Neighbourhood Planning Bill (First sitting)

Helen Hayes Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 18th October 2016 Public Bill Committees

[Oliver Colvile (Plymouth, Sutton and Devonport) (Con)]

I think I probably need to do so, because I still have shares in a company called Polity Communications, which gives advice to developers on how to get planning permission. I have in the past done work on opposing things with community groups as well.

[Helen Hayes (Dulwich and West Norwood) (Lab)]

I should mention that I employ a local authority council member in my parliamentary team.

[Chris Philp (Croydon South) (Con)]

I should draw colleagues’ attention to my entry in the Register of Members’ Financial Interests. I am a shareholder in a business that provides finance for construction projects.

--- Later in debate ---

[Oliver Colvile]

Q Thank you very much, gentlemen, for giving up your time to come and have a chat with us. Before I was elected to this place, I did a lot of work in the development industry, giving advice to developers on how to manage community consultations and stuff like that. A number of my clients would have said that every time the Government get involved in producing another piece of planning law, frankly, that delays everything. I would be interested in your comments.

Turning to preconditions, I am very keen to make sure that local communities are absolutely and utterly involved in the whole decision-making process and feel that they should have their say. How do you think we can ensure that the preconditions are also considered by local communities in the process?

Andrew Whitaker: I do not think there is any doubt that local communities are involved in the planning process and in the planning application process. Therefore, the discussion over the determination of the planning application should involve whether things about the planning application need to be sorted out at a later date, and therefore communities should be expressing those concerns in their representations as part of the planning process. They are represented by elected members at a local level, so I have no worries that local communities are not involved in the determination of a planning application as it proceeds through all the legal procedures. Whether to place a condition on that planning permission is part of the determination process, so whether or not as a community you agree that condition or that the condition should be pre-commencement, it is possible to raise that through the normal procedure, rather than as a discussion on the particular schedule of those conditions. That is a technical process as to whether you need the condition in the first place.

Andrew Dixon: We would very much agree with that. We do not see this as in any way reducing the extent to which local communities and local residents can be involved in the process or can have their say on particular applications. Broadly speaking, the Federation of Master Builders is positive about the provisions on conditions in the Bill because we think that they would institute an earlier conversation about which conditions are necessary, which need to be pre-commencement conditions and which do not, and which can perhaps be pre-occupation conditions, but none of that precludes those conditions being in place or those issues being tackled in some other way. It should serve to institute an earlier conversation about how best to deal with those issues.

[Helen Hayes]

Q Mr Whitaker, you mentioned a couple of times that it is best practice for conditions to be agreed in discussion between the local authority and the applicant, and I agree with you. The Bill proposes a much more formal process than that through an exchange of letters between an applicant and the local authority to agree the conditions. The mechanisms in the Bill for resolving a dispute, when that process can be resolved through an exchange of letters, are pretty blunt: the rejection of the application wholesale, and the developer is then left in the position of going to appeal. Notwithstanding what you said about the system not working so well at the moment, can you comment on whether this will help to further encourage best practice, or whether formalising the process in the way proposed in the Bill might have unintended consequences?

Andrew Whitaker: Formalising the discussion in writing—of course, that does not mean by post these days—is reasonable. It makes it very clear what people have and have not agreed to, and one can go back and check that that is the case. We would agree with the BPF’s proposal that a fast-track appeal mechanism when disagreement continues would be a good idea, because that would sort out some of the potential further delay that this provision would introduce.

In terms of whether this is a blunt sword—a blunt instrument—the whole point is that one is not supposed to hold the other party to ransom. The applicant is not going to say, “I am not going to accept any pre-commencement conditions on my planning decision at all,” because then it might be perfectly right for the local planning authority to say, “In which case we will refuse your application, on the basis that you haven’t sorted out a particular detail that you could do via condition, so long as you do it prior to commencement of your application.” Or they have to think to themselves, “Would we be happy defending that at an appeal when the only thing we are concerned about is not whether this particular issue can be dealt with via condition but whether it needs to be worded as a pre-commencement condition, rather than as a condition that can be discharged at a different stage in the development process?”

There are lots of trigger points in a development, the most obvious of which is prior to the occupation of a dwelling. You are allowed to do all the groundwork—to slab level, as we call it—so you can word conditions like that. You do not need to agree everything prior to commencement, and we believe that that discussion will be able to focus minds and, ultimately, will lead to the best practice that we all seek.

Roy Pinnock: I have just two points on that in relation to the discussion and dialogue, and the role of the planning onion—we just add another layer to it and make things more complex, rather than less complex. I think that is in part your point: do we add to the systemic complexity that we already have in this regime, which is already a series of layers? As I have already said, the BPF’s position is that there is an opportunity here to do something that is quick, clear and effective, which is where a measure that has real teeth tends to drive cultural changes.

I go back to the question on whether more legislation can really achieve anything in the planning world. Section 96A is a really good example of that. It is a very small amendment to the Town and Country Planning Act 1990 that has had a great impact on the day-to-day lives of practitioners by making things a lot easier, and it has driven a cultural change without people having to rely too heavily on legalistic points.

The second point is in relation to how we actually speed up the dialogue and use this as a tool. In part, the solution may be to have greater use of model conditions, which the Planning Inspectorate used to promote. We feel there is an opportunity for the Government to be much clearer about what their model conditions are, using working groups from industry and the government sector to say, “This should be the starting point. This should be when these kinds of conditions are imposed. We shouldn’t be asking for details of windows when you are decontaminating a site or knocking buildings down. This is the form of the conditions imposed.” By doing that we would drain away a lot of the administrative tasks that planning officers, of whom there are too few, are being required to do. They can rely on those model conditions and say, “We have done our job and have justified departures from them because we think it’s important to local people on this particular issue. We are prepared”—as Mr Whitaker said—“to justify that in front of an inspector, and we think they will reach the same decision.”

[Helen Hayes]

Q I am a member of the Select Committee on Communities and Local Government, and yesterday we heard evidence from a range of witnesses within the sector, including from the Federation of Master Builders and the Home Builders Federation, about the lack of resource and capacity in local authority planning departments. It was suggested in that evidence session that the reported overuse of pre-commencement planning conditions is a symptom of a lack of resource in planning departments, rather than a wilful misuse of pre-commencement conditions on the part of local authorities. Will you comment on your experience of the resourcing issues in local authority planning departments?

Andrew Dixon: We would certainly agree that under-resourcing is one of the major drivers behind the high level of use of planning conditions. The strong perception among our members is that planning conditions are often being used to limit the necessity of engaging in detail with a full application. Among the things that often arise from that are planning conditions that have actually been covered in the full application. An example of that would be landscaping. I have heard a number of our members say that detailed landscaping plans were included in their full application but that there did not seem to be any engagement with it, there then being a condition to bring forward those details. Under-resourcing is a major issue that causes numerous hold-ups within the system, and we think it is one of the drivers behind the excessive use of conditions.

Ross Murray: This is very profound in rural planning authorities, which are significantly under-resourced in planning. Our members around the country see that all the time. The Committee must also have a mind to the resource of the applicant and the risks within the process. We should do anything that we can to provide certainty of process after the application has been determined, and when an applicant finds that the pre-commencement conditions just do not work for him. In a rural context, these are often low-return projects, and the planning process is the highest risk point at the start of the process.

Andrew Whitaker: It is very much a chicken-and-egg situation. If local authorities do not put enough resources into determining a planning application, the temptation is—rather lazily, in my opinion—to deal with everything via condition, rather than as part of the primary application. If authorities focused their resources on what needed to be done as part of the application, they would need to condition less. That would relieve them of having to discharge conditions, which can take just as many resources as the primary application. Therefore, we think that local authorities should reassess their systems and processes to focus their limited resources into the right parts of the process.

[Chris Philp]

Q I would like to continue the line of questioning on resourcing and planning departments that Helen Hayes started. Mr Dixon, you said earlier that the lack of resourcing in planning departments was the No. 1 impediment to getting more applications. Will you confirm that that was the case?

Andrew Dixon: That was the case.

--- Later in debate ---

[Chris Philp]

Q Of course, you would still have the statutory time targets, and if you increased total resource levels, it may most directly benefit those paying more, but it might have wider benefits as well, even to applicants who were not paying the extra fees.

Angus Walker: It is possible, but in my field, it is not financial deadlines—we have time deadlines in some areas, and not in others. The ones that have a decision required, statutorily, in a certain length of time get their decisions within that time; the others probably take longer than they otherwise would have done, because more of the resources are devoted to making those decisions on time.

[Helen Hayes]

Q I have a question for Councillor Newman, and perhaps Hugh Ellis as well. Have either of you undertaken any assessment of the likely additional burden to local planning authorities from the new proposed process in the Bill? Supplementary to that, and following the discussion that was just had about the possibility of applicants paying for an enhanced level of service, might a better system be for local authorities to be able, on a transparent and consultative basis, to charge the full cost of their development management service through fees? One concern I have about the proposal that developers be able to buy in an enhanced level of service is that it is potentially quite difficult for local authorities to manage fluctuating demand, in relation to individual applications. Surely what we actually want is for local authorities to be properly resourced to do the job well for everybody, irrespective of who the applicant is.

Councillor Newman: We do want to be properly resourced anyway, as a starting point. There is a £150 million tax subsidy going in; that would absolutely be the starting point for me, but I still think that this is worth exploring, in terms of the particular recruitment issues we have, because there will never be agreement on what “properly resourced” would be. That is why I would not rule out looking at—I do not like the word “enhanced”. There is something around fast-track and something around some major developments perhaps requiring more resource than other developments, but there is a discussion to be had. One way or another, we have to get more resource into a system that is under-resourced financially, and where in many areas, as we have heard, there are pressures regarding recruitment and staff coming forward.

On the other question you asked, I know the LGA is submitting written evidence later in the week. I have not got figures in front of me to evidence the extra burden, but I think the extra work this would potentially bring round is significant. As colleagues here have said, you could see more refusals, and the whole thing could become mired in a more confrontational process that, by definition, will set planning applications back, rather than them being, where possible, resolved, sometimes in a mature manner.

Hugh Ellis: Just to reiterate, planning is a key service with vital outputs for communities; in that sense, it needs to be resourced properly, and certainly at a minimum level. It also worries me that a lot of this resource in fees would go into development management, leaving open the question of how you fund the rest of the planning service, which is, in some senses, the most important part for us—the development plan, neighbourhood planning and master planning process, and getting it right up front.

On the idea that applicants would pay a fee base for a particular service, and that that would somehow sustain the planning service, there are some real questions to answer. It could be part of the answer—that is absolutely true—but I return to the point, on section 106 and the community infrastructure levy, that there is already, in pure taxation terms, a slightly regressive element to planning: you get most in high-demand areas. If this was another measure that led to that, it would be challenging, partly because the planning system has to deal with all sorts of varied issues. The examples coming in from Cumbria really reinforce that. They need very powerful local plans; how are they to pay for them if the predominant form of income generation is fees from applications that they do not get?

[Helen Hayes]

Q I have a further question for Duncan Wilson. You mentioned concerns about archaeology. It seems there have been indications from the Government that some assurance might be provided around the question of archaeology, and we will wait to see what comes forward in that regard. Are there other areas of heritage about which you have potential concerns relating to pre-commencement planning conditions?

Duncan Wilson: Less severe ones. A number of concerns were raised in the context of the Housing and Planning Act that were perhaps more significant than in relation to this particular clause, other than for archaeology. Our concerns on brownfield land, design, massing and density are not really centre stage, as I understand, with pre-commencement conditions here.

[Kit Malthouse]

Q Obviously, the Government are trying to strengthen neighbourhood plans in the Bill. Do you think the provisions they have in there at the moment are likely to eliminate the erratic decision making from the Planning Inspectorate that we have seen with regard to neighbourhood plans?

Hugh Ellis: They go some way. The relationship between neighbourhood plans and local plans in law is still really quite problematic. There is a direction of travel question about whether or not we end up with a full coverage of neighbourhood plans and in some sense an idea that they might replace local plans. That is talked about but it is important to get that right.

There are a range of challenges. For example, the neighbourhood planning process is producing neighbourhood plans of variable coverage, predominantly in areas with the social and economic capital to prepare them. In law, neighbourhood plans escape a number of the placemaking duties that the wider planning system has applied; those on good design, for example, in law, do not apply to neighbourhood planning but do apply to local plans. I think these measures try, do they not, to fill some of those loopholes in relation to the status of an unadopted neighbourhood plan as it comes through the process, which might help solve part of that appeal process.

For us there is still a wider issue about how the system will work as a whole and the friction that is inevitably produced by neighbourhood plans coming forward in advance of a local plan; the different legal status between the two plans; and ultimately the adoption of a neighbourhood plan as part of the development plan. Part of this debate could very usefully settle what the vision is for neighbourhood planning. Is the idea that the neighbourhood plan ultimately becomes the key lodestone of the English planning process with local plans doing something else, or are local plans going to remain intact? That is a very important question going forward, because many neighbourhood plans are not dealing with the full range of placemaking issues that we need to resolve. That is perfectly fine because communities have a measure of choice about what they do with them, but in relation to good design, flood risk and climate change, for example, those issues are not well represented in the content of neighbourhood plans. So, this is a step; I am not sure it resolves the full range of legal issues that we are confronted with between neighbourhood and local plan status.