Housing and Planning Bill

Written evidence submitted by Friends of the Earth England, Wales and Northern Ireland (HPB 66)

Housing and Planning Bill

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 advocated 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.

Summary

Friends of the Earth recognises that England faces a housing crisis, and that the UK as a whole may need 2 million new homes over the next 15 years. Most of these homes can be built in our existing towns and cities in the next few years, where we can use the opportunity of new development to create high quality places, where people want to live and work, and which include high quality natural environments and space for wildlife. The planning system is how we shape places in the UK, enabling people to see the wider picture and how new development fits into the existing area. Local representative accountability for planning at a local level is a cornerstone of democracy in the UK and should not be undermined. Ensuring people have a say in the development that affects them is also essential to build public trust and public support for the new development the community needs. However, planning teams are under-resourced, which is undermining the achievement of the best quality process and outcome. Therefore, although we support the need for homes, particularly for those most in need, this Housing and Planning Bill undermines the planning system, local democratic accountability and public involvement in decisions. We propose the following amendments and new clause:

· Clause 1-7 (starter homes): affordable homes as a priority and a new sustainable development purpose for planning

· Clause 93 (timetable for representations on Neighbourhood plan) amend to ensure minimum time period

· Clause 99 (local plan approval by Secretary of state) deletion

· Clause 102 (permission in principle): deletion

· Clause 103 (registers of land): amendment to ensure that only brownfield land suitable for housing is included, and only smaller sites and that areas of high environmental and social value are excluded

· Clause 107 (nationally significant infrastructure project/housing): deletion

· New Clause (statutory purpose for planning is sustainable development): a statutory definition of sustainable development to protect the public interest in planning

Introduction

1.1 Friends of the Earth recognises that England faces a housing crisis, and that the UK as a whole may need 2 million new homes over the next 15 years [1]. Most of these homes can be built in our existing towns and cities in the next few years, where we can use the opportunity of new development to create high quality places, where people want to live and work, and which include high quality natural environments and space for wildlife. The planning system is how we shape places in the UK, enabling people to see the wider picture and how new development fits into the existing area – the economic, social and environmental implications. Local representative accountability for planning at a local level is a cornerstone of democracy in the UK and should not be undermined. Ensuring people have a say in the development that affects them is also essential to build public trust and public support for the new development the community needs. However, planning teams are under-resourced, which is undermining the achievement of the best quality process and outcome.

1.2 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 national Government through bypassing Local Planning Authorities (LPAs) as the first decision maker in planning applications involving housing and allowing the Secretary of State the means to intervene further in local plans.

Purpose of planning: The planning system should not have a duty on a single sector of interest, namely first time buyers. Its purpose of delivering sustainable development is much broader than that.

Public participation: It is vital that communities have their say and know that their input is valued, helping to shape outcomes. There are several measures in this Bill that cut out their participation in decision-making. The ‘permission in principle’ concept as set out in the Bill is a radical removal of democratic discretion over individual planning decisions which has no political consensus in its current form.

1.3 We note that there has been no White Paper, and therefore 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 In addition we understand that an Equalities Impact Assessment has not been undertaken. As part of the Localism Bill assessment, an EQIA was justified as follows: "Where any group within the community participates less with the preparation of a neighbourhood plan – for whatever reason – there is a risk that those plans will not reflect the needs or wishes of those people. Those needs or wishes may not necessarily be linked in any way to the particular characteristics of those groups but may nevertheless concern matters that are properly addressed through the planning system. There is, however, evidence to suggest that members of minority ethnic communities are less likely to engage with the planning system in the preparation of a neighbourhood plan." (see Equalities Impact Assessment of the Localism Bill, published January 2011). An EQIA was also conducted in relation to Government policy changes in the same year on ‘affordable rent’. Given the radical change to the English planning system, and the introduction of several measures to increase home ownership that could be at the expense of affordable and social housing provision, we seek clarification on whether the Public Bill committee will have an Equalities impact assessment to inform their consideration of the measures contained in the Bill.

Clause 1-7 (Starter homes)

2.1 In the impact assessment published alongside the Bill, at paragraph 1.1.16 it is acknowledged that the Starter Homes duty "may reduce or alter the mix of affordable housing provided which could impact on those individuals seeking affordable housing." As this is a serious impact of the bill’s proposals, we suggest that the Public Bill committee require further evidence from the Department on this point before discussing these clauses in order to ensure an informed debate. We further suggest that the Public Bill committee seek clarification on the assessment of the estimated costs to the provision of public infastructure of removing the need to pay CIL and ‘other tariff style payments’ (see paragraph 1.1.25 of the impact assessment) alongside the stated target of delivering 200,000 starter homes. The reduction in contributions will affect the planning system’s role in creating sustainable places to live and work.

2.2 We would also note that public support for development is related to the provision of what people need – for instance polling has found that "the English public support new development in the local area if it leads to new jobs (61%) or affordable homes (66%)." [2]

2.3 We are unclear as to why affordable homes are not considered of higher priority than starter homes. We further suggest that a definition of sustainable development as a purpose for planning be introduced into the Bill (further details below).

Clause 93 (Timetable in relation to Neighbourhood Planning)

3.1 We are concerned at the proposal to impose time limits for the submission of representations. This is in our view not compatible with the Aarhus Convention provisions particularly under Article 6. Participation in plan-making can be fairly time-consuming and the public may have limited time in which to engage – this therefore requires a minimum time of e.g. 12 weeks to ensure that there is a sufficient opportunity provided.

Suggested amendment: Delete subclause (b) from 13A proposed as clause 93(1).

Clause 99 (Local planning)

4.1 We are concerned that the Secretary of State is given powers to approve the local planning document where local plan-making responsibilities are being taken over. In the first instance, there could be a specific duty for local planning authorities to have a plan to make it highly unlikely that intervention is required. More resources tied particularly to planning delivery could be provided (this would have other benefits in relation to service delivery). In relation to the default powers, we suggest removing the power of the Secretary of State to approve documents, and to instead ensure that the locally elected members retain the responsibility of approving the local development documents.

Suggested amendment: Delete subclause 27(5)(a) in clause 99.

Clause 102 (permission in principle)

5.1 The proposed permission in principle is a sweeping and radical change to the English planning system. The Secretary of State is given the power to create a development order "in relation to land in England that is allocated for development in a qualifying document (whether or not in existence when the order is made) for the development of a prescribed description;". The problem is that this broad measure comes with a high cost to local democratic accountability and people’s rights. The rationale cited in the impact assessment is that ‘uncertainty’ about getting planning permission on sites "can discourage developers from taking some proposals forward". As far as the evidence from the Department for Communities and Local Government demonstrates it seems that approvals are not the problem, it is the completions that are failing to materialise. In the 12 months to March 2015, 261,000 homes were granted permission in England according to a DCLG press release [3]. However, in the same period only 96,120 houses were completed by the private sector, and only 124,520 houses completed overall [4]. It ssems on the basis of this evidence that it is not a planning permission issue but rather developers failing to build despite planning permission having been granted – and therefore a number of other factors outside the planning system should be addressed.

5.2 If permission in principle is to be given e.g. as it is through a local development order, or in the sort of planning documents used in the Netherlands, these are documents specifically geared towards sites and what is appropriate on those sites – that is the context for the decision. The risk of ‘any qualifying document’ being the relevant document for a ‘permission in principle’ is that these are not fit for purpose, nor will they have undergone the requisite community engagement or environmental, social and economic assessment. The implementation of the permission in principle is highly likely to cause contention in communities once the full implications are understood through local experience.

5.3 The proposal restricts the current discretion for locally elected members and officers using delegated powers to object to development on a site if it e.g. does not comply with local plan policies. Nor will the public be able to object to the principle of the development – they will merely be asked to comment on "technical details" as yet to be defined. This could be perceived by the public as tantamount to being asked ‘what colour would you like the gates?’. In our view this is contrary to Article 6 of Aarhus Convention which clearly sets out the provisions for involving the public in environmental decision-making such as planning. The permission in principle is designed to secure approval on "location, use and quantum of development" (paragraph 6.42 of the impact assessment). These are important matters with which to engage properly with the public. Evidence from sources such as Ipsos MORI [5] found that "Support for local control is highest when it comes to planning housing developments and transport" and in another poll on housing with regard to public involvement "Nearly a half (46%) say they would like to be either very or fairly involved in decisions about building new homes in their community." This latter research also found that ""Those likely to be involved in planning decisions are more likely to support the building of more new homes" [6]. The 2011 UK Citizenship survey found that almost three quarters of respondents said that it was either ‘very important’ or ‘quite important’ to have influence over decisions in their local area.

5.4 The Conservative manifesto made a commitment to development on brownfield land as follows: "We will ensure that brownfield land is used as much as possible for new development. We will require local authorities to have a register of what is available, and ensure that 90 per cent of suitable brownfield sites have planning permission for housing by 2020" [7]. While the brownfield first policy was adopted prior to 2012, it was watered down in the reissue of England’s national planning policy as the NPPF in that year. This is however not a commitment to the idea of ‘permission in principle’. In fact the Conservative manifesto makes a different commitment which is to "ensure local people have more control over planning and protect the Green Belt" [8].

5.5 We are further concerned that at paragraph 6.45 of the impact assessment it is cited as a ‘benefit’ that, where the permission in principle operates, applicants for development will provide less information as "the applicant will only be required to satisfy the technical details". What sort of information will no longer be submitted or considered? We do not see how the permission in principle obviates the need to ensure that each application is judged on its merits. We furthermore suggest that the Public Bill Committee seek clarification on the evidence that development being acceptable in principle needs to be ‘repeatedly’ established in the current system (paragraph 6.46 of the impact assessment). A site allocated in a local plan has undergone tests to ensure its suitability. The decision on any application that is brought forward on that site ensures locally accountable democratic discretion to provide a public interest safeguard in the system. It is not even the case that many applications are refused – the current approval rates have remained consistently between 82% – 89% since 2005/6 [9]. A poor quality inappropriate proposal that is consistently promoted by the applicant, on a site that is suitable for development, does not by virtue of being repeatedly proposed change the nature of the application quality.

5.6 The proposals for permission in principle fail to counterbalance the removal of local accountability and public participation with a prevention of ‘off-plan’ and speculative development. There are effectively a plethora of parallel systems proposed, and even the permission in principle as proposed would apply to a minimum of three different documents, (brownfield register, local plan, or any other qualifying document). This is highly complex and confusing for the public. Nor does it give communities any of the benefits by preventing applications outside the plan. In our view the proposals are also open to litigation as the clarity surrounding what the permission in principle actually means e.g. on a brownfield register where many issues may not have been considered, and EIA may need to be undertaken, is very unclear.

5.7 The planning system is a process which currently approves the majority of applications as aforementioned. 88% of planning applications were approved in 2014/15 [10]. For the planning system to function properly in terms of quality there will be refusals – the planning system has to get the right development in the right place.

5.8 There should be recognition that it is of paramount importance that the public interest is safeguarded in the planning system, and that narrow vested 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 in relation to a broad range of development types.

5.9 The cost of poor development; for instance in terms of low quality housing, lack of additional infrastructure (such as schools and health services), poor accessibility and inappropriate location - will fall upon householders and the taxpayer in the end.

Suggested amendment: we propose that Clause 102 be deleted.

Clause 103 (Local planning authority to keep register of particular kinds of land)

6.1 Clause 103 is defined broadly on the face of the Bill as "local registers of land of a specified description" to which Clause 102 will apply. The impact assessment further clarifies that this will be specified in regulation to cover "brownfield land that is suitable for housing" (paragraph 6.55). Friends of the Earth is very supportive of proposals for high quality compact urban spaces as outlined in our Housing briefing (see references) and this requires the re-use of appropriate brownfield land. We remain concerned however at the loss of urban green space which is provided by some brownfield sites (see the Adaptation Sub-Committee’s report) and recommend the protection of brownfield sites that are supporting wildlife. 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 and should be protected by the planning system in England. We remain concerned that the risk of other environmental constraints – such as flood risk, contaminated land and so on should also prevent sites from being added to such a register given the implications.

Suggested amendment: we support the amendments proposed in evidence submitted by LINK.

Clause 107 Development consent for projects that involve housing

7.1 This clause provides for the Secretary of State to grant consent for housing through the Nationally Significant Infrastructure Projects (NSIP) process, including "general housing" where this could "usefully sit alongside the infrastructure itself" (paragraph 6.107 of the impact assessment). We are very concerned that this is an unsuitable process for approving housing development with all its related infrastructure and service needs. The process was designed for power stations and railways: the kind of development that is nationally significant. It is taking yet another decision away from the local planning authority.

For these reasons, we propose the following amendment to the Bill:

Suggested amendment (Clause 107): Deletion of Clause 107.

New clause Sustainable development as statutory purpose for planning

8.1 The National Planning Policy Framework (NPPF) for England sets out the five principles of sustainable development, so that planning guidance is in line with Section 39 of the Planning and Compulsory Purchase Act 2004. However the guidance goes on to confuse the meaning of sustainable development by referring to a large part of the NPPF (paragraphs 18 – 219) of what it means in practice. A definition of sustainable development on the face of the Bill in contrast 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.

8.2 Wales has introduced a statutory definition of sustainable development for all public authorities (including local planning authorities) which is as follows: "In this Act, "sustainable development" means the process of improving the economic, social, environmental and cultural well-being of Wales by taking action, in accordance with the sustainable development principle (see section 5), aimed at achieving the well-being goals (see section 4)." The well-being goals are fairly detailed including "An innovative, productive and low carbon society which recognises the limits of the global environment and therefore uses resources efficiently and proportionately (including acting on climate change); and which develops a skilled and well-educated population in an economy which generates wealth and provides employment opportunities, allowing people to take advantage of the wealth generated through securing decent work". We are therefore of the view that a strong precedent is being set for including a definition of sustainable development which is derived from the original Rio principles as a purpose for planning.

8.3 A plan led system can only operate where it can refuse inappropriate development e.g. on a floodplain. Around 13% of new development took place on floodplains (21,000 homes and business premises) in the last ten years. A 2011 report by the Climate Change Committee found that 1.3 million homes were located in areas of high flood risk, equivalent to 4.5% of the total housing stock [11]. Annual flood damage costs in England are already in the region of £1.1 billion [12]. As climate change impacts increase in the UK these costs are very likely to go up.

We therefore propose a new clause to set out a definition of sustainable development in relation to a purpose for plan-making and decision-taking.

Suggested new clause: The Purpose of Planning

‘Sustainable development’ means development that meets the social, economic and environmental needs of the present without compromising the ability of future generations to meet their own needs. The five principles of sustainable development are:

(i) living within environmental limits;

(ii) ensuring a strong healthy and just society;

(iii) achieving a sustainable economy;

(iv) promoting good governance;

(v) using sound science responsibly.

Conclusion

9.1 It should be clear how the Secretary of State will be held to account, particularly if Judicial Review is deliberately made more costly. The Ministry of Justice is currently consulting on the raising of cost-caps in environmental judicial review cases [13], making it more prohibitively expensive for individuals or community groups to take legal action against decisions that threaten their local environment.

9.2 Legislation should not be undertaken lightly as these measures will have profound impacts on the planning system’s local democratic accountability and public participation opportunities.

November 2015

References

[1] An environmentally and socially just agenda for housing published by Friends of the Earth, 2014 (https://www.foe.co.uk/sites/default/files/downloads/environmental-socially-just-agenda-housing-48776.pdf)

[2] Ipsos MORI 2012: ‘Public over-estimate extent of past development, but welcome more’ https://www.ipsos-mori.com/researchpublications/researcharchive/2961/Public-overestimate-extent-of-past-development-but-welcome-more.aspx

[3] ‘Quarter of a million homes granted planning permission’, press release, Department for Communities and Local Government and Brandon Lewis MP https://www.gov.uk/government/news/quarter-of-a-million-homes-granted-planning-permission

[4] Live Tables on Housebuilding. Table 209: ‘Housebuilding: permanent dwellings completed, by tenure and country’. Department for Communities and Local Government. https://www.gov.uk/government/statistical-data-sets/live-tables-on-house-building

[5] Ipsos MORI October 2015: ‘Public knows little about the "devolution revolution" – but supports local decision-making

[6] Ipsos MORI 2011 poll on ‘Public attitudes towards housing benefit and planning reform’

[7] Conservative Party Manifesto 2015, p. 52. https://www.conservatives.com/manifesto

[8] Ibid. p. 51.

[9] Live tables on planning application statistics. ‘Table P120: district planning authorities – planning applications received, decided, granted, performance agreements and speed of decisions, England’. Department for Communities and Local Government. https://www.gov.uk/government/statistical-data-sets/live-tables-on-planning-application-statistics

[10] Live tables on planning application statistics. ‘Table P120: district planning authorities – planning applications received, decided, granted, performance agreements and speed of decisions, England’. Department for Communities and Local Government. https://www.gov.uk/government/statistical-data-sets/live-tables-on-planning-application-statistics

[11] Committee on Climate Change, ‘Adapting to climate change in the UK: Measuring progress’, Adaptation Sub-Committee Progress Report 2011, p. 31. https://www.theccc.org.uk/archive/aws2/ASC%202nd%20Report/ASC%20Adaptation%20Report%20Interactive_3b.pdf

[12] Parliamentary briefing paper SN/SC/5755: ‘Flood defence spending in England’, Oliver Bennett and Sarah Hartwell-Naguib, www.parliament.uk/briefing-papers/SN05755.pdf

[13] Ministry of Justice, Consultation Hub, ‘Costs protection in environmental claims’. https://consult.justice.gov.uk/digital-communications/costs-protection-in-environmental-claims

Prepared 24th November 2015