Localism Bill

Memorandum submitted by the North Warwickshire Borough Council (L 142)

North Warwickshire Borough Council – Appendix 1

Public Bill Committee submission

Agenda Item No 14

Executive Board

7 February 2011

Report of the Assistant Chief Executive

and Solicitor to the Council

The Future of Planning Policy

1 Summary

1.1 This report outlines the proposed changes to the planning regime and gives a suggested work programme.

2 Consultation

2.1 Portfolio Holder, Shadow Portfolio Holder and Ward Members

2.1.1 The contents of the report were discussed with the LDF Advisory Panel and their comments will be verbally brought back to Board.

3 Introduction

3.1 A number of changes have already been proposed to the planning regime with the introduction of self setting fees for planning control, changes to permitted development. The biggest changes to date are being proposed through the introduction of the Decentralisation and Localism Bill. The Bill was published on 13 December 2010. There are other provisions in the bill which may impact on the planning side but this report concentrates on the planning implications of the Bill. These other issues include:

· Governance (Part 1; Chapter 3)

· Standards (Part 1; Chapter 5)

· Provisions on local government finance, including business rates (Part 3)

· The powers of elected Mayors outside London (Volume II, Chapter2)

· Local referenda (Part 4 Chapter 1)

· The Community Right to Challenge (Part 4 Chapter 3) and

· Assets of Community Value (Part 4 Chapter 4)

The Bill is currently out for consultation and is explained in more detail below. Regulations will be subsequently published to put meat on the bones of the proposals within the Bill. These may start to be published from June 2011.

4 Decentralisation and Localism Bill

4.1 The table below gives a summary of the changes affecting both planning policy and development management.

Planning Policy

Regional Spatial Strategy

to be abolished

Infrastructure Planning Commission

to be abolished

Local and Neighbourhood Planning System

· There will be statutory local plans and within that context, Neighbourhood Plans

· Neighbourhood Plans will be a part of the development plan, but will not be "Development Plan Documents"

· Designated bodies such as Town and Parish Councils and neighbourhood forums will be allowed to prepare Neighbourhood Plans

· Where there are no Parish or Town Councils, the local authority will adjudicate on the boundary of the plan that a neighbourhood forum wants to prepare

· Where there are no Parish or Town Councils, the local authority will be responsible for designating the formation of a Neighbourhood Forum. The basic criteria for these are that they should have at least three residents as members, be open to all residents and have a constitution.

· Recognised that not all areas will want to do a Neighbourhood Plan and, therefore, there will not be a statutory duty to prepare one – but there will be a right to do so (a ‘right to plan’).

· A local planning authority will have a duty to provide support to neighbourhoods undertaking planning, including technical support and the arranging, and holding, of the independent examination and the referendum.

· Not clear whether those preparing a plan – or the local planning authority will be required to consult on it.

· Neighbourhood Plans will undergo an independent examination, checking whether the Neighbourhood Plan is in conformity, or aligns, with:

o The strategic content of the local plan

o The National Planning Framework or other national guidance;

o The presumption in favour of sustainable development;

o European Directives;

o National and international designations (e.g. Ramsar sites);

o Neighbouring neighbourhood plans.

· Subject to passing the independent examination, the plan will be put to a local referendum and will be ‘approved’ if more than 50 per cent of those voting do vote for it.

· If the referendum is positive, then the local authority will have to adopt the Neighbourhood Plan.

· The Local Plan will take on a strategic role and will contain e.g. housing numbers, strategic infrastructure etc. The Neighbourhood Plan will have to accommodate these strategic proposals – and can accommodate more if they want to (but not less e.g. housing than is specified in the local plan).

· Neighbourhood Forums (potentially very small groups of people) may designate areas where ‘Neighbourhood Development Orders’ will apply – areas where certain types of development will no longer require planning permission or where different planning rules will apply, including the granting of outline permission subject to conditions to be approved by the local planning authority. Where a scheme is brought forward by a community group itself, the group may seek an NDO giving it a community right to build. This too will be subject to a referendum but a local authority can refuse to accept it if it is contrary to, for example, national or international environmental designations.

Resources for Neighbourhood Planning

The Bill makes it clear that the funding for neighbourhood planning will come from those developments that gain permission through being part of a Neighbourhood Development Order. There may also be possible financial assistance by the Secretary of State.

Neighbourhood Development Orders

· Any body that is entitled to initiate a neighbourhood plan may also make a neighbourhood development order (NDO). An NDO grants planning permission in relation to a particular neighbourhood area for specific classes of development. It requires support from more than 50% of voters in a referendum. There are excluded development categories from designation under a NDO which include county matters, waste development, Annex 1 environmental assessment applications, and other development that is prescribed.

· The body which makes such an order is either a Parish Council or a neighbourhood forum (a body designated by the local planning authority, subject to meeting criteria of purpose, open membership, containing at least 3 residents and with a written constitution). There must be only one such body for any neighbourhood area, as designated by the LPA. After 5 years the designation of the forum ceases.

A Duty to Cooperate

· The Bill does not appear to apply the Duty to Co operate to the need to reach agreement on policy, on joint working or on, for example, joint funding but focuses on a duty to respond when consulted and to provide information when requested.

· It is not clear from the Bill to whom this duty will apply but states that persons will be prescribed.

General Power of Competence

The Bill will give local authorities a General Power of Competence, allowing them to do anything which is not specifically prohibited by law.

Community Infrastructure Levy

· The Bill contains Clauses that deal with the evidence base for the setting of CIL and the powers of the independent inspector.

· It also allows for regulations to specify the transfer of CIL receipts from the charging authority to other persons. This Clause is explained in a DCLG statement on CIL which says that:

"The Government will require charging authorities to allocate a meaningful proportion of their levy revenues raised in each neighbourhood back to that neighbourhood ..."

Development Management

A duty on developers to consult

The Bill shifts the duty to consult on to the applicant for applications for planning consent and those made in the context of a development order.

Predetermination

This Clause needs to be read in conjunction with a statement issued by DCLG ( http://www.communities.gov.uk/news/corporate/1768609 ) which says that:

These proposed legislative changes will mean councillors can be very clear and discuss freely their view and voting intention and publicise their views as they see fit. However, councillors must be prepared to listen to arguments and evidence before making their decision. These changes will reduce the threat of challenge

Enforcement

· Gives local planning authorities powers to decline to deal with the "twin tracking" of retrospective planning applications and appeals against enforcement notices.

· Allows enforcement action to be taken where the normal time limits for taking action have expired, but where the breach of control was concealed.

· Rises the maximum penalties for certain offences.

· Gives certain additional powers for LPAs to take direct action against unauthorised advertisements and the defacement of buildings.

Community Right to Buy

5 Observations

5.1 There is no provision in the Bill for the National Planning Policy Framework (NPPF). There is still a commitment to do this but not through statute. Planning legislation already allows the Secretary of State to issue guidance to which local planning authorities must have regard. There is currently a consultation requesting suggestions as to what should be included in the new NPPF

5.2 It is welcomed that there is clarity as to the Regional Spatial Strategy being finally formally abolished.

5.3 It is clear that a strategic planning policy document for the Borough is still required in some form. This could be developed by the Council or in partnership with other authorities. For example, a Joint Core Strategy could cover the LEP area. A further report will be brought to members to discuss this issue once the situation is clearer. In the meantime, it is recommended that work on a Borough-wide Plan continues.

5.4 The introduction of Neighbourhood Plans appear s very complex and there are a number of questions which remain unanswered . For example it is unclear the status of Neighbourhood Plans. S tandards of probity that apply to elected members apply equally to the repre sentatives of Community Forums as well as a duty to consult on those preparing Neighbourhood Plans and Development Orders. Neighbourhood plans are to be recognised by the Borough Council, as long as they fit in with the wider strategic plan for the area. Any group of individuals (a minimum of 3 residents) can join together to create a neighbourhood forum, which the Council has a duty to recognise and they can prepare a neighbourhood plan, which again if it fits with the strategic plan has to be recognised. It would appear that businesses cannot create a neighbourhood even in a predominantly business orientated area.

5.5 In the short term it is unclear what help is required by the Borough Council or if a fee could be charged by the planning policy team to provide support and guidance to the neighbourhoods. This then leads to questions over the neighborhoods being able to afford to create these plans. Within Neighbourhood Plan it can state what development will be allowed and if a development is proposed that fits with this plan no planning application to the Borough Council is required. Qualifying bodies are unlikely to have access to the expertise and resources to see through the process of designation and properly administer applications in such an area. It is unclear where this leaves Local Development Orders and if you can have NDO’s without a Neighbourhood Plan. In the long term this will have implications on the number of fee paying planning applications submitted to the Borough Council. It is important that if these are to work that there is sufficient resources and expertise are available to all communities to participate in neighbourhood planning and the designation of Development Orders.

5.6 In relation to the duty to co-operate t here are already numerous examples of joint working in spatial planning including the preparation of joint Local Development Framework core strategies; Sub regional working and sub regional strategies. There must be some doubt as to whether the Duty , as defined in the Bill , will have the effect of encouraging local authorities to work together to help deliver priorities that cannot be delivered within a single authority’s area, nor of resolving conflicts when they are unable to be resol ved by the councils themselves, as t he Bill does not define a failure to co operate , nor , does it specify any sanctions for failure to co operate or define bodies which may be responsible for encouraging, monitoring and taking action on co operation.

5.7 The duty of applicants to carry out consultation should be welcomed and has been encouraged by officers for some time. However the proposals leave a number of questions:

· How, and by whom, will it be judged as to whether the duty has been fulfilled satisfactorily?

· Will it be accompanied by a power to refuse to accept applications on which consultation is deemed inadequate;

· Will it replace or run in parallel with existing regulations/practice on notification?

5.8 In relation to the Community Infrastructure Levy the Borough Council is not yet a formal charging authority. As part of the Borough-wide Plan an Infrastructure Delivery Plan will be required. This will give the evidence as to what levy could be set. It is clear that Neighbourhood Plans could also provide evidence by which a community’s priorities for spending CIL are established. The issue of a ‘meaningful proportion’ of the sum raised is direct ed to communities then this may have implications on the proportion of CIL spent on strategic infrastructure. For example improvements to the A5 may be seen as a strategic priority for CIL but not by the Neighbourhood Plan. A balance would need to be struck when introducing the levy.

5.9 There is concern that the clause in the Bill relating to predetermination will fail without greater clarity being given as to what actions on the part of an elected representative would constitute evidence of having a closed mind. Until that is established, this offers no further assistance to guide C ouncils as to the appropriate early involvement of elected representatives in planning discussions.

5.10 Local Enterprise Partnerships (LEPs) are not to have a statutory purpose. The Government do not intend to define local enterprise partnerships in legislation. Governance structures will need to be sufficiently robust and clear to ensure proper accountability for delivery. Partnerships will differ across the country in both form and functions in order to best meet local circumstances and opportunities. A partnership may need legal personality or a specified accountable body in some circumstances, such as if it wished to own assets or contract to deliver certain functions. The Constitution and legal status of each partnership will be a matter for the partners, informed by the activities that they wish to pursue.

5.11 There were indications that a presumption in favour of sustainable development would be introduced through the Bill but it is now likely to be stated in the proposed National Planning Policy Framework. T). The Bill will, therefore, be deficient if it includes this presumption without defining the term in statute in a way that embraces the implications of climate change – at least as embodied in current legislation. Also it is important that the presumption in favour of sustainable development does not overrule the presumption in favour of the development plan.

6 Evidence base

6.1 As Members are aware the previous LDF system relied heavily on evidence to prove why policies are developed and implemented in certain ways. This has not changed with the proposed changes. With the proposed loss of the Regional Spatial Strategy there are now no other policy documents setting out a regional or sub-regional stance and also perhaps more importantly paying for evidence to be provided. It will be important that work is carried out to ascertain what the future requirements for housing and employment will be. It is proposed that as part of the work programme that this is explored.

7 Next Steps

7.1 It is clear from the Bill that the Borough will require a Strategic Planning document and it is recommended that a Draft Plan be brought back to Board in the Autumn with an aim to consult over the winter. Some of the legislative changes should be clearer by this stage.

8 Report Implications

8.1 Resource Implications

8.1.1 The full extent of the resource implications are unclear at the present time. The new system of neighbourhood plans could be resource intensive with very little opportunity to seek payment. Once there is a greater clarity on this matter a further report will be brought back to Members.

8.2 Environment and Sustainability Implications

8.2.1 Although the full implications of the proposed changes to the planning policies and regime are not fully defined at this stage the changes will influence how sustainable communities are developed in the future. The influence that sustainable community strategies will play in the future needs to be confirmed together with greater clarity about how the planning regime will work in the future.

February 2011

EXTRACT FROM MINUTES TO EXECUTIVE BOARD REPORT ABOVE

NORTH WARWICKSHIRE BOROUGH COUNCIL

MINUTES OF THE 7 February 2011

EXECUTIVE BOARD

63 The Future of Planning Policy

The Assistant Chief Executive and Solicitor to the Council reported on proposed changes to the planning regime and the Board was asked to agree a suggested work programme. In addition a draft letter to the two MPs representing North Warwickshire expressing concern about the changes to the planning system was circulated.

Recommended:

a That the report be noted;

b. That the draft letter to the Borough’s MPs on this Councils concerns about the changes to the planning system be sent;

c. That a Sub-Committee of the Executive Board be set up to replace the existing LDF Advisory Panel, consisting of 5 Members to be nominated by the Leader of the Council and 3 Members nominated by the Leader of the Opposition; and

d. That this Sub-Committee proposes draft terms of reference for the nex t Executive Board meeting.