My Lords, my Amendment 33 is in this group. I certainly support the amendment in the name of my noble friend Lord Tope. Before I speak to Amendment 33, I will say that I strongly support the amendment moved by the noble Lord, Lord McKenzie of Luton, which sets out that the criteria for making decisions should be in regulations that are subject to parliamentary approval. We can argue about whether approval should be by affirmative or negative resolution, which is the argument we normally have, but here we are arguing about whether the criteria should be in parliamentary regulations and statutory instruments or whether the Secretary of State should have the power to issue an order stating what the criteria will be, or simply to publish the criteria. This is unsatisfactory.
Many development orders made in the planning system are not subject to parliamentary approval. This is part and parcel of the planning system and relates sometimes to planning policy and often to the way in which the system works. This legislation is different because it would take away the statutory powers of authorities to carry out their planning functions and transfer them to the Secretary of State. It is on a different level from normal development orders and it is right and proper that the criteria should be subject to parliamentary approval—not the decisions as to which authorities should be designated but the criteria that the Secretary of State has to follow to carry out a designation. Unless they are, the opportunities for judicial review might be substantial simply on the basis of something that has been published. However, in principle, the noble Lord, Lord McKenzie, is right.
My amendments seek to probe in detail some aspects of the criteria that the Secretary of State will look to when deciding whether or not to designate an authority, and particularly some of the criteria that will count against designation because they might be unreasonable. The Minister touched on some of these in her reply to the previous group of amendments but I hope that she will look at the amendments one by one and give the Committee an understanding of the Government’s thinking on them.
In the discussion on the previous group of amendments, the noble Lord, Lord Jenkin of Roding, referred to the wide variation in performance of local planning authorities. I have no doubt that, as in many other aspects of their work, there is a substantial variation in the performance of different local authorities. That
is inevitable where you have hundreds of local authorities around the country carrying out their functions in different ways with different degrees of efficiency and effectiveness. It is part and parcel of local democracy.
However, in this area there are two issues involved. One is the genuine underlying difference in performance, which no doubt will and does exist. The other is what the statistics show and whether those that we have at the moment on delays in determining planning applications have any underlying meaning. In many cases, they are based not only on different levels of efficiency in dealing with planning applications but on the different practices of local authorities. For example, on major applications, the level and depth of the pre-application discussions that take place vary from one local planning authority to another. Some local planning authorities will wish to extend the pre-application discussions until they have got to a point where they think they can put an application through the system and probably get a decision in favour. That will mean that the submission and registration of the application will take place later than in other authorities which take the view, “Let’s get the application in and, once it is in, we can have a great deal of discussion and debate about it”. Of course, it will be more difficult to keep that within the 13 weeks.
Therefore, not all authorities that take longer than 13 weeks over many major applications are necessarily making the decision later than authorities that appear to make the decision within the 13 weeks. It is a question of when the application is submitted and registered. There will be authorities that register an application almost as soon as they get it, while others will accept the application when it is submitted, look at it, and then say, “You have not provided this and that, so we are not going to register the application until you have provided it all”. All this is done with the agreement of the applicant. The second group of authorities will fit within the 13 weeks more easily than the former group because they will spend time gathering information after the application has been registered.
Where an application is generally all right with only a few details to be sorted out, some authorities will give the developer a nod and a wink and come to an agreement that the application is rejected. Instead of lodging an appeal, the developer spends a little time sorting out the application and then resubmits it. I think that developers have a right to resubmit within 12 months without paying an extra fee. Different practices mean that authorities generate different statistics in terms of whether they deal with applications within eight or 13 weeks. The statistics are not based on differences in the underlying efficiency of authorities, but if the period of 13 weeks becomes more important because authorities do not want to be designated, they will use these processes to reduce to a minimum the work that actually has to take place within the 13 weeks and do as much of it as possible in advance. That does not mean that the final determination will be made any later or any sooner. All this is the practical stuff of how things happen. However, if people are given targets, they will find ways of achieving them. Some will do so by becoming more efficient and others will do so simply by changing their working practices and doing what other councils do.
Amendment 33 sets out some of the criteria referred to by the Minister in responding to the last amendment. They are the criteria that the Secretary of State will have to look at when deciding whether to designate a council. Subsection (9)(a), which will appear in new Section 62A of the Town and Country Planning Act 1990 proposed in Clause 1, refers to,
“planning performance agreements … entered into … before the submission of an application”.
The Minister has suggested that such agreements will be an acceptable reason for taking longer than 13 weeks, but it would be helpful if she would confirm that. Proposed new subsection (9)(b) refers to any,
“agreements that have been entered into following the submission of an application”.
Will this be an excuse not to be designated or will the local authority be told that once it has registered the application, the clock starts ticking remorselessly? Proposed new subsection (9)(c) is important in many cases, and refers to,
“informal agreements that have been entered into between applicants and the local planning authority to delay the issue of a decision”.
It is often in the interests of both the applicant and the local planning authority, along with everyone else, to sort things out before a decision is made. If things are not sorted out, there is a greater risk of a refusal which causes further delay through an appeal or a resubmission. Particularly on major applications, negotiations always take place between the applicant and the local planning authority to cover the detail and conditions of the application, such as those which may arise from a Section 106 agreement. If those discussions are artificially brought to a close before they are properly agreed, we will see worse decisions being made. Proposed new subsection (9)(d) refers to,
“any delays that have been caused by the failure of statutory consultees to respond within the specified time”.
The local planning authority is perfectly entitled to determine an application if it has not had a response from, for example, the Highways Authority, but it would be very foolish for it to do so if the application will have an important impact on the local highways network or even if it is just a matter of connections to the local network. If the Environment Agency is late in responding, what do you do? Do you pass the application anyway or, when you get a late response from the Environment Agency saying that it does not like the drainage system which is being proposed and that, as it stands, it would recommend refusal, do you refuse it on that ground? Alternatively, do you say, “No, we need more time for the applicants to work together with the planning authority and the Environment Agency to sort it out”? These are the kind of decisions and practices which take place time and time again on major applications.
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There is then the question of whether delays are,
“caused by the failure of applicants to respond promptly to objections and concerns raised by consultees or the local planning authority”.
If the Environment Agency’s objections are passed on to the applicants and they do nothing about it for four or five weeks, which puts the application over, what do
you do? Do you turn it down, which you are entitled to do, or do you say, “No, we need more time”? There are many occasions when more time to get the right result is better than taking an instant decision, whether that is to turn it down, which delays everything for much longer, or to pass it in an unsatisfactory manner. Proposed new subsection (9)(f) then refers to,
“such other matters as the Secretary of State considers to be relevant”.
The further subsection that I want to add says that:
“The criteria that are to be applied under subsection (8)(b)”—
the criteria about revoking the designation—
“shall have regard to … the performance of the local planning authority in relation to planning applications that it has continued to determine”.
Those are all the non-major ones, or perhaps some major ones that the applicants decide to send to the local planning authority rather than the Secretary of State, despite the designation. I think the Minister has said that these will be taken into account but it would be useful to have further confirmation.
Secondly, the subsection says that the criteria should have regard to,
“the performance of the authority in relation to matters directed under subsection (6)”,
which are those where:
“The Secretary of State may give directions requiring a local planning authority … to do things in relation to an application”.
Those are the matters which the Secretary of State instructs the local planning authority to do in relation to relevant applications which are dealt with by the Secretary of State and the Planning Inspectorate but which then require the local planning authority to do some work on them. Clearly, there should be evidence there of the competence of that local planning authority to do work on behalf of the Secretary of State.
Proposed new subsection (10)(c) refers to,
“the performance of the authority in relation to its other planning functions”.
This relates to the question that my noble friend Lord Burnett, who is not here at the moment, raised about whether its competence in producing local plans should be part of this. I simply repeat what I said earlier, which I have said many times in your Lordships’ House, that most of the delays and serious delays in the planning system are in the plan-making system and not in development control. Until the Government are prepared to look very hard at the ludicrous bureaucracy, the time-consuming processes and multiple consultations that occur in plan-making, no progress will be made on that.
Proposed new subsection (10)(d) is slightly tongue in cheek, and refers to,
“the performance of the Secretary of State in relation to relevant applications”.
The point I made earlier about what happens if the Planning Inspectorate does not determine an application within 13 weeks was met with the answer from the Minister: “We intend that they shall do”. However, a council might also say, “We intend to determine all our major applications within 13 weeks but we have not managed to do it”. The Planning Inspectorate may say the same. My experience, and I think many
people’s of the Planning Inspectorate over the years, is that it has not always been the speediest and most efficient organisation in the world. I once had an overdue planning application where the appeal had taken, I think, two and a half years; a matter that I ended up raising in your Lordships’ House about 10 years ago. Things have improved—I accept that— and the Planning Inspectorate deals with things more quickly now, but there is no guarantee whatever that, if it is dealing with a number of large applications in a particular locality, it is going to be any more efficient at doing it, for all the reasons that I have set out. A lot of the reasons for delay are not in the hands of the planners.
These are all important matters that need very clear answers from the Government. I hope the Minister will be able to give them.