Honestly, I am not obsessed with archaeology, but it seems a good example of what might happen, because archaeological findings have the habit of derailing development. The noble Lord, Lord Greaves, has raised a whole range of issues and
material circumstances that can lead to extremely difficult outcomes. Our old industrial sites are often by rivers, so not only do we have layers of contamination going back 300 years, heavy metals and goodness knows what, but we have flooding issues. All such issues relate to the viability of the site, which is a key factor in whether permission should have been allocated in principle—we will come back to viability later on—but none of them would necessarily be explored at that plan-making stage when sites were given approval in principle. They also raise questions of when the NPPF kicks in, how we will see and know that, and the scope of what we mean by technical details.
The reason for pressing for clarity on this point at this stage of the Bill is obvious; it is because the PIP is a radical departure from the discretionary planning process that we have now. It shifts the locus of consent, the plan; it removes the key flexibility to refuse permission that exists—in relation, for example, to an outline planning application; and it implies that the principal development made in a plan cannot be reopened even when new evidence comes to light.
I am aware of the provisions in the Bill—we have discussed them briefly—that allow for decisions to be reopened after a period has elapsed, but they do not address this issue of when technical details that are not understood or anticipated at the plan-making stage challenge the core principles of whether development should go ahead. That illustrates the basic difficulty of having separated this process into two distinct halves.
Paragraph 2.13 of the consultation document states that this,
“does not prevent consideration of the technical details of the scheme against local and national policy and other relevant material considerations … Any conditions needed can be imposed when technical details consent is obtained”—
which I think means that the technical stage of the process, as well as the front end, will have to be in compliance with the NPPF, but I would like to have that confirmation. I would also like to know why the term “does not prevent” is used rather than “has to comply”. Can the Minister confirm that if the technical details are found wanting and there are some aspects that do not comply with the NPPF, the plan will not be approved? If he can give a clear answer, it would be very reassuring.
I have to raise a wider point here, which is the paradox whereby, as the noble Lord, Lord Greaves, has alluded to, if you have not done the site assessment and there has been no requirement on you to visit and test out the site, how do you know whether the NPPF will apply? A review of the NPPF is going on, so how does the Minister think that might reflect what we are discussing in this Bill?
When we come to what is covered by the technical details, I have already raised what the Chancellor meant when he talked about a “limited” range of technical details. The Minister has said that we will have to wait for the consultation, but if she could have a stab at that this evening, that would be useful.
The technical consultation states that the parameters of the technical details that need to be agreed will have been “described” in the PIP, not that they will have been determined or agreed or assessed, for the difficulties
that they might cause. What does “described” mean? Does it mean that they would be listed, that a paragraph of intent would have been written, or that evidence would have to be produced, either from a desk analysis or a site visit, on, for example, the history and extent of contamination?
The Minister will probably say that the developers or the LPA will already have identified key issues, because that will have been done in the local plan, which will passport the brownfield site forward. Great weight is put on the local plan; the argument is that it will save time. But local plans are sometimes barely more than a red-line indicator of an allocation; they go no further and rarely involve site visits or detailed investigations. They are subject to a strategic environmental assessment that is based on desktop analysis; it does not involve the requirement for wildlife or archaeological field surveys. Material considerations can cover all that.
Let us think about flooding. There are parts of the country that now flood once in every 10 years when previously they flooded once in every 100 years. These are new circumstances to take into account. I would be very happy incidentally for the Minister to write to me about this if that was simpler.
Here is the rub. Paragraph 2.25 of the technical assessment states:
“The local planning authority may not use the technical details consent process to reopen the ‘in principle’ issues”,
if they,
“are not acceptable for justifiable reasons”—
in which case—
“the local planning authority could justify a refusal at the technical details stage, and the applicant would have the right of appeal”.
So this is an opportunity for the Minister to say what a justifiable reason would be. Let us bear in mind that we are trying to bring greater certainty to this whole process, but not only does it appear that it can be overturned completely if the technical detail is confounded but there is no room for manoeuvre and no way in which the applicant can go back and say, “We’ve discovered a real problem. We can mitigate it, but it means we’ll have to really challenge and change the number of houses that we can build”.
Many of these facts and material considerations will not reveal themselves without serious site-based knowledge. How many developers are going to do that? Once they have permission in principle, they know that they are home and dry, at least in principle. So we could have the worst of all worlds: a fixed and immutable decision in principle which might be overturned when the full facts of the site and its constraints are known. This is a probing amendment, of course. It is an attempt to keep the door open to a change of mind over PIP when an important material consideration which could not have been foreseen actually comes to light.
Amendment 96ZA deals with where the material considerations take on an acute presentation. The very common unknown quantity of undesignated archaeology can stop development in its tracks. We know that archaeology is important because it is the only means we have to understand our remote past. Technology now gives us the power of understanding
and overturning what we thought we knew. For example, recent investigations in Stonehenge revealed that masonry workers came as immigrants from Europe 2,500 years ago. We actually did not know that; it is another gift that immigration gives us.
Archaeology is fragile, irreplaceable and unpredictable. Some of it is known and designated; most of it is unknown, awaiting discovery and undesignated. That is precisely why, after such careful negotiation, the NPPF has put a clear weight on the need to protect heritage assets as part of sustainable development; that is in paragraph 128 of the NPPF. In fact, a fully predetermined assessment and evaluation is usually carried out only where there is an application for permission, and for conditions or obligations to be imposed, or to mitigate or compensate for unavoidable but justifiable harm to the historic environment.
The problem is that brownfield sites are the most intensively worked sites in our history. They have been occupied longer and more has been done to them, and there tends to be very intense archaeology now. In most of the city-centre archaeological sites, such as Leicester, brownfield sites are turning up extraordinary archaeological finds now—not just Richard III but whole medieval and Roman foundations, which we simply did not know about. So we have a problem with brownfield registers.
We also have a problem with SHLAA methodology which will be used, because that does not involve assessment either. Many of the sites that will be identified or allocated have not had the benefit of predetermination in terms of archaeology; therefore, there is a real possibility of damage.
Let me just short-circuit some of this. Any short-circuiting of the development management process which impedes or precludes the opportunity to oppose development on the basis of archaeological objections or to impose conditions makes the historic environment vulnerable. The PIP runs this risk because, as we know, it is not possible to impose conditions at the in-principle stage, and it is not clear that the technical details will encompass archaeological and other considerations related to the historic environment. As I said, it is very difficult to assess whether there is an in-principle objection to development on archaeological grounds without detailed consideration. If no in-principle objection is made, as I said before, sometimes you can mitigate rather than throw out the scheme.
The difficulties are compounded by the loss of expertise in local authorities. It is estimated that they have lost a third of their conservation officers in recent years. Relaxing planning regulation and reducing information requirements generally allow the planning regime to operate with less input from local authorities, and the reduction of input from local authority heritage and archaeological services is doubly damaging. It leaves the sites even more vulnerable to harm.
To conclude, both these amendments raise similar issues in slightly different form. I hope that at least—if in writing, that is perfectly acceptable—the Minister can actually address some of the specific issues that have been raised by the reading of the technical consultation document. But I ask her to think about something else. It would be really helpful if she could
put the following assurances on the record—assurances that would apply equally to both my general and my specific amendment: that permission in principle will be decided only by local authorities, whatever its roots; that it will always be decided against the NPPF; that if there is insufficient understanding of the impact the development might have, permission in principle will not be used; and where the impact is difficult to assess without details, the authority will be encouraged to set a conservative limit on development or to carry out investigations as required by the NPPF in order to increase confidence as to the acceptability of the site.
7.45 pm