Planning

Lord Hart of Chilton Excerpts

Thursday 13th October 2011 Lords Chamber

[Lord Hart of Chilton]

My Lords, I thank my noble friend Lord Rooker for introducing this debate and for enabling us to make representations direct to the Minister without having to fill in a consultation form.

It is not surprising that the draft national policy framework has caused controversy. Planning decisions necessarily involve balancing competing objectives—policy and politics, legal issues, public and private interests and above all the making of choices which can directly affect villages, towns, cities, the countryside and those who live in them.

Such decisions are often controversial. They frequently attract passionate opposition, from professional and lay or local opinion, quite apart from organisations representing sectional interests. They are sometimes regarded as unfair or just plain wrong. In a relatively small country with finite land resources, the third highest population density in the world and the population rising fast, it could scarcely be otherwise.

Those who approach the subject, therefore, should do so carefully and in a consensual mood; not as some have done recently in an intemperate manner because that only creates antagonism and leads to the conclusion that the only thing wrong with the planning system is the people who operate it. I am not complacent, but there is no substantial body of evidence to substantiate the claim that the planning system is broken, or that it can legitimately be made a scapegoat for a lack of economic growth.

For example, in my own local area there is at least one extant permission for a large housing development in suspense; not because of problems in the planning system, but because of the financial problems of the developer. I am quite sure that this is replicated by many other examples across the country and the statistics seem to indicate that. I am not opposed in principle to the framework. I want to make it better, but today I wish to draw attention to three issues that I fear will give rise to potential legal difficulties. I must declare an interest as one who, for many happy years, used to practise in this area.

First is the framework itself. Any reduction of policy guidance from 1,300 pages of statements, guidance and correspondence down to 52 pages comes with a risk of challenge by way of judicial review. I say that because simplicity of language does not necessarily make things simple. Sometimes it is quite the opposite because quarrels over interpretation and nuance inevitably lead to delay at the very time that the human resource in each local planning authority required to give effect to this policy is at a low ebb, with cutbacks making things worse.

Policy guidance is, of course, a matter for the Secretary of State. It is a material consideration in deciding planning applications. However, like all material considerations, it is also a matter for the courts to construe if invited to do so. Of course, the weight to be placed upon each material consideration is for the decision-maker, but it is not possible to avoid the courts construing whether or not something is a material consideration.

In several respects, the framework lacks clarity. I am rather on my own here, but I very much regret the cancellation of a number of the planning policy statements, some of which were published recently, and in practice I found them exceedingly helpful. I do not believe that short, summarising sentences will adequately replace the detail contained in, say, planning policy statement 5, dealing with the historic environment and the setting of listed buildings. There are others, too. I am not saying that there is no room for cutting out repetition and out-of-date material, but much of the recent guidance has been extremely useful and I will be sorry to see it go.

In future, practitioners will refer back to the cancelled statements and track the wording. Where the wording of the new framework is unclear or open to more than one interpretation, battle and consequent delay will commence; leading, if the stakes are high, either to more and more planning appeals or more and more litigation by way of judicial review. So I believe the framework should be rescrutinised and, where necessary, added to or provided with supplementary guidance.

My second point relates to the term sustainability and the presumption in favour of sustainable development. It cannot be the Government’s intention to leave a policy vacuum while developers leap to take advantage, but I fear that it might happen. The concept of sustainability has been around since at least 1994 with the parliamentary Command Paper Sustainable Development: The UK Strategy and has given rise to considerable debate. The framework does not contain a full definition in the glossary of terms and it should. I believe that the current definition is inadequate because it contains insufficient environmental balance and concentrates on the short term.

The Government, of course, argue that if you read the document as a whole, the balance is there, but the tone is otherwise. It is almost as though one can hear the dog whistle from the Treasury. Some have said that there has been sufficient controversy—I believe this—about the current attempt at definition to make one believe that it is absolutely necessary for the draftsmen to go back to the drawing board.

Paragraph 14 of the statement raises concern because it requires planning approval to be granted in accordance with the framework “without delay” and,

“where the plan is absent, silent, indeterminate or where relevant policies are out of date”,

and applies,

“unless the adverse impacts of allowing development would significantly and demonstrably outweigh the benefits, when assessed against the policy objectives in the National Planning Policy Framework taken as a whole”.

There is a presumption in favour of sustainable development. That needs clarification in the context of other material considerations and statutory obligations imposing duties on the Secretary of State and the local planning authority which may be inconsistent with the new presumption, quite apart from the separate obligations to produce environmental impact assessments and to comply with European directives.

To a lawyer, presumptions and statutory duties, and each and all of the phrases that I have mentioned, carry with them issues of interpretation and require greater clarity and guidance to avoid litigation. For example, what is “indeterminate” or “out of date”? What is “significantly and demonstrably”, which is a new planning concept?

On the text itself, where is the presumption in favour of using brownfield land before greenfield land so that developers are prevented from seeking cheaper land in the interests of growth? Why have office developments and cultural activities disappeared from the sequential test in the section on town centres? What will be the implications of that and where does one find a long-term strategic view for the future? How can it be right when almost all major developments involve significant traffic issues? Should it be said that there should be no refusal unless the impact is severe?

Thirdly, I turn to the development plan, which I link to the presumption. Since 1947—strengthened in 1990—it has been the position that planning permission should be granted for development which is in accordance with the plan unless material considerations indicate otherwise. The plan itself has undergone serial major changes which continue under the Localism Bill. This is not the first time that the development plan has been subject to complaints of being responsible for delay and harming the economic well-being of the country. It has been a recurrent theme over the past 30 years, as has the desire to involve the public in the planning system.

Currently, however a large number of local planning authorities are consulting the public on core strategy draft documents, which constitute part one of the new local plan. In my own area, consultation lasts until 2 December this year. To maintain confidence, public involvement is of critical importance. It is, therefore, extremely alarming to see the draft statement refer to a default position whereby, in the absence of a plan or where relevant policies are said to be out of date, the presumption will be in favour of development. That cannot possibly be the right way to go because, although plans are in the process of formulation, they should be allowed to continue to a conclusion and there should be no framework presumption until that has happened. To do otherwise will undermine public confidence in the plan-making process. In any event, the plan must conform to the policy framework. As a result, further time and delay will be taken up in achieving this and, of course, no community order can come into play until it conforms to a local plan and hence the framework. In this respect localism will be in suspense.

Although I understand the natural desire to encourage economic growth and speed up the planning process, I do not believe that any action should be taken that brings the risk of increased litigation or an increase in the number of planning appeals, which is the very opposite of the coalition’s intention. So much more work is needed and it almost makes me want to go back into practice.