Planning Applications

– in Westminster Hall at 10:59 am on 7 April 2010.

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Photo of Oliver Letwin Oliver Letwin Shadow Minister without Portfolio 10:59, 7 April 2010

May I say, Mr. Fraser, that it is a bittersweet pleasure to speak in this debate under your chairmanship, as it is the first and last time that I will have the opportunity to serve under your chairmanship? I am very sorry that you will be disappearing from the House after the election.

It is very good to have the opportunity to raise this subject, even at the tail-end of this Parliament, because it is a subject of very considerable concern to some of my constituents, as I shall explain in a moment, and because it has wider ramifications. I should give the facts of the particular case that I will talk about, which are extremely simple. West Bexington is a very beautiful stretch of coastline in my constituency. It has a remarkable shingle beach that is a particularly nice part of a world heritage coastline. Behind the beach and the coastal path lie a set of chalets, which are the only things that are visible from many angles on the beach. Those chalets are quite small.

In April 2007, a chalet owner at West Bexington put in an application to enlarge their chalet and alter it. As is normal, that application was accompanied by both factual details and drawings. Unfortunately, the drawings did not bring to light, in a way that enabled either the planning officers or the local people to understand what was going on, the relationship between the size of what was being planned and the adjoining chalets on either side.

The drawings suggested, to the uninformed eye and indeed to the more informed eyes of the planning officers, that the chalet for which the application was being made would not be very far off the same size as the chalets next to it, if the application was permitted. Unfortunately, once the works to the chalet were completed-indeed, I think it was clear even from the point at which the works began-it was obvious to all the local people that the chalet for which the application had been made and for which planning permission had been received in April 2007 was by no means of the same scale as the chalets on either side. In fact, it was much larger and visually quite obtrusive.

That led to very considerable objections locally. People felt that they had not been alerted to what was being proposed and therefore that they had not done what they would otherwise have done, which was to object to the change. They felt that the planning officers had not seen what was on offer, so to speak, and therefore that those planning officers had effectively been misled by the drawings. Consequently, they were outraged. Therefore I received a petition from more than 100 local people-given the size of West Bexington, that is a lot of people.

I then engaged in a considerable amount of correspondence about this application over quite a long period with the Minister's predecessors, as well as with other people, including officials, lawyers and representatives of the district council and the parish council. I have also had a number of meetings with local residents about it. As a result of all that activity, what has come to light is that, under the current planning law, if an application is made and permission for what is applied for is given, the permission that has been given is valid, regardless of the fact that the basis on which the application was made was such as to lead the planning officers and any councillors-if any councillors had been involved in the process-to the wrong conclusions about the scale and nature of what was being proposed.

In other words-to take an extreme example-if I proposed building the Empire State building at West Bexington and I provided a drawing that suggested that it was six feet high and if, by mistake, the planning officers did not look sufficiently closely at the dimensions of the Empire State building and merely looked at the drawing and concluded that I was building something that was 6 feet high and they gave me permission on that basis, then under current English law, as I understand it and as the Minister's predecessors have explained it to me, I would have an undisputed right to build the Empire State building at West Bexington.

I give that ludicrous example simply to point out that there is clearly a problem in this sector of planning. It has visited itself on my constituents in West Bexington in a less exaggerated form than that ludicrous example, but at some other time someone could do something much more exaggerated than the changes proposed at West Bexington and they would still be in the same position of having a valid planning permission on the basis of information that was misleading to the naked eye.

Photo of Bill Cash Bill Cash Conservative, Stone

I have stayed on for this debate as I am rather interested in this issue, which I think my right hon. Friend is raising in the national interest. As people have sought advice from the various lawyers and others who are involved in this case, I wondered if anyone had mentioned the words "judicial review"?

Photo of Oliver Letwin Oliver Letwin Shadow Minister without Portfolio

I am very grateful to my hon. Friend for displaying his usual legal acuity, because it is exactly the question of judicial review to which I now turn. I received responses from Ministers suggesting that judicial review might be the answer in this case. However, I have two questions to ask the Minister about judicial review.

First, why would anyone suppose that the inhabitants of West Bexington, or the inhabitants of any similar village or neighbourhood in Britain, would be able to spend money on a judicial review of a planning decision? Why would anyone suppose that those inhabitants would be willing or able to risk the costs that they might incur in challenging a council that has the taxpayer behind them?

Indeed, is not the whole point of the planning system that it is not in court and that it is a substitute for going to court? If we wanted to have all planning decisions made in court, we would have them all made in court, as some other decisions are made in court. But the point of having planning decisions not made in court is to prevent those types of court costs arising. In fact, at the moment we even have a system of appeals against planning decisions that does not involve courts, so that someone does not have to have very expensive barristers to appeal a planning decision; although people may employ planning barristers at planning appeals, they do not have to have that type of apparatus.

In other words, very considerable efforts have been made to reduce the exposure and liability of those who challenge planning decisions, and clearly if people have to rely on judicial review to contest planning decisions, they would be exposed to very considerable liability, so the first question I ask the Minister is why does she suppose that anyone would be able to mount a judicial review in these circumstances?

My second question for the Minister is even more important, and it relates directly to what my hon. Friend asked about in his intervention. Why would anyone suppose that a judicial review would be an answer to this question? As I understand the matter, the law is quite clear in this area. If someone has planning permission, they have planning permission; it is a sort of piece of property, as I understand it. Therefore, if someone were able to mount a judicial review-that is, they had the funds to do so and they were willing to undertake the liabilities associated with it-the judicial review might rule that the original decision was unreasonable. Incidentally, the judicial review certainly could not rule that the decision was ultra vires, because it is clearly within the powers of a planning authority to grant planning permission. The only thing that a judicial review could do to rule in someone's favour would be to say that the original decision was an unreasonable one.

However, even if a judicial review were to rule that the original decision was unreasonable, is there any indication, or does the Minister have any legal advice to suggest, that the decision by the judicial review would invalidate the planning permission? If the council was shown to have made an unreasonable decision in granting planning permission, that might have other consequences for the council-I do not know what those consequences would be. I am not all sure, however, that under current English law there would be any remedy for those who objected to the planning permission, because it would still be the case, as far as I can make out, that the permission itself was valid and a piece of property on the part of the person who held it.

I want to press the Minister on those two questions. First, why would anyone in her Ministry believe that judicial review is really accessible to people who are in this situation? Secondly, why does anyone in her Ministry believe that judicial review is an adequate remedy in these circumstances? Finally, I want to make a positive suggestion. There is a very straightforward way of solving this problem and I have already raised it with Ministers in correspondence. I am glad to say that my own party has now taken it up and I hope that we might achieve consensus on the suggestion that we change planning law, so that it follows common sense in this respect.

I think that it is a matter of common sense that if someone applies for something on the basis of information that an ordinary and reasonable person, including an ordinary, reasonable and expert person such as a planning officer, is misled by, any permission that that person might obtain should not be valid. It would not be an enormous change in planning law-it is certainly not as large as some other changes in planning law that I think we need to make-to arrange things so that if I make an application on the basis of drawings or other information that cannot be understood for what they are, even by professionals, then my application, if I obtain it, is invalid.

That would be a small but useful change. It would put the onus on the person making the application to go the extra mile to ensure that their accompanying drawings and other information adequately illustrated what the thing would look like in relation to things around it. The applicant would be worried that it might otherwise be alleged that their application had been in some way misleading. If they knew that the application would not be valid if it were judged that the information accompanying it had been misleading, they would want to go that extra mile to ensure that it was not misleading. Surely it would be better to build that incentive into the system.

I believe that there is a general principle in our law, constitution and political practices that if something has gone wrong, there should be a remedy. Many of my constituents in West Bexington, as well as objecting to what happened and to the state of the law, object on the grounds of unfairness because they feel that there is no remedy. I hope that the Minister is willing to acknowledge that there is a need to ensure that there is a remedy in such circumstances, that at present a remedy is not available, and that that is bound to generate a sense of unfairness of the kind that my constituents, many of whom live in West Bexington, feel.

Photo of Christopher Fraser Christopher Fraser Conservative, South West Norfolk

Mr. Bill Cash would like to make a contribution. I have cleared it with the Minister, if you are happy, Mr. Letwin.

Photo of Bill Cash Bill Cash Conservative, Stone 11:11, 7 April 2010

I am most grateful, Mr. Fraser. I had not intended to speak in this debate, but the subject matter is of enormous interest to many people throughout the country and, indeed, in my constituency. I am grateful to my right hon. Friend Mr. Letwin for securing this debate, and I look forward with interest to what the Minister has to say.

My right hon. Friend ended his remarks by saying that this House and Parliament are here for the purposes of remedy and clarification. I asked him in an intervention whether anyone had raised the issue of judicial review, and they clearly have. I am still somewhat fascinated-I await the Minister's reply-by why, in this case, if indeed the application and the information that had been provided to the planning officers and the council were misleading, and leaving aside the question of costs, to which I shall refer later, it was deemed that an application for a judicial review somehow would not have succeeded.

I would have thought that there were ample grounds for quashing an application on judicial review, and that, by definition and as a result of that, the original planning permission would be deemed invalid. There are great experts on all this, and my right hon. Friend may well have taken the most expert advice from people who would disagree with me. I have some difficulty in understanding the matter, but we shall see-perhaps the Minister can explain it.

However, I want to deal with a broader political question that arises in the context of planning applications. Having practised in this field-on a far more reduced basis in the past 26 years, for obvious reasons-I have in the past raised the issue of costs. My right hon. Friend was right in suggesting that, in matters of this kind, a small amenity group or people who are trying to protect themselves from some utterly horrific monstrosity that is about to be deposited on their doorstep should have the right to go through appropriate legal procedures; otherwise, the law is an ass or, at any rate, an extremely ineffective donkey.

I therefore proposed way back in the days of-dare I say it?-Margaret Thatcher that there ought to be an arrangement, if there are sufficient grounds in the public interest, for persons to oppose the almighty coffers of a massive company, a public authority or whatever. On a certificate of public interest-an application to a judge that there is sufficient national/public interest-a proper analysis could be made which could come only from the kind of judicial expertise in chambers such as Harcourt and Landmark. There are distinguished chambers that deal in such matters, and their people tend to be the ones who end up in the House of Lords.

Where there is a matter of principle and a degree of unfairness on the scale that my right hon. Friend the Member for West Dorset has described, a certificate of public interest warranting the use of legal aid for the amenity group would seem to be a solution of a kind. It does not deal entirely with whether the law should be clarified, which would be the best way of tackling the matter, but it would deal with circumstances in which it was impossible, simply by producing another line of legislation, to alter the fact that there is an issue of public interest about whether something was misleading in a matter of law. A certificate of public interest would be one way of dealing with the matter because, ultimately, everyone would be affected by the outcome.

I merely offer that suggestion, and I would be grateful if the Minister addressed her mind to it as well. I am not in favour of massive amounts of unnecessary legal aid. However, if there is a massive amount of financial artillery on the side of the public authority, which, after all, is paid for by the taxpayer, or on the side of some monumental company that can bulldoze its way through, the people who have a right, in the national interest, to raise a serious question of law and of fact should have the right to apply for some assistance with funds because it would be in the public interest for them to do so.

Photo of Barbara Follett Barbara Follett Minister of State (the East of England), Regional Affairs, Parliamentary Under-Secretary (the East of England), Department for Communities and Local Government 11:17, 7 April 2010

It is a pleasure to serve under your chairmanship, Mr. Fraser, for the first time and, I fear, possibly the last time, as you and I will both be leaving the House in a few days' time.

I thank and congratulate Mr. Letwin on securing this debate on a matter that is of such importance to his constituents and to my Department. I shall attempt to address the questions that he and Mr. Cash have asked, but, as this is not my area of expertise, I may at some stage have to get the Under-Secretary of State for Communities and Local Government, my hon. Friend Mr. Austin, to fill in the gaps that are left by my answer.

As the right hon. Gentleman and the hon. Gentleman know, the Government have been working for some time to facilitate and encourage an effective and efficient planning application process. I am sorry to hear that in West Dorset it appears not to have worked in the way that we would have liked. The problem is that the devil is in the detail, as the constituents of the right hon. Member for West Dorset have discovered, and individual actions on the part of the applicant and the people who receive the application are crucial. In other words, they can make the difference between extending a chalet in a reasonable fashion or building a replica of the Empire State building on a beach in an obviously inappropriate fashion.

The Government set the framework and make clear their expectations, but, in the end, it is the behaviour of those who engage in the process that determines whether the system will work well. When the system does not work, there are various kinds of redress, but let me look quickly at the information that is required.

We have tried to be clear about the information that is required to minimise unnecessary information and give local authorities the flexibility to set their own information requirements because, obviously, each area has different requirements. Our aim is that all users of the system find it straightforward, and feel that they have been treated fairly, whatever the outcome. With the chalet extension, there appears to have been multiple layers of problems. Because of the quasi-judicial nature of the planning process, I will not comment on the individual case, but in all cases we would like people to feel that they had got what they wanted, in general, and that they had the right of redress.

A valid application is one that meets the statutory requirements, and it is in the applicant's interest to provide both sufficient detail for the scheme to be fully understood by the planning officer, and sufficiently high-quality information for the officer to be assured of the type and quality of the proposed development. Applicants are expected to act honestly. If a factual error is found in any of the submitted documents, it is up to the local planning authority to decide whether that materially affects the proposed scheme or its anticipated impacts. If the authority considers that it does, it is within its rights to refuse the application or to ask the applicant to provide supplementary information. If the local planning authority identifies the error before the application has been validated or determined, it can refuse to validate or determine it until the correct information has been supplied.

If, however, the error is undetected and the planning application is subsequently approved, the planning permission will, as the hon. Member for Stone said, be at risk of a challenge by way of judicial review from anyone with sufficient interest in the decision. The right hon. Member for West Dorset pointed out that that sufficient interest has both resource and time costs, and he suggested a way forward that might solve the problem. All of us in this House are well aware of the cliff facing us. Once we come through the other side of that cliff, it will be up to the party in power-the Government of the time-to consider that suggestion. If the right hon. Gentleman's party is in power, the suggestion will obviously be considered. We also will look at it, in the spirit of trying to ensure that people get what they want out of the system. As the hon. Member for Stone said, the people pay for it, after all, and it should therefore not be something that is set up against them, but that works with them.

Photo of Bill Cash Bill Cash Conservative, Stone

The Minister suggests that in the public interest she will seriously consider my point, to ensure a degree of equality and responsibility in the system-the Equality Bill has just gone through Parliament. People affected, such as the constituents of my right hon. Friend the Member for West Dorset and others in the country, would at least then know that they were not just abandoned to the monopolistic money that is available to the great engines of enterprise and to public authorities.

Photo of Barbara Follett Barbara Follett Minister of State (the East of England), Regional Affairs, Parliamentary Under-Secretary (the East of England), Department for Communities and Local Government

It is important that the Government are seen to act on behalf of the people that we all represent, but I cannot commit a future Government of any kind to considering the matter. I do, however, understand the hon. Gentleman's point.

If, once planning permission has been granted, the subsequent development is not in accordance with the application and the permission, the local planning authority can use the available discretionary enforcement powers to rectify the situation. I do not know if that has happened in this case, and I do not wish to get too far into the details, but if the right hon. Gentleman wishes, he may intervene.

Photo of Oliver Letwin Oliver Letwin Shadow Minister without Portfolio

I can understand why the Minister does not want to dwell on this particular case, but the issue that it raises is that the building, at least in the referred respect, conformed to the permission; the problem lies in the basis upon which that permission was given.

Photo of Barbara Follett Barbara Follett Minister of State (the East of England), Regional Affairs, Parliamentary Under-Secretary (the East of England), Department for Communities and Local Government

This is a very difficult situation, and once again I am going to move away from the particular and go to the general, not to evade the issue but simply because of the need for Chinese walls. A local planning authority cannot unilaterally withdraw a permission that has been granted. It does, however, have the power to revoke or modify a permission, if that is considered expedient. That action is subject to certain limitations, and requires the authority to pay compensation, which could in this, and in any other case, cause it problems.

If a third party feels that it has cause for complaint about how a local planning authority has handled an application, a concern in relation to the conduct of members of the local authority can be directed-as I am sure both Members know-to the Standards Board for England, the district auditor or the local government ombudsman.

Photo of Oliver Letwin Oliver Letwin Shadow Minister without Portfolio

Again, I know that the Minister does not want to dwell on this particular case but, to illustrate the general point, I point out that there has indeed been an application to the local government ombudsman. The general problem lies in the fact that it is not at all clear whether whatever ruling the local government ombudsman might eventually give, in any case, would have any effect on the validity of the planning permission. We are, therefore, back to another process that does not seem to solve the problem.

T

The findings and recommendations of a Local Government Ombudsman are not mandatory and can be ignored with impunity by the public authority concerned.

Submitted by Trevor Nunn

Photo of Barbara Follett Barbara Follett Minister of State (the East of England), Regional Affairs, Parliamentary Under-Secretary (the East of England), Department for Communities and Local Government

I thank the right hon. Gentleman for that intervention. It is now even more difficult for me to comment on the case because it is going through the complaints procedure, the outcome of which we will have to await. I know that if the right hon. Gentleman is returned to this House, he will continue to pursue the matter.

It is vital that applications for planning permission are accompanied by sufficient information for the local planning authority, third parties and all others to be clear about what is proposed, and the likely impacts. To ensure that that happens, local authorities provide lists of local information requirements for planning applications, which are intended to provide certainty about the type of information required, and to ensure that that requirement is proportionate to the type and scale of the application. I realise that in this case something has gone wrong in the process. The case is, however, going through the complaints procedure, and I regret that I cannot comment any further on the matter that the right hon. Gentleman has brought to this House on behalf of his constituents.

s

The issues are deeply problematic as when the Council issues a planning notice it enters into a mortgage.

The Ombudsman will not seek to identify mortgage fraud by the Council. This is not covered by its insurance, and will based on experience identify that the Council has probably committed maladministration.

Submitted by stu Hardwicke Carruthers

Sitting suspended.