Why developers are worried about a new bill aiming to limit planning appeals

Commentators say a private members' bill aiming to strengthen neighbourhood plans has a slim chance of success, but it has still raised concerns in the development sector.

Parliament: new bill intended to restrict planning appeals
Parliament: new bill intended to restrict planning appeals

John Howell made his intent clear while standing in parliament to table his private members’ bill. On the afternoon of 4 December, the MP for Henley, one of the architects of the neighbourhood planning system, told the House of Commons: "I want to reassure... communities that neighbourhood plans are fundamental documents and that the effort made in producing them is worthwhile." The Planning (Appeals) Bill proposes that applications that are refused because they are contrary to a made neighbourhood plan should be ineligible for appeal, if there is also an adopted local plan and an adequate housing land supply (see panel below for more details).  

Unsurprisingly, neighbourhood planning consultants were positive about Howell’s move. "Neighbourhood planners are looking to ensure that plans are being followed through by local authorities, so anything that can strengthen that will be extremely welcome," said consultant Tony Burton.  

However, Claire Dutch, head of planning at law firm Hogan Lovells, warned that the bill, with its requirement for an application's conformity with adopted neighbourhood and local plans, could bar many legitimate appeals. "I can’t remember when we last acted on a scheme when it ticked every single requirement in the local plan," she said. "It’s very unusual for an application to absolutely conform with everything 100 per cent. This is what we call ‘the planning balance’." Dutch said planning involves weighing up an application’s merits and shortcomings then coming to a judgement – something she said the bill fails to recognise. "It’s predicated on a misunderstanding of how the planning process works. It’s not a black-and-white, tick-box exercise; it’s shades of grey."  

The point was echoed by Gary Kirk, managing director at neighbourhood plan consultancy Your Locale, who said the bill did not appear to take account of the complex value judgements involved in planning. While he welcomed the bill's efforts to give communities confidence in neighbourhood planning, he added: "Of course, it’s not going to be as straightforward as that". Kirk said he thought the thought the bill's passage through Parliament would be challenging, while Dutch predicted it would likely fall apart under scrutiny. "I’d be surprised, once it’s debated, if it gets anywhere," she said. 

Only a handful of private members bills ever become legislation. A notable exception is a 2015 bill tabled by Tory backbench MP Richard Bacon requiring councils to identify sites for self-builders. According to a House of Commons briefing paper, 163 private members bills were introduced in the 2016-17 parliamentary session but only eight gained royal assent. David Scane, associate partner at Newgate Communications, said he thought royal assent would be unlikely, but described Howell’s likely motivation. "Part of it comes from being very passionate about planning, but it also doesn’t hurt next time you’re standing for election to say to your constituents, ‘I’ve taken this fight to Westminster’," he said. 

Nonetheless, there may be reasons to pay close attention to the proposals, said Scane, not least because the bill was supported by Sir Oliver Letwin, whose government-commissioned report on build-out rates was published in October. "Having someone like Sir Oliver Letwin backing it raises the stakes slightly," said Scane. "Here's someone who’s just undertaken a major review of housing policy, which will at least get the Ministry of Housing, Communities and Local Government interested." 

Scane also said the measures proposed by Howell’s bill, such as the caveat that appeals will be allowed where there is no adequate housing land supply, could be difficult to make work in practice. "The five-year land supply can only really be tested at appeal. If a local authority says it has a five-year land supply, I don’t understand at what point a developer than has a chance to challenge that assertion." 


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