The Localism Bill redefines the relationship between central and local government and has implications for communities and the public and private organisations that serve them. Planning and development is a major area of change. Christine Hereward explains the planning implications which include the need for public bodies and business organisations to work across council boundaries and co-operate on planning issues.
Despite its length, with 30 clauses related to planning, the localism bill must have come as some relief to those with an interest in maintaining a workable planning system. This is due to the omission from the bill of earlier proposals to introduce third party rights of appeal, dismantle the local development planning system and introduce de-regulated ‘open source’ planning based on resident choice and voting preferences without(much)local authority involvement. Despite this the bill and its associated orders/regulations and forthcoming guidance notes will alter in important ways the balance of influence of individuals, elected politicians, landowners and developers.
In London, Boroughs will be given more control of major planning decisions. The strategic London Plan remains intact and the Mayor will gain new powers to create development corporations with regeneration and housing powers. In London and elsewhere local authorities, public bodies and business organisations will be expected to work across council boundaries and co-operate on planning issues.
National Planning Framework
Consultation on the form and content of a National Planning Policy Framework which will consolidate existing policy statements, circulars and guidance into a single document is under way. The original intention was for the Framework to consist of a few pages and not have a statutory basis. This will have to change if it is to provide a workable basis for planning policies and decisions taken at local level. Technical and good practice guidance will follow assisted with input from professional bodies such as the RTPI and RICS.
Currently it is not known whether the national planning framework will incorporate the Government’s pre-election promise of a ‘presumption in favour of sustainable development’.
The Community Infrastructure Levy is retained with a requirement for a meaningful proportion of revenues returned to alleviate the impact of development on ‘the neighbourhood’. It will be interesting to see if this shifts the balance from infrastructure funding to the provision of local services.
The bill does not replace the current local development plan system but Inspector’s reports on development plan documents will cease to be binding on local authorities. As anticipated the Infrastructure planning Commission will merge with the planning inspectorate but the separate development consent regime stay’s with decisions now to be taken by Parliament.
Neighbourhood Development Plan
The introduction of an additional tier of development plans is not something which would have been high on the ‘wish list’ of most developers or planning practitioners. This has nevertheless arrived in the form of the ‘Neighbourhood Development Plan’ to be prepared by parish councils(where they exist)or-as in London-by local groups designated as neighbourhood forums. Local authorities are expected to assist such groups with advice and support (cost recovery is anticipated) but it is unclear whether they will have the power to prevent unrepresentitive bodies setting up to oppose development. Following consultation and evidence gathering, an independent examination will take place, modifications made and the plan adopted or rejected by majority decision in a referendum. Government is thought to be considering the use of independent assessors at the examination stage, but the likelihood is that this task will be provided by the planning inspectorate.
Any designated body(see above)is entitled to seek the making of a Neighbourhood Development Order granting automatic planning permission(detailed or outline)for specific types of development. Designated community organisations can seek a Community Right to Build Order to suit the well-being of individuals living or wanting to live in an area. Local authorities must make the Order if a majority votes in favour but will retain control over any details not already approved by the Order.
Changing attitudes
The abandonment of ‘top down’ planning, the offer of financial incentives and the empowering of communities is intended to change ‘anti-development attitudes’ .This will certainly be a challenge for many residents’ groups who may find it difficult to reach consensus on what they would like to see, rather than what they do not like and wish to oppose. The Government anticipates the widespread take up of neighbourhood plans and orders throughout the Country. They may be disappointed. Apart from the resources, skills and stamina needed to navigate the procedural hurdles, many groups may lose interest when they discover the purpose is to promote more development not provide for less.
Some measure of control is to be retained by local authorities as there will be a requirement for Neighbourhood plans and orders to be ‘in general conformity’ with the national planning framework and local development plans. The choice of this wording(no doubt on legal advice) is a compromise between ‘complete/ total conformity’ (which would provide no flexibility at all for local initiatives) and the much less stringent wording ‘have regard to’ which could have resulted in a development free for all. It remains to be seen if this balancing act is sufficient to prevent abuse of the process. Heritage groups fear that there are insufficient safeguards to prevent development damaging the setting of conservation areas or listed buildings; Council’s fear the resource implications; community groups fear inappropriate development will be promoted by landowners; and developers worry that aggrieved residents will seek to limit development potential and resist or delay planning applications by securing a 5% neighbourhood vote in favour of a referendum which, although not binding, will have to be taken into account in decision making.
The rules on ‘predetermination’ as a basis for alleging bias are overhauled to allow more flexibility for councillors to participate in decisions on planning matters when they have expressed a view previously. Residents’ may see this is as an opportunity to ask local councillors to act on their behalf, but on the other hand planning consultants and developers will now be able to seek a preliminary view from planning committee members who will no longer be able to decline to do so because they fear legal challenge.
The enforcement provisions of the bill have proven controversial. A six month period is to be allowed for local authorities to apply for a planning enforcement order to run from the time evidence of a ‘concealed breaches of planning control’ is notified to them (houses hidden behind bales of straw come to mind).The law certainly need to be strengthened but at present the provisions are drawn too widely with potential serious consequences for purchasers of residential and commercial property who may become liable for the actions of previous owners.
The bill’s ‘duty for developers to consult’ on large scale major planning applications is to be brought in by regulations but at present this is intended to apply to schemes of more than 200 houses or 10,000 sq. m of floor space-far less than anticipated. It seems the Government’s move towards localism and public engagement is to be moderated by concerns over the regulatory impact on business.
Although local member review boards with a remit to decide planning appeals has not made it into the bill(perhaps surprisingly for a Government committed to localism) it is possible that third party rights of appeal may re-emerge (in some form).Costs to business may also rise as proposals to allow the planning inspectorate to charge for appeals(substantial amounts in the case of inquiries) are now the subject of consultation. Full cost recovery by local authorities of expenditure on handling planning applications is also under consideration as is the introduction of fees for listed building and conservation area consents.
Regrettably the bill contains no proposals for simplified procedures to allow applicants to seek an early ‘in principle’ grant of planning permission without the need for extensive technical documents, nor is there any sign yet of the much desired integration of non-planning consents in line with last years Penfold Review. From the point of view of local planning authorities and developers things appear to have got a lot more complicated and outcomes are uncertain.
Christine Hereward is a Partner and Head of Planning at Howard Kennedy. www.howardkennedy.com