Sunday, 23 October 2011

Localism Bill - Lords Report Stage completed

The House of Lords completed the report stage of the Localism Bill on 17 October.

Disappointingly, there has been no further amendment of the clause relating to allegedly ‘concealed’ development, but the Law Society did at least secure a partial amendment of the offending clause at the committee stage, which will make its effect slightly less draconian than the original draft. These provisions are now set out in Clauses 124 to 126. I will take a look at these provisions in more detail in a separate post later.

The government tabled amendments to what was then Clause 111 (now Clause 123), dealing with applications for retrospective planning permission, so as to make it clear that a retrospective planning application would only be precluded where there is a pre-existing enforcement notice in place. For the purposes of the operation of this section, a "pre-existing enforcement notice" is defined as an enforcement notice issued before the retrospective application is received by the local planning authority. This amendment is designed to meet a point which had been raised in committee by Lord Avebury, who thought that the drafting of what is now Clause 123 was ambiguous, so that it might be possible for a local planning authority to negate the purpose of this clause by both declining to determine a retrospective planning application and arguing that an enforcement appeal on Gound (a) was also inadmissible. These amendments, according to ministers, should solve the problem. The government’s policy is that those people seeking planning permission after the event should have one, but only one, bite at the cherry.

The government has also attempted to a limited extent to allay fears as to the effect of what was then Clause 130 (now Clause 142), which provides for ‘local financial considerations’ (i.e. the New Homes Bonus) to be taken into account as a material consideration in the determination of planning applications in accordance with section 70(2) of the 1990 Act. The amendment makes it clear that this clause in the Bill does not alter whether regard is to be had to any particular consideration, or the weight to be given to any consideration under that subsection. Members of the House nevertheless expressed misgivings about the continued presence of this clause in the Bill, and its actual and intended effect on the development control process.

The government has also moved to meet criticisms of the clause relating to unauthorised display of advertisements by adding to the Bill a right of appeal to the Magistrates’ Court where a removal notice has been served in accordance with section 225A(3) or (5)(b) of the 1990 Act (as amended) – in what is now Clause 127.

There was a also a discussion on opposition amendments relating to appeals, which were not in fact pressed to a vote. This revealed that the government is still thinking in terms of limiting the right of appeal at some stage in the future. On behalf of the government, Lord Shutt said “The purpose of our planning reforms is to put the local plan at the heart of the system. In fact, the draft national planning policy framework explicitly says so. It is the plan where councils and communities weigh up and integrate different goals and long-term needs so that it sets the framework within which individual planning applications are assessed and decisions taken. We want planning decisions to be taken by local communities, not more appeals undertaken by unelected inspectors in Bristol.”

He added “We are committed to a system of fewer appeals and want development proposals to be determined locally. However, in the few cases where appeals are made, the Secretary of State, as decision-maker, must be entitled to take other material considerations into account, as can councils, on finely balanced matters of judgment-for example, where a local policy is out of date because it does not reflect the changing circumstances of the local area or more recent national policy. In such instances the law allows councils to consider other material considerations in making the right decisions for their communities. ........We shall take the measures that I outlined earlier so that councils and communities feel confident, if challenged at appeal, in defending planning decisions made in accordance with an up-to-date plan and where there is no conflict with national policy.”

I don’t like the sound of that, and we shall have to be vigilant to avoid any future attempt to abrogate or limit the right of appeal or the basis on which appeals will be considered and determined.


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