Localism Bill

Memorandum submitted by Country Land And Business Association (L17)

Introduction

The CLA represents over 35,000 members in England (and Wales). Our members both live and work within rural areas; they operate a wide range of businesses including agricultural, tourism and commercial ventures – the CLA represents some 250 different types of rural businesses and provide housing in rural villages. The quality of the countryside is of vital importance to our members. Most objectives for the countryside - economic, social and environmental - rely on landowners and managers for their success, and bring them into frequent contact with the planning system.

Summary

The CLA’s principle concerns are as follows:-

Assets of Community Interest If an asset is deemed to be of value to the local community, the owner may not dispose of it until a specified period has passed so as to allow a community interest group to purchase it. This potentially places an unreasonable restriction on the freedom of an owner to dispose of property at the time it is most beneficial or necessary and to dispose of it to a person of his own choosing.

Neighbourhood Planning This enables "neighbourhoods" to grant themselves planning permission and creates a Community Right to Build. We welcome it, but think the processes involved are far to complicated and may frustrate what could be very useful.

Enforcement Local Authorities are to be given greater enforcement powers, essentially to deal with the problem of unauthorised Gypsy and traveller sites. We do not believe these changes are necessary. In so far as there is a problem it is more to do with the local authorities and available resources. Moreover, the proposals have the potential to cause problems for farm diversification projects and will make the system more complex.

Presumption in favour of sustainable development This is not included in the Bill. It should be. If properly defined, it has the potential to encourage much needed appropriately scaled economic activity in rural areas and should give farmers and other small scale rural developers some support when responding to community concerns which we anticipate will carry much greater weight under the new system.

Secondary concerns included changes to business rates, local referendums, the community infrastructure levy (CIL) the risk of the introduction of a third party right of appeal.

(A) CLA Main Concerns

Assets of Community Value (Part 4 Chapter 4)

CLA fundamentally opposes the proposals concerning assets of community value.

They have the potential to prevent an owner selling at a time of his own choosing, which may be when the market is particularly favourable or when he requires funds for a particular purpose.

They may also prevent him selling to a person of his choosing. For example a landowner may wish to dispose of a collection of properties in one go, because their combined value is greater than the total of their individual values. However if one of the properties is a listed asset, a collective disposal may be impossible.

No definition of what makes an asset of "community value" has been provided so the range of assets it covers could be extremely wide.

cl 76 provides the owner the right to have the decision reviewed. However no grounds for review are specified, but inevitably there will be the considerable cost and trouble involved. Cl 80 makes provision for compensation to be paid but it the owner is not entitled to it as of right, and nor is any basis for calculating the amount given.

As it is, many landowners already provide land and buildings for use by the wider community on a voluntary basis. Numerous playing fields, playgrounds and village halls are made available on this basis. However, if the landowner runs the risk of losing the ability to eventually dispose of the asset as he would wish, he will be extremely reluctant to offer it for community use in the first place. We certainly anticipate many land agents will be warning their clients against such acts of benevolence.

Furthermore, the planning system already provides an opportunity for local people to decide whether or not to retain an asset for which change of use is applied for. For example, the proposal to change the use of a pub to residential use, many local planning authorities, require the marketing of the pub for a number of months as a means of determining whether there is any local interest in retaining the use of the pub as a pub. This marketing period allows the local community the time to decide whether to mount a bid to purchase the pub.

CLA ask: we will seek amendments to ensure that CLA members’ property rights are not impacted by these clauses; that a definition of "community assets" is placed on the face of the Bill; that community assets can only be nominated for the local authority list if the asset is in public ownership

Neighbourhood Planning (Part 5 Chapter 3 and Schedules 9-12)

CLA see Neighbourhood Plans as potentially being a useful way of securing beneficial development in rural areas. Many rural villages have already created village appraisals/parish plans and these may well be converted into neighbourhood plans. In addition many rural estates have created estate management plans and again these may be useful for the creation of estate neighbourhood plans.

Unfortunately, there is very little indication as to how they will operate in practice and Bill sets out an extremely complex set of clauses and schedules as to their creation. It is difficult to see local people wanting, or indeed having the time and money, to be involved in creating a neighbourhood plan because of this complexity.

CLA ask: we will be seeking amendments to these clauses to reduce the complexity from creating a neighbourhood plan; we will seek confirmation from Government that adequate funding will be provided to local authorities for expenditure on the creation of neighbourhood plans.

Neighbourhood Development Orders (NDOs)

CLA support the idea of NDOs and see them going a long way in removing the need to obtain express permission for minor developments, such as barn conversions and small sale renewable energy providers. However, we have concerns as to the potential complexity of the procedures involved.

There is little benefit in removing the need to make an express application for permission if an equally cumbersome procedure must be gone through. This is particularly the case if there is no parish council. First of all a neighbourhood area must be designated, then a neighbourhood forum created. The forum then proposes an order which is then examined by an inspector. At each stage there are notification requirements and an inevitable need to incur expenses. The details are set out in schedule 10. It seems to us unlikely that anyone will obtain an NDO without considerable professional assistance.

Moreover, we are concerned at the restricted definition of what may constitute a neighbourhood forum. For example we suggest it would be appropriate for the owner of a single large area of land to apply for an NDO in respect of development that had no impact on anyone other than himself. This, for example, may be the case with a traditional rural estate consisting of a number of business and residential buildings all of which were owned by the estate owner.

CLA ask: that the additional complexity that is proposed in the Bill for the creation and application of NDOs is reduced/remove; that it is recognised in the Bill that businesses and landowners must have the opportunity to participate in, and where appropriate, lead neighbourhood forums.

Community Right to Build

CLA ask: we seek assurances from Government that the Community Right to Build is not just about housing but potentially about all forms of development including rural economic development; we would not wish the CRtB to compromise other vehicles for much needed rural development - landowners and rural businesses must be able to continue to provide appropriately scaled economic development and housing of all tenures as well as farm shops, allotments etc... on their land by reference to national and local  planning policy, rather than be required to go down the CRtB route.

Enforcement (Part 5 Chapter 5)

The CLA questions the need for many of the proposals for reform of the planning enforcement system. In our experience, the planning enforcement works pretty well and when problems arise, it is almost invariably the result of the planning authority being slow to act, presumably because of limited resources, rather than any lack of legal power.

We understand from Ministerial statements that the proposals are primarily intended to deal with unauthorised Gypsy and traveller sites. Of course we are aware of occasions on which there have been problems with such sites, but we strongly maintain that these problems are really no more than a high profile reflection of the general lack of will and resources in certain local authorities.

As such we suspect that the current proposals will make little practical difference other than to raise expectations and cause unnecessary complications.

We are particularly concerned about the ranges to retrospective consent in cl 103. As any farmer who has diversified into other activities can confirm, the rules concerning the need to obtain planning permission, set out in the Permitted Development Order, when changing the use of a building are extremely complicated and it is easy to make a mistake. It seems to us iniquitous that the farmer should be penalised in such circumstances.

We suggest therefore that, if it is felt necessary to make this amendment, there ought to be a simultaneous simplification of the various regulations and policies developers inadvertently fall foul of.

CLA ask: we will be seeking amendments to the Bill that render the proposed changes to enforcement are more proportionate.

A Presumption in favour of sustainable Development should be included in the Bill

We strongly welcome the "growth" message that surrounds the Localism Bill. However, we are concerned that this pro-"growth" message is not explicit within the Bill.

In order to further incentivise growth in rural areas, as well as elsewhere, we would welcome the inclusion in the Bill of a "presumption in favour of sustainable development". If properly defined, this has the potential to encourage much needed appropriately scaled economic activity in rural areas and should give farmers and other small scale rural developers some support when responding to community concerns which we anticipate will carry much greater weight under the new system.

Rural areas are suffering considerably from a policy vacuum given that planning authorities were supposed to have had their new Local Development Frameworks in place by 2007. Here we are in 2011 and around 70% of local authorities still do not have up-to-date local development frameworks in place.

By setting out the presumption in the Bill it makes it very clear that if a local plan is out-of-date or silent on the need for development, then proposed beneficial economic and housing development in rural areas that meets the necessary sustainability standards will be permitted.

This matter is too important to leave to policy. We urge the Government to consider including this in the Localism Bill.

National Planning Policy Framework

CLA are disappointed that a draft National Planning Framework has not been made available by the Government to assist Parliament in having a meaningful debate on the changes to the planning system proposed in the Localism Bill.

(B) CLA Secondary concerns

Non Domestic Rates (Part 3)

Whilst we are pleased that local authorities are to have a greater discretion in the granting of rate reliefs, we would be concerned by any decline in the extent of the reliefs currently made available to rural settlements and former agricultural premises. The micro businesses that make up the bulk of the rural economy spend a significantly higher proportion of their income on rates than do their larger urban competitors. As such the availability of relief from what would otherwise be their liability is extremely important to them.

Local Referendums (Part 4 Chapter 1)

Whilst CLA see the benefit of popular involvement we would not wish to see referenda being used as a means to justify the stifling of beneficial development in rural areas. All too often we see worthwhile enterprises such as affordable housing, sources of renewable energy or micro businesses being frustrated by ill informed local opinion. We would be extremely concerned if referendums encouraged such behaviour or indeed made it any easier.

We note that cl 44 contains a number of safeguards. Nevertheless in our view such matters are best left to the planning and other regulatory systems which exist to ensure all the relevant factors are taken into account when deciding whether a proposed development should go ahead and given the appropriate weight. The views of the local community are, of course, important here, but they are not the be all and end all.

CLA ask: we will seek an amendment that local referendums should be used only as a matter of last resort.

Community Right to Challenge (Part 4 Chapter 3)

We very much support the idea of people offering to carry out public works, but are concerned that the definition of a "relevant body" in cl 66, a body which is allowed to make such an offer, is too limited. It appears that it only extends to corporate entities. We see no reason for this. Why should an ad hoc collection of land owners not be entitled to, say, offer to clear ditches or snow, or carry out other public works of benefit to the community?

CLA ask: we will seek an amendment to these clauses such that "relevant body" can include a collection of landowners who are willing to carry out public works of benefit to the community.

Community Infrastructure Levy (Part 5 Chapter 2)

CLA have concerns as to what the CIL may be used for. Clause 95(3) (b) makes reference to "expenditure on future ongoing costs". The CLA has no objection to the use of the CIL for ongoing maintenance costs e.g. for a school building, but would strongly object to, for example, the use of CIL to pay the salaries of teachers. The latter would be seen as an additional general tax on development which would undermine the concept of the CIL. The phrase "ongoing costs" needs to be very tightly defined.

Clause 95(4) The CLA supports the use of CIL as an incentive to local communities to allow development in their area. However we would like further clarification from the Government on what proportion of CIL would go back to the local community and on what it could be spent.

CLA ask: we will be seeking a tightly drawn definition on the face of the Bill of "ongoing costs"; we will be seeking clarification of what CIL can be used for in the local community.

Plans and Strategies (Part 5 Chapter 1)

cl 90, Duty to co-operate in relation to planning of sustainable development

This creates a legal duty for local authorities and statutory bodies to co-operate in the planning of sustainable development, both through the creation of plans and other activities. The Government sees this as one of the ways in which some degree of strategic planning may be maintained.

CLA very much welcome this and hope it will go a long way in reducing the frustrations felt by landowners seeking planning permission who find themselves having to deal with a whole range of statutory agencies each with their own responsibilities and objectives. For example, with the reduction in public funding for flood defences many landowners are keen to take responsibility for maintenance themselves. However, they then find themselves coming up against the quagmire that is the planning system. A significant part of the problem is the competing objectives of the Environment Agency and Natural England each of which have their own internal and differing procedures and priorities. This means a great deal of time and wasted money is spent trying to resolve matters.

We are concerned whether the duty goes far enough. It seems only to refer to having to respond to consultations or providing relevant information. CLA hope it will mean cooperation at a strategic level in terms of joint local plan making, LEPs and joint LEP strategies, infrastructure planning and minerals development as well as more efficient application determination through joint development management teams.

CLA ask: we will be seeking clarification to this effect.

Third Party Right of Appeal

The CLA arguments against introducing a third party right of appeal include:

The planning system, in all its various manifestations since 1947, has represented the taking of individual rights over land and property to secure objectives judged to be in the public interest. To ensure that this is done as fairly and objectively as possible the assessment of what is in the public interest is placed in the hands, first, of elected LPAs, then second, with an "independent" professional body, the Planning Inspectorate, to provide a right of appeal to applicants who may have suffered from errors, bias, etc… at LPA level, and where judged appropriate, with a Minister. Finally, the Courts stand ready to deal with errors in applying law or procedure. 

At all those stages third parties have a right, and are in fact encouraged, to make their views and interests known to whichever of the three bodies is dealing.

A third party right of appeal would introduce a new and quite foreign element into the process, whose purpose could only be to challenge and hopefully alter the decision of the elected planning authority. Imagine the safeguards it would be necessary to build in to avoid abuse.

The Localism Bill itself provides plenty of additional opportunities for third parties to have their say and the introduction of a third party right of appeal is unnecessary and  would simply act to further water down the pro-growth message in the Bill.

January 2011