Growth and Infrastructure Bill

Memorandum submitted by the Campaign to Protect Rural England (GIB 07)

Introduction and Summary

1. The Campaign to Protect Rural England (CPRE) welcomes the opportunity to submit evidence on the Growth and Infrastructure Bill. 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.

2. The Bill proposes a range of significant reforms to the planning system. It comes six months after the commencement of the Localism Act 2011 and the new National Planning Policy Framework (NPPF). CPRE engaged closely with both initiatives. Some of the reforms proposed in the Bill are sensible attempts to improve existing legislation, for example clause 8 on minerals permissions and clause 19 on special parliamentary procedures for nationally significant infrastructure projects. Other clauses include a number of what initially appear to be small, but are in fact potentially highly damaging, changes to planning laws.

3. The often repeated myth that planning is an obstacle to growth appears to have strongly influenced Ministers. This marks a misguided return to the worst aspects of the NPPF debate and its attack on the planning system’s essential role in protecting the environment. But a February 2012 report, Inexpensive Progress?, published by CPRE in conjunction with the National Trust and RSPB found that the economic benefits (as opposed to the costs) of the planning system are not properly recognised. Furthermore, local planning authorities have given permission for 400,000 new dwellings on which work has not yet been completed, and there is a general consensus in the development industry that it is financial restraint, borrowing difficulties, and investor and consumer confidence that are holding back development, not planning.

4. The Government wants to improve the performance of councils on planning, but its approach seems counter-productive. Crucially, many local planning authorities have been frustrated in their attempts to get local plans in place and make good, timely decisions on controversial planning applications by the length of time the Government is taking to remove Regional Spatial Strategies. CPRE strongly believes that these further changes to the planning system will simply exacerbate pressures on local authorities at a time when both they and developers need greater certainty.

5. This memorandum specifically addresses the proposals in the Bill. However the Bill should be considered in the context of the full range of measures in the Ministerial statement of September 2012, Housing and Growth. That statement also proposed a series of changes to secondary legislation that reinforce the general concerns above. Particularly important to this are proposed changes to permitted development rights, which would remove control over house extensions, and many changes of use involving agricultural buildings and offices. CPRE believes these proposed changes should be abandoned or substantially revised. Further detail of our work on these issues is available on request.

6. CPRE is particularly concerned that the Bill and related secondary legislation:

· mark a dramatic shift away from the Government’s commitment to localism. The Coalition Agreement states: "We will end the era of top-down government by giving new powers to local councils, communities, neighbourhoods and individuals." It is difficult to see how proposals to take planning powers away from local authorities, or to allow developers to bypass local councils in determining affordable housing requirements, are compatible with this aim;

· attempt to use small legislative changes to create an unbalanced ‘growth at all costs’ climate for local planning authority decision-making. This undermines the hard won policy approach to sustainable development set out in the final NPPF;

· overlook a key problem for local councils. Most of the planning proposals in the Bill seem motivated by a misguided perception that planning authorities are being slow in making decisions on planning applications or getting local plans in place. Yet continued uncertainty about the status of Regional Spatial Strategies, which the Government committed to abolish, is an added complicating factor in local planning; and

· will create further uncertainty for local planning authorities, developers and communities in a planning system that has recently undergone major change, and risks creating the delays that the Government seeks to prevent. It is very concerning that in at least three areas of the Bill (clause 1 on planning applications, clause 21 on major infrastructure and clause 5 on broadband cabinets) the Government has pressed ahead with primary, enabling legislation before consulting on the detail of its proposals.

Clause-by-Clause Analysis

Making planning applications direct to the Secretary of State (Clause 1)

7. Allowing applications for development to be made directly to the Secretary of State (Clause 1) is a centralising move at odds with the Government’s localism agenda. In the debates on the Localism Act 2011, the then Planning Minister Greg Clark MP stated in Parliament that "we should move away from a system of planning by development control, where recourse is made to the Planning Inspectorate rather than local decision makers... I want fewer appeals to the Planning Inspectorate and more decided locally." (Greg Clark, Localism Bill Report Stage, House of Commons 17 May 2011, c.273.) Around half a million planning applications are made each year. These are currently made to local authorities, and over 80% of these applications are, consistently, approved by those same authorities.

8. The clause is linked to a long-mooted Government reform called ‘the Planning Guarantee’, designed to ensure that no planning application should take longer than one year to reach a decision. This implies a maximum of 26 weeks both for an initial decision by a local planning authority and (should there be an appeal against refusal of permission) the Planning Inspectorate. The Guarantee was initially mentioned in the 2010 Budget ‘Plan for Growth’, and then followed by a statement in July 2011 which promised a public consultation. A ‘Planning Guarantee Monitoring Report’ was published in September 2012, but to date the promised public consultation has not taken place.

9. The Government has therefore not yet made clear under what circumstances developers will be allowed to bypass local decision-makers, but CPRE understands that the definition of ‘poor performance’, and the circumstances for the use of the clause, will focus on the processing of planning applications for ‘major’ or large scale development. In the Second Reading debate the Business Minister Michael Fallon said "We will consult on the definition of a poorly performing council" [1] . In a press statement on 6 September, the Prime Minister and Deputy Prime Minister said local authorities will be put into ‘special measures’ if they have failed to improve the ‘speed and quality’ of their work.

10. Whilst CPRE recognises the need for development, it is essential that the ability of councils to say ‘no’ to poorly located and designed schemes is maintained. ‘Quality’ cannot be measured by the amount of development permitted. Ministers should be pressed on whether their criteria will allow authorities with a record of approving poor quality, inappropriate developments in their area to be placed in ‘special measures’.

11. CPRE believes these new powers will worsen the quality of planning decisions. There is a risk that local authorities will feel pressured into making swift decisions, which will either lead to more quick refusals of planning applications (where the authority is still brave enough), or applications of a poor quality being granted, without the community benefits or other improvements that would previously have been sought. The greater role for the Inspectorate, with the need to employ more planning inspectors and for an increased number of Public Inquiries, will add to the bill for the taxpayer and could also seriously undermine the legitimacy of the process. Currently, major developments are usually decided by votes in a committee of local authority councillors. Public acceptance for development will be more difficult to achieve and there could be a greater resort to direct action.

12. We are also disturbed that an unintended, and potentially highly damaging, effect of the proposed reform would be to distort the activities of National Park Authorities towards processing planning applications for major developments. The Planning Guarantee Monitoring Report suggests that a number of National Park Authorities struggle to decide such developments within the timescales indicated by the Guarantee (see above), but CPRE would argue that it is quite unreasonable to expect them to prioritise the processing of applications that they should not normally expect to receive. As the NPPF (paragraphs 115 and 116) makes clear, great weight should be given to conserving natural beauty and major developments in nationally designated landscapes should be refused except in ‘exceptional circumstances’.

13. The October 2012 report by Lord Heseltine and commissioned by the Government, No Stone Unturned, also considers the issue of the speed of planning decision making. Notably, rather than anticipating or endorsing the proposals in the Bill it recommends that any planning permission not determined locally within six months should be automatically referred to the Planning Inspectorate. The Inspectorate in turn, according to Lord Heseltine, should decide all its cases within six months of receiving them. Notwithstanding CPRE’s concerns about the emphasis on speed over quality of decision making, and the lack of formal public consultation to date on the Planning Guarantee, Lord Heseltine’s recommendations seem to be much closer to the spirit of the Planning Guarantee than Clause 1 of the Bill. We also understand that Lord Heseltine’s recommendation could be implemented without the need for primary legislation.

Limiting the power to require information with planning applications (Clause 4)

14. Clause 4 undermines the power of local authorities to require information to be submitted with planning applications, and this will also reduce the quality of planning control. It could lead to developers seeking permissions on limited or poor quality information, and will make it easier for them to avoid meaningful local consultation. It will be more difficult for local authorities to set the right conditions on development, and the vague, generalised wording of the clause would be an invitation for developers to contest local authority requests for information in negotiation and through more appeals.

Affordable housing requirements (Clause 5)

15. There is a pressing need for affordable housing, and in many areas it can only be developed where land values are reduced through planning policy and control. Clause 5 proposes to make it easier to appeal against local authority attempts to deliver land for affordable housing in planning agreements. A number of existing housing schemes have agreements attached to them to deliver affordable housing, and many of these are currently being renegotiated due to the wider economic climate. In CPRE’s view, the existence of these clauses in the Bill threatens to undermine local authorities in negotiations on these agreements, and will encourage developers to propose low or no provision. This will make local negotiation more protracted and difficult, adding to delay, rather than removing it as the Government intends. Section 106 agreements are also used to secure developments entirely composed of affordable housing on rural ‘exception’ sites, which would not otherwise be granted planning permission. It is unclear how these measures will affect the provision of affordable housing through these sites.

16. The longer term effect is likely to be to increase landowner and developer profits and concentrate more market, rather than affordable, housing in the areas with the highest house prices that are best able to deliver affordable housing through planning agreements. The Government proposes additional funding to replace the affordable homes lost, but without land provided through planning agreements delivery will suffer. The basis on which a developer could appeal against a requirement to develop affordable homes is their impact on the viability of the development more widely, but that is a very difficult thing to define, especially in terms of the value of land. The viability position can change very quickly, but once the appeal is upheld the opportunity for affordable housing development in the area is gone.

Electronic communications code (Clause 7)

17. Worrying powers are being proposed in Clause 7 for the Secretary of State to give the go-ahead to electronic communications infrastructure that could cause serious damage to designated landscapes. The proposal that the key purpose of National Parks and Areas of Outstanding Natural Beauty (AONBs) – to conserve beauty - could be overridden in order to provide infrastructure is alarming, and would establish a dangerous and wholly inappropriate precedent. It also undermines the Government’s categorical assurance in a November 2011 consultation on overhead telecommunications deployment that it would not relax protections for designated landscapes. It is right that the Government is prioritising broadband access in rural areas, but it is entirely possible to roll out superfast broadband in these areas and conserve beauty at the same time. We would welcome clarification from the Government as to (i) the sort of infrastructure it expects to be developed in these areas – for example whether it will be overhead or, as CPRE would advocate, underground; and (ii) why and where such infrastructure is needed.

18. Ill thought-through decisions in protected landscapes risk causing irreversible damage to some of our most prized national assets. We are unclear as to the justification for the change. It is unclear as to why existing protection for SSSIs is retained while being being weakened in nationally designated landscapes, even though existing controls are designed primarily to protect natural beauty. This gives an overall impression of a ‘hierarchy’ of protected sites without any underlying rationale for this. The existing Electronic Communications Code already allows for operators to erect new overhead lines without applying for planning permission, provided they are placed on existing poles; and as a December 2011 DCMS consultation paper (paragraph 3.3) suggests, the existing British Telecom Openreach network already serves most if not all rural communities.

19. CPRE believes that, if the new infrastructure is in the form of overhead lines and poles, it will result in the waste of seven years of investment, running into tens of millions of pounds, in improving the beauty of nationally designated landscapes. In 2005 the energy regulator Ofgem created an allowance for electricity distributors to bury overhead lines in nationally designated areas. This has resulted to date in 223 km of overhead electricity lines being removed, mostly at lower voltages and at an average price of £100,000 per kilometre [2] .

20. Furthermore, at Commons Second Reading the Secretary of State drew a parallel with the current planning regime for domestic satellite antennas. Whereas satellite antennas do enjoy permitted development rights, these are restricted in National Parks, AONBs, and Conservation Areas in order to minimise visual impact. The regulations mean that householders can only use the permitted development rights if they place the antenna on roof slopes, walls or chimneys that are not visible from a road. The rollout of new broadband infrastructure should be consistent with, and not undermine or reverse, this important protection.

21. The Government has not made clear what form of community consultation will take place under the proposed changes. Michael Fallon stated at Commons Second Reading that ‘providers will still have to notify local authorities of their plans. They will be encouraged to engage with local authorities and communities as a matter of best practice, and they will have to sign up to a code of practice on the siting of this infrastructure, to ensure that that is handled sensitively.’

Town or Village Greens (Clauses 12 and 13)

22. Clauses 12 and 13 prevent the registration of new town and village greens in cases where land has been identified for development through the planning process. The Government’s justification for these measures is that apparently some applications have delayed or stopped development. The proposal relies on a series of ‘trigger events’ set out in Schedule 4 of the Bill, comprising the first publicising event of a planning application, or a draft of a development plan document.

23. The tests for registering village greens are already onerous. CPRE believes that, without substantial amendment to Schedule 4, these clauses will add unreasonably to those tests. Tens of thousands of planning applications for housing development are granted each year, but in 2009 there were only 185 village green applications. There may be legitimate concerns about a small number of these applications preventing planned development. But the clauses do not offer a guarantee that village green protection will only be foregone in the public interest as expressed by a development plan that has been adopted following full public consultation, as opposed to the mere private interest of developers promoting development on a particular site. Nor are the clauses sensitive to the possibility that development plans can exist in draft form for many years without being adopted, or planning applications granted without being implemented. Major housebuilders are continuing to bank more and more land with planning permission, most of which is for market housing sold for profit rather than affordable housing. An issue that needs to be investigated is the extent to which recently successful village green applications were already supported by protective designations in local plans.

Inclusion of major business or commercial projects in the major infrastructure planning regime (Clause 21)

24. The idea of including big housing schemes in the scope of the 2008 Planning Act nationally significant infrastructure procedures has been dropped, and we welcome this move by the Government. However, inclusion of major business or commercial projects as ‘nationally significant infrastructure’ in Clause 21 is another blow to local decision-making. Ministers have said they will be consulting on what type of development these reforms will cover, but it could mean that big office, warehousing and retail schemes bypass local scrutiny, are decided by planning inspectors, and enjoy automatic immunity (or ‘statutory authority’) from claims of statutory nuisance caused by excessive noise or light pollution. The message given is that these schemes will get an easier ride from Government. Will Ministers commit to protect town centres and regeneration projects from competition from road and motorway based schemes, or will there be a flood of greenfield approvals that undermine urban areas? There is no guarantee that the schemes involved will reflect locally agreed plans. Will there be a new national policy statement to guide the planning inspectorate?

 November 2012

[1] HC Deb 5 Nov 2012: Column 693

[2] Ofgem, Sustainable Development Focus 2009-2010 , November 2010.

Prepared 21st November 2012