Planning Green Paper - A response 3/02

Personal introduction

I welcome most of the planned reforms and almost all of the proposals in the Green Paper. I 'discovered' the planning system 18 months ago when I began my attempts to save the first of the battles of 1066 at Fulford, just 24 days prior to the clash at Hastings, from developers.

The fact that this major battle was forgotten in the upheavals following the defeat of the national army at Hastings has meant that this key event in our national heritage has been ignored. This is my first encounter with the planning system and my first involvement as a 'third party' in any such public debate.

As my perspective is limited, I have not completed the questionnaire which offers no scope to express my response but have confined my comments to the areas where I have experience. These are the views of a citizen alarmed with the existing system.

The shortcomings of the present system are encapsulated in the advice I have received from 2 council officers and several heritage bodies not to waste my time as there is no way the existing planning process will allow me to re-route the road and save the battlefield.

Summary of proposals

1. Planning applications must provide 2 printed copies or an electronic version of every report or document referenced in their application.

2. Factual errors in an application must be amended within a short time or the application timetable suspended and the documents withdrawn form consideration by officers and the public.

3. Financial sanctions should be provided for making false claims. These would apply to everybody, including 3rd parties, commenting on an application.

4. All papers from officers and 3rd parties, subject to the sanctions for accuracy, should be lodged with the planning application for inspection by the public. The planning officer should have the right to exclude material which is inaccurate or intemperate.

5. The authors of planning documents should be given protection from the threat of civil actions from developers.

6. Planning officers must be under an obligation to publish their opinions. Alternatively, the advisory role in the operation of the planning process should be removed from local authorities to independent organisations.

7. Statutory Bodies should be charged to deliver is an honest, expert appraisal for applicants, planners and the public. Their reports should be immune to legal challenge. The only method to challenge such expert opinions should be by providing evidence to the appropriate panel and asking for a review.

8. Confidence and certainty in the planning process are not served by imposing a universal timetable. The timescale should be set by planning officers after the initial consultations with developers, statutory authorities and 3rd parties.

9. The proposal to allow some developments under the local plan to proceed without any planning process can only be supported if the local plan has itself undergone the full planning process.

10. Whenever the local authority is in the position of applicant and judge, an independent 3rd party must be introduced into the process

The focus on speed

Much of the report deals with the need to improve the speed of the planning process. The timescale is attractively easy to measure. However, speed does not address the failures of the planning system listed in the green paper. Speed is not the right measure of the success of any reformed planning system.

The imposition of target times actually undermines the confidence in the process. I speak as an interested 3rd party. I have discovered just how long it takes to track down or extract information to allow informed decisions.

Perhaps the most dangerous proposal is to designate planning areas where no consent will be required (5.36). This proposal can only be supported if the local plan has undergone the full planning process. It is implied, but never stated, that the proposed local plans will go through the same rigorous procedures. The procedures attached to agreeing a strategic plan are very different for those applied to a specific application.

One often reads that a site is available with outline planning consent for a stated purpose. If the intention is to extend this to give zones detailed planning consent then the full planning process must be undertaken and detailed parameters set for any future development. However, the local authority must not be in the position as applicant and judge. The site must have a 3rd party promoter to avoid conflict.

Access to information

There are many useful suggestions to improve timely public access to information on planning applications. I would like to propose an additional provision based on my personal experience.

It has proved extremely difficult, and expensive, to obtain the necessary information. A simple solution would be to require every application to include 2 copies of every report or document referred to in the application, one for planning officers and one for public deposit. Many of these documents are reports commissioned by government agencies and not in general circulation of fully in the public domain. If any documents are quoted the applicant should make them available for inspection. There might be a need to look at the copyright of such reports if they are to be published and fair-use clearly defined.

After 16 months I have managed to see only 2 of about 20 documents I have asked for. In both cases the conclusions I have drawn contradict the claims of the applicant. I have no way of knowing if this is exceptional but my proposal would ensure that applicants were rigorous in the claims they made. (I attach one example of such a commentary I prepared to illustrate my point.)

I have prepared several documents shedding light on aspects of the Germany Beck application which remain undistributed. I would like to see commentaries prepared by interested parties placed alongside those of the applicant. This would be a simple provision which the new technology will enhance.

Accuracy and Sanctions

My experience has shown that applicants can make inaccurate claims which are hard for the public to challenge (See attached paper). It is alarming that major factual errors do not have to be corrected in an application.

In my example, it is now accepted that the route of the access road will go across the Battle of Fulford site. However, the application still contains 2 statements that this is not so. There are half a dozen similar, significant errors plus a number of defective engineering drawings. It is alarming that almost a year after these were noted, the applications remains un-amended. It is unacceptable that there is no obligation on the applicant to correct these errors. Since the evidence to challenge false claims is not made available, one might believe that this is a cynical exploitation of a planning system loophole.

My proposal is that factual errors must be amended within a short time or the application timetable will be suspended and the documents withdrawn from consideration by officers and the public. I would like to see financial sanctions provided for making false claims. These provisions would apply to everybody, including 3rd parties, commenting on an application.

However, it might be necessary to give 3rd party documents some protection from the threat of civil libel claims or consequential loss actions. Many might be deterred from making a protest by a threat from the developer. My proposal is that the planning officer should have the right to exclude material which is inaccurate or intemperate.

Third Part rights

It is hard to accept that matters are open to real debate about the rights of 3rd parties when one reads 'We cannot accept that prospect'. This follows a questionable list of the perils 3rd parties might introduce to the planning process (6.22). The vital role of 3rd parties is consistently underrated throughout the report. They cannot be excluded from the appeals process on the spurious grounds cited in the green paper.

There is a trade off between the improved decision speed proposed throughout the report and rights of appeal. If the planning process is to be hurried then there must be scope for 3rd parties to appeal. Only if the process is taken at a pace appropriate to the particular situation, agreed by 3rd parties, can the right to appeal be justly withheld.

If the right to appeal was given to 3rd parties, it might be acceptable to speed up the planning process. I am reluctant to suggest how appeals should be screened but the model of Small Claims Court has proved an effective way of delivering justice in other commercial matters and its rules could be adopted.

The Green Paper notes on several occasions that the Councillors are untrained. However I have been alarmed to find that elected officials can, and do, instruct or overrule their officers in planning matters. My particular concern is that this does not happen in public. Both the planning officers and 3rd parties must have a voice.

The Nolan Report on standards in public life was very concerned that local democracy does not perform well in planning matters. The proposed set of parallel reforms of the Planning Obligation System will improve matters.


Statutory Authorities

I have had dealings with English Heritage and English Nature. The former, thanks to the support of several well known historians, will consider the status of the Battle of Fulford on 28th March 02. It has taken many months to reach this position. The delay has not been caused by the meeting cycle as the Green Papers suggests. The problem has been the time taken to assemble the evidence and support among historians for the case.

However it is even more alarming to discover that the panel at English Heritage who will consider the case for the Battle of Fulford will be especially 'careful' when listing some battle sites because of the risk of becoming entangled in planning appeals. The situation needs clarification.

English Heritage should not feel that its judgements will place the organisation at risk. The notion that expert opinion of Statutory Authorities should face cross-examination at an appeal is frankly absurd. They should be charged to deliver is an honest, expert written appraisal for applicants, planners and the public and their reports should be given immunity.

I am also struck by the time it takes for English Nature to deliver opinions. This is not due to any failure on their part but to the processes of nature and the seasons. It might take several years plus the necessary resources to provide the answers posed by a planning application. This must inform the setting of any timetable.

Post script

I have made a separate submission in response to the planning obligations Green Paper. The increased openness proposed would greatly assist my campaign. At present, the developers, their agents, the key Councillors and until recently planning officers were claiming that the access road had to cover half the battle site because of the various, unspecified costs made this short cut the only economically viable route. As no one has access to the figures, nobody can challenge the opinion.

I would also like to set on record that I believe that York City Council have been operating the planning system with as much openness as possible within the present rules. I would like to record my appreciation for the assistance afforded me by many of its officers who are placed in a difficult position by the present planning systems.

Charles Jones

12 March 2002