WRITTEN EVIDENCE
SUBMITTED BY
BARTON WILLMORE
(LOCO 19)
INTRODUCTION AND
SUMMARY
1.0 Barton Willmore is the largest planning practice
in the Country.[9]
Our comments below focus on the planning aspects of localism based
on our considerable, collective experience of planning across
the UK. We regularly promote large schemes and as part of that
promotion we regularly undertake public consultation, so we have
considerable knowledge of the concerns of the public, and how
these are juxtaposed with evidence based assessments within planning.
1.1 We will examine this relationship through
three strands:
1. Evidence based planning and public attitudes.
2. Natural justice.
3. Accountability.
1.2 We are concerned that evidence and local
sentiment will often pull the decision making process in opposite
directions. We believe it is therefore essential that National
Policy Guidance, and legislation if necessary, emphasise the importance
of good evidence to support local plan making, and to make clear
that the Secretary of State will refer plans back to local planning
authorities where an inspector considers that the evidence base
is deficient or defective.
1.3 In the section on natural justice we have
focused on the appeals process. We believe that the proposals
contained in the Conservative's Green Paper Open Source Planning,
if implemented, represent a seismic shift away from the rights
of landowners and developers towards local communities, which
will increase risk and act as a disincentive to developers. While
our preference would be that third party rights of appeal are
not introduced we have produced five recommendations covering
the position where they are introduced.
1. Rights of appeal for applicants should remain
unchanged.
2. Appeals by third parties should be lodged
within three months to avoid delays in implementing permissions.
3. Grounds for appeal by third parties and mechanisms
for weeding out frivolous or malicious appeals need to be carefully
defined.
4. Where permission is granted and then subject
to an unsuccessful third party appeal permission will be deemed
to be granted from the date of the appeal decision.
5. The process of call-in by the Secretary of
State for applications which a local planning authority are minded
to approve but which are contrary to the development plan should
be discontinued.
1.4 With respect to accountability, the ultimate
responsibility for producing local plans must rest with the local
planning authority both in the interests of accountability and
to deliver local plans within a reasonable timescale.
2.0 EVIDENCE
BASED PLANNING
AND PUBLIC
ATTITUDES
2.1 Politicians say that planning is a political
process. That is why local politicians make the decisions on planning
applications (although increasingly, with local delegation, only
on the largest and most controversial ones). Public consultation
on development plans and planning applications has been good practice
since the Skeffington Report in the 1960s, but extra emphasis
has been placed upon it in the last decade with the introduction
of Statements of Community Involvement. These provide a framework
for consultation which is published in advance and which the Council
are expected to conform to in their plan making and developers
to conform to in their planning applications.
2.2 However, fundamentally planning is also an
evidence-based process. At both plan making and planning application
stages a wealth of information is collected on subjects as diverse
as population growth, biodiversity, archaeology, transport and
flood risk. For plans and large applications these are collected
together in the form of sustainability assessments, environmental
impact assessments and a range of other technical documents which
together form the evidence base for the plan or the application.
Our clients complain about the huge cost of producing all the
information, but it is clear that a proper consideration of a
development proposal, whether as an allocation in a plan or as
a planning application requires proper consideration of the factors
which affect that site and the wider area within which it is located.
2.3 There is an inherent tension between evidence
based approaches and public attitudes in many cases. Public attitudes
are first and foremost conditioned by the effect that a development
proposal will have on them. If a development proposal has no impact
on them they have no reason to become involved. Life's too short.
All too often this involvement takes the form of a campaign of
outright opposition rather than constructive working to improve
the development. This opposition is not based on consideration
of the evidence, except in so far as it can be used against the
scheme, but on sentiment and self interest. We do not say this
in a critical way—it is just human nature.
2.4 We encounter this on a regular basis at public
consultation events. People are not aware of the complexities
of a development scheme—and why should they be, they are
not (mostly) development professionals (although every scheme
seems to have a retired engineer or surveyor living nearby). Having
said that, we almost always obtain important information from
the public that helps improve schemes.
2.5 Our concern is that under the proposals as
they appear in Open Source Planning, public attitudes will
override the evidence base. This gives rise to three particular
causes of concern. First, plans will be based on local issues
and will ignore the "big picture". Second, schemes that
are technically sound and whose sustainability has been demonstrated
will be abandoned or fail to be approved because of pressure from
people in the immediate vicinity of the scheme. Third, if the
weight given to the evidence base is reduced then planning becomes
much less transparent and more open to abuse as a consequence.
2.6 To illustrate the first point we have submitted
evidence to the Inquiry on the abolition of Regional Strategies
that reducing housebuilding has significant economic and social
effects. A step change in housebuilding is required and this will
require determined action on the part of Government. This needs
to be communicated to all those who are participating in the plan
making process.
2.7 To illustrate the second point, we believe
that Ministers expect localism to lead to the demise of large
urban extensions around some of our cities and towns, particularly
those that are in green belt, in the knowledge that they are highly
unpopular with local residents. These schemes are now described
as "unsustainable urban sprawl" when in fact a great
deal of evidence has been produced to show that building on the
edge of our cities and towns is the most sustainable way of providing
the homes we need as close as possible to jobs.
2.8 Open Source Planning has trailed the
notion of local definitions of sustainability and there is considerable
concern that these will not be based on the well established principles
of sustainability that have developed over recent years on the
basis of evidence, but will be based on little more than local
sentiment.
2.9 To illustrate the third point, at the plan
making level there seems to be no ultimate sanction proposed in
Open Source Planning on authorities who do not produce robust
evidence to support the level of development in their area. On
the one hand, Open Source Planning says that councils should
provide good data to electors so that they can develop a vision
for their community on a well-informed basis. On the other hand
while a Secretary of State can reject a plan where the local authority
has not adequately performed this task, Open Source Planning
stresses that levels of provision will ultimately be for local
determination. This runs to the heart of the tension between evidence
and local sentiment but does not resolve it.
2.10 At the level of the planning application,
Open Source Planning's proposals for dealing with immediate
neighbours (p13) have been widely derided as a recipe for corruption.
2.11 Finally, it is appropriate to address the
issue of the "Community Right to Build" here because
this illustrates the tension between evidence and local sentiment.
The Question and Answer briefing that accompanied the Minister
for Housing's announcement of the Community Right to Build makes
repeated reference to the need for schemes to meet minimum criteria
to ensure that the development is sustainable. This is not elaborated
upon but must involve submission of evidence to demonstrate sustainability.
The key questions are who will decide what is sustainable and
how will it be decided. Will it need to go to Committee? Will
there be a right of appeal? In short, how different will it be
to submitting a planning application? Also, given the primacy
of the local plan referred to elsewhere in Open Source Planning,
will schemes be allowed which do not conform to the plan?
2.12 We therefore wish to see National Policy
Guidance, and legislation if necessary, emphasise the importance
of good evidence to support local plan making and to make clear
that the Secretary of State will refer plans back to local planning
authorities where an inspector considers that the evidence base
is deficient or defective.
3.0 NATURAL JUSTICE
3.1 A fundamental principle of Open Source
Planning is that central government inspectors should not
"have the power to ride roughshod over local sentiment"
(p 6). This is mentioned in the context of local plan making,
but has an obvious extension into the appeal system. It is another
area where the tension between evidence and local sentiment emerges.
3.2 We believe that a system such as planning
must have a series of checks and balances. The appeal system for
applicants is an important part of those checks and balances.
The planning inspectorate has an impressive record of determining
appeals impartially.
3.3 The Government has expressed its desire to
see more houses built. The contribution of private sector housebuilders
will continue to be fundamental to this process whatever new forms
of housing delivery are introduced. Housebuilders need incentives.
Fundamentally, they need to be able to make a profit in as risk-free
an environment as possible. The greater the risk the greater the
profit required. We are concerned that the proposals contained
in Open Source Planning, if implemented, will considerably
increase the risks for housebuilders acting as a significant disincentive
for the sector, thus acting against the objective of building
more houses.
3.4 It should be recognised that in its proposals
for the appeal system Open Source Planning potentially
represents a seismic shift away from the rights of landowners
to develop their land as they see fit towards local communities
by dramatically reducing the grounds of appeal for an applicant
and introducing third party rights of appeal. The net result is
described as a more "symmetrical" system in Open
Source Planning.
3.5 This needs to be seen in a historical context.
The 1947 Town & Country Planning Act recognised that it was
taking away the right for landowners to develop their land as
they saw fit. By the early 1980s far from being an infringement
on the right of landowners and developers, it was seen as a service
to them and fees for applications were introduced. These are still
with us and can now amount to sizeable sums. Now the argument
has come full circle and it is local residents who now need to
be compensated for the effects of development according to Open
Source Planning, rather than landowners compensated for the
inability to develop land.
3.6 Open Source Planning says that it
will limit the grounds for appeal against a local planning permission
to just two:
1. that correct procedure was not followed in
assessing the application; or
2. that the decision reached is in contravention
of the local plan.
3.7 This is specifically described as grounds
for appeal against a "permission" (ie by a third party).
However, if the system is to be "symmetrical" will these
be the only grounds available for an applicant as well?
3.8 If the applicant's right of appeal is reduced
at the same time as third party rights of appeal are introduced
this is a "double whammy" for the development industry.
3.9 We submit that the applicant's right of appeal
should not be curtailed. At the moment Section 38 of the Planning
and Compulsory Purchase Act 2004 states that decisions on planning
applications must be made in accordance with the development plan
"unless material considerations indicate otherwise".
Material considerations might include the lack of a five year
supply of housing land. It is essential that the ability to take
account of such factors which may be external to the local plan
should continue to be available to applicants as grounds for appeal.
The government seems to be implying that by making local plans
consistent with national policy the need to take account of material
considerations will disappear. However, in practice local plans
will probably be consistent with parts of national guidance but
not with others. Moreover, development proposals will almost always
be consistent with some policies of a local plan but not others—or,
rather, judgement has to be exercised in determining whether the
proposal is consistent with policy (for example, where the policy
requires "acceptable" or "suitable" transport
provision). The lack of the opportunity for independent adjudication
on such issues is in our view likely to act as a serious disincentive
for landowners and developers to engage with the planning system.
3.10 The use of material considerations is an
important safety valve which needs to be retained, and the rights
of an applicant to appeal should therefore remain as they are
now. We regard this as an important part of the rights of landowners
and developers which is a feature of the natural justice of the
present system.
3.11 Above all, the removal or reduction of the
right to appeal should not be introduced as a cost-saving measure.
3.12 Turning to third party rights of appeal,
we have to rely on what is contained in Open Source Planning.
This proposes to limit the grounds of appeal to those stated above.
Appeals on grounds of incorrect procedure, dealt with by the Ombudsman,
will presumably either be dismissed or referred back to the local
planning authority. Appeals on grounds that the decision contravenes
the local plan will be appeals in the traditional sense.
3.13 Open
Source Planning refers to the introduction
of a mechanism for weeding out frivolous or malicious appeals
which would significantly delay development. While this appears
to be an extremely important principle the process appears to
have the ability to delay even further the confirmation of a planning
permission.
3.14 Seen
in its historical context and taking account of the huge cost
of promoting development, particularly of larger sites, we do
not see any need to have a totally symmetrical process. A development
may adversely affect near neighbours while being of great benefit
to an undefined body of people who may occupy or use the development
in the future, but whose voice cannot be heard because, at the
time, many will not even know that they will benefit from it.
3.15 We
believe that if a simpler method of challenging a permission than
judicial review is available people will use it. It will be incredibly
difficult to determine what is malicious or frivolous as this
will depend to a large extent on the point of view of the person
making the judgement. We do not have a set of principles for making
that decision.
3.16 In
conclusion, we would much rather that there was no third party
right of appeal. However, given the likelihood that the Government
will wish to introduce it, we think it should be subject to the
following principles.
1. Rights of appeal for applicants should remain
unchanged, with a six month period for appealing being retained
and material considerations continuing to be taken into consideration.
2. Appeals by third parties should be lodged
within three months to keep delays to a minimum.
3. Grounds for appeal by third parties need to
be carefully defined based on the two grounds in Open Source
Planning, as does the mechanism for weeding out frivolous
or malicious appeals.
4. Where a permission is granted, but is then
subject to appeal by a third party which is dismissed, the permission
will be deemed to be granted from the date of the appeal decision.
5. The process of call-in by the Secretary of
State for applications which a local planning authority is minded
to approve but which are contrary to the development plan would
be redundant and should be abandoned.
4.0 ACCOUNTABILITY
4.1 One
of the major concerns about Localism is that it will give far
too much influence to pressure groups who have a particular interest
but whose views are not representative of the community as a whole.
4.2 Pressure
groups are frequently set up to oppose development in particular
local areas. They are formed on an ad-hoc basis and have
no democratic accountability. It is human nature that people do
not generally want to get involved in issues unless they are directly
affected by them. The "Big Society" will not change
this. However, they or their children or grandchildren may regret
the failure to deliver jobs and homes that were opposed successfully
by a particular pressure group.
4.3 Fundamentally,
the system of democratically elected councillors is designed to
take a broader perspective. Their decisions are, generally, transparent
and they can be held to account by the people they represent at
election time. The system works well and it should not be undermined.
We have no objection to giving greater powers to democratically
elected councils but we are concerned about giving greater power
to unelected groups.
4.4 Open
Source Planning sets out proposals for
the evolution of local plans to start at "ground level"
in neighbourhoods with every single resident of the neighbourhood
approached to take part (p 8). There is a clear desire to increase
the level of involvement considerably from what happens now through
a process of "collaborative democracy" which will be
the centrepiece of the local planning system.
4.5 This
will be a huge undertaking to carry out properly and will involve
huge amounts of councillor and officer time at neighbourhood meetings.
There must be major questions about whether the resources will
exist to carry this out properly and about whether the "reasonable
timescales" that will be legislated for can be achieved.
What happens if agreement within or between neighbourhoods cannot
be achieved? What happens if, as we suspect, people will not get
involved as the Government hopes?
4.6 The
local planning authority must take the lead in plan making. The
important thing for the localism agenda is that there is no imposition
of levels of development or particular strategic projects. But
elected members, with officers, will still have to adjudicate
between competing groups or neighbourhoods and between what the
evidence base is demonstrating and what people want.
4.7 We
therefore wish the Government to be much clearer about the limits
to collaborative democracy. The ultimate responsibility must rest
with the elected local planning authority in the interests of
accountability and in order to deliver local plans within a reasonable
timescale.
CONCLUSION
5.0 We
are concerned that evidence and local sentiment will often pull
the decision making process in opposite directions. We believe
it is therefore essential that National Policy Guidance, and legislation
if necessary, emphasise the importance of good evidence to support
local plan making, and to make clear that the Secretary of State
will refer plans back to local planning authorities where an inspector
considers that the evidence base is deficient or defective.
5.1 We
believe that the proposals contained in the Conservative's Green
Paper Open Source Planning, if implemented, represent a
seismic shift away from the rights of landowners and developers
towards local communities, which will increase risk to developers
and act as a disincentive to them.
5.2 While
our preference would be that third party rights of appeal are
not introduced, we have produced five recommendations covering
the position where they are introduced.
1. Rights of appeal for applicants should remain
unchanged.
2. Appeals by third parties should be lodged
within three months to avoid delays in implementing permissions.
3. Grounds for appeal by third parties and mechanisms
for weeding out frivolous or malicious appeals need to be carefully
defined.
4. Where permission is granted and then subject
to an unsuccessful third party appeal permission will be deemed
to be granted from the date of the appeal decision.
5. The process of call-in by the Secretary of
State for applications which a local planning authority is minded
to approve but which are contrary to the development plan should
be discontinued.
5.3 The
ultimate responsibility for producing local plans must rest with
the local planning authority both in the interests of accountability
and to deliver local plans within a reasonable timescale.
5.4 Localism
represents a fundamental experiment in the way decisions are made.
We recognise that this extends well beyond the matters we have
discussed in the submission. We welcome the Committee's interest
in these matters and we hope that these comments will assist the
work of both the Committee and Government.
September 2010
9 Source: "Planning" magazine, annual survey
of Planning consultants, November 2009. Back
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