Localism Bill

Memorandum submitted by The Hampshire Association of Local Councils (L 182)

Submission to the Parliamentary Localism Bill Committee

The Hampshire Association of Local Councils (the ALC) is a not for profit company and membership organisation supporting the 261 parish and town councils of Hampshire (including 21 parish meetings). The ALC currently has in membership 97% of all councils in Hampshire and offers a range of services, information provision, representation and networking opportunities.

The ALC made an initial submission some eight weeks ago, and now offers a further submission based on clarification of issues pertinent to the first tier of local government sector.

1. General Power of Competence (Clauses 1-7)

1.1 The power is welcomed by the ALC on the basis that it applies to local councils, broadens the ability of local councils to respond to community need and provides a more reliable and potent general power than the power of well-being which was undermined by the LAML case [1] .

1.2 The ALC notes that against the Government’s pledge to empower citizens and communities, local councils embedded in communities are singled out as needing to meet conditions which will be prescribed by the Secretary of State before they are allowed to use the power (Clause 7(2)). It is disappointing that there is a perceived lack of faith in the competency of local councils. Inevitably, if the power of well-being serves as a useful precedent, any eligibility criteria will create costs for the tax payer, whether this be, for example, through a need for national support materials or for local training provision. Counter-intuitively, under the power of well-being, eligibility criteria are imposed and are mandatory at the time when a local council declares itself a power of well-being council but not at any subsequent time when it actually exercises the power.

2. Predetermination (Clause 13)

2.1 It is understood that a predisposition to a certain viewpoint does not constitute predetermination, and clarification that it is not a problem to be predisposed to a particular point of view is welcomed . Many councillors will have provided views on campaign issues when seeking election. Councillors predisposed to a point of view are then able to go into meetings and make decisions based on the facts presented to them. However, predetermination and bias are considered unfair mindsets for decision-makers where a councillor’s mind is closed to the merits of any arguments which differ from their own in relation to a matter to be decided. The ALC believes councillors must make decisions on issues before them in council meetings, taking all the views and evidence presented to the council into account and looks forward to clear guidance emerging on where the boundary between being predetermined and predisposed lies.

3. Standards (Clauses 14-20)

3.1 The existing Code of Conduct regime and enforcement arrangements provide a framework for behavioural control which differentiates democratic local government bodies from other types of body. However, the clarity, application and enforcement arrangements around the Code of Conduct have not been perfect and have resulted in some undesirable results which should be considered in the event that the existing regime continues? The ALC notes that these clauses remove the Code of Conduct as the behavioural control for local council councillors, create a new duty for local authorities to promote and maintain high standards of conduct for councillors and co-optees, allow for the adoption of a voluntary code of conduct and provide a new criminal offence around registering interests. Local councils adopting a voluntary code will be expected to investigate alleged breaches where appropriate and then consider taking action.

3.2 There will be an issue regarding the degree of consistency and fairness of any optional voluntary code arrangements which will be particularly evident in parished areas which contain hundreds of local councils potentially adopting different codes. Additionally, the enforcement and sanction arrangements in a self-regulatory environment will be relatively weak. The ALC though, does support a voluntary code, with the demise of ‘the Code’.

3.3 The criminal offence created under Clause 18 is controversial in introducing an offence whereas in other areas, such as the audit regime, Government is considering removing offences. Many councillors resigned when the mandatory Code of Conduct came into effect. However, there are a majority who now see the Code of Conduct as an essential behavioural safeguard.

4. Miscellaneous Repeals (Clauses 27-28)

4.1 The duties for principal local authorities to promote democracy and to respond to petitions are repealed under the Local Democracy, Economic Development and Construction Act 2009. It is appreciated that the Government is increasing the degree of publicly available data about the performance of principal local authorities and is introducing new measures to hold them to account. However, the ALC believes there is an inherent value in maximising knowledge about and interest in democracy in order that the quality of decisions, the accountability and the composition of the country’s democratic bodies is enhanced and would seek an understanding of how the government intends to ensure that this occurs.

5. Non-Domestic Rates (Clauses 35-38)

5.1 It is disappointing that there has not been an exploration in the Bill of allocating a fair proportion of the business rates to local councils, particularly at a time when many local councils are working hard to support local businesses, when all elements of the community are being encouraged to work coherently together and when the impacts of business activity continue on an ongoing basis to have affect on the locality in which they are located.

6. Local Referendums (Clauses 39-55)

6.1 It is noted that under Clause 53, the Secretary of State may make regulations applying these (non-precept) referendums provisions to local councils and also provides for payments to be made to them to help them with the expenditure under any such regulations. One of the primary concerns about referendums is the significant cost and another is the validity when compared with other community satisfaction measures. Due consideration should be given to these issues, among others, in the event that Government seeks to broaden application of local referendums to local councils.

6.2 Clause 44 provides important safeguards in restricting application to local matters and non-vexatious demands for referenda. However, inevitably there will be difficulties in establishing the right balance and use of the right to demand a referendum, in the same way as there are for some Freedom of Information Act requests, in deciding what constitutes ‘vexatious’ in a process which is designed to enable the challenge of authority. Safeguards need to be carefully considered in the context of potential expensive and ‘vexatious’ calls on the public purse through referenda. Local councils are already subject to parish polls and other measures which provide outlets for serious public concern and can significantly influence the future direction of local councils. In relation to local councils, it is not clear that a proportionate additional community benefit would arise from applying local referenda to local councils. With these reservations in mind, the ALC is currently unable to support the provisions; they appear costly, bureaucratic and unwieldy in practice.

6.3 The word ‘appropriate’ is used in many of the clauses. This word is vague and potentially gives the authority considerable discretion e.g. to decide whether it is ‘appropriate’ to hold a referendum and when it is deemed ‘not appropriate’ and to publish reasons for its decision unless ‘it would be inappropriate to do so’ (Clauses 43 & 46).

6.4 Interestingly, in the context of this Government’s policy against public money being used for promotion of local authority’s own interests, there is provision for ‘reasonable’ local authority expenditure on material promoting or opposing the referendum question (Clause 51) and further guidance on application of this provision would be helpful.

6.5 The important question is what action, if any, must be taken by the local authority as a result of the referendum. It appears from the Bill that the local authority must publicise the result in an ‘appropriate’ manner and ‘consider what steps (if any) ‘it will take to give effect to the result. If it decides, after this expensive, resource and time-consuming process, to take no steps to give effect to the result, then it must publish that decision in an ‘appropriate’ manner with reasons. If the result can only be put into effect by another ‘partner authority’ then the burden shifts to that partner authority to decide what to do about the referendum and publish its rejection of action

with reasons where relevant. It is noted that ‘Partner authority’ is defined as various public services and bodies such as the Environment Agency and the English Sports Council and does not include local councils. [1] It is not clear how these apparently unenforceable, expensive and resource-intensive processes will make a genuine difference. Indeed, there is the problem of the ‘silent majority’ in the referendum process that an active minority will achieve their aims at the expense of the rest, or at the other extreme, that the expectations of a vocal minority will be raised when ultimately the local authority can find ways to avoid enacting the result of the referendum.

7. Council Tax (Clauses 56-65)

7.1 It is understood that automatic referenda will apply to local councils which are deemed to be demanding ‘excessive’ council tax. This means that even where communities support an increase in precept for a legitimate community-centred reason they will have to pay for the additional significant cost of an automatic referendum. If for whatever reason the majority who support a particular project do not turn out to vote in the automatic referendum, a minority will potentially have overruled expenditure on a valued project at the expense of the majority and the cost of the referendum will still have to be found from local council funds (without increasing the precept to the ‘excessive’ level). There are a variety of reasons why people do not turn out to vote in elections and many of these reasons will apply to referendums.

7.2 It is noted that the principles for determining what is ‘excessive’ will be decided by the Secretary of State annually and will include a comparison of the proposed precept against the previous year’s precept. The Secretary of State may apply de-minimis thresholds which could ensure that neither a certain amount of precept nor a certain increase would be considered ‘excessive’. Government has already indicated that it intends to exclude smaller councils but has not indicated where the threshold will lie. The uncertainty over which councils will be included and what will be considered ‘excessive’ is causing confusion to the council tax payer. Government should be aware that significant expenditure by local councils is undertaken in a transparent local environment within the community affected.

7.3 The ALC would urge Government to reconsider the application of this provision to local councils to ensure that unnecessary expenditure is not loaded onto communities at a time when they are being called on to exercise expenditure constraint and to increase self-reliance. Local councils are the first tier of local government. However their proximity to the people they serve, being embedded in and accountable directly to their communities, makes them very different to their more remote principal local authority counterparts. If a threshold is to be applied, it would seem sensible and consistent to use the same threshold that is being considered for the audit regime based on the small business threshold of £6.5 million. Historical data shows that local councils have been prudent without central

control, particularly when the effect of the creation of new councils is taken into account.

7.4 The new s.52ZN(7), which gives the billing authority the power to recover the costs of the referendum from the relevant local council could be changed if the Secretary of State uses the power under s.52ZN(8) to make regulations modifying the power to recover costs or stating when costs cannot be recovered for certain cases. This provides an opportunity to relieve local councils of a significant cost burden.

8. Community Right to Challenge (Clauses 66-70)

8.1 In principal this is a welcome development. The inclusion of this right to submit expressions of interest in providing or assisting in providing a service, which is currently provided by or on behalf of the principal local authority, is interesting at a time when many principal local authorities are seeking to reduce service and asset responsibilities. The discretion open to those local authorities, the absence of a guarantee that an expression of interest will be taken up and the lack of clarity around how this process will impact on existing long-term major contractual and financial arrangements between principal local authorities and big business contracted service providers, are likely to affect the degree to which this right to challenge from small bodies is used.

9. Assets of Community Value (Clauses 71-88)

9.1 These clauses potentially create a central place for local councils in determining the assets which are valued by a community and ensuring they are placed on a most-wanted list administered by the relevant principal local authority. It is also notable that although local councils can determine and list relevant assets, the Bill provides only for ‘community interest groups’ to be treated as potential bidders for the assets for the purpose of this Chapter. It is extremely disappointing that the unique position of local councils which have a broad public service remit as the potential guardians and supporters of community assets is not being specifically recognised in the Localism Bill. The definition of ‘community interest group’ (to be defined in regulations) will be crucial in influencing the robustness of any actual community benefit. Any exclusion of local councils from this definition would restrict the options for sustainable and accountable community-based asset ownership solutions and, where a suitable community interest group vehicle does not emerge, could result in the loss of valuable community assets.

9.2 There is also concern that inclusion in the list essentially means that there is a delay in any disposal of assets pending a community interest group having the time to prepare a case to bid for the asset and that this will not necessarily result in a sale to the relevant body. Meanwhile the robustness of the sanction for any asset owner disposing of assets in avoidance of these provisions is not clear. The ALC has been working with LOCALITY (formerly the Development Trust Association) and has its own Asset Champion to support parish councils in asset transfer issues.

10. Plans and Strategies (Clauses 89-93)

10.1 It is noted that the abolition of regional spatial strategies and a move to local decision-making on matters such as planning and housing is being introduced alongside Government incentives for local planning authorities to build more housing,

including through the New Homes Bonus and a new community right to build which supports new housing developments.

10.2 It is not clear how robust the public safeguards are against inappropriate decision-making at local planning authority level given, for example, that the amendment to the 2004 Act by Clause 92 ensures that the planning inspector independently examining local development plan documents will be compelled to recommend adoption if it is sound and complies with statutory requirements and will be unable to recommend modifications other than at the request of the local planning authority. It is also not clear what significant resource and community benefits there will be from the removal of requirement that local planning authorities have to report annually to the Secretary of State about implementation of their local development schemes and policies given that they will have to do so to the public at least annually.

11. Community Infrastructure Levy (Clauses 94-95)

11.1 Clause 95 has attracted a great deal of interest and is welcomed by local councils as a means of ensuring they are able to ensure a ‘meaningful proportion’ of Levy receipts are targeted at local need. It is crucial that the area that has the impact of any development is able to benefit from the Levy receipts. Working through the accountable local council embedded within the community will ensure that the use of the Levy receipts will enhance quality of life of residents and visitors at an appropriate geographical level. The ALC would welcome confirmation that in parished areas the vehicle for the Levy receipts will be the local council.

12. Neighbourhood Planning (Clauses 96-101)

12.1 The ALC welcomes the potential for neighbourhood planning to be a tool to help local councils to shape the future of their communities on planning matters. We would welcome further guidance on the scope of the proposed plans which clearly centres on housing but could extend to broader planning matters around, for example, building schools and agricultural development. The focus on local councils as the default vehicle for these measures in parished areas will be helpful in ensuring a cohesive and coherent approach to planning. However, the process will be costly and resource intensive and we would welcome funds being focussed on local councils and their local support Associations, in order to ensure a direct benefit to the communities as part of an important enabling and community empowerment process.

12.2 In particular it is important that these plans are taken forward by local councils which have a broad public service remit and are well-placed to engage with their own communities as well as the planning authorities and developers.

There are concerns that, as the Bill is currently draft, there is potential for vested commercial interests to unduly influence the process by injection of funds into the

marketing around referendum, and also through use of ‘community’ groups which are loosely defined within the Bill.

12.3 The clarity of the application of Schedule 4C of the 1990 Act will be important in dealing with the potential clash of proposals coming forward for consideration from separate bodies by giving the local planning authority discretion to decline proposals in such circumstances.

12.4 We look forward to clarification around the provision for regulations to provide for local councils to require any application for approval be determined by them instead of the local planning authority (s.61J(3)). We welcome the fact that s.61K requires that central Government and local planning authorities can only revoke Neighbourhood Development Orders (NDOs) developed by local councils with the consent of that local council. We also welcome the fact that NDOs are subject to independent examination (under Schedule 4B & 4C 1990 Act) and local councils will be entitled to make written representations, or if the matter goes to a hearing, representations in person.

12.5 It is important that Neighbourhood Development Plans (NDPs) have a suitable status and it is noted that the amendments made to section 38 of the Planning and Compulsory Purchase Act 2004 means that adopted NDPs, will become part of the development plan for an area. Consequently, by virtue of section 38(6) of that Act certain decisions will need to be made in accordance with neighbourhood development plans unless material considerations indicate otherwise.

13. Consultation (Clause 102)

13.1 It is noted that the Town and Country Planning Act 1990 is amended with new sections 61W to Y requiring pre-application consultation with the community and any specified persons (as named in a development order) on applications for planning permission relating to development specified in a development order. This consultation can take the form that the applicant ‘reasonably considers’ would bring the matter to the attention of ‘the majority of the persons who live at, or otherwise occupy, premises in the vicinity of the land.’ Additionally, the consulting party must consider the responses to the consultation when deciding whether to proceed with the application and must ensure that detail of the consultation that took place accompanies the planning application in order to make it valid.

13.2 It is hoped that Government will ensure that local councils will be specifically included as consultees within the pre-application consultation with the community and specified persons.

14. Enforcement (Clauses 103-106)

14.1 It is noted that clause 103 provides for a local planning authority to decline a retrospective planning permission request where an enforcement notice has been issued in relation to any part of that development and that clause 106 creates four new sections empowering local planning authorities to act in relation to unauthorised

advertisements and defacement of premises e.g. requiring owners of land to take specified measures to prevent or reduce the frequency of persistent fly-posting. Non-enforcement of planning matters is a major issue for many local councils. It is not always the planning legislation and guidance that is at fault rather it is the application of local planning activity, including the adequacy of consultation, consistency and enforcement which causes problems. It is hoped that these clauses will strengthen the position of enforcement notices but there are concerns about the adequacy of resources for enforcement activities.

15. Nationally Significant Infrastructure Projects (Clauses 107-118)

15.1 The apparent democratisation of the nationally significant infrastructure project regime is noted. There is concern about the degree of consultation with local councils and the extent of their influence in shaping the impact and benefit of such projects on communities. There is also concern that the particularly enabling support to these projects will encourage developers to unduly increase the size of developments to ensure they come within this regime rather than within the local planning regime.

16. Allocation and Homelessness and other Housing Issues (Clauses 121-156)

16.1 There is some concern that the changes to the duty to the homeless by offering fixed term private landlord tenancies for a minimum of 12 months without requiring the applicant’s agreement could result in an increase in homelessness which will impact on local councils. Some local councils are already faced with trying to support homeless people and residents which is a particularly difficult issue to resolve and any inadvertent increase in the number of people on the streets caused by these changes would not be welcome.

The Hampshire ALC is grateful for the chance to be involved in the formulation of the Bill, and hopes it will truly wish to empower local communities whilst shedding bureaucracy. It would welcome the chance to be further involved if required or requested.

March 2011

[1] Brent LBC v Risk Management Partners Ltd; London Authorities Mutual Ltd & Harrow LBC (Interested Parties) [2009] EWCA Civ 490

[1] Clause 55 Localism Bill uses the definition in s.104 Local Government and Public Involvement in Health Act 2007