Localism Bill

Memorandum submitted by the Campaign to Protect Rural England (L 34)

1. The Campaign to Protect Rural England (CPRE) welcomes the opportunity to submit evidence on the Localism Bill. We support the Government’s aspiration to empower communities by increasing their involvement in shaping the areas in which they live and work. As set out in our publication, Planning for People (1999), we have believed for a long time that greater involvement of local people can lead to better decision making. Only with a fully accountable, fair and transparent planning system, which effectively responds to community concerns, can public confidence in planning be rebuilt. Our new charter Making localism work for the countryside sets out CPRE’s aspirations for the current planning reforms.

2. CPRE exists to promote the beauty, tranquillity and diversity of rural England by encouraging the sustainable use of land and other natural resources in town and country. As a charity with a branch in every English county, over 200 district groups, and with more than 2,000 parish council members, we have considerable local and national expertise concerning planning policy. The proposed reforms have the potential to revitalise the planning system. In its current form, however, the Localism Bill presents threats as well as opportunities for communities and the countryside. We urge the Committee to seek clarification of the implications of aspects of the Bill and agree amendments where necessary.

3. While welcoming the aspiration to increase community involvement in decision making, we are concerned, however, that the reforms should not place undue weight on short term economic considerations at the expense of environmental and social factors or the wider public interest. The neighbourhood planning system is welcome but will only be used if it is open, fair and accessible, and genuinely operates in the interests of local communities. In this submission we would like to emphasise the following key points:

· A plan-led system is critical to mediate between often conflicting views to secure necessary development while ensuring we can all benefit from an attractive and well designed natural and built environment.

· We would like a stronger system to protect assets of community value, and clarity on how this will apply to valuable open space subject to the new local green areas designation.

· Greater clarity is needed on the relationship between local development plans, neighbourhood plans, neighbourhood development orders and community right to build orders.

· A limited community right of appeal is essential so that only development in line with the views of communities, as set out in local and neighbourhood plans, is permitted.

· The need for a strategic approach to ensure appropriate consideration is given to issues that cut across administrative boundaries. The duty to co-operate may not be sufficiently strong to ensure a strategic overview is maintained.

· We support the ending of Planning Inspectors’ powers to change local plans, action on enforcement and the abolition of the Infrastructure Planning Commission

Importance of the plan-led system

4. It is essential that the principal role of spatial planning is not forgotten as these reforms are taken forward. In recent years the planning system has been described as broken, overly bureaucratic and a barrier to economic growth. While we agree that the existing system is by no means perfect, it should be remembered that it plays a critical role in mediating often conflicting views to secure necessary development while ensuring we can all benefit from an attractive and well designed natural and built environment.

5. CPRE recognises the need to revive the economy but the planning system should not be viewed simply as an economic tool. If it is not underpinned by the principles of sustainable development, which require environmental, social and economic issues to be given equal consideration, economic growth in the short term is likely to result in unforeseen and undesirable environmental and social issues in the longer term. Critically, planning exists to deliver decisions on land use in the public interest for the long term benefit of the nation and not for any particular sector or short term interest.

5. The statutory purpose of planning, as currently set out in section 39 of the Planning and Compulsory Purchase Act 2004 (as amended) (PCPA) is to achieve sustainable development. This purpose should also apply to the new neighbourhood planning regime and be reinforced by the forthcoming National Planning Policy Framework (NPPF). CPRE wants to see sustainable development defined in clause 90 of the Bill, as we believe this would make interpretation and implementation of the duty in section 39 of the PCPA, and the duty to co-operate on local planning authorities in clause 90 of this Bill much clearer. Part 5 of the Bill should also make clear that strategically defined sustainable development should be delivered through the plan-led system.

Assets of community value (Part 4, Chapter 4, Clauses 71 – 88)

6. The Bill currently provides that if and when an asset registered on a local authority’s list of assets of community value becomes available for sale, the sale will be paused for a given period of time, within which the community will be able to register an interest in its purchase. This period of time is to be defined by regulation. We are concerned that the provision under section 79 does not go far enough for communities, and that even with the opportunity to register their interest, they will still find it difficult to compete and succeed in acquiring important community assets. We would like to see stronger provision for communities to protect assets, either by giving communities the ‘right of first refusal’ on listed assets, or by promoting the use of Compulsory Purchase Orders.

7. The coalition agreement states that the Government will ‘create a new designation to protect green areas of particular importance to local communities’. Such a designation would help to protect these green areas in perpetuity. We understand that Ministers intend to progress this commitment through the National Planning Policy Framework. We would welcome such a designation being given statutory footing in the Bill. It is also critical that the criteria for designation and protection are sufficiently robust. We seek clarity from Ministers on what the relationship will be between lists of assets of community value, and the new green areas designation.

Neighbourhood planning (clause 96, schedules 9, 10 and 11)

8. CPRE has welcomed the Government’s aspiration to get local people more involved with planning. We support the proposal that neighbourhood plans which have sufficient local support will become part of the Development Plan. We believe that if these plans are to be successful, those developing them will need to ensure local people have access to a sound evidence base. We would also like to see a jargon-free, open and accessible process. We are concerned, however, that the proposals set out in schedules 9, 10 and 11 of the Bill, which will introduce neighbourhood development plans, neighbourhood development orders and community right to build orders, are too complex and will be difficult for communities to understand, let alone use.

9. The proposals for neighbourhood plans could make it possible for local people to begin to shape the development that takes place in their areas. We wholeheartedly welcome this proposition, and hope that when enacted this Bill will realise such an ambition. However, spatial planning has some objectives that are bigger than local. This is something that the Government has recognised by committing to prepare an NPPF that will be ratified by Parliament. To ensure that this NPPF is effective, we believe that the new neighbourhood planning system should be in general conformity with it. We believe that the wording in Clause 96, Schedule 9 should be strengthened to reflect this.

10. In Schedule 9, clause 38B, the Bill states that neighbourhood development plans may not include provision about development that is ‘excluded development’. Clause 38B also allows the Secretary of State to restrict the provision that neighbourhood development plans will be able to make about the use of land. Ministers should be clear about how far the restrictions on neighbourhood development plans will go. Will neighbourhoods be able to propose less development for their areas than that outlined in a local plan, or do these provisions only allow neighbourhood development plans to propose additional development?

11. While CPRE accepts that neighbourhood development orders could help communities to secure very particular types of development in a chosen location, we favour a holistic and genuinely spatial plan-led process. For this reason we believe that communities must be able to prepare neighbourhood plans without the requirement that they are accompanied by neighbourhood development orders. We believe that this is also the Government’s intention, but our reading of the wording in clause 7 of Schedule 9 is that a vote on a neighbourhood development order is currently required to make a neighbourhood development plan. We would welcome the Minister’s clarification that this is not the case and suitable amendments made to the Bill if necessary.

12. We are also concerned that processes to develop community right to build orders will be able to run in parallel with, and therefore essentially bypass, other neighbourhood planning processes. Schedule 11 states that a local planning authority could only decline to consider a community right to build order if they are already considering another order and the ‘development and site to which the proposals relate are the same’. This suggests a community right to build order should be considered, even if it is substantially different to what is being promoted by a neighbourhood development order which has been developed by a parish council in close consultation with a local community.

13. It is important that community right to build orders do not undermine the effectiveness of neighbourhood plans and neighbourhood development orders. In the interests of delivering a more streamlined planning system that is open and accessible to all, we believe that subsection 3 of clause 96 should be reconsidered. As currently conceived we do not believe that community right to build orders should be taken forward as part of the reforms.

Rights of appeal

14. CPRE is disappointed that despite pre-election pledges by both governing parties, a limited community right of appeal against decisions to grant planning permission has not been included in the Bill. Such a right should be seen as a vital part of localism, necessary to ensure these reforms realise their full potential. Where decisions are taken that are not in line with an agreed development plan, and therefore against the wishes of the local community, we believe the public should be able to question this through an appeals process.

15. We recognise that there would need to be limitations to ensure that such a right could not be abused to act as a general block to development. First, we advocate clear rules and guidance to ensure that only those with proven ‘standing’, similar to the test applied for judicial review, can appeal. Second, a community right of appeal should only be triggered where a decision to grant planning permission significantly departs from an adopted local or neighbourhood plan, or where the local authority has a financial or other interest. Recent Government statistics [1] state that, in the last decade, 8,663 planning applications - just 0.15% of the six million submitted in this period - were deemed to have significantly cut across agreed development plans. There are somewhat more cases where a local planning authority has an interest – according to the 2002 Planning Green Paper, approximately 5,000 applications a year. But again, this is a very small percentage (less than 1%) of all planning applications submitted. This shows that the vast majority of applications would be unaffected by the introduction of this safeguard, and we would support clear rules and guidance on ‘departures from plans’ to minimise the scope for abuse. But it would be an important safeguard nonetheless to ensure communities can resist the worst development proposals.

16. CPRE is concerned that the current system is manifestly unfair and allows big business to intimidate local authorities and communities and bully them into accepting otherwise undesirable development. For example, supermarket developers are able to submit appeal after appeal until they succeed in gaining planning permission. For this reason, we believe the introduction of a limited community right of appeal should be accompanied by restrictions on the existing blanket right of appeal for developers. Such reforms would help ensure that neighbourhood and local plans are meaningful and represent a real step change in the planning system in favour of local communities.

17. We understand that the Government believes that a community right of appeal is unnecessary. It is suggested that the new neighbourhood planning system will be sovereign, and therefore that it will not be possible for local planning authorities to give planning permission for applications that depart from a neighbourhood plan. Our reading of the Bill is that, as drafted, developers will still be able to submit planning applications that are contrary to a local or neighbourhood plan, as well as to appeal against any refusal based on the provisions of the local or neighbourhood plan. Local authorities will also still be able to grant permission for planning applications that contravene a neighbourhood plan on the basis of current legislation, provided that there are ‘material considerations’ which override this plan. In such a situation those who prepared the neighbourhood plan would still be unable to appeal. We believe that, in these limited circumstances, communities should have a right of appeal as a power of last resort.

Local planning (clause 92)

18. CPRE has long had concerns that the Inspector’s ability to change local plans undermined the community participation involved in developing the draft documents. We support clause 92, therefore, which ensures that Inspectors will no longer be able to make modifications to local plans when they are submitted for examination. Instead responsibility for making alterations to plans is to be handed back to local authorities, although they will still be able to consult with Inspectors on the content of these changes.

Strategic planning (clause 90)

19. Following the abolition of regional plans, clause 90 introduces a ‘duty to co-operate’ for local authorities and any other person or organisation involved in planning for sustainable development. We recognise that regional plans, and in particular their top-down housing targets, caused much concern at the local level, including to CPRE groups up and down the country. We believe that a strategic approach is necessary, however, to ensure appropriate consideration is given to issues that cut across administrative boundaries. The duty to co-operate may not be sufficiently well defined to ensure a strategic overview is maintained. It is not clear how the duty will be enforced or, for example, what is meant in clause 90 by requiring a person to ‘engage constructively, actively and on an ongoing basis’, and what would constitute a ‘substantive response’.

20. The clause also refers to sustainable development but does not define the term. Rather than leaving this to be defined in guidance we believe the inclusion of a clear definition of sustainable development, on the face of the Bill, would make interpretation and implementation of the duty to cooperate much clearer. The Bill should also make clear that strategically defined sustainable development should be delivered through the plan-led system.

Enforcement (clauses 103 – 106)

21. Effective enforcement of planning controls is crucial to the credibility of the planning system. If local communities are to be encouraged to engage, and to believe that neighbourhood plans will have a positive impact, deliberate abuse of the planning system needs to be prevented. We welcome, therefore, much of chapter 5.

22. CPRE has serious concerns, however, about the proposed time-limited immunity for planning enforcement. Enforcement is commonly under-funded in local authorities and so detecting breaches can take time. While we are pleased that clause 104 tackles the issue of concealed breaches, time-limited immunity can be seen as legitimising inappropriate actions as long as they remain undetected for a certain amount of time. To address this, we believe that clause 105 should be amended to remove the provisions that proceedings for non-compliance with either tree preservation regulations, or the enforcement of control as to advertising, cannot be commenced more than three years after the date on which the offence was committed.

Nationally Significant Infrastructure Projects (clauses 107 – 118)

23. We welcome clause 107 which abolishes the Infrastructure Planning Commission and passes its decision-making functions on nationally significant infrastructure projects back to the Secretary of State. Since an independent decision-making commission was first proposed we have raised concerns about the democratic legitimacy of such an arrangement, as we support the Government’s position that major planning decisions should be made by an accountable Minister or local authority.

24. In light of the importance of this regime, and the associated National Policy Statements, we believe that the proposed new text in clause 109(2) should be amended. As it stands, this would enable a National Policy Statement to be designated if the ‘consideration period has elapsed without the House of Commons resolving during that period that the statement should not be proceeded with’. CPRE believes the House of Commons should actively approve a statement by resolution before the end of the consideration period.

January 2011

[1] HC Deb, 13 Sep 2010, cc 757-8W