Planning Bill

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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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