New Clause 11

Part of Localism Bill – in a Public Bill Committee at 10:00 am on 10th March 2011.

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Photo of Stephen Gilbert Stephen Gilbert Liberal Democrat, St Austell and Newquay 10:00 am, 10th March 2011

It is a pleasure to serve again under your chairmanship, Mr Amess, and I am sure that I speak for the whole Committee when I say that it is a pleasure to have reached the last day of this Public Bill Committee. As it has been my first ever Public Bill Committee, I feel that I have learned a huge amount about the Bill, the issues surrounding it and the processes of this House. As a new Member, I thank you for your patience and guidance, and I also pass on my thanks to the Clerks and the various officials who have supported us in our deliberations. That said, I have also realised that I must have been a very inefficient new Member before this Committee sat, because I have absolutely no idea what I did on Tuesdays and Thursdays before the Committee, or what I will do on those days in future. I hope that the Whip, my hon. Friend the Member for North Herefordshire, does not get ideas.

New clause 11, in my name and that of my hon. Friend the Member for Bradford East, would, in short, introduce a community right of appeal. It has become clear as we have considered the Bill that the Government’s intention is, quite properly, to devolve planning powers to local communities. Central to this very radical reform is the intention to give neighbourhoods far more power to determine the shape of the places where people in the neighbourhood live. That is, of course, a welcome move, but there is a missing piece of the puzzle, and that is a community right of appeal. When decisions are taken that are not in line with the local development plan, and that are therefore against the wishes of the local community, new clause 11 would enable the public and their representatives to challenge the decision.

This is not a view peculiar to me and my hon. Friend the Member for Bradford East. I remind the Committee of the words in Liberal Democrat and Conservative documents from May last year. The Liberal Democrats’ manifesto stated:

“We will create a third party right of appeal in cases where planning decisions go against locally agreed plans”.

The Conservatives’ policy paper “Open Source Planning” stated that

“we will make the system symmetrical by allowing appeals against local planning decisions from local residents, as well as from developers.”

I do not profess to be an expert in coalition negotiations, but I would have thought that one of the first things that my right hon. and hon. Friends would have done  when they met in those hectic days after the general election was to list the things that they agreed with. As my hon. Friend the Member for Hazel Grove was party to the negotiations, perhaps he could shed some light on whether that was the process. In any event, listing the issues with which both coalition parties agreed on what should form a programme of government would have been a sensible departure point. Clearly, had that been the departure point, a limited community right of appeal, which I will talk about, would have been in the coalition agreement. However, it is quite clear that in the Cabinet Office rooms—I was going to say cigarette smoke-filled rooms, but I suspect they are more Perrier-filled rooms—things do not quite work that way.

From our many debates, we know that planning reform is key to the Government’s agenda on localism. It is my view—I hope to convince the Committee and the House in due course—that a community right of appeal would sit well with the other rights that are being devolved to local communities and neighbourhoods by the Bill. The current situation is quite clear. At the moment, only applicants for planning permission may appeal, with no restriction on the grounds of the appeal, to the Secretary of State when a local authority refuses permission. The community and its representatives have no such right of redress. Those issues have been raised with Ministers by other Members of the House. In an answer to a question from my colleague, my hon. Friend the Member for Colchester (Bob Russell), my right hon. Friend the Member for Tunbridge Wells said:

“The Government’s reforms to the planning system seek to avoid the need for appeals to the Planning Inspectorate by all parties. Planning permission should be secured by consistency with plans rather than by development control.”—[Official Report, 29 November 2010; Vol. 519, c. 480W.]

I think we all welcome that intention. There is no doubt that my right hon. Friend gets it exactly right: that should be the Government’s aim. Unfortunately the Bill leaves us short of that.

The proposed system of neighbourhood planning and neighbourhood development orders will present several challenges, as has been discussed. Crucially, the system will be voluntary. While Ministers expect between 20% and 60% of the country to move to the new system, we need to do more to drive up the take-up for the Bill’s measures. Key among that would be putting in place a system of checks and balances. A community right of appeal against planning applications submitted under the current regime could be a key element in pushing local neighbourhoods to fulfil the Government’s desire.

Of course, we have to guard against vexatious appeals and appeals driven by commercial interest, which is why in new clause 11 I have tried to set a high threshold for the issues that could trigger an appeal and the bodies that would be able to appeal. A community right of appeal as defined in the new clause could be triggered only where a decision to grant a planning permission is not in line with an already adopted plan, or where the local authority itself has a particular interest in the application and so could be construed as conflicted in its ability properly to determine the application. There are many controversial planning issues, such as one in my constituency regarding an incinerator and energy from waste recovery facility, which the local authority is pursuing. It has been rejected by the local authority’s planning committee, but there is a clear interest in  getting it through. The new clause would set a high bar regarding who would be able to appeal, limiting the right to a number of representative groups.

We need to be absolutely clear. As the Bill is drafted, developers will still be able to submit planning applications that are contrary to a local or neighbourhood plan, as well as appeal against any refusal based on the provisions of that plan. The changes put forward in the Bill may reduce the chance of appeals being successful where neighbourhood plans are in place, but we should not lull ourselves into a false sense of security and think that the Bill, as it stands, will eliminate appeals in the planning system.

Indeed, over the past 10 years, appeals have become a more prominent part of the planning system. It is estimated that over 8,000 planning applications were deemed to have significantly cut across agreed development plans. That is a tiny part of the 6 million applications in the period, but those 8,000 cases are likely to have had a more significant impact on local communities, because they go outside agreed plans and are therefore controversial enough to be referred to the Secretary of State.

Right hon. and hon. Members might be thinking that there is a different way of levelling the playing field. Indeed, there is; we could remove the developers’ right of appeal. The Conservative party’s quality of life policy group, in their publication “Blueprint for a Green Economy”, suggested that exactly that course of action could be taken to remove the disparity between the rights of the applicant, the developer and the community. However, the Bill does not do that. I ask Ministers to reflect on which avenue they would prefer to take to equalise the rights.

Not only does the Bill not prevent applications and appeals that are outside the neighbourhood planning framework, but it does not prevent local authorities granting permission for applications that are outside the frameworks, provided that they can prove that there are “material considerations” that are significant enough to cause them to override the neighbourhood development plan. In such circumstances, the community, which had come together in the now infamous Dog and Gun to prepare its neighbourhood plan—[Hon. Members: “Dog and Duck.”] It is clearly not infamous enough. The community could be overruled by its local authority and would then have no right of appeal. That is against the spirit of what the Government are trying to achieve. New clause 11 would help to redress that.

Community rights of appeal exist in other countries. In Ireland, 8%—almost one in 10—of all planning applications were appealed against in 2008. Ireland has a community right of appeal, and the split in that 8% was roughly 50-50. New Zealand has an established right of public appeal against the grant of planning consent, and it acts as an incentive for developers and planning authorities to focus their efforts on plan making and pre-application discussion. Australians also enjoy a community right of appeal. In none of those countries has a community right of appeal been an impediment to economic growth. Indeed, by forcing developers and communities to work together, it has acted as an incentive for properly managed economic growth and properly discussed community plans.

Too often, local planning can be characterised by large developers railroading unpopular proposals through the planning system, using their unrestricted right of  appeal to wear down local opposition and intimidate local authorities. A community right of appeal could be a useful additional weapon in the arsenal of local councillors and local communities in redressing those tactics. A community right of appeal should be seen as a vital part of the overall localism agenda—a part that is necessary to ensure that the reforms in this landmark Bill reach their full potential.

Where decisions are taken that are not in line with an agreed development plan, and that can therefore be considered to be against the wishes of the local community, representatives should be able to question those decisions through an appeals process. That is my view, and it is the contention of new clause 11.

I noted the response that the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Bromley and Chislehurst, gave to my hon. Friend the Member for South Northamptonshire (Andrea Leadsom) on the timetable for further reforms. He said—I hope that he does not mind if I paraphrase slightly—that the Localism Bill came first, then the national planning framework, and then we would

“look at the appropriate means of proceeding thereafter.”—[Official Report, 12 January 2011; Vol. 521, c. 134WH.]

I welcome the fact that the Government have signalled their intention to leave the door open for further reforms to the planning system, but that is not as good as getting it right first time. As the Minister knows from his long years of service in local and regional government, planning legislation changes infrequently. Thirteen years passed between the Planning and Compensation Act 1991 and the Planning and Compulsory Purchase Act 2004. The House may not get the chance to take this issue forward, and deliver on the coalition parties’ election pledges, for some considerable time.

It is my contention, and that of my hon. Friend the Member for Bradford East, that new clause 11 will deliver on those pre-election promises made by Government Members. I am hugely grateful for the support of a number of external organisations in helping to develop the clause and research the issue. We believe that new clause 11 would help to underpin the Government’s commitment to localism, and that it would be an added incentive for developers and communities to work together through the neighbourhood planning process that the Bill will deliver. I believe that community right of appeal will be a more efficient and effective method of resolving controversial planning cases, and more in keeping with established planning practices. It will right an imbalance in the system, which will deliver real power and real control to local authorities.