From memory, I think that the noble Baroness is correct, although that is a majority of those who have a view—there were quite a few who ticked “don’t know”. As I have indicated, it was a majority—admittedly a bare majority—of those who gave a view: more than half offered either complete support or supported the principle. However, I will make sure that a link to that document is available for noble Lords.
I assure noble Lords that I recognise the intention of Amendment 37. We of course have to make sure that where agreements cannot be reached, a sensible solution can be found. However, there are a number of reasons why a dedicated mediation system, as proposed by the noble Lord, Lord Kennedy, is not necessary and, indeed, may be counterproductive. As I have made clear, Clause 12 builds on best practice as set out in our planning practice guidance, which states that applicants and local authorities should engage at the earliest possible stage to come to an agreement on the conditions to be applied on a grant of planning permission. I am sure all noble Lords recognise and appreciate the importance of early and sustained engagement to help facilitate a constructive dialogue on the use of conditions. Let me hasten to underline that that is, I think, what happens in the vast majority of cases. The measures here will help to ensure that this takes place.
Existing routes are available to both local authorities and applicants in the unlikely event that there is disagreement on the conditions proposed. If a developer refuses to agree with a particular condition and the local authority deems it necessary, having considered it against the criteria set out in the National Planning Policy Framework, the authority can, and indeed should, refuse to grant planning permission. Nothing could be clearer, and that is the position the Government wish to stress. That is the intention of the legislation going forward; it is not to alter the basic provision that decisions are reached locally. Provided that they are in conformity with the National Planning Policy Framework, it is appropriate that, if the local authority cannot agree with the developer and there are relevant considerations in the framework, it should turn down the application.
At present, applicants would still have the ability to appeal to the Secretary of State against a decision to grant planning permission which is subject to conditions that they disagree with. Further to this, we consulted on our proposal to specify a default period after which the agreement of the applicant would be deemed to be given. Following the response to this consultation, we are of the view that it would be appropriate to introduce a 10-working-day default period. This could also act as a further incentive for parties to engage earlier in the process and discuss conditions that may be imposed on a grant of planning permission. We must acknowledge that adding a further formal step in the process by way of mediation could cause delays—here I find myself in agreement with my noble friend Lord True. In addition, it could actually discourage effective discussions between applicants and local authorities, who may simply wait, knowing that there is the safety net—as they may see it—of the mediation route as an alternative to meaningful engagement at an earlier stage. I hope noble Lords agree that encouraging local authorities and developers to work together to overcome any barriers to delivering the homes that the country needs is the most important step.
4.30 pm
Amendment 38 in the name of the noble Baroness, Lady Parminter, would exclude conditions relating to the delivery of sustainable drainage from the requirement in new subsection (5) to secure the written agreement of the applicant before granting planning permission subject to a pre-commencement condition. The measures in the Bill are intended to stop the misuse of pre-commencement conditions. These measures will not restrict the ability of local planning authorities to propose conditions that are necessary and appropriate protections for important matters such as heritage, the national environment, green spaces, sustainable development and mitigation of the risk of flooding.
Therefore, I reassure the noble Baroness and noble Lords that the clause will not affect the ability of a local planning authority to seek to impose a condition relating to sustainable drainage, providing that the condition meets the long-standing tests set out in paragraph 206 of the National Planning Policy Framework, with which noble Lords are familiar. In the unlikely event that the applicant does not give written agreement, the local planning authority can still refuse planning permission and should do so.
The Government fully recognise the importance of pre-commencement conditions. Clause 12 will not do away with these conditions; rather, it will help ensure that they are used only where absolutely necessary and appropriate. I hope I have assured the noble Baroness that our measures will not prevent the imposition of sustainable drainage pre-commencement conditions which meet the policy tests set out in the National Planning Policy Framework. Clause 12 will not prevent pre-commencement conditions related to sustainable drainage or any other specific issue we have been addressing; rather, it gives the opportunity for the applicant to agree to them before they are attached to a grant of planning permission, while retaining the ability of the local authority to refuse permission in the unlikely event that agreement cannot be reached. I hope that this satisfies the noble Baroness.
Finally, Amendment 43A, tabled by the noble Lords, Lord Kennedy and Lord Beecham, and spoken to by the noble Lord, Lord Kennedy, raises the important issue of the parliamentary procedure that should apply to any regulations made under new Section 100ZA. The noble Baroness, Lady Andrews, also addressed this. Like her, I was a member of the Delegated Powers and Regulatory Reform Committee. I recognise its worth and have particular regard to what it says.
The amendment would ensure that:
“Regulations under this section must be made by statutory instrument and may not be made unless a draft of the instrument containing the regulations has been laid before and approved by a resolution of each House of Parliament”.
Therefore, it would apply the affirmative procedure to regulations made under subsections (1) and (6) of new Section 100ZA. As I said, this issue was raised by the Delegated Powers and Regulatory Reform Committee in its report of 27 January on the Bill. It recommended that the affirmative procedure should apply to the exercise of powers conferred by new Section 100ZA(1) and that the negative procedure should apply to exercises of the power conferred by new subsection (6), so long as the Secretary of State is required to consult before making such regulations; otherwise, without applying the requirement to consult to new subsection (6), the committee recommended the affirmative procedure.
I am sure noble Lords will understand that the Government wish to give full consideration to the committee’s recommendations, which were made not very long ago, including on this important issue, but I assure them that I take its view on this issue seriously. We will give it due regard and I will come back to it on Report. I am grateful to the noble Lords for raising this issue. I hope they will understand that the Government intend to provide their response to all the matters raised by the committee before Report.
For the reasons given, I ask noble Lords and noble Baronesses not to press their amendments. If there are any points that I have not picked up in my response—I am sure there must be some—I will ensure that we cover them in the write-round that follows this Committee session, as we will for the other days of Committee.