Skip to main content

Localism Bill

Volume 729: debated on Tuesday 12 July 2011

Committee (7th Day)

Relevant documents: 15th and 16th Reports from the Delegated Powers Committee.

Clause 95 : Duty to co-operate in relation to planning of sustainable development

Amendment 147FJ

Moved by

147FJ: Clause 95, page 72, line 14, after “authority,” insert—

“(b) a marine plan authority, or”

My Lords, we now move on to an important clause of the Bill, which provides the “Duty to co-operate in relation to planning of sustainable development”. The duty applies to,

“a local planning authority, … a county council in England ... or … a body, or other person, that is … of a prescribed description”.

I should say that, as well as moving Amendment 147FJ, I shall speak to a number of other amendments in my name in this group. They all refer to Clause 95, which will insert new Section 33A into the Planning and Compulsory Purchase Act 2004.

Amendment 147FJ would add “a marine plan authority” to the list of bodies that are under a duty to co-operate. I understand that through regulations the Government intend to give this duty to the Marine Management Organisation, which is the marine plan authority for a great deal of the British seas—essentially, the inshore and offshore seas of England. The term “marine plan authority” is used in the Marine and Coastal Access Act 2009, so it seems sensible to use the same wording here. Subsection (3) of new Section 33A, inserted by Clause 95, lists the activities to which the duty to co-operate applies, which include,

“the preparation of marine plans”.

It is therefore sensible to add “a marine plan authority” to the list of authorities that are under a duty to co-operate.

Amendment 147FK probes what is meant by the third group of bodies to which the duty applies—

“a body, or other person … of a prescribed description”.

Presumably if the Government wish to prescribe people, they must have an idea of who it is they wish to prescribe by description. I want to probe the Government on who they think these bodies will be, at least in the short run.

Amendment 147GA refers to local enterprise partnerships. As we know, these are new bodies which over the past year have sprung into life in most places, although not quite everywhere yet. They are to be responsible for co-operation between local planning authorities and local businesses in the absence of regional planning bodies. The regional planning structure is being dismantled and local enterprise partnerships are taking its place. People have different views on how successful they will be, but that is not the point of the amendment. It suggests that, first, the partnerships should be subject to the duty because strategic planning is what they are supposed to be doing, albeit in general over smaller areas than the regions, and therefore they ought to be included in the legislation. They are also ideal bodies to take a lead in co-operation—in fact, they are all we are going to have—by agreement with local authorities and other named bodies.

If we are going to put LEPs in the Bill, they need to be defined. I am not sure that the Government have officially defined them, so I suggest a definition in the words,

“a partnership of local authorities and businesses in an area, that has been approved of by the Secretary of State”.

That seems a reasonable description of what they are.

The next three amendments refer to the “activities”, as the Bill calls them, to which the duty of co-operation applies. These are the “preparation” of development plan documents, of other local development documents —of course, quite a few of the documents that go in the local plan are not classified as development plan documents as such—and of marine plans. The Bill suggests that the duty of co-operation should apply to the “preparation” of these documents; I have tabled amendments to add the words “and implementation” after “preparation” in every case. Surely the duty of and need for co-operation do not end with the publication of a plan but continue, given that people have to continue to co-operate in a constructive and sensible way in order to carry out what the plan is putting forward. Otherwise, those parts of the plan that require co-operation across boundaries—which presumably will be required, because what is the point of co-operating on producing the plan otherwise?—will be more difficult to achieve.

Amendment 147HE suggests that the duty to co-operate should apply to the preparation and implementation of documents which are not planning documents under planning laws, but which,

“affect the development or use of land and associated activities”.

We have only got to begin to think that there will presumably still be co-operation—perhaps across the LEP areas or county areas or other ad hoc areas—on producing housing documents, which may be more or less strategic housing plans. For example, housing authorities in east Lancashire and across Lancashire will continue to meet, work together and co-operate in this way. It seems sensible that, when this is happening, the duty of co-operation should apply to them. Leisure and tourism facilities, for example, very often require planning and a lot of work across local authority areas or across much larger areas than local authorities, particularly where there are relatively small districts.

I shall miss out one or two of my amendments in the interest of getting on. Amendment 147HM would add to the list of what is a “strategic matter” under subsection (4) of new section 33A. My proposed new subsection (4)(c) would add,

“development or use of land that is of potential strategic importance”.

My proposed new subsection (4)(d) would add,

“development or use of land that is necessary in order to meet the needs of a planning area but cannot be accommodated within that planning area”.

Those are the provisions that I wish to add to the Bill.

In the first of those proposed new paragraphs, the reference to “potential strategic importance” is important, because there may well be development proposals put forward for land which is of potential strategic importance, but the particular proposals being put forward cannot, by their nature, be considered to be strategic. They may just be ordinary planning applications, but the land itself ought, perhaps, to be reserved for more strategic purposes and therefore the co-operation should extend to the consideration of development proposals which, although not strategic in themselves, might involve land which is potentially strategic. That should, at the very least, be discussed and considered.

My second proposed new paragraph would apply where the needs of a local planning authority could not reasonably be met within the authority’s area but could perhaps be met within that of a neighbouring authority. This is certainly the case in small districts which might, for example, be having great difficulty finding new industrial land whereas a district next door might have quite a lot. Planning in those circumstances should take place jointly—it may be for housing, an industrial or commercial development, leisure facilities or even a shopping centre. Such development needs to be looked at across an economic area. If the LEPs are supposed to represent economic areas—it is arguable whether all of them do—it is across those economic areas that such developments and facilities ought to be considered. Natural economic areas may well be larger than the planning areas and in many cases they will be.

The Bill sets out definitions, including the meaning of “planning area”. Amendment 147HN would define “planning documents”, which are not defined in the Bill. The amendment would remedy this omission. The amendment provides that “planning documents” would mean all,

“documents that set out policies … relating to the development and use of land, the English inshore region or the English offshore region”,

under a number of enactments. The list of those enactments in the amendment may not be complete, but the principle of setting them out is sensible.

Amendment 147HQ would strengthen the duty imposed on all the persons and bodies that have to co-operate. The duty to co-operate was strengthened in the House of Commons before the Bill came here, but there is quite a considerable body of opinion that it needs strengthening even further. New Section 33A(6) states:

“The engagement required of a person … includes, in particular … considering whether to consult on and prepare, and enter into and publish, agreements on joint approaches to the undertaking of activities within subsection (3)”—

which relates to the preparation of development plan documents et cetera. The amendment would strengthen the provision so that the paragraph would read,

“to consult on and prepare, and, where appropriate … publish, agreements on joint arrangements”.

In other words, the duty would be not just to consider whether to bother consulting but to actually get on and do it.

Amendment 147JA would place a similar duty on local planning authorities to get on with it, rather than just “consider” producing joint planning documents where appropriate. The word “consider” seems too weak, so I hope that the Government will look at different ways in which they can perhaps strengthen the duty.

Amendment 147N takes us back to statutory guidance and regulations. This may be getting fairly tedious, but there is a great deal in the Bill which is probably not necessary. Here again, we have the Secretary of State bossing people in great detail on how to co-operate. People know how to co-operate. They may not always do it, but if they are under a duty to do so, they will probably get on with it.

The alternative way of dealing with these matters is in Amendment 147P, which suggests that the Secretary of State can intervene, but only if he receives a complaint that one of the bodies that must co-operate is not doing so. This is a better approach. Instead of laying down in great detail how people should do things, in a very rigid, top-down and bossy way, it would provide a fall-back power whereby, if co-operation was not taking place and was clearly not working, the Secretary of State could intervene. This would provide an incentive to change behaviour. It is a failsafe, but it is a better way of doing it. Above all, it leaves open the opportunity for people in an area to co-operate in a way that is most appropriate for that area, providing a lot of innovation and best practice. If authorities simply have to do it in exactly the way the Secretary of State sets out in great detail, innovation and best practice will never take place.

Amendment 147R seeks to amend the Marine and Coastal Access Act 2009 to include a duty to co-operate in that Act. If it is necessary to amend the Planning and Compulsory Purchase Act 2004 for terrestrial planning to include a duty to co-operate in that Act, then surely it is necessary and sensible to do the same in the Marine and Coastal Access Act in relation to marine planning. When the Marine Management Organisation is preparing a marine plan, under this amendment it must have regard to the duty to co-operate set out in the new Section 33A of the Planning and Compulsory Purchase Act 2004. When a person is carrying out an independent investigation into a marine plan under the Marine and Coastal Access Act, the person must determine whether the MMO complied with that new section of that Act.

In many ways these are technical amendments but they will substantially improve, strengthen and make much clearer this part of the Bill. I beg to move.

My Lords, the noble Lord, as usual, has been very assiduous in his amendments. I am grateful to him for tabling, in particular, Amendment 147FK. I declare an interest as chair of English Heritage.

The noble Lord asked the Minister what would be included in the list of bodies referred to in proposed new Section 33A(1)(c). We think it might be bodies such as English Heritage. The Bill raises a serious issue. Obviously, we all understand the need for local authorities to be obliged to assist each other in agreeing cross-border planning strategies, but it is not clear why the loss of the regional spatial strategies gives rise to the need for national bodies such as English Heritage to be obliged to provide advice and information.

Of course, English Heritage and many other bodies—but particularly English Heritage—give advice and assistance to local authorities in the planning system. It is one of our core responsibilities with which we are rightly charged but, as a national body which, like others, may be subject to this duty, we are now concerned that a responsibility may have been written into the law which would oblige English Heritage to advise and assist the 433 local authorities in England in a manner—this is very important—that would commit incalculable and open-ended resources. Clearly this is not what the Government intend but it is what the present clause, as we understand it, threatens to do. It would make us liable, without condition, to be dragged to every council table in the land.

As chair of English Heritage, I am concerned about how this might unbalance the priorities already set by Parliament and the Government. I suspect that the Minister will also be concerned about this possibility. Like the noble Lord, Lord Greaves, I ask the Minister for clarity on how this new burden will be met and qualified and whether he can explain what need this new obligation is now fulfilling. Indeed, what are the bodies not doing now that they should be doing?

I apologise in advance to the Minister because I may not be able to stay for the winding up of this debate, but I shall certainly read Hansard tomorrow with interest.

My Lords, in speaking to my Amendment 147H to this section of Bill, I want to emphasise the importance of local businesses in the community. I do not need to say much about the struggle that many local businesses have now, and have had for quite some time, to cope with trading conditions and other matters as this is highlighted, both nationally and locally, on an increasingly frequent basis. In this particular amendment, I am supported by the Federation of Small Businesses and many other business organisations and businesses generally.

Noble Lords will note that my amendment refers to local businesses and to the Government’s introduction of local enterprise partnerships, as referred to by my noble friend Lord Greaves a moment ago. Local enterprise partnerships are intended to sustain and invigorate businesses and the business community at local level. LEPs, as they are known, are there to fulfil that role but a key part of an LEP’s role is to ensure that small businesses have a voice. On this aspect, it is concerning that small businesses are not adequately represented on LEPs everywhere in the country. My information comes from the FSB, to which I referred, the Association of Convenience Stores and also work that I have done directly contacting businesses all throughout regions in the country. The feedback I get is somewhat patchy. Small businesses have a reasonable role in some areas and not much at all in others. I wish to highlight that strongly this afternoon. I hope that the Government will take it on board increasingly as time goes on.

Looking also at the wider aspect, on regional planning we previously had RDAs but, with the different situation we face and organisation now in place, there is a need in the Bill for clarity on how a new, sub-national approach will work. We are looking for a duty recognising the importance of business input into strategic planning and infrastructure policy by requiring local authorities to have regard to the strategic direction by the aforementioned LEPs. It is encouraging that the Minister stated on Report that the Government intend to identify LEPs as bodies that must be taken into account, and other words to that effect.

My amendment looks for more explicit elucidation of the role of LEPs within the Bill, with a formal recognition of them. There will therefore be greater clarity and a strengthening of their position and standing.

My Lords, I speak to my Amendment 147M. At Second Reading, I expressed my concerns about the proposed duty to co-operate as a replacement for regional strategies. As I then said, I am not particularly enamoured with the whole idea of regions. Particularly in the south-west, where I come from, the region was far too large to be of any real relevance to people on the ground and their lives.

As I am sure we all recognise, we need some form of supralocal planning framework to deal with a whole range of issues for which it cannot and should not be left to each and every local planning authority to come up with the answer all on their own. These issues include areas such as flood defence, where water management in the upstream can impact on flooding and water quality in downstream communities. Equally, unless cross-boundary issues are addressed, pure localism could lead to fragmentation of landscapes and ecosystems. The recent national environment White Paper introduced the concept of nature improvement areas, ecological networks and local nature partnerships to rival or possibly complement local enterprise partnerships. All of these are likely to be transboundary concepts in their application.

Some form of supralocal planning is also needed for a strategic approach to renewable energy. While it is important that all local authorities work towards their own solutions for producing 15 or even 20 per cent of their energy requirements from renewable resources—many of which can be built as small, local ventures—each local authority will have different constraints and opportunities for taking different routes towards whatever technology is most suitable for their area. It will be important for everyone to see the bigger picture.

Supralocal planning will be about more than just the larger sub-regional infrastructure projects; more than just where to site bad-neighbour developments such as waste disposal facilities or even large housing developments. I am not so worried about local authorities co-operating—they always have co-operated and they always will. I do not see any real need for compulsion or threats. What they need, in my view, is a framework which sets out what they need to co-operate on—as I have already explained, this is probably wider than many councillors might assume. They need a framework that sets out who should be involved and most importantly, who should lead; the outputs and outcomes; and furthermore, having co-operated, how the results should be incorporated into local plans and local transport plans and the application of the community infrastructure levy. In that context I refer to my twin amendment on this subject under the CIL clauses, Amendment 148ZZBA, to which I speak in my current remarks.

These amendments require unitary or upper-tier authorities to prepare strategic infrastructure assessments in consultation with planning authorities and other strategic infrastructure providers, including local enterprise partnerships and local nature partnerships. I believe we need to specify these assessments as a necessary result of the duty to co-operate. It is only in this way that the duty would have a clear output that would harness the expertise and capacity of unitary and upper-tier authorities in matching investment with growth and provide a consistent framework to inform sub-regional and local plans.

I want to pause for a minute on the words “consistent framework” because I believe they are vital for any country that wishes to remain progressive. I spoke at Second Reading on the dangers of uncertainty within the planning system as a result of this Bill for everyone from businesses, through service providers to environmentalists. They all need some form of consistent framework within which to work, plan and to risk their money through investment. We cannot expect businessmen to invest and house builders to build or, for that matter, environmentalists and landscape aficionados to protect what matters if they are all working in a fog of uncertainty. If each development case has to start from scratch, only delays and increased frustration will result. I believe my amendments give clarity as to where the leadership should lie, so efforts can focus immediately on getting on with the work of strategic planning rather than risking delays because no prime mover is identified in the legislation. Obviously, it is platitudinous to say that delays are the enemy of progress but I do not believe that we can afford delays in the current economic climate. Rather, we need a coherent sense of purpose with a simple reference document as a guide for local plans and new neighbourhood plans. I believe my amendments achieve that.

My Lords, scattered among this vast group of amendments are four amendments of mine. The Committee will be relieved that I do not need to speak for very long on them since one of them, Amendment 147R on the marine planning side, has already been spoken to by the noble Lord, Lord Greaves, and I endorse everything he said. The other three relate to the area to which the noble Lord, Lord Cameron of Dillington, has just spoken. Amendments 148G, 148J and 148K try to sharpen up the requirement to co-operate. Much like the noble Lord, Lord Cameron, I have particular issues in mind where clearly a development, as distinct from a very high-level strategic approach, will be of interest to more than one local authority and may well be of interest to local and national authorities. I declare an interest, for example, in relation to climate change adaptation as I am a member of the Environment Agency Board. Clearly, flood arrangements need to apply to the whole catchment area, wherever the political boundaries may fall, and there may be an involvement in that of national bodies such as the Environment Agency or Natural England. On climate change mitigation, major renewable energy projects may well involve more than one authority, either because of the location of the plant itself and its connections, whether it is a wind turbine or a biogas plant or whatever, or because there are visual effects thereof which impinge on other local authority areas.

I would hope that the requirement for local authorities to co-operate will be pinned down a little more than is currently the case. My proposals to amend the new section proposed in Clause 95 would give a general subsection (1) duty to co-operate, and a clearer purpose to that, making a specific reference to sustainable development. They would also ensure that the requirement in proposed new subsection (6) to consider a “joint approach”, very much along the lines of the joint framework to which the noble Lord, Lord Cameron, referred, and “joint local development documents”, became a compulsory requirement.

I know that some local authorities are not particularly keen on those provisions being in that form in the Bill and say that they will co-operate the whole time. Regrettably, that has not always been the case in relation to flood defence provisions or to renewable energy projects, when different local authorities may have reached different conclusions coming from different angles. So it is important that the Bill itself puts a requirement so that, as far as possible—and this is mildly framed—they reach a consistent and compatible approach to these matters. This needs to be seen in the wider context of sustainable development, which the Committee debated the other night, when I was unfortunately not able to be here. If we tighten this up a little bit, there will be an extra nudge to local authorities to co-operate and take a more coherent and sensible approach to planning and projects within their areas. I therefore commend these amendments and hope that the Government can at least take the spirit of them on board.

My Lords, I listened with great care to the remarks of my noble friend Lady Andrews, who is no longer in her place, because I have an interest— I think that the appropriate adjective would be an historic interest—in the subject that she raised, the position of English Heritage. I served as a commissioner of English Heritage for four years, having been appointed by the noble Lord, Lord Jenkin, and removed by Mr Nicholas Ridley in due course, no doubt for good reasons. My noble friend certainly has a point about not encumbering some organisations with heavy statutory responsibilities.

On the other hand, some agencies need to be involved from the outset in the kind of strategic approach adumbrated in the Bill, and in rather broader terms in the amendment moved by the noble Lord, Lord Greaves. I have in mind, for example, the Highways Agency, which in my experience is not one of the more co-operative government agencies when it comes to its dealings with local government, or the Environment Agency or the Homes and Communities Agency. They have a better track record but, as the noble Lord, Lord Cameron, pointed out implicitly in his reference to environmental matters, they clearly have a key role to play in the development of a joint approach.

I join in inviting the Minister, in replying, to indicate the kind of bodies, though not necessarily adumbrating all of them, that might be included in proposed new Section 33A(1)(c) of the Planning and Compulsory Purchase Act 2004 under,

“prescribed or of a prescribed description”.

It would be helpful to have an indication, though not necessarily on the face of the Bill, as obviously we may need to add or change the description over time.

I also take on board the point about local enterprise partnerships made by the noble Lord, Lord Cotter, when speaking to his amendments. It is not clear to me that they have much power in any event, as presently constituted, but they should certainly be involved in consultations. Whether it is useful to have a duty to co-operate on bodies that may not have the power to do very much is perhaps arguable, but the point is worth exploring, and perhaps the Minister could enlarge a little on the role envisaged for local enterprise partnerships generally and in relation to the position under the Bill, if not today then as a matter for further consideration.

I applaud the noble Lord, Lord Greaves, for most of his amendments, which seem to open up the duty to co-operate in a constructive way. As a former chairman of the Local Government Association, I wish I could subscribe to the view that local authorities co-operate as a matter of course; it is not necessarily the case, as one or two noble Lords have mentioned. It is essential that there is something to make the duty to co-operate actually stick. I cited at Second Reading, I believe, the instance of the district council of Stevenage and its inability to secure land for housing because it is a very tightly constrained built-up authority from an adjoining authority. There was simply no way in which it could break through in the present situation. Where regional spatial strategies have gone, there is no mechanism to compel that degree of co-operation. The noble Lord, Lord McKenzie, may refer to a case closer to his heart and locality, and I am sure other noble Lords could equally cite examples of that kind.

Of course, this is not simply a question of housing. Other issues require co-operation across boundaries that may not readily be secured. The question arises: how is development to be secured? What powers need to be vested in the Secretary of State or some other body to adjudicate where authorities may have had long discussions, with or without their other partners, and nevertheless failed to reach an agreement? It cannot simply be left to that. Amendment 147P, which the noble Lord, Lord Greaves, has introduced, may offer a way forward, provided that at the end of the day a decision can emerge from some source.

Finally, I refer to the definition, again in Clause 95(1), of what constitutes a planning authority. I am not sure whether, for example, the new body in Greater Manchester—the Greater Manchester Combined Authority—would qualify in those terms as a planning authority. It might, but there may well be examples in future of authorities combining for some purposes, and it would be helpful if there were some flexibility to ensure that such bodies could be brought within the ambit of the clause. We should consider whether the clause needs to be redrafted at this stage or whether it can be left to new Clause 33A(1)(c), which refers to,

“a body, or other person, that is prescribed”—

in other words, that one deals with these on a case-by-case basis. That would be a suitable alternative.

Nevertheless, new structures may emerge at the sub-regional level, to which the noble Lord, Lord Cameron, has referred. They may need a specific reference either in the Bill or subsequently. We need to acknowledge them, extend to them the duty to co-operate, and make it enforceable or in some way justiciable. I hope the Minister will take the sense that many noble Lords have spoken. The Bill is reasonable but it would be improved by most of the amendments that the noble Lord, Lord Greaves, and other noble Lords have tabled on the duty.

I will get around to addressing my amendments in a moment. First, I want to say how much I agree with the noble Lord, Lord Beecham, and my noble friend Lord Greaves that there seems to be some need in this section for an ability to knock heads together. My brother first got involved in local politics when, in the local village, there was an ancient wall with a fast-growing young sycamore next to it. At the same moment, the owner of the wall was served with a notice to repair the wall where the tree was knocking it down and a tree preservation order on the tree. I will leave it to noble Lords to guess which party was in control of the district council at the time. It is hard enough to get a council to co-operate with itself, let alone two councils, particularly in the example that the noble Lord, Lord Beecham, gave of Stevenage, where what is being asked of one council it really does not want to give and the residents do not want it to give. In those circumstances, some higher ability to make the process happen is important.

I have two questions to ask my noble friend on the Front Bench. First, I do not expect him to answer immediately, but how on earth are we going to finish this Bill in the time allotted? Looking at the time that we will take discussing neighbourhood planning, all the bits on housing and all the other bits, how can we accomplish all that is to come in in effect two and a bit days? It just does not seem possible. It must have consequences for how late the House sits. It may well have consequences for what days the House sits on. Thursday appears to be available if we stretch things a bit. I do not know, but it no longer seems possible to fit it into the time that we are supposed to be fitting it into, and I would like the Government to come clean with us as to how we are going to solve this conundrum. My noble friend might come back after the Statement with a long cape and a top hat and pull the proverbial rabbit out of it. Short of that, a plain answer from him via my noble friend the Chief Whip will be much appreciated.

Lastly, I hope my noble friend will not be troubled by my two amendments. Their purpose is to draw attention to the question of how, under this Bill, you have to pick a particular place to install a facility if you want to establish a network. It does not matter much where. It will affect only one local authority, but there is a choice of several local authorities into which it could go. Two examples come to mind. One is a rail head for the transfer of freight from road to rail and vice versa. You can probably put that in quite a number of places on the network, but how are you going to decide where to put it? For a pure road transport network, given current regulations, you need to develop places where lorry drivers can sleep overnight. Again, you have a wide choice along the motorway network of where these things should be. You have to produce several of them. They are quite big facilities these days. They are not just a field with some tarmac in it. They have to be secure, they have to be lit and they will have other facilities; but how are you going to decide where on the network these areas get put? It is important for the national network that these things exist, but local authorities will have to co-operate in deciding where they should be. I see nothing in the definition of “strategic”, at the bottom of page 72, that allows such matters to be included in this part of the Bill.

My Lords, we have Amendments 147FKA, 147HZA, 147HCA and 147HF in this group, which I will speak to in a moment. I will start with the question put by the noble Lord, Lord Lucas: how are we going to finish this Bill in time? I am sure the official answer will be that it depends on the usual channels and that it is not up to the Minister. However, given what we have to do, I reiterate the noble Lord’s point, which I know is shared by other noble Lords.

Our amendments are concerned with the duty to co-operate. We acknowledge that government amendments in the other place have improved the provisions, which have benefited from the input of the TCPI in particular. Notwithstanding this, we do not see the end result as providing a proper substitute for effective strategic planning for England. Many planning issues play out on a scale beyond local authority boundaries—the noble Lord, Lord Cameron of Dillington, and my noble friend Lord Whitty talked about housing, climate, biodiversity and key infrastructure issues, and the noble Lord, Lord Lucas, made a point about networks. I would say, without seeking to bring them back, whatever the difficulties with regional spatial strategies, they did provide a route to resolving these issues strategically. Is not the fundamental difficulty that the duty to co-operate will not deal with the hard issues that local authorities fall out over, particularly housing? My noble friend Lord Beecham instanced such a situation. This is an issue because there is at best a weak incentive for local planning authorities and others to comply with the duty, which is why I support the attempt of the noble Lord, Lord Greaves, in Amendment 147P to get a quasi-appeal process embedded in the arrangements.

Compliance with the duty is tested when the Planning Inspectorate takes a view on whether the local development plan is sound. It is therefore judged in retrospect. Will the Minister say more about how it is all to work? Take housing, for example. One local authority may have a need for housing that it cannot accommodate within its boundaries but which it believes could be provided in a neighbouring authority. That is not a unique situation; it is certainly one that we face locally in Luton. There might be genuine engagement around the issue but a difference of view about whether the needs should be met. The local authority with capacity might choose to accommodate the housing need of another adjoining local planning authority, or it might wish to use the capacity for a form of development that would not particularly help the restricted authority.

Is the independent examination required by Section 20 of the 2004 Act going to take a view on whether the outcome of the engagement is fair, reasonable or the most appropriate, or is it simply going to take a view on whether there has been an engagement but no meeting of minds, with the duty nevertheless satisfied? Is it not the case that there will be no mechanism in law that can require one local authority to take housing pressures generated by a neighbour? I accept the point that has been made that in many cases local authorities readily co-operate and these issues will not arise in practice, but that is not the case universally. There are real issues that the Government have to answer regarding the duty to co-operate.

We know that there is no spatial boundary and no clear relationship with LEPs, a point that has been raised by a couple of noble Lords. There is no list of key issues that co-operation should include, no key plan or outcome of the suggested co-operation. Our approach will be to support all the amendments that address these shortcomings wholly or in part, and I believe that that is the thrust of pretty much every amendment in this group, particularly those promulgated by the noble Lord, Lord Greaves.

On our own amendments, Amendment 147FKA requires an integrated transport authority and marine plan authority to be specifically included as persons to whom the duty to co-operate applies. This is a probing amendment to inquire whether there is any update of the draft list of public bodies that by order will be subject to that duty. ITAs are included on the list, as is the Marine Management Organisation, a point addressed by the noble Lord, Lord Greaves. I presume, as he outlined, that the latter covers a marine plan authority. What will the position be after the demise of PCTs, which are included in the draft list? Will GP consortia be included in it?

Amendment 147HCA adds to the activities that must be the subject of constructive engagement. They include the local transport plan and the preparation of joint infrastructure planning guidance as well as other activities that support sustainable development. Amendment 147HF expands on the requirements for the preparation of joint infrastructure planning guidance, how it should proceed and what it is to cover. Amendment 147HZA further qualifies that the active engagement should be with the objective of achieving sustainable development, consistent with the ethos that we are seeking to embed within the Bill.

I am conscious that the Minister might argue that a lot of these matters are going to be fleshed out in the NPPF. When we debated this last week, though, there was no enthusiasm for the Government to make this a statutory document. It is therefore just guidance, and anyway the NPPF is not supposed to contain anything like the level of detail necessary to ensure effective strategic co-operation. Generic planning policy does not amount to a spatial plan that shows where things go and how they relate to each other.

On the amendments in this group, we support the noble Lord, Lord Greaves, in his Amendments 147FJ and 147FK, my noble friend Lord Whitty in Amendment 147G and the noble Lord, Lord Greaves, in his Amendment 147GA as well as his Amendments 147HA, 147HB and 147HC, expanding the activities to not only the preparation but the implementation of development plans. As I said earlier, we support the noble Lord’s amendment that seeks to put in place a right for someone to make representations to the Secretary of State if someone is considered not to be complying with the duty to co-operate; I think it is Amendment 147P.

We support the amendment of the noble Lord, Lord Cameron of Dillington, that raises the issue of strategic infrastructure assessment, reinforcing the point that there are many issues that simply cannot be settled in bilateral or slightly expanded discussions and arrangements between individual authorities. There are more amendments in this group that we would support; I will not flesh them out in detail, given the time, but I have indicated the thrust of the amendments that we support.

I believe that my noble friend Lady Andrews has raised an important question about English Heritage but also more generally about what that duty would entail. The noble Lord, Lord Cotter, has focused on small business and LEPs. My noble friend Lord Beecham touched on the point that at the moment LEPs are a bit of an amorphous arrangement. It is not very clear what their status is—are they an incorporated body or an unincorporated body? The extent to which they are actually a person in law is also not clear. These matters would be helped if that were made clearer. The noble Lord, Lord Cameron, mentioned issues of CIL, which we will come on to shortly and hopefully have an interesting debate on.

My Lords, I begin by thanking my noble friend Lord Lucas for raising the whole question of rabbits out of hats. I think that the answer was given to him by the noble Lord, Lord McKenzie of Luton: a question of time is a question for the usual channels. They will indeed ensure that we achieve our aspirations for the Bill—I am certainly determined to do so. The way that the Committee has dealt with this enormous group of amendments is extremely encouraging and suggests that we will be able to meet our task, and I thank noble Lords for agreeing to this grouping.

This is an important part of the Bill. The duty to co-operate will require local councils and other bodies to work together actively and on an on-going basis to ensure that strategic issues are effectively addressed in local and marine plans. The duty will be a key element of the Government’s proposals for strategic planning once the regional strategies are abolished. The noble Lord, Lord McKenzie, pointed to the fact that some issues are on a substantial scale and the region seems the most likely vehicle for their discussion. From my own experience, which is similar to his as we both live on the borders of regions, one of the most difficult aspects of planning on a regional basis in my part of the world was the very fact that the prime focus of economic activity in the area—namely, Peterborough—was in a different region, and the construction of a road between Boston and Peterborough required an enormous amount of convoluted negotiations in order to achieve this objective. In my view, and I have expressed this in debate before, large units create much more inflexible boundaries than do small, active units and this duty to co-operate ensures that the appropriate level of scale can be brought to bear on any particular aspect of planning strategy.

These authorities will be working alongside incentives such as the New Homes Bonus and the reformed Community Infrastructure, as has been said. It will act as a strong driver to change the behaviour of councils and other bodies. We have worked closely with a wide range of external bodies whose advice and expert guidance has helped us shape the duty that we are debating today.

As I move through the amendments and the comments made in the debate, I will do my best to answer the various points. Amendment 147FK seeks to remove the enabling power to prescribe bodies that will be subject to the duty to co-operate. That would just leave local and county councils as bodies that are subject to the duty. We believe this is not enough to achieve the degree of co-operation that is needed to ensure that local and marine plans address strategic matters effectively. Bodies such as the Environment Agency and the Homes and Communities Agency play a critical role on strategic issues and that is why we intend to prescribe them along with others which have an important contribution to make.

As I have mentioned, the list of prescribed bodies will include, for example, the Environment Agency, Natural England, the Home and Communities Agency and the integrated transport authorities. The draft regulations have been placed in the House Library and we will be consulting on them during the summer. I might say in her absence to the noble Baroness, Lady Andrews, that we all appreciate the work of English Heritage but it has an ongoing engagement with local authorities on the whole issue of the preservation of heritage and historic buildings. The expectation under this Bill is that this duty should be applied in a reasonable and proportionate way but should be part and parcel of the existing ongoing relationship between these national bodies and the local authorities concerned.

The noble Lord, Lord Beecham, asked about the Greater Manchester Combined Authority, which we jointly saw through in the Moses Room one afternoon. In effect, each of the local authorities is indeed a planning authority. The Greater Manchester Combined Authority does not have powers as a planning authority but, because it is combining in its activities, it can serve as an exemplar of a duty to co-operate. Indeed, it is a very fine example of that activity. The list is in the House Library and we intend to consult on the regulations over the summer months.

Amendments 147FJ, 147FL and 147FKA seek to add marine planning authorities on the face of the Bill. Amendment 147FK also seeks to add integrated transport authorities but I have covered that point. Amendment 147R seeks to amend the Marine and Coastal Access Act 2009, with which my noble friend Lord Greaves and I were intimately involved, to ensure that the Marine Management Organisation has regard to the duty to co-operate when preparing marine plans. It would also require the Marine Management Organisation to demonstrate compliance with the duty as part of the independent investigation process for marine plans. I can assure my noble friend Lord Greaves and, although the noble Lord, Lord Whitty, is not in his place at the moment, I would like to reassure him, too, that the duty to co-operate will indeed include the marine areas for coastal authorities.

We appreciate the importance of co-operation in relation to preparing marine plans and they are included in the activities on which co-operation is expected under the duty. That builds on current practice where the MMO has consulted widely, including with local councils and organisations like the Environment Agency in preparing the East Inshore and East Offshore Plans. The noble Lord, Lord Cameron of Dillington, will understand that there is a duty under the Flood and Water Management Act, which we considered fairly recently, for co-operation, not only within local authorities but with the Environment Agency, to make sure that proper flood plans are prepared. This is another example of this system working in practice.

We appreciate the important role of the MMO and integrated transport authorities under the duty to co-operate and that is why we have included them in the list of bodies that will be subject to the duty. As a result, Amendments 147FJ, 147FL and 147FKA are unnecessary. With regard to Amendment 147R, the first part of the amendment is also unnecessary because Clause 95 already applies marine planning. It would also require the MMO to demonstrate compliance with the duty as part of the independent investigation process. This process works very differently from the independent examination procedure for local plans, not least because of the inability to make any binding proposals. Therefore, we do not consider this amendment would assist in ensuring compliance with the duty.

Turning to sustainable development, which was mentioned by a number of noble Lords, Amendment 147G seeks to ensure that the preparation of local plans and related activities enables the planning of sustainable development. Amendment 147HZA aims to ensure that the engagement between councils and other bodies will achieve sustainable development. We share a commitment to sustainable development which underlies these. The Planning and Compulsory Purchase Act 2004 includes a duty on councils preparing local plans to contribute to the achievement of sustainable development. That is why we have included sustainable development in the heading of Clause 95 and put it at the heart of strategic matters that we expect to be addressed in local plans.

The duty to co-operate will ensure that councils and other bodies plan for sustainable development by engaging actively and on an ongoing basis on strategic planning matters as they prepare local plans. We think this addresses the concerns but we will look again at it and see whether we have gone far enough.

On the activities that are covered by the duty to co-operate, the noble Lord, Lord McKenzie of Luton, mentioned housing especially as being a big issue. We are going on to discuss housing in the next group of amendments. Amendments 147HA, 147HB and 147HC seek to extend the scope of activities to which the duty applies to include the implementation of local and marine plans as well as their preparation. We appreciate and share the desire to ensure that the strategic priorities of local and marine plans are implemented but we believe that the requirement to co-operate on the preparation of plans is a powerful one. These plans set up-to-date frameworks, which will be implemented by councils through the development management system and the delivery of sites in their ownership. Plans will also set the framework for the investment priorities of other bodies, which will be set out in their corporate plans. The amendment is therefore considered unnecessary.

Amendment 147HE seeks to ensure that the scope of activities on which co-operation is required is not limited to planning documents, and that it also includes documents that affect the development and use of land. Amendment 147HCA seeks to add local transport plans and joint infrastructure planning guidance to the list of activities to which the duty applies. The duty to co-operate covers local development documents, which, under Section 17(3) of the 2004 Act, include all documents that set out the authority’s policies relating to the development and use of land in its area. This may include transport, infrastructure and a range of other strategic issues. These amendments are therefore unnecessary.

Amendment 147HD seeks to narrow the scope of activities to be covered by the duty to co-operate. It is important to ensure that the scope is sufficiently broad to cover activities that could reasonably be considered to prepare the way for local and marine plans.

We now come on to LEPs. There was an interesting challenge from the noble Lord, Lord Greaves, who asked: what is the definition of an LEP? LEPs are described thus in the draft local planning regulations:

“An LEP is recognised by the Secretary of State”.

I suppose that is a succinct and self-referential description of an LEP. I am sure all noble Lords will recognise one when they come across one.

The Minister has artfully described what an LEP is. Can he tell us what an LEP does? That is the thrust of the question.

What an LEP does is a subject for another debate altogether. However, it is well worth saying that it brings these local authorities, working together under a duty to co-operate in general terms, together with the local business community for the benefit of that community’s development in all the ways that we wish to see—economic, social and environmental. That, really, is what an LEP does.

May I press the Minister a little further? Does an LEP have powers and resources to do these things, or is it a forum for discussion? That has value but it is not quite the same as having functions of the kind I have just mentioned.

My Lords, what I am describing is exactly the vehicle through which power is exercised—the duty to co-operate and the construction of local plans. That is exactly what we are engaged in. The interface between the LEP and this process is important. We may have accidentally entered into something that elaborates, I hope, on the force of the Government’s argument in this area. My noble friend Lord Cotter was a little concerned that the membership of the boards of LEPs was perhaps not fully representative. We are not telling LEPs who they should put on their boards, but we expect board members to be drawn from a breadth of experience—from small enterprises through to large businesses and representing key sectors in their areas. My experience of the LEP that covers my area seems to bear this out through the individuals who have got involved and engaged with it.

It is appreciated that the aim of the amendments in this group is to ensure effective co-operation on local economic development issues. We share that objective but believe that it is better to give LEPs the space to innovate, rather than to impose a national statutory model on them. Effective co-operation on economic development issues can be achieved through an enabling power, which requires bodies that are subject to the duty to have regard to the activities of other bodies when preparing their local plans and related activities. We intend to prescribe local enterprise partnerships, which will represent local business interests in local planning regulations, for this purpose. We have placed the draft regulations in the House Library and will consult on them later this month. The approach that we are taking will support growth and strengthen local economic co-operation under the duty, but it will leave LEPs the freedom to innovate and work flexibly.

I hear what my noble friend says with interest. First, will he reflect on having just described LEPs as representing business interests? Surely the whole purpose of LEPs is that they are a partnership between business and local authorities, and therefore represent both those interests, not just one of them. Secondly, could he explain how merely putting a duty on LEPs to co-operate and promote co-operation amounts to a rigid national statutory framework?

I am sorry if I misled the Committee. I am well aware that LEPs are joint bodies, representing the interests of local government and business. I think that is what I described earlier. If the syntax of what I just said implied that that was not the case, I withdraw that. However, I think I said that we intend to prescribe local enterprise partnerships, which will represent local business interests in local planning regulations for this purpose. My point is that they represent business interests as well as community interests.

There are several amendments that I would loosely describe under the heading “Engagement under the duty to co-operate”. They include Amendments 147J, 147K, 147HP, 147HQ and 147JA. They seek to strengthen the engagement required under the duty to co-operate by requiring actions, rather than giving councils and bodies the flexibility to consider whether to undertake these actions. I refer again to the contribution of the noble Lord, Lord Cameron of Dillington. The key point is that strategic planning needs to be flexible to allow councils to decide how to co-operate effectively. This will depend on the issues that they face. As I have already described and as the noble Lord himself said, flood and water management requires a totally different combination of interests from, say, highways or housing policy, which are founded in different ways. That is the great advantage of this structure. Prescribing a specific outcome, such as a joint infrastructure assessment, would not allow for the flexibility that is needed to make this an effective vehicle.

Moving on, Amendments 147L and 147M address similar concerns about engagement. They seek to establish a specific document—a joint strategic infrastructure assessment—to be produced as evidence of effective engagement under the duty. Amendment 147HF addresses similar joint infrastructure planning guidance, which it implies should be included in the activities to which the duty applies. It sets specific requirements in terms of the purpose and content of these documents. The amendment seeks the involvement of councils that are part of a local enterprise partnership and requires that the objective of the bodies preparing these documents should be the achievement of sustainable development.

We share the objective of having a duty to co-operate that will ensure effective co-operation by councils and other bodies. However, strategic planning is not a one-size-fits-all approach. It needs to be a flexible process led by councils that allows them to respond to particular issues and local circumstances. Flexibility is essential to allow them to decide how best to work to serve their local communities, businesses and interested parties. We agree that strategic infrastructure plays a critical role in supporting the delivery of economic growth and housing, and that is why we have included it in the Bill.

Clause 95 requires councils to consider whether to work jointly on policies and activities related to strategic cross-boundary and county issues. It gives local planning authorities and county councils flexibility on how to fulfil this responsibility, rather than forcing them to produce specific documents. That strikes the right balance by ensuring that co-operation will result in effective local plans and by strengthening accountability to local communities, businesses and interested parties.

Councils that are part of a local enterprise partnership will already be subject to the duty to co-operate, and there is no need to refer to them separately. I have received assistance for the noble Lord, Lord Beecham, on the functions of LEPs. We do not want to be precise on their roles or functions. They should follow local priorities that they and their communities consider important. We want LEPs to leave development proposals to local enterprise. That is their task and their role. They are not public bodies and are not reliant on grant funding, but they provide a forum and an agency to start up funding, if that is part and parcel of the proposals. LEPs are therefore facilitators rather than providers, if I may describe them in that way.

Amendment 147J would also remove the requirement on councils and other bodies to consult on agreements on joint working approaches. However, we believe that this is an important element of co-operation in local planning that will allow all the relevant parties to suggest the most effective ways of working.

A number of amendments in the group seek to describe strategic matters, and would delete the reference to sustainable development and focus on development that impacts on at least two planning areas and projects forming part of a strategic network. Amendment 147HM focuses on development needs that cannot be accommodated within one planning area and the development of potential strategic importance. One might say that the issue of the housing requirements of Stevenage that the noble Lord, Lord McKenzie, brought to our attention is relevant.

It is appreciated that there are many ways in which strategic matters could be defined for the purpose of the duty to co-operate. We recognise that the concern behind these amendments is to ensure that the duty effectively captures strategic matters that affect more than one authority. We share this concern but believe that the duty should capture strategic matters in a way that is flexible and allows councils to respond to particular local circumstances. We wish to retain the reference to sustainable development because of the importance that we attach to it, as I highlighted earlier.

Some concern was expressed about statutory guidance. Amendment 147N deletes the requirement on councils and other bodies to have regard to any guidance that the Secretary of State may issue about how the duty to co-operate should be complied with. Such guidance, should the Secretary of State decide that it is necessary, will be important in helping councils and other bodies to understand how to discharge their responsibilities under the duty to co-operate. It will therefore be important that they have regard to it.

Amendment 147P makes provision for representations to be made to the Secretary of State regarding compliance with the duty to co-operate and provides the Secretary of State with very broad powers of direction. A linked amendment, Amendment 148ZZZZBA, removes the sanction of failing the local plan examination if an inspector finds that a council has not complied sufficiently with the duty. We do not think that this approach is proportionate. The requirement for compliance with the duty to co-operate when making local plans is coupled with a powerful sanction. If councils cannot demonstrate that they have satisfactorily complied with the duty, their local plans may not pass the independent examination. In addition, local planning regulations will require councils to report progress on compliance against the duty to co-operate. This strikes the right balance. We do not think that the direction-making powers proposed are necessary—nor would they be consistent with our aspirations for localism.

To take the Stevenage situation again as an example—there will be others—one authority may say, “We are not going to have housing in our borough to accommodate you”. There are two distinct points of view, and there is no real sanction. If a plan does not get approved, that suits the authority that wants to keep the status quo. Therefore, there is no recourse for the Stevenages of this world in that situation. Is that not the problem? There will be no co-operation and no plan, and there will be no solution to the problems that one of the authorities might have.

The process of co-operative working actually requires co-operation and a sense of shared purpose in serving the communities that the local authorities represent. There may well be tensions. There may well be situations where there is difficulty in seeking agreement. The law will place on local authorities a duty to seek to resolve these differences. If they show that they have not considered the outcomes of a co-operative process in formulating their local plans, those plans will be rejected. There is, therefore, gentle coercion. However, as with all circumstances where power is being devolved down to local authorities, the public interest is being vested in those democratically elected bodies—namely, the local authorities concerned. That is the purpose of this legislation. I do not need to lecture the noble Lord, Lord Beecham, on the virtues of democracy and the accountability that comes with it. What is missing is the sense that Whitehall is looming large over the whole process and is seeking to put pressure to achieve a particular outcome through this process. It is important to emphasise that.

The noble Lord has been generous in speaking to all the amendments, but I want to be clear on the housing issue that the noble Lord, Lord Beecham, described. We have a similar issue in Luton. One authority with a desperate need for affordable housing that cannot be accommodated within the borough may look across the boundary and see opportunities there, but the other authority may take the view, “We don’t want any of this affordable housing encroaching upon our villages”. How is that situation to be resolved? You might have one authority that has genuinely gone through a consultation exercise, has taken a view, and has said, “We don’t want that form of housing here”. Another authority may have a desperate need for that housing. When the soundness of the plan is due to be judged, will the inspector involved just see whether or not the processes and so on have complied with what is required under the co-operation duty, or will there be some value judgment that the inspector can make, and say, “In all the circumstances, this was an outrageous position for you to take, and you have therefore not complied with the duty to co-operate”?

It may be easier to consider the detail of the point that the noble Lord has raised when we come to discuss the next series of amendments. In general terms, there will be evaluations not just of the outcome of the local plan but of the way in which evidence has been collected together in order to provide that plan. That is perhaps a safeguard that we might have. We will have an opportunity to talk about housing in particular, so I hope that the noble Lord will forgive me if I seek to move on—I have been talking a long time, but there were a lot of amendments.

In winding up, let me deal with Amendment 147HN, which seeks to define planning documents by referring to town and country planning and marine planning legislation. However, the term “planning documents” is not used in the provision. As it stands, the duty covers all local planning authority documents that set out their policies in relation to the development and use of land. It also covers marine plans. This amendment is therefore unnecessary.

Amendment 147LA, which seeks to require the bodies subject to the duty to co-operate to have regard to the activities of prescribed bodies, is also unnecessary as this is already provided for in Clause 95, in new Section 33A(2)(b).

I now come to an exciting point in bold type that says that Amendment 147Q addresses a typographical error in Clause 95. We are happy to accept this amendment when it is moved by the noble Lord. I hope that noble Lords will remind me when that particular amendment is called.

I will close by saying that I am satisfied that the duty to co-operate will ensure that local councils, county councils and other bodies work together in the spirit of constructive and active dialogue. That will maximise effective working in the preparation of local and marine plans in relation to strategic cross-boundary issues and county matters. With these reassurances, I hope that the noble Lords are willing to withdraw the amendments.

My Lords, perhaps the solution to the difficulty of the noble Lord, Lord McKenzie of Luton, is to reach back into the history of local government and reinstate single combat between neighbouring chiefs, who would then be seen to be earning their salaries at least.

In that great Gladstonian oration that we have just heard, I missed the answer to my question. How does the wording in Clause 95 permit the duty to cover the sort of situation that I was discussing, where there is a national network to be looked after and it needs to be discovered where the burden of that falls between various local authorities? I do not see how that is dealt with. I would be happy if the noble Lord would write to me between now and Report.

My Lords, I thank the Minister for the great care that he has taken in responding to these amendments. We might get on a bit quicker on one or two of them if the people providing him with his briefings understood that, often in Committee in this House, we put down “leave out” amendments in order to find out what things mean and how they will work, rather than delete them. We are not actually always trying to get rid of them. I realise that sometimes they have to guess which it is, but that is the case.

There is a difference of approach. Some of us would like to have a much clearer high-level duty placed on local authorities and other bodies and far less detailed regulations on how to do it. Some of us would like to rely on that, rather than have a weaker duty and then masses of detailed regulations. The duty to co-operate is a classic case of that. On the central issue of whether the duty in this part of the Bill is as strong as it needs to be, some further discussion will be required before we are finished with the Bill. There is a feeling in quite a bit of the Committee that perhaps it would be a good thing if we could find ways of strengthening the duty a bit further without resulting in even more reams of detailed rules and regulations. I hope that the Minister would be open to discussion of that, in so far as we are able to have discussions over the summer.

On that basis, I thank the Minister and everybody who took part in this debate, and I beg leave to withdraw Amendment 147FJ.

Amendment 147FJ withdrawn.

Amendments A147FK to A147P not moved.

Amendment 147Q

Moved by

147Q: Clause 95, page 73, line 38, leave out “(1)(b)” and insert “(1)(c)”

Amendment 147Q agreed.

Amendment 147R not moved.

Clause 95, as amended, agreed.

House resumed.