Planning Permissions and Unauthorised Developments

Motion made, and Question proposed, That this House do now adjourn.—(Michael Tomlinson.)

Speculation about how long I might speak for is rife in the Tea Room. I have been informed by the Government Whips Office that I could take almost three hours with my speech. Tempting though that is, I reassure the House that I will not detain it for as long as that—although I acknowledge that that is a shame.

This debate is a follow-up to the ten-minute rule Bill that I introduced to the House last autumn, which sought to make unauthorised development an offence and to prohibit retrospective planning applications. Sadly, there was insufficient parliamentary time for the Bill to proceed, but the problems with planning enforcements remain.

What is the problem? Rogue developers regularly exploit loopholes in our planning system to build unauthorised developments without planning permission. Sadly, they are getting away with it. Under the current planning rules, development without permission is generally not a criminal offence, whereas failing to comply with enforcement action is.

Local authorities have a range of enforcement powers in their arsenals. Enforcement notices can be issued and, at the extreme end, require demolition and restoration. If they are upheld, there can be a fine of up to £20,000 on summary conviction or an unlimited fine on indictment under the Town and Country Planning Act 1990. Other measures, such as contravention or stop notices, can be used depending on the circumstances.

Elements of the Localism Act 2011 made changes to the planning system, notably by removing an applicant’s right to use two separate defences in a single case. In 2015, the then Minister, my right hon. Friend the Member for Great Yarmouth (Brandon Lewis), outlined a policy to make intentional unauthorised development a material consideration for all applications, including retrospective ones.

The Police, Crime, Sentencing and Courts Bill proposes a new offence for anyone who resides, or intends to reside, on land without permission and has caused, or is likely to cause, damage. The proposals are welcome, but the enforcement action I have outlined comes at a high cost to local authorities. It can take years to restore some sites because of the lengthy appeal processes involved. In any event, many rogue developers are eventually granted retrospective planning permission.

The planning portal goes as far as to state that in respect of breaches, local authorities

“often permit a retrospective application where planning permission has not been sought.”

Even when local authorities do not, the unauthorised development is often at such an advanced stage that the site is never fully restored. When such unauthorised developments have taken place on green-belt land or open land, they can lead to significant and permanent damage to areas that our planning system is supposed to protect.

I did not intend to intervene but thank my hon. Friend and constituency neighbour for allowing me to do so. Not just developers but private individuals take liberties in this matter, certainly in my constituency of Beckenham.

My right hon. and gallant Friend is, of course, completely correct.

The consequence of the situation I have described is that many rogue developers bypass our planning system, gambling that enforcement action against them will be too slow and that, once built, their unauthorised development will be approved regardless. This is infuriating for the local residents who have to live alongside the developments. It is also frustrating for those who have played by the rules and sought planning permission themselves only to see others bypass the process.

My hon. Friend is making a fantastic speech. In Stoke-on-Trent North, Kidsgrove and Talke, Staffordshire Waste Recycling Centre now has to apply for retrospective planning permission at its McGuinness scrap yard site, where the company is digging up an old landfill site, causing a terrible stink across the north Staffordshire area. Nearby, people are suffering because of Walley’s Quarry in the neighbouring constituency of Newcastle-under-Lyme. Does my hon. Friend agree that not just certain developers but companies are taking liberties and creating distress for the surrounding residents?

I agree entirely with my hon. Friend. That is precisely the sort of abuse of the system that I ask the Government to address. Such abuses have a material and long-lasting impact on local people. When people are seen to get away with it, that just encourages more of the same.

I might, if my hon. Friend will allow me, seek to catch the Chair’s eye momentarily after his remarks. As he moves forward with this and as he, I hope, encourages the Government to take up his proposals, could he ensure that they include commercial operations? I have experience in my constituency; it is not just residential developers doing this, but commercial developers and businesses. I echo the points that have been made, but that must be a part of what he does.

I thank my right hon. Friend for the intervention and I agree entirely. The point is very well made and I can see the Minister on the Treasury Bench paying close attention. It is a subject that he and I have discussed on many occasions, and I look forward to hearing what he says in a moment.

The impact of all of this goes beyond local areas, as local authorities that pursue enforcement action against rogue developers have to spend significant sums of taxpayers’ cash on legal battles. When I introduced my Bill back in the autumn, I referred at length to a case in my constituency as an example of what can occur. That case is now subject to consideration by the courts, so I will not go into that detail again, save to make the observation that it has taken more than a year to get to this point and the end is still not in sight. However, it does not impact just my constituency—it is a national problem. Such incidents, as I have heard from my hon. Friends, are widespread.

In another example, in 2018, an unauthorised development was set up around Chelmsford on a Saturday morning, meaning that the planning enforcement team were able to visit the site only on the following Monday, by which time caravans, a digger and lorries carrying materials had all been brought on to the site in a pre-planned and co-ordinated attempt to build as much as possible so that it would become unviable for the council to dismantle the works. Neither of those incidents are easily resolvable. My hon. Friend the Member for Mole Valley (Sir Paul Beresford) has spoken in this House about procedural battles on development sites in Guildford and Leatherhead that have lasted between 14 and 18 years. Green belt land has been acquired and built over without planning permission in both locations.

So what solutions might there be? When I introduced my ten-minute rule Bill, I stated that I believed that the solution lay in legislative change to move unauthorised developments without permission from being a civil offence to being a criminal offence. I made the argument that that would prevent rogue developers from appealing enforcement action and block retrospective planning permission automatically. I stated that any change should not aim to remove certain permitted development rights for private households. Nor should it attempt to single out encampments by certain specific communities. Any fair planning system should recognise that developments could unintentionally stray from the approved plans when constructed. In order to avoid the danger of people who have inadvertently breached planning regulations being criminalised, for example, in cases where an extension is slightly too large or where someone implemented something erroneously, believing that they had permitted development rights, the Bill I drafted distinguished between more minor, accidental planning permission breaches, and egregious breaches where someone repeatedly attempted to bypass the planning system, or where the breach occurred on protected land such as the green belt. In such instances, the rules need to be flexible enough to consider the circumstances of the breach. However, I believe this should be balanced against the need to ensure the system is strong enough to close the loophole that rogue developers are currently exploiting.

I am very grateful to have caught your eye, Madam Deputy Speaker, and to have the opportunity to make a contribution to this slightly extended Adjournment debate. I promise my hon. Friend the Member for Orpington (Gareth Bacon) that it will be a brief one.

I have a dreadful situation in my constituency. Over the past 12 months, a local chalk pit on green-belt land, which has historically been a combination of an overflow for the local car dealers and a transfer site for local skip dealers, has been transformed by one operator—a local firm, NJB Recycling—into a full recycling centre without planning consent. It is now applying retrospectively for planning consent; I have opposed the application and hope that it will be turned down.

The experience of the past 12 months has highlighted an issue to which I hope the Minister will give some thought in discussion with his colleagues in the Department for Environment, Food and Rural Affairs. Not only is there an unlawful use of the site, and not only is the operator applying for retrospective consent—I absolutely agree with my hon. Friend that someone should not be allowed to set up a commercial operation without permission and get away with it—but the agencies involved do not have the powers to deal with a contravention of planning consent.

The facility is regulated by the Environment Agency, whose performance over the past 12 months has, I have to say, been lamentable. The site is causing massive noise nuisance to local residents; it is a few yards away from houses that are now being subjected to substantial noise all day long. We have had massive dust problems, and there have been huge traffic problems with the dramatic expansion in the use of the site. It is a shocking example of something that simply should not be able to happen.

Not only has the performance by the Environment Agency’s team been lamentable, but it has not used the powers that it has to try to restrain things. Frankly, it has not followed its own assessment of the scale of the problem: it carried out an independent assessment, found out that the operator was in breach and then failed to act on that breach. It has said all along that it cannot act to close down, or withdraw a permit from, an operator that is operating a site unlawfully, even though the operator has changed the nature of its work and is now operating in a way that is unlawful in planning terms.

It is a great pleasure to speak in this important Adjournment debate. I congratulate my hon. Friend the Member for Orpington (Gareth Bacon) on raising an important issue on behalf of his and all our constituents, as well as our colleagues and partners in local government.

If we want our country to have a planning system that is prepared for the challenges of the future, we need to keep the conversation going about how the system will work in practice. I admire my hon. Friend’s personal commitment to the issue. If I may say so, there is certainly nothing woke about this bloke, because last year he proposed several interesting changes to the enforcement regime in the private Member’s Bill to which he alluded. We have had some constructive conversations about those changes, and I look forward to further such conversations to determine what we can take forward together. This matter may not generate as huge a number of column inches as other touchstone issues of our day, but I assure the House and my hon. Friend that the Government share his interest in and commitment to improving planning enforcement in this country.

I also share the interest shown by my right hon. Friend the Member for Epsom and Ewell (Chris Grayling), and I am concerned by the ongoing issue he faces. He will appreciate that I should not say too much more about it because of my quasi-judicial role, but I am certainly happy to discuss his worries about inter-departmental connectivity—let us call it that—and how agencies work together to effect appropriate planning decisions. He will know that we propose to bring forward planning reform, and I will certainly talk to my colleagues at DEFRA and engage him in those conversations. He is a distinguished Member of this House with a distinguished ministerial career, and in his 21 years here he has been a doughty campaigner on his constituents’ behalf. He has demonstrated that again this afternoon.

It goes without saying that the overwhelming majority of people across the country will need to engage with our planning system only when they are looking for planning permission prior to any works they may want done. While a small number of works will inevitably slip through the net, with people accidentally undertaking work without realising it requires planning permission—most people, as my hon. Friend the Member for Orpington rightly said, want to play by the rules—some will try to bend the rules to their will by gambling that planning permission will be granted retrospectively.

That gamble should never be allowed to pay off. It shows contempt for the rules that hold the system together, and it is unacceptable to every person who approaches the planning regime with good faith. When the system is gamed, local authorities have an array of powers—my hon. Friend alluded to some of them—in their enforcement arsenal, including strong financial penalties for non-compliance. Councils can step in to suspend works on a site so that proper investigation can take place. Again, if an individual or companies try to subvert that process, they can find themselves facing an unlimited fine for non-compliance.

In support of my hon. Friend the Member for Orpington (Gareth Bacon), a close constituency neighbour, he and I both have a problem, because people gamble with the weekend. We must give local authorities the power to take immediate action when people start their work, as my hon. Friend said, on a Friday evening or Saturday morning and then work through the weekend before anyone can actually take enforcement action. Such action should be almost immediate, and the police should be given the power to evict people before they start building too much.

My right hon. Friend makes a practical point, and I will come on to say something about the support we want to give local authorities so that they are better able to enforce the rules. It is all very well regulating, but regulations are only as good as the enforcement capability of those charges with that responsibility—[Interruption.] I note, as I look to my right, that my hon. Friend the Member for Stoke-on-Trent North (Jonathan Gullis) appears to be about to get to his feet, so I shall pre-empt him by sitting down.

I thank my right hon. Friend. He will know that, when it comes to giving local authorities more powers, it is about tackling not just retrospective planning, but those who own buildings, especially heritage buildings, that they are allowing to fall into a state of disrepair by being either a rogue landowner or an absentee property owner. I have introduced the Planning (Proper Maintenance of Land) Bill—not a very sexy title, I accept—which seeks to increase the fines in section 216 of the Town and Country Planning Act 1990. I have obviously been lobbying the Minister relentlessly, and I could not waste this opportunity to ask him to confirm at the Dispatch Box that, like that of my hon. Friend the Member for Orpington (Gareth Bacon), my ten-minute rule Bill is certainly being considered as part of the planning reforms.

I am never knowingly under-lobbied by my hon. Friend, and I salute not only his indefatigability in campaigning on this issue, but the elasticity with which he has shoehorned it into this particular debate. Let me assure him that the matter he raises is important, and we do want to address his concerns effectively when we bring forward our planning reform. I am sure we will be talking further with him about those matters.

I have said that councils can step in to suspend works and enforcement notices can be served, but if a council needs to go nuclear, it can apply for a planning injunction via a court order that would restrain any actual or expected breach of planning controls. The outcome of this sort of process can lead to jail time, assets being seized and fines being handed down.

The Minister is completely correct in what he has just outlined. The problem, however, is that this all takes time. It takes time to get a court appearance and it takes time for the injunction to be issued. Injunctions can very often be ignored, and further legal action has to take place to issue stop notices or other such action. All the while, development continues and the landscape continues to get scarred, local residents continue to get very anxious, and more time and money is being spent by the council. Would the Minister acknowledge that this is in fact part of the problem, and would he concede that this could be looked at in future, potentially as part of the planning Bill when it comes to the House?

I appreciate and recognise my hon. Friend’s concern. We do want to ensure that the innocent are not caught up in a regime that pursues the guilty, but we also want to ensure that the system is more speedy and has much greater deterrent effects on those who attempt to gamble with the law, those who attempt to bend it and, indeed, those who choose to break it.

We all recognise that the reason why we need the important debate my hon. Friend has brought to the House today is that we believe—we genuinely believe—that there is more that we can do, and there is more that we shall do. As everyone in the House will appreciate, we are committed to improving our planning system and making it one that delivers better outcomes for people in all parts of the country. It is going to be the bedrock of one of our principal missions, which is to level up the United Kingdom and to help revive and regenerate those areas that have long felt forgotten by politicians of all stripes in Westminster. In our constituencies, however affluent they may be on the face of it, we all have areas of our constituency where there is deprivation and where residents feel left behind, and we have to fix that.

When it comes to pulling the handbrake on unauthorised developments in their areas, we want to make it even easier for local planning authorities to step in and make sure that retrospective planning permission is not exploited by those bent on gaming the system. Let me be clear: retrospective applications are only for individuals or businesses that have made a genuine mistake. As my hon. Friend alluded to, the enforcement process needs to work better. We make that happen by closing loopholes, and strengthening the existing powers and penalties at our disposal.

As we modernise our planning system in England, we plan to engage with communities and key stakeholders throughout the planning process. Our ambition is to ensure that the outdated system, which is essentially a relic of the post-war period, is now made fit for the 21st century, with proper digitisation of applications so that residents can easily see the proposed development in their area at the touch of their smartphone screen. As my hon. Friend and others have said, we have all seen and read about egregious examples of people bending the rules on retrospective planning applications. My hon. Friend mentioned the situation of the caravan park in Chelmsford, and my right hon. Friend the Member for Epsom and Ewell mentioned the situation faced by his constituents in Epsom. We see such challenges from individuals and commercial organisations up and down the country.

The simple idea behind retrospective applications is that they give people who have failed to seek planning permission prior to building a structure a fair chance to get the necessary approvals.