Decentralisation and Localism Bill

The long awaited decentralisation and localism Bill was laid before Parliament on Monday 13 December by Communities and Local Government Secretary Eric Pickles.

As previously reported this Bill when enacted by the end of 2011 will fundamentally change the English Planning System by decentralising control from Central and Regional Government to local authorities and now to local neighbourhoods.

Announcing the Bill to the House of Commons Eric Pickles said:

"The Localism Bill will herald a ground-breaking shift in power to councils and communities overturning decades of central government control and starting a new era of people power."

"It is the centrepiece of what this Government is trying to do to fundamentally shake up the balance of power in this country. For too long, everything has been controlled from the centre - and look where it's got us. Central government has kept local government on a tight leash, strangling the life out of councils in the belief that bureaucrats know best."

"By getting out of the way and letting councils and communities run their own affairs we can restore civic pride, democratic accountability and economic growth - and build a stronger, fairer Britain. It's the end of the era of big government: laying the foundations for the Big Society."

Accompanying the Bill, the Government published Decentralisation and the Localism Bill: an essential guide which sets out six actions central government will take to achieve and maintain the radical shift in power from Central Government to local neighbourhoods. The guide to can be found at:

www.communities.gov.uk/decentralisationguide.

Planning Reform

With specific reference to planning, the principle and widely expected changes through previous DCLG announcements are as follows:

Abolition of Regional Spatial Strategies (Clauses 89 and Schedule 8)

The removal of the primary legislation which sets the basis for Regional Strategies - and hence the imposed housing targets set by the Regional Spatial Strategy upon individual Local Planning Authorities.

Inspectors Reports not binding upon the Authority (Clause 92)

In the examination of a Local Development Document the Inspector's recommendations to amend the development plan document are no longer binding on the authority.

Nationally Significant Infrastructure Projects: Abolition of the Infrastructure Planning Commission (Clause 107 and schedule 13.

The Bill replaces the Infrastructure Planning Commission with a democratically accountable system that seeks to provide a fast-track process for major infrastructure projects.

A Major Infrastructure Planning Unit is therefore to be established within the Planning Inspectorate to now determine major infrastructure projects - as established by the 2008 Planning Act - like windfarms and nuclear power stations. Ministers will ultimately take decisions on applications within the same statutory timeframe as the current regime.

National Planning Policy Statements

The Bill also streamlines national planning policy guidance by a series of new National Policy Statements. These are to be approved by Parliament - but only the House of Commons - and therefore is hoped to minimise the risk of successful judicial review.

Community Infrastructure Levy (Clauses 94-95)

The Coalition Government has decided to retain (previously to be abolished) the Community Infrastructure Levy (CIL). CIL allows local authorities to set charges which developers must pay when bringing forward new development in order to contribute to new infrastructure. The Bill now also it a requirement for some CIL funds to be passed to neighbourhoods where the development has taken place.

Neighbourhood Planning (Clauses 96-101 and Schedules 9-12)

This is a key component of the Bill introduces a new tier of spatial planning concept - namely neighbourhood planning.

The Bill introduces the right for communities to shape their local areas by creating "Neighbourhood Planning Authority" (NPA). The NPA could be based on existing parishes - or a group of parishes or by an organisation designated by the Local Planning Authority as a "Neighbourhood Forum. " The neighbourhood forum, once designated will take effect for 5 years.

Neighbourhoods can also establish general policies that will steer decisions on traditional planning applications. NPA's can therefore prepare their own "Neighbourhood Development Plan" - NDP - which will form part of the statutory development plan and therefore development will need to accord with the NDP's policies unless other material considerations indicate otherwise.

Neighbourhood plans are still required to be consistent with national planning policy and to conform to the strategic elements of local authority development plan documents plans - such as the Local Planning Authorities core strategy. The Localism Bill makes provision to ensure that neighbourhood plans do not override these wider ranging plans, including the proposed changes national planning policy guidance.

NPA's will also have the ability to have "Neighbourhood Development Orders" (NDO's) where planning permission will be granted for development which is specified by the Order applicable to a specific site. The site s where NDO's are in force are therefore likely to be indentified in the NDP. For more complex cases NDO's will be able to grant outline permission so that the right to develop would be established and only the details would need to be approved.

These measures are part of the Coalition Government agenda to fundamentally change the English Planning system so that local communities are incentivised to approve sustainable development - such as retaining a proportion of the Community Infrastructure Levy (CIL) and the Government's complimentary measures - such New Homes Bonus (where the Government will match the council tax raised from new homes for the first six years.

The Bill also introduces a "Community Right to Build Order" (CRBO) where local communities the power to take forward development in their area without the need to apply for planning permission, subject to meeting certain safeguards and securing 50 per cent support of the community through a referendum. It will be for communities to identify suitable land, sources of finance and secure support for their proposals

Requirement for pre-application consultation (Clause 102)

The Bill introduces a new requirement for prospective developers to consult local communities before submitting planning applications for very large developments. This is intended to give local people a real chance to comment on proposed developments which may have an impact on them, and to collaborate on issues such as design at an early stage, when they still have a real change to influence proposals before they are finalised.

London Planning

The Bill introduces the following changes to Planning within London:

• The devolution of executive powers over housing investment from the Homes and Communities Agency to the Greater London Authority so it can be fully aligned with the Mayor's own funding pot and the London Housing Strategy;
• The abolition of the London Development Agency, with its city-wide roles on regeneration and management of European funding to be transferred to the Greater London Authority so that the Mayor is directly accountable. The Government has already announced the end of the Government Office including London and the Regional Development Agencies;
• New powers for the Mayor of London to create Mayoral Development Corporations to focus regeneration where it's needed most, such as to help secure East London's Olympic legacy, in partnership with London Boroughs;
• Boroughs will be given control over more of the major local planning decisions that affect their local communities. The Mayor will only consider the largest planning applications in future;
• Streamlining consultation on Mayoral strategies, so there is a single environmental strategy. The Assembly will also gain a new power to reject the Mayor's final strategies by a two-thirds majority.

Commentary

The measures in the Decentralisation and Localism Bill radically alter the Government's philosophy of how the planning system should operate within England. The Coalition Government's Bill significantly shifts planning policy and the planning decision making from previously unelected central and/or regional government organisations to locally elected councillors and also now to neighbourhood communities.

Planning in England will therefore move from the previously target driven planning decision making process to a system to a new planning system which seeks to incentivise communities to want to have - and not oppose - development in the area.

We will produce an assessment of the implications of these changes in due course in a separate planning bulletin. However, what is evident is that yet again the planning process in England will now be going through a period of more uncertainty as the details of the Bill's measures emerge.

Our principal concern is that before the Bill introduces a new spatial tier of development planning which is likely to create further delay in the policy making and development management process and hence increase uncertainty as to whether planning permission might be granted.

The concept of neighbourhood planning is predicated on two issues. Firstly, that local communities actually want to and are able to plan for their own neighbourhoods. Although this might be the case in rural areas or within identifiable market towns and villages, communities in major conurbations or within inner city areas - where populations are often socio - economically diverse and where interests are widely different - neighbourhood planning may not be taken up.

Neighbourhood planning could be seen to be rather ineffective - especially where major strategic inward investment is required to regenerate the community and bring in major new homes and jobs.

Secondly, to be successful, neighbourhood planning has to have a strategic planning context. Outside London this was to established by the regional spatial strategy - but now this is abolished - the strategic context can only be provided by the approved "strategic" or borough/district-wide local development plan - either core strategies, and site allocation development plan or proposals map.

However, with lack of resources and uncertainty following the abolition of the regional spatial strategies, many Local planning Authorities in England outside London still do not have a strategic plan in plan within which the context of neighbourhoods plans can take place in terms of overall homes, jobs and services required to meet projected need.

However, with the Bill's emphasis on neighbourhood plans and incentives to build and urgency to change the existing system left by Labour, with the absence of an overall strategic development plan, neighbourhood plans could well be created prior to the strategic plan being in place.

The danger is that without the strategic context in place - either with the core strategy or approved national planning policy guidance - neighbourhood plans are unlikely to support development which is also required to meet the wider non local neighbourhood needs - or if they do - it is at a significant cost to the developer through new CIL and section 106 contributions - and which given the slow economic recovery - could make needed development unviable.

In the meantime, with the absence of an approved development plan applicants are going to have to demonstrate that there are "other material considerations" that support their development - for example, that the development is sustainable, it meets identified local community needs and there are no adverse off site impacts.

These identified planning benefits of the proposal will then have to be clearly communicated to the local community and councillors to maximise the prospects of consent.

Applicants are therefore going to have to engage much more effectively with the local community than has hitherto been the case. If they do not there is also the additional danger that the Local Planning Authority will not validate the planning application.

In summary, we foresee the Planning Bill's measures will make the planning process more neighbourhood focussed and planning decisions will inevitably be based upon much more locally politically driven issues. This will only be compounded with the Bill's proposed abolition of the predetermination rules so that local Councillors can now freely engage during the planning application consultation process.

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