HL Deb 22 June 1995 vol 565 cc31-4WA
Lord Marlesford

asked Her Majesty's Government:

Whether they find it acceptable that Marron Dodds the solicitor to the Derbyshire developer J. S. Bloor, has written to the planning department of Babergh District Council threatening to claim costs as a result of the council rejecting their application to build 19 homes on the riverside site at Lavenham in Suffolk, for which the appeal by the developer has not yet been heard.

Viscount Ullswater

The conduct of a planning appeal, and any costs application arising from it, is invariably a matter for the appellant company and their advisers. Comprehensive policy and procedural guidance on awards of appeals costs, which all principal appeal parties in planning proceedings are advised to follow, is given inDepartment of the Environment Circular 8/93, issued in March 1993.

Lord Marlesford

asked Her Majesty's Government:

Whether they will publish in the Official Report the letter of 23rd May 1995 from the Minister of State for Construction and Planning to Lord Marlesford on the intimidation of local planning authorities by developers and the use and misuse of "planning gain".

Viscount Ullswater

Yes. The text of the letter is as follows:

Letter to Lord Marlesford from Viscount Ullswater dated 23rd May 1995:

During the course of the debate on rural affairs on 10 May you raised two planning issues on which I did not have time to respond. I hope that you will find the following explanation of the Government's policy on these issues helpful.

First, you asked what can be done to help local planning authorities who may be intimidated by developers who threaten to sue them for costs if a refusal of planning permission is subsequently overturned on appeal.

Most members of local planning authorities know that there is some risk of an award of appeal costs against the authority only if they behave "unreasonably", as this term is interpreted in publishing policy guidance (currently in DOE Circular 8/93). It is a well-established principle that an award of costs does not "follow the event" of the appeal decision (as in litigation in the court). Therefore, I see no reason for authorities to feel intimidated by developers in the way you suggest. Provided each of an authority's reasons for refusing planning permission is objective, clear-cut and sustainable on its planning merits, and they can show in any appeal proceedings that they properly considered the merits of the application, by reference to stated national and local planning policies, they need not fear an award of costs against them. The great majority of planning appeals do not result in a costs application, let alone an award.

The published arrangements are intended to bring a greater sense of discipline to all parties involved in planning appeals. Planning authorities can also apply for their costs when they can show that an appellant has acted "unreasonably" in exercising the right of appeal. The policy is intended to apply even-handedly.

Second, you were also concerned that local planning authorities should not be tempted by the concept of `planning gain'. I entirely agree with your sentiments on this issue.

The Government's policy, as set out in DOE Circular 16/91, is that planning obligations, as we prefer to call them, should only be sought where they are necessary to the granting of planning permission, relevant to planning and relevant to the development to be permitted. Overall, our policy is one of reasonableness: planning obligations should relate fairly and reasonably both in scale and in kind to the proposed development. Developers should only be asked to pay for facilities which are needed as a result of their development and no more. These policies have recently been endorsed by the House of Lords decision on the "Tesco" (Witney) appeal case.

I agree that planning obligations can have positive benefits. Used properly they are valuable tools which can remedy genuine planning problems and enhance the quality of development. But the use of planning obligations should not degenerate into the buying and selling of planning permission.

While it is entirely a matter for the parties concerned whether to enter into a planning obligation, local authorities are well advised to heed what you say about the dangers of accepting inducements offered by developers. The Secretary of State remains fundamentally opposed to any attempts to influence planning decisions through the offer of unnecessary community benefits.

Equally he will not support excessive demands for contributions from local authorities. Developers should not feel forced into accepting unreasonable obligations sought by a local planning authority in return for planning permission. If they do refuse, then developers have the right to appeal to the Secretary of State against any subsequent refusal of planning permission or non-determination of their application. They may also apply to the relevant local planning authority for the modification or discharge of the planning obligation, after five years, and appeal to the Secretary of State if the authority refuse the application.