PLANNING: RETROSPECTIVE APPLICATIONS (Hansard, 8 December 2003)

HC Deb 08 December 2003 vol 415 cc875-83 875

§ '.In section 73A (planning permission for development already carried out) of the principal Act after subsection (2) there is inserted—

§ (2A) An application for planning permission made to a local planning authority under subsection (1) shall be assigned as a retrospective application.

§ (2B) In considering a retrospective application the local planning authority shall—

(a) consider the application as if work on it had not begun;
(b) have no regard to any financial loss involved to the developers or others should the application not be approved.

§ (2C) If planning permission is not granted the local planning authority may require that the site be restored so far as practicable to the state that it was in before development commenced.

§ (2D) In determining any appeal from a refusal to grant planning permission in respect of a retrospective application, the Secretary of State shall be bound by subsections (2A) and (2B) above.".'.—[Mr. Andrew Turner.]

§ Brought up, and read the First time.

9.30 pm

§ Mr. Andrew Turner
I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker
With this it will be convenient to discuss the following amendments:
No. 33, in page 27, line 42 [Clause 43], at end insert—
(c) The applicant shall have a right of appeal to an Independent Inspector appointed by the Secretary of State when an application is not determined under (a) or (b) above.'.
No. 81, in page 36, line 14 [Clause 47], after 'years', insert
'beginning on the later of—

(i) the date on which the permission is granted, and

(ii) the date on which the last of all associated consents, permissions or clearances in relation to the development has been granted or given by any 876 government or statutory body where application for such consent, permission or clearance was made as soon as reasonably practicable.'.

No. 82, in page 37, line 13 [Clause 47], after 'three years', insert
'beginning on the later of—

(i) the date on which the consent is granted, and

(ii) the date on which the last of all associated consents, permissions or clearances in relation to the works to which the listed building consent relates has been granted or given by any government or statutory body where application for such consent, permission or clearance was made as soon as reasonably practicable.'.

§ Mr. Turner
Since I tabled the new clause—indeed, in the past two or three minutes—information has come to light from the Minister about the work that she is doing in the enforcement review. I am pleased to hear that. In a letter that I received on Friday, the Minister wrote that she was looking to make an announcement about the outcome of the enforcement review in the new year. I am grateful for that.
I tabled the new clause because many would agree that a retrospective application appears to be an easy way of obtaining planning permission, and it is a way that people greatly resent.

§ Mr. Hayes
My hon. Friend is right, but the situation is worsened by the fact that local authorities are not always confident about enforcement. When they do press to enforce, they do not feel that they have the necessary backing or that the law is sufficiently behind them. That has led to a culture in which they are reticent about enforcement. It is partly a question of time and resources, but it is also about that culture and that lack of confidence.

§ Mr. Turner
I agree with my hon. Friend, and it is a matter that disturbs residents enormously, even when they see something small. One example from my personal history was when someone built a shark in the roof of their house, something that was greatly resented by my neighbours in my street, which happened to be the street in which the house with the shark was located. It took something like three years for the proper enforcement action to be taken, for a planning application to be procured and so on. I believe that the shark remains in the roof because Ministers eventually upheld the appeal against enforcement action.

§ Richard Younger-Ross (Teignbridge)
I rather liked the shark. I hate to disappoint the hon. Gentleman, but I thought it was quite witty. However, I agree with the hon. Member for South Holland and The Deepings (Mr. Hayes). In my constituency—100 yards from where I live—a retrospective application was made to raise a roof 600 mm higher than was in the original application. I persuaded the local authority to turn it down and to make the applicant appeal. They did, and guess what? The Minister supported the eyesore, which was then constructed. It is difficult for politicians to tell an authority to do something, because Ministers and the Government might not support it.

§ Mr. Turner
I am sure that the hon. Gentleman had as much egg on his face as he usually appears to have on his 877 tie as a result of being overruled by the Minister. I sympathise. When one has gone to some considerable lengths to persuade a local authority to behave in a particular way, one easily can be undermined. I tabled the new clause because, on 23 October, in Committee, the Minister said that she had hoped to respond to the enforcement review before the end of the year.
If the review has slipped for the good reasons that she mentioned earlier—to give officials the opportunity to consider retrospection and to ensure that the review can feed into the Bill—I forgive her absolutely for not meeting that self-imposed deadline. However, it is of considerable concern to residents that applications made retrospectively should not be seen as an easy way of getting planning permission.
I gave some examples in Committee. I shall not go through those again; I am sure that those hon. Members who have read the Hansard report of the Committee proceedings will have seen those examples, and others may not be interested in them.

§ Mr. Hayes
rose

§ Mr. Turner
I see that my hon. Friend is seeking to intervene.

§ Mr. Hayes
I just did not want my hon. Friend to feel that he should not regale the House with examples. It is important that he emphasise his point with specifics. I could certainly give many examples from my constituency. We need to bring the issue into sharp focus.

§ Mr. Turner
Let me give the example in Yarmouth. I referred in a previous debate to the River Yar: that was, of course, the East Yar. Yarmouth is at the mouth of the West Yar. There are only three main rivers in my constituency, and two of them are called Yar.
The example in Yarmouth was of a house being built on a site that had planning permission—indeed, it was supposedly being built on the footprint of an earlier bungalow. Because the applicants furnished the committee with somewhat misleading drawings, it believed that the house was going to be of a certain height and that the ridge height would be the same as that of the adjoining houses. Eventually it was discovered that the ridge height was greater than that of the adjoining houses, and notwithstanding the fact that the height was much more generous than the committee would have liked to pass, the applicant went on to build something considerably higher than that. I hope that my local authority will take enforcement action in the same way as the hon. Member for Teignbridge (Richard Younger-Ross) has suggested to his local authority. I certainly hope that I will not end up with a yellow face or a yellow tie.

§ Richard Younger-Ross
My tie is blue.

§ Mr. Turner
I know that the hon. Gentleman's tie is blue today, and I congratulate him on his taste—today.
The need is for certainty in the planning system, and I believe that proper implementation of the decisions of the enforcement review will add to certainty. I commend the new clause to the House.

§ Sir Sydney Chapman
I support my hon. Friend on new clause 8. When he talked about the shark in the 878 roof, I wondered whether it was a contender for the Turner prize. If it was, I suggest that the penalty ought to be £20,000, an exact match for the prize itself.
I want to draw one point to the Minister's attention. My hon. Friend referred to a place by the River Yar. In that case, the person got planning permission but did not build according to the plans. I note that my hon. Friend tabled a new clause 6, which was not selected—I do not quarrel with that at all. However, it seems to me that when we are dealing with enforcement matters, we should consider not only those edifices that appear without any planning permission but buildings for which permission has been given but which are not built in accordance with the plans, usually because the wrong measurements have been given on the plans accompanying the application. In my view, that is an equally serious situation.

§ Mr. Hayes
I suggest to my hon. Friend that that is not an occasional aberration. There are areas—I shall not say which exactly—where that is continually an issue. Developers will deliberately and systematically use that approach to get what they want, and the problem needs to be dealt with on that basis.Sir Sydney Chapman: I take that point absolutely. The sad thing, from my point of view as a professional person, is that if the plans are prepared by a professional person, that professional person has some responsibility in the matter.

§ Richard Younger-Ross
I am not sure whether the hon. Gentleman has the same experience as me, but we have shared a profession, as I have worked in architectural industries for most of my life. In one case in the London borough of Merton, a client deliberately and knowingly made an extension far larger than the plans that I had submitted. When I spoke to the local authority to point that out, it was not interested, although it was a deliberate breach of the planning consent given.

§ Sir Sydney Chapman
That is a fair point, and I eagerly support the hon. Gentleman's view that it is not necessarily the professional who has made a mistake but the client not carrying out the plans drawn up by the professional. Sadly, there have also been cases in which the measurements on the plan have been inaccurate. We discussed that at length in Committee, so I need not continue the discussion now. It is a serious and important matter, however, and it is not just about building without any planning permission but building, getting permission, and not carrying out the building in accordance with the permission given.

§ Richard Younger-Ross
I want to speak in favour of the proposition of the hon. Member for Isle of Wight (Mr. Turner) in relation to buildings that are built without consent. In Committee, he questioned whether the process of building without consent should be considered illegal. He asked whether anybody had read what he had said in Committee, and I happen to have it to hand. He said:
I have come under some pressure—I would not be surprised if other hon. Members have, too—to make development without permission against the law". 879 Yes, many of us have come under pressure when a building has gone up to say, "How can they be allowed to do that? How can they live in that building for X years, or use it to trade, without consent? We know that they are abusing the system." However, he went on to say: We have to adjust the balance of perception in the public mind, without going so far as to make it illegal to develop without permission."—[Official Report, Standing Committee A, 23 October 2003; c. 327—28.] The balance of that is probably just about right. As he, and, I am sure, other Members are aware, however, there are cases in which doing work without a planning application is illegal and a criminal act—demolition of a listed building without consent is a criminal act. Therefore, if we cannot succeed in persuading people to stop constructing without consent, there would be recourse to that at a later date, which would not be inappropriate. We ought to put that in reserve for consideration later if such activity cannot be halted.
In Committee, however, the Minister rejected what the hon. Member for Isle of Wight was trying to say. She said:
It also would be contrary to the principles of administrative law, which require a decision maker to have regard to all relevant matters.—[Official Report, Standing Committee A, 23 October 2003; c. 330.] I would not try to argue legal points—my background is in architecture, not law—[Interruption.] I am unlike the hon. Member for Ealing, North (Mr. Pound) in that. I would, however, question the use of the word "relevant" in that case. If a person knowingly constructs a building without consent, by and large they have done so knowing that they required consent. They have knowingly done something that they know that they should not have done. One does not accidentally happen to build a building or an extension to one's house. One does it by deliberate forethought. By and large, one will ask someone qualified, or not qualified, to draw up some plans for a builder to construct it. It would be rare for someone to manage to build something with no plans whatever, although I appreciate that there are some areas in which that may occasionally happen. Most cases, however, are not like that.
There was a case in the London borough of Wandsworth in which a person tried to build an entire office block without consent, and wondered why the local authority objected. In that case, the local authority continued to object, turned it down, and was eventually supported by the inspector. That building was four houses long and four storeys high. It was hardly a standard small extension that could be ignored. However, many other cases with different circumstances also need to be addressed.
If someone has deliberately and methodically built something, why should that be taken into consideration in the planning application? Why should that be relevant to the decision? I know, as will other hon. Members who have been in the profession, that once a building has been constructed, consent usually follows. The owner claims that he has no money to knock it down, or has used all his savings to construct it. However, those are not relevant matters. The relevant matters are the planning issues. An extension or building should be judged simply on its merits and on whether it complies with planning legislation, the local 880 authority's plan for the area and the context of its environment—and not on whether the owner can afford to knock it down. I support the new clause for that reason.

9.45 pm

§ Mr. Clifton-Brown
I am glad to address this group of amendments, which includes several that I have tabled. I shall address those, as well as new clause 8, tabled by my hon. Friend the Member for Isle of Wight. He raised a similar issue in Committee and the general tenor of the debate supported what he was trying to achieve. We all know from our constituency postbags that retrospective planning applications are more likely to be granted than not. If someone has failed to comply fully with the provisions of a planning application, or fails to apply for planning consent at all, and builds a property, some strong sanction should be applied to require retrospective planning permission to be obtained. That retrospective application should be treated on exactly the same basis as one made before the construction of the property. That is what new clause 8 seeks to achieve.
Most planning authorities are too understaffed to carry out enforcement properly. That is a real problem for many local planning authorities and will worsen once the Bill, with all its complexities, comes into operation. It is all very well for my hon. Friends to say that the professional who devises the scheme—the architect or surveyor—should bear some professional responsibility if a development is not carried out entirely in accordance with the plans, but in many cases the professional's involvement in a scheme ends with drawing up the plans and he has no responsibility for supervising the development thereafter. The client has the responsibility to ensure that the development is carried out properly.
My other concern is that after four years nothing can be done, because a certificate of lawful use can be obtained. In a large, complex rural area, such as my constituency, which is more than 1,000 square miles, it is almost inevitable that some unlawful developments will take place and the planning authority will not find out about them until after the four-year period is up. That is a real problem.
The hon. Member for Teignbridge (Richard Younger-Ross) said that the decision maker must take into account all material points. Of course he must do so, but the balance should lie in favour of planning law being applied. One of the worst planning cases that I have had to deal with was within a couple of months of my being elected, when my constituency was known as Cirencester and Tewkesbury. A builder, who should have known better, had built a house out of pre-cast concrete blocks, but the planning application specified that it should be built of Cotswold stone. The local planning authority required him to demolish the house. I fully supported the local planning authority and he had to take down the whole outer skin of the building. The house has now been built in Cotswold stone and is thoroughly in keeping with its surroundings.
Planning law must be enforced, and we need to consider carefully how we deal with enforcement and retrospective planning applications. If a retrospective planning application is taken to appeal and the appeal fails, enforcement action should be immediate; it should not be subject to a separate hearing and possible further 881 appeals, as the whole process could cost the local planning authority a large amount of money—as has been pointed out—and could take a large amount of time.
My amendments take us back to the original Bill at long last, and to some of the matters that were discussed only in scant detail in Committee. Amendment No. 33 would amend clause 43, under which local authorities are allowed to decline to determine similar applications—the so-called twin-tracking procedure. Where the conditions under subsections (1) (a) and (b) are satisfied, my amendment provides that there should be an appeal to an independent inspector appointed by the Secretary of State.
Under article 6 of the European convention on human rights, a citizen under the jurisdiction of the convention has a fundamental right of appeal to an independent hearing. It seems to me that if someone makes two similar appeals, or even two appeals that have only marginal differences, and the local authority decides that it does not want to determine one of the appeals, that is to deny that person their human rights. Even if that were not so, let us debate whether the clause is sensible.
Under current planning procedures, if a person makes an application and the local authority does not determine it within the eight weeks allowed, the person can put in a second, similar application that they take to appeal. The idea is that the person should continue to negotiate with the planning authority, which should either give good reasons for its definite determination to turn down the application—as even if it went to appeal it would not succeed—or grant the application. If we abolish that sensible system, I predict that developers will take many more cases to appeal because the local planning authority has not made a determination within the eight-week deadline.
The Government are cutting off their nose to spite their face; they will be landing themselves with many more appeals as a result of the provisions. Of course, they may reply that they will make the planning system work so well that 90 per cent. of planning applications will be determined within the eight-week period. I do not believe that that will happen—or not for some considerable time, given the complexity of the Bill. The Government ought to think again. I am certain that if they do not do so while the Bill is in this place, Members of another place will need to consider the clause very carefully indeed.
Amendments Nos. 81 and 82 deal with clause 47, which covers the duration of consents. The Town and Country Planning Act 1990 already includes powers for local planning authorities to grant planning permissions with a three-year consent, which can be varied to five years. There is also a further category that I cannot remember. Clause 47 cuts the duration of consents from five years to three years, as, according to the Government, significant large sites, often in city centres, remain undeveloped for far too long. Nobody condones that, but the problem is that it can often take three years or more just to obtain compulsory purchase of such large, complicated sites, let alone anything else.
My amendments are supported by the British Property Federation, whose comments make a great deal of sense. The amendments state that if the 882 Government cut down the duration of all consents the three-year period should run from the date on which all statutory consents, permissions or clearances in relation to the development was granted or given by any government or statutory body where application for such consent, permission or clearance was made as soon as reasonably practicable

§ Richard Younger-Ross
My understanding is that local authorities may, especially in respect of complex developments that require compulsory purchase orders, allow consents to run to five years or longer. Would not strong guidance—[Interruption.] Is the hon. Gentleman listening? Would not strong Government guidance be better than the provisions of his amendment?

§ Mr. Clifton-Brown
I apologise to the hon. Gentleman for the discourtesy of talking to the Minister. I chided the hon. Member for Ludlow (Matthew Green) for doing exactly the same thing. The Minister for Housing and Planning was giving me some guidance—and very useful it was too. Bearing in mind his strictures, and in view of the fact that I have dealt with the matter expeditiously, no doubt the Minister replying will accede to my amendments Nos. 81 and 82.

§ Yvette Cooper
I shall deal first with the issues around retrospective planning applications. As I said in Committee, we are keen to look further at those issues, especially in the context of the enforcement review. We have asked officials to prioritise consideration of the points made by hon. Members in Committee. We have to recognise that a wide range of cases is involved: there are cases in which someone simply did not realise that they needed planning permission, for example, to extend a wall; there are cases in which someone is fully aware and is deliberately abusing the system; there are cases in which there is simply a difference of view. Hon. Members mentioned the shark, which I really liked, having passed it on a bus on many occasions.
If someone has not applied for planning permission, a wide range of enforcement actions can be taken, including enforcement notices, stop notices, and injunctions. In many cases, those powers are sufficient and the retrospective application is dealt with perfectly properly, with the planning application granted or not granted, as the case may be. Cases were cited in Committee and in the House today in which—admittedly after some months have passed and local people have become concerned about the time the case has taken—the application has been turned down and the builders obliged to pull down the building. Hon. Members have spoken about cases that have caused concern, but the rate of success of retrospective planning applications is slightly lower than that of applications submitted in advance.
We recognise that we have to consider the matter further, but we should also recognise that retrospective planning applications are an important part of the planning system. Those who responded to the planning enforcement review were strongly of the view that the retrospective planning system should be continued, although, as I said, there are issues of enforcement that have to be examined.
I set out my concerns about new clause 8 in Committee. It should be possible to take account of all material considerations, but of course I recognise that 883 considerations such as financial loss to the developer should carry different weight in, for example, a case in which the developer knew exactly what they were getting into. However, it would be going too far to say that it should never be possible to take into account personal or material considerations.
Clause 43 enables a local planning authority to decline to determine an application if a similar application has been refused within the previous two years, or if a similar application is still under consideration. We acknowledge the concerns that have been expressed; nevertheless, the local planning authority has discretion to decline to determine a further application. We shall issue guidance to stress that we expect local planning authorities to use the power only if they think that the applicant intends to exert unfair pressure; otherwise, if a genuine attempt is being made to take account of objections, the application should be determined. Equally, the Bill provides flexibility to extend the time periods applicable to complex regenerations, so that developers have sufficient time to commence work. I ask the hon. Member for Isle of Wight (Mr. Turner) to withdraw the motion.