Localism Bill – Second Reading

Yesterday’s Second Reading debate in the Commons was profoundly unenlightening, although I suppose one should not be surprised.

One of the best contributions to the debate was from Nick Raynsford, who pointed out that the drafting of the Bill, with its countless clauses and schedules, is very unhelpful to the government’s hope of winning support for it. The Bill’s drafting, he said, is overwhelmingly by way of amendment to other legislation, and with the absence of detailed provision in many of its clauses, which, we are told, will be supplemented by regulations, so that it makes it difficult to have a full feel for what exactly the Government intends. One can understand their aspirations, but what will be the detailed implications? That is far from clear, and inevitably lots of suspicions abound that, while their intentions may be good, the outcomes will not be.

Whether we are talking about how neighbourhood plans will be shaped, he continued, or how the new insecure tenancies that the Government are imposing on social housing will operate, we do not know the full implications because no provisions have been published, so of course we do not know what the details will be. That suggests a Bill put together in a hurry, without adequate consultation or proper consideration of some of its provisions. If ever a measure cried out for pre-legislative scrutiny, this is it, he said. It is a tragedy that it is being rushed through without proper consideration of its detailed implications and of how the Government's localist intentions will work in practice.

The lack of certainty over the Government's plans and over the effect of the Bill is obvious throughout, Raynsford said. On the theme of localism itself, the Government have put an emphasis on neighbourhoods. That might imply a commitment to neighbourhood decision making, or to devolution to a local authority or, in London, to the Mayor, but what happens if those bodies come into conflict? What happens if the Mayor pursues an objective with which the borough council or the local neighbourhood does not agree? There is the added problem that in areas without parish councils the neighbourhood forum that may come into existence under the Bill will not have a recognised form of democratic accountability. Who will prevail when there is a conflict between the various bodies?

Raynsford said that some provisions in the Bill are slightly bonkers, but others are seriously damaging. The housing and planning provisions will destabilise the planning and housing process at a time when, above all, we need confidence and certainty to get the new homes that we need. The housing market was badly hit by the recession and recovered strongly in early 2010, but the Government's maladroit and unlawful interference in the planning system has undermined that confidence. The market is now tottering along on the bottom, there is no confidence, and millions of people know that the prospects of getting a decent home at a price within their means are terribly short. The Bill's ill-considered and untested changes to the planning regime will make an already bad situation worse.

As one Labour member put it later in the debate, it seems almost an exaggeration to call the Localism Bill a Bill. It is really 400 pages of the Secretary of State's incoherent streams of consciousness, largely unconnected and all focused on different parts of local government legislation. In so much as it is a Bill, it is a sham.

A number of members understandably expressed concerns about the effect the Bill will have on house building. Even a Conservative member, Peter Aldous (Waveney), expressed some misgivings about the Bill. For neighbourhood planning to be successful, he said, there is a need for capacity building in neighbourhoods and for communities to have access to advice, training and funding. With that in mind, the ending of Planning Aid this March appears short-sighted, he observed, and asked if consideration could be given either to reviewing that decision or to putting new arrangements in place. He also felt that it is important to ensure that all communities are able to participate, not just a few, so he called for further information on how neighbourhood planning will be promoted in those deprived areas where it is needed most.

In summing up the debate for the opposition, Barbara Keeley pointed out that although the Bill aims to allow communities a say on developments in their area through the planning system, those measures are particularly poorly thought through. She drew attention to the views of the RTPI, which has observed that work is needed on the Bill "to remove those barriers in its drafting that deaden its effectiveness and hinder the ability of Government to achieve its own objectives" and that "the lack of a coherent strategic planning system combined with the complexity of the neighbourhood planning system" that the Bill proposes will "hinder...economic recovery...addressing climate change and enhancing the environment".

It comes as no surprise, of course, that the Bill received a Second Reading by 332 votes to 228.

As previously predicted, the Committee Stage of the Bill will be dealt with in a Public Bill Committee. A timetable (‘guillotine’) motion was passed which requires the Committee Stage to be terminated on Thursday 10 March. Any clauses not reached by that time simply won’t get discussed.

[Update (21 Jan): The Commons Committee Stage will start on Tuedsay 25 January.]

© MARTIN H GOODALL

Localism Bill – Enforcement provisions (5)

Clause 106 will introduce no fewer than 10 new sections into the 1990 Act (sections 225A to 225J), thus adding substantially to the primary legislation relating to the control of advertisements. These provisions are designed to give LPAs greater powers to remedy breaches of advertisement control and also to deal with the ‘defacement’ of premises (i.e. to remove graffiti).

UNAUTHORISED ADVERTISEMENTS

Section 225A will give LPAs in England power to remove structures (such as hoardings) which “in their opinion” are being used for unauthorised advertisement displays. But why in their opinion? This must surely be a matter of fact, not opinion; either the structure is being used for the display of advertisements in contravention of the Control of Advertisements Regulations or it is not. The LPA must first serve a “removal notice” (the terms of which are specified in Section 225A). The LPA will be able to recover the expenses of removal but there will be a right of compensation where in the exercise of these powers any damage is caused to land or chattels, other than damage caused to the display structure itself; or damage reasonably caused in removing the display structure.

Section 225B will give powers to LPAs who “have reason to believe” that there is a persistent problem with the display of unauthorised advertisements to serve an ‘action notice’ requiring the owner or occupier of the land to carry out reasonable measures specified in the notice to prevent or reduce the frequency of the display of unauthorised advertisements by a date (not less than 28 days) specified in the notice. There is more detail in the section which I do not propose to recite here, including a right to compensation similar to that in section 225A. Section 225C creates a right of appeal to a magistrates court against a notice under section 225B on one or more of four specified grounds.

Section 225D will apply section 225B to statutory undertakers’ operational land, but in this case the statutory undertaker may, within 28 days, serve a counter-notice on the LPA specifying alternative measures which will in the statutory undertaker’s reasonable opinion have the effect of preventing or reducing the frequency of the display of unauthorised advertisements to at least the same extent as the measures specified in the notice, and those alternative measures will then take effect in place of the measures in the LPA’s action notice.

There are further provisions in section 225J dealing with action under sections 225A, 225B and 225E which relates to the operational land of statutory undertakers.

DEFACEMENT OF PREMISES

Section 225E will introduce some slightly complex provisions, designed to remedy the ‘defacement’ of premises. This power will relate to any sign readily visible from a place to which the public have access (with certain exceptions in the case of operational land of a statutory undertaker) where the LPA consider the sign to be detrimental to the amenity of the area or offensive. This does not relate to adverts but is aimed at graffiti. The LPA may serve on the occupier of the premises a notice requiring the occupier to remove or obliterate the sign by a time specified in the notice. The LPA will have default powers to remove the sign and recover their expenses (except in certain specified circumstances). This power will be subject to a right of appeal under section 225H. Section 225F will make provision for the extension of these powers to post boxes, subject to certain conditions. Similarly, section 225G will extend these powers to bus shelters and other street furniture, again subject to certain conditions.

Under section 225H there will be a right to appeal to a magistrates' court against a notice served under section 225E on one or more of four specified grounds.

Finally, section 225I will provide for the removal of graffiti by the LPA at the owner or occupier’s request, but subject to their repaying the LPA’s expenses of doing so.

© MARTIN H GOODALL

Getting in touch

As I have pointed out a couple of times before, the way the Comments system works on ‘Blogger’ does not enable me to see the e-mail address of anyone posting a comment. Consequently, I am unable to respond to a request to get in touch with someone who attempts to contact me by using the comments facility.

Can I please remind readers wishing to instruct me professionally or who want to correspond with me on any of the topics raised in the blog that the only way of doing so is by sending an e-mail to my own e-mail address. This is shown at various places on this website, but in case you can’t find it easily, it is:

martin.goodall@keystonelaw.co.uk

I have not yet succeeded in making internal links work on this site, so you will have to copy and paste this e-mail address into your contacts list or into the address line of an e-mail.

In case you were unaware of how to do so when you can’t use the usual copy and paste icons, you can use the keyboard to copy [CTRL + C] and also to paste [CTRL + V]. This works in e-mails and on websites, and is very useful when you can’t use the mouse to perform these functions.

© MARTIN H GOODALL

Localism Bill – Enforcement provisions (4)

TIME LIMITS AND PENALTIES

Clause 105 will make certain changes to the time limits within which local planning authorities can start prosecutions for offences under the Planning Acts and in the penalties which the courts can impose upon conviction.

It will amend section 187A(12) of the 1990 Act so that the maximum penalty for failure to comply with a Breach of Condition Notice will be raised from Level 3 to Level 4 on the standard scale (i.e. from £1,000 to £2,500) (except in Wales, where the previous maximum will continue to apply).

It will also amend section 210 of the 1990 Act (except in Wales) so that proceedings for unauthorised works to a protected tree which fall short of destroying it or being likely to destroy it may be brought within the period of 6 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings came to the prosecutor’s knowledge, subject to the proviso that proceedings cannot be commenced more than 3 years after the date on which the offence was committed. This seems to set a very dangerous precedent. The offence is actually committed when the unauthorised works to the tree are carried out, and the time limit within which proceedings can be instituted should not depend on the date when the prosecutor (in its own opinion) has gained sufficient evidence to justify the proceedings.

As elsewhere in the Bill, the position is compounded by a provision that, for this purpose, a certificate signed by or on behalf of the prosecutor, stating the date on which evidence sufficient in the prosecutor’s opinion to justify the proceedings came to the prosecutor’s knowledge will be conclusive evidence of that fact. Furthermore, a certificate stating that matter and purporting to be so signed is to be deemed to be so signed unless the contrary is proved. So even if it is only signed by the tea lady, the certificate must be accepted at face value unless the defendant is in a position to prove that it was not duly signed. I think this is monstrous.

Section 224 of the 1990 Act, which deals with the enforcement of advertisement control, will be similarly amended so that 6-month period within which proceedings for an offence of displaying an advertisement in contravention of the Control of Advertisements Regulations may be brought will start from the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings came to the prosecutor’s knowledge. This, again, is subject to the 3-year long-stop date, and the conclusiveness of the prosecutor’s certificate (even if it is in fact signed by the tea lady). I can see no excuse for such an illiberal change.

The changes made by Clause 105 will only apply to offences committed after the amendments made by the clause have come into force.

© MARTIN H GOODALL

Lighting the bonfires

Having made a ‘bonfire of the quangos’ (the results of which range from disastrous to merely very damaging), the coalition government is now proposing to tear up a substantial body of ministerial planning policy advice, as set out in a variety of Circulars, Planning Policy Guidance Notes and Planning Policy Statements.

It is very easy to make a headline by pointing out that this material extends to thousands of pages, but it entirely misses the point that most of this guidance is extremely helpful to users of the planning system and quite often essential. We need to know what approach we can expect decision-makers to take when determining planning applications and other matters under planning legislation, and this body of policy advice is therefore a valuable resource for everyone using the planning system.

The fact that this published ministerial advice is voluminous is entirely beside the point; it merely reflects the complexity of the planning system. It is, of course, desirable that the planning system should be simplified (whereas previous efforts at ‘reform’ have only succeeded in adding to its complexity), but scrapping the essential operational guidance provided by Circulars, PPGs and PPSs will not help in that process.

Three examples immediately spring to mind – Circulars 11/95, 10/97 and 03/2009. The first of these gives comprehensive and detailed guidance on the use of conditions attached to planning permissions. Unfortunately, some local planning authorities seem to be largely ignorant of the circular’s provisions, but it is robustly applied by planning inspectors in appeals and provides a valuable check on the imposition of unreasonable or unenforceable conditions.

Essential guidance on enforcement procedures is given by Circular 10/97, together with the accompanying Good Practice Guide and PPG18. This also covers related matters such as Lawful Development Certificates, and the advice in Annex 8 to Circular 10/97 is particularly helpful on this topic. The absence of equivalent guidance in Wales is a nuisance, and I can recall one Inspector taking a pragmatic decision to treat the ‘principles’ explained in 10/97 as a material consideration in Wales even though the circular does not apply there. The appeal in question would otherwise have had to be decided in a policy void.

Finally, Circular 03/2009 deals comprehensively with costs in planning appeals. It would be a lot simpler if we were to follow the practice in the courts where costs, although they are at the discretion of the court, are in practice awarded to the winning party unless there are exceptional reasons for not doing so. However, while it remains the rule in planning appeals that costs will be awarded only in respect of unreasonable conduct by the paying party, there needs to be detailed guidance on the criteria to be applied in determining costs applications, and how and when these should be made.

These are just three examples out of a great many. Most of the PPGs and PPSs have been of real value in setting down guidelines on the topics which they cover. If they are scrapped, this will leave considerable uncertainty in their absence, with a significant increase in appeals and litigation. Parties may well be forced to resort to judicial review in order to resolve such uncertainties.

The coalition government’s policies, not only in relation to town and country planning but also with regard to education, health and other areas, have been described as a ‘Maoist revolution’. We should remember that it took a generation for China to recover from the chaos caused by Chairman Mao’s ‘Great Leap Forward’ and from his equally disastrous 'Cultural Revolution'. One can only hope that the coalition government is persuaded that this is not the way to go, before similar chaos engulfs this country’s planning system.

© MARTIN H GOODALL

HS2 – London to Birmingham route

Planning lawyers (and especially members of the planning bar) are licking their lips at the thought of all the litigation and other legal procedures that are going to arise from the proposed London - Birmingham high speed rail route.

Attention is currently focused on the precise details of the preferred route, and the slight adjustments which the government has made to that route, and it is no surprise that much heat is being generated over this. Although I now live a long way from the affected area, I am familiar with its geography, having once worked in that part of the world.

It occurred to me some time ago that a high speed route could be based on the existing Paddington to Birmingham main line, which follows an almost straight line (with very little curvature) as far as Seer Green, before beginning to twist and curve its way up through the Chilterns, snaking through High Wycombe and on up to the Risborough Gap. On reaching Princes Risborough, the line resumes an almost straight course across the Vale of Aylesbury in the direction of Birmingham, and if you join up the two points on the map where the line deviates from its direct course near Seer Green and at Risborough, so as to form a straight line, this would produce an almost straight route all the way from London to North Oxfordshire, with comparatively modest curvature between there and Birmingham.

This would, of course, involve driving a tunnel through the chalk under the Chilterns similar to the Channel Tunnel and about half its length - roughly 18 kilometres - and this might well make ‘the tunnel route’ (as it might be called) impossibly expensive. Both ends of the tunnel would in fact be at the same height above sea level, so the tunnel would not only be straight but also entirely level throughout its length, and bearing in mind that some 8km of tunnelling is already proposed on the preferred route, the cost of a further 10km might not be so much more expensive than all the hassle and compulsory purchase procedures involved in forcing through the currently intended route.

The existing line would have to be widened between South Ruislip and Seer Green to accommodate commuter trains using existing tracks alongside the new line, but the stations on this line were so designed as to enable the fast lines to pass through the middle of the station while commuter trains serve the platforms on the outside. So it is all perfectly feasible in engineering terms, and it would only be issues of cost and any possible geological objections to boring a deep tunnel through the chalk under the Chilterns that would appear to militate against this ‘tunnel route’. Someone must surely have suggested it already, but I have not found any reference to it.

This may be slightly off-topic in a planning law commentary, but it was the prospect of all those legal fees that set off this particular train of thought, and so it is perhaps relevant from that point of view. In practice, I don’t suppose anybody will take this suggestion seriously, and so we need not lose any sleep over the possible loss of legal fees that might follow from the adoption of a less controversial route.

© MARTIN H GOODALL

[Update: The preferred route does follow the line suggested above as far as West Ruislip, but then turns gradually away from the existing railway line to take a more northerly route past the Chalfonts and on towards Amersham. Route 2.5 would have continued on or close to the line of the existing railway through Gerrards Cross, Beaconsfield and Seer Green, but would then have continued across country towards Hazlemere. It is at Seer Green that the ‘tunnel route’ (suggested in the post above) would enter an 18km tunnel, emerging beyond Princes Risborough on the line of the existing London to Birmingham railway line. The preferred route passes close to Wendover and Aylesbury, whereas route 2.5 would have regained the original London to Birmingham rail route near Haddenham. Thus the ‘tunnel route’ suggested in the post above is in effect a variant on Route 2.5, taking a straight and level line by tunnel between Seer Green and Princes Risborough, but otherwise following the existing rail route more closely. Admittedly, the new line would not fit within the existing station layouts in quite the way I had suggested, but it still makes sense to follow the established transport corridor so far as possible.]

Grotton Revisited

Among the gifts which Father Christmas brought down my chimney was a copy of “Grotton Revisited” by Steve Ankers, David Kaiserman and Chris Shepley (published by Routledge in association with the RTPI - ISBN 978-0-415-54647-8 @ £19.99). If I had ordered it myself, I could have got £2.50 off as an RTPI member, but no doubt the distressed authors could do with the royalties.

I missed getting a copy of the original “Grotton Papers” back in 1979. I had only just begun to specialise in planning law at that time, and it might have been educational. On the other hand, it could have put me off the idea altogether!

My reaction to the new volume is very much the same as that of other reviewers – it is both very funny, and yet rather depressing, because the authors’ satirical barbs are so well aimed, and the nonsense of the planning system is so well observed.

I particularly liked one of the stories found in the Souvenir Conference Edition of the Grotton Advertiser (on page 132) entitled ‘Boy Tory’s Planning Story’. This piece relates how a 13-year old schoolboy from Grotton came to write the Conservative Party’s planning policies. They had originated as a school project, but the boy’s headmaster had been so impressed with this essay, that he had forwarded it to Conservative Central Office, where it was eagerly adopted as party policy and published as the party’s pre-election Green Paper (“Open Source Planning”). That just about sums up the intellectual weight of the Tory proposals. But what has wiped the smile off my face is that the coalition government is actually attempting to put these half-baked ideas into practice!

Throughout the book I felt stabs of recognition. In fact, the satire could have been even more savage without in any way being exaggerated. For example, another passage which is wickedly accurate is a civil servant’s summary of the process involved in producing a Local Development Scheme (see page 41).

Anyone who has any involvement or interest in town and country planning should get hold of a copy of this book. But I suggest you open it only on days when you are feeling reasonably optimistic and upbeat – if you dip into it after a bad day at the office, it may persuade you that it’s time to give up and go and find something less stressful and frustrating to do between the hours of 9 and 5 (not to mention all the other hours that planning professionals have to work nowadays in an effort to keep on top of the ever more demanding workload).

Happy New Year!

© MARTIN H GOODALL