War with the Wullies
Every government needs an Eric Pickles: a human wrecking ball who will swing wherever he’s told. Every government needs a man or woman of crashing insensitivity, devoid of empathy or imagination, unaware of the value of what he or she has been instructed to demolish. Every government requires someone, in the words of Alan Clarke, a more stylish exponent of this psychopathic school of government, who is prepared to be “economical with the actualité”(1).
Pickles’s mandate is to break the planning system. He appears to possess no idea of why people might object to his proposals, or of what it is about England’s towns and countryside that might be worth defending. He is also prepared to take a pickaxe to the truth. Earlier this month, his department published a webpage that, with an evident snigger, it called a “myth buster”(2). Of the many falsehoods this document contains, the most brazen is its claim that the proposed new planning framework “puts local people in the driving seat of decision making in the planning system. Communities will have the power to decide the areas they wish to see developed and those to be protected”.
It is true that local people, through Neighbourhood Development Orders and Community Right to Build Orders, will be able to grant planning permission for development that is not envisaged in the council’s local plan(3). But they’ve been given no powers to prevent development which is contained in the plan – or even development which isn’t. The framework’s new presumption in favour of sustainable development – by which the government means all development except coal-mining(4) – will make it almost impossible to resist a developer’s proposal. It takes a system which is already unfair, unbalanced and undemocratic and makes it even worse.
As my home town is now discovering, the rules in both England and Wales are already stacked against local people. Last year Tesco applied to build a superstore – massive beside the scale of the town – on the edge of Machynlleth in mid-Wales. Local people poured everything they had into contesting its application. Just before the county council was to make its decision, Tesco withdrew. Now it has resubmitted the scheme, and once more we will have to find the time and resources to resist it(5).
We know that the council, like all councils, is terrified of turning Tesco down. As the chair of the planning committee in Bristol, considering Tesco’s application in Stokes Croft, warned, “at the back of my mind always is the fact that if we were to lose an appeal against a refusal then it’s the council tax payers of Bristol who end up … paying”(6). If a council refuses planning permission, the developer can appeal to the government. Whoever loses the appeal has to pay costs amounting to hundreds of thousands of pounds. Tesco makes that money in the blink of an eye. But if the council loses, it will have to cut yet another public service. Even as it stands, the planning system amounts to authorised blackmail.
And if the developer loses? That’s just a temporary setback. It can wait two years then submit an identical plan, or substantially change the plan and submit it immediately(7). This war of attrition will go on until it grinds down the resistance of local people or scares the council into submission. Sheringham, a small town in Norfolk, held out for 14 years. The people made it clear repeatedly that they did not want Tesco to move in, but in October last year the council broke(8). There is no choice: eventually the supermarket will land on you whether you want it or not. This is a totalitarian form of capitalism.
While developers have the right of appeal, communities do not. The only power objectors possess is to apply to the high court for judicial review. This is what the people of Bristol have done, in seeking to contest the Tesco plan in Stokes Croft. Of 500 local people surveyed, 96% were against it(9). The council received over 2500 cards objecting to the development, and two notes in favour(10). Yet it granted permission. You cannot seek judicial review on planning grounds; only on the grounds that the council did not follow correct procedure.
As the Stokes Croft objectors have found, getting to court is a massive, stressful and shattering business. At first the judge refused their application(11). The objectors had a few days in which to appeal this refusal. They had to find a barrister to take the case and prepare for a long and exhausting hearing, whose only purpose was to obtain permission to proceed. They persuaded the judge that their claim (that the city council was misled by its officers) was worth considering, and the case begins in November. But the court refused their application for a protective costs order, which means that the right to be heard might cost them hundreds of thousands. They will spend months fighting this case. If they win, Tesco can simply re-apply, and the fight starts all over again.
In other words, the planning system is in urgent need of reform – in the opposite direction to the one the government is proposing. In opposition both the Conservatives (in their document Open Source Planning(12)) and the Liberal Democrats (in their manifesto(13)) promised to give communities a right of appeal against planning decisions. The Conservatives also promised (in Blueprint for a Green Economy(14)) to limit developers’ rights of appeal. All dust.
There’s no mystery about why the reform is going in this direction. As the planning expert Andrew Lainton reveals, the government’s presumption in favour of development was first proposed by Policy Exchange(15,16,17), one of the “thinktanks” which refuse to reveal their sources of funding and which look to me like corporate lobby groups(18). The foreword to the Policy Exchange report was written by Lord Wolfson, a Conservative peer who also happens to be chief executive of Next, which builds out-of-town shopping sheds.
The Telegraph, which has a lately become a surprising champion of power to the people, has revealed a series of stark conflicts of interest. It has uncovered a new cash for access scandal, in which property developers pay £2,500 to the Conservative party to make their views known to members of the government(19). It reminds us that the co-author of the new planning framework happens to direct a consultancy which works for ASDA and other big developers(20). It has published a leaked email from the British Property Federation, which shows that the planning minister, Greg Clark, has secretly urged the BPF to send letters to the press and to lobby David Cameron(21). The government’s objectives, the email says, “definitely align with ours”.
The Wullies – build Whatever You Like, Wherever You Like – have their hand in the glove of government. They have portrayed this as a fight between green and brown, town and country, growth and stagnation. It’s simpler than that. It’s a fight between corporate power and democracy.
3. See Paragraph 50. http://www.communities.gov.uk/documents/planningandbuilding/pdf/1951811.pdf
4. This is the only form of development which the NPPF identifies as “unsustainable”. See Para 106.
5. The URL for the plans is here, but you’ll need to go through the site from the front page to get there. Application number P/2011/0920. http://planning.powys.gov.uk/Planning/lg/GFPlanningDocuments.page
10. In June 2011, Bristol City Council told the anti-Tesco campaign that it had received two notes in support. Claire Milne, by email, 24.9.2011.
11. High Court of Justice, Queens Bench Division, 20th April 2011. Ref: CO/2157/2011
12. “We will make the system symmetrical by allowing appeals against local planning decisions from local residents, as well as from developers”. http://www.conservatives.com/~/media/Files/Green%20Papers/planning-green-paper.ashx
13. ““We will create a third-party right of appeal in cases where planning decisions go against locally agreed plans.” http://network.libdems.org.uk/manifesto2010/libdem_manifesto_2010.pdf
14. “What we consider to be unnecessary is the retention of appeal rights that derive
from before the plan-led system, where decisions must be made in accordance with the development plan “unless material considerations indicate otherwise”. Whereas appeals are justified where applications are refused although in accordance with policy, when they run counter to adopted policies, a right of appeal seems unnecessary. Indeed, the application is itself a kind of appeal against policies to which the applicant will have had access before making the application and may well have had a chance to influence before adoption. Curtailing this right would remove an unnecessary burden
on the planning Inspectorate and local authorities; encourage greater engagement by developers with the LDF process; and increase the likelihood of proposals being submitted that accord with policies in the development plan.” http://www.conservatives.com/pdf/blueprintforagreeneconomy.pdf