My Lords, I respectfully adopt most of the arguments advanced by the noble Lord in his critique of this very unsatisfactory set of clauses. After the triumphant successes achieved with the privatisation of services such as prisons, probation, aspects of the NHS, electronic tagging, work capability assessment, residential care and so much more, we are now asked to endorse the involvement of the usual suspects—G4S, Serco, Capita, Sodexo et al—all in the name of efficiency in the planning process.
Many councils have found outsourcing to be expensive both in terms of cost and quality, but government dogma dictates that the process must continue, beginning in the planning field with what the technical consultation, to which the noble Lord has just referred, published last month, describes as:
“Testing competition in the processing of planning applications”.
But this is more than just a matter of councils being at first able—and, no doubt, eventually required—to outsource the work. It allows the applicant to choose who will do the work. The notion of a potential conflict of interest does not seem to have entered ministerial heads—or, if it did, it has been ignored.
As the Town and Country Planning Association has pointed out, this is not necessarily to be confined to a limited number of pilot projects or developments. Once again, secondary legislation may be employed, this time to extend the process to any form of development. The TCPA found no evidence of any prior consultation on these proposals. Can the Minister say whence this policy was derived, who was consulted before it was enshrined in the Bill and, in particular, whether any potential external providers were consulted or offered views before these clauses were drafted?
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What is the problem the proposal is intended to address and from whose perspective does it exist? Councils can, if they choose, outsource the work anyway—but with the cardinal difference that in that case the work is done not for the applicant but for the public, as represented by the local authority. Under the Bill, it would be the applicant’s adviser, not the adviser to the planning authority, who would have to make judgments about the process, as the noble Lord
has just reminded us: for example, even in relation to consultation. Critically, Clause 146(2)(g) provides—the Committee will be surprised to learn—that,
“the circumstances in which, and the extent to which, any advice provided by a designated person to a person making a planning application is binding … on the responsible planning authority”—
which effectively privatises decision-making, not merely the application process. As the TCPA points out, this constitutes,
“a fundamental change in how the planning … process operates”.
The DCLG avers that binding advice would apply only in very limited circumstances. What circumstances? How limited? Who will decide the question in the course of any individual application? Why has this significant change been inserted into the Bill without prior consultation? Is this another product of one of the Government’s favourite think tanks, where the thinking is all too often limited but the process is tank-like and destructive in its lumbering progress? How very reassuring it is that, as the Minister Brandon Lewis told the House of Commons, the Secretary of State will be able to decide who is able to offer their services to process planning applications. The terminology is wonderful. The notion almost implies organisations motivated by the purest altruism coming to the aid of applicants and planning authorities, and magically overcoming any conflict of interest between the applicant and the community represented by its elected council.
As of 6 January, the Department for Communities and Local Government was unable to identify what types of bodies are likely to be classified as designated persons who would carry out the work. We are now approaching the end of March. Can the Minister tell us who will be classified as designated persons to carry out the work?
The TCPA raised the question of how the right to legal challenge by judicial review would be affected by the proposal. JR applies to public bodies. If a council outsources its services, JR is still available, where it is relevant, because the work is deemed still to be carried out by a public body. But under the Bill, the alternative provider is engaged by the applicant, not by the local authority, and therefore the process will be immune from such a challenge. How can the Government justify this or do they not care whether the lawfulness of the process may be subject to question in these circumstances?
No one would defend delays and inefficiency in the planning process. But, as the noble Lord, Lord Greaves, has already reminded us, the huge pressure on council budgets is leading to significant staffing problems. That is a consequence of government policy that we appear doomed to suffer for at least four more years. But what are the Government going to do about the hundreds of thousands of extant and unused planning permissions—a much more important issue than that with which this clause purports to deal? Ideally, the Government should drop the provision. At the very least, they should accept Amendment 102DAA in my name, which would restrict the definition of a designated person to councils and public bodies and not to whoever may set themselves up, under the provisions of the Bill, as a performer of an external planning service.