No. NC52, to move the following Clause:—

'In section 73A (Planning permission for development already carried out) of the principal Act after subsection (2) there is inserted—

''(2A) An application for planning permission made to a local planning authority under subsection (1) shall be assigned as a retrospective application.

(2B) In considering a retrospective application the local planning authority shall—

(a) consider the application as if work on it had not begun;

(b) have no regard to any financial loss involved to the developers or others should the application not be approved.

(2C) If planning permission is not granted the local planning authority may require that the site be restored so far as practicable to the state that it was in before development commenced.

(2D) In determining any appeal from a refusal to grant planning permission in respect of a retrospective application, the Secretary of State shall be bound by subsections (2A) and (2B) above.''.'.—[Mr. Andrew Turner.]

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

There are few issues that more irritate and concern local residents than the belief that if one builds something, one will get permission afterwards. That view is not shared by people who build something and apply for permission afterwards, but it is a widespread perception that planning authorities seldom or never refuse retrospective planning permission.

I am sorry that I cannot give the Minister more detailed information about my constituency now; I am sure that it would encourage him to walk blindfold—or not blindfold, even—round the Isle of Wight. In my constituency we suffer a regular flow of retrospective applications. So much so, that I have come under some pressure—I would not be surprised if other hon. Members have, too—to make development without permission against the law. Some people wish us to use the Bill as an opportunity to make it illegal to develop land without planning permission. I do not know whether the Minister has come under such pressure,

but I receive a regular flow of letters from constituents asking why that is legal.

We have to adjust the balance of perception in the public mind, without going so far as to make it illegal to develop without permission. I have therefore drafted a proposal that would strengthen the power of the local authority, and planning officers, and enable them to say, ''The law says that we do not have to worry about the cost to the developer of remedying or demolishing a development that has taken place without permission.''

Some developers overstep the mark. During an earlier sitting I gave the example of Persimmon Homes' development at Carisbrooke Park. That development has been through at least 26 different applications, which have changed the layout, the size of the buildings, the heights of the buildings, and in some cases the datum ground level. It has been made almost impossible for members of the public to keep track of the applications, or find out whether the developer is developing in line with the permissions given. Furthermore, many of those applications have been retrospective.

If a major developer such as Persimmon Homes is incapable of developing without putting in retrospective applications, I wonder what defences planning authorities and members of the public have. I suspect that developers do that on purpose. They use computers to find the layout that would achieve the maximum possible density—that is in line with Government policy, and I do not blame them for doing it—but then the people who are laying the foundations, or putting bricks and mortar on top of the foundations, gently shift an inch or two, or a foot or two, always towards the end where the development started, so there will be a slightly bigger space at the end of the development, in which a few more houses or units can be accommodated.

For example, a constituent of mine who lives in a bungalow in West Mill road in Carisbrooke found out that a wall would be going up at the foot of his garden—a blank wall, so there was no question of overlooking. Having looked at the plans, he had thought that the wall would be behind the garage adjoining the next bungalow, but because the developer had shifted all the buildings on the site to the west, the blank wall also miraculously moved to the west and ended up at the foot of his garden. Members of the public are enormously irritated when the planning committee, or sometimes the planning officers, feel that they are marginal and have no power to reject amended applications. Although it may not be the law, as members of the public see the situation, the cost of demolishing the house that has been built may seem excessive in relation to both the benefit to the individual and the planning improvement of the area.

Another example is an application for motocross at Arreton Cross in my constituency, where the works were begun on agricultural land before the application was lodged. The planners advised that an application was necessary, yet the works continued after it was lodged and before the planning committee determined it. Again, the people in the village of Arreton feared

that the planners had given the nod to the application. They also feared that the works necessary for motocross to take place on agricultural land—bulldozing the land, creating ramps, bumps, dips and hollows, and in some cases significantly changing the morphology of the area—were impossible to reverse, so that the planners therefore had little choice.

The purpose of the new clause is, first, to describe what a retrospective application is, which is detailed in proposed new subsection (2A)—I do not know why I used the phrase, ''be assigned as'', instead of, ''be designated as'', which is what I meant. Secondly, proposed new subsection (2B) makes it clear that the planning committee would be obliged to

''consider the application as if work on it had not begun,''

and,

''have no regard to any financial loss involved''.

The Minister might regard proposed new subsection (2C) as slightly more controversial, because it would allow the planning authority to

''require that the site be restored''.

However, that is only a permissive power, not a duty, for the local authority. The provisions would also allow the Secretary of State to do the same if an appeal for permission were made to him.

That is a sufficiently clear introduction to the new clause. The problem is the perception of, and public confidence in, the planning system, rather than the need for a change in the law to establish a different procedure. It is important that the public have confidence in the planning system, and it is particularly important that members of planning committees can see the words that give them a power, and understand that they have that power when they perform their difficult functions.

I apologise to you, Mr. Pike, and to the Committee, for not being present when my hon. Friend started to introduce the new clause. Some of us were outside discussing matters to do with the Committee through the usual channels.

My hon. Friend's new clause would strengthen the expectation that retrospective planning applications would normally be refused. On Tuesday, the Under-Secretary of State, Office of the Deputy Prime Minister, the hon. Member for Pontefract and Castleford (Yvette Cooper) stated:

''The success rate for retrospective applications is slightly lower at 85 per cent. than that of 88 per cent. for applications submitted before the development has taken place.''

I replied that

''an 85 per cent. success rate for something that is otherwise unlawful seems to me to be a very high percentage.''—[Official Report, Standing Committee A, 21 October 2003; c. 247.]

We should move towards a situation in which retrospective planning applications are not automatically granted; in fact, the expectation should be that they would not be granted. In the Cotswolds and elsewhere, canny developers carry out developments that they know perfectly well would

not get planning permission, and once they are built, the planning committee is more sympathetic because the development exists and it would be difficult to take it down.

I give as an example the very first constituency case with which I dealt. A constituent had built an entire house without having the materials approved by the local planning authority, which was a condition of the planning application. I supported the local authority in telling him that he had to pull the house down. He did so, and rebuilt it with proper Cotswold stone, as had been required.

Legislation to that effect should be on the statute book. Local planning authorities should get tougher with people who carry out unauthorised developments. Apart from anything else, there would be less need for retrospective planning applications, because people would not carry out such developments if they knew that sanctions existed that could be enforced by the local planning authority. I have a great deal of sympathy with the new clause, and hope that the Minister will, too.

The new clause would require local planning authorities and the Secretary of State to consider retrospective planning applications as if the development had not been undertaken, and to take no account at all of any of the circumstances arising from the fact that it had, including financial consequences to the developer, the home owner or anyone else.

I have a great deal of sympathy for the sentiment behind the new clause. Clearly, the planning system must be fair. It must not unfairly reward people or developers who play the system—so I have considered the new clause very carefully. I understand the points that hon. Members have made, but I do not believe that it would be advisable to legislate in that way.

The new clause would require local planning authorities and the Secretary of State to ignore material considerations. That would be contrary to section 70 of the Town and Country Planning Act 1990, which requires regard to be had to

''the development plan, so far as material to the application, and to any other material considerations.''

It also would be contrary to the principles of administrative law, which require a decision maker to have regard to all relevant matters. In other words, the new clause would not allow the Secretary of State or local planning authorities to take account in any way of the practical or personal circumstances that might arise.

Hon. Members may argue that the Secretary of State and local planning authorities should not take account of such circumstances. After all, those circumstances would not have existed if there had been a prior planning permission application. There may be many cases in which, for reasons similar to those outlined by hon. Members, I would agree that personal and practical circumstances should not be given particular weight in the decision. Developers might be playing the system, or there might be other circumstances.

It causes considerable difficulty, however, to argue that it should never be possible to take account of personal circumstances connected with the development. The ability to take into account those material circumstances allows decisions to be proportionate. For example, telling someone who has nowhere else to go to knock down their home because it was built half a metre higher than planning permission allowed, when they could have used permitted development rights to do the same work later on anyway, would be considered disproportionate.

I recognise what hon. Members are trying to achieve. All communities would feel that people who undertake unauthorised development should not thereby be placed in a more favourable position than those who seek planning permission in advance. They should be made aware that there are obstacles and dangers involved in developing first and seeking permission later.

I set out the figures in discussions of earlier clauses. The success rate of 85 per cent. for retrospective applications is, as the hon. Member for Cotswold said, slightly lower than the success rate of 88 per cent. for applications submitted before the development has taken place. For major developments, the success rate for retrospective applications drops to 76 per cent. It is also worth taking into account the fact that retrospective planning applications make up just over 3 per cent. of the total number of applications processed.

We must resist the new clause for the reasons that I explained in relation to the material circumstances. However, I would like to consider retrospective planning applications—the 3 per cent.—further as part of our work on the enforcement review. I want to consider the nature of the problem and how big it is. There will be cases in which applications are retrospective because somebody simply did not realise that they needed planning permission, where the development is perfectly sensible, and planning permission would have been given normally—and it is right that it should still be given.

It is also right to encourage retrospective planning applications to be made. Once a retrospective application is made, it allows local authorities to impose conditions on the development and brings it within the planning system. If someone says, ''Well, we're not even going to bother putting in a retrospective planning permission application,'' there are no restrictions, and the only alternative is for local planning authorities to serve enforcement notices and go down the enforcement route in an attempt to argue at appeal that conditions ought to be imposed. That route can be far more time-consuming and costly to the local authority than simply inviting a retrospective application. We do not therefore want to discourage retrospective planning applications—but I do want to go a bit deeper into the nature of retrospective planning permission to assess how great the problem is.

I want to raise two points. First, if 85 per cent. of retrospective planning permission applications are successful, that proves the point made by my hon. Friend the Member for Isle of Wight, who

said that far too many of them are automatically granted. Secondly, if a development is clearly against the plan, retrospective planning permission could be applied for and refused, that decision could be appealed against, enforcement action could be taken and that could be appealed against, then a judicial review could take place. Some persistent developers can use the system and through that mechanism prolong for a very long time the period before they have to knock the building down. In some cases, that period is not months but years.

The hon. Gentleman's second point is about the nature of the enforcement system and the time it takes. That is certainly something we are considering as part of the enforcement review. It is not necessarily specific to retrospective planning permission or to the new clause; it is a broader point about the speed of enforcement, and I do have some sympathy with it.

I do not think that we can simply argue that because 85 per cent. of applications receive permission, that means that they are automatically given permission because they are retrospective. I want to look at the figures more closely. They may well include many cases of minor applications, for example, when people did not realise that they needed planning permission for the work. I shall look more closely at that, and at the community perception that such matters are not handled fairly. It is important that the planning system is not only fair, but seen to be fair. I recognise the issues that hon. Members have raised, but the problem is not simple to resolve, because many different kinds of case are being picked up.

The Minister has been helpful, and says that she wants to examine such matters. Does she expect to be able to do so during the Bill's passage, before it leaves the other place?

As I said at an earlier stage, we had hoped to respond to the enforcement review before the end of the year. I can undertake to write to the hon. Gentleman and let him know how far it will be possible to examine the matter, and the time scale over which I will be able to do so. I am responding to the concerns that he has raised in this debate and have not had a chance to discuss them further with officials, so I simply do not know how far it will be possible to consider them, or what time scale will be needed. I shall write to tell him what sort of matters we shall look into and what time scale will be involved, but I cannot give him a more detailed answer at this stage. On that basis, I ask him to withdraw the new clause.

I am grateful to the Minister for those words and for her promise to write to me. I hope that if she expects to do so by the end of this year, which may not accord entirely with the Government's timetable, it will be before the Bill leaves the other place.

My first point, which I make quite strongly, is that the new clause in no way anticipates that every retrospective application will be turned down. However, it certainly builds up the expectation that retrospective applications will be dealt with on the same basis as other applications, which I think is what

most people would like, in the interests of fairness. As the Minister said, people who play the system should not be rewarded. I do not believe that all retrospective applications should be turned down, and many of the reasons that the Minister gave are excellent reasons why some should be granted. However, it would not be fair, for example, to grant retrospective permission because of sympathy for a developer who had knowingly and wittingly built a house in a rural area with an agricultural condition when any reasonable person could have told them that there was no prospect of making a living from agriculture on the land available when they built the house. That is a very common example in my constituency, and, I suspect, in many other rural areas. People apply for an agriculturally tied permission, then try to get the agricultural tie withdrawn later on the grounds that the property is not viable.

I am not entirely clear why the Minister said that it was against every principle of administrative law that one should be required to ignore certain material considerations. If those considerations are irrelevant to the decision being taken, surely it is a duty to ignore them. Such considerations are irrelevant to whether a planning application should be granted, so they are not material and should be ignored. I hope that that is clear.

I am grateful to the Minister for what she has said, and I will read the letter that she sends me with great interest. I hope that she is able to deliver something later in the proceedings on the Bill. Perhaps a suitable amendment can be made on Report or in another place to strengthen the position. I hope so, but for now I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.