Baroness Scott of Bybrook:

Moved by Baroness Scott of Bybrook

184A: Clause 87, page 95, line 9, after “policies,” insert “taken together,”Member's explanatory statementThis amendment clarifies that inserted subsection (5B) in section 38 of the Planning and Compulsory Purchase Act 2004 requires a determination under the planning Acts to be made in accordance with the development plan and any national development management policies, taken together.

My Lords, I do not intend to detain the House for long with Amendment 184A, which is intended solely to avoid any ambiguity arising in relation to the meaning of our changes to Section 38 of the Planning and Compulsory Purchase Act 2004. It clarifies that any determinations are to be made in accordance with the combined effect of the development plan and any applicable national development management policies. This was always our intention, but this amendment seeks to put the matter beyond doubt. I hope your Lordships will be pleased to support it. I beg to move.

My Lords, way back in March, when we had our lengthy discussions on the planning section of the Bill, we explained that although our amendments necessarily covered the detail of the various clauses, there was huge concern in local government about some of the fundamental principles that underlie the proposed changes in the Bill.

We must ensure that local plans, with the input of local people and democratically elected representatives, retain their primacy over anything that is drawn up centrally in Whitehall. Now that we are on Report, I feel that the amendments in this group reflect that these concerns remain and that the issues we raised in Committee have still not been resolved.

The amendment tabled by the Minister, in relation to determining matters under planning law in accordance with the development plan and any national development management policies, taken together, do nothing to reassure those of us whose concern was about how conflict between national and local policy will be resolved. Therefore, we have tabled Amendment 186 in the name of my noble friend Lady Hayman of Ullock, which asks for consideration of which policy has been most recently adopted, approved and published, what liaison has taken place with local authorities, the importance of adequate housing supply and the protection of the natural environment. In all those areas, it is vital that the latest information and data should take precedence over policies which may be years out of date. I reiterate the ongoing concerns of the Local Government Association in this regard that

“in reality, local plans will be constrained in the event that they conflict with National Development Management Policies, in which case the latter will take precedence. We have previously sought an amendment to reverse this proposal so that local plans will take precedence in the event of conflict. This is critical to ensure that that one of the key principles of the planning reforms—‘a genuinely plan-led system’—is enshrined in the Bill”.

Amendment 188 in my name reflects our continued concern that the relative weight of various key planning documents and guidance, when taken into consideration with the centrally determined NDMPs, is still not clear enough. When we discussed this in Committee, the NPPF was still out for consultation, but that does not alter the fact that the whole sector must have some clarity before the Bill completes its progress.

In the Minister’s explanation in March, in which she gave the rationale to introduce NDMPs, she stated:

“It will help local authorities produce swifter, slimmer plans by removing the need to set out generic issues of national importance”.

She just repeated that statement in the last group. In Committee, she continued:

“It will make those plans more locally relevant and easier for communities and other users to digest and to get involved in developing, through consultation and communications with local communities”.—[Official Report, 22/3/23; col. 1839.]

However, if local authorities do not have the clarity they need about what lies in the hands of their locally elected members working in consultation with the public and what is determined nationally, the whole system could quickly be mired in conflict and litigation.

The comprehensive Amendment 190, in the names of the noble Baroness, Lady Thornhill, and the noble Lords, Lord Best and Lord Carrington, addresses many of our concerns about NDMPs, which were reflected in the debate in Committee. It sets out clear requirements for consultation and publicity; climate change input; a parliamentary process to scrutinise NDMPs, which is very important; and a clear process for timely and comprehensive review.

In Committee, we expressed enormous concern about the introduction of NDMPs from much of the sector, including key institutions such as the Local Government Association, the Royal Town Planning Institute, the Town and Country Planning Association, the CPRE and the Better Planning Coalition. In its excellent briefing on this amendment, the RTPI sets out the reasons for the amendment’s great strength. It states that there are no other provisions in the Bill that would allow the scope of NDMPs to be properly limited, but a significant degree of ministerial discretion remains, which could be abused in the regulations or by the conduct of current and future Ministers. It also says that planning policies are notoriously difficult to draft and review by parliamentarians and that using the public is the best way to ensure that policies do not create potentially severe unintended consequences, which otherwise might become apparent only when applied in decision-making.

The RTPI also points out that, if written wrongly, NDMPs, which are subordinate to local development management policies, could still present a significant risk to councils and weaken local plans, because of their scope to open up to legal challenge, continuing the detrimental situation we already see with NPPF policies. Even if they are subordinated, NDMPs will continue to encourage councils to apply what the RTPI calls a cookie-cutter approach to policy—rather than to identify, evidence and assess their own needs and respond to them—as we see, unfortunately, under the NPPF. We always talk about resources, and resourcing has caused some of the delays to plan-making that we discussed earlier. More resourcing is needed to help councils deliver innovative local plans, but their local ambition is equally important.

As the RTPI points out, in the long term, NDMPs still represent a fundamental change to England’s planning policy and a system that brings us closer to zonal rather than discretionary plan-making. Whether that consequence is intended or not, it means that, rather than councils drafting their own codes, national government would draft a single zoning code that would allow developers to use urban land that may protect urban amenity without micromanaging councils. A principled defence of local democratic decision-making should make use of every available option to resist that outcome, now and in the future, through continued scrutiny.

The case for explicit parliamentary and public scrutiny is also supported by research conducted by the University of Liverpool and Arup that has been published by the RTPI, which considers the application of national planning policies in other planning jurisdictions. Comparisons with other countries and nations suggest that extensive public consultation has been critical to the success of similar policies in other jurisdictions. I totally support that: public consultation might be difficult to do and painful at times, but involving local communities, in the end, strengthens the local plan and enables the provisions within it to be carried out by local authorities and all the partners with which they work.

The RTPI also points out that political and parliamentary scrutiny is a common feature of the most successful national policy regimes. Where that is absent, central government’s authority and status on planning policy and guidance has been far less certain.

Although our preference would be to avoid altogether the centralising tendency in planning that NDMPs represent, our view is that Amendment 190 provides a much greater reassurance that they will be properly consulted on and scrutinised before implementation. For that reason, if the noble Baroness, Lady Thornhill, decides to divide the House on her amendment, she will have our support.

My Lords, my Amendment 189 in this group also relates to national development management policies. Following a number of debates in Committee in which we tried to explore what national development management policies would look like, I thought it might be helpful to table an amendment that sets what the demarcation is between what NDMPs should and should not be doing. In the spirit of helping my friends on the Front Bench, I think my amendment aims to do what Ministers intend to do, which is not to pre-empt the role of a local planning authority in determining the policies for the use of land in their area for various purposes and the policies to be applied in relation to the overall structure of development in their area; I think they wish to ensure that there is consistency in plan-making and reduction of complexity in the process of determining applications.

My starting point was to look at the National Planning Policy Framework, as I did on a couple of occasions in Committee. Many of its chapters are essentially divided into two parts. The first asks what the policy is in relation to, say, heritage assets, combating flood risks or green belt designation. There then tends to be a secondary series of paragraphs relating to what happens when an application is received and how it is to be determined in relation to that subject. That is true for heritage assets, the green belt and so on. The simplest and most straightforward is the chapter on the green belt, where there are several paragraphs about how an application for planning permission inside the green belt should be dealt with, as distinct from preceding paragraphs that set out the processes by which plan-making should seek to establish the boundaries of the green belt. Similar things happen in other chapters.

That is why I went to the Bill and saw that, at the moment, the legislation gives Ministers the power to set national development management policies of such breadth that they could supplant many of the plan-making and policy-orientated decisions of local authorities. I do not think that is the intention. What I think they are setting out to do is as I have put it in the amendment, so that in Clause 88, which says what a national development management policy is, it would say that an NDMP

“is a policy (however expressed) of the Secretary of State in relation to”,

and then my amendment would insert,

“the processes or criteria by which any determination is to be made under the planning Acts, as regards” the use of land in England, et cetera. That would mean that it would be confined to the processes and criteria for determining applications, meaning that it is not a policy that can replace a determination of the policy towards the land use and development of land in an area. That is the prerogative of the local planning authority.

I think that is what Ministers are setting out to do and I think that is how the benefits are to be derived, but it is not what the statute says. The statute gives Ministers much wider powers. As my noble friend Lord Deben said in his helpful intervention, we do not know what future Ministers might think; they might think something much more intrusive and much more pre-emptive of the policy-making decisions of local planning authorities. If you take over plan-making in a plan-led system then you effectively take over the allocation of land and development right across the country; you can effectively control it. In my view, we need to be very clear. I hoped that Ministers would find Amendment 189 a helpful clarification, and I put it into this group on that basis.

My Lords, the facts around our concerns regarding NDMPs have been very well expressed by the noble Baroness, Lady Taylor of Stevenage, and the noble Lord, Lord Lansley, so I will not waste the time of the House repeating them. The amendment tabled by the noble Lord, Lord Lansley, shows the real dilemma around content and demarcation with regard to NDMPs and local plans. Together, these amendments demonstrate just how much uncertainty and potential for conflict there is regarding this bold and radical change. These concerns are expressed across all parties and sectors, which is why I believe that the amendment in my name is crucial to allaying some of these very legitimate concerns.

My amendment would ensure that NDMPs receive full public and parliamentary scrutiny. It was drafted by the Better Planning Coalition and is supported by the RTPI, the National Trust, CPRE, Friends of the Earth, the TCPA and many other organisations. National development management plans could and should be a bold and positive possibility to reform the system radically, or they could be a centralising power grab designed to minimise the voice of the community. Whichever view noble Lords and those organisations take individually, what unites them is that they agree that this is an important amendment for one very strong and principled reason.

As drafted, NDMPs come with no minimum public consultation or parliamentary scrutiny requirements. Please just let that sink in: there is no agreed consultation and scrutiny process enshrined in the legislation. This greatly heightens the risk that they will turn out to be a power grab rather than a positive reform.

To add further to our concern, and as has been expressed by other noble Lords, the contents of NDMPs are as yet undefined. We have a blank page. We may well be able to guess some of the content from some of the NPPF consultation, but ostensibly we still do not know what it is going to be.

It is worth reminding ourselves of what Clause 88 says. It states:

“A ‘national development management policy’ is a policy (however expressed) of the Secretary of State in relation to the development or use of land in England”.

Note those very powerful words, “however expressed”. We are used to being asked to agree a process of accepting policies of national importance when we do not know what they are and there is no formal right to parliamentary scrutiny. As of now, those policies could relate to absolutely anything. We may have some familiarity with them, but what we do not know is whether they are going to be tweaked, changed a bit or replaced by completely new policies. The level of uncertainty is just not acceptable.

The Minister will no doubt say that Clause 87 imposes an obligation on the Secretary of State to ensure that consultation, which is not defined, takes place on NDMPs, but—and it is a big but—the legislation also allows Ministers the discretion to define exactly what consultation is appropriate for their policies. This cannot be right.

As the Bill stands, NDMPs will have primacy over local plans if they are in conflict. As such, they hand significant powers to Ministers to change planning law as they wish—a concern compounded by the regular churn in relevant government Ministers. There have been six local government Secretaries of State since 2018, or seven if you count Michael Gove twice, and the current Housing Minister, Rachel Maclean, is the 15th since 2010. As a result of that, the earlier comment from the noble Lord, Lord Deben, rings rather true.

My amendment mirrors exactly what happens now with national policy statements; that is why it is so lengthy, as some noble Lords have mentioned to me when we have been discussing it. So my key question for the Minister is quite simple: why should the much more significant—as they will apply in far many more instances and be broader—national development management policies be any less scrutinised and accountable than the current national policy statements?

In the other place, the Levelling Up, Housing and Communities Committee clearly agreed that the amendment is needed and recently recommended:

“Each draft NDMP should be subject to full and proper parliamentary scrutiny before coming into force. Any draft NDMP which would have the effect of superseding the plan-led system should be carefully considered in Parliament on a case-by-case basis. The Government should table an amendment to the Levelling-up and Regeneration Bill to make NDMPs subject to similar parliamentary requirements as National Policy Statements, as outlined in section 9 of the Planning Act 2008”.

This amendment tabled in my name does just that.

The Minister has said that a legal safeguard to ensure scrutiny of NDMPs will render them ineffective to address urgent situations. However, emergencies would surely be accompanied by their own necessary primary legislation, with the co-operation of this House, as happened during the pandemic. Ministers also have a range of other mechanisms they can use in normal times, as with the Minister’s recent ministerial Statement on housing targets, to set policy direction that local authorities and developers must take full note of in plan-making and planning decisions. This amendment deals with how NDMPs are made and modified in normal times. As these issues are of sufficient national significance, we would expect to treat them as we currently treat national policy statements.

In Committee, concerns were raised by Peers across the House about the degree of centralisation these changes represent. This amendment addresses those concerns by ensuring that both parliamentary scrutiny and a minimum level of public scrutiny is required for the designation and review of national development management policies, and this will be based on processes set out currently for national planning statements.

NDMPs will be used in ministerial decision-making, quite rightly, as they will form the basis for any called-in decisions going forward, alongside development plan policies. They will therefore be used by Ministers in the same way as NPSs. There should be an absolute commitment to public and parliamentary scrutiny rather than it being left to another Secretary of State—the more so as we do not know what these polices will contain or what the justification for them will be.

This Better Planning Coalition amendment protects the right of the public and Parliament to have a say in planning policy and aligns the Bill’s planning powers with existing processes. I was delighted to get support from the noble Lords, Lord Best and Lord Carrington, and I thank the noble Baroness, Lady Taylor of Stevenage, for her support from the Labour Front Bench. If there is no significant reassurance from the Minister, I will put this matter to a vote of the House.

My Lords, I rise to support Amendment 190 in the names of the noble Baroness, Lady Thornhill, and the noble Lord, Lord Carrington of Fulham. As we have heard, this amendment has the support of the Royal Town Planning Institute and a whole range of other distinguished bodies with planning expertise. Actually, the amendment is relatively modest and pretty straightforward. It does not reject the idea of creating national development management policies. What it does is simply ensure that these new planning policies result from thoroughgoing consultation, after due publicity, and are subject to proper parliamentary scrutiny. Such a consultative process, with accountability to Parliament just as for the national planning policy statements, would mean that these new NDMPs will have the authority and credibility that otherwise they are likely to lack. I hope the Minister will agree.

My Lords, I too rise to support Amendment 190, to which I have added my name. Your Lordships will be delighted to know that I do not have to speak for very long as everything I was going to say has already been said. The House sounds as though it is unanimous in the view: that there needs to be some sort of constraint on the proposal in this clause, to ensure that there is consultation; that local communities should have primacy in deciding what happens in their area; and that the policy that general consultation should be in the hands of Secretary of State, without the definition of what that consultation should be, is one that no parliamentary assembly should readily accept.

I believe there is a principle in this amendment, that we can trust my noble friend the Minister, and we can probably trust my noble friend the Secretary of State in the other place; but, as the noble Lord, Lord Deben, said, they will change. They will inevitably change. They may change for the better or for the worse; we do not know. But one thing is certain: if you give a power to centralise decision-taking, sooner or later that power will be abused. It is essential to make sure that we do not pass legislation in this House that allows the abuse of power—particularly, the forcing on to local communities of policies that they reject themselves.

It may well be—indeed, I think there is considerable evidence—that our planning laws do not work; we need only look at the problems over the environment, housing and so on. We should absolutely be looking at how our planning laws should be changed and how we should free up, speed up and make less expensive the whole planning process. But the way to do that is not by giving powers to the Secretary of State to override any consultation, any local decision-making and, indeed, the local power of other constitutionally established bodies such as local government.

I support the amendment for a lot of reasons. I hope that my noble friend the Minister will agree that this issue needs greater clarification, that it needs to be properly addressed, that this amendment almost certainly achieves all of that, and that, possibly with a few tweaks from the Government, this amendment could form part of the Bill to everybody’s benefit.

My Lords, some issues continue to affect almost everything we do. One is the principle of subsidiarity—that we should ensure that we do not have a system where all power is centred at the top. That was a very important principle that the Popes upheld when dealing with both the Nazis and the communists, saying that both got rid of all the subsidiarity powers and concentrated them at the centre. Of course those people did so because they were, largely, wicked. The trouble is when it is done by people who think it is the best way forward, and that is what I fear here.

The planning system is obviously not good enough. I declare an interest here, having spent almost a whole year trying to turn a house back into the pub that it was before. You would have thought they would have been keen on all that but, my goodness, there are many complications in trying to do it. However, although we recognise this about the planning system, you do not overcome it by putting on top of that system something that is seen by others as being dictatorial. Unless this power is clearly controlled and confined by the parliamentary procedures that enable it to be used in a way that the public will see is subject to democratic control, then I believe it will fail. It is not just a question of it not being suitable, and it is not just a philosophical question; it is that it will not actually work.

One knows what Ministers have been advised to say: the amendment would make the process more difficult, slower and more complex. Well, sometimes doing things more slowly is a good thing because it gives you time to make sure that you get it right. Sometimes making it more complex is necessary because the issue is more complex, and pretending that it is not means that you make a mistake.

I come back to a question that is particularly affecting me at the moment. We have now seen a number of examples where Ministers have said, “It’s not necessary to do this because we’re going to do it anyway”. I remember Ministers who promised us that we would not sign contracts with other nations that undermined our farmers, but we have done precisely that. We have a case at the moment where Ministers said there would be no diminution of environmental protection and therefore we did not need to put it in the Act, but I fear that is precisely what has happened.

I am in the same position here. I am sure that Ministers intend to do the right thing, and I am sure that Ministers coming from any reasonable party might intend to do so, but, as a former Minister of 16 years, I think it was very good for me to have to do the right thing. That is what I think we ought to put here.

My Lords, this policy proposal is one of the most contentious issues that we have debated throughout the course of the Bill. So far, it has been a very thoughtful and considered debate about the importance or otherwise of having a centralised group of planning policies imposed on local authorities.

This approach, of having a set of national policies that are imposed on local planning authorities, is not new and does not have a happy history. Even from before my time in local government, some will remember the imposition of county structure plans. Local authorities had to agree to those plans and abide by what was stated in them. That did not end very well. Then in 2004 there was the introduction of regional spatial strategies—this just goes to show that all parties in government have a tendency to centralise—which I remember debating, and they did not end well either. My serious point is that these are messages from history for the Minister and the Government showing that, as the noble Lord, Lord Deben, has said, trying to impose on local communities the Government’s idea of national policies that must be adhered to does not have a happy history.

Communities are great. If you try to impose something on them without proper consultation and without reason, the reaction is always the same: they oppose it because they have not been part of the discussion leading to the creation of those policies. We can all give examples of how someone’s grand idea ended in tears because they did not talk to people and explain its purpose but just said, “This is a grand idea and it’s what we’re going to do”. That never ends well, and it is the problem here. That is why my noble friend’s detailed amendment is to be supported: it enables the “Let’s have a good think about this before it happens” approach.

There is another issue that I want to highlight. As we all said in Committee, and we will repeat it now, we are being asked in the Bill to agree a national development management policy, full stop. There is no content. The Minister has tried to persuade us of the Government’s good intentions, but the road to hell is paved with those and good intentions are not enough. We need to see a clear statement of what the content of the NDMP will be. Without that, we would be giving a carte blanche to the Government to impose on local communities their idea of what a local-plan-led system should be like. Saying “These are the policies that you must agree to before you get down to the nitty-gritty of agreeing a local version” will not do. In Committee we asked, and indeed begged, the Minister to give us a clue about what would be in the NDMP, and if I remember rightly the answer was, “Nothing’s going to be said until October”—or possibly November—“and that’s when we will begin to talk about the content of it”. It is not acceptable to ask us to agree to something when we do not know what it will contain.

As my noble friend has pointed out, and this is an important point, the clause enables Ministers to change planning law on a whim. I think that is what my noble friend said. That is not good, and it cannot be right. The Minister is looking puzzled. Maybe she can explain why my noble friend has not got that right. However, if it is right—as I am sure it is, since my noble friend will have had a long, hard look at what the Bill says—I am sure the Minister would not want that to be the case.

We will obviously support my noble friend if she chooses to test the opinion of the House on this issue and her amendment. All of us, across the Chamber, want a better planning system. We want communities to be able to build what works for them, with the facilities and amenities that they need for a growing community. We know that we need economic development, as well as housebuilding, and that that is at the heart of levelling up. I repeat, and I shall keep saying it: where is that, then, in this section? Where is the bit that says that we are going to help level up less fortunate communities by doing this? That is what the Bill should be about.

All that we are asking in Amendment 190 is for the Government to enable full parliamentary scrutiny of the content of any policies they may wish to put in the NDMP. This has been a good, thoughtful and considered debate. I hope that the Minister will take it in the spirit in which it is intended and respond by saying that she totally agrees and will, on behalf of the Government, accept Amendment 190.

My Lords, our proposals for national development management policies have attracted considerable debate and rightly so, given the important role they play in our planning process. I welcome the thoughtful contributions made today, although I should be clear at the outset that I am not convinced that a compelling case for these amendments exists.

Amendment 186 in the name of the noble Baroness, Lady Hayman of Ullock, would mean that several considerations would need to be weighed up by decision-makers where a conflict occurs between plans and the national development management policies. While I appreciate the intention behind this amendment, it would create a more complex and uncertain task for decision-makers, as it does not provide a clear indication of how any conflict should be resolved, nor how the local authority—as the decision-maker in most cases—is meant to take local authority views into account. The end result is likely to be additional planning appeals challenging local decisions, something our clauses aim to reduce.

Turning to Amendment 188 in the name of the noble Baroness, Lady Taylor of Stevenage, I am unsure what a further statement explaining the relationship between the national development management policies and other planning documents would add. The consultation launched in December last year gave details of what we expect the national planning management policies to do, how they would relate to other aspects of national planning policy and how they relate to plans. In addition, our debates on this subject have helpfully provided further opportunities to make our intentions clear. I want to reassure the House that we are committed to further clarification wherever necessary, which we will do when we respond to that consultation, and again when draft national development management policies are themselves published for consultation.

I must respond to the view of the noble Baroness, Lady Taylor, that NDMPs are moving us towards a zoning system. This is not the case at all. We have been clear that NDMPs will cover generic decision-making matters. They will not impinge on the way authorities allocate land or protect certain areas.

Turning next to Amendment 189 in the name of my noble friend Lord Lansley, I agree that national development management policies should have clear and specific roles, but I am not sure that this amendment is necessary as a means of achieving that. National development management policies will, by virtue of the role they are given by the Bill, cover matters which are relevant in the determination of planning applications. At the same time, a legal limitation of the sort proposed here might constrain the scope of particular policies to be used for that purpose, in a way that would become apparent only through the exercise of preparing them. We have been clear that the scope of national development management policies will not stray beyond commonly occurring matters which are important for deciding planning applications. December’s consultation confirmed that they would

“not impinge on local policies for shaping development, nor direct what land should be allocated for particular uses during the plan-making process. These will remain matters for locally produced plans.”—[Official Report, 17/1/23; col. 1806.]

Amendment 190 in the name of the noble Baroness, Lady Thornhill, returns us to the question of participation in producing national development management policies. This is an important consideration and I agree that these policies should be open to proper scrutiny. At the same time, we need to do this in a way which is both effective and appropriate.

Clause 87 imposes an obligation on the Secretary of State to ensure that such consultation and participation as is considered appropriate takes place. We have been clear, through December’s consultation and in this House, that full consultation will be carried out before these policies are designated. This will build on the initial questions on the principles underpinning these policies, which we posed in December’s consultation, and will in due course give everyone with an interest—whether specialist bodies, local authorities, the public or parliamentarians—the chance to consider and comment on detailed proposals. National development management policies will serve a broader purpose than the National Policy Statements, which are used for major infrastructure projects. They will not be used solely by Ministers for decisions on nationally significant schemes, so it is right that we are placing the emphasis on proper engagement as a way of testing our thinking.

I reiterate: we have made it clear that national development management policies will be consulted on, other than in the exceptional circumstances we have previously discussed. This will give parliamentarians and everyone else with an interest the opportunity to scrutinise and comment on proposed policies. That is why broad engagement on the proposed content of the national development management policies is appropriate and will take place. With that, I hope that the noble Baroness, Lady Hayman of Ullock, will agree not to move Amendment 186, and that other noble Lords are content not to move their amendments when they are reached. With that, I ask the House to agree Amendment 184A in my name formally.

Amendment 184A agreed.

Amendments 185 to 188 not moved.

Clause 88: National development management policies: meaning

Amendment 189 not moved.