My Lords, I thank noble Lords for their contributions on this amendment. Some of the ground was covered previously, but not substantially, so I am grateful for all the views that have been put forward. What is being underscored here is that a local authority should not be penalised for something which
is well outside its own control. As I said in response to the previous amendment, it would be our intention that where a local planning authority was on the bar for designation it would at least be able to discuss some of the reasons for why it thought that it was slow, particularly over one or two applications. The noble Lord, Lord Greaves, is right: there are a number of areas where local authorities simply cannot do anything about that.
They can under the new planning agreement, however, as they will be able to say to a developer that there are areas which are outside their control and may take longer to consider. That can be a formal agreement, or there can an informal agreement saying the same thing, and it can take place at any stage in the planning process. If you get to a certain stage and discover that you have not got the response that you need, the planning agreement could be that you think that a few weeks might be needed to bring that in and it could be delayed. This is not about planning applications where we know that things go wrong; it is where the normal process of considering an application is deliberately slow.
I hear very clearly what is being said about this, and I hope that we will be able to make clear either in guidance or in some other way what would be excluded, because that is important. We have noted, too, what your Lordships’ Select Committee on the Constitution and the Delegated Powers and Regulatory Reform Committee had to say about this. We need to take note of that, consider it and come back at Report if there is anything that we can do to respond to it.
The noble Lord, Lord Greaves, has set out a substantial list. I do not think that he really believes that it would be sensible to have that in the Bill. We need to understand where the exceptions and difficulties are. I am sure that we will think about that after the sitting.
Amendment 34, tabled by the noble Lord, Lord True, and to which the noble Lord, Lord Tope, spoke, concerns the question of judicial review and proposes that any judicial review should be excluded from any assessment of speed. An absolutely minute number of planning applications are subject to judicial review and, in the vast majority of those cases, the proceedings are instigated once the application has been determined. They do not take place during the course of the review, which might take up time. I do not think that judicial review will impede councils’ performance on the consideration of the application. It is therefore unnecessary to make special provision for applications subject to judicial review in any way. I suspect that if it happened in the middle of a process it would be as relevant to have that as a planning agreement to be sorted out as any other. I need to check that, but that seems a pretty logical conclusion.
We have dealt a little with an authority’s past improvement in performance, and the proposal that any designation should be based on five years. That would be far too long. We are looking at the figures for two years because we are concerned about the performance occurring now, not about whether the authority has improved over five years, because if it is still not at the criteria level now, it will make no difference whether it started from nought or not or whether it has gone up
or down. It is better to set a bar of two years and not much more so that we get a really clear impression of what is happening at present.
Where local authorities are deemed to be failing under the criteria, we do not want to hang about. We do not want them to be under pressure about it; if they are to be designated, we want them to be designated, the help to be put in place and the opportunity to be de-designated at the year review to be put in hand immediately. I keep saying this, but we do not want local authorities to be designated; we would much prefer that they were not. We need to ensure that if they are not performing well, they start to perform well or better very quickly.
We have made clear that we will take a picture of each authority’s performance over the most recent two-year period, to even out any fluctuations in the data and account for the fact that some authorities deal with more applications than others. I said that in debate on a previous amendment. We recognise that that there are authorities, such as the national parks authority, which deal with a limited number of major applications during the course of a year. Of course we must take that into account compared with a local planning authority which is dealing with any number of major applications.
We have just completed a consultation. As I said, we will try to ensure that noble Lords at least know before the next stage what were the responses to it. If we can get any further than that, we will. We will consult again in future if the approach to the criteria should change. That was a point picked up by the noble Lord, Lord McKenzie: what is to stop future Secretaries of State suddenly deciding that they want to raise all the criteria? What is to stop them is that they would have to go out to consultation; they could not just do it. That does not need to be in the Bill either.
I think that I have answered the point made by the noble Lord, Lord Greaves. If elements within the 13 weeks justify delay, we will certainly ensure that that is taken up. We shall consider very carefully the responses to the consultation. I hope that that covers the points made by noble Lords.