Written evidence submitted by Friends
of the Earth
1. SUSTAINABLE
DEVELOPMENT
1.1 Sustainable Development as defined by the
Brundtland Commission and as set out in the UK Sustainable Development
Strategy is not a reality in the UK. Few planning decisions can
be considered to have delivered sustainable development. Some
local authorities are grasping the issue and delivering in areas
on the ground, but are hampered by lack of power and political
commitment.
1.2 The Government's own sustainable development
indicator set (2010) reveals that community participation has
decreased over the last few years, and that emissions are rising
from certain sectors, and that there are increasing households
in fuel poverty.i The Localism Bill could be at the
heart of addressing these issues through ensuring meaningful participation
processes, equality impacts assessment and by requiring local
authorities and plans to deliver on sustainable development.
1.3 The Royal Commission on Environmental Pollution
stated in its report The Urban Environment (2007) that:
"there is little evidence that government at any level is
tackling the quality of the urban environment and the quality
of life in an integrated way."
1.4 The previous Government's response to the
Environmental Audit Committee eighth report (Session 2007-08)
on local governmentii "shared the Committee's
view that action at a sub-national level is essential in enabling
us to meet our ambitious but very necessary commitments to mitigating
and adapting to climate change". The Committee's report stated
that "Local, regional and devolved government will never
be successful in overcoming barriers to progress on climate change
if they lack the motivation to take action or the barriers they
face are too high." If the commitment to be the "greenest
government ever" made in May 2010iii holds, then
ensuring that the Localism Bill is focussed on requiring positive
outcomes for sustainable development is key.
1.5 The Committee on Climate Change's second
progress report (2010)iv states that planning must
deliver the renewable energy development required in order to
meet carbon budgets. It also makes the point that transport planning
is important for example in "constraining transport emissions
growth through design of new developments (eg these might be close
to workplaces, facilitating commuting by public transport rather
than car)". The Localism Bill is the right place to ensure
that planning and regional co-operation deliver climate change
mitigation through policies and development management.
1.6 The Sustainable Development Commission has
pointed out in its submission to the CLG inquiry on Localism (2010)
that "Some of the biggest challenges facing us are international
and intergenerational in nature, for instance climate change and
natural resource depletion. These critical issues can be difficult
to address at the local level, especially when a community has
more immediate priorities such as unemployment, poverty and health
problems." Their evidence stresses the importance of community
participation in sustainable development activities through various
case studies. In particular the benefits of addressing local issues
such as unemployment through creating new green jobs eg in retrofitting
housing stock are both global, in helping to mitigate climate
change, and local.
1.7 In order to safeguard the future and to build
the strong communities and places, much more directions required
for local authorities. Directing the general power of competence
towards delivering on sustainable development would create change
from business as usual on the ground. This could be achieved with
an amendment that says that the exercise of the function (the
power of competence) must be with the objective of achieving sustainable
development defined as meeting our needs without prejudicing the
ability of future generations to meet their needs.
1.8 Planning must deliver on sustainable development.
From the National Policy Statements to the National Planning Policy
Framework, to the duty to co-operate, to Local Development Frameworks
and Neighbourhood Plans, a common purpose is required. This is
to ensure that the process of plan-making and decision-making
are both working within the principles of sustainable development.
Currently local plans are required to "contribute to the
achievement of" sustainable development and must have regard
to national planning policy guidance, of which planning policy
statement 1 (PPS1) sets out policy on sustainable development.
Development control is not covered by the current legislation.
1.9 Amendments to the Bill should therefore ensure
that national policy, the duty to co-operate and local and neighbourhood
plan-making and development control are delivering sustainable
development.
2. CLIMATE CHANGE
2.1 The urgency of the need to tackle climate
change mitigation is such that the planning system cannot afford
to ignore the issue. Housing, energy, transport, retail, and business
will all need to address adaptation to deal with issues such as
increased flood risk and extreme heat. Mitigation of climate change
is also a shared responsibility across sectors and across levels
of planning. From National Policy Statements and the National
Planning Policy Framework to Local Development Frameworks and
Neighbourhood Plans, it is essential that the process and decisions
around plan-making deliver on climate change issues.
2.2 The Committee on Climate Change has published
its 4th budget report, which recommends that the Government adopts
a 2030 50g/kWh CO2 target for the electricity sector,
as part of an overall economy target of a 60% cut on 1990 levels
by 2030. The critical implication is that this requires a steep
and rapid decarbonisation pathway from now to 2030. Decarbonising
must happen at a local, regional and national level of development
planning and strategy.
2.3 The climate change provisions in the Planning
Act 2008 do not apply to Neighbourhood Plans. The Localism Bill
would need to be amended to ensure that Neighbourhood Plans have
a specific objective to set out how they will address climate
change, both in terms of mitigation and adaptation policies. Neighbourhood
Development Orders have even greater potential to lock in high-carbon
and inappropriate developments, in direct contrast to the need
to address climate change.
2.4 The proposed National Planning Policy Framework
is also not covered by an obligation on the face of the bill to
set out integrated policies that are sustainable and contribute
as a whole to the mitigation of and adaptation to climate change.
2.5 Friends of the Earth recommends that Neighbourhood
Development Orders are limited to certain types of development,
and that a specific requirement is laid upon orders to reduce
carbon emissions in line with the Government's carbon budgets,
and to have a specific goal to address biodiversity and equality
impacts.
3. RIGHT TO
BE HEARD
3.1 There is growing tension between the stated
desire of Ministers' to enhance public involvement and the detailed
impact of the Bill which clearly reduces proper public participation
and creates inequality within the land-use planning system.
3.2 In a recent answer to a question on defining
Localism, Greg Clark, Minister at CLG answered: "This Government
have been clear that they want to see a radical redistribution
of power away from central Government to local communities and
people."v The Localism Bill fails to redistribute
power equally, or to ensure that all people in their communities
have a right to be heard in Neighbourhood Planning. Having failed
to publish a White Paper on the proposals within the Localism
Bill, the Government have not consulted widely on what their proposals
might actually mean for people. The importance of process in creating
a fair system has been missed by the Bill, which leaves the detail
to guidance. With no White Paper it is hard to discover what the
process might be, and whether it will deliver a local participatory,
engaged and diverse approach.
3.3 The Localism Bill proposes two formats—Neighbourhood
Plans and Neighbourhood Development Orders. Neighbourhood Development
Orders are onerous and benefit the developer rather than the community.
They reduce local public involvement in the planning system, and
limit the window of opportunity for influence and engagement to
a period before the order is adopted. There is also increased
risk of infringing on people's right to a fair hearing under Article
6 and creating tension and dissension within the community if
the process of creating the order is faulty.
3.4 As the examiner is an important part of the
process of creating the Neighbourhood Plan, it is important that
they are both independent and skilled. The bill should be amended
to specifically provide for the Planning Inspectorate to undertake
the examinations of Neighbourhood Plans.
3.5 The Neighbourhood Plan and Development Order
examination process is defaulted to written representations (Schedule
10, Section 9(1)). Hearings on issues may be held at the discretion
of the examiner. This is not a right to be heard as currently
exists in the Local Development Framework system where in the
inquiry, where any person wishing to make representations to change
an aspect must be given an opportunity to appear before and be
heard by an examiner. In addition, cross-examination is at the
discretion of the examiner. For proper testing of the evidence
and proposals, provision should be made for participants who have
registered their interest in doing so to be enabled to cross-examine
under the guidance of the examiner.
3.6 The Neighbourhood Plan process and the Neighbourhood
Development Order are both time-consuming, costly, and technical
processes which risk excluding members of the community who may,
for a number of social and economic reasons, be unable to engage
or to afford to plan. Support for the community is vital to ensure
that Neighbourhood Plans set out sustainable development which
achieves global as well as local goals.
3.7 Friends of the Earth recommends that amendments
are made to the Bill to provide a right to be heard which is not
discretionary and to acknowledge existing plans and community
documents in all local decision-making by replacing Section 9
(1) in Schedule 10 with a clear right to be heard.
4. EQUALITY
4.1 Local planning must deliver a fair and participative
process which addresses inequality and actively and creatively
engages people from diverse backgrounds.
4.2 The Localism Bill's proposals risk increasing
environmental injustice, as those who can afford and have the
time and skills to plan are able to improve and safeguard their
environment, and those unable to pay or participate may suffer
increased high impact developments which cumulatively have negative
environmental, social and economic impacts.
4.3 Equality impacts must be tested where for
instance new housing and supermarket development replaces existing
retail diversity within a market, community services and green
infrastructure, adversely affecting access for those on lower
incomes to food, jobs and open space. Adverse impacts such as
for instance the cumulative impact of developments on air quality
are particularly apparent in deprived communities, and the planning
process must seek to redress and mitigate against these unfair
outcomes.
4.4 Without a White Paper there has been no opportunity
to adequately raise equalities concerns. In addition the Government's
own equalities impact assessment seems to imply that ethnic and
disability groups have not come forward to discuss their concerns—but
it seems that little effort has been made to ensure these groups'
view and expertise have been proactively sought out.
4.5 Where there is no Parish Council, the Bill
provides for Neighbourhood Forums to create Neighbourhood Plans.
These are not "public bodies" and are therefore not
covered by the 2010 Equalities Act, nor by Freedom of Information
requirements. This is of deep concern as they not democratically
accountable. These forums cannot be said to represent the entire
community and there is no clear way of challenging the process
if you feel you have been excluded.
4.6 The Bill should be amended to specifically
bring all planning bodies under the Equalities Act 2010 and to
ensure that equalities impacts are tested at examination stage.
5. THIRD PARTY
RIGHTS OF
APPEAL
5.1 The Localism Bill does not provide a third
party right of appeal. This is a significant injustice in the
current planning system, as at present only applicants may appeal
a planning decision. Third parties have to seek judicial review
which is costly and remote.
5.2 Ministers have spoken about the local and
community power granted by the Bill. In fact the Bill creates
a system of neighbourhood orders which are very powerful, and
within which there is no right to be heard or right of appeal.
5.3 Developers, such as supermarket retailers,
who apply for planning permission have a privileged right to appeal
against a local council when their application is refused. Individuals
and communities who object have no such right. This imbalance
reinforces the impression of a planning system which is only interested
in the developer, and reinforcing the power of those with property
rights.
5.4 If the Government wants to reverse a situation
where communities feel railroaded (particularly apparent in the
case of some supermarket developments where repeated applications
and appeals eventually triumph over community and local economic
concerns) a limited third party right of appeal is essential.
5.5 It is clear that the decision-making process
can go wrong. It is important that in these few cases that the
situation can be remedied such as where the local authority has
a clear conflict of interest.
5.6 In January 2002 a group of NGOs including
Friends of the Earth, CPRE, RSPB and the Environmental Law Foundation
published a major reportvi which analysed the case
for third party rights. The report concluded that there was a
powerful argument for the introduction of such rights and that
this could be achieved without undue administrative cost or delay.
The proposals highlight the need to qualify the right of appeal
to focus only on those with a legitimate interest in a case and
only on those cases which have major environmental impacts or
represent a conflict of interest for the local authority.
5.7 Rights of appeal would be limited to between
1-5% of all planning applications. Ordinary householder applications
would not be subject to appeal rights. Third party rights have
existed in the Republic of Ireland since the 1930s and are successfully
administered in Denmark, Sweden, New Zealand and parts of Australia.
A clear and convincing argument would need to be made for an appeal
to occur and to test a decision where it is clear that the process
of decision-making has been faulty or extremely controversial.
The Localism Bill should be amended to include a limited third
party right of appeal.
10 February 2011
REFERENCES
i Measuring Progress:
Sustainable Development Indicators 2010, DEFRA
http://www.defra.gov.uk/sustainable/government/progress/documents/SDI2010_001.pdf
ii Climate change
and local, regional and devolved government: Government Response
to the Committee's Eighth Report of Session 2007-08
http://www.publications.parliament.uk/pa/cm200708/cmselect/cmenvaud/1189/1189.pdf
iii Prime Minister's
speech to DECC on 14 May 2010.
http://www.number10.gov.uk/news/latestnews/2010/05/central-government-emissions-to-be-cut-pm-2-50121
iv Meeting Carbon
Budgets - ensuring a low-carbon recovery 2nd Progress Report to
Parliament Committee on Climate Change June 2010
v 7 February 2011
vi "Third
Party Rights of Appeal in Planning" by Green Balance, Leigh
day & Co Solicitors, John Popham & Professor Michael Purdue,
Jan 2002.
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