Neighbourhood Planning Bill (Second sitting)

Lord Barwell Excerpts

Committee Debate: 2nd sitting: House of Commons
Tuesday 18th October 2016 Public Bill Committees

[Dr Blackman-Woods]

Q That is interesting in terms of good practice. Are there any other countries that do CPO better than we do and that we could look at?

Colin Cottage: The American system has some merits. At the CPA, we are looking at that at the moment. It is not perfect in all regards—no system is—but in the States, for example, projects are funded up front in a way that they are not in this country. That means that there are no public inquiries; the scheme just goes ahead, so people know they will be affected by it. Then there is an independent assessment of value in advance. Value is independently assessed, and that then forms the basis of an offer to the landowner. The landowner can challenge that, but there are cost implications if they do.

We had a chap by the name of Douglas Hummel, who came over from the International Right of Way Association, the American body that oversees compulsory purchase best practice. The results there are that in the order of 81% of land value compensation assessments are agreed immediately, and another 4% settle after a short period of time. Only the remaining 15% are then contested for any lengthy period of time. That is a much higher strike rate than we have in this country.

I am not necessarily saying that the American system is exactly the way to go, but there are examples of early dispute resolution. That is what it is in form: an independent valuation. In the UK system, the claimant puts forward his claim, and that is then contested by an acquiring authority, and you have a creation of conflict. An independent third-party valuation up front should really be considered quite carefully, and could lead to a reduction in conflict.

Richard Blyth: We are not necessarily going to look for places that do CPO better, because I think everyone would agree that it is better never to have any, but Germany has a land reorganisation system, where all the private landowners party to an urban extension of a town are put into a readjustment system, and the local authority then provides the infrastructure out of the increase in land value. It is then reapportioned.

That is quite useful. From my experience when I was in practice, it is very difficult if you are the landowner who gets the bit of land that will be the public open space, or the balancing pond or something, in a wider scheme. It can seem very unfair, but this kind of approach not only makes sure that all the infrastructure gets put in, it evens out the benefits across a clutch of landowners more fairly, so the first one does not get all the benefit. That is certainly impressive, in terms of how to ensure that infrastructure is provided in advance, so house builders can just get on and build the houses within the plots that are then made available, and are often of very different sizes.

[The Minister for Housing and Planning (Gavin Barwell)]

Q I want to probe a little bit more on the issue of temporary possession. You expressed a concern in relation to uncertainty about the length of time that temporary possession might last. In the Bill as drafted, acquiring authorities will have to specify the total period of time for which they are taking temporary possession, and owners—freeholders and leaseholders—can serve a countering notice placing limits on that. How are you suggesting the Bill needs to be developed further to give even greater certainty? We have tried to address that in the drafting.

Colin Cottage: There are two issues. The first is on our reading of the Bill. There is still the possibility of taking both temporary and permanent possession, and that will create uncertainty for people affected by it, because, even if there is a period of temporary possession, it may be converted at a future date to permanent possession and they will have no control over that.

Secondly, we feel that, for freehold owners, six years is too long. Three years as a maximum is better. Notwithstanding that, the ability to serve counter-notices is correct and encouraging to development. Six years is quite a long period. If a business is dispossessed of its property for six years, that is effectively almost as good as a permanent dispossession because if you are away from your premises for six years, you will have restarted and be trading somewhere else. With that restriction, we encourage and welcome the proposal on the table.

[Gavin Barwell]

Q Can I just clarify one further point? The concern about both temporary and permanent CPOs is that one might be used and then another, which could create uncertainty over time. You might have a site where an authority needed permanent possession of part of it because it wanted to put, say, a goods yard on the second section and wanted part-temporary and part-permanent. Is your point about starting with one and then converting to the other?

Colin Cottage: That is correct.

On the other point of clarification, we do not have an issue when there is temporary possession of land, but a permanent acquisition of rights. That can work perfectly well also, so it is not an issue. The point is just when the same piece of land may be subject to temporary and then permanent. We think it should be one or the other.

[Gavin Barwell]

Thank you.

[The Chair]

The point of the evidence sessions today is to inform Members better for when they go through the Bill clause by clause. Now is your opportunity to leave the Committee with one thought, which Members may like to deliberate on as they progress through the Bill.

Richard Blyth: On the issue of resources for local planning authorities, the Bill has provisions relating to the support of neighbourhood planning by local planning authorities. We have completed a survey of local planning authorities in north-west England that shows that between 2010 and 2015 there was a fall of 37% in planning policy staff. These are the staff who tend to get asked not only to provide the support for neighbourhood plans, but are under a deadline of completing a local plan by the end of March 2017.

I am a bit concerned that legislation is being used in a way that may not be possible to support in terms of the resources available to local planning authorities. Plan making is not supported by any fee income whatever. Planning applications have a certain element of cost recovery, but plan making is entirely a charge on the central resources of the local authorities, which—particularly unitary authorities—are hugely stretched by requirements relating to education and social care. That is what I would like the Committee to bear in mind when considering neighbourhood plan resourcing.

Richard Asher: Clause 23 proposes to repeal part 4 of the Land Compensation Act 1961. We would oppose that repeal. Part 4 allows a claimant to make a further application up to 10 years after the land acquisition when the use of that land has changed and there has been alternative planning permission or use that was not contemplated when the land was acquired. The circumstances in which that occurs are usually when an acquiring authority has not used the land for the purpose for which it was compulsorily purchased and often there has been a change in planning policy that has allowed consent for alternative uses of the site. In those very specific circumstances, it seems appropriate for a claimant to make an application.

I think this has been brought forward because it has been used very rarely. I am not a lawyer, but the advice I have had from lawyers is that the way part 4 is worded makes it difficult for claimants to make a claim. My appeal would be for that not to be repealed but to be rewritten.

Colin Cottage: I am going to choose as my part of the Bill clause 22 and in particular proposed new section 6D(2) to (4). The concept of simplifying what is understood to be the scheme is absolutely the correct one. In a certain way, it has happened through the courts over recent years and what needs to be guarded against is complicating instead of simplifying the principle.

It is the CPA’s view that proposed new section 6D(2) to (4) is not necessary at all. The reason for that is that everything within those sections could be achieved under proposed new section 6E, where an acquiring authority can advance evidence as to the nature of a larger scheme. All that 6D(2) to (4) does is make specific reference to exactly the kind of arguments that could be put forward in 6E. When you start looking at some of the wording—for example, 6C, about relevant transport projects—rather than simplifying, it all looks horribly complicated and possibly capable of misinterpretation. That could lead to unfairness and certainly could lead to conflict in the courts, so the thing I would like Members to go away with and think about is, is 6D(2) to (4) absolutely necessary? We do not think it is.

Tim Smith: May I offer the Committee a second vote in favour of more resources for local planning authorities, but perhaps with a slightly different point of emphasis that comes from the Bill itself? The advantage of that is that it is very much in accord with the interests of both the public and private sector lawyers that the Law Society represents.

Successive proposals to change legislation have all brought about additional burdens on local planning authorities without a consequent increase in the resourcing available to them. To draw that point to one of the proposals in the Bill that is about conditions, the assumption that underlies the legislative provisions, as explained by the consultation issued by the Department for Communities and Local Government, is that there is an ongoing dialogue between applicant and planning officer about the planning application, including the suite of conditions that will accompany it if the proposal is deemed to be capable of being improved. Very often, that is not the case.

The sheer burden on planning authorities and planning officers to discharge the number of applications they have to deal with means that very little dialogue goes on between applicant and planning authority. I hope it comes across that I say that not critically of planning officers. They have an awful lot to discharge, and to expect that the solution to this problem will be a discussion between applicant and planning officer to approve pre-commencement conditions before they are imposed is to assume that there is plenty of time available to planning officers to engage in that discussion. We simply do not believe that that is the case. I give a second vote in support of what Mr Blyth said, but maybe for a slightly different reason.

--- Later in debate ---

[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.