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Planning (Community Right of Appeal)

Volume 591: debated on Tuesday 20 January 2015

It is a great pleasure to serve under your chairmanship, Mr Streeter. This debate is about the potential for changing the planning system to give communities a genuine stake in the planning process. My proposal is to introduce a community right of appeal.

The Government rightly recognised when they came to office that there was a significant housing problem, and that one of the challenges was unburdening the planning system of bureaucratic processes so that the houses we so badly need could be developed. The Government said that while liberating planning processes to make them easier, they would give communities a greater say in what happens in those communities and in planning decisions.

However, the reality was that the changes in the planning system and in communities’ rights did not move at the same pace, although the legislation was passed pretty much in parallel. The benefits of the community legislation—the Localism Act 2011—inevitably lagged, because neighbourhood plans, the last stage of the planning process, could not be put in place until local plans were in place. Although there was some grey debate about whether they could precede local plans, in reality, neighbourhood plans must conform with a local plan, so one had to follow the other. Clearly, they will give communities great benefit, as they bring community infrastructure levy benefits, but they are late.

There were many other provisions in the Localism Act 2011: for example, communities’ ability to identify community assets, which could therefore be considered for preservation for community use, and a further provision enabling them to be acquired. The problem is that many such community assets are owned by local authorities, which decide whether or not an asset can be listed, giving them an inevitable conflict of interest.

Likewise, although the potential sale option was not intended to give communities a particular financial advantage to give them time, the reality is that it will not help communities acquire time, because if the local authority owns the asset in question, all it has to do is wait for the months to expire and then sell to a developer who will give a better price. I have some concerned constituents in Shaldon and Kingsteignton who have suffered as a result of those deficiencies in the legislation.

Meanwhile, the planning side of the balance—the national policy planning framework and local plans—moved ahead apace. The Minister wrote to me recently to advise me that 80% of all planning authorities now have local plans in place. That is much to his credit, but the problem is that during that tortuous three to four-year process, developers have been able to develop without communities feeling that they have a real say. Clearly there are provisions for consultation, but that is not quite the same thing. Communities feel that they are in no better position now than in the old days, when parish councils used to be consulted and then, they felt, roundly ignored. As I am sure the Minister will tell me, where communities are agreed, there is the option of judicial review, but the problem is that it is an expensive process that few communities can afford.

I will give some examples from my constituency of how the process has frustrated constituents and made them feel that they are not being listened to and do not have a voice. As local plans were introduced, the Government indicated that as a plan got closer, more weight would be given to it. In Shutterton, in Dawlish, an application was made for 350 houses. Those houses were not part of the local plan provision, and the council and constituents violently opposed them. None the less, three weeks before the local plan was adopted, the application went through. After our local plan was adopted, the council continued to authorise infill development. Although some infill development is understood and accepted, the amount in this case was substantial.

In other cases, we have found that a number of developers applied for more housing on the site allocated than was in the plan. On other occasions, due to density changes, where a site would not take the designated number of houses, the local authority extended the land on which the development could take place. The result in Dawlish was that instead of the expected 1,200 houses in the area, the community are now facing 2,000. That seems to be a significant mission creep from what was originally intended.

I congratulate the hon. Lady on securing this important debate. Does she agree that what ought to be at issue is not a question of more or less development but of the quality of planning decisions? Would not the right of appeal for which she advocates correct an asymmetry in the present system, whereby an applicant who thinks that a refusal is contrary to the planning framework can keep appealing to get the decision that they want, whereas a community that thinks an approval is contrary to the planning framework has no right of appeal other than judicial review, which as she says is prohibitively expensive? Therefore, it would empower people to balance things out.

I could not agree more, and I commend the right hon. Gentleman on his comments. The point that he makes entirely supports the point that I am making. It is about creating a balance and fairness in the planning system that do not currently exist.

The final complaint, which it is worth articulating for the Minister, involves the infrastructure challenge. Although stakeholders involved in roads, schools and so on are consulted, some stakeholders who are relevant are not statutory consultees, including the NHS. There is no obligation for the NHS to put forward its views about whether there is an adequate number of GP surgeries and the like. It is probably fair to say that although county councils have a duty and will consider infrastructure issues carefully, if one looks at how they justify some developments, it is in the hope and expectation of a school that might open in five or 10 years’ time, or a road that might be built if some other development occurs in two or three years’ time. Sometimes, communities feel that that is a bit fanciful. They perceive—I share that perception—that some communities have significant infrastructure issues that seem to have been ignored.

I commend my hon. Friend on securing this important debate. Does she agree that infrastructure is not just about roads and schools? One huge concern in my constituency is drainage. Local communities are absolutely terrified that new development will be granted permission and built without an adequate upgrade to the existing sewerage system.

My hon. Friend makes a key point. When houses are joined to the system, it puts far too much pressure on it, resulting in the flooding problems that many of us have experienced in our constituencies. She is absolutely right, and her point is well made.

I emphasise first and foremost that the concept of a community right of appeal is for the community. I am not advocating a third-party right of appeal. It would clearly not be appropriate for anybody who simply does not agree with a development in their neighbour’s garden to be able to bring back the bureaucracy that the Government has rightly tried to get rid of, just in order to complain about an issue next door. It would not be a nimbyist charter; it would be a proper rebalancing of the planning system to be fair and balanced. The idea would be to ensure that between the developer and the community, both sides’ arguments would be properly considered and have some power in the process.

It would also ensure that local authorities think long and hard about their decisions. Clearly, there is a great incentive for them to develop, because then they get community infrastructure levy moneys, but if they recognised that there was potential for an appeal from both sides, they might give some thought to it.

I thank my hon. Friend for calling this debate; I am listening with interest to what she says. I declare my interest, having introduced a ten-minute rule Bill back in 2012 to call for a community right of appeal. What does she think about neighbourhood plans? It is unfair that local plans get precedence over neighbourhood plans. Could a community right of appeal be linked to neighbourhood plans, which would give those plans teeth and put rocket boosters under them, convincing people that they are the right things to produce?

My hon. Friend makes an extremely good point. What one could certainly do is to link a right of appeal to those communities that have adopted a neighbourhood plan. However, we could go further than that and perhaps at this point I can set out what a community right of appeal might look like.

First, there must be true planning grounds for such a right of appeal, including a situation in which the local authority was ignoring Government guidance. The case in Shutterton was not entirely on-point here, because clearly the decision there was made by the inspector. None the less, there could be a right of appeal if it is seen that Government guidance is not being followed. Secondly, there would be grounds for appeal if there was a failure by the local authority to abide by the provisions of a local plan. Thirdly, and this addresses my hon. Friend’s point, there could be an appeal if there was a failure to abide by the neighbourhood plan. Finally, there could be an appeal if there was a failure to provide infrastructure properly.

Those are my suggestions; I am sure there are many other planning grounds that could and should be included in that list. Perhaps, however, they could be a “starter for 10”.

I congratulate the hon. Lady on securing a really important debate. Does she agree that a community right of appeal would help residents not only where they oppose developments but in situations where, for example, the council has set a limit on the number of houses in multiple occupation, specifically student homes, in a designated area, and yet it fails to take enforcement action against predatory landlords who are disregarding the planning rules and already exceeding the limit? Alternatively, perhaps the council is granting permission for HMOs in apparent contradiction of its own rules, leading to a situation in which neighbourhoods are up in arms against the people who are supposed to help them.

That is an interesting point. Clearly, the devil will be in the detail, once this proposal is properly worked up. In a way, however, the hon. Lady leads me on to my next point, which is this: for this appeal system to work, we must define what a community is. For me, a community will be something like a ward, or a neighbourhood as defined under Localism Act 2011, but it also needs to be the people in an area who will be truly impacted by a development. I do not have a precise solution, but that is a way forward.

Clearly, there must be weight, and therefore a percentage of the community that feels strongly about an issue. There cannot just be nimbyism, so there has to be quite a high threshold before a planning appeal can be triggered.

My hon. Friend is the champion of communities and we are all grateful to her for securing this debate. On the specific point of a community right of appeal, does she agree that one aspect that councils and therefore the Department for Communities and Local Government should look at is situations in which a council has already listed something as being an asset of community value but then decides to give a developer permission to do something that effectively destroys that asset? Does she agree that that is entirely contradictory, and that we need to include consideration of such situations in a community right of appeal?

I strongly support that suggestion and it would be an excellent addition to the list of things that might be considered.

If the appeal mechanism is to be effective, it must be easy to use, low in bureaucracy and cheap. However, it cannot be beyond the wit of the Government to come up with a set of forms and a formula that will make it accessible to communities. I also believe that there are communities, community groups and charities out there that will be more than happy to put forward proposals for support.

Before the hon. Lady gives way again, I must say that interventions are becoming rather long, and we want to give the Minister plenty of time to respond to the debate.

I call Jim Shannon to speak—very briefly.

I will be very quick. The hon. Lady mentioned the figure—the number of people—that would trigger an appeal. In every case, the number of people living in an area who are impacted by a development might vary. There would be occasions when the impact of a development would be great, but the number of people living in the area impacted would be small. So I just wondered what the trigger figure would be.

Again, the devil would clearly be in the detail. However, the challenge is to create a relatively simple system. If we make things too complicated, including the definition of the “group” or “community”, this system will never be established. So, while I take the hon. Gentleman’s point, we must look at how we would make the system work in practice.

The appeal would need to be an appeal to the inspector, to give communities a right equivalent to the one that developers now have. In the same way, it is right that the council would have to pay a penalty if it refuses an application but the developer then succeeds in overturning that decision. Similarly, if the community succeeds on appeal, having initially been refused, the council would have to pay a penalty.

The benefits of this process would be that the community would at last see some fairness; that developers would be encouraged in a proactive way to better engage with communities; that local authorities would have to think long and hard, and not only about the community infrastructure levy, when making their decisions; and that in the future we would create communities rather than blocks of houses.

I commend the Government for what they have done in dealing with our housing issues and problems. However, I hope that the Minister will recognise and accept that there is a challenge here, and that communities feel aggrieved at their lack of engagement in the planning process. I also hope that he will agree to give this issue some proper attention, and will consider whether or not such an appeal is workable. Clearly, the matter would have to go out to proper consultation and I appreciate that this close to an election it may be more of a manifesto issue, rather than something to be done today.

Nevertheless, this is not just a case of amending existing legislation, and it would not be an adequate response to say, “We have done a great job.” We have; the Government have done a good job. And—dare I say it?—if the Opposition’s view held sway instead, communities would have no rights or say in where housing was located. However, we need to take this issue seriously and come up with some positive proposals. So I ask the Minister—through you, Chairman—to acknowledge that there is an issue and to agree to take some concrete steps.

Thank you, Mr Streeter, for calling me to speak. It is a pleasure to serve under your chairmanship.

I congratulate my hon. Friend the Member for Newton Abbot (Anne Marie Morris) on securing this debate. In her closing remarks, she said something that I absolutely agree with: what is important for us, as we go forward, is that we are building communities and not just houses. I myself have said that we cannot afford to see lots more big housing estates built just to hit various targets that people set from time to time; we had 13 years of top-down numbers and hitting targets, rather than building communities. The changes that we have made to the planning process are specifically designed to ensure that we are building communities—homes that not only make the people who live in them proud, but are welcomed by the communities that those people are becoming part of. I will touch on that issue in the next few minutes.

It is also worth noting that one of the reasons why we are having this debate is the frustration that many of us have experienced—I myself was in local government for a decade or more—about the lack of power that people have had over what is happening around them compared with the power of somebody in a suit in Whitehall saying, “This is what will happen in your area.” It will take some time for people to realise that we have moved on from that situation and that we should attack this issue from the front end of the planning process instead of from the back end. The appeal system itself is at the back end.

Local authority decisions overturned during the course of a year still represent just 1% of all local planning decisions, although at the same time a record number of planning applications—about 240,000—were approved in the last year. One of the reasons for that small percentage is that more and more parts of the country are now having development in areas where they have specified they want development through their local and neighbourhood plans.

The planning reforms introduced by this Government have gone further than ever in ensuring that planning is centred on community involvement, by maintaining and strengthening a plan-led system rather than just the development control system of the past. We are removing regional strategies and introducing neighbourhood planning. We are also making the system not only fit for purpose but more accessible to everybody in terms of its understanding and outline.

The system currently gives statutory rights for the views of communities and individuals to be heard at each stage in the process—for example, in the preparation of the local plan. That is achieved most directly through neighbourhood plans, but also, of course, in making representations in any applications or appeals that arise. As I said, we are looking to create a much more collaborative and effective planning process in which people are engaged and able to take the lead from the beginning, not at the back end, particularly regarding the future development of their area. Our reforms are empowering communities to take a leading role, and we want to continue to see development proposals being determined locally, through plan-led and community-led planning decisions.

Does the Minister share my frustration that, particularly in places such as Bassett in Southampton, where the local community has been working on its neighbourhood plan for some years now, it still takes a phenomenally long time for neighbourhood plans to be worked up, consulted on and come to fruition?

I have been determined about speeding up the neighbourhood plan process. I hope that my hon. Friend is pleased that we have made some new announcements in the last few weeks. I will drop her a note about them to outline how we can speed the process, although we can probably still do more. I can certainly get some details to her on that.

Our aim is to make sure that everywhere has a clear local plan: that is where people’s local views on how they want their community to develop, consistent with the national planning policy framework, and against which planning applications will be decided, are going forward. Local plans form the basis for decisions on planning applications and appeals, of course, under planning law. Plan preparation is the best way for communities to be involved. Good progress has been made. Some 62% of all authorities now have an adopted plan and 80%, as my hon. Friend the Member for Newton Abbot said, have now published theirs. That is up from just over 30% in 2010.

The NPPF reminds local authorities that the community should be proactively engaged in the process as far as possible, reflecting a collective vision on an agreed set of priorities for the sustainable development of their area.

The Minister is making some good points. I do not for one minute disagree that there has been change and improvement, but I still cannot see any movement on his part beyond consultation. The crux of the matter is that communities do not feel that consultation is enough; they want some form of right.

Actually, they do have a direct right because a local plan, when adopted by a local authority, has not only been consulted on with the local authority, but is voted on, adopted and approved by the elected councillors. It is part of that democratic process.

Going further than that, neighbourhood plans are the real key to what my hon. Friend is talking about. They can, and in some areas do, go ahead of the local plan and they have weight in law. They were introduced by the Government, and for the first time communities are able to produce plans that will be used in determining planning applications: as well as having powers to grant planning permission for development, they want to see through neighbourhood plan development orders. Neighbourhood planning gives a community direct power to develop a shared vision for its neighbourhood and deliver the sustainable development that it needs. The local community gets a vote on this by referendum in the community.

It is clear that communities have positively embraced these new powers, going beyond the old approach and giving real community involvement at every stage. Let me outline that by mentioning that we now have just over 1,300 designated areas, so more than 5.2 million people are now covered by neighbourhood planning. Four areas in my hon. Friend’s constituency are going through the neighbourhood planning process. I hope there will be more to come, because with that process people get direct involvement and a say in what development will go on, how it goes on and the look and feel of it—in relation to not just residential, but commercial, retail and infrastructure.

Will the Minister clarify? He said that the neighbourhood plan went beyond and above the local plan. Can a neighbourhood plan override and rewrite what is in a local plan? I thought not.

That is not what I said; I said it could go ahead of it and lead. There can be a neighbourhood plan where a local plan is not necessarily adopted and finished, so it can move ahead. It obviously has to fit with the local plan—it might need to be reviewed down the line—but if an area is getting on with a neighbourhood plan, it does not necessarily need to wait for the local plan. In some areas there have already been planning decisions. I point my hon. Friend to case law in relation to Coates road in Devizes, where a planning appeal decision was made, backing up a neighbourhood plan that had not yet been to referendum.

There has been overwhelming support for neighbourhood planning. So far in referendums, an average of 87% of voters have said yes to a neighbourhood plan or an order, on an average turnout of 33%. That means that local people are directly involved. The NPPF clarifies that early engagement has significant potential to improve the efficiency and effectiveness of the planning application system for all parties. Good quality pre-application discussions enable better co-ordination between public and private resources, as well as improved outcomes for the community.

We have been determined to make the planning system more accessible to everybody through the publication of the NPPF and by simplifying the system—moving away from documents and often complex, repetitive technical guidance found in 230 separate documents and 7,000 pages. We have moved to the NPPF, which has just 50 pages, dropping away from the more than 1,300 pages of sometimes impenetrable jargon in 44 separate documents. We now have the NPPF with 50 readable pages. That is making the planning system easier to navigate for everybody.

Interested parties already have statutory rights to contribute their views as well—at each step of the process in the production of the local plan or, as I outlined, even more directly in the neighbourhood plan, as well as at the planning application stage and in response to any appeal by the applicant against a local authority decision. Interested parties can raise all issues that they are concerned about at each stage of the process, in the knowledge that the decision maker is required to have regard to their views in making a decision.

The existing right of appeal recognises that, in practice, the planning system acts as a control on how an individual may use their land. As a result, the Government believe it is right that an applicant should have the option of an impartial appeal against the refusal of planning permission. The existing right of appeal compensates for the removal of an individual’s right to develop.

We do not, at this stage, support the proposal for a community right of appeal; this would create a further opportunity to challenge development proposals in a system that is already geared towards ensuring that the views of third parties are heard and understood.

On the point that I raised with my hon. Friend the Member for Newton Abbot, will the Minister clarify something about assets of community value? Once an asset has been listed as of community value, is it appropriate or inappropriate for a council then to give permission to a development that would inevitably mean the destruction of that asset?

My hon. Friend knows that I cannot comment on any particular case, although I appreciate that he was not talking about a specific case. These things sometimes come down to specific cases. Obviously, listing an asset of community value gives protection—potentially, if an asset is to be sold or changed—for six months so that the local community can come together to consider acquiring it. However, it does not move to the next stage of stopping somebody from developing, changing or using that property should the community not be able to come together. The listing of an asset of community value gives the opportunity to pause the sale for six months so that the necessary capital can be raised, but it does not necessarily stop it ad infinitum and was never designed to.

Order. I would prefer him not to intervene again. I think the Minister should respond to the person who has actually secured the debate.

Absolutely—that is a fair point, Mr Streeter. I will happily liaise with my hon. Friend after this debate.

I return to the point that I made at the outset. Inherently, the idea behind the planning reforms is to make sure that there is community involvement through local plans and neighbourhood plans—I cannot stress enough that those are a key way for people to be involved—by getting public involvement where development should be: what it should look and feel like, what it should be built like and how it should be supported at the beginning of the process, not at the back end.

You are being very indulgent, Mr Streeter. The Minister’s point is that the appeal system was intended to provide redress for the individual owner. I understand why that change was made. I think we are at a point in history where we should review again the importance and value of a community, and we should seriously consider its having a voice now, given how closely we live together and how many houses are built in such close proximity.

We believe that the best way for communities to have a voice in the planning system is for them to be engaged in the development of local and neighbourhood plans at the beginning, not to wait till the back end of the process, because that forms the basis of decisions on planning applications under planning law.

A community right of appeal at the end of the process is too late to allow meaningful engagement and has the potential to slow down or even prevent sustainable and appropriate development at a time when our other planning reforms are geared towards speeding up the planning system, to drive our economy and provide the homes and jobs that we need.

We want a more collaborative and effective planning system, where people are engaged early in the process and able to influence meaningfully the future of their areas. We want development proposals to be determined locally, in accordance with local and neighbourhood plans, and our planning reforms are already empowering communities to achieve their aspirations by taking an active role in planning their areas.

Question put and agreed to.

Sitting adjourned.