Localism Bill

Memorandum submitted by The Planning and Environment Bar Association (L 131)

1. INTRODUCTION

1.1. The Planning and Environment Bar Association (PEBA) is the specialist Bar Association for barristers specialising in planning, environment, compulsory purchase and compensation, highways, housing, rating and other aspects of local government and administrative law. It has approximately 300 members. Therefore the Bill embraces the core areas of PEBA members’ experience.

1.2. These representations are structured around the various Parts of the Bill and have benefited from detailed consideration by experts in the relevant topics, though the paper has been approved by the PEBA Committee on behalf of the Association. In many instances we support the Bill’s proposals or are neutral in relation to them. In others, we consider that legislative change is unnecessary or would be unhelpful, and in some cases, whilst supporting the principle, we point out drafting difficulties and possible solutions. We have concentrated in this response on areas of positive support or where we urge some amendment to the proposals.

2. PART 1, LOCAL GOVERNMENT

CHAPTER 4 - PREDETERMINATION

2.1. Draft Clause 13 which addresses the issue of pre-determination is unclear. To the extent that it seeks to prevent Members being debarred from participating in decisions which are locally contentious and on which they have previously expressed views within the democratic process, it is uncontentious but also unnecessary in the light of existing case law (see Condron v National Assembly for Wales [2006] EWCA Civ.1573 and R (Lewis) v Redcar BC [2009] EWCA Civ 3). To the extent that the draft clause can be read as going further and preventing sole reliance on previously expressed views as evidence of pre-determination, it goes too far. Where the previously expressed view looked at in context demonstrates a fixed mindset, incompatible with the proper exercise of the relevant statutory discretion, that should, in the absence of any evidence to the contrary, be sufficient to establish pre-determination. Otherwise the clause will provide a licence for what most would agree ought to be unlawful decision making. There is also ambiguity in the word ‘just’; in a situation where there is other evidence to support an allegation of pre-determination, presumably the intention is that the statement could be considered as part of the overall picture, but this point is far from clear.

2.2. It is unclear from the draft clause whether it is only indications of view on a matter or matters relevant to the decision which are to be accorded the protection of the provision or whether it will also extend to expressions of view on what the decision itself should be. This needs to be clarified.

2.3. The scope of the application of Clause 13 needs to be carefully considered. Whilst it is unobjectionable in the context of administrative decision making (e.g. decisions on planning applications), it would be inappropriate for the latitude which the clause provides for to apply in the context of quasi judicial decision making by local authorities e.g. town and village green applications.

3. PART 1, LOCAL GOVERNMENT

CHAPTER 5 - STANDARDS

3.1. The intention to abolish compulsory codes of conduct is noted. PEBA considers that it would assist in discharging the duty to maintain and promote high standards of conduct in Clause 15 if guidance as to core principles of conduct were to be issued by Central Government; such guidance should stress the central importance of fairness and transparency in the discharge of all local authority functions. Specifically with regard to planning functions, PEBA is preparing a response to the Government’s development of the National Planning Policy Framework which will suggest certain core principles to be enshrined in national planning policy.

3.2. The intention to criminalise breaches of obligations relating to Members’ interests is noted. To be effective this will require the term "prejudicial interest" to be given a greater clarity of definition, than is presently found in The Local Authorities (Model Code of Conduct) Order 2007. Unless this is provided, Members will be compelled to take an ultra cautious approach to their participation in certain decisions so as not to expose themselves to an uncertain risk of criminal prosecution. Such clarity should be capable of being achieved by suitable drafting of regulations under Clause 17, and in particular, Clause 17(2)(a).

4. PART 4 COMMUNITY EMPOWERMENT

CHAPTER 1 – LOCAL REFERENDUMS

4.1. The provisions of Chapter 1 are noted, specifically Clause 44(5), which enables the Secretary of State by Order to provide that a matter is not to be treated as a relevant matter susceptible to the referendum provisions. PEBA strongly urges that this power of the Secretary of State be exercised to exclude matters relating both to planning and applications under s.15 Commons Act 2006 for registration of new town and village greens ("TVG"). The reasons for this view are as follows:

(a) New TVG Applications

Under s.15 Commons Act 2006, the determination of such applications is simply a matter of applying the law to the facts. There is no element of policy or administrative discretion. Nevertheless, such applications frequently provoke much local feeling and, unsurprisingly, the limited nature of the Registration Authority’s role is not generally well understood. Whilst it might be argued that TVG applications do not fall within Clause 44(3)(a) insofar as the Registration Authority’s role does not allow it to "influence" the outcome of applications, such a construction might be considered strained and confusion could readily be avoided by the means suggested of excluding such applications by order.

(b) Applications under ss.191, 192 Town and Country Planning Act 1990

Applications for Certificates of Lawfulness, like TVG applications, afford no scope for policy considerations or the exercise of a discretion. Once again, it is possible to envisage situations where such matters, which do sometimes generate controversy, could become the subject of a referendum. Alternatively, more subtle difficulties might arise if a planning situation which was locally perceived to be unsatisfactory and was subjected to a referendum came subsequently to be the subject of an application for a Certificate of Lawfulness.

(c) Applications for Planning Permission and Enforcement

The arguments for exclusion are less clear-cut because of the existence of discretion under s.70 and Part VII Town and Country Planning Act 1990. Nevertheless, PEBA considers that the public interest would be served best by exclusion. The Bill reaffirms its commitment to the development plan in a number of ways which PEBA supports (in comments below). The development plan system has a long track record as the means for formulating planning policy and in recent years it has been adapted to incorporate the requirements of European law in relation to Strategic Environmental Assessment. The development plan and development control systems also include important elements as a result of which the domestic and European Courts have been able to hold that they are consistent with the European Convention on Human Rights. Government Guidance on the planning system has for several years [1] rightly stressed the importance of carrying out planning functions on the basis of material considerations. Public expressions of opinion may be material, insofar as they are based upon considerations which are material to planning. Referendums under Part 4 Chapter 1 of the Bill would not be so constrained. Votes might, for example, be actuated by a range of considerations ranging from the material (concern to protect designated areas such as SSSIs from the effects of development) to the immaterial (concern to protect property values or dislike of Government policy, e.g. – for sake of argument – renewable energy policy). A referendum question, for example, might be framed in opposition to one or more extant or possible future renewable energy applications. If a majority of voters were in agreement, it would then fall to the Local Authority to consider what steps (if any) it proposed to take to "give effect to the result" (Clause 52(3)). It is very difficult to see what meaningful steps it could lawfully take without either risking predetermination or undermining the development plan, the latter having been prepared with proper regard to all considerations, including Government policy and international obligations, and subjected to independent scrutiny by a planning inspector.

5. PART 4, COMMUNITY EMPOWERMENT

CHAPTER 4 – LIST OF ASSETS OF COMMUNITY VALUE

5.1. The provisions of Chapter 4 are noted. At present the effects of land’s being included in the list are unclear. Although under Clause 79(3)(a) a local group can be treated as a "potential bidder", nothing is said about the implications of that status. For example, it is unclear whether:

(a) the landowner is bound to accept their bid, irrespective of its terms; and/or

(b) whether any bid is to be made at market value and/or how market value is to be ascertained.

5.2. Clause 82 provides for the making of regulations dealing with compensation, but does not explain the basis for a payment of compensation. There is likely to be some overlap with points (a) and (b) above. In the absence of such regulations, it is difficult to discern the purpose or impact of the proposals and/or to form a view as to potential compliance with Human Rights legislation. Presumably inclusion in the List is potentially capable of amounting to a material planning consideration, but again, at present, the precise interrelationship with planning control is unclear. The nature of "assets of community value", it is noted, is to be defined in regulations, which further limits the extent to which PEBA can comment at this stage.

6. PART 5, PLANNING

CHAPTER 1 – PLANS AND STRATEGIES

6.1. Simplification of provisions for Local Development Schemes in Clause 91 is welcomed.

6.2. The new power contained in Clause 92 for local planning authorities to be able to withdraw a DPD after submission to the Secretary of State but without his consent is welcomed. This will add much needed flexibility to the Local Development Framework at the later stages of plan preparation.

7. PART 5, PLANNING

CHAPTER 2 – COMMUNITY INFRASTRUCTURE LEVY

7.1. The proposal for regulations to make provision for the examination of the charging schedule is welcomed. PEBA would welcome the opportunity to comment on any draft regulations. We consider it vitally important that adequate opportunities are made available to interested parties to test the evidential basis of charging schedules. Schedules are likely to have profound effects upon the delivery of development and it is therefore in the public interest that they be subjected to rigorous examination. Given the importance of Schedules in economic terms, provision should be made for ensuring that examiners receive adequate assistance by means of oral hearings with proper representation, cross examination, submissions and, where necessary, the appointment of expert assessors. The role of cross-examination has been considered in the planning context by the courts in  R v Warwickshire County Council ex parte Powergen plc (1998) 75 P&CR 89, and, more recently,  Bradley v Secretary of State for Work and Pensions [2008] EWCA Civ 36, and Mayor of London v LB Enfield (2008) Env LR 33. In these cases, the Court of Appeal  were concerned with decisions by a second public authority where the matter at issue had already been considered by another public authority, and whether the second authority was bound by the conclusions of the first. In Bradley , the CA said that, in deciding this question, the court would "in particular" have regard to " the basis on which the finding was made (e.g. an oral testimony tested by cross−examination, or purely on the documents), the form of the proceedings before the tribunal (e.g. adversarial and in public, or investigative with no opportunity for cross−examination) ".  The approach set out in Bradley was followed in the Enfield case. These cases are a powerful reminder of the vital role cross-examination can play in "getting to the bottom" of important issues. Of course, it is entirely right that the tribunal should carefully control cross examination to ensure that it is used proportionately and in appropriate cases.

7.2. Clause 95 proposes useful clarification of the purposes, scope and implementation of CIL. It is supported.

8. PART 5, PLANNING

CHAPTER 3 – NEIGHBOURHOOD PLANNING

8.1. PEBA broadly notes the principles of Chapter 3, but suggests that consideration be given as to whether Neighbourhood Development Orders ("NDOs") and Community Right to Build Orders are both required. There appears to be some overlap in terms of objectives and streamlining is likely to make the provisions easier to understand and use.

8.2. PEBA supports proposals for the independent examination of NDOs and Neighbourhood Development Plans. We recommend that there should not be a presumption against oral hearings (Schedule 10, paragraph 9), given the importance to local people of these provisions. We consider it important that there should be a clear entitlement to be heard, so that the Government’s policy of promoting local involvement in planning may be given full effect. PEBA notes and supports the recognition in the Schedule that questioning will sometimes be appropriate, but suggest that this should go further, as explained above.

9. PART 5, PLANNING

CHAPTER 5 - ENFORCEMENT

9.1. PEBA supports the general thrust of Chapter 5, but Clause 103 of the Bill is poorly worded, likely to be largely ineffective and does not presently do what is intended.

9.2. Whilst giving local planning authorities a power to refuse planning permission for development which would contravene a valid enforcement notice may be superficially attractive, the draft clause is silent on the criteria relevant to the exercise of that discretion. It is important that such a discretion should be exercised both rationally and consistently and, to reflect other comparable provisions (e.g. section 70A of the Town and Country Planning Act 1990) some statutory criteria should be provided. These will need to include whether or not there has been a material change in development plan policy applying to the relevant land since the enforcement notice took effect or whether there has been any other material change of circumstance. Given that it is rare for applications for development to be sought on land the subject of a valid enforcement notice, other than where there has been a material change of circumstance since the notice took effect, the practical utility of this provision may be questionable.

9.3. The restriction on the right of appeal against an enforcement notice where a planning application for the development enforced against remains undetermined and the time for appealing has not expired needs to be re-thought. With the present drafting, an enforcement notice could take effect (with no right of appeal), and non-compliance would become a criminal offence, notwithstanding that the planning merits of the offending development had not yet been resolved. Prosecution and other enforcement in such circumstances would be impractical, not least because of the likely Human Rights implications and there is no obvious logic in the approach of the Bill.

10. CHAPTER 6 – NATIONALLY SIGNIFICANT INFRASTRUCTURE PROJECTS

1O.1 PEBA does not have a corporate view about the intention to abolish the

Infrastructure Planning Commission. It is, however, deeply concerned

to stress the importance in any replacement system of ensuring that proposals are, and are seen to be, rigorously examined and that adequate time is built into the examination stages to enable that to happen. NSIP applications will, inevitably involve complicated issues and many areas of expertise, some of them abstruse. Such proposals are also likely to affect the lives of those living around them profoundly, as well as the national interest. PEBA believes it to be essential that these factors are recognised and given real weight in the consideration of the proposed changes. The issues are, perhaps, particularly sensitive in the public mind since Parliament decided, in enacting the Planning Act 2008, to transfer decisions on major national projects from ministers to an independent body. Plainly it is in everyone’s interests that decisions on the projects involved be sound, not only in the narrow legal sense of being judicial review-proof, but also in terms of commanding public acceptance. Exactly the same principles apply to the determinations which will remain to be made under the Town and Country Planning Act 1990. Here again, and with an eye to the reorganisation of IPC and PINS necessitated by the proposed changes, PEBA cannot overstress the importance of preserving the high standards of rigorous and effective examination established by PINS in their public inquiry work.

February 2011