Housing and Planning Bill

Debate between Lord Best and Lord Greaves

Thursday 17th March 2016 Lords Chamber

[Lord Best (CB)]

I support the noble Baroness, Lady Parminter, on Amendment 88A, which would give parish councils and neighbourhood forums rights of appeal if permission was given for a development that failed to accord with a neighbourhood plan that had been prepared but was not yet finalised. I note that this proposal was debated in the other place, where Nick Herbert MP commended neighbourhood planning. I echo his views and agree with noble Lords who have congratulated the Government and the coalition Government on the neighbourhood planning initiative, which has now reached this number of 1,800 neighbourhoods—I think that well over 200 have now been concluded, but we will probably hear about that from the Minister.

During the passage of the Localism Bill through this House, I supported the idea of neighbourhood plans, but I opposed the idea that after the plan had been approved by the parish council, the district council, the county council, and by an independent examiner, it would then need to be approved through a referendum. I was worried that all the people who had not participated in any of the public meetings, consultation sessions and the rest after years of hard work by the local volunteers, who had nobly got together to prepare their neighbourhood plan, would come out of the woodwork and vote against the plan on principle because they opposed anything happening in their area. I was wrong. The referenda have all so far been in favour of the local plans, and this has not been a negative barrier to getting the plans through.

Returning to the debate in the other place, I note that Mr Nick Herbert went on to say that,

“support is undermined when speculative developers try to get in applications ahead of the completion of neighbourhood plans or even after they have been completed. They bang in their applications, and either they are upheld by the local authority, which is fearful of losing an appeal, or the developer makes an appeal that is upheld by the planning inspector. The development is then allowed to go ahead, which leads people, including groups of volunteers, to ask, ‘Why have we spent literally years working on this neighbourhood plan for where developments should go—a power that was given to us, the community—only for it to be overturned by a developer?’”.—[Official Report, Commons, 5/1/16; col. 222.]

Nick Herbert’s views were echoed by Sir Oliver Heald MP, who thought it was wrong that a neighbourhood plan,

“can then be trashed by an application by a speculative developer.—[Official Report, Commons, 5/1/16; col. 222.]

Andrew Bingham MP said this was happening in Chapel-en-le-Frith, a village in his constituency. These sentiments from Conservative MPs were echoed by those of Dr Roberta Blackman-Woods MP for the Opposition.

I have followed the progress of the production of an excellent neighbourhood plan for the Cerne Valley in Dorset, covering the village whose name, Godmanstone, is in my title—I declare an interest in this as an owner of land within the area covered by the plan. In the case of the Cerne Valley, local volunteers formed a neighbourhood forum in the summer of 2011. Consultative meetings were held with fierce debates, and after huge efforts the group—a vanguard for neighbourhood forums, brilliantly led by a local farmer, Fred Horsington, who is now a neighbourhood planning champion—obtained the approval of the relevant parish councils for their plan. In December 2013, it was submitted to the council. It was then subject to independent examination and the examiner’s report came out in August 2014. Then, in December 2014, a referendum was held. To the considerable credit of all the volunteer workers, the plan was approved by a huge majority. Finally, on 8 January 2015, three and a half years from the beginning, the plan was approved by the local authority.

During this lengthy period, all the hard work of those engaged in this exercise was at risk from a developer putting in an application which did not accord with the emerging plan. Had this happened, the parish council and the neighbourhood forum would have had no way of appealing, and the council would have had to be hesitant about using the submitted plan in determining the planning application. Until the referendum was done and dusted, it was a nerve-wracking time. This amendment would overcome the problem and ensure that, even where a neighbourhood plan had not reached its final stage, it would make its mark as it should. I support the amendment.

[Lord Greaves]

My Lords, I tabled an amendment in this group which covers similar ground but is not about neighbourhood planning. I tabled it at the behest of a different set of interest groups from those that my noble friend Lady Parminter has worked with, but it seems sensible for it to be in this group because the principle is the same.

This is an interesting issue, which has been around for quite a while. One of the interesting political aspects is that political parties tend to be in favour of some form of community right of appeal against the granting of planning permission when they are in opposition, but when they are in government they find all sorts of reasons why it is not practical. I think this has happened with all three parties, although I think my noble friend is complaining that we continued to be in favour of it during the coalition but were stopped by our big-brother partner—at least I think that is what she is saying; she may have been closer to it than I was.

I have no doubt whatsoever that, for major applications which are against policy, there is a very good argument in favour of the right of appeal. It is also true that nobody has come up with workable legislation. I am not claiming that my amendment, which covers the principle generally rather than just neighbourhood planning, is the answer. But we have to accept that the right of appeal has to be restricted to a considerable degree: it cannot be for any old planning application that comes along, even if it is against policy. If, for example, an extension to next-door’s kitchen is against council policy but the council has passed it, then—rightly or wrongly—it is not a matter for appeal. That right has to be reserved for a major planning application defined in some way or another. I have suggested,

“a major planning application or an application for permission in principle”—

no doubt we will be calling it a “PIP” before we have finished with this part of the Bill.

The legislation will have to clearly define who can object and carry out an appeal—whether this be a body, person or group of people—and will have to strictly limit the right to appeals which are clearly against policy. I believe that workable legislation can be drawn up to cater for those cases, but it has to be tightly drawn and not something that is going to generate loads of appeals, because that would totally undermine the planning system and would certainly undermine the Government’s wish to build many more houses.

I am in favour of this with the restrictions I have outlined. I would ask the Government to look at it seriously and ask an expert to come up with a scheme which we can then decide whether to go ahead with or not; otherwise, we will simply continue as we are. If the Conservatives lose the next election and someone else takes over, at the election after that the Conservatives will be doing what they did on platforms with me in 2010—saying what a good idea this is and promising to bring it in if they get into government. I am not blaming them, because everyone does that and everyone changes their mind.

Localism Bill

Debate between Lord Best and Lord Greaves

Monday 31st October 2011 Lords Chamber

[Lord Best]

My Lords, in Committee and on Report, I tabled amendments on transitional arrangements. I agree that it is imperative that local plans are in place as soon as possible but councils must have adequate time and resources to put in place sensible plans that conform to the new NPPF and ensure that local needs are met and local people have a say in the development that affects them. This will require clear transitional arrangements so that citizens, councils and developers have certainty about when and how the presumption of sustainable development will apply. Those areas that have invested a significant amount of time and resources in getting an up-to-date local plan in place prior to the changes should not be required to go through the process again or to face further delays. It is important that any process for registering conformity is light touch and swift.

I have been pleased to hear from the Royal Town Planning Institute that progress is being made in making transitional arrangements. I know that the Local Government Association is also part of the process of working with the Government on this. I feel sure that the Minister will be able to confirm that appropriate arrangements will be put in place quickly and I look forward to hearing her response to the sensible points raised by the noble Lord, Lord McKenzie.

[Lord Greaves]

My Lords, I congratulate the Labour Party on writing such a brilliant amendment. The interesting thing about transitional arrangements is that when the Bill came to your Lordships’ House, they were not being talked about at all. The view was that in six months it could all be sorted out. The more it has been discussed in this House and with Ministers, the more it has become clear to everyone, including those of us who raised it tentatively at first, that it is an extremely important issue. Getting it right is crucial to the transition from the present system to the new system. The good news is that I believe that the Government, particularly the planning Ministers, now understand that. The bad news is that they have not yet produced a clear plan for that transition and how it will work. I believe that it is being thought about seriously across government.

Whether or not it should be in the NPPF is an interesting question. Originally, we were told that it did not need to be in the Bill because it could be in the policy framework. The more some of us think about it, the more complex it is and the policy framework may not be the best place for it—certainly not for most of it. It is so complex and requires so much detailed and substantive guidance to planning authorities on how to cope with the transition that it probably will need separate guidance. I do not think that this would in any way undermine the Government’s wish to bring the total of planning policy guidance down to around 50 pages, although I think that it will be a bit more than that when it comes out. The point is that, by its very nature, guidance on the transitional process will be temporary; it will come and then it will go. That is another reason why perhaps it should not be in the NPPF but should be separate guidance to local planning authorities in some detail as to how to cope.

Going back to another anecdote, I am reminded of the following phrase, which I learnt from Professor Danny Dorling:

“Anecdote is the singular of data”.

In this case I think it genuinely is.

I am about to read from a Pendle Council press release, not for special pleading but because I believe it is typical of the position that very many local planning authorities are in at the moment. I received the press release on Tuesday, headed “Six week consultation on Pendle’s most important planning document”. It says:

“It’s the final chance for Pendle residents to comment on a document that will influence how Pendle changes in the years to come. A six-week consultation starts on Friday 28th October on the Core Strategy”.

Then it explains what is in the document and what its purpose is. It continues:

“Between now and Monday 12th December you can view a draft version of the Core Strategy”,

at various council outlets and libraries throughout Pendle or, alternatively, on the website. It goes on to say:

“During the six-week consultation, planning officers will be attending a series of drop-in sessions in different parts of Pendle”.

That is what that glossy leaflet was all about. I think there are 10 or 12 of those taking place. It is a big consultation operation and exercise. It then says:

“A display will also be available to view at Nelson's Number One Market Street”—

which is the council’s call-in centre—

“for the full six weeks”.

The councillor who looks after planning issues in Pendle says:

“‘The Core Strategy will set out the overall approach for planning and development in Pendle for the next 15 years, so it's essential that residents make their views known before it's finalised … This is your final chance to help shape the future of Pendle’”.

Then I thought: this is all going ahead. The council quite rightly, I think, decided to continue going ahead with the production of its local plan as quickly as possible despite the presence of the Localism Bill casting a shadow over all these operations. This is really localising and turning into an anecdote some of the broad questions that the noble Lord, Lord McKenzie, asked. Will Pendle Council and lots of other councils around the country have to start again when this Bill comes into effect? To what extent will they have to go back and revisit their evidence base for their local plan? To what extent will they have to go back to the core strategy—which is 200 to 250 pages thick, I would guess—and rewrite it? To what extent will the whole process now be put back by six or 12 months? Will this quite intensive consultation process all have to be done again at this time next year perhaps? Those are the kinds of practical questions that councils all over the country are facing. They need very clear guidance on the transitional period from the Government as quickly as possible.

I think that this is my last speech on this Bill. There may be sighs of relief around the House. I have already thanked the Minister, her colleagues and the civil servants on the Bill team for their great kindness and for the assistance that I and my colleagues have had. I also want to thank people around the House. I thank the noble Lords, Lord McKenzie and Lord Beecham, on the Labour Front Bench for their very sensible and constructive approach to the Bill. I may be doing severe damage to their career prospects within the Labour Party by saying that, but I think it needs to be said. We have worked with them and discussed things with them. We have not always agreed, but the amount of co-operation that there has been around the House on the Bill has been to the advantage of the House and to the advantage of the Government in that when the Bill leaves very shortly now, it will be a very much better Bill than when it came.

Localism Bill

Debate between Lord Best and Lord Greaves

Monday 17th October 2011 Lords Chamber

[Lord Greaves]

My Lords, that reminds me of a song about digging a hole, but perhaps we should not go into it. In Committee, I attempted to search for a compromise on this and to help the Government to clarify what they were saying. I spend a lot of time trying to do that on Bills. The Government should be congratulated on and thanked for the huge amount of time and effort that was put in by Ministers and their civil servants in the Bill team, and by their ministerial colleagues in the House of Commons, to try to sort out a bit of a mess—perhaps more than a bit of a mess—that has resulted from what some of us would say was the rather hasty addition of this clause at the end of the procedures in the House of Commons. They made a huge effort, and I have no doubt that the amendment moved by the noble Earl is an improvement. It helps a bit. My noble friend says that it takes him further into a hole, but I am not sure that that is the case; it probably keeps his head above water. However, it is our clear view after reflection throughout the summer that far and away the best thing to do would be to remove the clause altogether. That is why I support the amendment eloquently spoken to by my noble friend Lady Parminter.

I want to make a couple of points—and one point in slight jest, which I will make now. My noble friend Lord Attlee said that one argument for accepting that this clause should remain is that it does no harm. I must say that I am so used to Governments telling us that amendments that we put forward may not do any harm but are not necessary that I think the boot is on the other foot now. Every time I move an amendment, while the noble Lord is taking the clause for the Government I will look forward to reminding him that my amendment does no harm and therefore should be passed with acclamation.

I would like to make two serious points. There is a very clear difference between CIL and Section 106, for example, which are themselves tied to an application and cannot be untied in any way, and the new homes bonus, which is not tied to a particular application and can be tied, as I think my noble Friend, Lord Attlee, said, only by a clear decision, a resolution presumably, of the council that will receive the new homes bonus. That is the real difference. The noble Earl said quite clearly that it can be taken into account only if it is tied to the application by the receiving council.

I have been thinking about this. In a possible case study, which may happen more often than people might imagine, a big development may result in a lot of new homes bonus and a significant amount of money coming to that council. The use of that money might be politically controversial and contested within the council. In advance of that money coming, the council, the executive, the cabinet, or whoever it is that makes decisions about its allocation, might corporately pass a resolution that makes it quite clear that when it comes, and if planning permission is given, the money will be tied to a project linked to that development. However, it is controversial and the opposition on the council does not agree to it and campaigns against it. Then there are some elections and the opposition wins them, and this large amount of money is taken out of that project and put somewhere else. Once a planning decision is made and issued, that is it; it cannot be revisited by the council. However, decisions about how to allocate money can be revisited whenever the council wants to revisit them. What happens if the development is clearly given on the basis, say, of flood damage or a new swimming pool in the middle of the estate that is linked to that development, and planning permission is passed and the council later changes its decision about how to use that money? They might have a huge budget crisis. Perish the thought that any council has a huge budget crisis nowadays, but if does have a huge budget crisis, the council may find that it simply has to put this money into the general fund in order to keep its head above water. It is quite clear that that could happen. What is the legal position? I do not believe that anybody can do anything about it, except that that planning permission will have been given on false pretences.

[Lord Best]

My Lords, I think the government amendment does something helpful. Councillors on planning committees have to face the accusation, if they are not careful, that they are selling planning consents, that they are just doing it for the money. There is ambivalence as to whether they can take on board the fact that it is surely important to consider that the local community may benefit financially from what happens if the development goes ahead.

The Minister has clarified the circumstances in which it is entirely legitimate for the planning committee to say, “Yes, we have taken on board the fact that there are financial gains for the locality as a result of this. It is not the only thing we take into account. It has no greater weight than the other material considerations. The fact that local people are going to benefit from this”—as the noble Earl made so clear—“can be taken into account, but don’t let anybody accuse us, the planning committee, of just doing it for the money. We’re doing something that is legitimate”, as this clause makes clear. I think it can be quite helpful.

--- Later in debate ---

[Lord Best]

My Lords, I shall be brief as we had an interesting debate on this issue in Committee. Amendment 232 relates to vexatious town and village green applications. There is a widespread view that, under the Commons Act 2006, the measure allowing areas that had been used for sporting, leisure and recreational use to be declared village greens and never to be built on, a status that would last in perpetuity, was being abused and being used as a pretext for stalling and blocking developments that in other terms would have succeeded. It is a very cheap way to stop anything happening. It costs those who do it very little. I quoted the example of the 50 acre site for which I was responsible on the edge of York, which was held up for a considerable period of time because someone was deemed to have walked their dog on the site for 20 years. I think that the dog was changed somewhere along the way. Even if the application fails, this can inflict a great deal of damage, delay matters and cause a lot of expense.

As I understand it, the Government are seized of all this, for which I am very pleased, and consultation is under way to see what might be done. The problem is that this consultation exercise concludes that action should be taken to prevent vexatious applications of this kind. As my amendment suggests, local authorities should have the power to turn down applications that they deem to be frivolous or vexatious, but that the Government will come to that conclusion at the end of a consultation period after the Bill has completed its passage through Parliament. There will be no opportunity until the next legislation comes along—in I do not know how many years—to set this one straight.

I ask the noble Earl on the Front Bench to let us know what the Government are expected to be able to do through regulations or other methods so that we do not find ourselves in the bind that without any legislative amendment nothing can happen, even though all are agreed that it should. I beg to move.

[Lord Greaves]

My Lords, because of the time of night, I shall make a couple of statements rather than explain them. This is not the right Bill or the time to do this. It probably does not require any amendment to Section 15 of the Commons Act. It can be dealt with in two ways: first, local authorities can pull their fingers out and not be unnecessarily legalistic and bureaucratic, which in my experience they have been; and, secondly, by tweaking secondary legislation. It is not necessary to do it here. The problem can be solved in a much more efficient way in secondary legislation through Defra.

Localism Bill

Debate between Lord Best and Lord Greaves

Thursday 14th July 2011 Lords Chamber

[Lord Best]

My Amendment 170CK, which comes later in the Bill, is not quite as imaginative as the approach of the noble Lord, Lord Lucas. It is a more pedestrian way of dealing with the matter by amending the Commons Act 2006, which is essential. At nominal cost to the applicant, frivolous and vexatious applications can add so much cost and delay to a scheme as to deter the developer or housing association from proceeding. I have personal experience of this, being familiar with a development in York. We were attempting to create a significant new mixed-tenure community of some 540 homes and, despite the council being fully in support of that, havoc was wreaked by a village green application to incorporate the whole of a 53-acre site. It was made on the basis that a local resident had been walking their dog on the site for the past 20 years, thereby meeting the criteria of lawful sport or pastimes. Since the tolerant owner had taken no legal action against them, the case could be made that this large site could possibly be England’s largest village green. Although the proposition was in due course thrown out, it involved my charity in considerable frustration, the potential loss of public and private funding, considerable expense and delay of more than a year. A less tenacious developer might well have given up, depriving the city of York of what will be a huge asset for generations to come.

Perhaps I may quote from one landowner in Norfolk, whose perspective has been sent as an illustration by the Hastoe Housing Association. They state:

“I believe that affordable homes are vital in sustaining rural communities. As a result, when Hastoe with the backing of the parish council approached me about selling them some land, I agreed. Many people retiring from the south-east have moved to this area of Norfolk, raising prices beyond the local people’s means and threatening the future of the [village] school … Unfortunately, this decision to help has resulted in me becoming involved in an extraordinary process that will last several years and cost me many thousands of pounds. What is so frustrating is I have detailed crop records for the past 20 years and an acknowledgement from those claiming the arable field as a village green, that they never walk on it when it is in crop. On top of that, those making the claim have taken more than two years putting in their village green application, are funded by somebody whose main home is not in the village and have refused to reveal themselves to the rest of the village. However, it appears that the law is so badly drafted and open to so much interpretation, that the County Council admits that it is extremely unlikely to throw out the claim until it has gone to Public Inquiry as they do not want to run the risk of having to pay for any legal challenge to their initial decision”.

Naturally, this example of big society action by the landowner means that he and no doubt dozens of others are unlikely to part with any land until this overindulgent legislation is reined in.

My amendment looks at the nitty-gritty of the situation and proposes ways in which the law could be amended. I will briefly outline what it says. Amendment 170CK would stop retrospective application for town and village green status after planning consent has been granted, which is currently possible. It would prevent efforts to overwhelm the authority with excessive paperwork, allow authorities to reject vexatious or frivolous applications and allow the recouping of costs in such cases. It would make deregistration possible where a review showed that the village green status had, some time later, become obsolete. I hope that the amendment commends itself to your Lordships and the Minister.

[Lord Greaves]

My Lords, I remind the House of the interest that I declared at the beginning of the Committee stage. I am vice-president of the Open Spaces Society, which is the expert voluntary organisation on village and town greens and spends a lot of its time advising people who wish to register greens. It strongly advises people not to do so purely to resist development and not to proceed if the evidence appears to be poor. Not everyone takes that advice, unfortunately.

The amendments attempt to tackle this perceived problem—it is indeed a problem in some areas—by amending this legislation and thereby amending the Commons Act 2006. I suggest that this is probably the wrong time and the wrong legislation to do that. Town and village green legislation, as noble Lords who took part in the discussions of the Commons Act in 2006 will know, is extremely complex and somewhat difficult. Section 15 of that Act laid down a new system for the registration of greens, but that was based upon much older commons legislation, going back to the past, describing what is and is not a green.

I have some questions. Is there an identified problem? Yes. Is it hugely widespread? No, but it is serious where people are abusing the system. Some instances of that have been identified here today and I could provide some more. Does it need sorting out? Yes. Does it need new primary legislation and is this the right Bill to do it? No. As the noble Baroness, Lady Byford, has identified, what is required is an overhaul of the Commons Registration (England) Regulations 2008, which result in a system of greens registration that, in my view and that of the Open Spaces Society, is overly bureaucratic, takes far too long and can be far too costly.

I was involved on the other side, as it were, in an application for a green in Lancashire where Lancashire County Council wanted to build a new secondary school, which I was in support of, and a group of people tried to suggest that the land on which it was being built was a green. I met them, advised them and told them that it was not, but fortunately Lancashire County Council, perhaps because it was a project of its own that was potentially being blocked, was very expeditious in sorting it out. Quite correctly, it rejected the application.

We have a 10-point programme that would greatly improve the green registration system. It could be done simply by secondary legislation by amending the 2008 regulations. I am not suggesting that that is the whole answer and I am not going to tell your Lordships today what all the 10 points are, but we are happy to discuss this with Ministers. They will be Defra Ministers, though, as this is not a CLG matter. Defra is already looking into the problem; it has commissioned research, it is having discussions and it is considering its responses. I hope that on that basis we can let the department get on with it.

There is an understanding on all sides that this is urgent. It is important not to throw the baby out with the bathwater and not destroy the system of registration of town and village greens, which is a very useful process, but to stop people abusing it.