Localism Bill

Memorandum submitted by Civic Voice (L 01)

1. Civic Voice is the new national charity for the civic movement. Working with a network of hundreds of volunteer-led and community based civic societies and other groups across England we work to make the places where everyone lives more attractive, enjoyable and distinctive and to promote civic pride. We have been joined by over 270 civic societies with c70,000 individual members in our first nine months. Civic society volunteers are the most numerous participants in the planning system and this briefing is informed by their practical experience and local outlook.

2. Civic Voice warmly welcomes the fundamental intention behind the Localism Bill to deliver a "power shift" to local communities. This principle needs to guide debate on the draft legislation. Communities have had things "done to them" for too long and their knowledge and expertise has been undervalued. We recognise some of this power shift is challenging for local authorities and the professions and it requires a different way of thinking and working with communities. People expect more and want actively to shape the future of their neighbourhood. We relish the opportunity for communities to take the lead in shaping the quality of the places where we all live. Our support for key aspects of the Bill on neighbourhood planning and the community right to buy is evident in CLG’s press releases which include quotes from Civic Voice.

3. The context for the Bill is important. It provides some of the "hardware" necessary to deliver a power shift to communities. Yet, in many ways, it is the "software" of support, guidance and resources (intellectual and financial) made available to communities that is the most important. The Bill will be stillborn if communities are not able to realise the opportunities and take advantage of the new rights it establishes or fail to be supported by the culture change in government and the professions which will be needed.

4. This briefing focuses on the provisions in Part 5 for planning and the proposed "community right to buy" in Chapter 4 of Part 4 of the Bill. We also welcome the proposed general power of competence for local authorities and the provisions for local referendums and a community right to challenge to deliver services in Chapter 4. We also raise some issues which are not yet in the Bill, such as planning protection for local services and the need for a community right of appeal against development granted permission which cuts across an agreed local or neighbourhood plan.

PART 4 – COMMUNITY EMPOWERMENT

Chapter 4 – Assets of community value (the "community right to buy")

We welcome the provisions to give communities rights to identify public and private assets of community value in their area and bid to take on responsibility for them if there is a proposal for them to be disposed. Too many communities are losing the buildings and services that bind them together.  They need these safeguards to ensure community assets don't disappear for the lack of awareness of their value and to provide civic societies and other local groups with the time and capacity needed to develop viable proposals to save them. 

We believe the Bill should be amended to strengthen the safeguards in the following ways:

Reviewing the Treasury provisions which require disposal by public bodies on the basis of "best consideration" to address the social and environmental value of assets and build in a presumption to dispose to the local community – otherwise communities will go through the process only to continue to find the asset is lost to the highest bidder on economic grounds

Ensuring the range of people in the community able to make a "community nomination" to list an asset goes beyond parish councils (Clause 75(2)) to include any group (or "qualifying body") capable of preparing a neighbourhood plan, as a minimum

Changing some of the key terminology – what is being offered is a "right to bid" and not a "right to buy" and there is scope for confusion over preparing a "list" of assets of community value when there are already established processes for preparing "local lists" of buildings and structures of historic significance

Providing independent adjudication of the decisions to (a) list and (b) dispose so local councils cannot unfairly ignore community views.

PART 5 – PLANNING

Civic Voice believes the planning system has untapped potential to engage people in becoming more actively involved in their community as well as managing land use change and development for the widest public good. It combines vision with necessary regulation and already plays a critical part in protecting and improving the quality of our cities, towns and villages. We believe this needs to be strengthened and supported through improved opportunities for public engagement, selective extension of planning controls (not deregulation) and stronger safeguards against abuse. This needs to be further supported by action to remove the mystique, jargon and complexity of planning vocabulary and processes which act as a deterrent to community engagement. The value of effective planning in the public interest also needs strong defence against vested interests who seek to weaken safeguards or promote exceptions to bypass the system. The Bill makes important steps towards this goal and needs to go further.

Chapter 1 – Plans and Strategies

Regional Strategies – We welcome abolition of regional strategies (except in London) which have proved too remote from community interests and imposed inappropriate policies and development on local areas.

Duty to co-operate – We welcome the proposed duty and look forward to greater clarity about the Government’s definition of "sustainable development".

Inspector’s role on Local Plans – We welcome Clause 92 so that Inspector’s recommendations on Local Plans are not binding but there is still a requirement for a Plan to be considered suitable for adoption.

Chapter 2 – Community Infrastructure Levy

We welcome the proposed changes to the Community Infrastructure Levy to ensure a "meaningful proportion" goes direct to communities (Clause 95) and await further details of the safeguards that will be put in place to ensure communities gain access to the funds they require.

Chapter 3 – Neighbourhood Planning

We warmly welcome the provisions giving communities new rights to prepare neighbourhood plans for their area. This is fundamental to the power shift envisaged by the Bill and with the right support could liberate the knowledge and expertise locked up in communities and too often ignored by local councils. Local communities care deeply about their area and know it better than anyone. A number of civic societies are already talking with their local councils and parish or town councils about the role they can play in leading or contributing to a neighbourhood plan.

The success of these measures depends on the process being no more complicated than proposed and local communities being given the independent support and advice needed to take advantage of the new rights. Otherwise, there is a risk that the Government’s ambitions for 20%-60% of the country having a neighbourhood plan in the next decade will not be met and they will largely come forward in rural areas and areas of development pressure where the development industry or landowners fund the process. The availability of independent support to neighbourhoods is especially important in these growth areas to ensure public confidence in the integrity of the process.

The success of neighbourhood planning also requires both the development of a new network of "enablers" with the skills and competencies to support communities and a change in the attitude of many councils. More councils will need to move away from an approach based on "representation" and "consultation" truly to engage with their communities. The role of ward councillors in this will be crucial.

We have some concerns about the provisions for neighbourhood development orders and believe the main benefit of the new neighbourhood planning process lies in the preparation of a community led neighbourhood plan with appropriate policies.

We are particularly concerned to ensure neighbourhood development orders are not used to undermine listed buildings and conservation areas. These are designations of national not just local significance and so their contribution as planning considerations should not be disregarded as a matter of principle by neighbourhood development orders (which is the effect of the provisions in Schedule 12 on page 317 of the Schedules). We believe these provisions should be deleted from the Bill.

We have worked with CPRE to identify some key issues which need to be addressed in neighbourhood planning:

1. Attention should be paid to the capability for and culture of participation as well as the process of neighbourhood planning to avoid a mismatch between the new approach being introduced and communities and local councils being able to implement it

2. A variety of techniques for public engagement should be encouraged which suit the different circumstances of different neighbourhoods, combining measures which engage a large number of people with more in-depth involvement of a cross section of the community and existing groups

3. Independent support, advice and facilitation should be available to all neighbourhoods and the role of existing community and voluntary groups in supporting local participation and enhancing the skills and competency of local volunteers should be strengthened

4. The approach to neighbourhood plans should be universal – working equally well in both urban and rural areas, and in areas with and without town and parish councils

5. Good planning for a neighbourhood where a community has not yet been able to prepare a plan should not be distorted by the immediate introduction of a presumption in favour of sustainable development which could undermine public confidence

6. Communities will need to see new safeguards which underpin their commitment and investment in collaborative neighbourhood planning and improve their confidence that plans will not be ignored – these include a carefully defined community right of appeal against the grant of planning permission for development which conflicts with the neighbourhood plan and stronger enforcement against breaches of planning control

7. Communities will need new rights to address the "glass floor" problem where local councils do not or are reluctant genuinely to devolve power to neighbourhoods

8. The success of neighbourhood planning will depend on harnessing the passion people have for the place where they live and supporting communities in establishing a positive vision for their area

9. Effective measures will be needed to ensure local councils work with communities and voluntary groups in addressing cross-boundary and strategic issues.

Chapter 4 – Consultation before applying for planning permission

Effective involvement of the local community at the earliest stage of preparing a development proposal is essential and still all too rare. The provisions in Clause 102 are a welcome recognition of the problem but their effectiveness will depend on the threshold to be established in Regulations. We understand the Government’s current plans would only apply the provisions to 300 - 600 of the largest planning applications each year. These are the developments which are already better than most in consulting communities and such a threshold is far too high to achieve the step change in community participation which was envisaged in the Conservative’s Open Source Planning Green Paper - a "genuinely decentralised bottom-up approach to development [which] will strengthen grass roots engagement with the development process." We would welcome a Government commitment to introduce a much lower threshold.

Chapter 5 - Enforcement

A chain is only as strong as its weakest link and there are too many instances where the planning system is being bypassed and unauthorised development is proceeding without enforcement action being taken. This not only damages the local environment but also discourages people from getting involved in community activity. Such development ranges from unauthorised variations to planning permissions, unfulfilled planning obligations, illegal advertising or development taking place without reference to the local planning authority. There are no effective recourses for the local community. Breaching planning controls is not a criminal offence; local authorities are under no duty to take enforcement action, however serious the breach; and the Ombudsman can only address procedural errors and has limited sanctions.

We warmly welcome the provisions for stronger enforcement which help address some key issues and strengthen the hand of local planning authorities working on behalf of their communities.

Retrospective planning permission – The provisions enabling local councils to prevent appeals against enforcement notices on the grounds that planning permission ought to have been granted are very welcome. This is a long overdue closing of a serious loophole. We would extend the provisions so that local authorities have the power to regularise all development. For example they could have the power to require a retrospective planning application to be submitted as an alternative to taking enforcement action. This would reduce unnecessary delays and costs in taking enforcement action where the developer is not willing to submit a planning application. It would also help ensure that all development in an area is either authorised or is having enforcement action taken against it and so avoid the current situation where unauthorised development is simply ignored.

Unauthorised advertisements and defacement – We welcome extension of the provisions to strengthen local councils’ hands in taking action against the scourge of illegal advertising and defacement of property that can sap civic pride. This largely extends powers that have previously only been available to councils in London. We note that the provisions are, however, more complex than those in the London Local Authorities Act 1995.

We are concerned the proposed measures:

limit action to "persistent" advertisements (which will inhibit local councils nipping issues in the bud)

require notices to be displayed and not just served (which will provide further opportunities for abuse)

appear to introduce a right of appeal to the Magistrates Court against action relating to both advertisements and graffiti on the grounds that it is not detrimental to amenity (when legal precedent is that the courts are not an appropriate place to make judgements on amenity).

Chapter 6 – Nationally significant infrastructure projects

Abolition of the Infrastructure Planning Commission – We welcome this abolition and the provisions for the Secretary of State to determine major infrastructure projects and for them to be managed through the Planning Inspectorate.

MISSING PROVISIONS

There are two important omissions from the Bill.

Community right of appeal

If communities are to invest significant time, effort and emotional commitment in neighbourhood planning then it can’t be right that a planning application which cuts across everything that has been agreed can be granted by the local planning authority with no right of redress on the planning issues which are raised.

One option would be to bar any departure applications from being submitted and require agreement to be secured for the plan to be amended first. This would also be an incentive to produce a neighbourhood plan. We can see some practical problems with this option and there may be cases where everyone is in agreement with the proposed development and the application process would be preferable to a plan amendment.

Our preferred option would be a carefully defined community right of appeal against such "departure applications". The numbers are small (only 0.15% of the six million planning applications in the last decade were departures) and it would also improve the quality of local authority decision making as reasons for granting as well as refusing permission would have to be clearly expressed. Only those who objected to the planning application would be eligible to appeal and local authorities are already required to identify departure applications for the purposes of deciding on the level of publicity to be given. A community right of appeal might even be combined with the removal of the Secretary of State’s call in powers on the grounds that a more active civil society will ensure all relevant applications are subjected to necessary scrutiny, including through exercising a community right of appeal.

Protecting local services

The importance of a diverse range of local shops and services was identified as one of the most important contributors to what makes places enjoyable and people proud to live there in the results of Civic Voice’s Love Local survey (www.civicvoice.org.uk/campaigns/love-local) in 2010. This also identified the loss of independent shops as one of the main things at risk.

Civic Voice believes the planning system should play a more supportive role in protecting essential local shops and services and giving communities more of a say over what happens in their High Streets and street corners. Currently a local butcher or greengrocer can become another multinational coffee shop without the need to apply for planning permission. We support a change to the Use Classes Order which introduces a new category of essential shops – such as bakers, greengrocers and butchers – and services – such as pubs and post offices - or makes them sui generis by placing them outside the use classes altogether. This means that express planning consent would be needed to change use.

We welcome the Private Members Bill introduced by Nigel Adams MP and widely supported in Early Day Motion 1009 and hope its provisions can be included in the final legislation.

January 2011