Further written evidence submitted by Frank Egerton Gilman [NPP 327]
Revised Summary after 1st September Discussion Forum - Below which is the original May 2014 Written Evidence .
1. The 2004 Planning & Compulsory Purchase Act has been a failure. England now has a Town & Country Planning System unworthy of the name. Legislative and Judicial negligence have conspired to create an expensive and unworkable shambles. Local Development Plans used to take about 5 years from start to finish. With the introduction of the 2004 Act, many of the new Local Plans which have been adopted have taken double this time and, as at 20th June 2014, there were 291 others which have not even been adopted.
2. The 2004 Act has lost the confidence of its users, probably the Judiciary and certainly the general public. Only large national house builders who have paid heavily to influence legislators are comfortable. Ideally, the solution to these 10 years of failure is a return to the pre-existing Local Plan System which worked well. But we do not live in an ideal world.
3. The gross delays to Local (Development) Plans have already occurred, and the time lost will never be recovered. The original negligence by the then Deputy Prime Minister and his DCLG civil servants is now water under the bridge. But if the boss of RBS can have his knighthood removed for wrecking his bank, then the politicians and civil servants who wrecked the Town & Country Planning system by their 2004 Act should suffer likewise, to encourage the others not to be negligent in their duties.
4. What has happened since the Coalition Government came into power in 2010 is equally negligent. The Coalition sensibly were minded to speed up the constipated 2004 Local Development Framework process so as to deliver Local Plans more quickly, and, to enable sustainable planning consents to be granted more quickly. This was a desire shared by many, but what resulted was the usual ignorant clamor for a quick fix. The civil servants in DCLG could and should have advised Ministers of two alternative courses of action:
A. Take a deep breath, and wait whilst the then existing centrally imposed processes worked their way through
all local authorities; or
B. Be seen to be doing something in the knowledge that any available option would create new uncertainties,
new case law and new delay.
5. It is not known if the civil servants gave this advice, but it will become apparent in due course from FOI enquiries. So your Select Committee could firstly ask and get answers to what advice was offered by the civil service to Ministers post the 2010 General Election.
6. Secondly your Committee could ask the then Ministers, including Nick Boles MP, why the negligent decision to adopt Action B was taken.
7. Thirdly, your Committee could report what they found, and recommend what disciplinary actions be taken. My advice to your Committee is that Ministerial and Civil Service blood needs to be spilled. The public will not be satisfied with less.
8. Fourthly your Committee could consider the propositions that:
A. the 10 wasted years cannot be recovered. The resulting blots on the landscape are forever and will remind
the public daily.
B. many Local Planning Authorities have got some way towards having adopted Core Strategies; some have
progressed further towards having Site Specific Plans.
C. the continuing shambles can and should be corrected in an intelligent manner, without new legislation.
D. your Select Committee could share a key role in progressing these corrections.
9. I now set out the nature of the continuing shambles and suggest solutions. The key disaster was introduction the introduction of the NPPF and the parallel abandonment of Planning Policy Guidance documents (PPGs). This is the continuing disaster which can be brought to an end.
10. PPGs were tightly written in clear language, and capable of quick and consistent interpretation. The PPGs left little to doubt as to what was and what was not policy. Consequently policy could be relied upon at the Planning Authority level, at appeals and at Judicial Review. The PPG system was an example of English Law operating well. All parties to a planning application either knew the legal ground rules set out in the PPGs, or could easily and without undue expense take advice to have them clarified. There was a very large body of planning policy guidance and legal case history which provided a high level of certainty as to the result of prospective legal challenges. Consequently, few challenges were made.
11. By contrast, look at the NPPF approach (for instance) on Sustainability. Sustainability is described in Planning Practice Guidance as “The policies in paragraphs 18 to 219 (of the NPPF), taken as a whole, constitute the Government’s view of what sustainable development in England means in practice for the planning system.” This is while the Guidance also states “The purpose of the planning system is to contribute to the achievement of sustainable development”. So in respect of its purpose, the NPPF on Sustainability takes 201 paragraphs and 49 pages to deliver its message. Why is it so long winded? The NPPF was designed like a Scandinavian smorgasbord to bring forward a table full of goodies to satisfy all possible tastes. If intended to please every side of every planning debate, it succeeds brilliantly.
12. In this absence of competent guidance, the outcome of any planning application is entirely at the whim of individual local authorities at the persuasion of planning case officers. Competent planning committee members roll their eyes at the rubbish they are required to approve. The Planning Inspectorate is bereft of clear planning guidance and case history, with which to overturn obviously bad policy and obviously bad development control decisions. Our Judiciary, in considering legal challenges on planning issues, has shamefully taken to spinning a coin in the most costly manner imaginable. So in respect of its purpose, the NPPF role on Sustainability can now be seen by those with eyes in their heads to take 201 paragraphs in 49 pages to deliver unpredictable and inconsistent outcomes on planning applications. All the other subsidiary issues are likewise flawed. The NPPF does not produce clear guidance; on the contrary it is muddled and confused.
13. A key benefit from the legal certainty deriving from the old PPGs was that everyone benefitted except the corrupt. Corruption has a powerful accomplice in legal uncertainty, in all walks of life. When an acre of agricultural land worth say £10,000 can increase in value to £1 million with the grant of a planning consent, legislators should take care to not to put ordinary citizens in harm’s way. Planning corruption in high places is a historical and continuing fact of life. Sadly, there is good evidence that the web of corruption is extending further and wider within the existing planning system, particularly amongst those working as professional planning officers in planning authorities. Like all white collar crime, it is not easy to prove guilt beyond reasonable doubt, leading to an increased reluctance of police to intervene. As a result of the replacement of the tried and trusted PPGs by the NPPF, England’s planning system is now sinking into ways which would disgrace a banana republic.
14. So fifthly, your Select Committee could consider if Planning Policy Guidance Notes should be updated and reintroduced and the NPPF abandoned. Note that the word ‘immediately’ is absent from that sentence. This is an issue which must be taken step by step, over say two years, and by a different team of civil servants than those who created the NPPF and the current shambles. The NPPF team should be subjected to disciplinary proceedings; perhaps they should exercise their talents elsewhere, possibly at the back of a dustcart. Meanwhile some new blood of Queen’s Counsel calibre need funding and recruiting into DCLG to write the revised PPGs. If necessary, your Committee may wish to consider increasing fees paid by the users of the planning system to pay them.
15. Sixthly, your Select Committee could consider the existing proposition that the bribing of Local Planning Authorities to achieve speedy planning decisions at the expense of wise decisions should be reversed. The nexus between the development and payments required to be made to authorities (which for so long established a stance against planning permissions being bought and sold) having been removed encourages the buying of permissions. Let LPAs keep all the DCLG bribes, by increasing their core funding accordingly. But deduct from their core funding in proportion to the complaints and objections received from the general public.
16. Seventhly and finally, your Select Committee should consider reform of the failed Planning Inspectorate, which is rightly seen as a mere tool of the DCLG, the creator of the current shambles, and seen as being tasked with doing the DCLG’s dirty work. A new and independent Planning Inspectorate should be constructed on the lines of the new HM Inspectorate of Constabulary, to break the current link between with DCLG and to inspect the operations of Planning Authorities. I suspect that many competent Senior Inspectors (employed by DCLG via the Planning Inspectorate) would welcome input into your Select Committee.
I would like to thank you and your Select Committee for the opportunity to make these my further comments on these Planning matters.
End of Revised Summary after 1st September Discussion Forum
Original May 2014 Written Evidence:
The 2004 Planning & Compulsory Purchase Act has failed. England no longer has a Town & Country Planning System worthy of the name. Legislative and Judicial negligence have conspired to create an expensive and unworkable shambles. This has lost the confidence of its users, save large national house builders who have paid heavily to influence legislators. The only solution to these 10 years of failure is a return to the pre-existing Local Plan System. Failing which, a rebellion against incumbent MPs, civil servants and the Judiciary is inevitable.
1. I am a retired member of the general public. I left school at the age of 16 and went straight into the family businesses. In my mid 40’s, I was elected to be a member of Rutland District Council, and served on their Planning Committee for 7 years. Since the early 1970’s I have been involved as a user of the planning system in my private and professional life.
2. It seems to me that the Local Plan system which was in force prior to the 2004 Planning & Compulsory Purchase Act operated in a sensible manner. It produced wise outcomes at reasonable cost to both the Local Planning Authority and the applicant. Difficult applications were dealt with carefully to arrive at wise outcomes, even if this took a somewhat extended period of time. The system operated with public support for the principles of town and country planning, if not always the detail or the top down Stalinist nature of any such system. Those who were interested in understanding the system were readily able to do so without needing to be full time professional planners. There were rare incidents of potential corruption, but it was relatively easy to identify same, and elected members were able to see the wood for the trees and were not easily bamboozled. It was helpful to the making of wise decisions that Rutland operated without the constraints of party politics.
3. As a member of the Rutland District Planning Committee, I was able to bring with me to the meetings a small number of key policy documents which I referred to from time to time when I suspected things were not right. These documents were the General Development Order, the County Plan and the District Plan. In addition, I brought a small number of Planning Policy Guidance documents (PPGs) relevant to the particular agenda of each meeting. All these documents were tightly written in clear language capable of quick and consistent interpretation. There was little left to doubt as to what was policy, consequently policy could be relied upon at Appeal.
4. In Committee, the convention was that elected members sought to operate the written policies, and so would monitor and where appropriate challenge the Officers as to the nature of policy. Officers were supported where they had correctly sought to apply policy. It was understood that if a particular policy was generally thought to be unwise, it was to be operated as written until changed. Officers understood that they were expected to implement the written policies. The case for the applicant could be put by the Ward member, to give an opportunity to balance the proceedings. The Ward member was given a good hearing, but without any assumption on how that the Ward member would vote. Generally, the whole process could be understood by a reasonable applicant, and by the press who were nearly always present and whose reports were well read. Of course this occasionally led to adverse publicity, but this is to be expected in an open political system.
5. Helpfully, the Courts had over many years given clear judgments on cases brought before them for review. Thus the uncertainties for applicants were reduced and the outcomes of Planning Appeals were generally predictable. The public sat in on all meetings, could hear the debates and could see the show of hands by which voting was carried out. If a member of the public was aggrieved, a letter to the Editor could follow. This Rutland Local Plan system had become a smooth running and efficient operation, benefiting ratepayers and applicants.
6. Then Parliament in a fit of lunacy introduced the 2004 Planning and Compulsory Purchase Act.
7. This more than doubled the staffing levels required of a Planning Authority, and the more so of the resources required of an applicant.
8. The Act was a structural and operational abomination as legislated. It was the subject to a long process of change, over many years. Each change brought Judicial Reviews, resulting in fear, uncertainty and doubt in all quarters. In effect, the planning system ground to a halt for at least 6 years from 2004. The Civil Service grew fat attempting to fix their brain child, whilst drifting further and further from reality and towards the asylum. They repeatedly changing the goal posts, and have ended up with a grotesquely complex system which has run amok.
9. It should have been obvious that the only solution was an ignominious retreat, and a return to the previous Local Plan system. Again, Parliament failed the nation. The nation is left with a Wild West instead of a planning system. The Judiciary could not or would not act, and had consistently failed to use its power to resolve the multiple examples of system failure. The Wild West has become lawless, might is right. Perhaps the Judiciary considered the 2004 Act as beyond all hope; if so it is unfortunate that they did not so advise their customers.
10. Voters brought forth the Coalition Government which arrived giving the appearance of being the 7th Cavalry arriving in the nick of time to save the Town & Country Planning system.
11. In the absence of any thought except the need to appease national house builders, the Coalition has made matters far worse.
12. The NPPF is a farce. It contains the opposite of the clear language capable of quick and consistent interpretation represented by the PPGs and the pre-existing Local Plan legislation. It seems that the NPPF was drawn up with the objective of confusing its users and the Judiciary. If that was the objective it has brilliantly succeeded. In effect, there is now a thumbs-up given to any and all unwise development.
13. The very introduction of the NPPF has brought more fear, uncertainty and doubt in all quarters.
14. LPA administrative machinery has now been equipped with legal cohorts adding to the cost, all working to achieve targets which exclude any measure of the quality of outcome. Targets fulfilled provide funding to LPAs. Careful wise decision making has become unaffordable.
15. The public cannot begin to understand the current planning system, does not trust its professionals and dislikes its outputs. In the minds of the general public, the system lacks legitimacy.
16. In a LPA near to Rutland, there is no internal appeal system, so the only recourse against bad consents is Judicial Review, a sledgehammer approach made worthless by the manifest failings of the Judiciary. In this LPA, voting is conducted is secret, voters can no know what their Ward member is doing, thus democracy is corrupted.
17. The last 10 years of incompetence and negligence by law makers has now brought the planning system past the point of resentment to the point of rebellion. It is no wonder that the anti-establishment UKIP quotes “Tory over-development” as one of its four reasons deserving of its replacement of current politicians, along with “Labour immigration failure”, “Liberal sell-out to the EU” and Green energy price hikes”.
18. Meanwhile, the Coalition continues to tinker with the planning system, resulting in yet more fear, uncertainty and doubt. Any residual optimism that the 2004 Act can be any basis for a competent planning system has now been lost. Parliament and your Committee are in denial. Shame on you all.