Planning Permissions and Unauthorised Developments

Chris Grayling Excerpts

Wednesday 26th January 2022 Commons Chamber

[Gareth Bacon]

I agree entirely with my hon. Friend. That is precisely the sort of abuse of the system that I ask the Government to address. Such abuses have a material and long-lasting impact on local people. When people are seen to get away with it, that just encourages more of the same.

[Chris Grayling (Epsom and Ewell) (Con)]

I might, if my hon. Friend will allow me, seek to catch the Chair’s eye momentarily after his remarks. As he moves forward with this and as he, I hope, encourages the Government to take up his proposals, could he ensure that they include commercial operations? I have experience in my constituency; it is not just residential developers doing this, but commercial developers and businesses. I echo the points that have been made, but that must be a part of what he does.

[Gareth Bacon]

I thank my right hon. Friend for the intervention and I agree entirely. The point is very well made and I can see the Minister on the Treasury Bench paying close attention. It is a subject that he and I have discussed on many occasions, and I look forward to hearing what he says in a moment.

The impact of all of this goes beyond local areas, as local authorities that pursue enforcement action against rogue developers have to spend significant sums of taxpayers’ cash on legal battles. When I introduced my Bill back in the autumn, I referred at length to a case in my constituency as an example of what can occur. That case is now subject to consideration by the courts, so I will not go into that detail again, save to make the observation that it has taken more than a year to get to this point and the end is still not in sight. However, it does not impact just my constituency—it is a national problem. Such incidents, as I have heard from my hon. Friends, are widespread.

In another example, in 2018, an unauthorised development was set up around Chelmsford on a Saturday morning, meaning that the planning enforcement team were able to visit the site only on the following Monday, by which time caravans, a digger and lorries carrying materials had all been brought on to the site in a pre-planned and co-ordinated attempt to build as much as possible so that it would become unviable for the council to dismantle the works. Neither of those incidents are easily resolvable. My hon. Friend the Member for Mole Valley (Sir Paul Beresford) has spoken in this House about procedural battles on development sites in Guildford and Leatherhead that have lasted between 14 and 18 years. Green belt land has been acquired and built over without planning permission in both locations.

So what solutions might there be? When I introduced my ten-minute rule Bill, I stated that I believed that the solution lay in legislative change to move unauthorised developments without permission from being a civil offence to being a criminal offence. I made the argument that that would prevent rogue developers from appealing enforcement action and block retrospective planning permission automatically. I stated that any change should not aim to remove certain permitted development rights for private households. Nor should it attempt to single out encampments by certain specific communities. Any fair planning system should recognise that developments could unintentionally stray from the approved plans when constructed. In order to avoid the danger of people who have inadvertently breached planning regulations being criminalised, for example, in cases where an extension is slightly too large or where someone implemented something erroneously, believing that they had permitted development rights, the Bill I drafted distinguished between more minor, accidental planning permission breaches, and egregious breaches where someone repeatedly attempted to bypass the planning system, or where the breach occurred on protected land such as the green belt. In such instances, the rules need to be flexible enough to consider the circumstances of the breach. However, I believe this should be balanced against the need to ensure the system is strong enough to close the loophole that rogue developers are currently exploiting.

There are a range of potential solutions. As I have stated, my solution was to change the law to make unauthorised development a criminal offence. An alternative might be to reform the pre-existing enforcement provisions, for example, by rapidly speeding up the process by which planning enforcement can take place, and perhaps vastly increasing the level of fines applicable and limiting the timescales and grounds for appeal.

Whatever solution we opt for, the case for change is substantial. I have seen at first hand local authorities’ difficulties in deterring and stopping rogue developers from building without permission. I have seen the damage that that can cause. I have witnessed the frustration of local residents who find their local areas threatened and I have heard from local councillors and their officers about the long drawn-out, inefficient and very expensive processes they are obliged to follow in attempting to deal with the problem.

We can strengthen councils’ ability to act, protect the green belt and ensure that communities get their say on local developments by changing the law. When the planning Bill comes to the House, it will be a golden opportunity to take steps to protect local residents, stamp out these abuses of the planning process and right a very clear wrong. I urge the Government to pay heed to the issue. I very much look forward to hearing the comments of my right hon. Friend the Minister.

[Chris Grayling (Epsom and Ewell) (Con)]

I am very grateful to have caught your eye, Madam Deputy Speaker, and to have the opportunity to make a contribution to this slightly extended Adjournment debate. I promise my hon. Friend the Member for Orpington (Gareth Bacon) that it will be a brief one.

I have a dreadful situation in my constituency. Over the past 12 months, a local chalk pit on green-belt land, which has historically been a combination of an overflow for the local car dealers and a transfer site for local skip dealers, has been transformed by one operator—a local firm, NJB Recycling—into a full recycling centre without planning consent. It is now applying retrospectively for planning consent; I have opposed the application and hope that it will be turned down.

The experience of the past 12 months has highlighted an issue to which I hope the Minister will give some thought in discussion with his colleagues in the Department for Environment, Food and Rural Affairs. Not only is there an unlawful use of the site, and not only is the operator applying for retrospective consent—I absolutely agree with my hon. Friend that someone should not be allowed to set up a commercial operation without permission and get away with it—but the agencies involved do not have the powers to deal with a contravention of planning consent.

The facility is regulated by the Environment Agency, whose performance over the past 12 months has, I have to say, been lamentable. The site is causing massive noise nuisance to local residents; it is a few yards away from houses that are now being subjected to substantial noise all day long. We have had massive dust problems, and there have been huge traffic problems with the dramatic expansion in the use of the site. It is a shocking example of something that simply should not be able to happen.

Not only has the performance by the Environment Agency’s team been lamentable, but it has not used the powers that it has to try to restrain things. Frankly, it has not followed its own assessment of the scale of the problem: it carried out an independent assessment, found out that the operator was in breach and then failed to act on that breach. It has said all along that it cannot act to close down, or withdraw a permit from, an operator that is operating a site unlawfully, even though the operator has changed the nature of its work and is now operating in a way that is unlawful in planning terms.

We need a joined-up approach to regulation. We should not have a situation in which the planning authority receives a retrospective application for an unlawful use of a site, but the regulations that apply to the site’s use under the auspices of the Environment Agency do not permit the Environment Agency to say “stop.” My message to the Minister, to whom I am happy to speak in more detail as he prepares the planning Bill, is that two agencies should not have different enforcement powers and different abilities to intervene in a case of unlawful use and a retrospective planning application.

I would like the whole thing to be stopped. I would like all the agencies involved to act in unison and say, “You ain’t got permission to use the site in this way. It’s against planning law, you don’t have consent, you’re applying retrospectively—you should not be doing what you’re doing.” Everyone should have the power to step in and say, “You must stop.” I am happy to share more detail with the Minister; I have been talking to DEFRA Ministers as well.

I want a joined-up approach so that all the agencies have the same power to intervene when a site is being used unlawfully and when a retrospective application is made. Actually, I agree with my hon. Friend the Member for Orpington that a retrospective planning application simply should not be allowed anyway, but at the moment we have a disjointed situation among the different agencies. I encourage the Minister to work with me to address it in legislation.

--- Later in debate ---

[Christopher Pincher]

I appreciate and recognise my hon. Friend’s concern. We do want to ensure that the innocent are not caught up in a regime that pursues the guilty, but we also want to ensure that the system is more speedy and has much greater deterrent effects on those who attempt to gamble with the law, those who attempt to bend it and, indeed, those who choose to break it.

We all recognise that the reason why we need the important debate my hon. Friend has brought to the House today is that we believe—we genuinely believe—that there is more that we can do, and there is more that we shall do. As everyone in the House will appreciate, we are committed to improving our planning system and making it one that delivers better outcomes for people in all parts of the country. It is going to be the bedrock of one of our principal missions, which is to level up the United Kingdom and to help revive and regenerate those areas that have long felt forgotten by politicians of all stripes in Westminster. In our constituencies, however affluent they may be on the face of it, we all have areas of our constituency where there is deprivation and where residents feel left behind, and we have to fix that.

When it comes to pulling the handbrake on unauthorised developments in their areas, we want to make it even easier for local planning authorities to step in and make sure that retrospective planning permission is not exploited by those bent on gaming the system. Let me be clear: retrospective applications are only for individuals or businesses that have made a genuine mistake. As my hon. Friend alluded to, the enforcement process needs to work better. We make that happen by closing loopholes, and strengthening the existing powers and penalties at our disposal.

As we modernise our planning system in England, we plan to engage with communities and key stakeholders throughout the planning process. Our ambition is to ensure that the outdated system, which is essentially a relic of the post-war period, is now made fit for the 21st century, with proper digitisation of applications so that residents can easily see the proposed development in their area at the touch of their smartphone screen. As my hon. Friend and others have said, we have all seen and read about egregious examples of people bending the rules on retrospective planning applications. My hon. Friend mentioned the situation of the caravan park in Chelmsford, and my right hon. Friend the Member for Epsom and Ewell mentioned the situation faced by his constituents in Epsom. We see such challenges from individuals and commercial organisations up and down the country.

The simple idea behind retrospective applications is that they give people who have failed to seek planning permission prior to building a structure a fair chance to get the necessary approvals.

[Chris Grayling]

My right hon. Friend made the important point that a retrospective application should only be for somebody who has made a genuine mistake. May I press him a little bit on that? Should a local authority—and, crucially, the inspectorate—disallow a retrospective application that is clearly not based on a genuine mistake?

[Christopher Pincher]

Essentially, it should, but of course there are legal interpretations that need to be considered. Therefore, we need to ensure that any rule changes that we make are right, that they do not allow the new system to be gamed and therefore brought into disrepute, and that they do not lead to unintended and unfair consequences for, shall we say, the innocent.

Over the years, the system has been deliberately gamed by cowboy builders creating large structures or even whole developments before trying their luck with the local council to see whether they can get retrospective planning permission. There is one infamous case in Bedfordshire, which saw a local business owner who was originally granted permission to make a modest improvement to his 1960s bungalow end up building a three-storey mega-mansion, complete with a turret and sweeping balconies. That is just not right; it is the sort of egregious development that should not be allowed.

In other cases, we have heard of, as my right hon. Friend the Member for Beckenham (Bob Stewart) has said, lorries and building equipment arriving on site in the dead of night or at the weekend, and people laying internal roads and hardstanding without planning permission. Retrospective planning permission is then sought soon afterwards, and wrongly so. Clamping down on such flagrant planning violations and abuses of the system is going to be a key focus of my Department. It is one of the reasons why we have made intentional unauthorised development a material planning consideration, meaning that local authorities can factor in intent behind the unauthorised development when considering a retrospective application. In other words, it is not enough for builders to plead ignorance when it is plain for all—not least the planning authority—to see that they were well aware that their structure needed planning permission right from the outset.

Legislation also states that retrospective applications must be assessed in the same way as standard planning applications, so that permission cannot be granted retrospectively if there was little or no prospect of it being approved in the first place.

People making small improvements to their own home or garden are human, like all of us. Our constituents might not always think that we are human, but, like them, we are, and we know that genuine mistakes can be made. They will happen, so it would be unfair, where someone built their rear extension a foot too high, for example, or erected a fence in the wrong place, to take a sledgehammer to that work when retrospective planning permission would do. We have to be fair, as my hon. Friend the Member for Orpington said in his remarks.

With that principle in mind, while also accounting for the natural frustration that people and communities can feel about unauthorised development, criminalisation for infringements that fall into the minor or unwitting camp would be disproportionate. That is why we need to make sure that any changes we make are right and do not lead to unintended and unfair consequences.

As the House will know, we are considering a whole suite of possible planning reforms. I reassure my hon. Friend that that includes consideration of whether the current scope of offences is fit for purpose. He mentioned some matters, including using such terms as “egregious” in the law. We would need to look closely at that to ensure that there is a fair and proper legal interpretation of that word. He mentioned the greater use of fines, and we will certainly look at that possibility. The fundamental must be that the system deters retrospective planning applications and also deters the activity that results in those retrospective applications—the building in the first place.

We recognise that these reforms will only be worth making if our local authorities and the wider planning sector have the right tools to implement them and are able to give our planning enforcement regime proper teeth. To that end, an additional £65 million was made available by my right hon. Friend the Chancellor of the Exchequer at the Budget last year. That will help build the skills and capability that we need at the local level to translate our words into deeds on the ground.

As we look beyond the here and now, our commitment in the long term is to digitisation. Digitisation will mean that local authorities and their planning officers have much more space and much more time to focus on the things that really matter, rather than the administrative bumf that goes along with the present planning system. By digitising the system, we can make it more effective, and we can also create the headroom for planning officers and other officials to be more effective in their own work.

I will say a few brief words on appeals, which I know are a bugbear for many communities that find themselves in protracted and exhausting disputes. We certainly want them speeded up. It is absolutely right that everyone should be able to make their case and to have that case heard. Our priority is to accelerate that process by closing loopholes through future planning reforms. We are undoubtedly making progress in that direction. In the 18-month stretch from March 2020—the height of the covid pandemic—the Planning Inspectorate issued some 3,300 appeal decisions on enforcement cases. However, as I set out, there is more to be done to improve how the fundamentals of our appeals process work, and that has to start with removing the incentive for those who set out deliberately to abuse the system to try to delay the appeals process. I will say more about that as we advance our planning reforms, and I am happy to discuss it further with my hon. Friend and other Members to ensure that we get this aspect of our reforms right.

I thank my hon. Friend for championing this issue on behalf of his constituents, and I thank all right hon. and hon. Members who contributed. The concerns raised echo through local authorities around the country, and I assure the House that they echo through my Department. They will have been heard loudly and clearly, and we are determined to act on them. I look forward to working with colleagues from across the House in the months to come to ensure that we get our planning reforms ready, right and on the statute book so that all our constituents are protected.

Question put and agreed to.