New Clause
23
Third
party rights of appeal
‘(1)
TCPA 1990 is amended as
follows.
(2) After section
78(2) (right to appeal),
insert—
“(2A)
Where a local planning authority approve an application for planning
permission, certain persons as specified in subsection (2B) below may
by notice appeal to the Secretary of
State.
(2B) Persons who may by
notice appeal to the Secretary of State against the approval of
planning permission in the circumstances specified in subsection (2A)
above are—
(a) any persons who have lodged a formal objection
to the planning application in writing to the planning authority for
the area in which the land to which the application relates is
situated;
(b) other persons at
the discretion of a person appointed by the Secretary of State for that
purpose.”
(3) In section
79 (determination of
appeals)—
(a) in
subsection (2), the word “either” shall be omitted, and
after the words “if the appellant or the local planning
authority” there shall be inserted the words “or the
applicant (where different from the
appellant)”;
(b) in
subsection (6), after the words “or to proceed with the
determination”, there shall be inserted the words “except
for appeals as defined in section 78, subsection (2A), and where the
appellant is as defined in section 78, subsection
(2B)”;
(c) After
subsection (7), there is
inserted—
“(8)
The Secretary of State shall have a discretion to dismiss an appeal or
referral where, having considered the grounds of appeal or referral,
the Secretary of State is of the opinion that the appeal or
referral—
(a) is
vexatious, frivolous or without substance or foundation,
or
(b) is made with the sole
intention of delaying the development or the intention of securing the
payment of money, gifts, consideration or other inducement by any
person.”’.—[Dan
Rogerson.]
Brought
up, and read the First
time.
5
pm
Dan
Rogerson:
I beg to move, That the clause be read a Second
time.
The
new clause deals with third-party right of appeal. This is by no means
the first time that it has been raised. It was raised by a few Members
on Second Reading, not least the hon. Member for Stroud (Mr.
Drew), and I think the hon. Member for Pudsey (Mr. Truswell)
also referred to it.
The issue is
a source of mystification and some frustration to constituents who come
to us following the granting of planning permission on a particular
development. They come to a local Member of Parliament in the hope that
the Member can overrule the local planning authority and change the
judgment, and they are unhappy to discover that that is not the case.
When they ask what options are open to them, they are told that
judicial review is the only course that could overturn a planning
decision.
I accept that
there are many potential problems with this course of action. If every
planning application were subject to a third-party right of appeal we
would soon have no planning applications going through the system, as
it would be clogged up. It needs to be quite clearly defined,
therefore, and there has to be a set of circumstances that are
prescribed within which such a right of appeal may be
exercised.
We do need,
however, to explore this issue again. There is a sense of inequity.
Those who propose the development are almost in an equal position to
those who object to it, perhaps for valid reasons, when it is initially
considered by a planning authority, but if the permission is not
granted, there is a right of appeal for the applicant, whereas if it is
granted, there is no right of appeal for those who have
objected.
The likelihood
that a planning committee may have got it wrong and may have overlooked
a factor is the same in both circumstances. There is a difference of
opportunity, therefore, between those who are seeking to pursue a
scheme and those who are seeking to object to it. We have already
discussed the fact that the infrastructure planning commission will
take away bigger schemes from local authorities, albeit many that would
have gone to the Secretary of State anyway through the planning
inspectorate. It would be a good message to those who feel that local
democracy is being undermined that there is the opportunity for their
voice to be strengthened through the planning process by way of a
third-party right of appeal.
I am not
expecting the Minister to jump on this straight away and say,
“Yes, of course I accept it,” but it would be interesting
to hear the Government’s current thinking on this and whether
there are any limited circumstances within which they think this might
be re-examined. There are many groups who have been consulting with all
Members of the Committee over this Bill and who will be submitting
evidence who feel that there is scope for some form of third-party
right of appeal. It must not be designed to gum up the planning
process. It should be seen as an attempt to ensure that there is a
level playing field, so that those people who have legitimate
objections to a scheme are not forced to consider judicial review as
the only means of addressing their concerns. I hope that the Minister
will say something about what might be done for people in that
position.
Mr.
Llwyd:
I support the new clause. As the hon. Gentleman
says, it is not the first time that the issue has been discussed here.
Of course, in any planning application, more often than not there is a
disappointed person who might wish to object. There is a class of
professional objectors—let us not forget about those dear
people. However, if somebody, a neighbour for example, is badly
affected by a planning decision, it is entirely reasonable for there to
be a third-party right of appeal where there is a prima facie case for
that.
The hon.
Gentleman is right. We all have all met people in our surgeries who
say, “They have big-gun lawyers from various places to do this,
that and the next thing for them. I was listened to, but I am not sure
whether they followed my argument, and anyway it was dismissed. Now, I
have this potential bad property being built next door to me. It has
devalued my property and made my life miserable. Why can I not
appeal?”.
It
is not a far-fetched notion, since the new clause contains a sort of
gateway for sorting out the wheat from the chaff. I should also flag up
that in several other jurisdictions not too far from here, it works
very happily. Think of the model in Ireland, where they have a
third-party right of appeal. It is not overused or misused, but it is
there if necessary. To say, as we heard earlier, that the only route
for challenge for a neighbour or an aggrieved person must be through a
judicial review, is no comfort at all. I speak as a
barrister—judicial review is an expensive process. It must be
undertaken within a defined period by specialist counsel, who do not
come cheap. Importantly, the decision must come within what are called
the Wednesbury principles: the planning board or authority must have
acted unreasonably, and to prove that is a very narrow
gateway.
To be blunt,
for most people there is no redress at all, and the new clause is
designed to put in the Bill a form of redress for people who are
genuinely aggrieved and affected. It is highly reasonable, and looking
at other jurisdictions—I know a little about the Irish
system—it is not overused but is there when necessary. I fully
support the new clause, and will listen with interest to what the
Minister has to say.
Mr.
Dhanda:
The hon. Members for North Cornwall and for
Meirionnydd Nant Conwy make the counter-argument as well as the
argument, by pointing out that there is no clear way of doing this in
terms of third parties. The hon. Member for Meirionnydd Nant Conwy
mentioned professional objectors, and how to get around them. It is
true that we have a different role and different rights for applicants
and third parties. The hon. Gentlemen have hit the nail on head in
terms of the dangers and problems relating to third parties that get in
the way and block very good and positive developments that could make a
difference in local communities.
It is also
important to remember the discussion that we had on part 9, when we
talked about the democratic accountability of the system through
elected councillors. Those councillors represent their communities.
They must take into account the views of local people on planning
matters before decisions are made, and justify those decisions
subsequently to their electorate. I do not think we should
underestimate the importance of that. Although the hon. Member for
North Cornwall says it would be nice to have this third-party right of
appeal, he himself gets across the fact that it would be very difficult
to do it without having issues with professional objectors and people
who will delay a process for a significant
period.
Mr.
Llwyd:
The Minister spoke a moment or two ago about the
role of councillors. There is a problem with that, as well. If, for
example, a development was seen to be for the greater good, and
Mr. A came along and said, “Well, it might be for the
greater good, but it will ruin my property,” it would be
difficult for a councillor to represent the views of that individual.
More importantly, there should be a process at arm’s length from
the councillor and the procedure where a person can legitimately take
their claim if it qualifies. Regarding vexatious appeals, there is in
the new clause a procedure for separating the wheat from the
chaff.
Mr.
Dhanda:
This goes back to a point about the role of
councillors made by my right hon. Friend the Member for Cardiff, South
and Penarth at an earlier stage in Committee. The hon. Member for
Meirionnydd Nant Conwy himself was quite right when he said that in
this process there will always be people who are aggrieved and people
who are not aggrieved. However warm our words and our minds are now, I
cannot change that. There are other important aspects. Anyone who is
concerned about the handling of a planning matter can always go to a
local authority’s monitoring officer. There is also the
ombudsman process, which they can use without having to have expensive
barristers. While taking on board the concerns raised by the hon.
Member for North Cornwall, I am afraid I must disagree with him,
and I hope, for the reasons that both he and I have outlined, that he
will consider withdrawing the
motion.
Dan
Rogerson:
It is, in a way, unfortunate that we are talking
about “third-party” rights of appeal, which implies
someone wandering past, somewhat removed from the decision. Actually,
we are dealing with people whose lives could be very much affected by
what goes on. I have listened very carefully to the Minister, but we
need to make the distinction between a third-party right of
appeal—I am using the phrase myself—and a third-party
right of veto, which is not what we are talking about.
The Minister
seemed to imply that this would be a process where objectors could halt
development. In fact, it would simply be a way for them to delay
development, although, as the hon. Member for Meirionnydd Nant Conwy
said, there is provision in the new clause for the Secretary of State
to dismiss appeals made with the sole intention of delaying. It would
in no way give objectors a right of veto. It would merely level the
playing field in terms of developers’ rights, although in saying
that I am at risk of straying into a later new clause about playing
fields. If it is the case, with regard to accountability, that
councillors should have the final say and that there should not be a
right of appeal, why is there a right of appeal for developers over the
heads of local councillors? That is, in a way, a circular
argument.
The
Minister also talks about appeals to the ombudsman. The ombudsman can
look into something and say that the council was perhaps a little bit
naughty, or behaved poorly, and say, “Yes, you have been treated
badly, here is £50 or £100 or an apology from the
council,” but that will not change the planning application at
all. People may feel vindicated, but that does not change the problem
they had in the first place. The ombudsman will not be able to overturn
the decisions; only judicial review can do
that.
5.15
pm
I
am not convinced by the Minister’s arguments. I appreciate that
this is a contentious and difficult issue, but as we heard from the
hon. Member for Meirionnydd Nant Conwy, other countries have looked at
it and come up with systems that work. I will not press the new clause
to a vote, but I hope that the Government have listened to the
arguments. I know that there are feelings across the House about this,
and whether we return to it at a later stage of the Bill remains to be
seen. I beg to ask leave to withdraw the motion.
Motion and
clause, by leave, withdrawn.
New Clause
24
Playing
fields
‘(1) The Town and
Country Planning (General Development Procedure) Order 1995
(“the 1995 Order”) shall be amended as
follows.
(2) In paragraph
(z)(ii)(aa) of the table in Article 10(1) (as amended by the Town and
Country Planning (General Development Procedure) (Amendment) Order
1996) leave out “5” and insert
“20”.
(3) In
paragraph (ii)(l) of Article 10(2) of the 1995 Order, leave out
“0.4” and insert
“0.2”.’.—[Dan
Rogerson.]
Brought
up, and read the First time.
Dan
Rogerson:
I beg to move, That the clause be read a Second
time.
This is an
interesting part of our deliberations, in that all hon. Members now
have the opportunity to look at other aspects of planning that were not
at the heart of the earlier areas of the Bill. This could be our only
opportunity to debate them for several years to come, so there are a
number of issues that we want to raise.
The new
clause provides the opportunity to get the Government’s stated
policy into the Bill. The Government have a long-standing commitment to
look at these issues and protect playing fields. There are two problems
with the current regulations. First, there is a five-year limit, so if
somewhere has not been used as a playing field for five years it is not
covered. Secondly, there is a premium with regard to size of 0.4, which
the new clause would change to 0.2. I understand that Sport England has
made this point, and the Government have said that it will be
addressed.
My hon.
Friend the Member for Bath (Mr. Foster) has been quite
assiduous in pursuing Ministers on this over some time. In response to
his parliamentary question last July, the Under-Secretary of State for
Communities and Local Government, the hon. Member for Hartlepool
(Mr. Wright)
said:
“this will be
reflected in the consultation paper on the review of statutory
consultees due later this year”—[Official Report,
17 July 2007; Vol. 463, c.
226W.]
Nothing had come by the
time we approached the end of the year, so there was a further question
from my hon. Friend in January, and this time the same
Minister’s reply was that the review of statutory consultees
would
“be published in
due course.”—[Official Report, 15 January 2008;
Vol. 470, c. 1168W.]
We have
moved from having it by the end of last year to “in due
course”, which does not inspire a huge amount of
confidence.
We
have up to 850 cases of development occurring on playing fields each
year, so this is a matter of some urgency. The Government have already
said that they wish to protect playing fields. By accepting the new
clause, which would increase the period to 20 years and address the
issue of the size of the fields, they would be able to solve this
problem. I hope that the Minister will be feeling generous on this
occasion.
Mr.
Dhanda:
I am grateful to the hon. Gentleman for bringing
the issue of playing fields to our attention. He mentioned some cases,
but we have no clear evidence of this being a widespread
problem—I will talk a little more about that in a moment. The
hon. Member for Carshalton and Wallington is, I hope, aware of our
position on this, as my hon. Friend the Member for Hartlepool wrote to
him as recently as 15 January.
We believe
that the first element of new clause 24 is entirely unnecessary, as PPG
17 in its entirety already provides the necessary protection. Even if
the land is no longer a playing field—in other words, the
five-year period that is currently set has expired—the land will
still receive protection as open space under PPG 17, which is
important. Ministerial colleagues have agreed that officials should
meet Sport England to discuss this
matter further, which they will. If change is needed, it can be achieved
by amending secondary legislation, rather than the
Bill. On
the second element that he raised, the hon. Gentleman will be aware of
the parliamentary answer that my hon. Friend gave the hon. Member for
Bath on 15 January. I am not sure whether the hon. Gentleman mentioned
this part of his answer, but I will quote from it. My hon. Friend
said:
“We
are committed to reducing the threshold for statutory consultation on
the sale of playing fields from 0.4 hectares to 0.2
hectares”.—[Official Report, 15 January 2008; Vol.
470, c. 1168W.]
It sounds like a
reduction in this case is a good thing. This topic will be included in
the consultation paper in the review of statutory consultees to be
published in due course. We hope to introduce amendments to the Town
and Country Planning (General Permitted Development) Order 1995
following the
consultation.
I
hope that the hon. Gentleman is reassured that we are actively pursuing
both topics that he raised. I invite him to withdraw the motion and
will undertake to write to him about the Sport England
process.
Dan
Rogerson:
The Minister made it clear that the Government
are considering this issue very closely. However, there are Government
figures that show how many applications are made each year. As I have
said, there are 850 based on the latest Government figures. Sport
England said that about 50 of those constituted a significant threat to
playing fields. While I am grateful to hear that the Government are
continuing to pursue action on this matter, the longer they delay, the
fewer playing fields there will be to protect. It is therefore
important that action is taken as soon as
possible.
What
I was trying to illustrate with the changing answers that my hon.
Friend the Member for Bath received to his questions between July last
year and January this year was that at one point the Government were
talking about introducing something by the end of last year, and now
they are talking about its happening “in due course”. I
am glad that it will happen, but when it will happen is the
question.
I
will not seek to press the motion, but I would like to add one other
point. As I understand it, the protection is quite closely drafted to
cover sports pitches and specifies a number of particular sports. There
may well be pressure on play areas used by younger children. For some
reason, the local authority might have decided to withdraw or not to
maintain the play equipment. Those are not sports pitches as such, but
they are important amenities for young children and their parents. As
part of the consultation, I would like the Government to look at that
issue as well, to see whether the provision can include those important
play areas. It is very common in new developments to have a play area
as the area of green space, under section 106 agreements. It is very
important to protect those areas. I beg to ask leave to withdraw the
motion.
Motion
and clause, by leave,
withdrawn.
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