Localism Bill

Memorandum submitted by Friends of the Earth (L 111)

1. Sustainable Development

1.1 Sustainable Development as defined by the Brundtland Commission and as set out in the UK Sustainable Development Strategy is not a reality in the UK. Few planning decisions can be considered to have delivered sustainable development. Some local authorities are grasping the issue and delivering in areas on the ground, but are hampered by lack of power and political commitment.

1.2 The Government’s own sustainable development indicator set (2010) reveals that community participation has decreased over the last few years, and that emissions are rising from certain sectors, and that there are increasing households in fuel poverty. [1] The Localism Bill could be at the heart of addressing these issues through ensuring meaningful participation processes, equality impacts assessment and by requiring local authorities and plans to deliver on sustainable development.

1.3 The Royal Commission on Environmental Pollution stated in its report The Urban Environment (2007) that: "there is little evidence that government at any level is tackling the quality of the urban environment and the quality of life in an integrated way."

1.4 The previous Government’s response to the Environmental Audit Committee eighth report (Session 2007-8) on local government [2] "shared the Committee’s view that action at a sub-national level is essential in enabling us to meet our ambitious but very necessary commitments to mitigating and adapting to climate change". The Committee’s report stated that "Local, regional and devolved government will never be successful in overcoming barriers to progress on climate change if they lack the motivation to take action or the barriers they face are too high." If the commitment to be the ‘greenest government ever’ made in May 2010 [3] holds, then ensuring that the Localism Bill is focussed on requiring positive outcomes for sustainable development is key.

1.5 The Committee on Climate Change’s second progress report (2010) [4] states that planning must deliver the renewable energy development required in order to meet carbon budgets. It also makes the point that transport planning is important for example in "constraining transport emissions growth through design of new developments (e.g. these might be close to workplaces, facilitating commuting by public transport rather than car)". The Localism Bill is the right place to ensure that planning and regional co-operation deliver climate change mitigation and adaptation through policies and development management.

1.6 The Sustainable Development Commission has pointed out in its submission to the CLG inquiry on Localism (2010) that "Some of the biggest challenges facing us are international and intergenerational in nature, for instance climate change and natural resource depletion. These critical issues can be difficult to address at the local level, especially when a community has more immediate priorities such as unemployment, poverty and health problems." Their evidence stresses the importance of community participation in sustainable development activities through various case studies. In particular the benefits of addressing local issues such as unemployment through creating new green jobs e.g. in retrofitting housing stock are both global, in helping to mitigate climate change, and local.

1.7 In order to safeguard the future and to build the strong communities and places, much more direction is required for local authorities. Directing the general power of competence towards delivering on sustainable development would create change from business as usual on the ground. This could be achieved with an amendment that says that the exercise of the function (the power of competence) must be with the objective of achieving sustainable development defined as meeting our needs without prejudicing the ability of future generations to meet their needs.

1.8 Planning must deliver on sustainable development. From the National Policy Statements to the National Planning Policy Framework, to the duty to co-operate, to Local Development Frameworks and Neighbourhood Plans, a common purpose is required. This is to ensure that the process of plan-making and decision-making are both working within the principles of sustainable development. Currently local plans are required to ‘contribute to the achievement of’ sustainable development and must have regard to national planning policy guidance, of which planning policy statement 1 (PPS1) sets out policy on sustainable development. Development control is not covered by the current legislation.

1.9 Amendments to the Bill should therefore ensure that national policy, the duty to co-operate and local and neighbourhood plan-making and development control are delivering sustainable development.

2. Climate Change

2.1 The urgency of the need to tackle climate change mitigation and adaptation is such that the planning system cannot afford to ignore the issue. Housing, energy, transport, retail, and business will all need to address adaptation to deal with issues such as increased flood risk and extreme heat. Mitigation of climate change is also a shared responsibility across sectors and across levels of planning.

2.2 The Committee on Climate Change has published its 4th budget report, which recommends that the Government adopts a 2030 50g/kWh CO2 target for the electricity sector, as part of an overall economy target of a 60% cut on 1990 levels by 2030. The critical implication is that this requires a steep and rapid decarbonisation pathway from now to 2030. Decarbonising must happen at a local, regional and national level of development planning and strategy.

2.3 The climate change provisions in the Planning Act 2008 do not apply to Neighbourhood Plans. The Localism Bill would need to be amended to ensure that Neighbourhood Plans have a specific objective to set out how they will address climate change, both in terms of mitigation and adaptation policies. Neighbourhood Development Orders have even greater potential to lock in high-carbon and inappropriate developments, in direct contrast to the need to address climate change.

2.4 The proposed National Planning Policy Framework is also not covered by an obligation on the face of the bill to set out integrated policies that are sustainable and contribute as a whole to the mitigation of and adaptation to climate change.

2.5 Friends of the Earth recommends that Neighbourhood Development Orders are limited to certain types of development and area, and that a specific requirement is laid upon orders to reduce carbon emissions in line with the Government’s carbon budgets, and to have a specific goal to address biodiversity and equality impacts.

3. Right to be Heard

3.1 There is growing tension between the stated desire of Ministers’ to enhance public involvement and the detailed impact of the Bill which clearly reduces proper public participation and creates inequality within the land-use planning system.

3.2 In a recent answer to a question on defining Localism, Greg Clark, Minister at CLG answered: "This Government have been clear that they want to see a radical redistribution of power away from central Government to local communities and people." [5] The Localism Bill fails to redistribute power equally, or to ensure that all people in their communities have a right to be heard in Neighbourhood Planning. Having failed to publish a White Paper on the proposals within the Localism Bill, the Government have not consulted widely on what their proposals might actually mean for people. The importance of process in creating a fair system has been missed by the Bill, which leaves the detail to guidance. With no White Paper it is hard to discover what the process might be, and whether it will deliver a local participatory, engaged and diverse approach.

3.3 The Localism Bill proposes two formats – Neighbourhood Plans and Neighbourhood Development Orders. Neighbourhood Development Orders are onerous and benefit the developer rather than the community. They reduce local public involvement in the planning system, and limit the window of opportunity for influence and engagement to a period before the order is adopted. There is also increased risk of infringing on people’s right to a fair hearing under Article 6 and creating tension and dissension within the community if the process of creating the order is faulty.

3.4 As the examiner is an important part of the process of creating the Neighbourhood Plan or Order, it is important that they are both independent and skilled. The bill should be amended to specifically provide for the Planning Inspectorate to undertake the examinations of Neighbourhood Plan and Orders.

3.5 The Neighbourhood Plan and Development Order examination process is defaulted to written representations (Schedule 10, Section 9(1)). Hearings on issues may be held at the discretion of the examiner. This is not a right to be heard as currently exists in the Local Development Framework system where in the inquiry, where any person wishing to make representations to change an aspect must be given an opportunity to appear before and be heard by an examiner. In addition, cross-examination is at the discretion of the examiner. For proper testing of the evidence and proposals, provision should be made for participants who have registered their interest in doing so to be enabled to cross-examine under the guidance of the examiner.

3.6 The Neighbourhood Plan process and the Neighbourhood Development Order are both time-consuming, costly, and technical processes which risk excluding members of the community who may, for a number of social and economic reasons, be unable to engage or to afford to plan. Support for the community is vital to ensure that Neighbourhood Plans set out sustainable development which achieves global and local goals, and builds resilience into communities.

3.7 Friends of the Earth recommends that amendments are made to the Bill to provide a right to be heard which is not discretionary and to acknowledge existing plans and community documents in all local decision-making by replacing Section 9 (1) in Schedule 10 with a clear right to be heard, the same as there is in the Local Development Framework process.

4. Equality

4.1 Local planning must deliver a fair and participative process which addresses inequality and actively and creatively engages people from diverse backgrounds.

4.2 The Localism Bill’s proposals risk increasing environmental injustice, as those who can afford and have the time and skills to plan are able to improve and safeguard their environment, and those unable to pay or participate may suffer increased high impact developments which cumulatively have negative environmental, social and economic impacts.

4.3 Equality impacts must be tested where for instance new housing and supermarket development replaces existing retail diversity within a market, community services and green infrastructure, adversely affecting access for those on lower incomes to food, jobs and open space. Adverse impacts such as for instance the cumulative impact of developments on air quality are particularly apparent in deprived communities, and the planning process must seek to redress and mitigate against these unfair outcomes.

4.4 Without a White Paper there has been no opportunity to adequately raise equalities concerns. In addition the Government’s own equalities impact assessment seems to imply that ethnic and disability groups have not come forward to discuss their concerns – but it seems that little effort has been made to ensure these groups’ view and expertise have been proactively sought out.

4.5 Where there is no Parish Council, the Bill provides for Neighbourhood Forums to create Neighbourhood Plans. These Fora are not ‘public bodies’ and are therefore not covered by the 2010 Equalities Act, nor by Freedom of Information requirements. This is of deep concern as they not democratically accountable. These fora cannot be said to represent the entire community and there is no clear way of challenging the process if you feel you have been excluded.

4.6 The Bill should be amended to specifically bring all planning bodies under the Equalities Act 2010 and to ensure that equalities impacts are tested at examination stage.

5. Third Party Rights of Appeal

5.1 The Localism Bill does not provide a third party right of appeal. This is a significant injustice in the current planning system, as at present only applicants may appeal a planning decision. Third parties have to seek judicial review which is costly and remote.

5.2 Ministers have spoken about the local and community power granted by the Bill. In fact the Bill creates a system of neighbourhood development orders which are very powerful in consenting development without the detail of a planning application, and within which process there is no right to be heard or right of appeal.

5.3 Developers, such as supermarket retailers, who apply for planning permission have a privileged right to appeal against a local council when their application is refused. Individuals and communities who object have no such right. This imbalance reinforces the impression of a planning system which is only interested in the developer, and reinforcing the power of those with property rights.

5.4 If the Government wants to reverse a situation where communities feel railroaded (particularly apparent in the case of some supermarket developments where repeated applications and appeals eventually triumph over community and local economic concerns) a limited third party right of appeal is essential.

5.5 It is clear that the decision-making process can go wrong. It is important that in these few cases that the situation can be remedied such as where the local authority has a clear conflict of interest.

5.6 In January 2002 a group of NGOs including Friends of the Earth, CPRE, RSPB and the Environmental Law Foundation published a major report [1] which analysed the case for third party rights. The report concluded that there was a powerful argument for the introduction of such rights and that this could be achieved without undue administrative cost or delay. The proposals highlight the need to qualify the right of appeal to focus only on those with a legitimate interest in a case and only on those cases which have major environmental impacts or represent a conflict of interest for the local authority.

5.7 Rights of appeal would be limited to between 1-5% of all planning applications. Ordinary householder applications would not be subject to appeal rights. Third party rights have existed in the Republic of Ireland since the 1930s and are successfully administered in Denmark, Sweden, New Zealand and parts of Australia. A clear and convincing argument would need to be made for an appeal to occur and to test a decision where it is clear that the process of decision-making has been faulty or extremely controversial. The Localism Bill should be amended to include a limited third party right of appeal.

February 2011


[1] Measuring Progress: Sustainable Development Indicators 2010, DEFRA http://www.defra.gov.uk/sustainable/government/progress/documents/SDI2010_001.pdf

[2] Climate change and local, regional and devolved government: Government Response to the Committee’s Eighth Report of Session 2007–08 http://www.publications.parliament.uk/pa/cm200708/cmselect/cmenvaud/1189/1189.pdf

[3] Prime Minister’s speech to DECC on 14th May 2010. http://www.number10.gov.uk/news/latestnews/

[3] 2010/05/central-government-emissions-to-be-cut-pm-2-50121

[4] Meeting Carbon Budgets – ensuring a low-carbon recovery 2nd Progress Report to Parliament Committee on Climate Change

[4] June 2010

[5] 7 February 2011

[1] ‘ Third Party Rights of Appeal in Planning’ by Green Balance, Leigh day & Co Solicitors, John Popham & Professor Michael Purdue, Jan 2002.