Localism Bill

Additional Memorandum submitted by Birmingham City Council (L 168)

Summary of Evidence

1. This memorandum provides further input from city council officials on some of the matters raised in the submission from Members of Birmingham City Council. The intention is to draw attention to areas where the drafting of the bill may cause difficulties in implementation or where we can see better ways of achieving the Government’s intentions, based on our experience.

2. The matters covered are:

a) The power of general competence. The provisions on charging and "company structures" are too restrictive

b) Local referendums. There needs to be a provision to prevent repetitious referendums within a limited time period

c) Mayoral management arrangements. There is the potential for confusion over the roles of specified persons

d) Duty to co-operate on sustainable development. There should be a requirement to engage business in the process as a simple way of bringing LEPs into this provision

e) National planning policy framework. The Bill should ensure that a clear framework is in place to support policy development and that it has regard to climate change

f) Neighbourhood planning. We suggest allowing Planning authorities to manage the number of neighbourhood plans in any given year so as to control the resource implications and for them to have more flexibility with regard to local planning documents

g) Neighbourhood forums. Forums should be encouraged to involve local businesses and the inclusion of those wanting to live in an area should be removed. We suggest consideration of a referendum to establish a forum in order to avoid conflict over its recognition

h) Neighbourhood Development Orders. We suggest that the principles of the orders are set out and tested in the Neighbourhood Plan first

i) Pre-application consultation. Planning authorities should be advised of consultation and there should be a threshold for this

j) Community Interest Levy. The use of this should have a clear link to the Local Plan and the government needs to think again about the bodies responsible for spending this money

k) Duties to homeless persons. We suggest that these apply to RSLs as well as councils

l) Tenancy strategies. There should be a requirement for RSLs to comply with the tenancy strategy

m) Housing finance. The power to revisit the proposed council housing finance settlement should be dropped.

Power of General Competence – Clause 3

3. The proposal for limiting charges to "not exceed the cost of provision" – Clause 3(3) – is unnecessary and would work against the Government’s intention of reducing Central Government controls over Local Government. Limiting innovation and creativity to a "company structure" (as defined in the Bill) is too restrictive and from an operational perspective.

Local referendums – Clause 44

4. Local authorities should be permitted to reject a request for a referendum which has been the subject of a petition, during the past 12 months, "on the same, associated or similar matter" so as to avoid public funds being wasted on unnecessary referendums. This is established practice with regard to e.g. mayoral referendums.

Mayoral management arrangements – Schedule 2, Paragraph 9HA

5. Whilst the arrangements make it clear that the Authority’s Head of Paid Service would report to the Elected Mayor and that the Elected Mayor holds office on such reasonable terms and conditions, it is unclear why the Elected Mayor would become "the most senior officer of the Local Authority" or what would be the legal impact of such a provision as the Mayor would still not be an "employee of the Council". Accordingly, this particular requirement could well be void for uncertainty, as a matter of legislative construction.

Duty to co-operate on sustainable development – Clause 90

6. The committee has debated the need to bring the new Local Enterprise Partnerships (LEPs) within this provision and the Government is committed to returning at Report with proposals (16th sitting, 17 February). We are keen that the LEPs should be able to play a strategic role here, but we are also concerned to avoid the top-down and bureaucratic definition of LEPs that this could bring. We suggest a small amendment as follows to require engagement with the business community. This would enable Planning Authorities to work through their LEPs to meet this condition and is in any case a desirable stipulation.

Amendment: Clause 90, subsection (1) insert after (b) in line 8 "and engage with the business community of the area".

National planning policy framework – Part 5. chapter 1 OR Clause 109 and Clause 90

7. In order to deliver the wider social, economic and environmental objectives for the country in the absence of Regional Strategies the local tier of planning requires coordination and guiding principles that have weight in decision making. The emphasis on a concise and clear national planning policy framework (as distinct from policy statements related to particular infrastructure developments) should enable the local level to operate without significant top down pressure but provide clarity and leadership on the national interest and the wider sustainability aims including economic growth, housing and climate change.

Amendment: An amendment should be made with the affect that a national planning policy framework will be produced and be subject to Parliamentary approval.

8. Climate change is the greatest long-term challenge facing human development. It is one of our biggest economic, social and environmental challenges. The planning system has a central role in meeting the challenges presented by Climate Change. Given the importance of Climate Change it is vital that this duty is effective on all aspects of the planning process. This amendment is set to be put forward by the Town and Country Planning Association.

Amendment: After Clause 90 in the L o calism Bill :

‘(1) In Part 3 of the Planning and Compulsory Purchase Act 2004 insert-

"39A Climate Change

(1) This section applies to any person who or body which exercises any


(a) under Part 2 in relation to local development documents;

(b) under Part 4 in relation to development control;

(c) under Part 6 in relation to the Wales spatial plan or a local development plan; and

(d) under Schedule 4 of the Planning Act 1990 in relation to neighbourhood development plans and neighbourhood development orders.

(2) The person or body must demonstrate that the development and use of land under consideration has taken into account the implications for climate change and includes appropriate mitigation and adaptation’.

Neighbourhood Planning – Part 5 Chapter 3

9. The introduction of neighbourhood planning presents a positive step toward engaging a much wider interest in planning at the local level. There are however a number of practical issues for implementing neighbourhood planning and amendments are proposed to address these.

10. Implementation of neighbourhood planning. One of the key challenges of the Bill is the ability of Local Planning Authorities to resource the introduction of neighbourhood planning whilst still meeting the existing pressures to achieve sustainable development and deliver an efficient and effective service. The Bill proposes a range of procedural changes but these are minimal in terms of lifting the burden on Local Planning Authorities through freeing up resources. There is a need to be mindful of the limited impact of those changes while at the same time acknowledging the additional requirement that neighbourhood planning presents.

11. With neighbourhood development plans forming part of the statutory development plan there is a strong emphasis on technical assessments (SEA/SA and EINA) and suitable evidence to support policies in those documents and any independent examination. There is already a significant burden on council resources due to the requirements of producing statutory development plan documents and the government underplays the requirements of this in addition to supporting neighbourhood plan production. Similarly neighbourhood development orders also present a challenge for Local Planning Authorities in assessment and mediation but also enforcement.

Amendment: The bill needs to enable local authorities to manage the number of neighbourhood plans and orders they support in any given year.

12. Nature of neighbourhood planning documents. Producing plans at the most local of levels is important to ensure communities get a much greater say in the way their area develops. In giving communities this power consideration also needs to be given to the appropriate method by which this can be implemented. The level of work, including technical requirements and examination of producing a development plan document, need to be considered against the outputs and coverage they provide.

13. Where a neighbourhood plan is being produced to allocate sites for development then the only option is for a development plan document to be produced. However there will also be cases were no new land over and above the Local Plan is identified and the neighbourhood plan focuses on policies to direct how the area develops. In this case a development plan document would not be the most time and resource efficient means to provide this detail for both the local community and the local planning authority. In such instances a supplementary planning document would be the most appropriate format providing a planning document that is a material consideration whilst being proportionate to the scale of the task in terms of resources, time and technical input.

Amendment: Give local authorities the power, in conjunction with neighbourhood forums, to determine whether a Neighbourhood Development Plan should be a supplementary planning document or a development plan should be produced for the area.

Neighbourhood Forums – Schedule 9, 61F

14. Membership of forums. It is unclear how prospective residents who do not have a stake in the area through land or property would be best placed to understand the needs of an area or represent the interests of others living in that area. There is an issue as to how legitimacy of a desire to live in area can be assessed.

Amendment: Delete references to persons "wanting to live" in an area:

Schedule 9 Part 1 Section 61F (5) (a) Delete reference to ‘or wanting to live’
Schedule 9 Part 1 Section 61F (5) (b) Delete reference to ‘or wanting to live’

15. Involvement of business. Neighbourhoods can manifest themselves in many ways and businesses play an important role in many local areas through their investment and job creation. The role of businesses is perhaps intrinsic in the social and economic well being of an area and as such their role needs to be properly acknowledged in determining the future planning of the local area.

Amendment: include reference to local businesses either collectively through a business association or BID or individually through a forum. A possible amendment to this affect has already been proposed by David Ward MP (amendment 207) as follows:

Schedule 9 Part 1 Section 61F (5) (a) Insert after individuals living, ‘or businesses registered’
Schedule 9 Part 1 Section 61F (5) (b) Insert after individuals living, ‘or businesses registered’

16. Accountability of forums. The accountability and representative nature of those responsible for neighbourhood planning should be a key component for any new system to ensure community cohesion is placed at the forefront of Localism. Experience of local governance in a complex and diverse urban area shows that this can have serious practical implications as well as being a matter of principle, such as difficulties and delays with reaching decisions. It is unclear how three members from a neighbourhood setting up a forum would be in a position to represent the needs of the whole community. Provision needs to be made to ensure that those members of the forum represent the wider interest and are best placed to serve the neighbourhood. This would reflect the similar situation found in Parish Council’s where the responsible body is elected by those it represents providing level of accountability.

Amendment: Various amendments have been proposed which provide for an increase in the requirement for there to be three members of a forum or the use of mechanisms such as parish or community councils. The government should consider these carefully as well as the option of requiring a forum to be legitimised through a referendum (which would be consistent with the requirement to endorse a neighbourhood plan in this way). In addition we would urge the government to consider how forums can work together with other aspects of local democracy such as elected ward councillors or ward (area based) committees.

Neighbourhood Development Orders – Schedule 9, Part 1, 61E

17. Co-ordinating the approach to neighbourhood development orders. Having a clear link between the different levels of planning will assist in creating a more consistent and transparent system. Impacts of neighbourhood development orders could be wider ranging than the immediate locality of the order. The neighbourhood development plan or Local Plan presents the opportunity to test the idea of relaxing planning controls for a neighbourhood or part of one and link into broader principles for how development should happen in an area.

Amendment: Include wording setting out that the principles of neighbourhood development orders are tested and set out through the neighbourhood development plan or Local Plan and with detailed covered in the order. For example:

Schedule 9 Part 1 Section 61E. Insert new sub-section after (2): ‘A neighbourhood development order may only be made where the area and proposal is subject of an adopted neighbourhood development plan or Local Plan’

Pre-application consultation – Clause 102

18. Ensuring pre-application consultation is inclusive and consistent. The need for transparency is important. The involvement of the Local Planning Authority upfront in the process will ensure that schemes are not presented to communities that may not have been fully considered against the Local Plan and other material considerations. LPAs should also be able to determine the types of development that should undergo pre-application consultation to reflect the fact that one scale of development in one part of the country may not be as significant as in another part.

Amendment: The Bill needs to clarify the threshold at which pre-application consultation takes place to cover schemes that are likely to have an impact on the neighbourhood in which they are proposed. Reference to Local Planning Authorities being advised of the undertaking of pre-application consultation with communities should be made and with opportunity to input to the process.

Duties to homeless persons – Clause 125

19. We suggest that the duty to meet homelessness needs is extended to Registered Social Landlords (RSLs). This will be particularly important following the introduction of flexible tenancies.

Tenancy Strategies – Clause 127

20. We suggest that the full intention of the requirement for Tenancy Strategies can be better met if all RSLs are required to comply with this policy. Without such a requirement it is not clear how the introduction of flexible tenancies will meet the Government’s aim of making better use of the affordable or social housing stock.

Housing finance – Clause 142

21. The power which the bill would give the Secretary of State to revisit the finance settlement would damage the certainty of future financial planning and undermine the Government’s aims of creating a more self-sufficient housing system. It is difficult to see what matters would change since the original calculations are based on established historical data. This could be amended so that the settlement can only be re-opened in the event of changes in external factors such as interest rates or national rent policy.

March 2011