Planning Permissions and Unauthorised Developments

Gareth Bacon Excerpts

Wednesday 26th January 2022 Commons Chamber

[Gareth Bacon (Orpington) (Con)]

Speculation about how long I might speak for is rife in the Tea Room. I have been informed by the Government Whips Office that I could take almost three hours with my speech. Tempting though that is, I reassure the House that I will not detain it for as long as that—although I acknowledge that that is a shame.

This debate is a follow-up to the ten-minute rule Bill that I introduced to the House last autumn, which sought to make unauthorised development an offence and to prohibit retrospective planning applications. Sadly, there was insufficient parliamentary time for the Bill to proceed, but the problems with planning enforcements remain.

What is the problem? Rogue developers regularly exploit loopholes in our planning system to build unauthorised developments without planning permission. Sadly, they are getting away with it. Under the current planning rules, development without permission is generally not a criminal offence, whereas failing to comply with enforcement action is.

Local authorities have a range of enforcement powers in their arsenals. Enforcement notices can be issued and, at the extreme end, require demolition and restoration. If they are upheld, there can be a fine of up to £20,000 on summary conviction or an unlimited fine on indictment under the Town and Country Planning Act 1990. Other measures, such as contravention or stop notices, can be used depending on the circumstances.

Elements of the Localism Act 2011 made changes to the planning system, notably by removing an applicant’s right to use two separate defences in a single case. In 2015, the then Minister, my right hon. Friend the Member for Great Yarmouth (Brandon Lewis), outlined a policy to make intentional unauthorised development a material consideration for all applications, including retrospective ones.

The Police, Crime, Sentencing and Courts Bill proposes a new offence for anyone who resides, or intends to reside, on land without permission and has caused, or is likely to cause, damage. The proposals are welcome, but the enforcement action I have outlined comes at a high cost to local authorities. It can take years to restore some sites because of the lengthy appeal processes involved. In any event, many rogue developers are eventually granted retrospective planning permission.

The planning portal goes as far as to state that in respect of breaches, local authorities

“often permit a retrospective application where planning permission has not been sought.”

Even when local authorities do not, the unauthorised development is often at such an advanced stage that the site is never fully restored. When such unauthorised developments have taken place on green-belt land or open land, they can lead to significant and permanent damage to areas that our planning system is supposed to protect.

That means a developer could show absolutely no regard for the legal process yet ultimately still be rewarded.

[Bob Stewart (Beckenham) (Con)]

I did not intend to intervene but thank my hon. Friend and constituency neighbour for allowing me to do so. Not just developers but private individuals take liberties in this matter, certainly in my constituency of Beckenham.

[Gareth Bacon]

My right hon. and gallant Friend is, of course, completely correct.

The consequence of the situation I have described is that many rogue developers bypass our planning system, gambling that enforcement action against them will be too slow and that, once built, their unauthorised development will be approved regardless. This is infuriating for the local residents who have to live alongside the developments. It is also frustrating for those who have played by the rules and sought planning permission themselves only to see others bypass the process.

[Jonathan Gullis (Stoke-on-Trent North) (Con)]

My hon. Friend is making a fantastic speech. In Stoke-on-Trent North, Kidsgrove and Talke, Staffordshire Waste Recycling Centre now has to apply for retrospective planning permission at its McGuinness scrap yard site, where the company is digging up an old landfill site, causing a terrible stink across the north Staffordshire area. Nearby, people are suffering because of Walley’s Quarry in the neighbouring constituency of Newcastle-under-Lyme. Does my hon. Friend agree that not just certain developers but companies are taking liberties and creating distress for the surrounding residents?

[Gareth Bacon]

I agree entirely with my hon. Friend. That is precisely the sort of abuse of the system that I ask the Government to address. Such abuses have a material and long-lasting impact on local people. When people are seen to get away with it, that just encourages more of the same.

[Chris Grayling (Epsom and Ewell) (Con)]

I might, if my hon. Friend will allow me, seek to catch the Chair’s eye momentarily after his remarks. As he moves forward with this and as he, I hope, encourages the Government to take up his proposals, could he ensure that they include commercial operations? I have experience in my constituency; it is not just residential developers doing this, but commercial developers and businesses. I echo the points that have been made, but that must be a part of what he does.

[Gareth Bacon]

I thank my right hon. Friend for the intervention and I agree entirely. The point is very well made and I can see the Minister on the Treasury Bench paying close attention. It is a subject that he and I have discussed on many occasions, and I look forward to hearing what he says in a moment.

The impact of all of this goes beyond local areas, as local authorities that pursue enforcement action against rogue developers have to spend significant sums of taxpayers’ cash on legal battles. When I introduced my Bill back in the autumn, I referred at length to a case in my constituency as an example of what can occur. That case is now subject to consideration by the courts, so I will not go into that detail again, save to make the observation that it has taken more than a year to get to this point and the end is still not in sight. However, it does not impact just my constituency—it is a national problem. Such incidents, as I have heard from my hon. Friends, are widespread.

In another example, in 2018, an unauthorised development was set up around Chelmsford on a Saturday morning, meaning that the planning enforcement team were able to visit the site only on the following Monday, by which time caravans, a digger and lorries carrying materials had all been brought on to the site in a pre-planned and co-ordinated attempt to build as much as possible so that it would become unviable for the council to dismantle the works. Neither of those incidents are easily resolvable. My hon. Friend the Member for Mole Valley (Sir Paul Beresford) has spoken in this House about procedural battles on development sites in Guildford and Leatherhead that have lasted between 14 and 18 years. Green belt land has been acquired and built over without planning permission in both locations.

So what solutions might there be? When I introduced my ten-minute rule Bill, I stated that I believed that the solution lay in legislative change to move unauthorised developments without permission from being a civil offence to being a criminal offence. I made the argument that that would prevent rogue developers from appealing enforcement action and block retrospective planning permission automatically. I stated that any change should not aim to remove certain permitted development rights for private households. Nor should it attempt to single out encampments by certain specific communities. Any fair planning system should recognise that developments could unintentionally stray from the approved plans when constructed. In order to avoid the danger of people who have inadvertently breached planning regulations being criminalised, for example, in cases where an extension is slightly too large or where someone implemented something erroneously, believing that they had permitted development rights, the Bill I drafted distinguished between more minor, accidental planning permission breaches, and egregious breaches where someone repeatedly attempted to bypass the planning system, or where the breach occurred on protected land such as the green belt. In such instances, the rules need to be flexible enough to consider the circumstances of the breach. However, I believe this should be balanced against the need to ensure the system is strong enough to close the loophole that rogue developers are currently exploiting.

There are a range of potential solutions. As I have stated, my solution was to change the law to make unauthorised development a criminal offence. An alternative might be to reform the pre-existing enforcement provisions, for example, by rapidly speeding up the process by which planning enforcement can take place, and perhaps vastly increasing the level of fines applicable and limiting the timescales and grounds for appeal.

Whatever solution we opt for, the case for change is substantial. I have seen at first hand local authorities’ difficulties in deterring and stopping rogue developers from building without permission. I have seen the damage that that can cause. I have witnessed the frustration of local residents who find their local areas threatened and I have heard from local councillors and their officers about the long drawn-out, inefficient and very expensive processes they are obliged to follow in attempting to deal with the problem.

We can strengthen councils’ ability to act, protect the green belt and ensure that communities get their say on local developments by changing the law. When the planning Bill comes to the House, it will be a golden opportunity to take steps to protect local residents, stamp out these abuses of the planning process and right a very clear wrong. I urge the Government to pay heed to the issue. I very much look forward to hearing the comments of my right hon. Friend the Minister.

--- Later in debate ---

[Christopher Pincher]

I am never knowingly under-lobbied by my hon. Friend, and I salute not only his indefatigability in campaigning on this issue, but the elasticity with which he has shoehorned it into this particular debate. Let me assure him that the matter he raises is important, and we do want to address his concerns effectively when we bring forward our planning reform. I am sure we will be talking further with him about those matters.

I have said that councils can step in to suspend works and enforcement notices can be served, but if a council needs to go nuclear, it can apply for a planning injunction via a court order that would restrain any actual or expected breach of planning controls. The outcome of this sort of process can lead to jail time, assets being seized and fines being handed down.

[Gareth Bacon]

The Minister is completely correct in what he has just outlined. The problem, however, is that this all takes time. It takes time to get a court appearance and it takes time for the injunction to be issued. Injunctions can very often be ignored, and further legal action has to take place to issue stop notices or other such action. All the while, development continues and the landscape continues to get scarred, local residents continue to get very anxious, and more time and money is being spent by the council. Would the Minister acknowledge that this is in fact part of the problem, and would he concede that this could be looked at in future, potentially as part of the planning Bill when it comes to the House?

[Christopher Pincher]

I appreciate and recognise my hon. Friend’s concern. We do want to ensure that the innocent are not caught up in a regime that pursues the guilty, but we also want to ensure that the system is more speedy and has much greater deterrent effects on those who attempt to gamble with the law, those who attempt to bend it and, indeed, those who choose to break it.

We all recognise that the reason why we need the important debate my hon. Friend has brought to the House today is that we believe—we genuinely believe—that there is more that we can do, and there is more that we shall do. As everyone in the House will appreciate, we are committed to improving our planning system and making it one that delivers better outcomes for people in all parts of the country. It is going to be the bedrock of one of our principal missions, which is to level up the United Kingdom and to help revive and regenerate those areas that have long felt forgotten by politicians of all stripes in Westminster. In our constituencies, however affluent they may be on the face of it, we all have areas of our constituency where there is deprivation and where residents feel left behind, and we have to fix that.

When it comes to pulling the handbrake on unauthorised developments in their areas, we want to make it even easier for local planning authorities to step in and make sure that retrospective planning permission is not exploited by those bent on gaming the system. Let me be clear: retrospective applications are only for individuals or businesses that have made a genuine mistake. As my hon. Friend alluded to, the enforcement process needs to work better. We make that happen by closing loopholes, and strengthening the existing powers and penalties at our disposal.

As we modernise our planning system in England, we plan to engage with communities and key stakeholders throughout the planning process. Our ambition is to ensure that the outdated system, which is essentially a relic of the post-war period, is now made fit for the 21st century, with proper digitisation of applications so that residents can easily see the proposed development in their area at the touch of their smartphone screen. As my hon. Friend and others have said, we have all seen and read about egregious examples of people bending the rules on retrospective planning applications. My hon. Friend mentioned the situation of the caravan park in Chelmsford, and my right hon. Friend the Member for Epsom and Ewell mentioned the situation faced by his constituents in Epsom. We see such challenges from individuals and commercial organisations up and down the country.

The simple idea behind retrospective applications is that they give people who have failed to seek planning permission prior to building a structure a fair chance to get the necessary approvals.