COMMENT
Christine Hereward, head of planning at law firm Howard Kennedy, takes an expert view of the compromises being struck as part of the Localism Bill.
T
he Localism Bill must have come as some relief to those with an interest
in maintaining a workable planning sys- tem – despite its length. The Bill omits earlier proposals to introduce third party rights of appeal, to dismantle the local de- velopment planning system and introduce de-regulated ‘open source’ planning based on resident choice and voting preferences without (much) local authority involve- ment. Despite this, the Bill, its associated orders/regulations and forthcoming guid- ance notes will alter in important ways the balance of influence of individuals, elected politicians, landowners and developers.
Consultation is under way on the form and content of a National Planning Policy Framework to consolidate existing policy statements, circulars and guidance into a single document. The original intention for the framework to consist of a few non- statutory pages 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 profes- sional bodies such as the RTPI and RICS.
Whether the framework will incorporate the Conservatives’ pre-election promise of a ‘presumption in favour of sustainable development’ is unknown.
The Community Infrastructure Levy is retained with a requirement for a mean- ingful 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 infra- structure funding to local service provi- sion.
The Bill does not replace the current local development plan system but inspectors’ reports on development plan documents will cease to be binding on local authori- ties. As anticipated, the Infrastructure Planning Commission will merge with the Planning Inspectorate but the separate de- velopment consent regime stays with deci- sions now to be taken by Parliament.
Hardly on the ‘wish list’ of most developers or planning practitioners, the Government is introducing an additional tier of devel- opment plans. This has arrived in the form of the ‘Neighbourhood Development Plan’
20 | public sector executive Mar/Apr 11
The Government hopes its planning reforms will lead to more development and more economic growth.
of conservation areas or listed buildings; councils fear the resource implications; community groups fear inappropriate development promoted by landowners; 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 ac- count in decision-making.
to be prepared by parish councils (where they exist) or – as in London – by local groups designated as neighbourhood fo- rums. Local authorities are expected to as- sist such groups with advice and support but it is unclear whether they will have the power to prevent unrepresentative bodies setting up to oppose development. Following a consultation and evidence gathering, an independent examination will take place, modifications will be made and the plan adopted or rejected by major- ity decision in a referendum.
Any designated body can seek the making of a Neighbourhood Development Order which would grant ‘automatic’ planning permission for specific types of develop- ment. Designated community organisa- tions can seek a Community Right to Build Order for the well-being of individuals living, or those 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 ap- proved by the order.
Local authorities are to retain some meas- ure of control, as there will be a require- ment for neighbourhood plans and orders to be ‘in general conformity’ with the na- tional planning framework and local devel- opment plans. This wording is a compro- mise between ‘complete/total conformity’ (no flexibility for local initiatives) and the much less stringent wording ‘have regard to’ which could have resulted in a develop- ment “free-for-all”. It remains to be seen if this balancing act is sufficient to prevent abuse of the process. Heritage groups fear there are insufficient safeguards to pre- vent development damaging the setting
The rules on ‘pre-determination’ as a basis for alleging bias are overhauled to allow more flexibility for councillors to participate in decisions on planning mat- ters when they have expressed a view pre- viously. Residents may see this is as an opportunity to ask councillors to act on their behalf, but on the other hand plan- ning consultants and developers will now be able to seek a preliminary view from planning committee members who will no longer be able to decline 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 ‘con- cealed breaches of planning control’ is no- tified to them (houses hidden behind bales of straw come to mind). The law certainly needs to be strengthened, but at present the provisions are drawn too widely with potentially serious consequences for pur- chasers of residential and commercial property who may become liable for the actions of previous owners.
Visit
www.howardkennedy.com Christine Hereward
FOR MORE INFORMATION
It seems the Government’s move towards localism and public engagement is to be moderated by concerns over the regulato- ry impact on business. The Bill’s ‘duty for developers to consult’ on large-scale ma- jor 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.
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