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
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.
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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,
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.
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.
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
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.
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