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Fifteenth Report Contents

Neighbourhood Planning Bill

1.The Neighbourhood Planning Bill had its Second Reading on 17 January. According to the explanatory notes accompanying the Bill, it has two key aims:

“First, to help identify and free up more land to build homes on to give communities as much certainty as possible about where and when development will take place. Second, to speed up the delivery of new homes, in particular by reducing the time it takes to get from planning permission being granted to building work happening on site and new homes being delivered.”

2.The Department for Communities and Local Government (DCLG) has provided a helpful memorandum about the delegated powers in the Bill,1 and a supplementary memorandum2 concerning Government amendments tabled on 24 January for Grand Committee. We wish to draw the following matters to the attention of the House.

Clause 12—Restrictions on the imposition of planning conditions

Background

3.DCLG’s first memorandum explains that planning conditions “are used by local planning authorities to make a proposed development which would otherwise be unacceptable in planning terms, acceptable such that it may be granted planning permission”.3

4.A local planning authority, when granting planning permission, may do so unconditionally or subject to such conditions as it thinks fit: see section 70(1)(a) of the Town and Country Planning Act 1990 (“the 1990 Act”).

5.DCLG has issued guidance on the use of planning conditions.4 This explains that the power in section 70 “must be interpreted in light of material factors such as the National Planning Policy Framework, this supporting guidance on the use of conditions, and relevant case law”. The guidance quotes the National Planning Policy Framework which states that planning conditions should only be imposed where they meet six tests. They must be:

6.The guidance then sets out a long list of particular types of condition which, the Department considers, would not meet the six tests.

7.The person who applied for planning permission has a right of appeal to the Secretary of State against a decision by the local planning authority to impose a planning condition.5 Most appeals are determined by a planning inspector, who can hold an inquiry.6 If a local planning authority imposed a condition contrary to the guidance, the appeal would be likely to succeed unless the authority had good reasons for the condition, for example because of special local factors relating to a particular development.

8.Clause 12 contains new provisions to restrict the power of local planning authorities to impose planning conditions.7

New section 100ZA(1)—Power to prohibit planning conditions by regulations

9.The Secretary of State is to have power by regulations:

(See subsection (1) of the new section 100ZA inserted in the 1990 Act.)

10.The Secretary of State has to be satisfied that the regulations are appropriate for the purpose of ensuring that any condition imposed on a grant of planning permission for the development of land is (in broad terms) necessary, relevant, precise and reasonable: see subsection (2).

11.The Secretary of State must also carry out a public consultation exercise before making regulations: see subsection (3).

12.The memorandum explains that the Government want to take this power because “there is evidence that some local planning authorities are imposing unnecessary and inappropriate planning conditions which do not meet the tests in national policy, resulting in delays to the delivery of new development”.8

13.The memorandum refers to the Department’s planning Guidance to illustrate examples of the types of condition that the proposed power would prohibit. They include: “those which may unreasonably impact on the deliverability of a development, those which place unjustifiable and disproportionate financial burdens on an applicant, or those which duplicate requirements to comply with other statutory regimes”.9

14.The memorandum further explains:

“While the Guidance provides this steer, the Government is seeking to give the list of conditions that should be avoided statutory force, to ensure that such conditions are not imposed and that development can proceed without any undue delay caused by the imposition of unnecessary planning conditions. This description of circumstances and conditions has been left to secondary legislation so that the power is capable of being used in the future to prohibit the use of unnecessary and particularly onerous conditions which impede completion of development. Such delegation will also allow the Government flexibility in updating the list, in response to evidence provided by stakeholders without imposing unduly on Parliamentary time but whilst still engaging those affected through a public consultation, which is required under 100ZA(3) …

The Government acknowledges that the power to prescribe the circumstances where conditions may or may not be imposed and to set out the descriptions of such conditions is wide. However, the Government considers a delegation appropriate in these circumstances.”10

15.We are concerned however, that the power would allow the Secretary of State to proscribe conditions in relation to any type of planning conditions when the key aims of the Bill are to facilitate the building of new homes11. Surprisingly, no reason for this is given in the memorandum.

16.We consider it inappropriate for the Government to be given a power which could be used to go well beyond the stated aims of the Bill; and so we recommend that it should apply only to planning conditions for housing developments.

Parliamentary procedure

17.The current power of the Secretary of State to give guidance discouraging a local planning authority from imposing conditions he or she considers unreasonable is to be replaced with a power to prohibit such conditions completely. The authority would have no opportunity to justify them.

18.The Government have published a policy document setting out how they intend to exercise the Bill’s delegated powers.12 It contains draft regulations specifying five types of condition that a local planning authority may not impose.13 There would, of course, be nothing to prevent the Secretary of State from using the new power to prohibit many more conditions.

19.The regulations would attract only the negative Parliamentary procedure. This is the justification given in the memorandum:

“Firstly, the Government must consult prior to the exercise of the power, and therefore any exercise of the power will receive considered input from interested groups. Secondly, the detail of the planning application procedure is currently subject to the negative resolution procedure under the 1990 Act, and these provisions are intended to add to existing powers. For example, article 35 … of the Town and Country Planning (Development Management Procedure) (England) Order 2015 … regulates matters around the imposition of conditions by requiring full reasons for each condition imposed … Thirdly, frequent modification of the description of the conditions and of the circumstances in which conditions may or may not be imposed is likely to be necessary in order to keep pace with changes in planning and more generally in the housing market and, therefore, to ensure the regulations remain effective at dealing with conditions that unnecessarily impact on development. The negative procedure would allow for such amendments to the regulations to be carried out without imposing unduly on Parliamentary time.”14

20.We do not find these arguments persuasive. In our view, the negative procedure is not an adequate level of Parliamentary scrutiny for the exercise of these new powers, which could substantially restrict the ability of local planning authorities to attach conditions to the grant of any type of planning permission. The regulations will be of much greater significance than the matters dealt with in the 2015 Order referred to in the memorandum.

21.We have further noted the analogous provision in section 19A(1) of Licensing Act 2003. This confers a power on the Secretary of State to specify by order conditions relating to the supply of alcohol which may be imposed by local authorities when granting premises licences. The affirmative procedure applies to the order.15

22.We therefore recommend that the affirmative procedure should apply to the exercise of the powers conferred by new section 100ZA(1).

New section 100ZA(5) to (7)—Pre-commencement conditions

23.New section 100ZA(5) prohibits a local planning authority from granting planning permission subject to a “pre-commencement condition” without the written agreement of the person applying for permission as to the terms of the condition.16

24.A “pre-commencement condition” is a condition imposed on the grant of planning permission which must be complied with:

25.The memorandum explains that the Government wish “to ensure that pre-commencement conditions, which require action before any development can take place, are not imposed unnecessarily, for example relating to matters that are capable of being discharged later in the development process. This can impose unnecessary costs on development and delay the completion of new development”.17

26.We wanted to see some specific examples of pre-commencement conditions to help us understand the effect of subsection (5). None appeared to be included in the explanatory material accompanying the Bill. At our request, DCLG have therefore provided the following list setting out of details that developers have had to provide to local planning authorities before building works could begin:

27.The Secretary of State is, however, to have power to relax the prohibition of conditions of this type. Regulations can set out circumstances in which pre-commencement conditions may be imposed without the written agreement of the person applying for permission (see subsection (6)).

28.The Government have published draft regulations indicating how they intend to exercise this power.19 A local planning authority will be allowed to impose a pre-commencement condition without the applicant’s agreement only in one type of case. This is where the authority gives written notice of the proposed condition, but the applicant fails to provide a substantive response within 10 working days.

29.We are concerned that there is no duty to consult before making regulations about pre-commencement conditions. In our view, the Secretary of State should be required to consult not only developers but also local planning authorities and other interested parties. They may all have strong views as to when pre-commencement conditions should be permitted without the agreement of the person applying for permission. It is important that their comments should inform the preparation of the regulations.

30.We therefore recommend that the Secretary of State should be required to consult before making regulations under subsection (6). If this amendment is made, we would regard the negative procedure as an adequate level of Parliamentary scrutiny, otherwise we recommend the affirmative procedure.

Clause 24—Temporary possession of land: supplementary provisions

Background

31.Clause 14 confers a power on an authority to take possession of land temporarily for the purposes of a proposed scheme of development. Existing legislation only allows for a compulsory purchase order either to permit an authority to acquire land permanently or to acquire permanent new rights over land.20

32.We have thought of one scenario to illustrate how the power could be used.21 An authority may want to acquire two pieces of land, Plots A and B, in connection with a road scheme. The road will be constructed on Plot A, which would be acquired compulsorily and permanently, but Plot B may also be needed to allow for access to Plot A. Clause 14 would allow the authority to acquire Plot B temporarily to construct a short-term access route and, where necessary, to remove any buildings and vegetation. Plot B would be returned to the land owner after the new road on Plot A was finished.

33.Clauses 15 to 23 describe the procedures that must be followed to acquire land temporarily. They also provide for the payment of compensation to the land owner, and specify the powers of the acquiring authority while in temporary possession of the land.

Power to make supplementary provision

34.Clause 24(1) allows the Secretary of State and Welsh Ministers22 to make further provision by affirmative procedure regulations in relation to:

35.The memorandum gives the following justification for clause 24:

“Regulations will limit the temporary possession power in different ways for different circumstances, as explained above. There will be different types of land, different areas, and different acquiring authorities which might be involved. The Government anticipates that it will be necessary over time to make different provision in respect of different acquiring authorities and for different types of land. This is because the temporary possession power is a new power, and the Government will want to respond to evidence gathered about how it is used to see what further limits need to be prescribed. Both the need to further extend or limit the temporary possession power over time, and the level of detail involved in these limitations make Regulations the most suitable legislative vehicle for these provisions.”23

36.Subsection (2) sets out a list of matters that could be dealt with in the regulations. We draw the House’s attention in particular to the powers which would allow the Secretary of State and Welsh Ministers:

Excluding or modifying Chapter 1 of Part 2 in particular cases

37.DCLG’s policy document explains that the power in subsection (2)(a) to exclude or modify the provisions of Chapter 1 of Part 2 could be exercised:

“so that Orders under the Pipe-lines Act 1962 and the Gas Act 1965 will be able to include temporary possession provisions similar to those that will be available to similar bespoke consenting regimes [in the Transport and Works Act 1992 and the Harbours Act 1964]”.24

38.However, the power goes much further than this: it would enable the regulations to make substantial changes to clauses 14 to 26 in a wide range of cases, for example by excluding the provisions about compensation.

39.We consider that subsection (2)(a) is inappropriately wide, and should be re-drafted to reflect the narrow policy intention referred to in the DCLG document.

Reinstatement

40.There is nothing on the face of the Bill to compel an acquiring authority to reinstate land at the end of the temporary possession. This is instead to be left to the discretion of the Secretary of State and Welsh Ministers. Subsection (2)(i) provides merely that regulations “may require an acquiring authority to take certain steps in relation to the reinstatement of land subject to temporary possession”.25

41.While we note from the DCLG policy document that Ministers intend to provide in the regulations for land to be reinstated “to the reasonable satisfaction of the owner of the land”26, there is nothing to prevent this from being left out of future regulations. Moreover, neither the Bill nor the policy document refer to provisions for resolving disputes about reinstatement.

42.In our view, it is inappropriate to leave to the discretion of the Secretary of State or Welsh Ministers the question of whether to include in the regulations provisions about re-instatement. This will be an issue of central importance to the owners of land taken into temporary possession. We recommend that clause 24 should be amended so as to impose a duty on the Secretary of State and Welsh Ministers to make regulations:

Consultation

43.More generally, we note that clause 24 contains no consultation duty.27 We consider it inappropriate for the Secretary of State and the Welsh Ministers to exercise this novel power, which could potentially have far-reaching consequences, without first being required to consult interested parties.

44.We also consider a consultation duty to be even more important in view of the provision in clause 39(6) dispensing with the House’s hybrid instruments procedure–discussed below.

Clause 39(6)—“Dehybridisation” of regulations under clause 24(1)

45.The hybrid procedure in the House of Lords would not apply to regulations made under clause 24(1). The memorandum explains:

“Regulations made under clause 24(1) could in theory be treated as a hybrid instrument for the purpose of standing order 216 of the House of Lords as they could provide for different provision to be made for particular areas of land, and acquiring authorities …

If these Regulations were treated as hybrid, this would result in an extended Parliamentary procedure allowing for individuals to petition and for those petitions to be considered by the select committee formed specifically to consider the instrument. Given that any impact on a particular interest will only be for the purposes of limiting the temporary possession power to give a higher protection for private interests in land that are already affected by the Bill, the hybrid procedure is not necessary to protect those interests.

Due to these limits on the power to make Regulations, and the fact that the Regulations will be subject to the affirmative procedure, and the scrutiny which that entails, the Government considers that applying the hybrid procedure to such instruments is unnecessary.”28

46.In accordance with our usual practice, we draw this provision to the attention of the House. This is so that it can decide whether any safeguards are needed to protect the legitimate interests of persons who may be affected if the power were exercised in the way referred to in the memorandum. In our view, a consultation requirement should certainly be included.

Clause 38—Power to make consequential provision

47.Clause 38(1) confers a power on the Secretary of State by regulations “to make such provision as the Secretary of State considers appropriate in consequence of any provision of this [Bill]”.

48.This can be used to amend, repeal or revoke any “enactment”: see subsection (2).

49.The term “enactment” includes Acts of Parliament, Measures or Acts of the National Assembly for Wales, and all types of subordinate legislation, whether made by Ministers in the United Kingdom Government or Welsh Ministers (see subsection (3)).

50.The memorandum gives the following justification for this power:

“There are a number of consequential changes being made by the Bill, particularly those flowing from the addition of a new procedure for modifying neighbourhood plans, restricting the imposition of planning conditions, and amendments to compulsory purchase legislation. It is possible that not all such consequential changes have been identified in the Bill. As such it is considered prudent for the Bill to contain a power to deal with these in secondary legislation.”29

51.The negative procedure in the UK Parliament applies unless the power is used in a Henry VIII style to amend or repeal Acts of Parliament or Measures or Acts of the National Assembly for Wales, in which case the affirmative UK Parliamentary procedure applies. However the Bill makes no provision for any procedure in the Assembly when the power is used to amend primary or secondary legislation enacted by the Assembly or Welsh Ministers. Surprisingly, there is not even a duty to consult Welsh Ministers when amending Welsh legislation.

52.Clause 2 of the Wales Bill provides that the UK Parliament will not normally legislate with regard to devolved matters without the consent of the Assembly. As we observed in our recent reports on similar provisions in the Wales Bill30 and the Digital Economy Bill31, it seems to be inconsistent with the spirit of that important principle for UK Ministers to have a power to amend Assembly legislation without at least being required to consult Welsh Ministers. The Constitution Committee have raised similar concerns.32

53.We consider that the power conferred by clause 38 of this Bill is inappropriate to the extent that it allows the Secretary of State to amend Assembly legislation without at least an obligation to consult Welsh Ministers.

54.More generally, we observe that that the power has a very wide scope: it is to make whatever provisions–including ones amending and repealing Acts of Parliament–the Secretary of State considers appropriate in consequence of the Bill. We note that it has become standard practice for provisions of this type to be included near the end of a Bill.

55.We are far from convinced that it is appropriate for Ministers to be given such loosely-drawn powers. We therefore invite the House to consider whether a power to make consequential provision should be restricted by some type of objective test of necessity, rather than leaving this to the subjective judgment of the Secretary of State.

1 Department for Communities and Local Government, Neighbourhood Planning Bill: Delegated Powers Memorandum: http://www.publications.parliament.uk/pa/bills/lbill/2016–2017/0086/Delegated-Powers-Memorandum.pdf [accessed 27 January 2017]

2 Department for Communities and Local Government, Neighbourhood Planning Bill: Supplementary Delegated Powers Memorandum: http://www.publications.parliament.uk/pa/bills/lbill/2016–2017/0086/Supplementary-Delegated-Powers-Memorandum.pdf [accessed 27 January 2017]

3 Para 61.

4 Department for Communities and Local Government, Planning practice guidance: Use of planning conditions: https://www.gov.uk/guidance/use-of-planning-conditions [accessed 27 January 2017]

5 See section 78 of the 1990 Act.

6 See Schedule 6 to the 1990 Act.

7 Government amendments tabled for Grand Committee amend new section 100ZA so that the regulation-making powers it confers would apply only to “a relevant grant of planning permission”, i.e. on a grant of permission to develop land on an application under Part 3 of the 1990 Act (which is usually made to a local planning authority). Conditions attached to other types of planning permission, e.g. ones made by development order, would be outside the scope of the power. The amendments are further explained in paras 20 to 29 of the supplementary memorandum.

8 Para 64.

9 Para 68.

10 Paras 68 to 70.

11 See para 1 of this Report.

12 Department for Communities and Local Government, The Neighbourhood Planning Bill: Further information on how the Government intends to exercise the Bill’s delegated powers, December 2016: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/578317/Further_information_on_how_the_Government_intends_to_exercise_the_Neighbourhood_Planning_Bill_s_delegated_powers.pdf [accessed 27 January 2017]

13 See Annex A of the policy document.

14 Para 75.

15 See the Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010 (SI 2010/860).

16 Emphasis added.

17 Para 65.

18 DCLG informs us that these are examples of pre-commencement conditions deemed inappropriate in a recent report by the House Builders’ Federation.

19 See Annex A of the policy document referred to in footnote 12.

20 See the memorandum, para 91.

21 We could not find any concrete examples in the explanatory material accompanying the Bill.

22 The Welsh Ministers make the regulations, under the affirmative procedure in the National Assembly for Wales (see clause 39(3)), where they (the Welsh Ministers) are the acquiring authority or the confirming authority. In other cases, they are made by the Secretary of State under the affirmative procedure in the UK Parliament (see clause 39(2)).

23 Para 100.

24 See para 47 of the document referred to in footnote 12. No draft regulations are provided for clause 24.

25 Emphasis added.

26 Para 64.

27 This contrasts with the regulation-making power conferred by new section 100ZA(1) of the 1990 Act, inserted by clause 12, which is subject to a consultation duty (see subsection (3)).

28 Paras 97 to 99.

29 Para 102.

30 Delegated Powers and Regulatory Reform Committee, (5th Report, Session 2016–17, HL Paper 54), paras 42 to 44.

31 Delegated Powers and Regulatory Reform Committee, (11th Report, Session 2016–17, HL Paper 89), paras 2 to 10.

32 Constitution Committee, (7th Report, Session 2016–17, HL Paper 96), paras 4 to 7.



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