Community power over planning

Together with a number of senior Conservative MPs I have tabled three amendments to the Infrastructure Bill, which has its Report Stage today (Monday 26 January):

  • To introduce a limited community right of appeal to the Secretary of State against decisions to grant planning permission in cases where this would go against a draft or finalised local or neighbourhood plan (New Clause 20).
  • To provide direct compensation to property owners who have drilling for fracking below their land (Amendments 78, 79, 80 & 81).

All of these amendments have been provisionally selected for debate by the Speaker.  Fracking will be debated first, 3.30 – 5.30 pm when there will be votes, then planning 5.30 – 7.30 pm when there will be further votes.

ABOLITION OF THE PLANNING INSPECTORATE

NEW CLAUSE 12

Nick Herbert, Sir Nicholas Soames, Dr Liam Fox, Andrew Mitchell, Sir Alan Duncan, Zac Goldsmith, Richard Benyon, Henry Bellingham, Sir Peter Bottomley, Crispin Blunt, Nigel Evans, Rebecca Harris, Andrew Turner, Simon Hart, Chris Heaton-Harris, Dominic Raab, Graham Stuart, Fiona Bruce, Philip Davies, Julian Lewis, Gordon Henderson, Sir Alan Haselhurst, Gerald Howarth & Tim Loughton

To move the following Clause—

“Abolition of the Planning Inspectorate

(1) The Planning Inspectorate is abolished.

(2) Subject to paragraph (3), all the functions of the Planning Inspectorate are transferred to the Secretary of State for Communities and Local Government.

(3) The functions of the Planning Inspectorate in relation to Wales are transferred to Welsh Ministers.”

This New Clause simply abolishes the Planning Inspectorate and transfers its powers to ministers.  The Conservative Manifesto at the last election promised:

“To give communities greater control over planning, we will … abolish the power of planning inspectors to rewrite local plans.”

In fact, the Inspectorate has:

– upheld speculative planning applications, overriding refusal of permission by local authorities, even when the proposed development runs counter to emerging neighbourhood or local plans;

– demanded that local councils rewrite their plans to increase their housing numbers, often to levels above that set by the Regional Spacial Strategies which we abolished.

The Conservative Party pledged to abolish quangos and embrace localism.  Neighbourhood planning, an important innovation in the Localism Act 2011, shows real promise as a means to deliver greater control for local communities over development.  We need to ensure that neighbourhood planning is not undermined, and that the system is plan-led and not developer-led.  I have tabled this New Clause so as to press for more respect to be accorded to local decision-making.

COMMUNITY RIGHT OF APPEAL

NEW CLAUSE 20

Nick Herbert, Sir Nicholas Soames, Dr Liam Fox, Andrew Mitchell, Sir Alan Duncan, Zac Goldsmith, Richard Benyon, Henry Bellingham, Sir Peter Bottomley, Crispin Blunt, Nigel Evans, Chris Heaton-Harris, Andrew Turner, Rebecca Harris, Dominic Raab, Graham Stuart, Philip Davies, Anne-Marie Morris, Julian Lewis, Gordon Henderson, Gerald Howarth & Tim Loughton

To move the following Clause—

“Community right of appeal

(1) The Town and Country Planning Act 1990 is amended as follows.

(2) In section 78 (appeals to the Secretary of State against planning decisions and failure to take such decisions) after subsection (2) insert—

“(2A) Where a planning authority grants an application for planning permissions and—

(a) the authority has publicised the application as not according with the development plan in force in the area in which the land to which the application relates is situated; or

(b) the application is not supported by policies in an emerging development plan;

certain persons as specified in subsection (2B) below may by notice appeal to the Secretary of State, provided any one of the conditions in subsection (2C) below are met.

(2B) Persons who may by notice appeal to the Secretary of State against the approval of planning permissions in the circumstances specified in subsection (2A) above are—

(a) the ward councillors for the area who have lodged a formal objection to the planning application in writing to the planning authority, or where there is more than one councillor, all councillors by unanimity;

(b) any parish council or neighbourhood forum by two thirds majority voting, as defined in Section 61F, covering or adjoining the area of land to which the application relates is situated; or

(c) any overview and scrutiny committee by two thirds majority voting.

(2C) The conditions are:

(a) the application falls within the definition of “major development”;

(b) the application is accompanied by an environmental impact assessment;

(c) the planning officer has recommended refusal of planning permission.”

(3) Section 79 is amended as follows—

(a) in subsection (2), leave out “either” and after “planning authority”, insert “or the applicant (where different from the appellant)”;

(b) in subsection (6), after “determination”, insert “(except for appeals as defined in section 78 (2A) and where the appellant is as defined in section 79 (2B)).

(4) In this section—

“emerging” means a development plan that is being examined by the Secretary of State, or is due to be examined, having met the public consultation requirements necessary to proceed to this stage; and

“major development” means cases within categories defined in guidance produced by the Secretary of State.”

This New Clause introduces a limited community right of appeal to the Secretary of State against decisions to grant planning permission in cases where this would go against a draft or finalised local or neighbourhood plan.

At present developers have a right of appeal against a refusal of planning permission, but communities have no right of appeal if planning permission is given.  Often local authorities reluctantly give permission because they are fearful of losing an appeal by developers.

In order to empower local communities and reduce the use of judicial review the planning appeals system will be rebalanced so that community groups can both plan for their future and challenge bad decisions.

Specifically the amendment adds to the appeals process set out in the Town and Country Planning Act 1990.  It allows councillors who have objected to an application, parish councils or neighbourhood forums to appeal to the Secretary of State against the grant of planning permission by the local authority for certain applications.

The new right of appeal applies when permission is granted which is contrary to the adopted or emerging development plan.  This applies to neighbourhood plans as well as local plans.  Additionally the planning application will have to meet one of the following conditions in order to qualify for the right:

  • The application falls within the definition of ‘major development’;
  • the application is accompanied by an Environmental Impact Assessment; or
  • the planning officer has recommended refusal of planning permission.

This amendment has been drafted by the CPRE (their briefing can be found here and reflects one of their policies in their Manifesto to:

“Support local aspirations by introducing a community right of appeal against speculative development in areas where a neighbourhood plan has been prepared.”

I have tabled this amendment so as to raise concerns about speculative planning applications which don’t accord with neighbourhood or local plans, to give communities more power, and to ensure that the system is plan-led rather than developer-led.

COMPENSATION TO PROPERTY OWNERS FOR FRACKING

Nick Herbert, Sir Nicholas Soames, Eric Ollerenshaw, Mark Menzies, Andrew Percy, Sir Peter Bottomley, Julian Lewis, Gordon Henderson & Tim Loughton

Amendment 78

Clause 41, page 46, line 41, leave out “may” and insert “shall”

This removes the voluntary nature of the scheme as currently there is no legal obligation on shale gas companies to compensate landowners or the community although they have set up a voluntary scheme. 

Amendment 79

Clause 41, page 46, line 44, leave out “may” and insert “shall”

This requires a specific payment to landowners to be made.

Amendment 80

Clause 41, page 47, line 4, after “the” insert “minimum”

This would allow the Secretary of State to set a minimum level of compensation rather than a precise level.

Amendment 81

Clause 41, page 47, line 5, after “payments” insert “which shall be calculated as a percentage of the gross value of the gas extracted”

This provides that any compensation is calculated using the model put forward by INEOS.

These amendments would provide direct compensation to landowners who have drilling for fracking below their land.

I raised this issue at Second Reading of the Bill and believe that it would be right in principle and better in practice to set up a mandatory direct compensation scheme rather than rely on industry schemes which compensate through community funds, as is currently envisaged.

This proposal has been put forward by the CLA (their briefing can be found here) and has the support of INEOS who recently announced that they will invest £640 million in shale gas exploration in the UK.

The Government and industry have recognised that the Infrastructure Bill infringes on the existing ownership rights of individual land and property owners.  The industry has put forward proposals which provide for a payment of £20,000 into an as yet undefined community fund for each lateral drilled rather than recognising individually those owners whose rights are affected by the changes.

However, there is an alternative approach which would give away a percentage of the income generated from commercialised wells to the local community.  This would include a proportion made as a payment direct to land and property owners under whose property drilling takes place while a further payment based on a proportion of the income would be made to the local community to recognise the possible effects of development on them.

This would provide a more appropriate means of compensating those whose property rights are affected as well as the local community.  This is similar to the access arrangements in the US which have been highly effective in enabling the development of the industry there.

There are five reasons why this proposal is better than the current scheme:

1. It identifies and recognises property rights infringement by providing a direct payment to those whose rights are affected.

2. The level of compensation is based on the area affected by underground drilling and so is proportionate to the extent to which a property owner’s rights are affected.

3. It provides a genuine stake in the development for the local community to share any benefit rather than a one off payment, which is seen by some as an incentive to allow development.

4. It incentivises land and property owners and the local community to support development by allowing them to share directly in the success of any development.

5. It reduces the upfront cost and risk of development for investors since any payments are deferred to a point at which a well goes into commercial production and is generating income.  If a well is unsuccessful then fewer costs are incurred by the developer.

Whilst it might be expected that other operators will bring forward similar proposals, the Petroleum Exploration & Development Licensing (PEDL) process means that each licensee will have a monopoly within their license area.  As such there is little pressure on other operators to put forward competing offers beyond the industry’s basic voluntary measures.  As the Bill is currently drafted there is no guarantee that landowners will receive compensation for the infringement of their property rights.

I believe that drilling locations for fracking should be chosen carefully to minimise disruption to communities, and that the activity should be strictly regulated.  I support the Government’s new presumption against fracking in National Parks.

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