Localism Bill

My Lords, I shall speak to Amendment 154, which is grouped with Amendment 153D. Clause 108 inserts a new Section 70C into the Town and Country Planning Act 1990 and gives the local planning authority the power to decline to determine a planning application if the grant of permission would involve granting, whether in relation to the whole or any part of the land to which an enforcement notice relates, permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control. We had a brief discussion, interrupted by a Division, with the Minister and her advisers on new Section 70C a couple of weeks ago, and I hope that in the light of that discussion, the Minister will have had second thoughts about the consequences that it might have. I should like to make two preliminary observations. The vast majority of retrospective planning applications are not made by Gypsies and Travellers, but power conferred on local authorities by Clause 108 is discretionary. In the discussion that we had, it was clear that we all envisage that it will be used predominantly to put a stop to appeals by members of those communities against refusal of their planning applications for unauthorised developments. The Secretary of State said on 29 August last year, referring to the CLG's announcement of that date, that he was looking at ways to strengthen the powers available to councils to more effectively tackle unauthorised development and that these developments have caused tensions between Travellers and the settled population. The announcement was not about unauthorised development in general. Yet I think it was also agreed at our meeting a couple of weeks ago that it would have been unlawful for the Government to have designed this clause with Gypsies and Travellers as a target, as Mr Pickles made clear they did. I would be grateful for the Minister's comments on this difficulty that I have with the clause. The proposal in new Section 70C of the TCPA 1990, to which this amendment relates, when taken together with the amendment to Section 174 of the Act relating to appeals against enforcement notices, goes far beyond the stated intention of preventing delays caused by the running of concurrent or consecutive appeals. If these provisions become law, a local planning authority would be able to use the new power in Section 174(2)(a) to issue an enforcement notice within the period specified in Section 78(2), which I understand is eight weeks, after receiving a planning application for retrospective permission of a Gypsy site, and then use the power in new Section 70C to refuse to determine the application. The applicant would then be estopped from appealing against the enforcement notice, given the wording of Section 174(2)(a), and would have no ability to argue that the planning merits justified the grant of planning permission for the development. Instead of there being no second appeal on the merits, there would be no appeal at all. The applicant could go for judicial review of the decision not to determine the application, but the local planning authority would almost certainly defeat any such challenge by relying on the legislation. It may be that local planning authorities will decide not to use their powers or will fail to do so within eight weeks, but experience suggests that enforcement powers will be used enthusiastically by local planning authorities in Gypsy and Traveller cases. It is possible that where no enforcement action has been taken before a site is developed, Travellers could decide not to make a retrospective planning application but instead simply wait until an enforcement notice is issued and then appeal against the notice. The amendments to the 1990 Act in this clause will not debar a ground (a) appeal in such circumstances. However, local planning authorities often do not bother to issue enforcement notices; instead, they simply apply for an injunction under Section 187B of the 1990 Act against unauthorised developments. In most cases, the target family's best way of defending such a claim has been to show that they have sought planning permission and that their application has a realistic chance of success, but given the provisions of Clause 108, such a course may not be open to them. The only recourse would be to argue that the authority should serve an enforcement notice before seeking an injunction, giving them the opportunity to appeal and have their case determined on the merits. However, the chances are that such an argument would be unsuccessful and if the court accepted it, the ensuing delay would be contrary to the Government's aim of stopping retrospective applications whatever their planning merits. So, this amendment provides that the enforcement notice must not only have been issued but also have taken effect. Clause 108 could not then be used by planning authorities to issue an enforcement notice after an application for planning permission has been made, thus preventing any appeal on the merits of the development being heard. Secondly, it would prevent appeals only for three years after an enforcement notice took effect, so that land would not be permanently sterilised, and changed circumstances would be arguable at a planning appeal brought more than three years after the enforcement notice was issued. We had a brief discussion in the meeting two weeks ago about this time limit and I would not be absolutely committed to it if the amendment is otherwise acceptable to the Government. The reason why Gypsies and Travellers have resorted to lodging retrospective planning applications is that there is no land in the whole of the country designated for their use by local planning authorities. This is in stark contrast to the Government's intention, in the national planning policy framework to be published later this month, for a housing bonanza for developers in the green belt, according to Ben Webster the Environment Editor of the Times, who has seen a leaked copy of the document. With 20 per cent of those who live in caravans being statutorily homeless, they have had no option but to buy a piece of land that they can develop as a site and then apply for planning permission. The consensus among academics and lawyers who know about these matters is that something like 75 per cent of successful appeals are for retrospective applications. Taking the statistics from the work of Dr Jo Richardson, that would equate to around 100 a year. Just as that number of families has been enabled to settle down and develop a more sustainable way of life—perhaps many more, when one considers that most appeals are for more than one family—so, when this legislation comes into force, 100 or more families a year are likely to be dumped on the roadside, adding to the 1,000 families on unauthorised developments counted by local authorities at the beginning of the year. At the same time, there are 2,200 caravans on unauthorised developments, some of which may not yet have been subject to planning applications and may thus be caught by Clause 108. The land that these Gypsies and Travellers occupy in desperation is not always ideal from a planning point of view: but the blame rests squarely on successive Governments, not on the victims of the laissez-faire policies over the five successive decades since I first became involved in Gypsy and Traveller issues. Having a fixed abode is better than being hunted all over the country by planning officers and bailiffs. It means that the gross disadvantage in terms of health, education, access to other public services and social exclusion of the Gypsy and Traveller people can be dealt with more effectively in time. This clause makes the task a great deal harder. I beg the Committee to alleviate its effect by agreeing to the amendment.