Memorandum submitted by Arnold White Estates Ltd (PB 8)


1.0 Introduction.


1.1 This document has been prepared by Hives Planning on behalf of Arnold White Estates Ltd (AWEL) in response to the publication of the Planning Bill.

1.2 AWEL owns and/or manages major landholdings throughout England and is currently promoting significant housing and mixed use development in Bedfordshire, the South West and East Anglia. In total it is estimated that AWEL could contribute some 15,000 - 20,000 dwellings, a significant contribution to Government objectives of a step change in housing supply. It is also involved in employment related development, particularly in leisure and retail. AWEL's particular expertise is the development of former quarry sites, typically located on the edge of settlements and well related to existing urban areas.

1.3 AWEL agrees with the Government's response to the White Paper consultations that the planning system remains too complex, bureaucratic and inefficient. AWEL also broadly supports the changes to planning in the Bill. However, there are three issues of concern that we would wish the Committee to explore. We discuss these below.


2.0 Infrastructure Planning Commission (IPC)


2.1 AWEL shares the concern of many that the time taken to plan and approve major infrastructure projects is an impediment to economic growth. Under the current regime a project may require many different consents. There is a lack of clarity in national policy which in turn leads to lengthy and adversarial inquiry processes and slow decision-making.

2.2 There is a strong case for introducing greater certainty for such schemes in line with the proposals set out in the White Paper and the Bill. AWEL supports the introduction of National Policy Statements to help create such certainty, particularly through reducing the requirement to prove 'need' for each scheme. However, following the White Paper and the Planning Bill two issues remain to be adequately addressed:


Democratic input. Effective input into the statements from local authorities, communities and others will be essential if they are to be robust and not subject to judicial review. Sections 37, and 42, 43 and 44 of the Bill set out the framework for the applicant to undertake consultation prior to a proposal being submitted and after submission. The use of a Parliamentary Select Committee to scrutinise National Policy Statements is welcome. There is also provision for the Secretary of State to issue guidance on how such consultation should be undertaken. Clearly, the content of such guidance will be critical to the legitimacy of the IPC approach. Further details on how the Government envisage the approach to consultation working should be sought.


Site identification. Specifying sites for infrastructure projects will help provide greater certainty and avoid debates over alternative sites at any Hearing. However, the provisions under Sections 5-8 of the Bill give little indication on the criteria to be used in identifying sites. Whilst there will be publicity and consultation on the National Policy Statements (Part 2) there is little indication of how such statements will be drawn up. Other than conforming to a sustainability appraisal there is no indication how the statements will relate to Regional Spatial Strategies and Local Development Frameworks.


3.0 Community Infrastructure Levy (CIL)



3.1 AWEL made detailed representations on the proposals for a Planning Gain Supplement (PGS) arguing that PGS would have inhibited development and been costly, complex and bureaucratic to administer. AWEL supports the principle of a levy.


3.2 Nevertheless, as drafted the Bill provides far too much discretion to the Secretary of State in deciding the detail of the levy. Whilst this is unavoidable to a degree the Bill allows for a range of possible calculations for the levy including land value uplift (i.e., PGS) (s. 166 (4) (b) ). The actual amount of the levy needs to be more clearly articulated. There needs to be more in the Bill on how the Government would stop authorities using CIL as a replacement rather than supplement to core funding or authorities using CIL to thwart development. Without further detail of how the Government envisage CIL operating it is difficult to make anything other than general comments. Section 170 does not go far enough in this respect.


3.3 The Bill does not specify that all authorities will be covered by the levy (s. 164). To avoid a messy, complex and more costly patchwork approach where some authorities decide to continue to use Section 106 agreements while others use a combination of levy and Section 106, CIL should be universally introduced. This could be achieved through an amendment to Section 164.


3.4 AWEL agree that the levy must be based on a fully costed assessment of local infrastructure need and detailed in a Development Plan Document to allow scrutiny through an Examination in Public. However, two issues arise in relation to the above. First, fully costed assessments and DPDs are unlikely to emerge in some areas for a considerable time. As the Government has accepted in its Housing Green Paper and other associated documents the need to achieve a step change in housing delivery is likely to mean sites being taken through the planning system in prior to a Local Development Framework being adopted. In such cases it would defeat the objective of increased housing delivery if development had to wait for a levy to be calculated. AWEL would suggest that in such circumstances a Section 106 arrangement be used. Second, the point above with regards to core and levy funding of infrastructure is relevant. The crude formula for a local levy is the cost of off-site infrastructure associated with development over the plan period minus planned programme spending in each of the sectors (e.g., health, education, etc.). The amount is then proportioned to development on a per house or (for commercial development) area basis. One critical component will be stopping public bodies cutting back core funding on the assumption that it will be replaced by the levy. This should be made clear in section 170 (1) (a) of the Bill. Also, there needs to be provision for larger developments where infrastructure such as schools, etc. is actually provided on site. In such cases the appropriate element of the levy would need to be recoverable by the provider by way of a claim against the overall fund


3.5 It is not clear in the Bill who will be banker for the levy. There is no reason why a developer cannot act as banker in appropriate circumstances. An amendment to section 168 would allow this.


3.6 Banked money should not be hypothecated for specific uses but should be able to be used flexibly to meet demands and needs as they arise. The current sections in the Bill are vague on this.


3.7 The relationship between Section 106 agreements and the levy will be critical. A revised Circular 5/2005 will need to clarify on and off site infrastructure provision. There is no provision in the Bill to ensure this occurs.


3.8 Section 166 (e) of the Bill allows for reductions in the Levy. This should be amended to make specific provision for abnormal development costs to be offset against the levy. This is a critical requirement if difficult or previously used sites are to play their part in delivering growth.


3.9 Section 168 (2) (b) of the Bill allows for phased payments though it needs to be made clear that these will be appropriate for phased developments.


3.10 The Bill allows for the levy to differentiate between different developments and land types. If the levy is to back up wider Government policy (e.g., the preference for brownfield development) section 171 (1) needs to be made much more explicit.


4.0 Appeals and Local Member Review Bodies.



4.1 Following consultation in the White Paper section 150 of the Bill includes provisions to make changes in the way in which planning applications and appeals are dealt with. The proposals include the establishment of Local Member Review Bodies (LMRB) that would determine appeals against officer decisions rather than, as currently, the Planning Inspectorate. There was considerable opposition to this proposal when it was first floated in the White Paper: 87% of business respondents and 74% of government respondents disagreed with the proposal.


4.2 AWEL had a number of concerns including the independence of LMRBs and the inconsistency with Article 6 of the 1998 Human Rights Act which guarantees the right to a fair trial. These issues have not been addressed by the Government. LMRBs will be rightly accused of being open to political and internal bias and will lead to inconsistent decisions bringing the planning system into disrepute. A likely outcome of this approach would be for an aggrieved applicant to undertake development and then appeal the enforcement notice to the Planning Inspectorate. This would defeat the objective of reducing the Inspectorate's workload and add to the workload of the local authority. If this system is taken forward then the type of proposal that will fall within it will need to be clearly set out and be at the minor end of the development scale (e.g., house extensions).


4.3 The introduction of fees for appeals in section 161 of the Bill is not objectionable in principle. However, when allowed the appellant's costs should be paid by the Local Planning Authority as a matter of course. This would ensure that local authorities seriously consider the implications of refusing proposals. Decisions based upon up-to-date LDFs would be likely dismissed at appeal.

January 2008