Kit Malthouse – 2019 Speech on Intentional Unauthorised Developments

Below is the text of the speech made by Kit Malthouse, the Minister for Housing, in the House of Commons on 9 July 2019.

I congratulate my right hon. and learned Friend the Member for North East Hertfordshire (Sir Oliver Heald) on securing this debate. He has been a persistent and formidable champion for his constituents, and has raised this issue with me on a number of occasions. I am pleased that we are now able to address it in the open air.

The Government take unauthorised encampments extremely seriously, and a lot of work is ongoing in this area. Both I and the Secretary of State have listened extensively to views from across the House on this highly important issue, and recognise the strong feelings and concerns that have been raised in recent debates and discussions. As both I and the Under-Secretary of State for Housing, Communities and Local Government, my hon. Friend the Member for Richmond (Yorks) (Rishi Sunak), have stressed before in this Chamber, the Government are listening and taking action. We have listened to concerns raised in debates, discussions and correspondence, and we have sought evidence on the issue through consultation.

In February this year, we published the Government’s response to the “Powers for dealing with unauthorised developments and encampments” consultation, working with the Home Office and the Ministry of Justice. Since then, ministerial colleagues and officials have been working together closely towards delivering on the commitments made in that response. Among the concerns that have been raised by colleagues in the House and members of the public, there were particular concerns over fairness in the planning system, illegal activity and the wellbeing of travelling communities. Indeed, I can understand the frustration that is felt when it appears that the law does not apply fairly to all. We want to ensure that the system is fair, so we must take into account the concerns being raised—whether those concerns are from the travelling community or members of the settled community. This means ensuring that all members of the community have the same opportunities and are free from the negative effects of those who choose to break the law.

The responses we received to our consultation on unauthorised development highlighted several aspects that we need to improve on in order to address this issue. Our response put forward a package of measures, including consultation on stronger powers for the police to respond to unauthorised encampments, practical and financial support for local authorities to deal with unauthorised encampments, support for Traveller site provision and support for the travelling community to improve their life chances. My colleague the Under-Secretary of State for Housing, Communities and Local Government, my hon. Friend the Member for Richmond (Yorks), recently provided a summary to the House on some of the work that the Government will be undertaking as a result. For the benefit of everybody here today, I will briefly reiterate some of these points, with consideration to what has been brought up by my right hon. and learned Friend.​

First, let me address the concerns raised by my right hon. and learned Friend about intentional unauthorised development, and, in particular, how this type of development is taken into account when planning permission is sought retrospectively. The Government do want to ensure that fairness and confidence exists in the planning system, and I believe that this can be partly achieved through the strengthening of policy in this area. In 2015, the Government introduced a policy that made intentional unauthorised development a material consideration in the determination of planning applications and appeals. As set out in our response, we are concerned that harm is caused by the development of land that has been undertaken in advance of obtaining planning permission. We will therefore consult on options for strengthening our policy on intentional unauthorised development so that local authorities have the tools to address the effects of such developments. I hope that my right hon. and learned Friend will contribute to that consultation.

We know, however, that this is not only about having the necessary policies and regulations in place, but about local authorities having the powers and resources to enforce them. There is already an extensive range of powers in place, as set out in the 2015 guidance, to allow local authorities to clamp down quickly on unauthorised encampments. The Government expect authorities, working with the police as necessary, to use these powers to take swift and effective enforcement action. The responses to our consultation on unauthorised developments and encampments demonstrated that local authorities generally believe that the powers available to them under sections 77 and 78 of the Criminal Justice and Public Order Act 1994 are adequate. Local authorities have extensive planning enforcement powers under the Town and Country Planning Act 1990. The Government believe that, if used effectively, these are sufficient to tackle unauthorised development and reduce the risk of it occurring.

We note, however, that some local authorities may deal with unauthorised encampments less frequently than others, and the Government have heard that it can be difficult to develop expertise and good practice in all areas. We recognise that resourcing, training and skills are a concern in relation to planning enforcement. That is why we have committed to practical and financial support for local authorities, including new good practice guidance and funding for planning enforcement to support local authorities to deal with unauthorised encampments more effectively.

Sir Paul Beresford

There has recently been a meeting of every single local authority in Surrey. The Chancellor set it up and a number of other MPs went there. They would disagree totally with the Minister that we think that the legislation is adequate. It is inadequate.

Kit Malthouse

I hear my hon. Friend’s view of the legislation, but, as I say, it is not the generally accepted view that came through in the consultation. I am more than happy to take a submission from the local authorities in Surrey if they believe that there are lacunae in their powers that mean they are unable to enforce successfully. However, there are local authorities across the country that do successfully enforce in this area. I would be more than happy to put his local authorities in touch with those local authorities who are successful in this ​regard, particularly the one that is always held out as an example—Sandwell in the west midlands, which has a particularly assertive and successful policy in this area, and might, I am sure, be able to offer some tips and tricks on what is available in the armoury of legislation for local authorities to use.

We want to ensure that local authorities use their powers to full effect and, as I say, draw on good practice across the country, at county or district level, in the ways that they can work more effectively with police and neighbouring authorities.

Sir Oliver Heald

I am grateful to the Minister for giving way and for the discussions we have had. However, what about the point that a person who is in breach of an enforcement notice is still able to apply for retrospective planning permission?

Surely, he should remedy the breach before he is allowed to do that. What about the point on the local plan where a council goes to the trouble of surveying the need and getting the thing looked at by the planning inspector, it is signed off by his boss and the Secretary of State, and then, two or three weeks or a month later, it is being argued that it does not adequately reflect the need?

Kit Malthouse

On my right hon. and learned Friend’s first point, those are very pertinent issues that should be submitted as part of the consultation on how we can strengthen measures against intentional unauthorised development. I am very focused on this issue. In particular, during the Department’s work, I was keen that we should enforce against that, because I agree that people need to have confidence in the planning system and know that there is a level playing field.

If someone intentionally breaches the rules, there should be a higher bar for them to pass. However, we should bear in mind that a planning system with too much rigidity can often cause problems for those who stumble across the line or did not necessarily understand the rules in the first place, which can happen with ordinary domestic planning applications. I would be more than happy for him to submit that as part of the consultation. His second point has slipped my mind.

Sir Oliver Heald

It was about the local plan having considered need, been approved and then, within weeks, been impugned.

Kit Malthouse

I will come on to this in a moment, but, as my right hon. and learned Friend will know, along with all elements of a local plan, five-year supply is often the subject of legal challenge and challenge through the planning appeals process. I have consistently said to local authorities on all types of housing that if they want to be bulletproof on planning, they should aspire to a supply beyond five years. Too many authorities spend a lot of time in court arguing about whether they are at 5.1 or 4.8, but if they plan their area with authority and perspective—even as far out as 10 or 15 years—there is no argument to be had, particularly if it has been evidenced through the local plan process and supported by a planning inspector.

We want to ensure that local authorities use their powers to full effect and draw on good practice across the country and at county and district level. That can include ways in which public bodies can more effectively ​work with the police, neighbouring authorities and the travelling and wider communities—for example on welfare issues and clarifying roles and responsibilities, to move unauthorised encampments on efficiently and successfully.

We will in due course create a power to place this guidance on a statutory footing, to ensure that all local authorities are following this advice and using their powers effectively. Our package of support for local authorities includes a commitment to make up to £1.5 million of funding available to local authorities to support planning enforcement. The Ministry of Housing, Communities and Local Government will publish details of the fund and how to bid shortly. Alongside that, the Government will continue to keep local authorities’ powers in this area under review, following the proposals to reform police powers and where there are deliberate and repeated breaches of planning.

While we acknowledge that Government still have work to do on the issues associated with unauthorised encampments, I would like to reiterate the importance of appropriate levels of site provision provided by local authorities. The planning policy for Traveller sites requires local planning authorities to produce their own assessment of needs for Traveller sites in their area, to meet the needs and expected needs of the travelling community in the same way they would for the settled community, as my right hon. and learned Friend pointed out. However, when assessing the suitability of sites in rural or semi-rural settings, local planning authorities should ensure that the scale of such sites does not dominate the nearest settled community. The Government have committed to produce guidance on the concentration of sites and have made clear that the Secretary of State will be prepared to review cases where concerns are raised that there is too high a concentration of authorised Traveller sites in one location.

I would like to relay to the House our ongoing work on enforcement against unauthorised encampments, as I am aware that this has been an area of particular concern to many Members across the House, including those who have attended previous debates. As I mentioned, the Under-Secretary of State for Housing, Communities and Local Government, my hon. Friend the Member for Richmond (Yorks), has outlined this in previous debates, so I will try to keep my summary brief.

From listening to our consultation responses on the matter, we have identified a set of measures to extend powers available to the police, to enable unauthorised encampments to be tackled more effectively. Those include our commitment to seek parliamentary approval to amend sections 61 and 62A of the Criminal Justice and Public Order Act 1994. The Home Office will soon launch a public consultation on the specific nature of these measures, to take the proposals forward.