Localism Bill

Memorandum submitted by Chapter 7 (L 119)

Chapter 7 is a voluntary organization which campaigns for "access to land for all households through environmentally sound planning" (a quote from Chapter 7 of Agenda 21). We lobby for planning policies that further this aim, and we also provide planning assistance for low income rural people facing planning problems. We have published a number of publications on rural planning, and we provided input into the One Planet Development policy in Technical Advice Note 6 of Welsh Policy Guidance.

For the last 12 years, Chapter 7 has campaigned for a more transparent planning system that allows and encourages individuals to undertake sustainable developments rather than stifles their efforts through "blunt instruments" such as nationwide planning policies that are too wide-ranging to take into account individual and local circumstance. We therefore welcome the government's initiative to reduce centralized bureaucracy and devolve more decision-making power down to the local community, through neighbourhood development forums and through the streamlining of planning guidance. However, we consider that this process needs to be carried out with great care and in particular we would like to be reassured that the interests of all members of local communities are catered for, insofar as that is consistent with sustainable forms of development.

We have two areas of particular concern in the bill as it now stands:

1. Chapter 3 Neighbourhood Development Plans, and Section 104

2. Enforcement of Concealed Breaches of Planning Control

3. Sustainable Development

1. Neighbourhood Planning and Development Plans

Chapter 7 wholeheartedly welcomes the abolition of regional spatial strategies, and is broadly in favour of more planning decisions being made at local community level. However we would like to be reassured that the interests of all members of local communities are catered for, insofar as that is consistent with sustainable forms of development. .

The Green Paper Open Source Planning observes: "Whole layers of bureaucracy, delay and centralized micro-management will disappear as planning shifts away from being principally an issue for 'insiders' to one where communities take the lead in shaping their own surroundings." Chapter 7 fully supports the thrust of this statement. However it is important to realize that there are also 'insiders' within the arena of local politics - people who are better equipped through their education, financial situation or station in life to gain access to the reins of local power. Typically they tend to be people with abundant financial resources, significant areas of land or large amounts of free time.

We would like to know what precautions the government is taking to ensure that the move towards greater community empowerment is not, in some locations, captured by a local 'elite' of 'insiders', to the detriment of other people who may not have the time, the skill, the resources or the local influence to make their voice heard and their needs understood.

We appreciate that local referendums should go some way to ensuring that this doesn’t happen. But nonetheless there is still a danger, particularly in a divided community, that a faction with majority support might find itself disproportionately empowered by the ability to form neighbourhood forums, neighbourhood plans and neighbourhood development orders, at the expense of a minority, who might find themselves commensurately disempowered.

We can picture this happening in a village where incomers outnumbered autochthones, or indeed the reverse. We can imagine, for example a situation where a predominately NIMBY element pushed through a local plan that made it difficult for other local people to acquire planning permission for businesses or housing. What is to stop a clever local faction (supported in a referendum by a disinterested or apathetic majority) acquiring lucrative planning permissions for themselves, whilst suppressing the aspirations of a less well endowed and needy minority?

Equalities Impact Assessment

These issues are raised in the Impact Assessment process. The Impact Assessment of Neighbourhood Plans and the Community Right to Build states, almost as an afterthought "However, local development schemes can of course also be controversial and locally divisive." But it does not go on to suggest how this division can be mediated in a neighbourhood plan sanctioned by a majority vote.

The same Impact assessment continues: "Development taken forward by the community in general may be of a kind which doesn't meet the special needs of a minority group. Housing typologies, for example may be relevant here." The Equalities Impact Assessment of Neighbourhood Plans then goes on to discuss the impact upon minority ethnic groups, and upon disabilities. However it doesn't consider socio-cultural minorities, such as gypsies,  travellers and other people who for whatever reason have different lifestyles from the majority, and hence tend to live in different types of residences.

Chapter 7 doesn't tend to deal with gypsy and traveller issues as there are other organizations who carry out this role. However we do represent the interests of other people who (either through choice or necessity or both)  live in mobile homes, caravans, chalets, cabins, yurts, benders and other forms of low impact accommodation. This sector includes a significant proportion of small scale farmers and full or part time smallholders, including those who are obliged to be in temporary accommodation through the agricultural worker's policy in Annex A of PPS7.

As such we are concerned that the needs and interests of such groups may not be represented in a neighbourhood development plan - and even, in some cases,  that the neighbourhood plan might explicitly rule out such kinds of living accommodation (I understand from Mr Nigel Kersey of the DCLG, who is responsible for the Impact Assessment, that a local plan will be able to do this provided the measure does not conflict with strategic policies in the local plan).

In such situations, people who find their proposals blocked by local objectors currently have the opportunity to go to the district council planning committee, and subsequently to an appeal inspector whose duty is to provide a decision from an independent third party without local connection.

In the light of the proposals in Open Source Planning to "remove power from the Planning Inspector" and to limit the scope of planning appeals, we are worried that delegating substantial decision-making powers to the neighbourhood level, whilst simultaneously undermining independent arbitration by the Inspectorate could lead, in some instances to dictatorship by a dominant faction or what colloquially might be termed "a local mafia".

In the Action Plan, at the end of the Equality Impact Assessment ,  the only arrangements proposed to mitigate the impact on certain groups are that: "All neighbourhood plans or orders will be required to be subjected to a referendum demonstrating popular support before they can come into effect." But it is evident that a minority (and in particular a minority against whom there may be some local prejudice) has no guarantee of its voice being heard in a referendum that is decided by a simple over-50-per-cent majority.

Referendum Costs

We are also concerned that more detail be provided on the cost of running referenda, as these could also provide a barrier for minority groups such as those Chapter 7 represents. For large developments and those proposed ‘for profit’ and/or by larger developers these costs should be met by the developer. However, in the case of small  initiatives e.g. single builds/community-led affordable housing/LID initiatives this cost should be met by the LPA.

Dissenting Report

When Chapter 7 wrote to Nigel Kersey voicing our concerns on this matter, he replied that we should propose an amendment to the Bill. I do not think Chapter 7 has the expertise to draft a legislative amendment, and anyway it is difficult to get a complete picture of how the neighbourhood development process will work, without the National Planning Policy Framework and various elements of secondary legislation being in place.

Nonetheless we would like to propose to the committee that an amendment along the following lines could be inserted into the legislation. The amendment would, allow that, after a referendum had successfully endorsed a neighbourhood plan, a group of local people could, if they so wished, submit a "dissenting report" to the local authority detailing those points in the neighbourhood plan with which they were in disagreement. Due weight would be given by the local authority and the Inspectorate to this dissenting report in any subsequent planning applications relating to the matters under dispute.

Chapter7 would be grateful if the committee would consider an amendment along these lines, or addressing these issues. If it is incumbent upon Chapter7 to propose an amendment for it to be considered, then we would be grateful for any advice as to the procedure for going about this.

2. Enforcement of Concealed Breaches of Planning Control

Chapter 7 sympathizes with the aims of Section 104, insofar as they constitute a means of cracking down on deliberate attempts to disguise a new house under the cloak of a haystack or a barn. However we consider that it is a "sledgehammer used to crack a nut" and furthermore that the sledgehammer will land on many relatively harmless breaches of planning that are not explicitly targeted by this legislation. We also suspect that when applied to people whose only home is at risk, planning enforcement orders might be in conflict with the European Convention on Human Rights, thereby risking potentially expensive legal proceedings.

The Impact Assessment on the Enforcement Package states that there have been two high profile cases where houses were hidden in a barn, and behind straw bales, that these cases are still going through the courts, and that they are "likely to be rare . . and probably amount to no more than one or two at any given time". (On top of that, we would add that other similar cases have been refused permission at appeal on the grounds that a building so concealed, or whose windows are blind, is not "substantially completed" and hence not eligible under the four year rule).

However although these blatant scams designed to establish expensive houses for people who are probably not in need are rare, the legislation potentially targets a much wider constituency of people. For obvious reasons, no one knows how many people throughout England are living in breach of planning control, in caravans, low impact cabins, yurts and tents, underground houses, or in converted barns, outhouses, garages etc. However at Chapter 7 we receive many calls for planning advice from such people and on the basis of 12 years experience in this field, we estimate that there are at least 5000 such households in England and Wales, and possibly over 10,000 ( not counting traditional gypsies and travellers).

These people find themselves living in such accommodation, either because they cannot find anywhere else to live that they can afford; or because they prefer it to bricks and mortar, but cannot locate land with planning permission to live in low impact structures; and very often for both reasons. A further reason in some cases is that they need to live on their agricultural holding but suspect the local authority will not recognize that need.

As far as we can see, such people, although they rarely employ "deliberate deception" in the sense that they disguise their dwelling as a haystack, are likely to be caught by this legislation. In order to make a planning enforcement order, a magistrate’s court

" must be satisfied, on the balance of probabilities that the actions of a person or persons have resulted in or contributed to full or partial concealment of the apparent breach or any of the matters constituting the apparent breach . . . A person’s actions are taken to include . . . inaction on the person’s part. "

This is a very wide definition of concealment, since it requires only "partial" concealment, of an "apparent" breach, or even just one aspect of an apparent breach, it does not require the person to do anything, and it is based only on the balance of probabilities. I would suspect that under this definition virtually every one of the several thousand households currently living in breach of planning undetected do so with some level of concealment, though mostly this involves keeping a low profile and doing nothing to alert people to their existence.

As such, if this section of the bill becomes law, a very large number of people will suddenly become at risk of summary eviction from their homes (whereas at present if they are discovered they have the opportunity to apply for permission and go to a planning or enforcement appeal, which even if they lose, at least gives them time to locate another residence). Admittedly enforcement is discretionary, but currently all planning enforcement is discretionary, and the experience of Chapter 7 is that in most cases (though not all) local authorities do pursue enforcement action against such people, once an enforcement notice is in place.

We submit that rendering such a large number of people liable to eviction serves no useful social purpose. Most of these people live in small discreet caravans or cabins, that have a very low impact upon the environment, and that, in order to remain unnoticed, have an extremely low visual impact. Those that do remain undiscovered for four years (or ten years in the case of caravans) can justifiably argue that since they have remained unnoticed, they are doing no harm.

Moreover, there would be a considerable cost burden involved, as the people involved rarely have savings beyond what they have used to purchase the land and build their home/livelihood. Enforcement costs would be borne by LPA’s whose budgets would struggle to absorb such additional costs. The inability to pay fines might lead to prison in some cases and further costs to the state as well as unnecessary damage to the lives of those affected, including children and dependents.

We would agree that allowing people to acquire permission in this way does not enhance the credibility of the planning system. But rendering such people liable to summary eviction will not improve the credibility of the planning system either, since the likely resort for many will be to acquire touring caravans or trucks so that they can move from one place to another more easily. Everybody has to be somewhere, and any planning system that does not provide for all members of society is bound to have a credibility problem.

In other words, the solution to this problem is to draw up planning policies that provide adequately for people on a low income who want to live in caravans, cabins or other low impact dwellings. If National Planning Policy provided adequately for people who need affordable low impact homes in rural areas, then we would have no problem with a policy designed to crack down on a handful of speculative abusers of the planning system.

We have submitted suggestions to this effect to the consultation on the National Planning Policy Framework, but there is no guarantee that they will be taken up. In any case it seems that the Localism Bill will become law before the Planning Policy Framework is in place. We therefore submit that Section 104 should be dropped from the Localism Bill.

3. Sustainable Development

Finally we notice that there is no commitment to sustainable development within the bill. We would like to be reassured that the commitment given in Section 39 of the Planning and Compulsory Purchase Act 2004 will not be repealed. If it is then a new, and preferably stronger, commitment to sustainable development should be included in the Localism Bill.

February 2011