Growth and Infrastructure Bill

Memorandum submitted by Friends of the Earth (GIB 25)

1. Introduction

1.1 Friends of the Earth campaigns for everyone to have a right to healthy places to live and for fair shares of our resources in order to safeguard future generations. Friends of the Earth has long campaigned for a participative, democratic and fair planning system that delivers sustainable development and safeguards the public interest. Friends of the Earth has a network of over 200 local groups, many of whom are engaged in local planning in order to deliver more sustainable places.

1.2 The green economy is one of the UK’s few recent success stories. According to the Confederation of British Industry, "in trying economic times, the UK’s green business has continued to grow in real terms, carving out a £122 billion share of a global market worth £3.3 trillion, and employing close to one million people" [1]. However, the Growth and Infrastructure Bill does not contain measures to promote the green economy, but instead weakens the planning framework – one of the systems which can encourage green technology and products e.g. in construction.

1.3 There have been assertions that the planning system is ‘the problem’, but alongside other organisations such as the Local Government Association (LGA) who point out that the changes will lead to further delay and confusion (Bill briefing, 18th October), Friends of the Earth has not seen any evidence to prove that this is the case. Given that there has been no White Paper, there has been no process of gathering evidence together and making a sound proposal on that basis. Under the Aarhus Convention, Article 8, it is reasonable to expect that there should have been comprehensive consultation: "Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment."

1.4 The planning system is a process which currently approves the majority of applications (87% of applications approved – 2011/12 DCLG figures). For the planning system to function properly there will be refusals – the planning system has to get the right development in the right place, and there are both speculative and poor quality applications that do come forward. Development should be refused on good grounds – for example as guided by the NPPF on retail development: "Where an application fails to satisfy the sequential test or is likely to have significant adverse impact on one or more of the above factors, it should be refused.…"(paragraph 27). As the LGA have pointed out, getting permission is not the issue. Houses in the pipeline with permission, as developers have themselves pointed out, are not being built because among other issues there is a lack of finance, and because the (volume house) builders regularly have long timeframes for the delivery of schemes to maximise their business. The global economic downturn, the lack of credit both for individuals and businesses and the need to revise ‘business as usual’ are all contextual current issues, whereas this Bill is setting a long-term framework for the way some planning decisions are made in England.

1.5 There should be recognition that it is of paramount importance that the public interest is safeguarded in the planning system, and that vested narrow interests do not dominate the process. There are risks that this Bill could undermine the public interest by undermining local government’s role, and by reducing community voice. The cost of poor development; for instance in terms of low quality, lack of additional infrastructure (such as schools and shops), poor accessibility and inappropriate location; will fall upon householders and the taxpayer. CLG Select Committee report into the national planning policy framework (December 2011) pointed out that "From the definition of 'viability' in the draft NPPF, many have concluded, which we fully understand, that the NPPF would allow unsustainable development to go ahead if measures to make it sustainable were also deemed to make it unviable for the developer. We welcomed the Minister's clarification and we recommend that the NPPF make it clear that calculations of viability presuppose requirements to provide infrastructure and other measures necessary to the development, not simply returns deemed acceptable by the developer." (Paragraph 91 of Draft NPPF). Friends of the Earth are concerned that the measures within this Bill could allow unsustainable development to go ahead.

1.6 PwC recently published a report, the ‘Low Carbon Economy Index’ (November 2012) [2] that highlights that our decarbonisation agenda is not where it needs to be: "Even doubling our current rate of decarbonisation, would still lead to emissions consistent with 6 degrees of warming by the end of the century. To give ourselves a more than 50% chance of avoiding 2 degrees will require a six-fold improvement in our rate of decarbonisation." The planning system and decision making on both major and local developments must take into account the need for decarbonisation. This Bill could provide an opportunity to set planning decision-making on the right track on climate change issues.

1.7 Friends of the Earth have identified three key issues in response to the Bill and latest round of planning reforms:

· Centralising: The Bill has the effect of shifting powers to the centre of Government through bypassing Local Planning Authorities (LPAs) as the first decision maker in planning applications. The addition of ‘business and commercial’ projects to the 2008 Planning Act projects which can be dealt with by the Secretary of State (SoS) through the major infrastructure regime, also effectively bypasses LPAs. Note that alongside the Bill, the SOS’s written statement (6th September) also mentioned the expansion of call-ins.

· Purpose of planning: The planning system should be focussed on delivering sustainable development in the public interest. Picking on affordable housing requirements through legislative measures seems to undermine this purpose as it does not fit with the UK Sustainable Development Principles as referenced in the NPPF (2012) particularly ‘ensuring a strong, healthy and just society’. There is also no strengthening of the climate change provisions in relation to planning which are needed to create a step change in action.

· Public participation: It is vital that communities have their say and know that their input is valued, helping to shape outcomes. There are no measures in this Bill which redress the inequality between developers who can appeal in specific circumstances and communities, who have no right of appeal. It is also unclear how the public will be able to participate in decisions that are ‘centralised’ under the first measure in the Bill.

2. Key planning changes

(Clause 1) Option to make planning application directly to the Secretary of State

2.1 This is most significant procedural change to the planning system in the Bill as it undermines local democracy. However it only applies where a local planning authority has been ‘designated’ by the Secretary of State. The grounds for a designation are not included in the clause, and as there has been no consultation it is unclear what these grounds might be, although this has been discussed to a certain extent since the publication of the Bill, it is clear that there could be a risk of ‘unfair’ designations. Creating a right for an applicant without being clear when it will actually apply is very concerning. While consultation options for the public should remain under this measure (1(6)) it could be very confusing and undermining for local communities to understand as to why their local authority is no longer making the decision.

2.2 If the possible criteria are based around timeliness, this brings into question the need for quality outcomes. There may be site specific reasons as to why an application needs more time to be properly prepared, and complex schemes may need more time. Local authorities must also have the option of refusing development – there must be room for judgement rather than a rubber-stamping process.

2.3 Local authorities and communities, as well as developers, are grappling with a reformed planning framework in England. Together with a reduction in planning resource, for instance the loss of staff and experts within planning teams, this will inevitably lead to delay. Investment in planning services would be more pertinent to better quality outcomes.

2.4 The Bill will add to a possible perception of ‘unfairness’ in the system. Developers have a right to appeal, and will now have an option of bypassing a local authority in certain, limited, situations. Local communities, by comparison, are not empowered by the Bill.

(Clause 4) Information requirements

2.5 Information is related to the material considerations in determining a particular application. Friends of the Earth has experience of the paucity of information provided by developers – in cases where this could be particularly concerning such as exploratory drilling for shale gas, or the proper assessment of the impact of the development on traffic increases and use of roads, and related issues such as air quality or safety.

(Clause 5) Section 106 Agreements

2.6 The Communities and Local Government Select Committee in their report (Financing of New Housing Supply, April 2012) said: "11. We recommend that the Government leave local authorities to decide whether or not to reopen section 106 agreements in cases where development has slowed down or stalled." (Paragraph 67). Friends of the Earth agree with the LGA and others that this legislative measure is unnecessary given that local authorities are already engaging.

2.7 The arguments around viability are mired in the fact that only sector-led planning guidance to complement the NPPF has so far been forthcoming, and the question is who has ensured that the public interest has been safeguarded in this guidance. Viability changes and is driven by issues on sites as well as wider economic issues which can be seen at the moment. Speculative and/or expensive acquisitions by developers in previous times may well need to have revised profit margins.

2.8 This measure gives developers’ means for arguing down contributions in a way that is confrontational and costly, rather than focussing on constructively collaborating with communities and local authorities to deliver development that is needed.

2.9 Our concern is that this cuts communities out of the frame by failing to provide for those most in need, and discredits the local plan process which will have undergone public scrutiny and will have set affordable housing policies. The discussions around viability are also very opaque for communities. Unfortunately the end result is a reduction in the overall amount of affordable housing and the land that will be available as well as less mixed developments.

(Clause 7) Electronic communications code

2.10 The key statutory purposes of National Parks and ANOBs should not be undermined by this clause. There is a lack of evidence and information as to what this clause is attempting to address, and what the impact could be.

(Clause 12, 13) Registration of town and village greens

2.11 Town and village greens are important components of sustainable communities. Exemplary ‘green’ developments particularly e.g. in Freiburg (Germany), include shared green space for a given number of properties to include wildlife, play and recreational space. There has been a reported loss in almost all the authorities surveyed in the report (Adaptation Sub-Committee, Climate Change Committee) of green space in urban areas. More of these spaces should be created rather than less, and local authorities should ensure that protected green spaces are an integral part of their local plans and of any new development over a certain size. Green space is also vital for adaptation and for the enhancement of biodiversity.

(Clause 21) Bringing business and commercial projects within Planning Act 2008 regime

2.12 The 2008 Planning Act was created for large scale projects covering energy, transport, water and waste which were of national significance. National Policy Statements are drawn up and set out a framework for decision-making by the Secretary of State, not the local authority.

2.13 This adds a new category of business and commercial development to this regime, but there is little clarity on the details of the category which will have to come forward. It is important that the public legitimacy of a regime set up to deal with projects of national significance is not undermined by the addition of a wide range of projects where the developer may choose to ‘bypass’ the local authority, this despite the fact that the development could have a significant impact on the local area and the local plan.

2.14 The local plan must not be undermined by this measure. It is essential that these developments – which are not ‘infrastructure’ in the same way as the other categories within the regime – are set and approved within the local plan framework. These developments will have social and economic impacts which have to be understood and set within a local context. Clarity is required within this measure as to the policy framework for decision-making.

2.15 It is up to the developer to choose whether to take this route. Creating dual options for developments in this way will cause confusion – for communities and local authorities.

2.16 Friends of the Earth is concerned that this measure is another centralising drive which could extend to "thousands" of developments as referred to in the press release announcing these latest planning reforms.

3. Opportunities for the planning system

3.1 The planning system has to tackle the key concerns of sustainable development and climate change, and should reflect the provisions and spirit of the Aarhus Convention. Local democracy and decentralisation should be strengthened by reform as set out in the Coalition Agreement [2]: "The Government believes that it is time for a fundamental shift of power from Westminster to people. We will promote decentralisation and democratic engagement, and we will end the era of top-down government by giving new powers to local councils, communities, neighbourhoods and individuals."

3.2 A specific ‘sustainable development’ purpose for planning would emphasise outcomes. A definition of sustainable development on the face of the Bill could provide clarity, longevity, certainty and could reduce litigation concerns. Without a definition on the Bill, policy could be subject to political changes, resulting in uncertainty in the direction of travel for all sectors. It also reduces the risk of multiple, conflicting and confusing definitions. Having a definition set out on the face of the bill will insulate action on sustainable development from dispute, because the definition should build upon European and international law, and because it lends status and protection to a particular course of action that is framed by the definition.

3.3 Climate change, as illustrated recently by the PwC report, is a huge and pressing challenge. Adaptation requires spatial planning to understand the changes, risk and measures needed to develop in a way that is sustainable and reduces risk. The Adaptation Sub-Committee’s July 2012 report [4] made the following recommendation: "The Government and local authorities should ensure more robust and transparent implementation of planning policy in relation to development in areas at risk of flooding." This is because the report found that "Development in the floodplain grew at a faster rate than elsewhere in England over the past ten years." A duty to act on climate change would be a means of strengthening this policy, and avoiding the high risk of future costs to householders and taxpayers as the report also points out: "Climate change could almost double the number of properties at significant risk of flooding by 2035 unless there is additional action." Around 13% of new development took place on floodplains (21,000 homes and business premises) in the last ten years.

3.4 Mitigation should also be a core part of a local authority’s actions as recommended by the Committee on Climate Change: "There is currently no requirement for local authorities to take action on climate change. This coupled with limited funding means there is a significant risk that local authorities will not develop and implement sufficiently ambitious low-carbon plans. This report emphasises the crucial role councils have in helping the UK meet its carbon targets and preparing for the impacts of climate change. It outlines specific opportunities for reducing emissions and highlights good practice examples from a number of local authorities. The Committee recommends that a statutory duty and/or additional funding is needed to ensure local authorities have stronger incentives to act." Their report was published on the 17th May 2012 [5].

3.5 Building quality is also at risk as ENDS have pointed out in their report (September 2012) on the fall in SAP ratings "A more laissez faire approach to planning permission and weaker enforcement during the recession seems to provide part of the explanation." In addition very few buildings have achieved the highest standards, as the ENDS report also notes: "At higher code levels, activity is now almost non-existent, with just 28 public sector certifications and three private ones in June 2012. There were just three at the highest code level 6 in the same month in the public sector." This is extremely concerning given the need to reduce household bills and reduce resource (energy, water) demand in order to tackle climate change and adopt a more sustainable approach.

3.6 As the Secretary of State (SoS) is again accruing power through this Bill, in Friends of the Earth’s opinion this must be safeguarded with strengthened climate change and sustainable development duties, which must specifically reference the Climate Change Act and the need to consider the impact of cumulative emissions, and to operate within environmental limits.

3.7 The changes to the Planning Act 2008 to include business and commercial development must either be dropped or amended to ensure that these decisions are firmly set within the framework of the local plan. This would require an amendment to the Planning Act 2008.

3.8 It should be clear how the Secretary of State will be held to account, particularly if Judicial Review is deliberately made more costly (Prime Minister speech to CBI, November 2012).

4. Conclusion

4.1 There has been a lack of identification of the issues which the Bill seeks to address. There have been failures to gather evidence and to proceed in a rational way. Legislation should not be undertaken lightly as these measures could have long term impacts on both the planning process and the achievement of sustainable development.

4.2 The Aarhus Convention states (Article 6(4)): "Each Party shall provide for early public participation, when all options are open and effective public participation can take place." It goes on to state in 6(7) "Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity." and that 6(8): "Each Party shall ensure that in the decision due account is taken of the outcome of the public participation." The Bill should reflect and safeguard these provisions.

4.3 Friends of the Earth recommend that clause 1 in particular should be deleted and not rushed through. There should be a proper consultation period, gathering of evidence and consideration of the impacts of such a clause, and what results might follow. Measures such as skills, resources, funding and financing should be proposed and consulted on instead to address the housing issue.

4.4 The Government should recognise that measures within this Bill undermines its localism agenda and reconsider accordingly.

November 2012

Naomi Luhde-Thompson 

Friends of the Earth

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[1] http://www.cbi.org.uk/media/1552876/energy_climatechangerpt_web.pdf

[2] http://www.ukmediacentre.pwc.com/Media-Library/PwC-Low-Carbon-Economy-Index-2012-8b8.aspx

[3] http://www.cabinetoffice.gov.uk/sites/default/files/resources/

coalition_programme_for_government.pdf

[4] http://www.theccc.org.uk/reports/adaptation/2012-progress-report

[5] http://www.theccc.org.uk/reports/local-authorities

Prepared 21st November 2012