Growth and Infrastructure Bill

Memorandum submitted by BARRATT DEVELOPMENTS PLC (GIB 36)

SUMMARY

1. Barratt is Britain’s best known housebuilder and at any one time has about 230 planning applications within the planning system covering about 40,000 plots. Therefore, the Company is one of the biggest users of the planning system and has a specific interest in its efficiency.

2. This evidence relates to the planning clauses and, in particular, clauses 1, 2, 4, 5, 6, 12, 13 and 14.

3. This Company is supportive of these clauses but considers some need amendment to be effective. This concern relates to:

a. Clause 1 - The need for clarity in the definition of a designated planning

authority.

- The risk associated with the lack of a right of appeal.

b. Clause 2 - The lack of clarity about the basis of the rules under which

partial costs, including those of the Secretary of State’s, that may be sought to be recovered.

c. Clause 4 - The operation of effective measures to prevent the

requirement for unnecessary information.

d. Clause 5 - The limitation of the modification of Section 106 Agreements

to Affordable housing.

e. Clauses 12, 13 & 14 - Potential avoidance of trigger events.

INTRODUCTION

1. This evidence is submitted on behalf of Barratt Developments Plc who trade under the names of Barratt Homes, David Wilson Homes, Ward Homes and Wilson Bowden Developments.

2. Barratt is Britain’s best known housebuilder and has sold over 350,000 new homes around the country and is one of the leaders in terms of low carbon design, urban regeneration and social housing provision, in addition to its mainstream market housing activities.

3. The Company’s results for the year ending 30 June 2012 showed we completed about 12,850 dwellings despite the challenging economic background, of which 22.8% were social housing. The Company is building on 387 sites in England, Wales and Scotland. It re-entered the land market in 2009 and has an owned and controlled landbank of about 55,300 plots. The Company also holds about 10,500 acres of strategic land whereby sites are pursued for allocation in the development plan system before a planning application is made.

4. At any point, the Company has about 230 planning applications within the planning process ranging from minor replans to major sites in excess of 1,000 dwellings and so has a major interest in planning efficiency. However, in its recent results, it recorded that by 30 June 2013 there would still be around 4,500 impaired plots, and so has a considerable interest in proposals that could improve the viability of development.

BACKGROUND FACTS

5. Barratt Developments Plc have about 230 planning applications in the planning process at any point in time, covering about 40,000 residential plots. A record of timescales has been maintained since July 2010 covering all elements of the process from pre-application to discharge of commencement conditions and across all application types – replans, reserved matters and full or outline applications.

6. Most applications by this Company fall into the category of major applications and it has been noticeable that the average time to achieve an implementable consent across all application types has on average risen from 52 weeks to 65 weeks between July 2010 and September 2012. The element of the process that only deals with the process from application submission to decision (grant, refuse or minded to grant) has stretched from 19 weeks to 28 weeks.

7. In September 2012, DCLG published the monitoring statistics for planning applications for 2011/12 under the "Planning Guarantee Monitoring Report" showing that after 26 weeks about 2,700 major applications were undetermined. This period only relates to the application processing part of the permission process.

8. Therefore, any claims that planning delay is not an issue needing to be tackled is wide of the mark and this Company welcomes any measures which will result in speeding up the process.

CLAUSE 1

9. This Company considers that it is necessary to seek to speed up the determination process.

10. The last Government sought to provide an incentive to local authorities by providing a Planning and Housing Grant (a reward for determining applications in the statutory period). In a statistical sense it showed an improvement in performance but had the unintended consequence that, in some cases, just before the lapse of the statutory period, applicants were invited to withdraw and resubmit as a ‘free go’ otherwise they faced a refusal. So whilst the statistics improved they masked some inefficiencies. It also gave rise to taking more of the process outside of the determination period by, for example, greater use of pre-application discussions and a rise in pre-commencement conditions so that the determination period was a matter of application processing rather than decision making. It is unlikely when considered in total from pre-application to discharge of pre-commencement condition discharge improved at all.

11. This Government scrapped the grant and preferred the incentive of the New Homes Bonus. The experience of this Company is that this Bonus has failed to change behaviour, despite the benefit of the Bonus featuring as information in our new planning applications.

12. In this regard a great deal of comment was generated when Clause 143 was introduced into the Localism Act 2011. This Company has no evidence that alerting local authorities to the financial benefits of development has made a difference to planning performance.

13. Against this background it is appropriate to consider that more needs to be done and the prospect of an authority losing its planning powers ought to bring about a change of behaviour.

14. However, the proposal is not without recognisable difficulty and/or uncertainties. These may be able to be addressed by secondary legislation but there is a need for clarification to understand the proper operation of the procedure. This Company has no objection to the Secretary of State designating particular authorities and whilst it may (or may not) disagree with any list, it is prepared to accept that there is a reasonable chance that the Secretary of State can produce a cogently argued list. This Company would regard the starting point for any determination of a poor performing authority to be the lack of existence of an up to date local plan. Thereafter, it may be reasonable to apply other metrics but the starting point of an up to date local plan would reflect that planning is a plan based system as emphasised more recently by the NPPF. However, it would be very unusual that a currently poor performing authority would justifiably remain on that list for a long period. Similarly, an authority not currently adjudged to be a poor performer could become one over time. Therefore, the clarity of the designated period and arrangements for monitoring need to be made.

15. If an authority is to remain on a poor performance list for a minimum of a year then their performance should be monitored quarterly and that be used as a basis for subsequent removal from the list or not, as the case may be. Equally, there is no reason to keep the list un-amended for a full year but new authorities could be added on a quarterly basis if their performance deteriorates. The Company would see this operating via a long list (authorities without a plan) and then the short list of authorities who fell foul of other particular metrics. In this regard the Company find it curious that the Impact Assessment refers to a metric – 20% of major decisions overturned on appeal – that does not apply to any authority. The metrics need to be carefully chosen and reasonable in all the circumstances.

16. An application can be expected to be required to meet with the statutory national information requirements but on what basis will the applicant be able to judge to what extent further information is required. Notwithstanding the provisions of Clause 4, which this Company supports, most supporting information is determined by a reasonable judgement sometimes as a result of pre-application discussions. Given that there is no right of appeal, it will be necessary to get the application ‘right first time’ but there is no apparent provision for amendment.

17. Although the provision of the Localism Act 2011, Clause 122 has yet to have its associated Development Order issued, it is a reasonable expectation that public consultation should be carried out. This Company routinely carries out consultations irrespective of any statutory requirement and reflects upon that in the final form of the application. Similarly, the Company acts responsibly by engaging in pre-application discussions with the local authority and statutory consultees. It is unclear how an application would be treated if it did or did not undergo public consultation and pre-application discussions.

18. Similarly, applications are often amended as they go through the application process in response to consultees. It is unclear if there will be the opportunity to make such changes or the application to the Secretary of State is an ‘all or nothing’ approach.

19. Is it intended that the local authority, in any of its various roles, become a consultee or will the Inspectorate make their judgement solely on the basis of published policy?

20. There is concern about timescale of decisions. Given that an authority will be designated because its decision making process is slow, making the application to the Secretary of State will only be advantageous if the process is much quicker. Whilst the Impact Assessment indicates that decisions will be made with 13 weeks, this is only part of the process and so this Company would want to know what is the projected timescale for the whole process from pre-application to the issuing of an implementable consent. This will have to be much quicker than the current timeframes to make engaging in the process worthwhile.

21. Finally, there is the question of the discharge of pre-commencement conditions. If this responsibility reverts to the local authority, who may feel aggrieved at having had their decision making powers taken away, there has to be a mechanism whereby they cannot then frustrate the commencement of development.

CLAUSE 1 (5)

22. This clause provides that there is no right of appeal although Schedule 1 makes it clear that there remains the right for Judicial Review. Such review takes at least a year, is very costly and not embarked upon lightly. A Judicial Review only deals with the legal process of the decision making process, not the merits of the application, and even if successful is only referred back to the decision maker (in this case the Secretary of State) to reconsider. Such a potential offers little comfort against a refused applicant. There is no expectation that such a review would be speeded up or simplified as it is unlikely that sufficient Court resources could be made available for a significantly increased workload.

23. Therefore, the potential for Judicial Review is unlikely to feature in the process of deciding if an application should be submitted to the Secretary of State. However, without an alternative appeal process an application to the Secretary of State becomes very risky without understanding the information requirements and processing arrangements.

24. Currently, the Inspectorate make their judgements following an application that has been processed and all information as well as consultee responses are available. If the Inspectorate receives an application that has not been through this consultee process then without a referral back mechanism and in the absence of an appeal process the application may become something of a lottery. The provisions needs to include a ‘minded to determine’ stage and then to give the applicant the opportunity to respond before a final decision. This approach is not fundamentally different from the Inspectorate approach to dealing with soundness of local plans whereby modifications are recommended to make plan sound.

CLAUSE 2

25. The proposal for cost recovery at local inquiries to be partially awarded raises no fundamental objection to Clause 2 (1) and insofar as the other clauses relate to written representation or hearing appeals that is equally unobjectionable. However, if there is an expectation that costs will be more regularly awarded than hither to then there needs to be greater clarity about the rules for successful cost applications.

26. However, the wording of Clause 2 (2) (1B) and (1D) appear to also enable the cost recovery of the Inspectorate. This is currently a little used provision and so if it is to become more widespread there needs to be clearer rules about what constitutes unacceptable behaviour.

27. There is a need for clarity and certainty in respect of fees and costs.

CLAUSE 4

28. This Company supports the intention behind this Clause. However, as it stands it does not advance matters further than the current provisions set out in the Development Management Policy Annex: Information Requirements and Validation for Planning Applications (March 2010).

29. The difficulty that the Company recognises is that the system works where people act reasonably but unreasonableness is a matter of differing opinions. The Company also recognises that in a litigious environment, local authorities will be naturally cautious.

30. The problem to be addressed is two-fold:

a. The volume of information required and its proportionality.

b. The inability of a disputed information request to be resolved independently.

31. The proportionality question is to some extent addressed by (4A) (b) but as it includes the phrase ‘is reasonable to think’ it leaves it to interpretation. Whilst someone may decide to seek to resolve it in the courts, it is unlikely that the Court cost would outweigh the information cost and so it will be a case of ‘grin and bear’ it. It would be better to omit ‘it is reasonable to think that’ from (4A) (b). This would leave information only be relevant if it relates to a material consideration. There is much case law upon material considerations and so defining what is material is any circumstance should be easy to prove.

32. Resolution of a dispute about the need for information must be determined quickly. In the case of disputes there needs to be a quick arbitration process where the arbiter’s word is final. Such an arbiter could be one of many people – Secretary of State (or someone acting on his behalf), Ombudsman or an Independent Professional Body. The Clause needs to be extended to provide for dispute resolution.

CLAUSE 5

33. The provisions of this Clause are welcome. However, the Company considers that the provisions should not be restricted to affordable housing. Indeed the Company has difficulty understanding the reasoning behind the restriction given the evidence of the Impact Assessment that 62% of all sites that are stalled have permissions that pre-date April 2010 and that a consultation on renegotiating these sites has been undertaken. The Company believes a much more all embracing provision should be made covering any obligation that results in stalled or unviable development.

34. It is clear from Clause 5 (3) (a) that the basis for reconsideration of the affordable housing requirement is that the development is unviable. However, that viability may be a consequence of the impact of the total package of Section 106 provisions and it may be that by looking at the package as a whole a reasonable solution can be found. The Company is aware that many authorities regard the need for affordable housing as a key issue. Whilst the Company may dispute the justification for the scale of affordable housing being sought, it is preferable that all opportunities for a negotiated settlement are available rather than conflict. It is only affordable housing that can be negotiated, there is the potential for more dispute leading to appeal. Whilst the appeal provisions are welcome, appeals take time and create cost which will be counterproductive to the objective of bringing forward otherwise stalled developments.

35. Looking at the totality of obligations rather than one element alone is more in keeping with the provisions of the NPPF, which seeks to ensure that policies as a whole enable viable development.

CLAUSE 6

36. The Company welcomes this provision. The Company has an established track record of acquiring local authority land and any provision which enables such land to be brought forward for development is supported.

CLAUSES 12, 13 AND 14

37. The Company welcomes the provisions of these clauses which are a reflection of its support for the consultation proposals issued by DEFRA last year.

38. The basis of the provisions as drafted is a recognition that the existing law has been abused and that claims for town or village green status has been used as a means of seeking to prevent development rather than to protect recognised valuable Greenspace.

39. The Clauses in the Bill as presented prevent town or village green applications after certain trigger events. However, they do not prevent a spate of applications before a trigger event. In order to curtail such potential abuse, applications should not be able to be freely made without any consequence. Whilst the provisions of Clause 14 are recognised there is nothing in the Bill or the Impact Assessment to indicate the scale of such fees or their intention to prevent spurious applications for registration as recognised in the original DEFRA consultation. The Government should indicate at the earliest opportunity its intentions in this regard to avoid attempts to circumvent the objective of the legislation.

CONCLUSION

40. This Company welcomes the thrust of the provisions of Clauses 1, 2, 4, 5, 6, 12, 13 and 14 but feels that their effectiveness could be strengthened by additions and amendments.

November 2012 

Prepared 22nd November 2012