some other means. In Australia in the 1950s, the ecology of the rabbits was altered radically by the introduction of a malign myxoma virus, which causes myxomatosis in rabbits.

The point I wish to make is that we need to consider pests within their ecological contexts, and ecology can be severely disturbed by inadvertent human interventions. Often the effect of a human intervention is to diminish the diversity of the ecology by eliminating some of its organisms, which may allow others to propagate without restraint. Thus an organism that has hitherto been regarded as harmless may become a pest as a consequence of such disruption. This is an ever present hazard in intensive modern agriculture. The matter of whether an organism is native or non-native is beside the point.

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An ancient example will serve as an illustration. It is provided by a variety of grasshopper that was originally confined to the Middle East, which has latterly invaded the entire African continent. This is the locust, of which the pestilential effects emerged when the advent of agriculture upset an ecological balance. The Book of Joel in the Old Testament provides a graphic description of a locust plague in the Middle East.

The point that I wish to make is that we should approach the problem of ecological imbalance not by programmes of localised pest control but in a holistic manner that takes a far wider ambit. Instead of relying on local pest control officers to deal with outbreaks of invasive species, we should be relying on our public sector research establishments to monitor our natural—and our unnatural—environments so as to guard against pestilential outbreaks and to suggest the necessary countermeasures. This reinforces a point that has already been made by my noble friend Lord Davies, and I hope that his comments might be taken into account at a later stage when we come to review the Government’s deliberations.

Baroness Kramer: My Lords, those of us who were privileged to participate in the Defra visit the other day—an opportunity that many of your Lordships took up—will have been very impressed to see the care and control and the deliberate and constant testing and assessment that Defra uses before enabling any biological controls to be used for some of these invasive species. Obviously, that is one direction that is under examination for Japanese knotweed, that much-hated plant, but it sits outside the scope of this legislation, which focuses very much on new invasive species that are not ordinarily resident and where there is a potential for eradication to succeed. The Bill has a narrower target, but other pieces of legislation sit alongside it that tackle, for example, invasive non-native species that are a threat to plant and animal health. So the Bill sits within a much broader context.

The amendments focus on the need for wider consultation on the code of practice. It has always been the Government’s intent to engage a great deal with expertise, with stakeholders and with others on the code of practice, which will be a substantial and complex document that will certainly need a great deal of thought and care. We continue to think about how we should carry out that engagement, and we would like to take a little more time to consider those issues, including the option of undertaking a full public consultation on the code. I can commit that I will have a response on the issue before Report, but I assure your Lordships that it is our intent to have that kind of intensive engagement, including with a number of parties that have been named today. We would like to take this away and think a little more on it, as the code of practice will be complex. However, it is indeed the Government’s wish to be able to tap into that expertise and thinking in order to make the code as effective as possible.

On that basis, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Davies of Oldham: My Lords, I am grateful to the Minister for her thoughtful and constructive response, and I certainly beg leave to withdraw the amendment.

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Amendment 75 withdrawn.

Amendments 76 to 79 not moved.

Clause 16, as amended, agreed.

Amendment 79A

Moved by Lord Best (CB)

79A: Before Clause 17, insert the following new Clause—

“Housing as nationally significant infrastructure

Within 12 months of the date on which this Act is passed, the Secretary of State shall introduce a bill to change the definition of “nationally significant infrastructure project” in the Planning Act 2008, to include development programmes that contain over 1,500 residential units.”

Lord Best (CB): My Lords, after hearing about Louis XVI, possum whisperers and a plague of locusts, I think that Amendment 79A might bring us rather down to earth.

Amendment 79A seeks to include major housing developments in the projects that can be defined as “nationally significant infrastructure projects”. The amendment would pave the way for the Bill to address one aspect of the acute problem of housing shortages in the UK. I am grateful to the National Housing Federation for its briefings on this and also for the advice from one of the UK’s foremost planners, Professor Kelvin MacDonald.

2.45 pm

I will not rehearse the problem that this amendment seeks to address. We all know that more or less everybody under 40 in this country now has a housing problem of some kind. At one extreme end, there is homelessness, gross overcrowding and two-hour commutes to work every day. Even those who manage to buy a flat—those younger households who have managed the deposit and moved into somewhere—have the difficulty of moving on in the next stage of their life. Affordability follows them now. Even if one gets on to the bottom rung of the ladder, one can find difficulty moving up from there.

We know why everyone has this severe problem. It is because of the acute shortages of housing. For some years we have not built the same number of homes as we have created new households. As the figures now stand, there is a demand for 243,000 homes each year through to 2031, but this year we are building something like only 120,000 of them. That is a huge deficit to add each year to the deficit already there. This issue is not confined to any specialists. Across the piece, everyone now recognises that what we need is to build more homes. Chancellor George Osborne, Governor of the Bank of England Mark Carney and certainly Planning Minister Nick Boles are all vocal in saying that we must ease housing shortages by building more homes.

We know that if we depend on a handful of major housebuilders to do that for us, it will not happen. We know that reliance on the big six housebuilding companies produces very small results—they go increasingly for value, not volume. The numbers of homes being built do not seem remotely to reach the targets that all

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political parties are now setting. It is agreed generally across the piece that it would be good to get to 200,000 homes a year by 2021, but that is still some way short, by some 40,000 or 50,000 homes a year, in addition to the backlog of homes that we do not have.

What is to be done? Remember that what looks to be a target of 200,000 homes a year is far less than we achieved year by year in many decades in times past. It is not a very big number. Even that target—200,000 homes a year—at the moment looks pretty ambitious. This amendment seeks to improve the position in one relatively modest way, but one that could see more homes built, homes built of better quality, bigger homes and homes that are more sustainable and set in a decent environment. If you develop at some scale, you can do your affordable housing and combined heat and power plant and build in all those extra ingredients that mean you are building not just houses but new communities.

I declare past interests. I looked after the garden village of New Earswick, built by Joseph Rowntree and started in 1904. It was the precursor to the garden cities and used the same planners and architects as Letchworth and Welwyn. That relatively small community of New Earswick village—something over 1,000 homes to the north of York—was able to provide all the kinds of community facilities that made life better than just building houses.

If we build major developments, we get sustainable communities as a result. Prince Charles’s Poundbury is probably the best known example of this. It has some defects but is not a bad example of how communities can be created. The Chancellor announced that there will be support for a new generation of garden cities, Ebbsfleet being the first. However, achieving the Chancellor’s dream of new garden cities—and achieving developments of more than, say, 1,000 homes—is an extraordinarily difficult task.

A hundred years after the creation of the village of New Earswick, to the north of York, we started building, or attempting to build, another new settlement to mark those 100 years. Rowntree, which, of course, had the resources from the chocolate company, looked for sites and we acquired a 53-acre site to the east of York. Today, 10 years on, a really fine development of 550 homes is being built there. The homes are for mixed tenure, for sale and for rent, with all the facilities one would expect, lots of green space and, indeed, a combined heat and power energy source that means people’s bills are very low. It is a prime example, but it was no mean task to get even a 550-home development off the ground. It took eight years of extraordinarily hard work and a great deal of head banging.

I am suggesting in this amendment that 1,500 homes would be the marker for a reclassification of the development as a nationally significant infrastructure project. What would that mean? The Planning Act 2008 created a streamlined authorisation process for projects that are classified as nationally significant infrastructure projects. In 2008, the headings for those projects were energy, transport, water, wastewater and waste. Last year, the Growth and Infrastructure Act 2013 allowed the Secretary of State to extend that definition to cover other projects which would get the same fast-track

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planning arrangements. These new projects would cover significant business and commercial developments. Last November, the Department for Communities and Local Government spelled out the kind of projects that might be included: big office developments, research and development, manufacturing, distribution, sport and tourism—a big film studio is having a go at this—and mining projects. All these could be treated speedily through the planning system if they were deemed to meet national rather than local priorities.

There are big advantages to getting this designation. The Secretary of State has 28 days to decide whether something is nationally significant and the Planning Inspectorate needs to deliver a final decision within one year. This sounds a relatively long period and it allows for consultation, but it is immensely faster than one would expect a major scheme to run at the moment. It is also a one-stop shop for planning. Planning consents for big schemes often require a succession of multiple consents. Having a single authorisation process is really helpful. The essence of this is that the inspectorate would decide that the development is in the national interest and not just in the interests of the particular locality. However, noble Lords will notice that housing is excluded from the list I read out.

The criteria for judging whether something is nationally significant are spelled out in the DCLG guidance. There are four ingredients. The first is that a project,

“is likely to have a significant economic impact, or is important for driving growth in the economy”.

Just ask Mark Carney whether housing matters in terms of economic impact and driving the economy. Firms cannot recruit the people that they need; people cannot move around the country; indeed, people leave the country. The economic consequence of everybody paying an enormous amount of their income on housing at a young age has ripples right through the wider economy, not just for those on the lowest incomes, who always suffer most. I think that the criterion is well met by housing projects of this kind.

The second criterion is that a project,

“has an impact across an area wider than a single local authority area”.

If you are building a major housing development, people travel all over the place. At Poundbury, Prince Charles thought that people would tend to work in some of the work opportunities that that village on the side of Dorchester created. Not many people do. They go off in their cars to Weymouth or anywhere else where the jobs are. A major housing development feeds an area wider than simply the place in which it is situated.

The third criterion that the Government have put forward is that a project is,

“of a substantial physical size”.

In defining that for construction projects, they suggest anything over 40,000 square metres of gross internal floor space. I have calculated that that is the equivalent of about 500 homes. The figure of 1,500 as the threshold here is three times bigger than it would be for a big office block. The threshold of 1,500 has been chosen because that is what is currently used by the Department

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for Communities and Local Government when it is allocating major development and infrastructure funding. That definition is already out there.

The fourth and final criterion that the Government are using for judging whether the project is nationally significant is that it might be linked to a significant project, such as a new railway station. Housing developments are often linked to infrastructure, and it is important that they should be. That one gets a tick in the box.

Why not housing? Why is housing excluded? The guidance from DCLG is fairly brief on this. It states that,

“housing is a primary responsibility of local planning authorities who should be responsible for ensuring an adequate supply of housing in their area”.

That is all good and well, but it is totally unrealistic to expect planning authorities to be enthusiastic about major developments on their doorstep when their elected members have to run the gamut of people who do not think it is a great idea to live next to a major new development built right next to them. Noble Lords will recall that when Stevenage, the first of the new towns, was started, people changed the name of the railway station by plastering over the sign with a new one saying “Silkingrad”. Lewis Silkin’s car tyres were let down and he was jeered and booed from the sidelines. It was not a popular idea that a new town be created at Stevenage, and who is surprised by that? Nobody is surprised.

I am the greatest fan of localism, right down to community level, but localism and major housing developments do not co-exist. These two concepts do not work well together. There is the duty to co-operate across local authority boundaries—if the development straddles a boundary or is just the other side but is serving the needs of a local authority on the other side, the duty to co-operate exists—but I am afraid it dissolves and disintegrates when we are talking about major housing developments. It is just not fair to leave it up to local authorities to say yes to major developments. Local interests are bound to prevail, and so they should at local level. The point is that these projects are of national significance—hence their redefinition.

A Bill that reclassified major housing projects as nationally significant infrastructure projects, as with the new definition for offices, sports facilities and all the rest, could make a really significant contribution to easing housing shortages and helping Governments of whatever political persuasion meet the targets that we all know we have to meet but which, at the moment, show very little likelihood of being met. I beg to move.

Lord Tope (LD): My Lords, I added my name to this amendment and am very pleased to support the noble Lord, Lord Best. He has described the need for these measures and the reason for them very fully, and I do not intend to repeat all or, indeed, much of what he said, most of which I agree with.

I am a very strong localist. I am not sure I go wholly with him on his concerns about localism and housing need, but my party has a target in its policy to build 300,000 houses a year by the year 2030. We at least have the realism to describe that as an ambitious target. That is probably a modest description.

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3 pm

I recently had occasion to chair and speak at our Liberal Democrat local government conference; we had a very interesting session on localism and housing, where we tried to address exactly the sort of problems to which the noble Lord, Lord Best, referred. We all recognise the urgent need—never mind by 2030—for more housing. All of us, especially those of us who are or have been councillors, recognise that that urgent housing is usually desired somewhere other than where we live. That is too often the local reaction, but if we are to get anywhere near achieving whatever target is set, and ambitious targets have been given, something has to change. There is no possibility of achieving whatever figure one chooses, whether it is 300,000, 250,000 or even 200,000, under the current regime. As the noble Lord, Lord Best, rightly pointed out, every year that we fail to reach that target, the deficit grows. It is quite probable at the current rate that by the year 2030 our target of 300,000 will not be seen as ambitious. It will be seen as falling even further short of where we need to be.

I supported this amendment to give us the debate today because we need to recognise with measures such as this—and there is no single measure that achieves it—that a community of 1,500 homes is a significant and substantial community. Personally, I prefer the expression “garden communities” to “garden cities”; it possibly has a better connotation. It is a significant community that needs infrastructure and is far beyond the reach, probably, of many smaller local planning authorities as well. Therefore, we need seriously to consider measures such as this.

I get very frustrated when political parties—all of them; we plead guilty, too—trade statistics to prove which Government were worst over the years. The reality is that no Government, including mine, have yet been anywhere near good enough, and we need to recognise that. We need to have a long-term housing plan to get nearer to and, I hope, achieve the ambitious targets that are set. We should not keep bandying statistics or building for value rather than volume which the noble Lord, Lord Best, said many of the bigger builders seem to be doing. I would be a little cautious about just building for volume. We need the right sort of housing in the right places. It is not simply a matter of volume; it is a matter of a whole range of things, such as design and quality, and houses being in places where people want to live because there are jobs for them to go to, there is transport infrastructure to get them where they want to go and home again, and it is a community in which they want to live. That is infrastructure, and that is why I support the amendment, and the debate on this amendment. I hope that whoever is in government in 12 months’ time will at an early stage produce not necessarily the Bill called for in this amendment but rather a long-term housing needs programme that everyone can sign up to.

Lord Jenkin of Roding (Con): My Lords, the noble Lord, Lord Best, has made a very interesting and compelling speech. I am more than ever pleased that I was one of his supporters when he took his seat in the House. I have greatly admired what he has been able to

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do over the years since then, and this is not the least of his achievements. He made a strong case, and I entirely recognise that. The question that I ask is who would initiate these big schemes? I entirely agree with him that these are desirable measures, if we are going to try to reach our housing target, and I entirely agree with him that planning should not be an obstacle to that. The Planning Inspectorate, which, as the noble Lord said, would have to be the body to decide on whether to allow or disallow the investment for something of more than 1,500 houses, is not an initiating body. It does not propose schemes and is not a body like, for instance, the development corporations that now exist in some parts of the country. Its powers are not like those which the Greater London Authority and the Mayor of London have to initiate large schemes of housing, or indeed anything else.

On the point that the noble Lord made about the speed at which it has to approve applications made, of course that starts from the point when it is considering the application. One thing about the inspectorate—and indeed its predecessor, which was proposed by the former Government of the Labour Party—was that it insisted that all consultation of local opinion should be achieved and established before it started to consider the application. I think that everybody approves of that. It is a very good way of approaching this, so that when looking at the application and its impact you do not waste a lot of time on questioning whether local communities or other local interests were consulted.

I am interested as the noble Lord, like me, is of course a champion of localism. At Second Reading, I criticised the Local Government Association’s statement that it did not see planning as an obstacle to growth and development. I quoted some statements that have been made regarding the interests of those who see this from another perspective. I felt, as I argued, that that was a rather unrealistic statement. Of course, it has to be speeded up, but I had a long brief from the Local Government Association, as we have all done from time to time on various Bills. I am a vice-president of the LGA, but it is interesting that it has not offered any comment on this amendment, neither for nor against. It has argued—this is perhaps my central point—that what is needed is organisations which will promote the kind of development that the noble Lord, Lord Best, has been describing. It has argued that there ought to be development corporations along the lines that now exist in certain areas.

I am a huge supporter of the various efforts that have been made to encourage local authorities to join together, perhaps over quite a wide area. One has seen that first in the city deals that have been made, which are proving quite extraordinarily effective. They are a very interesting new instrument of localism, which will surely produce substantial benefits for the future. However, it goes wider than that as it is not just city deals but local authorities which can get together to plan and initiate projects, for which they can then find investors and so deal with them. To my mind, that is the way that it should be done. If you then have local authorities or, as I think it would have to be, development corporations formed by local authorities, that is the way in which they can have what I certainly support: that the decisions should be made locally.

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The difficulty with this amendment, although I understood clearly and listened with great interest to the arguments, is that it goes contrary to the whole thrust of policy in many of these related areas: seeking to devolve authority from the centre down to the locality.

Of course, the noble Lord is quite right that there are always nimbys, and that is a problem that has to be addressed. When I was Environment Secretary, my very splendid chief planning adviser John Delafons— who is sadly no longer with us—after asking me, “Secretary of State, have you heard of NIMBYs?”, to which I said yes, he asked, “Have you heard of NOTE?”, to which I said no, so he explained: “Not over there either”. He also had another story that I liked: “The man who occupies the end house in a new housing estate on the edge of a town promptly becomes the secretary of the local conservation society—‘I’m all right, Jack, and I don’t want any more!’”. Those are the kinds of very human, but really rather damaging, impacts that these influences can have.

Would centralising the decisions into the hands of the local Planning Inspectorate make any difference? It might, but surely the right answer is for local developers—or perhaps development corporations supported by a consortium of local authorities, as might be necessary—to win the argument. Some of them are very good at it; others need to match their skills. However, I have some doubts about whether centralising the decision into the hands of the Planning Inspectorate, which is what the amendment calls for, is the right way forward. It might help, but it would also do other things that may be less helpful. Indeed, I think that there are better ways of doing this. It is interesting that local authorities have been arguing for the right to set up development corporations as the Mayor of London can do, but they have not actually put any amendments to me about how that might be properly achieved. Perhaps that is an issue to which we can return on Report, which might be a better peg on which to hang this.

I end on the note with which the noble Lord, Lord Best, began, which is that nobody doubts the acute seriousness of the housing problem in this country. In part, the problem is about overcoming environmental resistance, although one can understand some of that; in part, it is caused by the difficulty of getting developers interested in brownfield sites. I was very struck by the statement made by my right honourable friend the Secretary of State for DCLG, Eric Pickles, which was repeated by noble friend Lady Stowell on 16 June, about what is being done to encourage more development on brownfield sites. There will be extra help for London, but more important is that the success of London in getting ahead of this is now to be emulated in other parts of the country. It seems to me that these are the ways in which one ought to try to deal with this.

I will therefore listen with great interest to my noble friend’s response to the amendment, which has a very considerable appeal, but I have to say that I am not wholly convinced that it is the right answer.

Lord McKenzie of Luton (Lab): My Lords, the noble Lord, Lord Best, got us off to a good start in our deliberations on Part 3 of the Bill. He touched

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upon a fundamental issue facing the country—and, indeed, as other noble Lords said, all political parties at this time—which is the housing crisis. I hope that the noble Lord, Lord Tope, will forgive me for quoting a few statistics in a little while, but this crisis is characterised by an acute housing shortage, with housebuilding falling to its lowest levels in peacetime since the 1920s, home ownership being unaffordable for many low to middle-income families, a falling programme of homes for social rent, an unaffordable “affordable rent” model and a burgeoning private rented sector in which rents are rising—all accompanied by insecurity and uncertainty in the marketplace.

The Government will claim that they have built some 445,000 houses since 2010, but this represents just over 110,000 a year—way short of what we need, the 243,000 figure quoted by the noble Lord, Lord Best. This is less than half of what the country needs. Figures from the House of Commons Library show that since 2010 the gap between housing supply and demand has increased by more than half a million homes, with London bearing the brunt of the increasing shortfall. It has been reported that DCLG Ministers have been advised of the prospect of the number of housing starts falling in 2014, with just 16,000 affordable home starts. Perhaps I can ask the Minister whether that is correct.

3.15 pm

However, I acknowledge that the gap is not a new phenomenon. Although the previous Labour Government built nearly 2 million more homes in England, including half a million affordable homes, between 1997 and 2010, more were needed. This is despite 2007-08 seeing the largest increase in net additional dwellings for 30 years. But that was far short of what we built in the 1950s and 1960s. I think it was Harold Macmillan, as Housing Minister, who reached 300,000. In Harold Wilson’s Government in the mid-1960s, something like 350,000 homes were built in a year, so we can do it.

The noble Lord, Lord Best, challenges us to say what we are going to do to address the crisis. He offers the specific proposition about using the infrastructure planning regime for larger developments. I find myself constrained from being as expansive as one would wish in this debate, given where we are on policy formation. In particular, we—the Labour Party—await the report of a housing commission set up by Ed Miliband and chaired by Sir Michael Lyons. Nevertheless, we are on the record as saying that we plan to increase the supply of new homes in England above 200,000 a year by the end of the next Parliament—not 300,000 by 2030.

Such plans include giving local authorities that want to expand the right to grow, with access to a fast-track planning process to resolve any disputes with neighbouring authorities that are blocking development, and support to accelerate the pace of development. I agree that the duty to co-operate is simply not working. A “use it or lose it” principle will give councils proper compulsory purchase powers to tackle land-hoarding, and powers to charge developers escalating fees where they are banking land with planning permissions. The delivery of a new generation of new

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towns and garden cites is a proposition that is common to all parties now, I believe, and should be welcomed. We wish to see reform of the housing revenue account system, creating a less bureaucratic and more flexible system that enables councils to build, and backing communities by giving them a greater share of the benefits from development.

We also need to boost small to medium-sized housebuilders. Access to land is crucial and we would require local authorities to include a higher proportion of small sites in their five-year land supply to boost small and custom-build, with guaranteed access to public land for smaller firms and custom builders. We would commit that a proportion of the homes built in new towns and garden cities would be built by smaller firms and custom builders; increase transparency in the land market by ensuring that developers register the land they own and have options on; and give people the chance to sign up for a waiting list for custom-build co-operative homes or community land trust projects, with local people having priority.

Having set this out, there is clearly a need to seek a long-term consensus, that is, not fractured by a four or five-year Parliament and changes in Governments, to address the housing crisis. We have been able to forge some longer term consensus around public and private pensions policy, for example, although that grappled with how much and who pays rather than where it goes, which is an extra dimension of a housing consensus. We seem to be in an era where there is some agreement about new towns and garden cities being a route towards a step-change around housing provision. Whether there is a shared vision of what this means is another matter, but it provides some prospect of delivering over the long term.

Can the local planning system deliver large-scale growth? It might be argued that there is in principle no barrier, but it would be challenging, especially if we contemplate, as we do, the scale of development contemplated by a new towns programme. The noble Lord’s amendment sees salvation in larger scale developments being facilitated by the use of the major infrastructure planning regime, but like the noble Lord, Lord Jenkin, we have some reservations about this approach if the scale of the development is that of the new towns model. As the TCPA put it,

“the complexity of creating a whole New Town is such there is much more to do, over a much longer timescale, than building specific infrastructure, no matter how large or complex”.

There is a case for using the infrastructure route for developments which might sit in size between new towns and smaller scale developments, perhaps as an intermediate approach. The difficulty is where it leaves the local planning authority—the point made by the noble Lord, Lord Jenkin—which has the key responsibility to plan for the housing which is needed over the local plan period. We propose that its role will be enhanced in this respect by our “right to grow” proposals, so we have some reservations about the amendment, which we accept is a probing amendment. We have no reservations in recognising that there is a need for a long-term policy to tackle our housing crisis and the role that housing associations, in particular, can play in this.

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I went back to the debates we had just over a year ago on this issue during the passage of the Growth and Infrastructure Bill. The Minister’s predecessor, the noble Baroness, Lady Hanham, set out the Government’s position, which was the importance of the local planning authority in these matters, with the reservation that if major schemes that might indicate a need for a decision at national level came forward, the call-in route might be a way of dealing with that. I do not know whether that is still the Government’s policy, but that may bridge the situation between larger scale developments and the role of the local planning authority, which we have always seen as sacrosanct and a key building block of effective planning and the creation of the homes that we need.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Stowell of Beeston) (Con): My Lords, as this is the first time that I have contributed to debates on the Infrastructure Bill as the Minister responsible for Part 3, I start by saying what a privilege it is to be working alongside my noble friends Lady Kramer and Lady Verma. I do not know whether anyone else has noticed that on a Bill all about heavy stuff—whether roads, construction or energy—somebody clearly decided it was a job for the girls. I am glad to be part of that team. Like my noble friend Lady Kramer, I will be very happy to make myself available at all stages of the Bill if any noble Lord interested in Part 3 would like to have a meeting to discuss any issues. We have had a couple of briefings already, but I am very happy to do more of that type of thing if noble Lords would find it helpful.

Turning to the amendment moved by the noble Lord, Lord Best, I agree that we need more housing. That is a clear goal for this Government, and I know it is shared by all parties. I am pleased that this Government have made significant progress, as the noble Lord, Lord McKenzie, acknowledged. Since April 2010, more than 445,000 homes have been built. Last year, the number of new homes being built was up 31% on the previous year and is the highest since the crash in 2007-08, but we need more and we are working to ensure that we continue to improve on that figure. Indeed, the measures in the Bill demonstrate the importance we attach to our efforts to increase the supply of housing.

However, we disagree in principle with the noble Lords, Lord Best and Lord McKenzie, about who is best placed to make decisions on where new housing should be situated. There is a fundamental difference of opinion between us on that. This Government remain convinced that it is the responsibility of local councils to plan to meet housing need through their local plans. Forcing developments with more than 1,500 units through the nationally significant infrastructure regime would significantly reduce this responsibility and would be a move away from local decision-making, which we feel strongly about. It is worth making the point that we know from past experience that when Governments try to impose massive new developments on local areas, they tend not to happen.

Local plans should be at the heart of the planning process in an area and decisions whether to grant planning permission on major housing or mixed-use

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developments, which this amendment also covers, should be taken in that context. I note that my noble friend Lord Tope said that ensuring that the right homes were situated in the right places was key. We think that is something that local authorities are best equipped to do. In May 2010, 17% of local authorities had adopted a local plan. However, as of this month, 56% of them have adopted local plans, and 79% have published them, so we have come an awfully long way in the four years since we came to power.

It is also worth pointing to the strong improvement in the planning permission regime. More than 178,000 residential planning permissions were granted in England on major sites in 2013-14. That was 23% higher than the year before and 50% higher than the year before that, so the planning process is speeding up and is leading to more sites being approved, which is clearly good news. In fact, compared with the year before the introduction of the national planning policy framework in 2012, there was a 21% increase in the number of homes being approved on all sites in 2013-14. Therefore, real progress is being made in new homes being approved through the regime that we have introduced.

The noble Lord, Lord Best, portrayed the timetable for progressing a business and commercial scheme under the nationally significant infrastructure scheme in a more simplistic way than is the case in practice. Indeed, I think that my noble friend Lord Jenkin acknowledged that. I should make it clear that the timetable is 28 days for a decision on whether a plan is nationally significant. Then there is the public consultation, which could be as extensive as taking up to a year. Then you have the application itself; and then, if that is accepted, the consideration process could take a year to reach a decision. So it could be longer than one year and perhaps anything up to two to three years in total, depending on the complexity of the scheme.

I would argue, therefore, that the nationally significant infrastructure regime is not the silver bullet that perhaps the noble Lord, Lord Best, and others might want us to believe it is in terms of solving the housing crisis, because there is no guarantee that housing schemes will be approved should they go through that regime, and they will not necessarily get permission any faster, because there is normally at least 12 to 18 months of pre-application work, including the local consultation that I have just talked about, before a scheme can be submitted for examination. So using speed as an argument for adopting the nationally significant infrastructure regime is something that I would argue strongly against.

3.30 pm

Fundamentally, I would argue that the amendment is trying to fix the wrong problem. The Government are aware that there are a number of viable and shovel-ready sites where development is stalled, not because of difficulties in getting planning permission but because of difficulties in obtaining suitable finance. It is for this reason that the Government launched the large sites infrastructure programme, which has already supported 21 stalled major housing schemes through loans, capacity funding, brokerage with statutory consultees and planning support, and which should unlock a further 80,000 homes in the medium to long term.

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I can give noble Lords a couple of examples. Cranbrook in Exeter is a new community for 6,000 homes, and the government local infrastructure fund loan of £20 million was used to fund infrastructure and school facilities to unlock phase 2. Phase 1 already has residents moved in and phase 2 is now under way, with the first residents due to move in by the end of next month. There is a large scheme in Sherford and another one in Kettering; even on the Manchester city fringe there is a major redevelopment of the Ancoats part of the site, with a government loan of £18 million to unlock 1,500 homes and work is expected to start in September.

The fund that we have made available is having a significant impact. In the Autumn Statement last year, we were successful in securing another £1 billion of funding to continue this programme, and published a prospectus inviting bids from developers and local authorities in April. We will announce a shortlist of successful bids in the next few weeks.

My noble friend Lord Jenkin talked about local development corporations and made the point about who initiates these schemes. I do not want to get ahead of debates on later groups, because I think that we will probably get into that in more detail later on—if not today, certainly next week. I make the point to my noble friend that local authorities already have the powers that they need to initiate. I can talk more about that when we get to that specific group of amendments.

Finally, the noble Lord McKenzie, referred to comments made in the debates on the Growth and Infrastructure Bill by my noble friend and predecessor Lady Hanham. The Secretary of State retains the ability to call in projects for his own consideration, but he will generally consider doing so only if planning issues of more than local importance are involved; for example, when development may have a significant long-term impact on economic growth and meeting housing needs across a wide area. So that remains in place.

I hope that in my response I have been able to reinforce the Government’s absolute commitment and the priority that they attach to increasing the supply of housing. In this first debate on this part of the Bill, I hope that I have demonstrated how much effort at a high level is being applied in this area. No doubt we can talk about some of the specifics in later groups, but I believe that the fundamental difference is the Government’s strongly held view that decisions on housing should be for local authorities to make. While I support the principle of what the noble Lord, Lord Best, and my noble friend Lord Tope are trying to achieve, we feel that the measures we have in place are the right way forward. I hope the noble Lord will withdraw his amendment.

Lord Best: I am very grateful to noble Lords for their contributions to this little debate. The noble Lord, Lord Tope, made the point that something has to change. There has to be something a bit more dramatic, I think, than the measures we are currently working on. He also made the point that it is about quality, not just quantity, and one of the great things about a major development is that you can get the quality. If you are building just 40 houses and cramming them into the space that you have, the housebuilder

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often sacrifices quality. If you have a master plan working to create a garden village or even a garden community—I like that—on any scale, you can make it work because you have the numbers there.

The noble Lord, Lord Jenkin, was supportive of the need to do more but had his doubts about this particular way of helping. He made the point that it is important to identify who is going to initiate major developments. The use of development corporations, with consortia of local authorities, is absolutely the way to create the vehicles that could then take advantage of an easier, fast-track planning system. They would be the chief beneficiaries. It might be through local enterprise partnerships’ city deals. The Olympic Village was a wonderful example of how the growth boroughs in that area collaborated and achieved what remains a very important piece of housing.

Lord Jenkin of Roding: The noble Lord mentioned the Olympic Village. He is quite right to give credit to the local authorities in the area. Having read the report by the London Borough of Newham on what it has achieved through that, I think it deserves the highest praise for what it has done. I have in fact written to the Mayor of Newham to express that view to him.

Lord Best: I agree entirely. The noble Lord, Lord McKenzie, was very supportive but had some doubts. It was important to hear the plans that are now being formulated by the Labour Party. I know that Sir Michael Lyons’s review is due out fairly soon. I think that will be a creative and important contribution to the debate. The noble Lord, Lord McKenzie, made the point that long-term consensus is going to be essential and we have to work our way towards that, even though he has some reservations about this particular approach.

I thank the noble Baroness, Lady Stowell, very much for her response and for underlining the Government’s commitment to increasing supply, which is the essence of this. My suggestion is by no means a silver bullet, that is for sure. Loans, guarantees, et cetera, are all good; it is whether or not the volume that we need is going to be achieved by the measures that are currently there. With regard to reliance on local plans—remembering that you have no duty as a local authority to meet the needs of your neighbours or of the nation—your local plan must relate to the requirements of your own locality, and that may not encourage you to believe that a very major development is within your remit.

I take the point entirely that the pre-application process adds another year or so to the whole, so in total from beginning to end, with the 28 days from the Secretary of State at the beginning, one may well reach three years. But believe you me, three years for a major development is a triumph in relation to the time that we now must wait to get things done.

This is a proposal for a Bill, not a proposal in itself.

Lord McKenzie of Luton: How does the noble Lord see the issue of the use of the infrastructure planning regime for garden cities and new towns, given the scale

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of what they entail—very big developments over the longer period? The TCPA thought that the infrastructure planning process did not really suit that. That is why I thought we almost had three situations. There is the local authority with its usual planning role and responsibilities for housing. There are new town development corporations with the much needed mega-expansions. My reservations were about the extent to which intermediate positions would be best dealt with by the infrastructure planning regime or by some other route.

Lord Best: I am sure that that distinction is exactly right. A development corporation need not necessarily go for 15,000 homes, which I believe is the target for Ebbsfleet, the first of these new garden cities. We are looking here at the more modest proposals; ones that are none the less enormous in relation to the place. It may well be that the development corporation model works just as well with a master plan for 1,500 homes as it does for 15,000 and the opportunities that that brings with it, requiring something in between the mega and the everyday that can be encompassed within the local plan.

The amendment is a proposal for a Bill within a year of this Bill becoming an Act. That would give an opportunity for that Bill to take forward all the detailed aspects of this, things such as who exercises compulsory purchase powers in these circumstances or whether one requires a national policy statement as for other aspects of infrastructure that would go with this measure. That is all to play for. At this stage, I thank all those who joined in and beg leave to withdraw the amendment.

Amendment 79A withdrawn.

Clauses 17 and 18 agreed.

Clause 19: Changes to, and revocation of, development consent orders

Amendment 79AA

Moved by Lord McKenzie of Luton

79AA: Clause 19, page 20, line 19, leave out “or” and insert “to exercise a discretion, or with the consent of the Secretary of State, to allow”

Lord McKenzie of Luton: My Lords, this is a probing amendment that enables us better to understand what is intended by a very specific provision. It also gives us the opportunity more generally to assess progress on the process for dealing with nationally significant infrastructure projects.

To the narrow point first: for non-material changes to a development consent order, the duty to comply with consultation and publicity requirements is placed upon the person applying for consent as well as on the Secretary of State. The Explanatory Note suggests that that “may” happen although it would appear to be automatic given the wording of the Bill. Perhaps the Minister could elucidate. If it is not automatic, who makes the decision to place that obligation on the applicant? When it comes to the exercise of the discretion,

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it is not clear how prescriptive the regulations will be in setting the parameters of that discretion, and particularly what scope the applicant may have to, say, disapply prescribed consultation requirements. Perhaps the Minister could put something on the record in that regard.

We note that this clause and Clauses 17 and 18, which we support, spring from the review of the nationally significant infrastructure planning regime review. Much of what flows from that review will do so in regulations and guidance, much of it outside the timeframe for our consideration of the Bill. In principle, the direction of travel of that review is something we can support. The creation of the nationally significant infrastructure regime by the Planning Act 2008 was important in seeking to simplify and speed up planning consents for infrastructure projects, as we just discussed. However, even in the short time since that Act there have been changes to the legislation: transferring power back to Ministers, which was then delegated straight back to the Planning Inspectorate; widening the scope so that other major developments are included; eliminating the need for certain consents; establishing the consents service unit; and setting up the major infrastructure and environment unit.

3.45 pm

This planning regime is especially important given the current interest in infrastructure across the political spectrum, the recognition that the UK’s infrastructure has not been renewed or enhanced when needed and that something must be done about it and, in particular, the need for a political consensus for a 25- to 30-year plan. We have had the benefit of the Armitt review, which recommended a new independent national infrastructure commission to look 25 to 30 years ahead at the evidence for the UK’s future needs. It would then set clear priorities aimed at achieving cross-party political consensus, public support and investor certainty for long-term decisions on the UK’s energy, transport, water, waste, flood defences and telecommunications. We have common cause in ensuring that the infrastructure planning regime is operating as effectively and efficiently as possible.

At the commencement of the review, discussion identified that the system was working well, but can the Minister update us on progress? How many projects have been approved and in which sectors? How many are in the pipeline? How many and what types of projects are progressing under the expanded process set out in the Growth and Infrastructure Act? We note that much of the focus of the review recommendations, particularly around improvements to the pre-application process, falls upon the Planning Inspectorate. What reassurance can the Minister give about the capacity of the inspectorate to handle this and, I hope, growing numbers of projects? I beg to move.

Baroness Stowell of Beeston: My Lords, I am grateful to the noble Lord, Lord McKenzie, for outlining his support for Clauses 17, 18 and 19, and for explaining the reasons for tabling his amendment and seeking clarification about what we are intending with the proposals outlined in Clause 19. I hope that I am able

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to give him the reassurance he is looking for. I will do my best to be simple and straightforward in explaining this, but it is quite a technical thing to explain. I am quite confident that we share the same objectives, so I will give it a go and if needs be we can always talk further, I am sure.

Clause 19 will provide the framework for changes to regulations that will provide a quicker and simpler process for making changes to development consent orders. We will be consulting on changes to regulations shortly. For non-material changes, we will be proposing that responsibility for publicising and consulting on an application should in future lie with the applicant rather than the Secretary of State. Crucially, that will bring the process for making a non-material change in line with the rest of the Planning Act. In moving the responsibility for publicising and consulting on an application to the applicant, the Government want to ensure the necessary flexibility in the regulations to ensure that non-material changes that are unlikely to have significant impacts can be made quickly. In view of that, we intend to retain the provision in the existing regulations that would allow an applicant not to consult someone, but that would be only where they had gained the consent of the Secretary of State to do so.

I hope that the noble Lord, Lord McKenzie, and others who may be interested in this part of the Bill, have seen the briefing paper which we prepared in advance of this Sitting of the Committee. We circulated it by e-mail earlier this week. I will happily send it round again if anyone has not seen the document to which I am referring. The briefing paper gives a preliminary indication of the changes to the regulations on which we will consult later this month, so the consultation should start fairly soon.

The briefing paper does not suggest that we intend to change the current consultation and publicity requirements for non-material changes. I hope that once noble Lords have had the opportunity to consider the consultation paper on changes to the regulations, they will be reassured that the Government are not proposing to use the power of discretion provided in Clause 19 to allow applicants to decide who they should and should not consult. Applicants will continue to consult those persons and bodies set out in the regulations unless they have the consent of the Secretary of State not to do so. Given those comments, I hope that the noble Lord, Lord McKenzie, feels able to withdraw his amendment.

The noble Lord, Lord McKenzie, asked about progress on applications and decisions through the nationally significant infrastructure regime. Twenty applications have now gone all the way through the system and 19 have been granted consent, so that is a 95% approval rate. There was one refusal, which concerned the Preesall gas storage application. This project is being redetermined following judicial review. Four applications have been decided in 2014, with another nine expected, and 13 were decided in 2013. Two were decided in 2012 and one in 2011 through the Infrastructure Planning Commission. Therefore, the regime is being used, and we can see from the number of applications that the process is working. There are 56 applications in the pre-application phase and more in other parts of the

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system. I hope that gives the noble Lord the information he was looking for and that I have given him the reassurance he sought on this part of the Bill.

Lord McKenzie of Luton: I am grateful to the Minister for that explanation which dealt precisely with my narrow inquiry about the exercise of discretion. If I understood her correctly, it is clear that the Secretary of State’s permission will be needed if an applicant seeks to exercise discretion in this regard. The Minister gave a very helpful update on the statistics. It would also be helpful if at some point, not necessarily this afternoon, those figures could be broken down by sector or type of project and if a distinction could be made between those that arose in respect of the original construct of the infrastructure commission and those that fall within the expanded definitions and facilities in the Growth and Infrastructure Act. Having said that, I beg leave to withdraw the amendment.

Amendment 79AA withdrawn.

Clause 19 agreed.

Amendment 79B

Moved by Lord Tope

79B: After Clause 19, insert the following new Clause—

“Requirement for planning permission

(1) Section 57 of the Town and Country Planning Act 1990 (requirement for planning permission) is amended as follows.

(2) In subsection (3) after “a local development order” insert “issued by the local planning authority”.

(3) After subsection (3) insert—

“(4) Where a local planning authority propose to make an order under this section they shall first prepare—

(a) a draft of the order; and

(b) a statement of their reasons for making the order.

(5) The statement of reasons shall contain—

(a) a description of the development which the order would permit; and

(b) a plan or statement identifying the land to which the order would relate.

(6) Where a local planning authority have prepared a draft local development order, they shall consult, in accordance with regulations, persons whose interests they consider would be affected by the order.””

Lord Tope: My Lords, this amendment stands in my name and the names of the noble Lords, Lord Davies of Oldham and Lord McKenzie of Luton, and would enable local authorities to set their own permitted development rights. I am grateful to have the support of the Labour Benches for this amendment. I take it to be a commitment on behalf of the Labour Party that this will become government policy, should it ever be in a position to make it so. As we all know, the current system is centrally set and nationally determined and local authorities have extremely limited opportunities to change or vary what is set down nationally.

The Minister has already said today, and on many occasions, and I know she firmly believes it, that the people best placed to take these decisions are local

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planning authorities. We heard this in an earlier debate this afternoon. Local planning authorities are in a position to know what local needs, priorities and circumstances are, they know best what is needed to determine and stimulate local growth, yet they do not have the opportunity to set their own permitted development rights. Surely, it must follow logically from all that we all say that local authorities should have the power and ability to set such rights themselves. That is the purpose of this amendment, and in view of what has been said in earlier debates today I am confident of its acceptance. I beg to move.

Lord McKenzie of Luton: My Lords, as the noble Lord, Lord Tope, indicated, we have added our names to this amendment and we support it. It took me back to a debate during the course of the Growth and Infrastructure Act when identical amendments were moved and rejected by the Government. The Government’s defence then was that the Article 4 direction would be a route that local authorities could use if they were not happy with what central government was doing. At that point, there was disagreement between the LGA and the Government about how user-friendly that route actually was. The Government were going to talk to the LGA to see whether those matters could be clarified, so it would be very helpful to know whether any clarification was forthcoming. In particular, there was an issue about how the Secretary of State should approach the use of Article 4. I refer to the debate on the Growth and Infrastructure Bill:

“Is it still the position that the Secretary of State’s general approach to making an Article 4 direction, as set out in paragraph 4.23 of planning policy guidance note 15—”

here I asked whether that policy guidance still existed—

“is that, ‘permitted development rights should not be withdrawn without clear justification’?”.—[

Official Report

, 12/3/2013; col. 195.]

It would be helpful to know whether that interpretation is still imposed upon the Secretary of State in dealing with any Article 4 direction.

Having said that and raised those inquiries, I thoroughly support the position of the noble Lord, Lord Tope.

Lord Jenkin of Roding: My Lords, this will be considerably shorter than the last intervention I made. I assure my noble friend Lord Tope that I think this is a good point. It will certainly have my support, and I look forward to hearing the Minister’s response.

Baroness Stowell of Beeston: My noble friend knows that the last thing I ever want to do is to disappoint him, but I think that he is not going to be as pleased with me on this occasion as he might be on others. However, that is only because this amendment replicates what is already set out in secondary legislation. I am pleased to say that local planning authorities already have the power to make local development orders, so it is not necessary to make this change. Similarly, there are powers for a local authority to remove national permitted development rights where it has concerns about the impact of permitted development rights locally. As we have already heard, this is achieved through an Article 4 direction and should be done in consultation with the local community.

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The National Planning Policy Framework sets out that Article 4 directions should be limited to situations where they are necessary to protect local amenity or the well-being of the area. Article 4 directions should, therefore, be used sparingly as they remove relaxations which the Government have brought forward. These relaxations remove costs and burdens from local people and allow them the freedom and flexibility to make the best use of their properties. I know that there is a claim—noble Lords have repeated it today—that the Article 4 process is burdensome. However, we disagree. Rather it seeks to ensure that those whose permitted development rights are being removed are consulted and that there are safeguards against inappropriate use of the power. I do not think that there would be support for the reimposition of those burdens without proper consultation.

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Where the aim is to increase permitted development rights locally, local development orders provide a quick and simple way to do so. After a slow start under the previous Administration, the number of local development orders being put in place across England has continued to increase. Local authorities are recognising the benefits of this flexible tool which can be put in place through a simple and streamlined procedure. More than 65 local development orders have now been put in place in enterprise zones, and as we speak local development orders are contributing to growth by helping speed up delivery of everything from small domestic alterations to major industrial developments. That is the bit in my response that my noble friend Lord Jenkin might find encouraging.

We are further promoting the use of local development orders to bring forward much needed housing on brownfield sites. As set out recently by my right honourable friend the Chancellor of the Exchequer, we want local authorities to use local development orders to contribute to the granting of planning permissions on more than 90% of brownfield sites suitable for housing by 2020. We estimate that this could deliver 200,000 new homes. That these permissions will be delivered through local development orders confirms our commitment to encouraging local authorities to deliver housing to meet their needs. We will shortly be inviting local authorities to bid for a share of £5 million of funding to support local development orders for housing on brownfield land. This reinforces our commitment to local planning decisions being made at local level, which is a point I made in response to the first debate on Part 3.

As the noble Lord, Lord McKenzie said, this matter was most recently discussed in this House during the passage of the Growth and Infrastructure Bill 2013. As he reminded the Committee, my predecessor committed to revise guidance on Article 4 directions and to remove the Secretary of State’s role in the making of local development orders. We have delivered on both those commitments. I am pleased to confirm to the noble Lord, Lord McKenzie, that we have done precisely what we promised to do. On this basis, I hope that my noble friend Lord Tope will feel able to withdraw the amendment.

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Lord Tope: I am grateful to the Minister for her reply and encouraging words. Clearly, I would like to take further advice and look more deeply at some of the things she said. Since the joyful days of the Growth and Infrastructure Bill, I have had some local experience of the use of Article 4. I have to say that it bore out all the things that I was saying because I was told that was what the situation was and I learnt from experience that that was the case. It is still far from satisfactory, but I am grateful to the Minister for what she has told us. I will look at this further with those who know better than I do. I beg leave to withdraw the amendment.

Amendment 79B withdrawn.

Amendment 79C

Moved by Lord McKenzie of Luton

79C: After Clause 19, insert the following new Clause—

“National infrastructure projects: new towns

(1) The objects of a development corporation established for the purpose of creating a new town shall be to secure the physical laying out of infrastructure and the long-term sustainable development of the new town.

(2) In this section, sustainable development means managing the use, development and protection of land and natural resources in a way which enables people and communities to provide for their legitimate social, economic and cultural wellbeing while sustaining the potential of future generations to meet their own needs.

(3) In achieving sustainable development, development corporations should—

(a) positively identify suitable land for development in line with the economic, social and environmental objectives so as to improve the quality of life, wellbeing and health of people and the community;

(b) contribute to the sustainable economic development of the town;

(c) contribute to the cultural and artistic development of the town;

(d) protect and enhance the natural and historic environment;

(e) contribute to mitigation of and adaptation of climate change consistent with the objectives of the Climate Change Act 2008;

(f) promote high quality and inclusive design;

(g) ensure that decision-making is open, transparent, participative and accountable; and

(h) ensure that assets are managed in the long-term interest of the community.

(4) In this section “infrastructure” includes—

(a) water, electricity, gas, telecommunications, sewerage and other services;

(b) roads, railways and other transport facilities;

(c) retail and other business facilities;

(d) health, educational, employment and training facilities;

(e) social, religious, recreational and cultural facilities;

(f) green infrastructure and ecosystems;

(g) cremation and burial facilities; and

(h) community facilities not falling within paragraphs (a) to (f); and

“land” is defined as including all the matters set out in the definition of “land” in Schedule 1 to the Interpretation Act 1978, and also housing including (where the context permits) any yard, garden, outhouses and appurtenances belonging to, or usually enjoyed with, the building or part of building concerned.”

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Lord McKenzie of Luton: I am grateful to the TCPA for its enthusiastic counsel in drafting this amendment and for advising me on it.

Overall, we consider that the planning sections of the Infrastructure Bill are a lost opportunity to lay the foundations of a planning system that can help deliver the homes and places the nation deserves. This very much builds on the amendment tabled by the noble Lord, Lord Best. The Bill continues in the long line of measures which reduce the powers of local authorities in ways which in turn risk creating real impacts for individuals and communities. We will discuss Clause 20 shortly. Given the negative nature of the Bill, we propose to use this amendment as a vehicle for a much more positive debate about how planning could be made fit for purpose. We do this by seeking to insert a new clause which would amend the objectives of the new town development corporations. This allows for a more comprehensive debate on the principles and positive purpose that might drive the delivery of quality growth and new homes which is so vital to our nations. Both coalition parties, we understand, support new towns and garden cities—as, indeed, do we. We should be able to find common cause on these issues.

The proposed new clause flows out of the detailed research that the TCPA carried out on the measures necessary to make the existing new town legislation fit for purpose. The legislation, in the form of the New Towns Act 1981, is still in force and provides for the setting up of powerful new town development corporations which can drive delivery. The development corporation was the engine that drove the rapid deployment of the new town programme and had the following core powers: compulsory purchase of land where it could not be bought by voluntary agreement; the preparation of a master plan which, after public inquiry and approval by the Minister, would be the statutory development plan; the power to apply to the Minister for the equivalent of outlying planning permission for comprehensive tracts of the new town to control development—that is, to process planning applications; to deliver key utilities in partnership with the relevant agencies; to procure housing subsidised by government grant and other means; to act as a housing association in the management of housing; and to carry out any other activity necessary for the development of the town.

Although strong on delivery, therefore, the outcomes of new towns did not always reflect the highest design and quality standards. In addition, there is now a need to modernise the objectives of NTDCs to ensure that they have the visionary purpose to effect change while creating new opportunities for partnership and participation and a low-carbon future. Due partly to the nature of the new towns legislation, little of the high social ambition which drove the originators of the 1946 Act was reflected in the legal objectives of the development corporations. These were quite brief and mechanistic, referring only to the laying out and development of the new town.

There is therefore a risk that development corporations might see themselves as engineering departments rather than organisations engaged in the wider social enterprise of place-making. Over the past 30 years there has also

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been a wide recognition that planning has few, if any, outcome duties. This has in turn led to much criticism that planning has become a process without a purpose. New legal processes have been introduced to focus the system on sustainable development, climate change and good design, but they do not apply to development corporations because they are not local planning authorities.

The suggested new clause is designed to extend and modernise the list of objectives and duties of new town development corporations. In order to modernise the objectives, the first proposed new clause draws on the outcome duties in both the Planning and Compulsory Purchase Act 2004 and the Planning Act 2008, as well as the legislation that created the Homes and Communities Agency, which has statutory objectives that include people’s well-being, good design and sustainable development. The redrafted clause also introduces new and important obligations on the social and cultural as well as physical and economic development of the new town, through strengthening requirements for public participation. It also includes a new definition of “sustainable development” based on the successful wording of the New Zealand Act. I beg to move.

Lord Jenkin of Roding: My Lords, there is a lot to be said for the amendment. Indeed, it follows from what I said earlier this afternoon about the need for more local authority development corporations. I will not repeat that, but it was in the context of local housing estates, which the amendment is not specifically addressing.

My point in a sense supports the noble Lord, Lord McKenzie. This country has learnt a great deal about planning of new towns. I lived for some years not far from Harlow and, even 20 or 25 years after it was founded, there was still talk of what had become known as “new town blues”. I am looking at the noble Baroness, Lady Whitaker, who knows much more about this than I do. However, the new town blues were caused not just by the separation of families, when they went from crowded urban areas to rural areas outside the cities, but because those rural areas were designed with enormous spaces between different little bits of housing. Harlow was a very good example of that. There really could be almost no interaction between little local communities, which felt themselves very much cut off. No one had cars in those days; they relied on foot and bicycle, and whatever public transport might be provided. We have learnt an enormous amount since then. The design of more recent developments is, if I may put it this way, very much more user-friendly. I hope that we shall see that very much at Ebbsfleet. That helps local committees to gel and to develop a local identity. They left that behind when they moved from the cities and, often, city communities were divided as some went to some new towns and some to others.

I saw this a bit in Liverpool, where a lot of the Liverpool council development was in large, out-of-town housing estates that were often quite hideous, with a lot of huge, tall concrete blocks. I hope that I was instrumental in securing something for a group that was eventually called the Eldonians, a tight-knit community of people who were absolutely determined

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that that was not going to happen to them. Yes, there needed to be redevelopment, but we were able to secure that in a single site, fairly close to where they were already living. I was helped by the fact that the Tate and Lyle sugar factory had closed and that we therefore had a readily available site. To the fury of the Militant Tendency, as it then was, within the leadership of the Liverpool City Council, I was able to insist that that site went to the Eldonians. They have been very kind in their recognition of that ever since, and that community is still going strong.

This is what one has to do: to try to preserve communities, so that they can retain and build their identities to become what one would like to see—a really flourishing social unit. This country has learnt a lot about that. Regarding the development corporations in new towns to which this amendment speaks, I was urging earlier the inclusion of development corporations with the power to initiate substantial housing estates, with the necessary accompanying infrastructure. We are now much better at understanding this, and the planners and other people who have been involved with this deserve great credit. I hope that the Bill will lead to more of the same.

Baroness Andrews (Lab): My Lords, it is a pleasure to follow the noble Lord, Lord Jenkin. He has said much more eloquently than I could what an extraordinarily important new clause this could be, were the Government to accept it. It really does reflect a very different approach to the creating of communities from the ones that inspired the new towns of the past. Those were, essentially, pragmatic attempts to rehouse populations which were in distress or in stress. We have a much more humane and intelligent appreciation of what it is to create communities these days. The noble Lord spoke eloquently about Liverpool but, in the case of new towns, one is of course creating a community. That means creating a sense of identity and belonging from the first steps up. In my opinion, it should begin with the nature of the community and the sort of infrastructure that sustains the community once it is in place.

That is why there is emphasis in this clause on key words such as, for example, “sustainable development”. That is one big change from the world that we were in 30 or 40 years ago when we were talking about growth and new towns. The notion of sustainability should underpin everything that we construct, whether in the demography that needs to be housed, the way in which we build or what sustains the community in terms of its well-being, such as the emphasis here on cultural and artistic provision, which is vital for creating a sense of belonging and opportunities for people to get to know each other and share a culture and indeed many different cultures.

4.15 pm

Then we have this really important emphasis on the natural historic environment. Many of our new towns were suddenly created on brownfield sites—sometimes greenfield sites, in fact—where the natural history, let alone the archaeology and history of the place, was completely overlooked and overridden. We know that

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in the most absent landscapes there is a rich history, and it is part of the function of the town planner to be able to articulate and enhance that so that when new communities move to new places they are aware of what has gone before, the communities that lived there, their impact on the landscape and their own contribution to a succession of human development. These are extremely important elements making up the notion of social, economic and cultural well-being. The clause is hugely intelligent, and I congratulate the TCPA as well.

Then we come to the processes, which should not need mentioning. We should automatically be able to create decision-making strategies that are open, transparent and so on, which are managed in the long-term interest. If you say that in the Bill, though, you are sending a signal. First, you are saying that planning is an enormously creative and positive force; too often it is derided as negative and restrictive, but it is not. When one is talking about the making of new towns on fresh sites, one is looking at huge opportunities for the planning community to show what it can do. Secondly, it is about delivery and engagement with those very communities that are going to move in, not least with the development community itself, and setting very high standards for the development community in the way that it approaches the making of communities and its engagement with potential communities.

This is all good stuff. Every generation, when it approaches the challenging question of creating new ways of living in new places and new spaces to live, has to come up with appropriate machinery. The old delivery mechanisms are not going to be sufficient. We really need to look at some of the powers and resources that are going to have to be put into the hands of the new development corporations. The Minister is very open-minded about these things, and I hope that she will give this a fair wind and that we might see it somewhere between here and the end of the passage of the Bill.

Lord Tope: My Lords, I echo all that the previous speakers have said. I share the gratitude that the noble Lord, Lord McKenzie, expressed to the TCPA about the extremely important work that it has been doing on all this. Like other noble Lords, I had its briefing today and was quite struck by its comment,

“There is a risk that Development Corporations might see themselves as ‘engineering’ departments rather than organisations engaged in the wider social enterprise of place-making”.

As the noble Baroness, Lady Andrews, has just said, it is very important that we are not just creating new towns; I referred earlier to my preference for calling them “garden communities” rather than “garden cities”, for exactly that reason. We are seeking to create new communities, and a sense of place is fundamental to all communities, but perhaps more than ever to new communities where it may not be immediately obvious. That is enormously important. The place-making and social enterprise—actually, “social enterprise” is probably the wrong phrase in the current context—rather, the social aspects of creating new communities are, I would argue, at least as important in the longer term as creating the mechanical and technical infrastructure. That is obviously necessary—the engineering part of the work.

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Whether or not the Minister is about to accept the amendment in its entirety I do not know, but I hope and believe that she will take very seriously the points that are intended here, and that we can use the opportunity of the Bill, during what is going to be quite a long progress through both Houses, to try to have something in the Bill that reflects at least the intent of the amendment and the excellent work that the TCPA is doing to help us to create not just new towns but new communities.

Baroness Whitaker (Lab): My Lords, following the eloquent advocacy of my noble friend Lady Andrews and other noble Lords, I would just briefly like also to register that it seems extraordinary that the Government should not take the opportunity of this new clause to put flesh on their announced intention to make new towns. There are pitfalls if they do not, from the point of view of a lack of overall comprehensive design; a lack of vision—this new clause could propel vision; and, at least as important, a lack of participation on the part of the people affected. The new clause would leave all these problems behind and advance us into a period of proper place-making, to use the word employed by the noble Lord, Lord Tope, which I think stems from an earlier Administration.

Baroness Stowell of Beeston: My Lords, I am grateful to all noble Lords who contributed to this debate. I and the Government certainly share the vision that noble Lords expressed for great design and quality, and for the kind of communities that noble Lords talked about today. It is absolutely essential that in developing new places for people to live the kind of points raised in the debate today are very much reflected in the design and execution of those plans. However, it would be unhelpful to prescribe the objects of a new town development corporation in such detail as set out in the new clause put forward by the noble Lord, Lord McKenzie.

As the noble Lord said, the objects of the new town development corporations are set out in the New Towns Act 1981. They are quite simply to secure the laying out and development of the new town. We believe that that brevity is helpful because it allows the detailed objectives of development corporations to be established in each particular case, in consultation with the local area and reflecting local needs. Prescribing such detail in primary legislation takes away that opportunity.

I say to all noble Lords who have spoken today that the Government attach great importance to the design of the built environment. It is a key aspect of sustainable development and we have made that clear in the National Planning Policy Framework and our planning guidance. These make clear that local and neighbourhood plans should develop robust and comprehensive policies that set out the quality of development expected for the area. As I have already said, the proposed new clause would mean that sustainable development should be included in the new town development corporations’ objects. Although we strongly support the principle of sustainable development, we think that it is right that it is made clear in the National Planning Policy

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Framework. Making separate provision for one part of the planning system would serve only to dilute that clarity by defining sustainable development differently for different types of development.

It is worth reminding ourselves that no new town development corporations have been created since 1970. However, urban development corporations have been established more recently and the Government propose the establishment of a new one at Ebbsfleet. Unlike new town development corporations, an urban development corporation can be designated as the local planning authority for its area. Where this happens and it exercises functions in relation to local development documents, it is subject to the duty in the Planning and Compulsory Purchase Act 2004 to exercise those functions with the objective of contributing to the achievement of sustainable development.

In the context of Ebbsfleet, I can reassure noble Lords that we want to ensure that Ebbsfleet is a real place where people want to live and work. In setting the vision for Ebbsfleet Garden City, the urban development corporation will look closely at what garden city principles mean in an existing urban context, such as Ebbsfleet. It will work with local partners to support them in developing and delivering a high-quality settlement with locally available jobs and generous green space.

I acknowledge what the noble Baroness, Lady Andrews, said. My response to her and to others who have contributed today is that we absolutely share that fundamental principle of ensuring that, where new houses are built, communities are created which are properly designed and in which people want to live. However, we feel that prescribing this in primary legislation as the noble Lord has proposed is unnecessary, and I therefore urge him to withdraw his amendment.

Lord McKenzie of Luton: I start by thanking all noble Lords across the Committee who have spoken in support of this amendment. The Minister’s response does not altogether surprise me; it is where I thought the Government might be, but it is a pity that she is arguing for brevity. It is difficult to see what should be excluded or what anybody would want to remove from those objects and general powers of development corporations. They may wish to add to it; they may have a particular local focus on it, but that somebody should not want any of those is quite difficult to understand, although I understand where the Government are coming from.

I am grateful to my noble friend Lady Whitaker, who said that this is about having a vision for a place, a community and a town. The noble Lord, Lord Tope, focused on the point that this should not just be about a mechanistic, technical approach to building new developments; it has got to be something more fundamental. My noble friend Lady Andrews, with all her incredible wealth of experience, talked about planning as something which is creative and positive, not something which is mechanistic. She speaks with huge passion and experience on that issue. The noble Lord, Lord Jenkin, again speaking from a fantastic wealth of experience, made the point that things have moved on

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in recent years. There is the potential of a consensus to create something which may not be the precise wording here, but at least moves us on from where we are.

Would the Minister be prepared to meet the TCPA, just to talk through this issue, to see whether there is anything which can be created which does not necessarily pick up that precise wording, but seeks to retain the concept, the vision and the belief that we should be about more than just delivering bricks and mortar? I am sure that she meets them on a range of occasions. Would she be prepared to facilitate that, together with the TCPA?

Baroness Stowell of Beeston: Both I and my colleagues at the department are always open to meeting different people and I would never refuse a meeting, but if I or one of my colleagues were to agree to a meeting, it would be important for me to be clear at the start what the Government’s position is. I have outlined that today—but, on that basis, my door is always open to anybody who would like to come and talk to me.

Lord Jenkin of Roding: If I may intervene on what is probably the speech of the noble Lord, Lord McKenzie, one needs of course to understand the position of the Government, but I should have liked to hear the Minister say that she was prepared to listen to any proposals that are made and that she, or her colleague or whoever it might be, does not approach this with a completely closed mind? There is quite a lot in the clause with which I find myself in some sympathy. I described a few moments ago how my experience led me to that.

I hope that we may have an opportunity to revisit this at a later stage. In the mean time, I am very grateful to my noble friend for what she has said. I do not want necessarily to be part of determining it—it is for the TCPA, which really knows about these things—but I hope she will meet that body, and do so with an open mind. I would find that very encouraging.

4.30 pm

Baroness Stowell of Beeston: I hope noble Lords will forgive me if I respond to my noble friend. He is someone for whom I have a huge amount of respect. I acknowledge just how experienced he is as a previous Secretary of State. He will know and understand the limitations I have when I stand at the Dispatch Box. When I meet anybody, I am willing to listen to what they have to say, but I feel I am duty bound, in agreeing to a meeting, to make clear what my starting position would be. I am always, of course, open-minded, as the noble Baroness, Lady Andrews, was generous enough to acknowledge in her contribution to the debate.

Lord McKenzie of Luton: I am grateful to the Minister for that assurance about the prospect of a meeting, and to the noble Lord, Lord Jenkin. I hope that noble Lords who have been involved in the debate today might join that meeting. I hope we can bring something back at a later stage in the Bill to keep this issue alive, notwithstanding what the Government have said today. It is an opportunity. These Bills do

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not come up—well, I suppose infrastructure Bills do come up quite frequently, actually; sometimes more frequently than one would want. Maybe we will have another one next year. I am grateful to the Minister and beg leave to withdraw the amendment.

Amendment 79C withdrawn.


Clause 20: Deemed discharge of planning conditions

Amendment 79D

Moved by Lord McKenzie of Luton

79D: Clause 20, page 21, line 2, at end insert—

“except that it does not apply to any condition designed to mitigate direct impacts on public amenity, health or well-being.”

Lord McKenzie of Luton: My Lords, in moving Amendment 79D, I will speak to the other amendments and on whether the clause should stand part of the Bill. In so far as there are issues to address about the discharge of planning permissions, it is suggested that these can be dealt with in another way than that provided for in the Bill. As it stands, the clause is yet another example of central government disempowering local planning authorities.

The ability to impose conditions is an important part of the planning process. They are an alternative to outright refusal of planning permission and therefore an aid to development. By potentially mitigating the adverse effects of the development, they can enable it to proceed. If conditions are imposed, it is important that they are properly discharged, otherwise the system is undermined. Of course, conditions should not be spurious; they should be carefully justified and relate to clear planning issues and policy. They are usually an interlocking set of measures designed to ensure that the development does not harm the public interest.

The NPPF states that:

“Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects”.

The Planning Portal has compiled a set of model planning conditions. There is a right of appeal against what might be considered an inappropriate condition. By way of example, conditions might include requirements for a development to be completed in accordance with lifetime homes standards; for a commercial premises to have cleaning and extraction equipment approved by the LPA; for a restriction on the activity that can be carried out in or from particular premises; or for the protection of, say, an archaeological site. To have these conditions unfulfilled could materially affect the well-being of individuals and negate the planning process.

Of course, local planning authorities should not be entitled to sit and ignore and not sign off situations where conditions have been properly fulfilled, but the route of deemed consent is a heavy-handed and dangerous remedy. We have no idea how it is to be implemented. For a start, the deeming process will proceed by way of a development order, which is subject only to the negative parliamentary procedure. There does not appear to be any provision requiring an applicant to have attempted or succeeded in discharging the conditions for the deeming to be applied—hence Amendment 80.

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No judgment is required of the Secretary of State as to whether any adverse consequences for the community would arise from a discharge—hence Amendment 81. There are lessening opportunities to mitigate the adverse impacts on public amenities, health and well-being—hence Amendment 79D. There seems to be the prospect that the applicant himself may be given the opportunity to decide when the deemed discharge is to take effect, and no rationale is offered for this—hence Amendment 82. There is no certain relief from the deeming or any delays in the local planning authority responding within the given period that are wholly or partly caused by statutory consultees, the applicant or indeed anyone else. In short, we have no idea how this proposition is to be applied, and we trust that the Minister will be able to give us at least some comfort today.

If a development has been frustrated by unreasonable conditions in the first place, and a failure to address their discharge in the second, it is of course reasonable that the matter is addressed. But the work of the LGA, in conjunction with the BPF, the Planning Officers Society and the Home Builders Federation, should clearly be given a chance before these draconian measures are taken.

In conclusion, perhaps I might ask some questions of the Minister. Could this lead to conditions not having to be implemented or acted on? If so, in what circumstances can that happen? For example, in response to the Killian Pretty report, the then Government identified the use of approved contractors and a fast-track appeals process for matters concerned only with the discharge of conditions. Have the Government given any further consideration to that route, rather than the one adopted in this clause? What research have the Government undertaken to determine why local authorities are not responding to the application for consent, agreement or approval in due time? What is the extent of this failure? In how many local planning authorities has this happened, and how frequently? What consideration have the Government given to the potential negative effect of this clause in discouraging some essential conditions on the basis that the local planning authority has the capacity to deal only with other, fewer conditions—thereby impacting on the quality of development? What is the Government’s assessment of the capacity of local planning authority departments to deal with this, given the huge reductions in funding that local authorities have had to endure?

These are hugely important issues that go to the heart of our planning process, and I look forward to the support of other noble Lords and the Minister’s response. I beg to move.

Baroness Andrews: My Lords, it is with some concern that I rise to address these amendments and to support the thoughtful and measured way in which my noble friend has introduced them, including the debate on whether the clause should stand part of the Bill. I shall focus on a specific aspect that comes within the scope of the clause stand-part debate.

I am very concerned about this, and I speak, in part, on behalf of a wide range of heritage organisations. I no longer have a hat on, and therefore no longer have an interest to declare. I am, however, still very engaged

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with the work of organisations ranging from English Heritage and the Heritage Alliance to the British Archaeological Association and many others. Their concerns exemplify some of the major concerns that have been raised by noble Lords about the impact of the clause as a whole. These organisations understand very well how easy it is to destabilise the planning system. They were engaged first-hand with the creation of the National Planning Policy Framework, with all the checks and balances that took a long time to work out. It is, in fact, an important and delicate balance, which we would be wise to ensure that we stick to. Of course, they are also concerned, not just with the monuments, but with the everyday, ordinary environments in which we live in this country: our towns, villages and everywhere else. The fact that Clause 20 has raised such profound concerns among these senior organisations should give the Government pause for thought.

I see in this clause yet another attempt to wrench the planning system around in a way that is deeply inappropriate. Over the past few years we have seen the Government reach for the planning system as a recourse and sometimes as a first resort, to try to tackle problems which are far more fundamental, being rooted in economic and social problems. Planning is not the problem. I am afraid that I see this as another casual, Pavlovian response to problems which have their roots in the lack of capacity of local authorities and the complexity of what it takes to have a balanced planning system. This clause will have very perverse—even disastrous—consequences, and my noble friends are quite right to speak with seriousness about it.

I understand the frustration that comes from delays in the system and that the provision is intended to address the stalemate of “no response” from local authorities. But my goodness, what a hammer has been picked up here. It is so broadly cast at the moment, as my noble friend said, and it is not at all obvious what safeguards are to be put in place. I say to the Government: given what local authorities, developers and communities are facing in the maelstrom of planning at the moment, yet another element of uncertainty is really bad news.

I will explain how I think that will affect what happens to what we call heritage protection, which is shorthand for ensuring that our historical environment is accommodated within our future plans and contributes to them in an economic and social way. Much of our heritage protection is effected through conditions attached to outline planning permission, because it is detailed work. Archaeological surveys and design detailing of extensions and new buildings—for example, to cathedrals or to some of our historic monuments—are very often secured by conditions. The department knows this very well. They are fundamental to heritage protection—to what we end up with: what it looks like, what it feels like and what it will do. That is what is at risk here. I therefore ask the noble Lord: what will be the situation vis-à-vis outline planning permission? Can we take it that the situation will be different in the future in relation to both outline planning permission and conditions? Can I please have a clear answer on that?

Of course, we are aware of the need for best process. However, we have to ensure that the process does not sacrifice the best outcomes for what we all want by

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means of the outcome of the eventual planning decision. Therefore, while it is the applicant’s right to have their application for discharge of the condition dealt with fairly and expeditiously, clearly the historic environment agencies would be very concerned by a provision that meant simply that if the applicant heard nothing back, the condition was discharged.

We all know what it means to be overwhelmed by work. The volume of letters and e-mails we get in this House alone is not as great as it is for Ministers but we know what the noble Lord means when he says that things get overlooked and slip by. As my noble friend said, we are looking at issues of capacity here. Perhaps the Minister could write to tell me how many planning officers have been lost from local authorities across the country. That is a bit onerous, but I know that surveys have been carried out by the Local Government Association, for example, and by English Heritage. Perhaps the Minister could help us to focus on exactly what lack of capacity we are looking at. We know that they have lost many senior and deeply experienced staff; there has been a sharing of jobs; and altogether, a huge strain has been placed on planning departments in recent years. I am not making that an excuse for shoddy work, but it is all too easy for planning departments simply not to be able to do things in the time allocated these days, and there is a huge amount of pressure on them—we must realise that.

The sector would certainly like clarification that safeguards will be put in place to protect the historic environment from any unintended consequences arising from this clause. Any system that allows decisions by default on such important matters is very perilous. Our historical environment is extremely fragile. Once it is gone, it is gone. The safeguards put forward in some of these amendments are certainly worth looking at. They include allowing the LPA to extend time for consideration where there is reasonable justification, or a second notice requirement from the applicants subsequent to the application to invoke the default provision if they have heard nothing back. The latter is to reduce the risk of the application having been overlooked.

We are determined to pursue this clause and its implications, for very serious reasons. I have spoken about the historic environment, but the same problems apply to the natural environment and many other aspects of decision-making where everything depends on the quality of the judgment and the detail that is set out in conditions, because that is what makes the difference between good planning and bad planning, good design and bad design and places that are worth living in and places where we think, “Why on earth did they let that happen?”. I hope the Minister will take that seriously.

4.45 pm

Lord Jenkin of Roding: When I read this clause and, in particular, studied the Explanatory Notes my instinct was that there seemed to be some sense in this. Where these things are held up for a long period, it frustrates development. Anxieties have been expressed. They have been expressed to me by the Local Government Association. The only point I wish to make to my

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noble friend is about whether we could have some idea of what an order under this clause would look like when we come back to this on Report. I made this point to my noble friend Lady Kramer about some of the roads legislation we considered earlier in the Bill, and I make it now to my noble friend Lady Stowell. It would be really helpful to the House, as it will be on Report, to have before it the sort of order that would be made under this Bill. This Bill gives a power to make orders. I am not at all sure what those orders would look like.

Lord Whitty (Lab): My name is attached to the clause stand part provision. While I think some of the amendments in the name of my noble friends would improve the situation, I think the Government need to think again on this. The Minister should take advice from the noble Lord, Lord Jenkin, and look more closely at what circumstances and processes the problem that the Government are trying to address needs. As it stands, this is a pretty draconian and open-ended provision. Clearly, for all sorts of reasons there can be delays in the local authority being able to assess whether a condition has been met. The conditions can be quite complex because they are not only in the area of heritage, as my noble friend Lady Andrews has said, but can relate to the natural environment, social implications, traffic implications and so forth. These things are not necessarily easily dealt with, particularly by hard-pressed planning departments. As it stands, the clause would allow the Secretary of State to come to this Parliament the day after the period of the condition lapsed with an order to override the non-decision of the local authority. That seems too harsh. It is important that there is some reserve power for the Secretary of State. I understand why the Government are looking for it, but it should be exercised with discretion. Frankly, this clause gives far too much power to the Secretary of State to interfere in what essentially must be a local decision which understands the complexity of local circumstances. This clause gives no indication of what should trigger the Secretary of State’s intervention and the suspicion must be—I put it at its most extreme, but nevertheless—that a developer who happens to be close to the Minister and is frustrated by the delay tips the Secretary of State off and we have a complete override of our planning process as a result, subject only to the negative procedure of this House and another place. That is too open-ended and I hope that the Government will think again between now and when we come back on this.

I should have declared an interest as a vice-president of the LGA. The LGA has great disquiet about this, and that is shared by a large number of other organisations which are engaged in the planning process. I hope that the Minister will be able to give us something on this and that she will have another look at it before we return.

Lord Tope: My Lords, I am reminded that I should probably also declare an interest as a vice-president of the LGA, although I think that that is quite well known by now.

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Misgivings have already been expressed this afternoon, and I hope that the Minister will go a long way to reassure all of us on this. I would like to understand better the need for this legislation. I do not know to what extent failure to discharge planning conditions is a problem. What is the evidence of the extent to which there is a problem? I am sure that there must be occasions when local authorities fail to meet the time limit. Very likely, as the noble Baroness said, that is because there has been a huge reduction in the size of planning departments. That was a problem long before the budget cuts started. Too many planning officers were going off to much better paid jobs in the private sector. With the budget cuts, the planning department has been no more exempt from downsizing staff numbers than any other part of a local authority, and that has probably added to it. That may be in part a cause of a problem but I would like to understand the extent to which there is a problem. What evidence is there of the problem that we are trying to solve?

I then come to the question of whether this is the best or the most necessary solution to the problem. I can certainly understand that if there really is a problem—if local authorities are, to any significant extent, simply failing to respond and that is holding up the necessary work—then action needs to be taken. Possibly, in extremis, this is the right action, but let us understand better the extent and cause of the problem that we are dealing with.

A number of questions have already been asked but when the Minister responds perhaps I may seek an answer to another point on the scope of what we are dealing with. Can we be clear that we are talking here about a failure to respond and not a failure to agree? That is quite important because it deals with part of my concern about the extent of the problem. The Minister referred to the very pleasing number of planning consents that are being granted. I have to say that I am much more interested in the number of starts and even more interested in the number of completions rather than the number of consents that are granted, but I hope that it is an indicator that we are moving in the right direction. However, if you ask developers what the delays in implementing planning consents are down to—sometimes they are accused of having land banks and so on, which they all deny—the knee-jerk answer is always “The planning system”, but when you probe a bit more, it is not quite that simple. Therefore, I should like to be reassured that we have evidence that there is a problem here and that we are not just responding to the easy answer that usually comes from developers about the planning system.

As I said, I want to be clear that what we are dealing with here is a lack of response, not a lack of agreement. Part of the concern is that if a developer is not entirely happy with the planning conditions—that is not unknown—that can be used as a means of getting round, wriggling out of or avoiding a consent. I am sure that that is not the intention here but it is something that we all want to ensure is avoided.

There is another thing that I am not clear about. If the Secretary of State gives deemed consent to the discharge of planning conditions but the local authority does not agree with that decision—it may be the local

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authority’s fault for not responding quickly enough, but one of the reasons for it not responding quickly enough may be that the development is not as straightforward as the developer suggested—can it still use an enforcement order to apply those conditions? Does that happen? I do not know, but I would like to know whether it is still available or if it is also to be taken away. We all have concerns about the detail here, as we always do when more power is given to Secretaries of State. Are we to have secondary legislation that will set out the scope and circumstances of all this? I would assume that we are. If so, when are we likely to be able to see that legislation in draft?

While I do not have quite the strong hostility to this that the Opposition have expressed, I certainly share the misgivings and I wonder whether we are using a sledgehammer to crack a nut that could be better dealt with in a simpler and more straightforward way through discussion, negotiation and agreement—and, frankly, although I never thought I would say it, with more planners.

Baroness Donaghy: My Lords, I do not have the expertise of other noble Lords in this area, but I want to bring in the human element, which perhaps needs to be emphasised around this Judge Jeffreys clause. We need a balance between the needs of the entrepreneur and developer and the individual whose life is impacted by these proposals. We need to think about the protection of the individual. I and, I am sure, other noble Lords in this Room know how miserable it is when something is happening next door over which you do not feel you have any control. It might be an overlarge extension that cuts out the daylight from a much loved garden. The impact on an individual is greatly underestimated by the strong lobby that surrounds deregulation. What consideration has been given to individual rights and community cohesion because these things are extremely important?

Baroness Stowell of Beeston: My Lords, I am grateful to all noble Lords, but I am particularly grateful to my noble friend Lord Tope for asking me to be clear from the outset on what the Government intend in Clause 20 and why we believe that it is necessary. It is important that I start there before addressing some of the concerns which have been expressed about how we expect this to operate. I hope that, by responding in some detail today, I can go a long way towards reassuring noble Lords. I have quite a lot of information to share which addresses directly some of the points that have legitimately been made in the debate.

This provision is about ensuring that local authorities hit the deadlines they are already working towards, thus providing the applicant with greater certainty about when a decision can be expected. Unfortunately, we find that in too many instances local planning authorities are not dealing with applications to discharge conditions in a timely manner. The impact of these delays is experienced by all types of applicants, from those building a small development to people who are taking forward a major housing scheme. The impact is most acute where the local planning authority has imposed a pre-commencement condition which prevents

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any start to the work on site until a further detail is agreed, but it then fails to deal with the matter efficiently. Before I go any further, I want to make it absolutely clear for the record that this clause is all about the conditions that are applied once an application has been given planning approval. This is not about anything to do with decisions before approval is granted; this is about conditions that are attached when a local authority has already decided that something should go ahead. It is at that stage of the process, not before a decision is made to say yes.

5 pm

As the noble Lord, Lord McKenzie, acknowledged, this is not a new problem. In 2008, the Killian Pretty review of the planning application process undertook detailed research which found that the greatest incidence of blockages and delays in the application process was in the post-decision stage, principally delays in dealing with planning conditions and Section 106 agreements. Further research by the previous Government in 2009, which looked at 300 applications for the discharge of planning conditions, estimated that 36%—more than a third—of applications had not been determined within the statutory eight-week period and nearly a quarter took longer than 10 weeks to be determined. To answer the points made by the noble Lord, Lord McKenzie, and the noble Baroness, Lady Andrews, about the capacity of local planning offices, it is worth recognising that the evidence I have just shared with noble Lords is from five years ago. Dealing with conditions—matters of detail—is taking as long or longer than the time it takes to consider many planning applications where the principle of the development is being considered and, in many cases, the detail.

Current feedback from across the sector suggests that the lack of timeliness in discharging planning conditions remains a major concern. A major housebuilder recently stated that a third of its 5,000 land-bank plots are in the planning system awaiting reserved matters approval or clearance of pre-start conditions. It added that the regulatory burden involved in obtaining detailed permission and clearing conditions is the biggest constraint on the industry increasing production. Similarly, the Home Builders Federation recently reported increasing concern about conditions attached to many permissions that prevent work starting on site. The National Farmers’ Union, in its Bill briefing, reports that conditions are currently a low priority for local authorities but often need to be cleared to meet grant or other funding agreements for new building projects. It added that delays in discharging conditions can seriously delay project delivery time.

Thus, when a local planning authority fails to make a prompt decision on a request to discharge a planning condition, it leaves the applicant with a planning permission that cannot be implemented, often at a time in the development process when the applicant is looking to carry out the development and can ill afford to bear the cost that unnecessary and unexpected delays can frequently bring.

I am sure noble Lords would agree that it is in no one’s interest for there to be unnecessary delays in local authorities discharging planning conditions. Equally,

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I accept that it is important to ensure that changes to the process of clearing planning conditions do not cause unintended harm to local communities or unreasonably restrict the ability of local planning authorities to do their jobs properly. The noble Baroness, Lady Donaghy, made a very important point about how this is about not just the big housebuilders but how it affects local communities. We should not forget that if you live next door to somebody who has had planning permission granted for something, you might not have welcomed it, but once they have it you kind of want them to get on with it so you know when it is going to be finished. You can look at this from the perspective of the neighbour of somebody who has planning approval thinking, “Now that I know it is going to go ahead, I would like them to actually start”.

It is important to emphasise the important safeguards that are built into these proposals. This is where we get to the important points that have been raised in today’s debate. On scope, as we stated in the policy note that I circulated to noble Lords earlier this week—again, if it has not reached anyone, I will happily circulate it again after today’s debate—we propose that certain types of conditions should be excluded from the deemed discharge provision and we will seek views on the need to exclude others. We will be consulting on this later this month.

On timing, at present local planning authorities have eight weeks to determine an application to discharge a condition. That period would remain unchanged. They would have at least eight weeks to consider an application to discharge a condition before a deemed discharge could take effect. The research that I referred to earlier found that the majority of authorities felt this was a reasonable length of time. Given that matters of fundamental importance will have been addressed before planning permission was granted, this timescale, which matches the time available to consider most planning applications, is reasonable.

On procedure, applicants would have to notify the local authority of their intention to rely on a deemed discharge a minimum of six weeks into the determination period and give at least two weeks’ further notice to the authority to determine the original application. Therefore, there is no question of the local planning authority being taken by surprise.

On flexibility, there are various options available. First, the applicant could choose to allow the authority a period longer than the minimum of eight weeks before relying on a deemed discharge. Secondly, the authority and the applicant together could agree to extend the determination period before a deemed discharge could take effect. Thirdly, the applicant and the authority could agree that the deemed discharge provision would not apply to particular conditions. The most important safeguard here is the unaltered power of the local authority to refuse an application to discharge a condition if it considers that the details submitted to it are not acceptable. That goes straight to the point that my noble friend Lord Tope made. Just to be clear, he asked whether this is about a failure to respond rather than a failure to agree. The issue is a failure to respond. If the local planning authority does not agree with the proposals, it can refuse consent.

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On some other specifics that noble Lords raised, the noble Lord, Lord McKenzie, asked whether it could lead to the conditions not being implemented. Again, there is a clear answer to that: no. He also asked whether the measures would mean that developers could just ignore their planning conditions with no sanction to stop them doing so. Local planning authorities will still have the option to take enforcement action if there is a failure to comply with a substantive planning condition. For example, if the condition were that a landscaping scheme had to be submitted for approval and that condition were deemed to be discharged, the developer would have to stick to the landscaping scheme he had submitted for approval and that had the deemed approval of the local authority.

The noble Baroness, Lady Andrews, raised some important points in the context of the built heritage. Let me be clear that there is no reduction in the level of protection for the heritage environment as a result of this clause. If the local planning authority is not satisfied with applicants’ proposals it can refuse them. It is more likely that the applicant and the local planning authority will agree to extend the determination period if there are specific reasons to take more than eight weeks.

I turn to the amendments that are part of this group and will respond to some of the specific issues they raise. On Amendment 80, it is not in applicants’ interest to apply to discharge a planning condition where they do not believe that consent is likely to be given. A local planning authority could just refuse the request. The deemed discharge will not affect this, provided a decision is made on time.

Amendment 81 would provide that conditions could not be deemed discharged if they were considered by the Secretary of State to be to the detriment of the community. This would simply not work as it would put him in the position of intervening in local decision-making and having to consider on a case-by-case basis whether there would be adverse consequences. Aside from the practical unworkability of this approach, this measure is not needed. The local authority is best placed to judge if a proposal would be to the detriment of the local community. If it believes the proposal is unacceptable, it can then refuse consent.

On Amendment 82 relating to timing, I have already covered this but, just to be clear, under the procedure we intend to propose in our forthcoming consultation an applicant will be able to serve a notice not earlier than six weeks after the date of the application stating an intention to rely on a deemed discharge. The notice will set out that the applicant will rely on a deemed discharge after a minimum of a further two weeks from the date of the notice. This will mean that the local authority will still have no less than eight weeks to make a decision on the application. However, the applicant might want to prescribe a time period longer than the two weeks from the date of the notice that we propose, which is what the part of the clause that noble Lords suggest removing provides for. Removing the flexibility for an applicant to prescribe a longer time period appears unhelpful to all parties and would remove useful flexibility, which would be unwelcome in our view.

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On Amendment 83, we recognise that some statutory consultees may need to be consulted in relation to the discharge of certain conditions. When they do, the Government expect views to be sought quickly by the local authority to ensure that these third parties have a reasonable time to consider the request. We also expect those statutory consultees to respond effectively and efficiently to such requests for further input so this measure will drive up the performance of statutory consultees as well as that of local authorities. It is important to note that we do not propose shortening the time available to the local authority to seek views from third parties and take them into account. In addition, the local planning authority and the applicant will be able to agree an extension under Section 74A(5)(d), or agree that the deemed discharge provision should not apply under Section 74A(7). So if there are exceptional circumstances whereby a matter might take longer to resolve than eight weeks, there is a mechanism to extend the determination period through agreement or disapply the provision.

Finally, I turn to Amendment 79D. This is not necessary, because Section 74A(6) enables the Secretary of State to set out exemptions in secondary legislation. As I made clear in the policy note that I circulated earlier this week, we propose that the deemed discharge should not apply to certain types of condition or to conditions attached to particular types of development, such as EIA development or development in areas of high flood risk. We will issue very shortly a formal consultation exercise seeking views on what exemptions should apply. We will listen carefully to any views expressed by those with an interest in public amenity, health and well-being about which exemptions may be required. It will be important to consider carefully how any exemptions should be defined to avoid any uncertainty for all parties about which conditions are exempt. This process of developing and refining the definition of exemptions is best achieved through secondary legislation, where we can work closely with relevant stakeholders to achieve an effective approach and will provide an opportunity to update the exemptions in the light of new circumstances.

My noble friend Lord Jenkin asked for information about the details of the order. We are about to consult later this month on how we intend to use the powers, and in the consultation we will provide clear details of what we have in mind for an order. In the note that I circulated earlier this week, I included some examples of exemptions. As I say, one would be an environmental impact assessment or a development likely to have a significant effect on a qualifying European site, and so on.

The noble Baroness, Lady Andrews asked about outlying planning applications and reserved matters. We have indicated that reserved matters are likely to be excluded from the deemed discharge provision.

Our proposals represent a sensible and proportionate way forward which seeks to drive up performance while ensuring that sensible safeguards are in place. I absolutely understand why noble Lords have been careful to raise a range of issues about this measure. I hope that I have gone a long way in my response to providing a lot of reassurance on how this is intended

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to work. More information will be available when we start the consultation process, which will give noble Lords and others an opportunity to contribute to this process very shortly. On that basis, I hope that the noble Lord, Lord McKenzie, feels able to withdraw his amendment and that noble Lords will agree that this clause stand part of the Bill.

5.15 pm

Baroness Andrews: I am very grateful for that useful information, and it is good news about the consultation process, but in relation to the question I asked about the number of planners who have been lost, the Minister put a great deal of emphasis on the Killian Pretty review, which was published five years ago. When she comes back to me with those statistics, will she break them down so that we can see the rate of attrition among planners, before and after Killian Pretty, and have some sort of time series? In relation to the questions raised by the noble Lord, Lord Tope, about the evidence, did the Killian Pretty review say why it thought these delays were occurring? There is an absence of hard evidence of what is going wrong in the system. What is the problem we are trying to solve? That is what the Committee is keen to get to the bottom of. Did the Killian Pretty review recommend this as a solution, or is it a solution that has been generated by the department?

Baroness Stowell of Beeston: I shall see what further information I am able to provide to the noble Baroness following today’s debate. I do not know how much I can provide.

Baroness Andrews: I am very happy for the Minister to write to me.

Baroness Stowell of Beeston: I will certainly see what is available. Fundamentally—not to pre-empt the further research I shall do—I think the evidence we have gathered is that a huge amount of effort goes into the process of deciding whether something should receive planning permission, but the conditions post that planning permission are not attracting the priority and importance that we need them to have once it has been decided that something should be built. It is as basic as that. We have already talked about the way we all share a common interest in seeing supply coming through more quickly. This is an area where we think there is scope for improvement. With proper safeguards in place, the measures that we are putting forward will go a long way to address a problem that clearly exists.

Lord Jenkin of Roding: I am extremely grateful for the announcement that there is to be a consultation on this. Will the Minister give us an assurance that the Government’s response to the consultation will come well before we reach Report on this Bill?

Lord Tope:I was going to ask the same question. I am grateful to the Minister for taking some time to explain and try to reassure us. I was very pleased, but not surprised, to hear about the consultation. We look forward to seeing that in some detail. What is of

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particular relevance to this Committee and to us is that we know the outcome of the consultation and, particularly, the Government’s likely response to that outcome in time for the Bill’s next stage in this House. If the Minister is able to give us that reassurance, we will go away a little less unhappy.

Baroness Stowell of Beeston: I am always eager to make sure that noble Lords do not leave here unhappy. On this occasion, and especially having felt that I was not doing what I always seek to do with my noble friend, I can confirm that the Government will respond to the consultation before we get to Report. That response will be available.

Lord McKenzie of Luton: I thank the Minister for her detailed and full response to the range of points that were raised. Clearly, we need to look at the record and reflect on our concerns and the extent to which they may have been met by what the Minister said. I, too, had a question on the consultation but I am reassured to know that we will see the response by the time we come back at the end of the summer.

We probably need to spend some more time on the issues around Killian Pretty. The deeming of an application of conditions was only one of the possible solutions recommended for tardiness in the discharge of conditions. I asked why the Government did not pursue the other two rather than adopting the mechanism in the Bill. Like my noble friend Lady Andrews, I am still not clear about the reasons for the extent of the tardiness, if there is tardiness, and why it is happening. The noble Baroness said that this issue does not have the priority that getting permission has, and that therefore it sort of drifts. That seemed to be the import of what she was suggesting. We would like to drill into that a bit further.

I thank all noble Lords who have spoken on this amendment. They raised a range of concerns, which may have been satisfied to a greater or lesser extent—or not at all—by the Minister’s response. My noble friend Lord Whitty certainly expressed concern about the draconian nature of the provision. Even given its safeguards, it is a powerful tool which the Government are deploying. Like the noble Lord, Lord Jenkin, I imagine from what has been said that we will be able to see at least a copy of a draft order, presumably, as part of the consultation response when we come back after the summer. My noble friend Lady Andrews raised important issues around safeguards for heritage. Again, I guess we will have to see the extent to which they are satisfied in practice. My noble friend Lady Donaghy made a powerful point about the well-being of individuals and community cohesion, and whether this provision might disrupt that.

I think that the noble Lord, Lord Tope, got an answer to his question on whether this is a case of failure to respond or failure to agree. It is clearly the former, not the latter. Doubtless, he is reassured by that but, again, he stressed the need for evidence. This has been a helpful debate. I will, of course, withdraw the amendment as we are, after all, in the Moses Room, but we will need to reflect on the Minister’s response as I am not sure that it has dealt with all our

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concerns. I hope that some of those concerns will be alleviated by the process before Report. I cannot guarantee that they will all be alleviated, so we may return to the issue. Having said that, I beg leave to withdraw the amendment.

Amendment 79D withdrawn.

Amendments 80 to 83 not moved.

Clause 20 agreed.

Amendment 83A

Moved by Lord Tope

83A: After Clause 20, insert the following new Clause—

“Board of development corporations: membership

The board of development corporations established by the Secretary of State shall include at least one local authority elected member who shall have full voting rights.”

Lord Tope: My Lords, in moving Amendment 83A, I wish to speak also to Amendment 83C, with which it is grouped. In many ways we now return to the debate we had on the amendment proposed by the noble Lord, Lord Best, and the question asked by the noble Lord, Lord Jenkin, about who would implement large-scale housing developments. Certainly, one solution that was offered was that of local development corporations. The Mayor of London already has that power as regards mayoral development corporations. This amendment seeks to extend that possibility to the rest of the country.