The amendments to the Bill are largely to make it amend the Town and Country Planning Act 1990 and other existing legislation.
Theresa Villiers MP has put down 19 amendments to the Levelling Up and Regeneration Bill due to commence its Report Stage on Monday 28 November. She is supported by large numbers of Conservative MPs such as Sir Iain Duncan Smith, Sir Roger Gale, Nadine Dorries, Bob Blackman, Tim Loughton and Bob Stewart. Most of the amendments have over 20 supporters.
Time and space does not permit comment on all the amendments but I do wonder if she and her supporters understand the planning system and what it is meant to achieve. Amending the law, like amending a legal document, without understanding what the law is at present is a hazardous occupation. Sometimes the changes are easily circumvented because of this. Let’s look at some of the amendments. They can be found here (https://publications.parliament.uk/pa/bills/cbill/58-03/0169/amend/levelling_up_rep_rm_1128.pdf ).
One of the Villiers amendments (NC25) attempts to introduce a character test into the consideration of planning applications. Section 70 of the TCPA would be amended so that “the applicant’s character as a developer, including their previous compliance with planning rules and conditions, their record of engagement with planning authorities and delivery of developments, and accounting for whether they have made multiple, repetitive applications” could be taken into account in deciding whether to grant permission. Ms Villiers and her 32 supporters have not realised that planning permissions run with the land, and that planning applications can be made by anybody. So an applicant landowner who would pass their new test and obtains a planning permission can sell the land with the benefit of the permission to a completely different developer who would not have passed it. Also, it is not unusual to establish a single purpose company to carry out just one development. Such a company would, at the time of application have a clean record, but might turn out to have a cavalier attitude to compliance. Equally a new entrant into the development industry would have no record. Or is that to count against them when they are unable to show a record of compliance, engagement and delivery? Where does this amendment get Ms Villiers and her supporters?
At a more fundamental level another amendment, “Requirements of the National Planning Policy Framework” (NC24), would restrict what the NPPF can do and also require it to do certain things. However, at least one of the new required things is already secured in law (the right to object to planning applications) and could not be secured by a policy document anyway. Most importantly, this amendment would impose a legal requirement that the NPPF must not include a presumption in favour of sustainable development.
Regardless of what one thinks of the presumption in favour of sustainable development, to constrain policy in this way misunderstands the purpose of policy. Policy rather than a law is chosen to do something because policy is flexible, whereas law cannot be changed easily to meet changing circumstances. Policy need not always be followed, provided the minister understands they are diverging from it and gives reasons. And here we reach another misunderstanding on the part of Ms Villiers and her supporters. Firstly, the Secretary of State for Levelling Up, Housing and Communities and his civil servant advisers could express the presumption in favour of sustainable development in a different document and so sidestep this Villiers amendment. Secondly there is no statutory duty to follow the NPPF anyway. The Secretary of State’s policy only carries authority because it is their policy. If this ever needed to be made plain, that was done in Hopkins Homes v. Secretary of State, [2017] 1 WLR 1865, ([2017] UKSC 37) where Lord Carnwath, a planning lawyer of great experience and renown, giving the judgment if the Supreme Court, said:
“19 The court heard some discussion about the source of the Secretary of State’s power to issue national policy guidance of this kind. … it was suggested that his powers derived, expressly or by implication, from the planning Acts which give him overall responsibility for oversight of the planning system (see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 , paras 140-143 per Lord Clyde). This is reflected both in specific requirements (such as in section 19(2) of the 2004 Act relating to plan-preparation) and more generally in his power to intervene in many aspects of the planning process, including (by way of call-in) the determination of appeals.
20 In my view this is clearly correct.”
There is a very serious question on whether or not to remove the presumption in favour of sustainable development. It turns really on whether the aim of the planning system is to provide a framework to prevent development or in which to permit development. Do we want sufficient homes at affordable prices or not?
As we look at that, I want to consider two other Villiers amendments. One would create a community right of appeal against a decision to grant planning permission (NC27). This idea surfaces about once every ten years, last seen in the Conservative Green Paper “Open Source Planning” of 2010 in the run up to the election that year and subsequently abandoned. I wrote about it at the time in the Journal of Planning Law [2011] JPL pages 5-9 concluding that:
“ …the call for a third party right of appeal is simply conceptually wrong. The planning system involves third parties very fully, from the preparation of the plan, to the application process and any planning appeal. There is not even a requirement for standing. It is important to remember that the applicant’s right of appeal to the Secretary of State is a safeguard against an unjustified refusal. It is normal to give rights of appeal whenever one applies to a government body for any form of licence, permit or funding. We see this in fields as diverse as environmental permitting and claims for social security payments.
Open Source Planning and the August 20 article say that creation of a third party right of appeal will give “symmetry”. The Government may want to reflect on this claim in the light of the fact that development rights were nationalised without compensation. That is asymmetrical. The grant of permission is what restores the symmetry.”
The main result of a third party or community right of appeal would simply be to delay development.
So, is the planning system a framework to prevent or to permit development? History tells us that it was created to encourage development to happen, such as housing, commerce and industry. We also learn from history that the presumption in favour of development has been in the planning system since 1923 and was restated in 1949 after the creation of the current system, and subsequently. The Conservative government of 2011 was not wrong to describe it as a golden thread running through the planning system.
The other amendment to which I want to draw attention is headed “Prohibition of mandatory targets and abolition of five-year land supply rule” (NC21). It would make these targets advisory, not mandatory (which is the position already as the NPPF does not have the force of law, so it and the targets can only be advisory). But the amendment goes on to state that “Accordingly, such targets should not be taken into account in determining planning applications” and that “the NPPF must not impose an obligation on local planning authorities to ensure that sufficient housing development sites are available over five years or any other given period” (my underlining).
From all this it looks very obvious that Theresa Villiers, her supporters and the 55 MPs who have put their name to this amendment do not want to see sufficient housing developed and that they do see the planning system as a mechanism to prevent development from happening.
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