Localism Bill

Memorandum submitted by Hampshire County Council (L 108)

1. About Hampshire County Council

1.1. Hampshire is a very large and diverse county. With a population of almost 1.3 million, excluding the cities of Southampton and Portsmouth, living in 550,000 households. As such, Hampshire is England’s third most populous county. Hampshire is estimated to account for around 20 per cent of the South East Region’s economy and population.

1.2. Hampshire encompasses eleven district councils as well as the County Council. Hampshire County Council employs approximately 38,500 full- and part-time staff, and 78 councillors represent the residents of Hampshire.

1.3. Prior to its abolition, the Comprehensive Area Assessment rated Hampshire County Council as a consistently high performing local authority.

2. Summary of key points:

2.1. The County Council support the sentiment of the Bill but have a number of concerns.

2.2. The number of reserve powers for the Secretary of State should be reviewed.

2.3. The County Council has no involvement in setting European Union targets and should therefore not be fined, as a matter of principle, for any infraction.

2.4. We request that the Bill Committee satisfy themselves that local government retain sufficient safeguards to fulfil their statutory fiduciary and safeguarding roles.

2.5. The County Council suggests that the duty to create and maintain a register of assets of community value should be the responsibility of County Councils in two-tier authority areas.

2.6. The County Council consider that the duty to co-operate should be strengthened so that it is supported by adequate sanctions and can deliver clear outputs and a number of solutions are put forward. The suggested amendments in favour of infrastructure plans would mean structures are simplified and more cost effective.

2.7. The County Council is very concerned about the proposed timescale of April 2014 for the restriction of Section 106 developer contributions and the implementation of Community Infrastructure Levy (CIL).

2.8. The County Council recommends that the Public Bill Committee draw out the distinction between local projects and strategic infrastructure in order to mitigate potential risks to local funding.

3. Introduction

3.1. The County Council welcomes the opportunity to comment on the Localism Bill and put forward its views to the Public Bill Committee.

3.2. The County Council fully supports the sentiment of the Bill and the Government’s promotion of localism. We do, however, have concerns that the Bill appears to overlook the strategic role of County Councils, particularly its place-shaping role. Where appropriate, we will be submitting detailed responses to the Department of Communities and Local Government as part of the formal consultation processes.

3.3. Our submission to the Committee makes comments on selected provisions in the Bill and proposes some amendments.

4. Reserve powers for the Secretary of State and the burden of secondary legislation

4.1. The County Council would like to see the overall number of powers which allow the Secretary of State to make regulations and issue guidance significantly reduced. If these powers are to remain, the County Council would like to hear what Government intend by these powers and how these clauses might be used in the future. The County Council asks the Public Bill Committee to consider very carefully if each of the 142 clauses are necessary, if they run counter to the principle of localism and will contribute to the regulatory burden on local government and communities. The County Council would prefer to develop its own approach to suit our local circumstances and priorities. Each local authority area differs and one central approach does not fit all.

4.2. The County Council’s experience is that Government includes important details in secondary legislation which affect the operation of the law. This should be avoided to make the legislation as transparent as it can be. If, however, the Government do intend to issue guidance and regulation they should do so as soon as possible. Whether intended or not, often the prospect of guidance or regulations being issued can be debilitating; local authorities will usually wait until the final document is published to begin preparations which would otherwise require adaptation, meaning that preparations are rushed or poorly developed prior to implementation. The success of localism, particularly in planning, will depend to a great extent on forthcoming guidance. The sooner Government can publish guidance or a statement that no guidance will be issued the better.

Part 1

5. Chapter 1: General power of competence

5.1. The County Council gives its support, in principle, to the introduction of a general power of competence. We would recommend that there no further caveats are added to this power. We would also recommend that the Committee ‘future proof’ the power in line with Government’s ambition for local government finance, checking that the current limitations will not hamper future policy or reform. Government need to be clear that financial freedoms should not be limited, particularly in the delivery of community budgets which are due to be rolled out nationally from 2013.

6. Chapter 3: Governance arrangements

6.1. The County Council expresses its support for local authorities to decide on their own governance arrangements.

7. Chapters 4 and 5: Changes to the predetermination rules and the standards regime

7.1. The County Council wishes to express its support for these reforms and welcomes the local flexibility new arrangements will bring.

Part 2

8. European Union (EU) Fines

8.1. The County Council object to this part of the Bill as a matter of principle and recommends that this part is struck out of the bill altogether.

8.2. The County Council has no involvement in negotiating EU legislation or targets. Such targets, and the failure to meet them, is a matter for the EU and the national government. It seems, therefore, to be totally unjustified to propose these fines be passed on to councils.

8.3. The County Council also consider that efforts to fairly attribute and apportion liability for fines between different councils may prove impossible. Without further amendments or clarification over how liability can be fairly apportioned, this provision could hit innocent councils and have a direct adverse impact on local public services, penalising local authorities who currently face unprecedented budget pressures.

Part 4

9. Chapter 3: Community right to challenge

9.1. The County Council welcomes community involvement in, and challenge to, the way it delivers its services.

9.2. We request that the Bill Committee satisfy themselves that local government retain sufficient safeguards to fulfil their statutory fiduciary and safeguarding roles. This would include retention of a right to refuse if no sustainable business case is put forward, or can be worked up, a right to exercise reasonable judgement in exercising these functions, and for this provision not to be used to prevent or frustrate any shared services agenda. The refusal criteria needs to include consideration of long-term value for money, the freedom for local government to determine the appropriate levels of service which can be considered for the community to run in order to safeguard the integrity or coherence of services and complement wider organisational efficiencies.

9.3. The County Council also suggest that the Committee consider whether a definition of community would be helpful.

9.4. The County Council will be submitting a formal and more detailed response to the Department for Communities and Local Government’s consultation on this aspect of the Bill, raising these concerns.

10. Chapter 4: Assets of community value

10.1. The County Council has a long track record, positive reputation and strong existing policies on making surplus land and/or buildings available to help charities and voluntary groups develop or operate facilities. The County Council recognises that this provision is intended to bring all councils to a similarly high benchmark.

10.2. This requirement may be difficult and costly for district councils to administer and, given their relative size and staff and/or funding reductions, is perhaps an unhelpful additional burden.

10.3. The County Council suggests that the duty to create and maintain a register of assets of community value should be the responsibility of County Councils in two-tier authority areas. The reasons for this are based upon the fact that the County Council's have the greater asset portfolio, experience in asset management and release, and the more relevant expertise and capacity to manage this provision. As such, County Councils are better placed to absorb this work into their existing property and asset functions and lead this work for themselves and other public bodies in their locality.

10.4. In addition, as a Capital and Asset Pathfinder, Hampshire County Council is already well advanced in looking at and leading upon the pooling and transfer of public assets, including assets of community value across the Hampshire area. The changes as proposed will undermine the work, trust and partnerships that have already been established as this pioneering work has evolved.

10.5. In these difficult financial times it is imperative that the County Council’s well-run and nationally high-profile asset rationalisation strategy should not be disrupted or frustrated. We ask for the Bill Committee’s support and to see that this provision will not place undue pressure or burdens on councils.

10.6. The County Council will be submitting a formal response to the Department for Communities and Local Government’s consultation on this aspect of the Bill.

Part 5

11. Chapter 1: Abolition of the Regional Spatial Strategies

11.1. The County Council welcomes the abolition of Regional Spatial Strategies and the unelected regional tier of government. This was the central tenet of a Sustainable Communities Act proposal submitted by the County Council in July 2009. The County Council shares the Government’s view that more decisions should be taken at the most appropriate local level. The County Council does, however, have serious concerns about how the planning system outlined in the Localism Bill will work in practice, particularly in terms of sub-regional strategic planning which is vital for sustaining social and economic growth.

12. Chapter 1, section 90: Duty to cooperate

12.1. Hampshire County Council supports the Government’s ambition to make the planning system more efficient and robust. The Council therefore welcome the proposed duty to cooperate but suggest that it be strengthened so that planning in two-tier areas is no less effective that in unitary areas, with the role of strategic authorities properly recognised and supported by adequate sanctions and can deliver clear outputs. The Bill should be amended so that Examiners, when applying their ‘soundness test’ to planning documents, consider the extent to which the duty has been adhered to. This would help encourage early consideration of infrastructure requirements and make the planning system more robust.

12.2. We would ask that the Committee consider introducing into the Bill a requirement on upper-tier authorities to produce and publish infrastructure plans as an output clause of the duty to co-operate. These plans should be informed by local communities and infrastructure providers. In two-tier areas, the plans should be prepared by the relevant County Council and agreed by all the local planning authorities, who share responsibility for infrastructure and service provision and, unlike LEPs, are fully accountable to the local electorate. Infrastructure plans would help ensure that planning for cross-border services such as health, education, transport and waste, are fully considered and funded. This would also be a more cost-effective and simplified reference document for Local Development Framework preparation. Without local infrastructure plans, there is a risk that some communities in two-tier areas could be disadvantaged due to gaps in strategic planning. As written, the duty to co-operate alone may not be sufficient to overcome that risk.

12.3. If the Committee is not persuaded by this argument for local infrastructure plans, we would ask that it at least considers introducing an amendment to require lower-tier authorities, to have due regard to recommendations put forward by upper-tier authorities on infrastructure requirements.

13. Chapter 2: Community Infrastructure Levy

13.1. The County Council welcome the provisions in the Bill which permit the Community Infrastructure Levy (CIL) to be used for maintenance and a duty on charging authorities to pass on a proportion of funding to communities. There is, however, a risk of an infrastructure deficit because of the Government’s proposed timescales.

13.2. The County Council is very concerned about the proposed timescale of April 2014 for the restriction of Section 106 developer contributions and the implementation of CIL. This arbitrary date seems unreasonable considering the amount of uncertainty within the current system as reforms are introduced and guidance is awaited. Whilst we recognise that the transitional arrangements are not currently part of this chapter of the Bill, we believe the date proposed presents a significant risk to the delivery of sustainable development. For this reason we urge the Committee to consider this a matter for primary legislation.

13.3. In view of the recent and ongoing reforms to the planning system it is unlikely that many local planning authorities will have been able to adopt their core strategies by April 2014. Without core strategies in place, district councils will be unable to charge CIL and, under the current proposals, the use of S106 will have been significantly restricted. Without the ability to apply CIL or S106 tariff schemes, there could be a growing infrastructure deficit from April 2014. This could seriously endanger local economic growth. To avoid this, we would urge the Committee to remove the April 2014 timescale and, instead to insert a provision for the restrictions on Section 106 to come into force where the relevant local planning authority is in a position be able to apply CIL. We would suggest that this more flexible, localist approach would be far more in line with the philosophy of the legislation. Alternatively, we would ask that the Committee seek to extend the deadline of April 2014 by at least a further 12 months.

14. Funding the planning system

14.1. In order for the Government’s ambitions to be realised, the County Council recommend the Committee review the funding of inter-related planning policies. The County Council believes there are some serious flaws in these proposed planning reforms that, if left un-amended, will have serious ramifications on local funding.

14.2. The Localism Bill should draw a clear distinction between CIL and the New Homes Bonus (NHB) and what each are seeking to achieve and this should dictate how these initiatives are funded.

14.3. CIL is designed to levy funding for both local and strategic infrastructure which is necessary to support new development. For this reason, we believe CIL should be allocated to infrastructure providers and there should be no automatic presumption that any proportion of CIL will be spent in the immediate neighbourhood. This would better ensure off site infrastructure, such as energy, water, education and transport receive adequate funding to support local communities.

14.4. In contrast, the NHB has been designed to reward communities which accept new development. Therefore, we believe it would be more appropriate to allocate a proportion of the NHB, rather than a proportion of CIL, to local neighbourhoods. Furthermore, as the NHB is an incentive to local planning authorities and their communities, the County Council would be content for all the NHB to be awarded to district councils (with a proportion going to the relevant neighbourhood) on the understanding that there would be no negative impact on upper tier council funding.

14.5. The County Council recommends that the Public Bill Committee investigate the need to refresh the definition of infrastructure in the Localism Bill in order to draw out the distinction between local projects and strategic infrastructure.

14.6. These proposed planning and funding amendments would enable the County Council and our Local Planning Authority partners to obtain the funding needed to meet their statutory responsibilities to support sustainable development and economic growth. Furthermore, these adjustments would more appropriately reward local communities that support development.

February 2011