Neighbourhood Planning Bill (Second sitting)

Roberta Blackman-Woods Excerpts

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

[The Chair]

Welcome, witnesses. Will you introduce yourselves for the record?

Ruth Reed: My name is Ruth Reed. I am past president of the RIBA, I chair the RIBA planning group and I am representing the institute today.

Jonathan Owen: I am Jonathan Owen. I am chief executive of the National Association of Local Councils, which represents 10,000 parish and town councils in England.

[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.

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[Chris Philp]

Are there any additional comments? Thank you.

[Dr Blackman-Woods]

Q Can I move on to look at some of the compulsory purchase order provisions in the Bill? To what extent do you think the proposals in the Bill will free up more land for development and lead to the delivery of more homes in a speedier and more streamlined way?

Richard Asher: I think that any improvements to the compulsory purchase process are to be welcomed. The provisions in the Bill for resolving the long-standing issues about temporary possession are very important. It has long been an area of great difficulty for practitioners to try to interpret how temporary possession should be dealt with. That is a key advantage of the Bill. Some of the detail needs further work, as the wording could lead to further legal disputes or litigation. However, the principle of providing for temporary possession on broadly the same terms as permanent acquisition is very important.

There is one area of difficulty: the danger that authorities may use powers to acquire land compulsorily when it is only required on a temporary basis. That interferes with long-term prospects for development by landowners, whose development plans are quite often disrupted by compulsory purchase on a temporary basis. That needs to be considered to ensure that authorities only acquire land on a temporary basis when it is required temporarily.

Colin Cottage: I agree with that, and the Compulsory Purchase Association welcomes a more codified approach to temporary acquisition. At the moment, the large number of compulsory purchase orders do not allow for temporary possession at all. Where there is potential to introduce it through development consent orders, Transport and Works Act orders and so on, each of those particular instruments is drawn separately, so a codified approach is to be welcomed.

As Richard said, there are practical issues with temporary possession that need to be dealt with, including the interrelationships between different tenures in land, how to deal with an occupier of land when that land is taken temporarily, and what to do if buildings have to be demolished and so on. Those issues can be overcome, but they need to be looked at carefully if the Bill is to come into law and to not cause, rather than solve, problems.

Another issue that we are quite conscious of is the ability to take both temporary and permanent possession. We are of the view that a decision should be taken at the outset as to whether possession will be temporary or permanent. When a business or individual homeowner is faced with compulsory acquisition, and possession is initially taken temporarily but may ultimately become permanent, huge amounts of uncertainty are created. The person or business does not know how long the land will be taken for, and whether it will be for a temporary period or whether it will be permanent, and that makes planning difficult.

When temporary possession is taken initially, compensation is paid on the temporary basis. At the moment, because the system is not codified, there is no strict ruling about when compensation is paid, so the introduction in the Bill of advanced payments should be encouraged. But, of course, even if compensation is paid, it is on a temporary basis. If permanent possession is then taken, it may cause a problem for relocation or for funding a business move.

Richard Blyth: The concern for us, as we set out in our briefing, is that we do not think it is reasonable for the owners of private land to benefit from public investment in infrastructure. I am not a lawyer so I cannot tell whether that is in the provisions of the Bill but, from a lay point of view, that is an important point.

I was in another building in the Palace of Westminster yesterday talking about the issue of land hoarding before the Select Committee on Communities and Local Government. The Royal Town Planning Institute is not really of the view that developers are necessarily guilty of as much land hoarding as is the case. There is a difficulty in situations where the most sustainable choice for the expansion of a town requires the conversion of greenfield land into housing land. That puts the owner of that land in an extremely powerful position. It would be regrettable in that situation if those owners were, as it were, to hold the city to ransom—to require very high prices for the sale of land for conversion to residential use—not only because of ideological concern but because finding money for schools, health centres, roads and other infrastructure is increasingly difficult.

What is vested in the increase in land value coming from the grant of planning permission is an extremely important possible source for trying to deal with the difficulties of the lack of infrastructure provision in relation to housing. It may assist with what Dr Blackman-Woods started with—the understandable resistance to large-scale housing development that communities feel when they find it means there is a longer queue for the doctor, it is harder to get a primary school place and there is more congestion on the roads and railways. In answer to that question, lower land prices would be useful. I would not advocate CPOs as a way of enforcing that, but they are a useful thing to have deep in the background.

[Dr Blackman-Woods]

Q Those were very interesting responses, but they did not actually address my question, which was, are the provisions in the Bill likely to bring more land forward for development and speed up the delivery of more homes, or are they too much at the margins to make any real difference? In which case, should we have a much bigger review of CPO to see whether we can get a better system?

Richard Asher: I believe, and the Royal Institution of Chartered Surveyors has always believed, that codification of the whole of the CPO rules, which go back to 1845 and are highly complex, would be a sensible way forward. I think the simplification of the rules for CPO would be a major step forward.

A CPO, at the end of the day, is a draconian measure. It is taking people’s land without their consent in the public interest. That means there has to be a balanced approach. I think the complexity often deters people—particularly local authorities, in my experience—from using CPO powers. It also results in a number of CPOs being refused or rejected by the courts because of the complexity of the rules that surround them. There were two Law Commission reports in the early 2000s that went some way to making recommendations that, had they been implemented, would have speeded up the process.

There are also too many routes and different procedures. One of the most recent—the development consent order—is in its infancy, but it seems to be a way of delivering compulsory purchase quickly. That is to be commended. I think there should be a rationalisation of the process.

Richard Blyth: I think it is a very difficult balancing act. I commend the fact that the Government have taken on CPO as an issue to include in the Bill and the previous Act earlier this year. It is a tricky job and a long journey. One of the difficulties with this area is that if you were to propose some kind of utopian world, it might be that the perfect is the enemy of making improvements. We support the fact that the Government have made steps on a journey. Although it may not be completed now, they are very commendable steps for the time being.

Colin Cottage: My short answer to your question is no, possibly they will not. There are more underlying problems with the system. It is lengthy. It is uncertain for all parties—both for acquiring authorities and for the people affected by it. Acquiring authorities do not know how much it is going to cost them, because the process is uncertain in that regard, and people affected by compulsory acquisition do not know how much compensation they are going to get. That then causes conflict, and it does so from the outset.

The existing system is not helpful for reaching quick solutions. In fact, in many ways it encourages people to be fighting with each other from the outset. Ultimately, that increases the uncertainty, conflict and cost. That is really the issue that we have to look to address in order to give ourselves a more streamlined system. We need to try to bring dispute resolution to the forefront of the process, rather than it being very much at the back end, where it current is.

Once conflict has set in and disputes have got hard-grounded, there is the possibility of resolution through the tribunal. In itself that is an immensely costly process. Even a relatively cheap case will set a claimant client, who may be just a private individual, back a couple of hundred thousand pounds. There is an access-to-justice problem that needs to be overcome. Those costs are also a risk for acquiring authorities as they go through the process. Those are the kind of things we need to deal with to make the process more user friendly, both for acquiring authorities that are trying to bring forward housing development and for those whose land is acquired.

Tim Smith: The provisions are sensible so far as they go, but none of them tackle any single major obstacle to the delivery of land, so there is not going to be in the Bill a silver bullet for compulsory purchase to allow housing development to come forward. There is nothing in there that is hugely significant. What is on its face the most significant proposal—the statutory enactment of the no-scheme rule—is effectively what happens anyway. That is the position that has been established by case law. It is fine so far as it goes, but it does not go very far.

[John Mann]

Q Should there be additional powers to encourage house building that allow planning authorities to more easily compulsorily purchase land from within the public sector?

Richard Asher: I do not think more powers are required; we need a more streamlined process that allows the authorities to have more certainty. As Colin was saying, it is the uncertainty that is preventing a lot of authorities from using compulsory powers where they might otherwise decide to use them.

There have recently been several high-profile cases in which compulsory purchase orders have been rejected by either the Secretary of State or the courts. That is because there is not the clarity about the process that there needs to be. As Colin said, the uncertainty applies to the property owners as well. The longer the process goes on—CPO is a very lengthy process—the more uncertainty it creates for the landowners as well.

There is no silver bullet, but if we had a more streamlined system with clear milestones, that would go some way to encouraging local authorities in particular, because it is quite often local authorities that do not have the experience or capacity to deal with compulsory purchase orders. For large-scale projects such as High Speed 2, there is clearly the ability and understanding to deliver that. For smaller-scale housing projects for local authorities, there is still a fear of using compulsory purchase powers.

Richard Blyth: I commend Birmingham City Council, which has developed high-level expertise in this area and puts it to good use, and it is available to other authorities to use. The contracting out and sharing of excellence across the local authority sector makes sense, rather than a very small authority having to build up its own expertise on a specific matter, which it may not use very often.

[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.

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[The Chair]

Thank you, Minister. That sounds like rather a lot of amendments to the Bill. I have to say to the Government that it would have been far preferable to have had the amendments before the evidence session, so that our witnesses could have been questioned about them. I have had a word with the Clerk, and we will make them available as soon as possible to all Committee members. Perhaps the Opposition have something to say about this—I call the shadow Minister.

[Dr Blackman-Woods]

Q Thank you, Mr Bone. I accept absolutely what the Chair has said. Nevertheless, I am very impressed by the new Minister’s reading of the Lyons report that Labour produced a couple of years ago, because it is gradually being rolled out.

I want to get a few points of clarification from the Minister about what he has just said. I totally agree about the requirement for local authorities to produce a plan. Will he put a particular time on that? Will plans have to be in place by a particular date? Furthermore, as the Minister knows, the duty to co-operate has simply not worked in practice, so the Opposition very much welcome having a direction to a council on producing a plan, because that is something that has slowed up development. However, I will stop there and get some immediate feedback from the Minister before my follow-up.

Gavin Barwell: If I may respond first to what you said, Mr Bone, I completely understand your sentiments. Obviously, we had a significant change of Ministers in July, so we wanted to take the opportunity to ensure that we could use the Bill as a vehicle for any other changes we might want to make to legislation. We are very conscious of the experience last year—or this year—with the Housing and Planning Act 2016, when a large number of Government amendments were tabled late on in the progress of the Bill. In this Bill, we wanted to ensure that any Government amendments were tabled before Committee consideration began. In an ideal world, obviously, they would have been part of the Bill by the time it was introduced, but I think people will understand why that was not possible. We have sought to ensure that people have as much time as possible to scrutinise the amendments.

In response to the question that the hon. Member for City of Durham asked, on the timing of intervention, the existing situation is slightly confused. There is no single place in statute where the duty to have a plan is clearly identified, but the Government have previously said that they will start to intervene early next year with those authorities that have not yet put planning documents in place.

In the Bill, partly we are providing a clear statutory requirement, but we are also broadening out the ways in which we intervene. At the moment, if we were to intervene next year under the existing framework, all we can do, in essence, is to intervene where a council has not met its own timetable for the process of producing a plan. Ultimately, the recourse is that we step in and produce the plan.

I do not think that is ideal, because I hope that we would all broadly agree that we are localists and want to see local plans driven from the bottom up. My ideal solution would be for every council to do that, but where they do not we must look at options where we could get a couple of councils to work together to produce one plan, or we could look at a county council potentially having a role; that might help.

There were a couple of intakes of breath, possibly from the direction of the Chair, when I mentioned county councils.

[The Chair]

No, no; I have no views on the matter.

Gavin Barwell: Clearly, these are powers that we do not want to use unless we absolutely have to, and hopefully the existence of the powers will help to focus minds and ensure that we get plans in place. In relation to the designation regime, in terms of the speed with which authorities are taking planning decisions, since the Government took those powers to designate I think we have only had to use them so far on three occasions. So, the existence of the powers has led to authorities raising their game and that is what we hope will be the case in this regard as well.

[Dr Blackman-Woods]

I suspect that we will come back to this issue in Committee, Mr Bone—

[The Chair]

Q Order. I assume, Minister, that these will be additional clauses at the end of the Bill.

Gavin Barwell: They will be additional clauses to the Bill, indeed.

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[The Chair]

Q Fine, because obviously we would like all Members to have as much time as possible to look at them before—

Gavin Barwell: Understood. I think we are hoping to table them tomorrow.

[Dr Blackman-Woods]

Q I want to ask the Minister two further questions. We have heard from a lot of the witnesses about the difficult situation we are in with regard to funding infrastructure now. Infrastructure was in the Bill—or at least bits of stuff about the National Infrastructure Commission were in the Bill and have been taken out. I would just be interested to know whether addressing all the infrastructure issues is on the Minister’s agenda.

My second question is about the consolidation and review of CPO legislation, which also seems to be coming through from a number of witnesses as an issue that really needs to be addressed if we are serious about getting enough land into the system to deliver the homes that we need.

Gavin Barwell: I will take those two issues in turn, Mr Bone. Regarding the National Infrastructure Commission, obviously that already exists in shadow form and the Treasury has confirmed that we will make it an executive agency. A charter has been published, setting out how the commission will work. So, the Government still attach huge importance to the work that it is doing; we just came to the view that we did not need to create it as a statutory body. So that can be taken forward without the need for legislation. However, it has already produced a number of reports. Its work is ongoing. So, absolutely, our commitment to that organisation, but also to the wider piece of work on making sure this country has the infrastructure it needs to support the housing we desperately want to see, remains unchanged.

In relation to the second issue about CPO, I think in the sitting we just had it was really the latter evidence session that concentrated more on the CPO powers rather than the other issues. However, I think there was a general recognition that what is in the Bill is moving things in the right direction. There were some concerns about some points of detail.

We recognise that there is an appetite out there for a more comprehensive reform of CPO law, but our view was that at this point in time, when there is not a clear consensus about what form that comprehensive reform would take, we should concentrate on the elements that clearly are not working well at the moment and try to sort them out so the system is fairer and faster, and then look over time to see whether we can build a consensus about more radical reform.

[The Chair]

Q Just before we move on, I think Mr Evison ought to introduce himself, and Mr Thompson should also introduce himself, formally for the record.

Steve Evison: I am Steve Evison. I am deputy director for local plans and neighbourhood plans at the Department for Communities and Local Government.

Tony Thompson: Tony Thompson, DCLG planning, deputy head of development management division.