Adrian Penfold gave evidence.

We will hear oral evidence from Adrian Penfold, the author of “Review of non-planning consents”. I remind members of the Committee that questions should be limited to matters within the scope of the Bill and also that we should stick strictly to the timings in the programme motion that the Committee agreed. If necessary, I will cut Members off in mid-sentence, but I am sure that will not be necessary.

Welcome, Mr Penfold. Thank you for agreeing to give evidence.

Q 196196

Can you tell us how far the provisions of the Bill address the issues that you identified in your review of non-planning consents? Are there any other areas that you think remain to be addressed following your review?

Adrian Penfold: Good morning. Some of the provisions are directly related to the recommendations that I made in my review, which was completed two and a half years ago, so sometimes it is hard to recall. The village green clauses relating to stopping-up orders and footpaths, and particularly the clauses relating to the extension of the development consent order to business and commercial projects, are all directly related to recommendations that I made.

Other elements of my review are incorporated in the Enterprise and Regulatory Reform Bill, particularly in relation to heritage matters. A lot of other work has been done that did not require primary legislation, but was more to do with the culture, the efficiency and the operational factors involved for the various consent givers, particularly the main agencies: the Environment Agency, Highways Agency, the Health and Safety Executive, Natural England and English Heritage, all of whom have done a lot of work over the last year or so. My feeling is that a lot of work is going on at the moment implementing the review recommendations.

On the question of what more could be done, a lot of the recommendations in the review were about the experience of the applicant for the various consents and of other stakeholders who are involved in the process, such as consultees and local communities. We are exploring opportunities for further integration of the various processes. Integration may be too strong a word; more alignment and better interaction between the various consents. We found some 86 different consents that might be required to implement a development, and some developments require as many as 30 or 40 of those consents. The alignment and the interaction between them is very important so there needs to be more work there.

There also needs to be more work on one-stop shop, which is more about the culture of the way in which the consents operate within the consent-giving organisation. Many are dealt with by local authorities, for example. There should be better alignment between the various consents—highways consents, environmental permits, as well as planning, of course—and also between consent givers.

The improvement plans that have been produced by the five agencies I referred to should be reviewed on an annual basis. To my mind, there is more work to do on Government oversight. One of the things we found was almost a silo approach. A lot of good work is going on reviewing the operation of the various consents in different Departments across Government; I met regularly with eight or nine Departments that were represented on the management board of the review, but what seemed to be missing was somebody with an overview of the process who can look at it from the perspective of the applicant and other stakeholders.

Q 197

Did you have any particular opinion about what that Government oversight should be?

Adrian Penfold: As I said, I finished the review two and a half years ago, in July 2010. I do not spend all my time on the review or looking at the way the Government are working on implementing it. There was at one point a committee in the Department for Communities and Local Government that had taken on the task to some extent. It would have to be some sort of interdepartmental body, and there would have to be strong leadership as well. I am not expert enough on Government to know where that leadership might come from. There has to be a will to do these things to make sure that there is co-ordination and that we do not get more duplication—there is already a lot of duplication—and overlap. I am not entirely sure how that would work, but it does not seem beyond the wit of man to come up with something that would do that job.

Q 198

Good morning, Adrian. Eighty-six consents seems a horrendous number. Can you give us a bit more indication of the scale of the problem?

Adrian Penfold: We found 86 in March 2010. We kept finding more; there were an awful lot. As I said, as many as 30 or more could be needed. A large chemical plant would be a good example of the sort of project that would need a lot of consents. One has to concede that terminal 5 at Heathrow is an extreme example, but 37 different consents were needed to do that project under seven different pieces of legislation and involving 20 different consenting bodies. The Planning Act 2008, which introduced the national significant infrastructure project appraisal—the development consent order process—was in many ways a reaction to that. It was an attempt to consolidate things and bring them together in one place with one decision maker under one process. That was very welcome, and the provision in the Bill to extend that process to business and commercial projects is also very welcome.

Q 199

With that approach, what level of duplication was there?

Adrian Penfold: There was a lot of duplication. Duplication, for the most part, is duplication between planning, which has grown enormously in its scope over the last 10 to 15 years, and the other regulatory regimes. I have been a planner for a long time, and I shall give you an example. When I first started as a planning officer, walking the streets of Fulham dealing with planning applications, one of the things that we could not deal with at all was construction impact—the impact of lorries and construction activity, such as noise and air quality issues.

Over the years, planning has taken over that area and does a huge amount of work, rightly in my view, to make sure that those impacts are limited and mitigated. But, in doing that, it is duplicating a whole area of environmental permitting and other legislation which, in my day as a development control officer, was handled completely separately by the environmental health department. That is one example where planning has taken a much bigger role in an issue area. The other regulatory consent-giving part of the landscape is not withdrawal from that area. Both deal with it and that can lead to confusion. There are many other areas where similar things happen.

Q 200

You have spoken about the need for Government oversight and the breakdown of the silo mentality. Can you give us a feel for what difference that would make if it was properly organised?

Adrian Penfold: The first thing it would do would be to review new legislation, as it came forward. With much of this, it is not whether things are required; one of the conclusions that we drew during the review was that there was very little regulation covering areas that did not need to be covered at all. We recommended the repeal of one piece of legislation. It was clearly part of the brief to look for areas that could be repealed, and we found very few that could be repealed.

It was more a case of looking at the overlap and making sure that any new legislation that comes forward did not create more problems. “Is it already being dealt  with by planning?” would be the first question I would ask of almost anything—or could it be dealt with by planning or should it be dealt with by planning? If it is, does it need to be dealt with by something else as well? That is new legislation. There is more work that could be done—almost a forensic analysis of what is already there, and how much overlap and duplication there is.

Another example would be the building control part L provisions that deal with the energy performance of buildings, which over the years require, quite rightly again, buildings to become more and more energy-efficient. That is fine, but now planning does that as well; many planning authorities will have their own codes for looking at exactly the same thing. One could ask, “Why is that necessary?” The argument might be, “Well, it’s a localist approach,” but my view would be that it should be handled at national level. If it is not necessary, what savings could be made by doing things more efficiently—only doing them once, rather than twice? There is a whole range of questions that a body of that sort might be able to get into.

Q 201

If I correctly interpret your evidence, it is that rationalisation and removal of unnecessary duplication is the key, rather than the repeal and removal of requirements, most of which in your view are necessary but perhaps not properly handled at the moment. Is that correct?

Adrian Penfold: Broadly, it is correct. The sort of analysis I have just spoken about could result in some repeal. You could say that planning can deal with highways orders or footpath issues, so we no longer need that particular bit of legislation. That could come once you get into the analysis, but I am not saying that the Government are regulating and controlling things that, by and large, do not need to be regulated and controlled.

Q 202

That is very helpful. Are there any areas in the Bill that you think might create new overlaps or duplication? I draw your attention to clause 1 in particular, where, if the Bill is enacted, the provisions for the determination of planning may be directed in the first place to a body other than the local authority.

Adrian Penfold: It is more about who is making the decision, rather than the issues that are being considered and how they are being considered. It seems to me to be taking the consent-giving power away from one authority and giving it to another. There is still only one authority actually making the decision.

Q 203

No, the Secretary of State may direct an authority to perform certain functions, even if he has taken away those powers.

Adrian Penfold: But there would be a separation of functions, I would have thought.

Q 204

There would be duplication.

Adrian Penfold: If there was duplication, clearly my analysis would suggest that I would not agree with it, but it is not something that struck me when looking at the clause or reading a lot of the comments on it. It did not seem like a duplication point to me; it seemed more a point about who should be making the decision.

Q 205

Do you think that there might be some confusion about who should be taking the decision? Last week, we heard from witnesses who implied it would be very difficult to define objective criteria that would determine whether an authority was failing in a way that would justify removing its powers.

Adrian Penfold: It would be difficult, but not impossible. I know that the two areas that have been talked about are time taken and, I suppose, inconsistency—a policy not being applied properly and applications therefore being overturned on appeal. Those are the two broad areas that were looked at, and which I think would not be unreasonable. One might want to have some sort of metric around how customers experience the service; that is important. But no, it is not impossible, and in fact, we have had eight-week targets for many years. I managed a planning department with eight-week targets, and occasionally struggled with those targets, so I think that planning authorities are very used to having to deal with those sorts of metrics and targets.

Q 206

The Secretary of State obviously had difficulty identifying which local authorities might be identified as failing authorities. You have not read the speech he made during Second Reading?

Adrian Penfold: I have read his speech, actually. Yes, I take the point—I can see that he did.

Q 207

In answer to Roberta’s question, you mentioned the provisions on town and village greens being taken forward in a way that you felt was correct and in line with your report. The Open Spaces Society and the Campaign to Protect Rural England are essentially saying that the provisions in relation to town and village greens give us a sledgehammer to crack a nut. What is your response to that concern?

Adrian Penfold: Obviously I do not agree with it, because one of my recommendations was directly related to village greens and the need to try to ensure that they do not cause a problem after planning. There is evidence of game-playing—of people waiting almost until the planning has been dealt with, or until very late in the day, to make an application. We certainly received written evidence on that. Something needed to be done about it. It is also very much aligned with my general proposition, which is that the issues that we called the ifs—whether the development should be allowed to go ahead or not—should be dealt with either as part of the planning process or alongside and at the same time as the planning process. When someone comes to the point where they have planning permission, there should be reasonable certainty that that development will be allowed to go ahead and all other matters should have been considered. The town and village green designation seems to fit firmly in that area. It definitely should be considered, either alongside, as I think is being proposed in the measure, and/or as part of the planning process.

Q 208

You do not think that these proposals make town and village green designations more vulnerable for genuine town and village greens.

Adrian Penfold: No, I would not have thought so. In some ways, it highlights the issue raised earlier. If there is an issue around whether a space is a town and village  green, there is an incentive on people to look at it before and during the planning process. I do not think it is a way of avoiding the issue; it is a way of dealing with the issue at the right time.

Q 209

You think that these proposals bring that issue out at the right time and ensure that local people can put those concerns forward.

Adrian Penfold: I do. It is not actually what I recommended. I recommended a certificate of immunity approach, which is how listing designations are done. An owner of a building can make an application for a certificate of immunity from listing, which lasts for five years. Whether the building should be listed or not is then considered. If the certificate of immunity is not granted, the building is usually automatically listed. I thought that something similar could be applied to the town and village green designation process and how it fits with planning. What is in the Bill is a better way of dealing with it than I came up with.

Q 210

Good morning, Mr Penfold. How much impact will the Bill have on growing the economy?

Adrian Penfold: I attended the session last Tuesday morning, so I heard the question asked and have had some time to think about it. I think that the planning and non-planning consents are all about controlling and regulating development. In so far as development is related to growth—it clearly is—those consents will have an impact on growth. They are about balancing that economic growth objective, or the economic imperative behind the development, with environmental and social factors, and coming to a conclusion. I believe that that balance between the economic factors and the environmental and social factors needs to be properly considered and kept under review. That is partly what the national planning policy framework was about, and it has done that quite successfully in my view. Those policies need to be properly applied and the processes need to be operationally efficient and also democratically legitimate.

Q 211

Is that a lot or a little?

Adrian Penfold: In terms of the impact they can have? It will vary.

Q 212

The question is whether the Bill will have a big impact or a little impact on the economy. What will it do to stimulate growth?

Adrian Penfold: It will have some impact. There are all sorts of issues affecting the economy. Clearly, it will not affect what is going on in Greece or the eurozone. I was quite attracted, when re-reading the evidence, by the formulation of the National Housing Federation, which referred to village greens, describing the designations as the third hurdle. There is finance, planning and these designations—these other matters—all of which can have an impact on whether something happens.

Q 213

Do you think the Bill will have any adverse consequences for the environment?

Adrian Penfold: Do you have anything particular in mind?

No.

Adrian Penfold: I do not think it will have adverse consequences. I cannot see anything in there that should do that. It seems that nothing will take away the local plan-based approach in the planning aspect. For example, for clause 1 proposals, the decision will still need to be taken on the basis of planning policy. It seems to me that there should not be an adverse impact.

Order. We will need to move on to another section shortly. If we can keep the last few questions and responses brief, we will hopefully be able to cover the whole ground.

Q 214

Adrian, can we pick up a point that Nick Raynsford made with you on clause 1? I see no potential for duplication or confusion in this. Can you confirm that?

Adrian Penfold: I cannot see duplication. I suppose the only confusion would be that you would not necessarily know who was going to be determining the planning application at the end of the day, but you do not anyway. When you submit a planning application, there is always the possibility that it might be called in or be refused and go to an appeal, or you might appeal against non-determination, in which case the Secretary of State, or probably the inspector, ends up dealing with the application.

Q 215

Can I take you back to the answer you gave about damage to the environment and to clarify your comments in the light of clause 7? We have received evidence from a number of organisations that are concerned about the loosening of the protection given to national parks and areas of outstanding natural beauty in terms of electronic communications. This could involve large cabinets; we are not sure whether it covers telephone masts. Is there not a real danger that clause 7 will weaken the protection against unsightly or inappropriate development?

Adrian Penfold: I have to admit that I have not paid a great deal of attention to clause 7. I could try to answer that question, but I would be mainly focused on the areas that have come straight from my review. I expected that I might get questions on clause 1, for example, so I prepared for that. I have not given the attention that perhaps I ought to have done to clause 7, so I would prefer not to say.

I was going to ask about the broadband aspect. Has there been any evidence in your initial review that not being able to get planning permission has deterred investment in not only our rural landscapes, but some of our city landscapes?

Adrian Penfold: We were not looking at planning at all. We were looking at everything else but planning.

Q 216

I mean the different consents. I will take you on a different one. The Marine Management Organisation is now conflicting with the Environment Agency, potentially, on different parts of coastal development, trying to get consents for all sorts of things—not necessarily planning, but just trying to operate. Can you tell us more about some of the coastal work that you may have looked at?

Adrian Penfold: It was specifically excluded from the review.

Coastal was?

Adrian Penfold: Yes, or marine operational activity. I cannot remember exactly why, but I think there was a different review at the time looking at that, so we did not look at it.

Q 217

The MMO is not necessarily solely about marine. For example, there are complications at the port at Southampton that led to various issues about the construction of new onshore developments. You were told not to look at any coastal stuff at all?

Adrian Penfold: It was excluded from the scope. It was the one subject area that was excluded. There may be some general principles there that we could explore, in terms of some of the things I have been saying about alignment or interaction between regimes, but we did not look at it specifically.

Okay. I really want to talk about broadband later, at 10.30 am.

Are there any further questions for Adrian Penfold?

I thank Mr Penfold for his forbearance at the questions and for the information that he has helpfully been able to share with us.