Housing and Regeneration Bill

The chances of that happening are so small that I can reassure the Committee that it would be a recipe for failure. I do not think there are any circumstances in which that could, or would, happen. However, with our collective experience, with my experience as a Planning Minister for three years and that of my noble friend Lady Ford for much longer than that, we know that it is in these circumstances that we have to think, ““How can we best help this local authority, or perhaps this group of local authorities and other agencies, deliver what is necessary?””. That is the option. It is true that the Bill talks about designation in terms of development control, but it talks also, in Clause 14, about taking on some planning powers and maintaining the local development framework. I stress that taking on the plan-making function would occur in circumstances that would be even more exceptional, because the HCA is not set up to do that—it has neither the resources nor the will. It would be a major distraction from its main responsibilities. The plan-making function would be conferred only when it was considered to be absolutely vital to delivery and where the development plan was so out of date that it could not deliver what was needed. It would be imperative because the plan-making function was not in place and the authority could not fulfil its responsibilities. That is all I shall say in relation to Clause 14. In each case, the type of planning powers that would be needed would have to be determined case by case. In some cases, all the powers would be required; in others, it would be only part of them. The decision about what powers were needed would rest always with the Secretary of State. That decision would be negotiated with the local authority, which would give its view on what was necessary to take forward the development. Designation and planning powers will not simply be imposed whenever there are decisions to be made, even in the case of large-scale developments. It will be about bringing many more skills and assets to the challenge. Perhaps I may address the amendments in that context. I do not think that I need address Amendments Nos. 67, 68 and 69 in great detail, because everything that I have said about working with the local authority has made it clear that it would be contradictory to substitute the local authority for the Secretary of State. We are looking at exceptional circumstances that could be dealt with only by the Secretary of State. As I have explained, that would be on the basis of consultation. Not least of the consequences of removing the Secretary of State from the frame would be the removal also of parliamentary control. The noble Baroness may think that parliamentary control is not very strong—we will discuss that in the context of the relevant amendments—but it exists. It would not be there if her amendment were to be won. The noble Baroness’s Amendment No. 68C goes to the heart of the question when the Secretary of State might get involved and the choices that would need to be made. It looks like an arcane legal point, but it is not. The noble Baroness argued that if we were to replace ““appropriate”” with ““necessary””, it would have little practical effect but give tremendous comfort to local authorities. However, it would not give comfort to anyone. It would be unlikely to make any difference to the number of occasions when the Secretary of State designated an area, but it has the potential to introduce much delay, uncertainty and unnecessary expense into the designation order-making procedure. The general dictionary definition of ““appropriate”” is ““suitable”” or ““fitting”” for a particular purpose. ““Necessary”” is defined as ““essential””, ““indispensable”” or ““requisite””. There is therefore a major difference. Our learned judges would need to be convinced that the HCA was following the only route available in fulfilling its responsibility. I see the noble Baroness, Lady Hamwee, nodding. As a lawyer, she will know that that high test would give great comfort to her profession, but not to anybody else. We need to maintain the term ““appropriate”” for all those reasons. I turn to Amendment No. 70 in the name of the noble Lord, Lord Dixon-Smith. I appreciate the context in which he raised this matter but, because any designation order would have to be made on the basis of consultation, there is absolutely no way that the Secretary of State would fail to give reasons. The consultation procedures set out in the Cabinet Office’s code of practice would apply and with those would come a requirement to give initial feedback regarding any responses received. That feedback would have to show how the consultation process had influenced the policy. There would be a series of questions to which summaries would have to be provided, and therefore, for the noble Lord’s purposes, the process would be extremely transparent. The reasons would be given on a case-by-case basis and would have to be specific and local to the situation. I hope that the noble Lord will be satisfied with that. I turn to Amendment No. 73. The Secretary of State may make an order only with the consent of the local planning authority responsible. This is part of the larger debate that we have had about how effective this consultation would be. The Secretary of State would need to have this residual power to make a decision on designation in exceptional circumstances, but it would follow consultation. However, if we were to accept the amendment, we would again have a contradiction in terms. Effectively, the local authorities would have a veto, and that would not make sense in terms of what we need to be able to provide and do. I turn to Amendment No. 73A in the name of the noble Baroness, Lady Hamwee, and Amendment No. 73E in the name of the noble Lord, Lord Greaves, concerning the development plan in force. The noble Baroness has been arguing that it is only in areas that do not have a development plan that conferring planning functions on the HCA could be of use, and she discussed issues of cross-boundaries. The problem is that there would be rare cases where, having considered the issue and consulted, we would feel that regeneration was such an important issue and such a challenge that we would have to confer certain planning powers on the HCA. In those rare cases, local authorities might lose some of their planning functions. However, the noble Baroness’s amendment would prevent the Secretary of State ever designating any area, because there is no part of the country without a development plan in place, even though it may be an old or saved plan. I would be the first to agree that local development frameworks have been slow in coming on stream. They were probably a greater challenge than we anticipated at the time because of the notion of spatial planning and so on. They have been a big cultural change for local authorities. Nevertheless, plans are in place and the amendment would mean that we could never designate anything. Turning to Amendment No. 73C, the noble Lord, Lord Greaves, referred to an earlier amendment in his name that we did not debate. The development plan is certainly the starting point but, as the noble Lord knows only too well, it is also possible for proposals which are not in accordance with an area’s plan to be granted planning permission. This amendment does not make allowance for the assessment of any other material considerations. I know that he raised the amendment to provide an opportunity to debate the issue, but it would have a rather catastrophic effect. I am going as fast and, I hope, as coherently as I can through this long list. Amendment No. 71A covers the plan-making function, and I shall address the point that this is an extension of the powers that could be conferred on the predecessor bodies. The plain fact of the matter is that the inclusion of the plan-making role reflects the legislation in force today. The Planning and Compulsory Purchase Act, which established the LDFs, put greater emphasis on development needs. We have said that this power will be used very rarely. In a case where, for example, local development plans are out of date or inadequate and the agency wishes to take them forward, we need to have this power to confer this on the agency. UDCs only have development control functions. The problem that has been diagnosed is that they have encountered difficulties in working with a local plan which, for some reason, is not up to the task of delivering regeneration. We will overcome that with these powers because they will be able to have these additional plans as and when needed. The clause gives the Secretary of State a necessary degree of flexibility when deciding which planning functions should be conferred on the new agency. The noble Baroness was arguing about modifications in this context. The amendment would restrict the range of planning powers that could be made available. The point is that whenever these were to be considered, they would be open to full consultation with the local authority about what was necessary. That clearly would be a very important point. Amendment No. 73B raises a specific issue. It removes the ability of the Secretary of State to make modifications to the functions or specified functions conferred via a designation order. There may be a misapprehension at the heart of this. We do not want the agency’s resources to be used on every minor household application that might come forward. I say to the noble Lord who raised the issue of the volume of household applications that we are looking at streamlining the households’ consent system. I suspect that we will have some fun with that on the Planning Bill. We want the agency to be focused on the complex project at the heart of the designation decision, so we need to be able to modify the role the HCA undertakes. It does not mean that the HCA is somehow exempted from requirements. I hope that will satisfy the noble Baroness on that point. Amendment No. 73E would prevent the HCA having local planning authority functions concurrently with another body. We need that because it is based on real experience where UDCs have been given powers over development control. They have adopted practical arrangements with existing local planning authorities so that they can consider the minor planning functions. UDCs can then concentrate on the larger scale regeneration projects while the planning authorities continue to deal with the more routine planning problems. That is simply a question of good practice and common sense. In Amendment No. 73F the noble Baroness asks us to insert: "““The HCA’s functions as a local planning authority shall not be exercisable by a committee or sub-committee of whom the majority present at the meeting at which the relevant function is exercised are staff of the HCA””." That reflects some of her concerns on an earlier part of the Bill. The intent is that the HCA staff are not judge and jury in respect of development proposals. There is an issue of democratic accountability because they are not elected members. I should say that the planning regime is a regime based on openness and transparency and that the HCA will be bound by it. There are clear statutory procedures for development control, for the preparation and maintenance of documents and involving community. We expect the HCA board to establish suitable arrangements for committees to accommodate instances where, for example, there might be conflicts of interest. As I replied previously on HCA issues, we think that it is perfectly manageable. The noble Baroness’s final amendments were on the substitution of an affirmative order for a negative order. We expect these powers to be used so exceptionally that we think the negative procedure is sufficient, and we will have very rare opportunity to use it. Government Amendments Nos. 71 and 72 are related. Amendment No. 71 is consequential on Amendment No. 72. Amendment No. 72 would remove the reference to the Planning Act 2008. This requires the insertion of the word ““and”” at the end of line 14 to ensure that there is no ambiguity over the definition of permitted purposes. The two amendments achieve that. That must be, surely, the simplest amendment in this long string, and I hope that no one is going to challenge me or, indeed, move an amendment to that amendment. I am grateful for the opportunity to have the debate and for the patience of the Committee as I have responded at speed to those various amendments. I reiterate what I said at the beginning: these are very exceptional powers that will be part of a process involving local authorities, respecting their situation and attempting to work with them in every regard to provide them with the powers that they need, as well to achieve what for so many is a major challenge, up and down the country, putting in place a sort of community development, which we so badly need, to close the gap on affordability and provide homes for families and individuals.