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Grand Committee
Wednesday, 9 May 2007.
The Committee met at quarter to four.
[The Deputy Chairman of Committees (LORD GEDDES) in the Chair.]
Greater London Authority Bill
(Fourth Day)
The Deputy Chairman of Committees (Lord Geddes): I advise the Committee that if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume 10 minutes thereafter.
Clause 31 [Mayor to determine certain applications for planning permission]:
Baroness Hamwee moved Amendment No. 92:
Clause 31, page 34, line 43, at end insert “other than for the purposes of section 106 of the Town and Country Planning Act 1990”
The noble Baroness said: The amendment is grouped with Amendments Nos. 97 to 99 in the name of the noble Baroness, Lady Hanham. The group also refers to Clauses 32 to 35 standing part, making it particularly odd that we start with Amendment No. 92. It is a consequential amendment, if one can start with a consequence. It opens up the issue of Section 106 on planning applications under the Town and Country Planning Act 1990.
Under Clause 32, Section 106 matters—planning obligations—become a matter for the Mayor if he takes over an application. My opposition to Clause 32 and the other clauses dealing with planning obligations follows in part from my opposition to Clause 31 and concerns about the order on issues with which the Mayor can concern himself, which we debated yesterday. It also comes from my view that the value of Section 106 is to the local community, and not just in straight cash terms. A community saddled with a development which it may not particularly welcome will see benefits which should strictly be related directly to the development, but can usefully extend to the community by ensuring infrastructure. The nexus between the application, the local authority and the community is particularly important.
The Mayor argues that the local authority will remain the lead authority and negotiate the Section 106 agreement. I notice that his briefing did not suggest that Clauses 32 or 33(2) should be amended. The benefit of the obligation can fall to the Greater London Authority. I am sure that the Minister can reassure us about money not going into some general pot. I do not think that it would, although there is a fear that that might be the case and the Mayor would grant a planning application, take the cash and use it for purposes unconnected with the particular development. I look forward to what the Minister has to say on that.
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Local authorities working in co-operation have shown that they can do so on Section 106 as well as other matters with a cross-boundary application. The most notable example is on the applications for the Olympics and Paralympics Games sites. It is unnecessary for the Mayor to step in if the argument is that local authorities cannot work together and that they need somebody above them. I beg to move.
Baroness Hanham: I have three amendments which follow on from Amendment No. 92 tabled by the noble Baroness. At the outset, I should say that the whole issue of planning obligations being negotiated by the Mayor is fraught and I very much support what the noble Baroness said. Amendments Nos. 97 and 98 relate to planning obligations and raise a drafting query. A planning obligation is an obligation created by an owner of land, either unilaterally or by entering into an agreement with the local planning authority.
Local planning authorities have no such function. They may agree to enter into a planning obligation. Alternatively, they may grant planning permission, having regard to a planning obligation whether or not they themselves have entered into it. Clause 32 is therefore misconceived in thinking that there is a particular power to agreeing a planning obligation. We have proposed removing these subsections for that reason.
Amendment No. 99 is more significant. It supports what the noble Baroness, Lady Hamwee, has said and seeks to prevent planning obligation payments being made to the Mayor in any event. It would delete the proposals that payments under a planning obligation can be made to the Mayor of London, which we would see as inappropriate, given that the Mayor should be playing only a strategic role. We do not believe that the Greater London Authority should be able to benefit in any way from planning obligations. Since I wish to move my amendments, I would like to say that the Mayor should not have any role in the planning obligations.
Lord Jenkin of Roding: There is a good deal of anxiety on the part of the City planning authority about the potential misuse of sums of money that might become available under Section 106 agreements. City developments often are very large and, consequentially, very large sums are due to be allocated under Section 106. It is naturally apprehensive that these may be put to uses that benefit perhaps the Mayor’s political ambitions rather than things that will directly benefit the area concerned. In the City, Section 106 payments have been used to provide local community facilities and environmental improvements, such as enhanced street furniture and things that will undoubtedly increase the attractiveness of the City for investment and the people who work there. If there was any thought that the money would be diverted to other uses—
Lord Brooke of Sutton Mandeville: I fear that I kicked something and caused that noise.
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Lord Jenkin of Roding: I forgive my noble friend. My glasses, which are very sophisticated, occasionally make noises like that. If the City planning authority thought that the money would be diverted, I think that there would be considerable anxiety. So I very much endorse the questions asked by the noble Baroness, Lady Hamwee, and my noble friend Lady Hanham. We need reassurance on this and I wait with interest to hear the Minister.
Lord Campbell-Savours: I intervene briefly to oppose the view that is being taken on the other side of the Committee. My view is that the Mayor of London should have the maximum possible influence on these agreements, which are in the public interest. I am not satisfied that some local authorities in London are capable of understanding the possible benefits that are attainable if these agreements are properly drawn up.
Baroness Turner of Camden: I support what my noble friend has just said. According to the briefing that I received from the Mayor of London, there is considerable support for the planning changes. He says that a recent MORI poll shows that Londoners support the proposals for the Mayor to approve major planning applications. A huge 83 per cent supported the Mayor’s target that 50 per cent of all new homes should be affordable for people on low and moderate incomes. I certainly support that view. We talked about this yesterday. The amendment tends to undermine the objective of the Bill, which is to give the Mayor the powers to conduct a London-wide strategy. That should be welcomed.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews): I thank noble Lords for a useful debate, which enables me to explore a little about why planning obligations are important and why the clause is important.
Amendments Nos. 92, 97, 98 and 99 all relate to removing scope for mayoral involvement in planning obligations. I do not think it will surprise Members of the Committee to hear me say that I cannot accept any of those amendments. To do so would effectively leave the Mayor unable to grant planning permission for applications that he is responsible for deciding. That would not be in the interests of applicants or the proper planning of key development proposals in London. I will come to the drafting point that the noble Baroness raised in a little while.
Noble Lords are well aware that there is a close and direct relationship between planning applications and planning obligations. Planning obligations are crucial to mitigating the impacts of individual development proposals, and without the mitigation provided through the obligation, in certain cases, the development would not be granted planning permission in the first place. The noble Baroness, Lady Hamwee, pointed out the great local benefits that can come from planning obligations. The noble Lord, Lord Jenkin, pointed to the environmental benefits. That is absolutely the case.
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The noble Baroness raised a drafting question about Clause 32 and the word “agree”. As I understand it, where the authority requires the obligation as a condition of the permission, it can require agreement or giving a unilateral undertaking. The wording of Clause 32 achieves that. I will ask officials to write to the noble Baroness to unpack some of that language so that there is no confusion.
Amendment No. 98 would remove the requirement for the Mayor to consult the relevant London borough before agreeing any planning obligation. That is consequential to Amendment No. 97 and I cannot accept that amendment, and it would hardly stand in isolation anyway. That is for some very good reasons. Many of the impacts, even on very large schemes, are still local in nature, and there can be no doubt that boroughs are best placed to advise on those issues and how and whether they might be mitigated through planning obligations. Therefore, it is right and proper that the Mayor should consult the borough before agreeing any planning obligation.
Clause 33 provides for the Greater London Authority to receive sums of money under the terms of a Section 106 agreement, and for the Mayor to enforce the terms of such an agreement and to recover costs associated with any such enforcement action. Concerns have been raised by the noble Baronesses, Lady Hamwee and Lady Hanham, and the noble Lord, Lord Jenkin, about what that will mean. The concern has been expressed that the Mayor will seek to divert all the Section 106 moneys for his own schemes, ignoring local issues. However, I can put noble Lords’ minds to rest that this is simply not true. Current policy on planning obligations in England, as set out in circular 05/2005, requires fair, open and reasonable negotiation of planning obligations so that the obligations allow developments to go ahead which might otherwise have been refused.
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The circular states, among other factors, that planning obligations are to be sought only where they meet all the following policy tests: they must be relevant to planning; necessary to make the proposed development acceptable in planning terms; directly related to the proposed development; fairly and reasonably related in scale and kind to the proposed development and reasonable in all other respects.
In approaching the negotiation of obligations and who should be the recipient of Section 106 moneys, the Mayor, in common with the boroughs, will need to comply with these requirements and the relevant policies set out in the development plan—both his London Plan and the borough’s UDP or local development framework. I believe that there is enough security in those conditions to convince the Committee that Section 106 moneys are safe in that respect.
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It may be helpful if I explain the purpose and importance of the other clauses which deal with issues related to the Mayor and planning obligations. Clause 34 expressly requires the Mayor to consult the local planning authority before exercising any enforcement power in relation to a Section 106 agreement agreed by him. The clause also amends Section 106B of the Town and Country Planning Act 1990 to provide that where the Mayor fails to give notice of his decision in response to an application to modify or discharge a planning obligation or refuses such an application, the applicant shall have a right of appeal to the Secretary of State. The clause also provides for the Mayor to be treated as the local planning authority in relation to appeals concerning planning obligations. These powers are necessary to ensure the effective operation of the planning obligations system where the Mayor is involved as a decision-maker.
Finally, Clause 35 contains technical provisions relating to planning contributions under Section 46 of the Planning and Compulsory Purchase Act 2004. Section 46 of this Act empowers the Secretary of State to make regulations which will enable planning contributions to be made in relation to the development or use of land in the area of a local planning authority. The LPA could be required by such regulations to set out in a document which developments and uses it will seek contributions for, where it will not seek a contribution, the purposes to which receipts from contributions may be put, either in whole or in part, and the criteria for determining the value of the contribution.
This clause provides a technical amendment to the Planning and Compulsory Purchase Act 2004 to allow those regulations to provide for the making of a planning contribution where the Mayor is the local planning authority in relation to a particular application.
I hope that I have convinced the Committee of the very practical importance of providing for the Mayor to be responsible for planning obligations relating to planning applications he decides. I cannot accept these amendments. I hope that, given the grounds I mentioned, Members of the Committee will feel able to withdraw them.
Baroness Hanham: What happens if the local authority and the Mayor do not agree about the value of or necessity for a planning obligation? Where does the final decision lie? I envisage plenty of situations in which a local planning authority does not like the application that has been put forward in any terms at all and would turn it down if it was given the opportunity. The application would need to make a very significant contribution to the local area for the local authority’s purposes. It is not always a question of money only; plenty of conditions come about through Section 106 that directly ameliorate an application. If the local authority believes that it would probably get a great deal more out of the applicants than does the Mayor, where does a final decision lie? The Mayor could approve an application that absolutely does not carry sufficient weight in Section 106 terms. Would the local authority have a right to appeal to anybody about that before the application was approved by the Mayor?
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Baroness Andrews: As I understand it, there is a lot of scope for negotiation between the Mayor and the boroughs on the sort of benefit that is wanted. As we have said, this must so far as possible be a local issue and of local benefit. To some extent, this depends a little on what decision is being taken and what stage the decision is at. As I understand it, if there is disagreement, the Mayor is responsible at the end of the day if he is the decision-taker with regard to the application. I am not entirely sure that I can go further at this point without being able to explain the context in which that might be the case, and I would prefer to write to the noble Baroness about this and about the rights of appeal, and so on. I began to explain from my notes the process that the Mayor must go through and the conditions that surround and contain those decisions, but I will write to the noble Baroness.
Baroness Hanham: I would be grateful if the Minister could write to me, because this is one of the reasons why these clauses on the Mayor taking responsibility for planning applications become even more contentious. It is very important that there is a process. This should end up being about what the local authority thinks the Section 106 agreement should be, and this should be what the Mayor implements. Otherwise, one runs into the sort of problem described by the noble Baroness, Lady Hamwee, whereby the Mayor has his own Section 106 agreement and there is concern that the money will go elsewhere.
Lord Campbell-Savours: May I ask the Minister to ensure that that letter, which I think will be quite important, is circulated to all Members of the Committee?
Baroness Andrews: I will certainly do that. I refer again to the planning conditions set out in the circular, which lay down the proper process for ensuring that conditions are satisfied in different ways. This is obviously an area where there is a lot of negotiation and where the conditions have to be adhered to.
Lord Brooke of Sutton Mandeville: The Minister is so courteous that I am sure I know what answer she will give. Following what the noble Lord, Lord Campbell-Savours, said, will that letter come before Report?
Baroness Hamwee: Picking up that last exchange, I share the noble Baroness’s concern. Section 2D says that,
New Section 2D(4) requires the Mayor to,
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The obligation to consult suggests that he has to do no more than consult. I do not suggest that he should not listen to the local planning authority or not be required to have proper regard to what the local planning authority has to say, but the decision is clearly the Mayor’s. It is a little rough on the local planning authority that the new section ends with the obligation being,
as the local planning authority may be stuck with enforcing something that it has not wanted in the first place.
Lord Jenkin of Roding: Picking up a point that the noble Baroness made earlier, when the Mayor does take a different view from that of the borough or the city planning authority, should the Mayor be obliged to spell out precisely why he does not accept that advice? Perhaps we could consider this on Report.
Baroness Hamwee: That would be good consultation practice. We discussed consultation in a different context at an earlier stage of the Bill. We would certainly like the Mayor to have to do what the noble Lord suggests every time he consults. It struck me when listening to the Minister reading out the circular that it provides for the applicant and whichever planning authority is involved in a particular situation to disagree, and if the applicant wants to agree something different, it might be possible for the applicant to do so. I am not sure where that thought is taking me, but it is buzzing around in my head as a minor worry in a part of the forest somewhere here.
Before I beg leave to withdraw the amendment, perhaps I may comment on the remarks made by the noble Lord and the noble Baroness opposite; that, because some local authorities do not conduct their affairs and deal with planning matters in the way that they, and possibly I, would like to see, the Mayor should deal with such issues. It is often helpful in such situations for those considering the matter to reverse the political roles and to think of a Mayor of a political complexion which is not so attractive to them. In other words, I will put it very bluntly, say that one has a Conservative mayor and a Labour local authority. Does that still apply for those who are saying that the mayor—any mayor—should have the rights proposed? One has to stand back and think how this would work with everyone’s worst fears as to who is holding that office.
Lord Graham of Edmonton: What the noble Baroness says is perfectly acceptable if we are arguing about the office and the authority, and not the named individual and the political complexion. If it is just the process, what she says is eminently right. Also, it is perfectly possible to envisage the scenario that has been mentioned. However, we have all been around the local government circuit for some time and in this place. We must recognise not just that you win some and you lose some but that sometimes you get into a bind and you cannot ever see yourself winning. But
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Baroness Hanham: Does the noble Lord agree that decisions made by the Mayor under the Bill will not last merely for a four-year term and may then be overturned, but that they will last for generations? What is approved will be seen for 50 years. That is very different.
Lord Graham of Edmonton: I would not disagree, but we are not just talking about ephemeral timescales. The point made by the noble Baroness, Lady Hamwee, fits this issue very well. If one simply takes away the personality aspect, which is there—we do not enhance our perceptions of people’s intelligence if we say that it does not play any part—then, as far as I am concerned, the Mayor, and of course the Mayor’s office, staff and structure, would need to think very carefully if he very quickly got into a situation where he always wanted his view ultimately to prevail. That would cause a grave reaction, not just in local government but in national government. If the Mayor always won in a dispute on what was right or wrong for Greater London, whatever the effect on a local borough, that would be a very bad political judgment.
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Baroness Hamwee: That is right. From the Liberal Democrat standpoint and the clear implications of the examples used so far in Committee of two other political parties, I am giving a pretty objective point of view. But it is inevitable that in arguing from a briefing from the current Mayor, there are implications in that as well. I shall mention an example used in this debate: that of housing and the MORI poll, the results of which surprise me not a jot. People are desperately concerned about housing in London; it is the major issue in the capital. If they are asked a question which suggests that there may be a way through the horror of the lack of affordable housing, they will say “Yes”. One has to be careful about the conclusions one draws from any given poll.
I have moved away a little from the subject matter of the amendment, but some of my comments are pertinent to the debate generally about the future balance of powers within London. I beg leave to withdraw the amendment.
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