Kit Malthouse
Main Page: Kit Malthouse (Conservative - North West Hampshire)Neighbourhood Planning Bill (Second sitting)
Kit Malthouse ExcerptsTuesday 18th October 2016
(8 years ago)
Public Bill CommitteesRead Full debate Neighbourhood Planning Act 2017 View all Neighbourhood Planning Act 2017 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 18 October 2016 - (18 Oct 2016)
Dr Roberta Blackman-Woods (City of Durham) (Lab)
Q 6868 Do the provisions of the Bill go far enough to support groups that want to undertake a neighbourhood plan and, in particular, does the Bill do enough to support groups in disadvantaged areas? Please address both parts of the question.
Jonathan Owen: You have probably put your finger on the most important issue facing the plans, which is how to make them credible and respected in the system, so that communities engage with and buy into them. The Bill does a lot to help with that process. I have visited lots of parish councils over the last few years and they certainly have expressed concerns about how difficult it is to revise some neighbourhood plans, and about some of the advice that they are getting from principal authorities. Some elements of the Bill will help with that, but I do not think that it tackles the fundamental issue, which is how credible the neighbourhood planning process is within the planning system as a whole. We are in danger of building a lot of expectations that will not be fulfilled.
Neighbourhood plans have been enthusiastically embraced by parishes and communities, with loads of people volunteering to help with them and 400,000 people voting in elections or referendums on them. A really good plan is produced at the end of that process, but all too often those plans are set aside on appeal, or decisions by planning authorities are taken contrary to the plans. We would like to see the Bill tightened to ensure that neighbourhood plans have more influence in the process, and so that there is a clear statement from Government about what exactly the role of neighbourhood planning is in the planning process.
Ruth Reed: Funding has already been put in place for providing plans for disadvantaged areas, but local authorities are beholden to identify and bring forward local plans and we do not yet know whether the funding is sufficient to enable that.
Where you have a clearly identified community, whether it be parishes or other well-knit communities, it is very easy to put in train the process of producing a local plan. In a city area with no clear community boundaries or, necessarily, a sense of community, plans are much harder to bring forward. I am not sure that there is anything other than the intention under previous instigations to provide funding—there is nothing necessarily in the Bill—to promote the identification of those areas and to bring them forward. It would be good to see this rolling out across all communities to give them the same access to the democratic influence in their immediate area.
Kit Malthouse (North West Hampshire) (Con)
Q Dr Owen, you said that a lot of neighbourhood plans had been overturned, or that decisions on appeal have blown a hole in the neighbourhood plan—that certainly happened in my constituency—so do you think that the provisions of the Bill will iron some of that out? Do you think that the intervention point, or the point at which the plan has more weight post-inspection, is the right moment, or could it conceivably be earlier in the process?
Jonathan Owen: I think it is helpful that the Bill proposes, in effect, giving plans influence from earlier in the process. Obviously we need to see how that works in practice, but it goes some way to address some of those concerns. We probably need during the passage of the Bill to try to press for greater clarity on the exact role of the neighbourhood plan and get some statements about the importance and significance attached to them.
Kit Malthouse
Q What do you think it should be?
Jonathan Owen: I think we should have a much more plan-led system—I am sure that will not surprise anybody. Neighbourhood plans need to sit very closely with the local plan, and together they should form a robust base on which planning decisions can be taken. The problem at the moment is that some local plans are not as developed as they might be. They do not have five-year land supplies. We have neighbourhood plans coming on stream more quickly, and they have caught the problems of the tension between the various tiers. A bit more clarity in the Bill about the respective responsibilities of those tiers and plans would be helpful.
Ruth Reed: Nothing beats having in place a local plan that is robust and that has sufficient provision for housing land supply, which it can renew throughout its life. The concern is that, if neighbourhood plans are brought forward pre-referendum immediately before local plans have been adopted, it will slow down the very necessary local plans process. The problem then is about the provisions to go back and amend neighbourhood plans. The danger is that you are disillusioning local groups that have thrown a lot of voluntary time and effort into preparing those plans. They will see the local authority, which in cities can seem quite distant—less so in the smaller authorities—wading in and changing something they hold dear because they have gone through the process of having prepared it themselves.
Kit Malthouse
Q But is it the case that, wherever you pick in the lifespan of the neighbourhood plan—from inception through to referendum—by picking a point at which you create weight, you also create a window for land speculators or developers to try to get in under the wire? Do you think the point the Government have chosen for the cut-off date—post-inspection—which is where this weight occurs, is too late? Of course, all the work is done pre-inspection. As you say, part of the mission is to make the process credible so people who are embarking on a two and possibly three-year, process do not feel their time is wasted because an application comes in just before inspection.
Ruth Reed: I do not want to run down the majority of neighbourhood plans, but they are generally prepared by voluntary work, sometimes by amateurs, and until they have gone through the inspection process they are probably not rigorous. It would be difficult to indicate to decision makers, whether the local authority or the inspectorate, that they should be given significant weight, because they have not had the thorough scrutiny of the inspectors’ examination. I personally would not bring it any further forward than that. My greater concern is that they are produced without the backing of, and without being in sync with, a local plan, which would ensure coherence and strategy across a local authority to provide housing where it is needed.
Jonathan Owen: Hopefully, the requirement in the Bill to make local planning authorities provide clear assistance to parishes should help to improve the efficacy of neighbourhood plans. My colleague is right that they are produced by volunteers, but that is a strength. They are often produced by volunteers with exceptional experience. I think that the earlier in the process they have a robust position, the better.
Kit Malthouse
Q Thank you. You have both referred to the importance of the local plan. Obviously, a neighbourhood plan is hampered in the absence of an overarching local plan with a five-year land supply. That is not the fault of the area that has put the neighbourhood plan in place. Do you think there is scope in the Bill or elsewhere to create some kind of compulsion on local authorities to have a plan in place? Some of them seem to take their time.
Ruth Reed: I believe that has already been addressed by the Local Plans Expert Group. I understand that the Minister has already made some comments about that. It would be extremely desirable for there to be some mechanism to make it a statutory obligation to have a local plan in place. Presumably, that should include a robust way of reviewing the five-year land supply to ensure it continues to be effective and not out of date throughout its lifespan.
Jonathan Owen: I agree very much with that. We would also like to see some certainty about how the community infrastructure levy will operate, and perhaps a time limit for getting those schemes in place. Again, one of the things that I hope the Bill will do is incentivise local communities to take control of their places and develop neighbourhood plans, but they need to see some reward for that, and I think that a share of the community infrastructure levy is a key element. The National Association of Local Councils is pushing for that to be increased from 25% to 35% where an approved neighbourhood plan is in place, which would help incentivise and perhaps persuade some communities, including some of the more deprived ones, to see the benefits of having a plan in place.
Kit Malthouse
Q On that notion of having a neighbourhood plan and a local plan, probably the most feared organisation in my constituency is not the Inland Revenue or the police, but the Planning Inspectorate. When a neighbourhood plan that has been through a referendum is in place and a local plan has been approved and has a five-year land supply, do you believe that there should be some restrictions on the jurisdiction of the Planning Inspectorate in such circumstances?
Ruth Reed: The Planning Inspectorate has a duty to make decisions in accordance with the development plan and other material considerations, one of which is national policy. I do not think that it is pushing a particular agenda; it is merely carrying out its duties. I declare an interest: I was an inspector.
Jonathan Owen: I think we would like to see some process perhaps to review the decision of those inspectors. We are calling for a right to be heard, or a right of appeal, so that where decisions are taken contrary to a neighbourhood plan and a local plan, people may have some reference to the Secretary of State or Minister to take a final view on the thing. It is really important that we have consistency across the piece, and that communities developing neighbourhood plans are confident that when they do the work, backed up by a local plan, those plans will have real importance and significance. If they do not, people will ask, “Why bother volunteering time to do these things?” Why bother to spend a lot of time on how to accommodate more housing and more growth in your community if those considerations are set aside for all sorts of complicated legal reasons that the planning system always seems capable of throwing up?
Ruth Reed: May I make a technical point there? The inspectorate is the Secretary of State—it stands in the shoes of the Secretary of State—and the recourse is a section 288 challenge.
Kit Malthouse
Q Yes, I understand that. All MPs can, pretty much, point to inexplicable decisions by the Planning Inspectorate in their area. One of the things that alarms local communities is this notion that the decisions made seem broadly random. I guess what I am trying to fish for is whether there is some way for an area that can prove it is playing ball, is providing housing and has its plans in place, to have the planning inspector say to a developer, “Well, don’t even bother asking, because we are not going to participate”.
Ruth Reed: Every group can be an appellant and has the right to appeal to the Secretary of State, so it would be undemocratic to deny people the opportunity, whether they be housing developers or individuals. Everyone has a right to appeal.
The Chair
Q It is a very important point that Mr Malthouse is making, but may we just be clear that if there is a neighbourhood plan, a local plan and a five-year land supply, you still think that the developers should have the right to appeal to the Planning Inspectorate?
Ruth Reed: If everything is in place, the developer’s case would not have any weight.
The Chair
But do you think they should have the right to appeal?
Ruth Reed: Everyone should have the right to appeal; they do not have the right to succeed.
Kit Malthouse
Q When you say “everyone” should have the right to appeal, you do not mean the residents.
Ruth Reed: Everyone who has had a decision made—no, I am not talking about third parties. I am talking about planning refusals under section 78. Anybody who has had a refusal is allowed to appeal the decision—appellants themselves may appeal the refusal, whoever they are.
Kit Malthouse
Q I understand, but you said that was of democratic importance—
Ruth Reed: Yes—
Kit Malthouse
Q But obviously a lot of residents believe the system is one-sided, because they cannot appeal an appeal that is allowed.
Ruth Reed: If there is a material error of process, they may ask the local authority to take it up as a 288 challenge in the High Court.
Kit Malthouse
Q Okay. My final question is on neighbourhood plans and the areas, to which you alluded earlier. Do you think that neighbourhood plans could be put in place by self-defined areas?
Ruth Reed: My understanding was that you could put forward an area and have it accepted. That is, to a degree, self-defining.
Helen Hayes (Dulwich and West Norwood) (Lab)
Q May I have your views on the availability and level of resources to support communities that want to undertake neighbourhood planning? What more could be done to enable and encourage neighbourhood planning in more deprived communities and in areas of high housing need, for example, where there are voices that might not be heard in the planning process, but that might stand to benefit from the neighbourhood planning process?
Ruth Reed: I personally believe that there should be a proactive role for local authorities to instigate and identify neighbourhoods, and put in train a process. There should also be an opportunity to financially enable not only the technical aspects of planning, but—on behalf of the Royal Institute of British Architects—to provide design capacity to enable them to input well-worded design policies, and even design codes so that individual neighbourhoods can give expression to the kind of development that they would like to see, and to make it real to them. We believe that there may now be financial provision for this. One of the problems in planning is that it is a paper, two-dimensional base exercise. Sometimes you need people like architects to make it real and three-dimensional and to be able to explain what it would look like, using models or digital models.
Jonathan Owen: The pump-priming funding provided by the Government to support neighbourhood plan development has been an element that has encouraged parish councils to get involved, and it has driven neighbourhood planning of the 2,000 plans that have been produced. Parishes have led 90% of them, so they are embracing that opportunity, and I would like that to continue. The element in the Bill requiring planning authorities to identify the kind of advice that they would provide to groups and draw up neighbourhood plans is helpful. Where it falls a bit short is where it does not set out what is required or expected by the local planning authority.
We would like to see something more formal by way of either a statutory memorandum of understanding or a code of practice relating to what might be expected of the local planning authority in terms of helping with community involvement, helping them to access the principal authority website to do consultation work on it and that kind of thing, rather than just a basic entitlement. So it would be a mix of hard cash and softer things that could be provided by the planning authority. I know that would cost them money, and there was a good debate this morning about planning authority resources.
Kit Malthouse
Q Minister, you will have gathered from my line of questioning that I am concerned about protection for neighbourhood plans. I am pleased to see what is in the Bill, but part of the genesis of the Bill with the previous Minister was, I think, a case in Oakley in my constituency where an appeal was allowed five or six days before the referendum on the neighbourhood plan, notwithstanding that even at that late stage, under existing planning regulations, the plan was meant to have been taken into account. Why will this be any better?
Gavin Barwell: The honest answer is that this will not solve the problem in that very specific case, because as I understand it that appeal was determined days before the examination—
Kit Malthouse
No, before the referendum. It was post-examination.
Gavin Barwell: In that case it would help. This will make it clear in statute that some weight should be given to that emerging neighbourhood plan, because it had been through examination. So the inspector who was determining that particular appeal would be required by statute to give some weight to that emerging local plan.
What I cannot do—this is a complex area and it is important that I am entirely open with Members about the balance here—is give a guarantee. You will know that when any planning committee or inspector—or indeed I as Minister—takes decisions on planning applications, they have to look at all the material considerations. What the local plan says is an important material consideration What the relevant emerging neighbourhood plan says is an important material consideration. The views of the people who live in the area are a relevant material consideration. The national planning policy framework is a relevant consideration, and there may be other ones in particular cases. All those things have to be weighed, and I know from the cases that cross my desk every week that sometimes they are weighed in a way that would support the neighbourhood plan. You cannot guarantee that that will always be the case, but this change in the law would help in that situation because it would give some weight to an emerging plan and would ensure that, immediately a referendum is held, the plan is in place, whereas at the moment there is a period of time that you have to wait for the council to make the plan.
Kit Malthouse
Q Once this is in place, and hopefully it will go through—I do not know whether anybody has ever done any work on the consistency of decisions. Talking to colleagues, it is apparent that decisions about whether neighbourhood plans are given weight are a bit random, which is part of the problem with the rather wide definition of “giving weight.” It does not really mean anything and it seems to be at the whim of the individual inspector rather than a central policy. Once the planning inspector has had a look at the plan, it has been approved and gone through all the checking in Bristol, or wherever it goes, they should be broadly happy. That means it should be predictable that any appeal will not be allowed against the decision of what might be a different inspector, whereas in fact that is not the case. You get two different inspectors and they make different decisions.
Gavin Barwell: I would make a number of observations. I think this goes to the crux of the argument about this issue, and it is one on which we will no doubt spend a lot of time when we go through our line-by-line consideration and on Report.
Where there was a local plan that had a five-year land supply, with a neighbourhood plan beneath that, and a developer attempted a speculative application that was inconsistent with both, I would regard it as highly exceptional—you can never say “never” in planning—that such an application would be approved on appeal if it was turned down by the relevant local authority. Clearly, all the local planning policies would point against that application.
It might be useful for the hon. Gentleman to know—one of the difficulties of my job is that I never know which of my decisions have or have not been made public, so I will anonymise the place I am talking about—that I had three applications on my desk the other day, all in the same council area. The applications were affected by two different neighbourhood plans. The council concerned does not have a local plan with anything like a five-year land supply, so the presumption applies. In one case, I judged that not only was the neighbourhood plan an argument for turning down the appeal but that the application would also have eroded a key strategic gap between two settlements. There were two very strong arguments against, and in favour was the presumption for development, so I turned down the appeal.
In the other cases, although it was contrary to the neighbourhood plan, the land concerned was not green belt, prime agricultural land or anything else that you could give weight to, so I allowed the appeals on the basis of the presumption. That is what we mean when we talk about giving weight to different things. Although it is difficult for us, and I have also felt the frustration that the hon. Gentleman is expressing as a constituency MP and as a local councillor in the past—I know exactly where he is coming from—we have to recognise that the planning system is quasi-judicial. In the same way that you can take a case to a court of law and a judge will rule in a certain way and then you can appeal to the Appeal Court, which might take the same evidence and come to a different judgment, it can happen in the planning system as well. The judgment of different individuals looking at a particular case can be different.
Kit Malthouse
Q I understand that parallel, other than the fact that, obviously, in the judicial system each judgment is informed by the judgment before, whether or not it is taken by a different judge. Part of the problem with the Planning Inspectorate is that that common law aspect does not seem to take place.
Gavin Barwell: The chief executive of the Planning Inspectorate is one of the people I work with. If she were sitting here, she would say to you that one of her key objectives is to try to improve the consistency of decision making. She understands the concern.
Kit Malthouse
Q Would it be possible to find out how many appeals have been allowed—I know it is early days—in areas where there are neighbourhood plans and local plans in place?
Gavin Barwell: Where there are both?
Kit Malthouse
Yes, so we can see whether, as you say, this is exceptional or whether it is happening on a fairly regular basis.
Gavin Barwell: I will try to see whether we can find that out without disproportionate effort.
Kit Malthouse
Q That would be great. The second thing I want to ask about is the local plans. You are absolutely right about them being key. I think it is encouraging that you are going to be pushing for that in local areas. We have heard a lot of evidence today about the local plan, and the critical thing is the certainty of devising and defending a five-year land supply. There are two methods of calculation. Often you get challenged on one if you have used the other, so it might be helpful to have a single definition. I did not hear you talk, in your four things, about making five-year land supplies post-approval more defensible from a highly paid QC. Are you planning on including anything on that in the Bill?
Gavin Barwell: Those are issues more for policy than for legislation, but my hon. Friend the Member for North West Hampshire has correctly put his finger on one of the problems. It is not about not just the five-year land supply but how to objectively assess need, by which I mean how we calculate how many homes we need to build in an area. One of my key jobs over the next few months is to see whether we can find ways of taking conflict out of these processes. Can we find an objective way of calculating that need figure and identifying five-year land supply that gets rid of costly legal battles—a lot of money is currently spent on them—arguing the point with the developer who is trying to overturn a local plan? We need to have a process that attracts much more confidence, so that people know clearly where they stand.
The second issue is the one I have already alluded to, which is that if there is a change in the status of a particular site and a council therefore dips below the five-year land supply, we want to give them a window of grace where they can adjust to that, rather than them literally coming in to work one morning and finding that they are now open to speculative development, when they were not the day before.
Kit Malthouse
Q The final question from me is on whether you might consider including within the Bill a general anti-abuse clause on five-year land supply and the situation we outlined, where you can have a developer who gets permission on one site, fails to develop and challenges on another site on the basis that the five-year land supply has lapsed.
Gavin Barwell
We can certainly talk about those issues. There is a fundamental thing that we need to address in the White Paper. I am sure that one of the difficulties we will have as a Committee is that the Bill is going through Committee at the same time as we are developing some of the policy responses. I will do my best within the constraints I am under to try to keep Members informed about where we are going in policy terms and what we believe needs to be done through legislation and what can be done through changes in policy.
One of the fundamental questions that we have to apply ourselves to is that the changes that the Government have made to the planning system over the past six years have had a profound effect on the number of applications that have been granted. In the year to 30 June, our planning system in England granted permission for 277,000 homes. That is the highest figure since we started collecting the data in 2007, at the height of the boom before the great crash. The planning system in most parts of the country is granting lots of planning permissions, but there is an increasing gap—people cannot live in a planning permission—between the number of planning permissions that we are getting out of the system and the number of homes actually being built. We need to understand the cause of that gap.
My view, a few months into the job, is that there are a number of things here. Planning conditions are a factor, which is why we are trying to deal with them in the Bill, but I would not say to the Committee that they are the sole or even the dominant factor. There are issues around our utility companies and the time it takes them sometimes to put in the basic infrastructure on site that the developer needs before they start building. There are some real issues about developer behaviour, essentially.
I am interested in looking at policy vehicles that can ensure we speed up the rate at which applications get built out. One of the things that I am saying to the Home Builders Federation is, “You give me all the things that you say are slowing you up, and I will look into them. If I think there is a problem, I will deal with the problem, but once I have got through your list, I expect you to raise your game.” I am definitely interested in looking into that area, and perhaps as the Bill goes on we can talk about what the vehicles might be.
Kit Malthouse
That is encouraging. It is certainly the case that it is possible to make more money holding land and trading it than it is developing it. The other area to look at, I suggest, is developer finance, because none of them have got any balance sheets that they can use to expand their operations beyond where they are. I am grateful for the answers, Minister.
Helen Hayes
Q I have two quick questions. Can you address the concerns that Carole Reilly raised about neighbourhood forums and their lack of accountability, lack of infrastructure and resources and lack of clear identifiability to local communities? There were also issues raised—I have raised them on a number of occasions—about the intensity of resource you need genuinely to engage a diverse community in a deprived area.
Gavin Barwell: This is a real challenge and I am very open to talk to the hon. Lady, to the hon. Member for Oldham West and Royton, and to others who have an interest in this matter about how we go about doing things. As I said, there is extra funding in deprived areas that a rural parish would not get. There are also people who have expertise in this area and who can engage with groups.
There is a democratic issue; I do not think we can get around that. Clearly, if someone is in a part of the country where there are parish councils, there is an automatic accountability and legitimacy that comes from that. Although we can now have parish councils in Greater London, I think there is only one in the whole of Greater London; we do not tend to have that kind of infrastructure. So there is a challenge in making sure that the plans that come forward have that legitimacy and are genuinely owned by the whole of the community, and not by a particular group of people who have a certain interest.
If we look at the average turnout in referendums on neighbourhood plans, it is running at about a third, which is actually not that different from the kind of turnout that we would see generally in local elections. That is quite an encouraging average figure in terms of trying to ensure that there is some legitimacy—I think the hon. Lady would regard her local council as legitimate on that kind of turnout—but there is certainly more that we can look to do and I am very happy to have a dialogue with her about that.