I am grateful to the noble Lord, Lord Kennedy, for speaking to his amendments. He said that the Government had not set out the purpose of the clause. In response to the noble Lord,
Lord Stunell, in the debate that we have just had, I set out the two main objectives of Clause 13. I hope that, on reading Hansard, noble Lords might find that that was a succinct explanation of why we believe that the clause is necessary. The policy was announced in the Budget last year and confirmed in the Queen’s Speech, and we have set out the case on several occasions during the passage of the Bill.
There are a substantial number of amendments in this group and if I am to do justice to them all, I am afraid that it may take a moment or two—although less time than when the speaking note was originally drafted. I will begin with Amendment 19, tabled by the noble Lord, Lord Kennedy, and the noble Baroness, Lady Parminter, which would remove subsection (3) of new Section 100ZA. This amendment would therefore remove an important constraint and safeguard on the power in subsection (1), much the same as Amendments 11 and 13, which we have already discussed. Subsection (3) requires that, before making regulations under subsection (1), the Secretary of State,
“must carry out a public consultation”.
This would afford the opportunity for local views to be put forward as part of the process for determining how the power will be exercised.
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Amendment 20 seeks to amend subsection (3) of the clause so that public consultation must explicitly include local authorities. As the Minister said in Committee, we believe that the amendment is unnecessary as this clause already ensures that appropriate consultation is carried out. We have not heard from any authorities about difficulties in responding to previous planning consultations. We will continue to ensure appropriate levels of publicity as we consult, as well as sufficient levels of accessibility to enable all parties who may wish to provide a response to do so.
When we recently sought views on the detail of the conditions measures in our public consultation, 40% of the 194 responses received were from local authorities, so I do not think that there is any difficulty when we consult in making sure that local authorities are included—and, of course, they are welcome to respond. I think that the Minister wrote to that effect in his letter in response to specific points raised during the third day in Committee. We will carry out a full public consultation and all interested parties, including local authorities, will be welcome to respond.
On Amendment 21, as I believe we said in Committee, I do not believe that such an appeals process is necessary, for reasons similar to the reasons why I believe that Amendment 12 is unnecessary, in that we intend that regulations made under subsection (1) will prohibit conditions which clearly do not meet the well-established national policy tests. As I have mentioned, subsection (3) of new Section 100ZA includes a requirement to carry out a public consultation before making regulations under subsection (1). In addition, we have tabled an amendment that requires any regulations made under subsection (1) to be approved by each House of Parliament.
Amendments 22, 23 and 28 seek to remove one of the key provisions of Clause 13: namely, the opportunity for applicants to agree pre-commencement conditions
before they are imposed on a grant of planning permission. These amendments would remove subsections (4), (5) and (6) of new Section 100ZA respectively. I cannot support them. They would severely impact on the ability of the measures in Clause 13, which are intended to tackle the misuse of pre-commencement planning conditions. They would, in fact, be fairly fatal amendments.
Amendments 22 and 23 seek to remove subsections (4) and (5) from the clause. I understand that it is seen as a controversial part of the Bill, but our intentions are merely to elevate current best practice, as already set out in the Government’s planning practice guidance. Subsection (5) encourages dialogue between an applicant and the local authority, increasing the prospect of an early agreement about the conditions that should be applied to a grant of planning permission.
Amendment 28 would remove the ability of the Secretary of State to prescribe circumstances under which the written agreement of the applicant need not be sought to the imposition of pre-commencement planning conditions. This is an important feature of new Section 100ZA as it ensures necessary flexibility in the process. We have tabled a government amendment requiring a consultation in advance of making regulations under this section. Subsection (6) allows the Secretary of State to prescribe that a local planning authority can impose a pre-commencement condition without the agreement of the applicant in circumstances where the proposed default period of 10 working days has expired. The introduction of a default period was strongly supported by respondents to the consultation on these measures.
Amendment 24 seeks to remove subsection (5) and to replace it with a new subsection which would require local planning authorities to seek the written agreement of the applicant in advance of imposing pre-commencement conditions on the grant of planning permission, but only where it is reasonably practicable for them to do so. I understand the intent and I agree that such a process should not be onerous or disproportionate for planning authorities. We have been clear from the outset that these measures are intended to improve the use of conditions by local planning authorities. However, the amendment might introduce complexity and uncertainty into the process. Much would depend on the circumstances in play at the relevant time. It could even take away the opportunity for applicants to engage with local planning authorities about proposed pre-commencement conditions. The Government’s view is that this amendment could do away with some of the benefits to be achieved from this measure.
I turn now to Amendment 26. A dedicated mediation system is not necessary, and indeed may be counterproductive. My noble friend Lord True spoke in Committee about the problems of setting up a national mediation system, a big risk being that,
“everything would automatically go to some sort of statutory arbitrator”.—[Official Report, 6/2/17; col. 300.]
This in itself could clog up the system, leading to unintended consequences, including accusations of overregulation. If a developer refuses to agree with a particular condition, and the local authority, having considered it, deems it necessary, the authority can
refuse to grant planning permission. We do not think that failure to reach an agreement between applicants and local authorities will become routine. Applicants want to receive planning permission so they can get on with building their scheme, and local planning authorities want to bring forward the sustainable development needed in their area, so both parties are incentivised to reach an agreement.
New subsection (5) merely seeks to guarantee that the applicant is consulted on pre-commencement conditions before they are imposed. As at present, applicants would still have the ability to appeal to the Secretary of State against a planning decision. Following the response to our consultation, we are of the view that it would be appropriate to introduce a 10-working day default period, after which the applicant’s agreement would be deemed to have been given if they had not responded. This could also act as a further incentive for parties to engage earlier in the process and discuss proposed conditions.
Amendment 27 would place the proposed default period, after which the agreement of the applicant would be deemed to have been given if no response had been received, in the Bill. We propose for this default period to be set out in regulations, and a draft of these regulations has already been made available. New subsection (6) affords the Secretary of State flexibility in the future around the need to seek written agreement to pre-commencement conditions. However, as illustrated in the draft regulations we published in December, the Government currently intend to use this power to introduce the proposed default period.
The DPRRC also recommended that regulations made under new subsection (6) should be subject to consultation. We have listened to this, and subsequently have tabled Amendment 29. The introduction of a default period after which the agreement of the applicant is deemed to have been given was overwhelmingly supported in our consultation. As I have said, Clause 13 as currently drafted provides the power, under new subsection (6), to create that default period, which we intend to bring forward.
I turn to non-government Amendments 28A and 32, and government Amendments 29, 31, and 33. I am grateful to the noble Lords, Lord Kennedy and Lord Beecham, for tabling Amendment 32, as it gives me an opportunity to comment further in light of what I said in Committee, where I promised to give it due regard on Report. This amendment follows on from a recommendation of the DPRRC and raises the important issue of the parliamentary procedure that should apply to any regulations made under new Section 100ZA. This amendment would apply the affirmative procedure to regulations made under subsections (1) and (6) of new Section 100ZA.
I also thank the noble Lord, Lord Beecham, for his Amendment 28A, on the important issue of public consultation on any regulations made under new subsection (6). In its report of 27 January, the DPRRC 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
subsection (6), so long as the Secretary of State is required to consult before making such regulations.
I explained previously the constraints in place to prevent the exercise of the power going beyond the stated aims of the Bill. However, I fully appreciate the DPRRC’s concerns in this matter, and to this end, the Government have tabled Amendments 29 and 33 to fulfil its recommendations on parliamentary procedure. To further explain these powers in the Bill for the benefit of users of the planning system, we have also tabled Amendment 31, which proposes a duty on the Secretary of State to issue guidance on the operation of Clause 13 and any regulations made under it. I hope that government Amendments 29, 31 and 33 sufficiently serve the purposes of Amendments 28A and 32.
Amendment 34 would prevent new Section 100ZA from taking effect until an independent report on the evidence base for the changes the Government propose had been completed and presented to Parliament. The issue of evidence has arisen frequently during our debates. In our first debate today I referred to evidence of problems that has come from the National House Building Council, small builders and others. I do not think the Government can accept the amendment because we believe the case for the clause has already been made.
I hope I have been able to reassure noble Lords about any remaining concerns they might have, and that the noble Lord, Lord Kennedy, will be able to withdraw his amendment. In due course I shall move Amendments 31 and 33.