Neighbourhood Planning Bill (First sitting)

Oliver Colvile Excerpts

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

[The Chair]

Before we start hearing from the witnesses, do any Members wish to make declarations of interest?

[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.

--- Later in debate ---

[Dr Blackman-Woods]

Q Are the measures in the Bill sufficient to speed up the whole pre-commencement planning conditions issue, so that you will get quicker agreement on what needs to be done by your members and in the discharge?

Ross Murray: No, not at all. In my experience, the problem with the whole planning process is that the potato stamp comes out from the harassed officer who is dealing with the application, and the first time the applicant generally sees the conditions is when the report goes to committee and becomes public five days before committee hearing. Best practice would suggest that actually the planning officer should negotiate and discuss with the applicant pre-commencement conditions during the process of assessing the application, but in reality I do not believe that happens. So the problem is that the applicant, if he is successful when the committee has passed the application, has then got to deal with pre-commencement conditions that might not accord with section 206 of the national planning policy framework, in that they are unreasonable or whatever.

Andrew Whitaker: We actually think that it will help. We have tried to get local authorities to have a conversation with applicants about the conditions they wish to place on planning applications in order to grant permission, and it has just not happened. Good practice has not worked, so using legislation appears to be the only way we will be able to get local authorities and applicants to have a dialogue about what conditions are being imposed on the decision, which of those should rightly be pre-commencement and which should be discharged further in the development process.

Roy Pinnock: Could I put forward a middle way in that context? The BPF’s position is that it has concerns that the measures as put forward under section 100ZA(5) would not deliver a faster outcome for applicants. That is because where applicants disagree with the draft conditions, the only recourse they have is the recourse they have already got, which is ineffective given the time and cost implications of pursuing a full-blown planning appeal. So it leads us no further forward, but we have introduced a further layer of complexity to the planning onion for people to talk about.

Although I agree with Mr Whitaker’s comments and the other comments that have been made about the need for dialogue and the need to promote that dialogue—where that is done, it can lead to some quite good results—the difficulty, in particular in the context of local authority resourcing, which we might come on to later, is that those authorities simply do not have the capability, the capacity and, I stress, in a few cases, the competence to deal with it now, because they have been totally denuded of that. So the ability to actually deliver what the Government are seeking is under huge pressure.

The BPF’s proposal is that there is a specific right of appeal under section 100ZA, so that if a consent is refused or has to be appealed solely because of a failure to reach agreement in relation to pre-commencement conditions—where peace has been given a chance—it should be possible to appeal and to appeal on that point alone. That appeal is then dealt with on a constrained basis, so that, rather than a wholescale reconsideration of the application de novo, only the issues relevant to the condition itself are considered. Obviously, as you know, applications to vary existing planning conditions under section 73 of the Town and Country Planning Act 1990 are already dealt with on that basis, so there is already a clear legal framework, both in terms of statute and case law, for dealing with appeals on that narrow basis. How narrow it is—and the law confirms—depends on the nature of the condition.

My last point on that is that that appeal system should provide for a fast-track written reps appeal process. That was done for the section 106BC appeal route that was provided for under the Growth and Infrastructure Act 2013. It was very successful in terms of timescale, and there is absolutely no reason why that could not be done here, subject to resources being available within the Planning Inspectorate to deal with it. Given that it should reduce the overall burden on the inspectorate in relation to appeals, one would hope that a fast-track system would actually deliver something. We are hearing that it is required, ultimately, and sometimes it would be inevitable that it would be. The BPF’s position is that costs should sit squarely and clearly from the outset with the party that fails. The BPF’s position is simply that in using the legislation—the levers Government have—there can be changes, like section 96A and other changes that have been introduced, that drive a cultural change quickly, so that people do not constantly need to have recourse to legislation to effect what we are trying to achieve on delivery.

[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.”

--- Later in debate ---

[Rebecca Pow]

Yes; making it simpler, rather than have to go through everything.

Andrew Dixon: It could be a useful addition to the system. By and large, and perhaps we are being too optimistic, we do not think it is very likely that there will be protracted negotiations about the use of pre-commencement conditions. The aim should be for some of those conversations to be conducted fairly simply and fairly quickly. We are perhaps a bit more optimistic, particularly around smaller applications, about the scope for huge controversy in those conversations. We think the most important thing is that that conversation takes place at an early point in the process.

Roy Pinnock: Just to be clear, the BPF’s perspective is that the clause, as it stands, will not achieve anything—that is to be somewhat bleak. It will leave applicants in the position they are already in, which is that, if they do not like their consent, they can appeal and have a de novo consideration by the Planning Inspectorate, which will take some time. That is very weak as a dialogue and as a negotiating position.

[Oliver Colvile]

Q Thank you for allowing me to have a second go, Mr Bone.

I have always thought very seriously that we should make sure we have master planning taking place at a very early stage as well, which would mean the local community could get very involved in it. I am also not going to miss an opportunity to talk about ecology and about making sure that we include hedgehog superhighways in the development, too. That is important, because it is something that does not often necessarily feature in the discussion that takes place with developers. It would be a really good thing if we could encourage that, in my view, because hedgehog numbers have declined by 50% over the past 15 years.

Roy Pinnock: Planning application resources have also declined by 50%, which I think was recently noted in the Communities and Local Government Committee’s evidence session on the local plans expert group. That is perhaps unrelated.

[The Chair]

I think we will move from hedgehogs to the Minister.

--- Later in debate ---

[The Chair]

Thank you.

[Oliver Colvile]

Q Thank you, gentlemen, for coming to see us. What a delight, Councillor Newman, to have you here, for the simple reason that I was the Tory party agent in Mitcham in the 1980s when Nicholas Ridley introduced the whole local plan process in the first place. I have been very interested in following all this.

You have talked quite a bit about resources. I am pretty aware that my council in Plymouth, for which I am the Member of Parliament, has similar issues. However, we have a university and a planning school. To my mind, councils could have a much closer relationship with their planning schools and try to use some of those resources. Is that something that you have looked at?

Councillor Newman: Periodically but, to be completely frank, not enough. As the LGA, and perhaps as local councils, sometimes we do not sell the exciting career that local planning can be for many people. Many people who are part of it stay for many years and have a good career. There is more work to be done on how we market a career in the local planning department and some other roles in local government.

There are other pressures. If you are in London, it is not about marketing the career. Social workers, for example, cannot afford to live in many localities. In London, the question is whether people can afford to live in the area where they might want to come to work. It is not just a single issue. I would encourage the sort of practice you describe in Plymouth.

[Oliver Colvile]

Q It seems to my mind that students, I keep being told, find it very difficult to make ends meet. They have tuition fee loans and all those kinds of things. It would actually be a way of trying to get them to have some practical experience in the planning world. Similarly, local archaeology people come to see me, some of whom are doing things at the university. Is that a resource that you might think about using and looking at?

Duncan Wilson: There are certainly supply-side issues with archaeology over the whole country in relation not just to local authority advice, but to the large number of archaeologists we will need to fulfil the demand for archaeology arising from major infrastructure projects. It would be an oversimplification to say that that is just an aggregate supply of archaeologists. The higher education sector is not necessarily producing archaeologists with exactly the right kind of skills to deal with the different kinds of problems that archaeology in Britain throws up. More fieldwork is rather an important issue in that context.

[The Chair]

I am sorry to interrupt, Mr Colvile, but I am very conscious that we have limited time and three people want to ask questions. I will bring in John Mann, because I know he will be brief.