2012 Response to Growth & Infrastructure Bill (November)

Introduction

NORA has seventy member organisations, whose members are residents in England and Wales and total around two million. It was founded in 2003 with the prime aim of protecting and improving the environment in which they live. It provides a service to members, which discovers best practice when problems arise in their community, by seeking the experience and advice of all members. In the twelve years of its existence it has become recognised by several government departments as a helpful voice in assessing the view of residents to proposed legislation, a result of providing critical but constructive responses to government consultation papers and attending workshops organised by government departments.

So the opportunity to express its concerns about the Growth and Infrastructure Bill as it might affect residents is welcomed. Its aim is to be both critical and constructive where possible while pointing out foreseen and possible unintended consequences.

Summary

The underlying concern residents have about this Bill is the assumption that increasing permitted development rights will lead to growth. Government frequently expects proposals for change to be evidence-based, but this assumption lacks this assessment and appears to be based on an unproven hypothesis.

That the planning regime merits simplification is fully supported, but it should not be at the expense of community involvement in the process.

The government's emphasis on localism appears to be undermined by several of the proposals in this Bill. This is true for the proposals in several Clauses of this Bill, including Clauses 1, 5, 7, 10, 11, 12, 13, 17, 18 and 21, all of which appear to take away the power of decisions on planning matters from Local Planning Authorities and remove the opportunity for the community to express their opinions on proposed developments that directly affect their environment. This paper deals with each of these clauses in turn.

Observations

Clause 1

1.0 This proposes to remove the power of decision on planning applications from Local Planning Authorities (LPA) who, in the opinion of the Secretary of State, are poorly performing. This is totally in conflict with the concept of localism. To transfer the power of decision to the Planning Inspectorate takes the whole process away from the local community especially those affected by the planning applications whether they are applicants or not, the local councillors and the planning officers. Presumably the definition of a 'poorly performing' LPA would be detailed in a Statutory Instrument not open to criticism and likely to be altered at the whim of Secretary of State.

1.1 A serious consequence of this transfer of the power of decision to the Planning Inspectorate is the inevitable removal of the ability to appeal, since the Inspectorate cannot be both planner and arbiter. To direct appellants to seek Judicial Review as their only avenue of appeal would put an unacceptable financial burden on applicants as well as limiting the reasons for appeal.

1.2 If a planning application is not satisfactorily determined within certain limits of time, currently applicants can go to appeal to the Planning Inspectorate anyway. Although the determination is not made locally, the decision to seek distant decision is taken locally and not centrally, and the community can still present its concerns if it has any.

1.3 If there is criticism of the quality of decisions by the LPA, surely it would be preferable to offer guidance and direction to the particular department and the council, so that it can remedy its defects rather than take away its powers.

Clause 5

2.0 The value of the proposal to enable agreed Section 106 agreements with quotas of 'affordable housing' to be changed should the scheme be non-viable depends on the criteria for non-viability. There is no definition of non-viability. It obviously depends on the profit margin expected by the developer. Who decides what is an appropriate profit margin?

2.1 A developer with a large skilled work-force and keen to preserve it for when the depression lifts might decide that a 1% profit margin would suffice and be able to meet the promised proportion of 'affordable dwellings' agreed in a Section 106 agreement. On the other hand a developer inte' on a 20% profit margin and little regard for his work-force could claim non-viability of a development, and seek review of the percentage of 'affordable dwellings.

2.2 What evidence is there that reducing the agreed percentage of 'affordable dwellings' in a housing development will lead to a substantial rise in the number of dwellings built and the revival of the fortunes of the construction industry?

2.3 Evidence published in the media claims that developers are reluctant to engage in large housing developments because of the lack of buyers. Whether the price of dwellings, the lack of mortgages, the fear of unemployment are significant reasons for the lack of buyers is a matter of debate, since statistical surveys of the community on the subject are lacking.

2.4 This proposal would inevitably lead to even fewer 'affordable dwellings' being built. Since this end of the housing market presents the greatest problem for the community, it surely is undesirable without evidence-based data to justify this proposal especially without realistic and practical proposals to replace the deficit.

2.5 There is no sunset date for this proposal, whereas initially this review of Section 106 agreements was only to be allowed for those made before 2010 and only to last for three years. As stated it has no time limits.

Clause 7

3.0 No evidence has been produced to show that, allowing 'electronic communications' to become Permitted Development and so not requiring planning consent or scrutiny by the community, will produce growth in our economy. It is all assumption.

3.1 If this proposal is for the expansion of broadband facilities, particularly to increase the speed of transfer of data, the only apparent growth in the economy would be in the industry that provides the facilities. Fast broadband speeds are used mostly by the entertainment industry to transfer video and CDs. There is no evidence to support the opinion that the transfer of data by commerce is hindered by the current broadband speeds and that increasing broadband speeds will increase growth in the economy.

3.2 To allow uncontrolled development of mobile phone masts, cabling and associated cabins of equipment threatens the environment. Communities have struggled for many decades to protect their environment both in urban and rural areas worthy of protection, and this proposal could undo the good work that has been undertaken by so many people.

3.3 A sunset of April 2018 allows many years of development. In that time much of the beauty of our countryside could be damaged and by introducing equipment in the urban environment without any control could lead to hazards to pedestrians and vehicles by causing obstruction and interfering with the free and easy passage on highways.

Clause 10

4.0 Clause 9 permits the application for a 'Stopping Up' order parallel with the relevant planning application, and is a sensible saving of time. Clause 10 permits the application and the granting of a 'Stopping Up' order prior to a planning application. Should the planning application fail, the 'Stopping Up' order is unnecessary, but if it had been granted, the community would be deprived of its use. Surely Clause 9 is sufficient to shorten the relevant planning regime, and Clause 10 is unnecessary.

Clauses 11, 12 & 13

5.0 These clauses appear to grant rights to landowners designed to reduce the ability of the community to protect its rights over common land. Current legislation permits open argument over the rights to use common land, and we fear that these clauses will hazard the use by the community of green open space in their environment.

5.1 Where there is the risk of damage, the laws of trespass are surely adequate to protect the rights of landowners.

5.2 The need to allow landowners to apply for development rights is accepted, but these clauses appear to grant stronger powers to allow development of common land without adequate opportunity for the community to express its views.

Clauses 17 & 18

6.0 We fear that these clauses over-ride the ability of LPAs and the local community to express their views over electricity developments such as over-head power lines, which can have a seriously damaging effect on the environment both urban and rural. Once installed these developments are likely to be permanent, so the local community must retain the right to express their views.

Clause 21

7.0 The widening of the definition of nationally important business and commercial developments so that the local community loses its ability to express its views is another alarming conflict with the concept of localism. It gives apparently arbitrary powers to the Secretary of State to take away from the local community - the people, local councillors and LPAs - the power of local decision on more developments. The number of such developments may be small but each one may give rise to dismay in the particular local community.

November 2012                                                Alan B Shrank - NORA chairman