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Planning Applications

Volume 164: debated on Thursday 21 December 1989

The text on this page has been created from Hansard archive content, it may contain typographical errors.

2.30 pm

At this time of Christmas, it would be churlish of me to introduce a note of discord into the House. However, it is right to ask what is the point of passing laws in the House or in the other place if the House is unable to enforce them. I refer in particular to the planning legislation. It illustrates my point well. We pass more and more laws here and find it increasingly difficult to have them enforced.

Much of our time in the House is spent debating in detail, for many hours, points of law that we believe will be enforced in the highest courts of the land once we have passed them. I am afraid that I must tell the House that that is not the case with our planning legislation.

What could be a more sensitive issue in this small island than the ability to control land use? That has been recognised by successive Acts of Parliament and town and country planning legislation. It is true that there are armouries of controls. We have statistics and population forecasts. We have structure plans and local plans. We have Government planning inspectors, applications guidelines and procedures. We have planning committees throughout the length and breadth of the country. Planners form an enormous profession. There are planning advisers—usually local government planners who have retired. There are degrees in planning laws. There is a huge industry to control and manage planning.

I wish to speak about what happens if one cocks a snook, to coin a phrase, at the planning system. If one decides to go ahead regardless of all the planning regulations, laws and procedures, what will happen? My hon. Friend the Member for Ealing, Acton (Sir G. Young) would have been here if he had not had to chair a meeting on urban problems. His interest in planning and environment is well known. When asked what would happen if one defied the planning system in his constituency, he said that very little would happen and there was not even a planning enforcement officer in Acton. He wondered why some developer with a little speculation had not built a skyscraper in his constituency. He doubted very much that anyone would have stopped him because there is no one to enforce the law.

My hon. Friend the Member for Wealden (Sir G. Johnson Smith) would also have been here but for the pressure of business in his constituency. He echoes the same complaint—that enforcement in his constituency is not effective. I am sure that the Minister recognises that the law is not working. Members of the public do not seek planning permission but go ahead and find little opposition.

In my constituency in south Devon, in the area of South Hams, houses and extensions have been built without planning permission. Barns have been converted and factories and shops built but not in accordance with the detailed plans and regulations. Recreation and leisure facilities have been built, seemingly without anyone knowing that planning permission had not been obtained. Raw sewage has been discharged into our beautiful rivers without planning consent.

I am sure that the nation is under the mistaken illusion that when such things happen the whole planning contraption springs into action and the local authority, poised like a greyhound, chases out those who defy the law. That is not the case. As my hon. Friend the Minister would expect of me, I have gone into great detail on what happens at the rock face when planning laws are defied.

South Hams council has a department specifically geared to deal with people who defy the law. That does it great credit. It has all the machinery ready to pounce. But does the House realise exactly what takes place? I have a letter from David Incoll, solicitor to the council, who says:
"It is a legal requirement that"
to stop somebody doing something which he should not do and for which he needs planning permission
"an Enforcement Notice is served upon everyone with a legal interest in the property or land."
That means not only the owner of the land, but everyone with an interest, however remote, in that land. The enforcement notice must be served on all those with any legal interest.

The first action of the South Hams district council or any other council which has enforcement officers and a legal department is to serve a requisition for information notice on people with a legal interest in the land. The problem is that the council faces great problems in having that notice for information served. It must be served by recorded delivery and its service can be avoided, as Mr. Incoll says,
"by not accepting or collecting the letter."
Therefore, the initial inquiry can be prevented by the person who is addressed refusing to accept the letter which is only a request for information about who has an interest in the land.

As the Minister will know, many councils, including South Hams, have dramatically cut back staff and expenditure to keep to the Government's guidelines on local government expenditure. South Hams planners have kept as far as possible a powerful department, but many local authorities do not have one. Even before an enforcement notice is delivered or sent, the council must send out staff to find out who has an interest in the land.

After 21 days and no reply to the request for information, council staff go out and find out who has an interest in the land. The enforcement notice must then be served on everyone with an interest in the land, not just the owner. It may take many months to serve the enforcement order and, what is worse, many months for it to be enforced. Even then the presumed owner may deny any interest, thus necessitating further inquiries.

Mr. Incoll gives as an example a current case in which he received instructions in November 1988 but has yet to ascertain the ownership, despite the use of private investigators. The Minister will appreciate that the cost in terms of staff time and money on that particular case is considerable and that there are hundreds of other such cases.

I need not trouble the House now about various legal requirements, but if the enforcement notice is not served on everyone with a legal interest the High Court can negative the enforcement notice and charge the local authority with costs for proceeding with it without serving it on all those who should have been served with it.

I have got only halfway through the procedure and the House will appreciate how complicated it is. I should pursue this because Hansard should have on record how complicated these matters are. Moreover, if the Minister is not fully briefed, he can be briefed now.

Once the legal interest has been ascertained the enforcement notice can be served and will come into effect in not less than 28 days. A notice has to set out a period for compliance. However, if an appeal is made to the Department of the Environment, the effect of the notice is suspended.

Let me give an example. If someone starts to build a factory or a bungalow without planning consent, notices must be served on all the people who have an interest in the land to tell them to stop building. If one cannot find out who they are, one cannot serve an enforcement notice. If one finds them and serves notice, that may take many months, and in the meantime the builders go on building. The council can attempt to serve a stop notice on the builders, but if the builder appeals to the High Court the notice is cast aside, and the builder can go on building. That has been happening throughout the country.

As Mr. Incoll says, the risks involved in serving a stop notice is that compensation is payable if the notice is successfully challenged on appeal for any reason other than that planning permission should have been granted.

I hope that I have given sufficient details to show how complicated the procedure is. Very few people understand it—I am sure that the Minister is one of those who do—and, as a result, it does not work.

To enforce the present procedure one needs a vast battery of staff, and one has to rely on the good will and good sense of the British people not to build on our green fields without planning consent, but, if they choose to do so the Minister could and would do little to stop them. Local authorities cannot do what the public want, and the law has become an ass when it tries to enforce stop notices and the planning regulations.

The public criticise the planners every week, local newpapers carry articles chastising the planners for failing to stop schemes, and local politicians are heavily criticised and lose their credibility. Confidence in the planning regime is being destroyed.

Fortunately, Mr. Carnwath QC has come to the rescue like a knight on a white charger and has produced a report in which he said that things are as bad as I say they are, and that the Government must take action. Surprise, surprise, the Government have done nothing. That is odd because one would have thought that they would put something in the Environment Protection Bill that they have just published. Of course we need to do something about dogs mess and litter. That is important, but what about the land? Why are there no enforcement clauses in the new Bill? Unless the Minister puts one in or introduces other legislation by the end of the Session, I warn him that the planning group which consists of some 90 Back-Bench Conservative Members mostly from the south of the country has agreed to put an amendment in the Bill on Report. That will help the Government to do something about a problem that the Minister says needs to be tackled.

It is all very well to clear up litter and dog mess, but it is more important not to have our green and pleasant land covered with unauthorised developments.

The problem has been caused in this place, because we have not passed legislation that is effective and efficient. A clumsy, inefficient and protracted state of affairs exists.

The public have a right to expect something from the Government, and if the Minister will not commit himself today a question mark will be raised over the Government's green policy and programme. There is no point in dealing with trivia if the major problem is not tackled.

The Government have robustly stated the importance of local plans. They confirm that the boundaries laid down in them are near sacrosanct. Successive Secretaries of State have said that they must not be breached on appeal by planning inspectors. Only 10 per cent. of the nation has properly consitituted local plans. I am glad to say that South Hams district council, as one would expect, has properly constituted plans. They are current, excellent, well prepared, there has been adequate local consultation on them and they are in place. The problem is that developers are waiting like sharks for one Government inspector to breach the boundary of the development area. South Hams is in great danger. We have more areas of outstanding natural beauty, of great landscape value, protected coastline, heritage coastline, conservation areas and national park than any other area. We could not have more designation designed to protect the environment from development outside the local plan, but we have a problem with twin tracking.

Twin tracking is nothing to do with British Rail having a second line or being privatised. It is a way in which developers may bounce the system by putting in two identical planning applications at the same time. One runs through to the local authority which should have come to a decision within eight weeks. Often, however, the application is too complicated to decide on quickly, so the details have to be discussed with the developer. After eight weeks, the second application jumps straight to the planning inspector. The developers try to bounce the local planning committee and get the Government to decide something which should be a local authority planning matter.

We should also consider the time and cost to which the local authority is put when it has to deal with two planning applications, one for its own planning committee and one for the Minister. The Minister should deal with this matter seriously. He probably knows of a written answer I received on 5 December which said that planning appeals rose from 19,856 in 1986–87 to 22,482 in 1987–88 and to 28,659 in 1988–89, representing increases over the previous year of 11.3, 13.2 and 27.4 per cent. respectively. Planning appeals have increased by 40 per cent. during the past three years. Why? Because of twin tracking. Regardless of cost, big developers will try to speed things up and put pressure on the Government and local authorities to make a decision that they might not want to make.

I shall give my hon. Friend an example of what I mean. It is unfortunate that large developers such as George Wimpey should try to buck the system. Two applications for major developments in South Hams are pending. One is in Wembury, which is an area of great landscape value, outstanding natural beauty and a conservation area. That company has put in an application to build 16 detached bungalows right outside the development area. I hope that my hon. Friend will say that he will robustly encourage inspectors not to breach local plans and the development area. In a letter, the chairman of George Wimpey told me:
"Whilst I appreciate the concerns expressed in your letter it is the opinion of the management within Wimpey Homes and their planning advisers that the site in question will make a sensible rounding off of the present village envelope and that the proposed development would not detract from the high quality environment."
As if that was not enough, George Wimpey put in an application on 20 December to build 193 houses in the South Brent area, which is on the edge of the Dartmoor national park.

My hon. Friend the Minister should say something about the importance of local plans, how they are sacrosanct and how he would, through his planning inspectors, resist any attempt to breach them as George Wimpey would wish him to do.

I have spoken for 20 minutes about two aspects of the planning laws that are in disarray. We need to hear from the Minister today that the Government will be robust. Whenever I see my hon. Friend on the Front Bench, I am encouraged because I know that he is a man after my own heart. He will agree that preserving and keeping the environment is uppermost in our minds. I look forward to hearing what he has to say.

2.49 pm

The Parliamentary Under-Secretary of State for the Environment
(Mr. Christopher Chope)

As always, I am grateful to my hon. Friend the Member for South Hams (Mr. Steen) for his contribution to the debate about planning. He has made his contribution with his customary vigour and he was as persuasive as ever.

I must state at the outset that while last year I had more specific responsibilities for planning, my responsibilities this year have more to do with housing and local government finance. However, that does not mean that I have not had the opportunity to discuss these isues with my hon. Friend as frequently as I did—

In one sense perhaps the wrong Minister is present. I am here because the Minister with specific responsibility for these matters, my hon. Friend the Member for Lewisham, East (Mr. Moynihan), has a problem with his teeth. I am sure that my hon. Friend the Member for South Hams will excuse his absence from the Chamber today. No doubt my hon. Friend the Member for Lewisham, East will read the report of our debate with interest. Needless to say, I have been well briefed to respond to my hon. Friend's concerns.

My hon. Friend has drawn attention to the difficulties experienced by his local planning authority—South Hams district council—particularly in connection with enforcement. The Government recognise that there are difficulties with enforcement and that those difficulties are not unique to south Devon, the area which my hon. Friend has the good fortune to represent.

I want to refer briefly to the issue raised by my hon. Friend the Member for South Hams about the problems in the constituency represented by my hon. Friend the Member for Ealing, Acton (Sir G. Young). Planning enforcement is a responsibility for local authorities. If they choose not to employ anyone to carry out that planning enforcement, local citizens should look to the local authority because that is where the blame lies. In May 1990 the citizens of Ealing will have an opportunity to express their views through the ballot box.

I emphasise that, much criticised though they are, the present enforcement powers in part V of the Town and Country Planning Act 1971, are not so defective in practice as some critics would have us believe. Indeed, one of the unfortunate results of the repeated criticism of the present powers is that those responsible in planning authorities for using them sometimes too readily assume—and say publicly—that nothing can be done. That becomes a self-defeating attitude because it encourages some of the least law-abiding developers—who are a fairly small minority in any area—to defy the planning laws.

The experience of some planning authorities is that, despite certain shortcomings, the present enforcement provisions can be made to operate to good effect, provided that the planning authority is determined in its approach to dealing with breaches of planning control and is seen —especially by those who may be tempted to carry out unlawful development—to move quickly into action when it is essential to do so.

My hon. Friend the Member for South Hams referred to a report prepared by Robert Carnwath QC. When my right hon. Friend the present Secretary of State for Trade and Industry was Secretary of State for the Environment, he commissioned the Carnwath report because of the Government's concern about certain shortcomings on the enforcement side of planning. As my hon. Friend is aware, Robert Carnwath is a highly respected barrister with a thorough knowledge of planning law. His report was published last April and it has been generally welcomed during the consultation exercise which my Department set in hand immediately following the report's publication.

The Government very warmly welcome the recommendations in that report. Some of the Carnwath recommendations deal with the precise concerns expressed by my hon. Friend. For example, there are recommendations that stop notices should be allowed to have immediate effect in special cases, by which Mr. Carnwath means cases in which serious harm to the local environment is occurring.

Mr. Carnwath also recommends that stop notices should in future be able to prohibit the unlawful stationing of a caravan on land that is being used for residential purposes. Because many planning authorities still fear the potential compensation liability if they serve a stop notice and the accompanying enforcement notice is later quashed on appeal, on "legal grounds", there is a recommendation that the extent of the compensation liability be made more precise, and be strictly limited when the developer fails to provide adequate information about his activities on land on which a breach of planning control is occurring.

Among other helpful recommendations, perhaps the most important to my hon. Friend is Mr. Carnwath's suggestion that the planning authority should be able to obtain an injunction to restrain a threatened as well as an actual breach of planning control. That is really a further extension of authorities' existing powers in section 222 of the Local Government Act 1972, but it is the application of the power to a threatened breach which is vital in the context of some of the problems to which my hon. Friend has referred.

My hon. Friend referred also to problems with serving enforcement notices. He will know that on page 75 of the Carnwath report there is a recommendation to amend the law dealing with that problem. The recommendations have been made, and the Government accept them. The remaining issue is when legislation can be brought before the House. My hon. Friend referred to the Environment Protection Bill. That is not a planning Bill. The Government hoped that it would be possible to bring forward a planning Bill this Session, but it so happened that there was insufficient parliamentary time for that to happen. I hope that we shall be able to bring forward a planning Bill next Session and that my hon. Friend's concerns can be dealt with in that legislation. On amendments to the Environment Protection Bill, my hon. Friend will need to consider that matter in the light of the basis of the Bill. I would not seek to advise him about that. However, I will report his comments to my right hon. Friend the Secretary of State.

My hon. Friend also mentioned his concern about the difficulties caused by the submission of dual planning applications. I certainly understand that concern. Among other things, the practice is wasteful of local authorities' time and potentially confusing for members of the public who are interested in the proposed development.

Many developers submit duplicate applications for the same proposal so that if the local planning authority fails to reach a decision within the statutory period, they can appeal in respect of one application while continuing to negotiate on the other. It appears that the purpose of that "twin tracking" is to spur the local planning authority to make a decision on the second application before the first has been decided on appeal, in which case the appeal can be withdrawn.

Developers have been encouraged to submit dual applications by the fact that once a case has gone to appeal under section 37 of the Town and Country Planning Act 1971 because the local planning authority has not determined it within the statutory period, the authority ceases to have any jurisdiction over the application. That problem would largely disappear if all local planning authorities were to meet the Government's target of deciding 80 per cent. of their applications within eight weeks. However, we must obviously address the fact that, unfortunately, many authorities fail to perform as well as that. My hon. Friend's own district council of South Hams is still falling well short of that target.

Is my hon. Friend aware that the Government have also been failing? Only 50·8 per cent. of all cases on appeal have been fulfilled within the period set down by the town and country planning inquiries procedure rules? The Government are only 50 per cent. as good as they should be.

I would be the first to accept that there have been shortages of resources on both sides. My hon. Friend has referred to the dramatic increase in the volume of planning appeals, partly engendered as a result of the slowness of local authorities and the number of appeals that have come forward through non-determination. We have put substantial additional resources into the appeals system. For example, we have appointed many new inspectors. I hope that that will result in improved performance in the coming months. We are not complacent about that, and I am prepared to accept my hon. Friend's criticism.

In the time available it is not possible to examine in detail all the cases to which my hon. Friend referred. In any event, he will probably recognise the formula that, because my right hon. Friend sits in a quasi-judicial capacity as an appellate authority, it is not possible for him to comment on individual cases.

My hon. Friend said that he would like to say a little about local plans. The Government have encouraged local authorities to develop local plans and I am delighted that my hon. Friend's own authority has been quick to come forward with a clear local plan. The effect of that should be that there is a greater awareness locally of the developments that are likely to be acceptable and the developments that are not. I am pleased to be able to tell my hon. Friend that there is quite a lot of evidence to suggest that, as a result of having a local plan, South Hams has a lower percentage appeals success rate. That means that fewer people are appealing successfully against my hon. Friend's local authority because it has a local plan. That should be an example to other authorities who complain about the volume of appeals. If they introduce a local plan, fewer appeals should be made against them in future.