The Localism Bill and changes to Planning Law
The Localism Bill forms the basis for the Coalition Government`s plans of decentralisation and introduces a wide range of measures from social housing reform to directly elected mayors. However, the Bill's main focus is on increasing the powers of Local Authorities and in turn local people.
The changes introduced by the Bill are extensive and this article provides a brief guide to some of the prominent changes potentially affecting Planning Law.
Powers and procedures of the Local Authority
The Bill permits a "decision-maker" within a Local Authority to indicate their views on a particular matter (e.g. in a Councillors election campaign) prior to a formal decision being made without the accusation of bias. The intent is that Councillors will no longer be prevented from voting on campaign issues. However, there may be a further impact on planning committee decisions where committee members are meant to reserve making a decision until presented with the evidence at committee, but they may now state quite clearly their opinions on the particular development prior to any decision being made.
However, perhaps contrary to this notion of bias the Bill also introduces a requirement on the Local Authority to promote and maintain "high standards of conduct", with each body adopting its own suitable code of conduct.
The procedure regarding the preparation and implementation of a Local Development Plan has been changed to provide a much greater role for the Local Authority, thereby limiting the involvement of the Planning Inspectorate in the process. The Inspector's decision on an examination will not longer be binding on the Authority, as now.
Assets of Community Value
Under the Bill the Local Authority will be required to maintain a list of land that is deemed "land of community value". The land can be nominated by the community or permitted by regulations of the Local Authority. If the owner of the land included in the list proposes to sell the property then they must first offer the land to a "community interest group". The details on this "list of assets of community value" are suitably vague indeed we do not yet know what properties will be included in this list or who can bid to purchase them. Various commentaries have suggested that high street shops, pubs and libraries will form the basis of a list. What is clear is that if a property does fall within this category then there will be significant restrictions and delays to its disposal.
Abolition of Regional Strategies
Regional Strategies are formally abolished under the Bill. The recent CALA Homes case has ruled Eric Pickle's attempt to abolish Regional Strategies unlawful. The Coalition Government is attempting to challenge the decision, but if they fail they must now wait until the Bill is implemented for the formal abolition to take place. The status of the RSS in the interim is of considerable uncertainty.
The current stance is that Local Planning Authorities should have full regard to Regional Strategies, although in practise the planning officers may be more careful in applying these policies.
Community Infrastructure Levy
The Community Infrastructure Levy was proposed under the Planning Act 2008. The Levy is intended to replace the contributions made currently under a Section 106 Agreement. To implement the Levy each Local Authority must approve a charging schedule, which sets out how the financial contribution will be calculated for each development. The Bill introduces a new procedure for the approval of the charging schedule, which one expects is meant to streamline the process and increase the involvement of the Local Authority.
The Bill also introduces a requirement on the Local Authority to use at least part of the Levy on projects within the locality of the development under which the contribution was made.
Neighbourhood Development Orders
Under the Bill a Parish Council or "neighbourhood forum" (a body that will be designated by the Local Authority) is entitled to initiate a process which grants planning permission in relation to a particular neighbourhood area. This proposed Order must first be examined by an independent body, and then approved by more than 50% of those voting in a referendum. Only one such Order can be made at a time, and there are exclusions relating to certain types of development (e.g. nationally significant infrastructure projects). The Secretary of State will have powers to revoke the Orders and there will be judicial review challenges available.
Further guidance and regulations are expected on the technicalities of these Neighbourhood Development Orders in the near future. The clear intent is for individual neighbourhoods to propose developments within their area. We would however note that the Bill sets out the bones of a rather intensive and complicated process for approving any such Orders, accentuated by the time and cost involved in organising a referendum.
Future regulations are also expected to cover the prevalent issue of who will be covering the costs of the Neighbourhood Development Orders, although it is suggested that the owner or developer of the land will bear the brunt.
Community Right to Build Orders
A Community Right to Build Order is a type of Neighbourhood Development Order, which grants planning permission for a specified development. The main difference however is that the order is made pursuant to a proposal made by a "community organisation". A community organisation is a body established for the express purpose of furthering the social, economic and environmental well-being of individuals living in the locality. Further regulations will provide more guidance on how such an organisation will be created.
Neighbourhood Development Plans
This Plan is very similar to the proposals under the Neighbourhood Development Order, whereby a Parish Council or "neighbourhood forum" can implement a plan which sets out policies in relation to the development and use of a particular neighbourhood area. Such a plan may show for example which parts of the locality can be used for shops or homes, and which areas that shall remain protected and undeveloped. Again, any such plan must be independently examined and approved under a referendum.
Abolition of Infrastructure Planning Commission
The Bill formally abolishes the Infrastructure Planning Commission and introduces transitional provisions for its replacement by the Planning Inspectorate.
Where a proposed development is of a description specified in a development order (e.g. an area of land designated for a specific purpose under the Local Plan) the applicant must carry out in depth consultation with the local inhabitants prior to the submission of the application, and is under a duty to take account of any responses to the said consultation.
There have been a number of cases in the past few years that have dealt with the issue of concealing breaches of Planning Law. Possibly the most well publicised case is that of Mr Fidler building a mock Tudor castle and concealing it with bails of straw. After the 4 year period in which enforcement action could be taken had lapsed, the landowner then removed the bails. However, it was held that the development was still in breach of Planning Law as the court held that the property was not finished until the bails were removed, therefore it did not matter that the house had stood for a significant period of time, and in turn the landowner was ordered to demolish the building.
The Fidler judgement was undoubtedly the right result for the Local Authority. However, this is in stark contrast to a recent case involving Welwyn Hatfield Borough Council and Mr Beesley. The Council granted Mr Beesley planning permission for the construction of a hay barn, but Mr Beesley always intended to use the building as a dwelling and he accordingly fitted out the barn as such internally. After 4 years (during which time Mr Beesley was careful to avoid the deception coming to the Council`s attention by not applying for building regulations approval and remaining off the electoral register) Mr Beesley applied for a Certificate of Lawful Use, and despite the Local Authority appealing all the way up to the Court of Appeal, the Certificate was granted on the basis that a change of use had taken place.
Within the Welwyn case the Court of Appeal commented that the legislation in its current form is open to abuse. As such, in response to this case, and to remove any uncertainty, the Bill introduces a new enforcement power for the Local Authority. Where there has been a full or partial concealment of an apparent breach of planning law the Local Planning Authority can, within 6 months of being informed of the breach, apply to the magistrates` court for a "planning enforcement order", which permits the Authority to take enforcement action within a year of the order being granted.
The Coalition Government have published an "essential guide" to the Bill, which unfortunately focuses more on the intent behind the legislation rather than the actual detail of the Bill itself. Nick Clegg states that the Coalition Government intends to reverse "generations of centralisation" and put "power into people`s hands".
The Bill does provide new powers for Parish Councils and new bodies such as neighbourhood forums and community organisations (although we don't know as yet who will form these new forums and organisations or how prevalent they will be). However, these powers are tempered by procedural requirements that will undoubtedly be expanded upon in forthcoming regulations.
It is also interesting to note those topics not included within the Bill, specifically a right of appeal for 3rd parties, which formed a key part of the Conservative's planning policy prior to the election. It has been suggested that this will still be implemented in future legislation, but whether the planning system can cope with further extensive changes is open to debate.
Posted on: 21/01/2011
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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