Localism Bill

Memorandum submitted by UKBCSE and Industry (L 87)

 

1.0 Introduction

1.1 The UK Business Council for Sustainable Energy and the UK’s major energy trade associations – the Association of Electricity Producers, the Energy Networks Association, the Gas Forum, the Renewable Energy Association and RenewableUK, have long worked in support of planning reform.

1.2 Together members of the associations will deliver the vast majority of the sustainable energy projects necessary to achieve the UK Government’s policy objectives of continued security of supply and addressing climate change through clean reliable affordable energy supplies.

2.0 Executive Summary

Planning Reform

2.1 There is much of the Government’s proposals for further reform of the planning system which we support, namely:

· The return of decision-making for major energy infrastructure projects to the DECC Secretary of State.

· The re-consultation on, and enhanced Parliamentary scrutiny of, National Policy Statements, which will further strengthen the content and increase their legitimacy.

· The development of a high-level strategic National Planning Policy Framework.

· The rationalisation of Planning Policy Statements (providing useful information for developers is not removed).

· A number of the key elements of the Localism Bill including:

o The new duty for local authorities and others to co-operate and engage constructively to maximise the effectiveness of sustainable development planning, which we believe should be strengthened further to include a specific duty to jointly plan for strategic infrastructure.

o Proposed changes to duties to publicise Community Consultation Statements, and the publicity requirements for Development Consent Orders involving compulsory purchase orders.

o Robust but proportionate statutory pre-application consultation for proposed projects under the Town and Country Planning Act (TCPA) regime above a defined threshold.

o The requirement for a proportion of the Community Infrastructure Levy to be allocated to the neighbourhood(s) where development takes place.

o Other proposed changes which provide enhanced certainty of process whilst retaining flexibility to accommodate individual circumstances.

The Scale of the Energy Challenge

2.2 The Government has recently reaffirmed commitment to the Climate Change Act 2008’s statutory targets of reducing greenhouse gas emissions by 80% by 2050. In addition, the EU Renewable Energy Directive sets the UK a legally binding target of achieving 15% of all energy from renewable sources by 2020. This will require a step-change to move the UK from 6.7% of electricity generated from renewables in 2009, to in excess of 30% by 2020.

2.3 Equally the transition to a low carbon economy will take time, and yet within a decade the UK will be importing 60-80% of its gas, as the UK’s indigenous supplies of gas declines. Therefore sustained investment will also be required in new gas reception and import facilities. In addition, significant investment in carbon capture, transportation and storage infrastructure is needed, as part of the move to a low carbon future.

2.4 In short, the UK needs some £200 billion by 2020 invested in all forms of sustainable energy infrastructure – big and small, onshore and offshore, and across the UK - including the development of a range of renewable and other capital intensive low carbon energy developments as well as significant investment in the gas and electricity networks to bring the energy to consumers.

Stable Policy Framework and Planning Reform

2.5 Energy companies seek a long-term stable policy framework and a planning regime that is effective, fair and gives a reasonable degree of certainty to all including developers, affected communities and their representatives.

2.6 It is within this context of the industry’s support for the overarching need for planning reform that companies seek to raise a number of areas where they have concerns or on which they would welcome further clarity.

Key Areas for Clarification

2.7 In particular, industry would welcome greater clarity on how the arrangements of some of the key provisions will work in practice, including Local Referenda; Assets of Community Value; Pre-Determination; the Transitional Arrangements from the Infrastructure Planning Commission (IPC) to the Major Infrastructure Projects Unit (MIPU); the creation of Neighbourhood Forums and Neighbourhood Plans.

2.8 One of the key issues that needs clarifying is how these new proposals will interact with existing well-established planning provisions. There is a risk that unless well integrated within, or aligned to, the existing planning regime some of the proposals could create significant uncertainty and confusion and potentially delay or prevent perfectly legitimate and much needed sustainable energy infrastructure development.

2.9 Industry is supportive of implementing a robust yet proportionate statutory pre-application process for proposed major projects under the Town and Country Planning Act (TCPA) regime. However it is vital that any proposals for local referenda and the pre-determination provisions sit within the planning process rather than alongside it to avoid considerable uncertainty and potential delays.

2.10 Similarly, it is vital that proposals for Neighbourhood Forums and Plans and designation of "assets of community value" do not undermine the established Local Development Plan process. We therefore suggest that:

· Identification of "assets of community value" should be undertaken as part of the Neighbourhood or Local Development Plan process.

· Neighbourhood Plans are consistent with the framework provided by national policy and the strategic elements of Local Plans; support the delivery of national and local aims / objectives and that they are independently scrutinised prior to being subsumed into the relevant Local Plan.

3.0 Summary of Main Areas of the Localism Bill which Require Clarity

3.1 Delays / Project Risks

Local Referenda

3.1.2 These provisions allow for up to six months to collect signatures and up to 12 months to facilitate local referenda to be held at the same time as other local elections / referenda.

3.1.3 Industry would welcome further clarity on how referenda relate to existing local democratic processes. Industry believes that for projects requiring planning permission under the Town and Country Planning Act (TCPA) regime, there is already a clear democratic process led by local authorities, which gives communities statutory rights to input into both the plan-making and determination process, and which is being further strengthened by the introduction of statutory pre-application consultation.

3.1.4 Introducing an additional process through local referenda, which would run to a much longer timeframe, could potentially create confusion and could significantly delay decisions on projects, which will act as a further disincentive to investors.

3.1.5 Companies therefore consider that development projects covered under the TCPA regime should be excluded from the scope of local referenda, which should instead focus on plan-making and policies rather than individual applications. However, should Government decide to apply the Local Referenda provisions to projects being determined under the TCPA regime, companies believe they should align and run concurrently with the planning process and should be completed within the 16 week window for determination. Equally, companies believe the period for collecting signatures should be reduced from 6 to 3 months.

3.1.6 Additionally, Industry would welcome more detail and clarity on local referenda arrangements on the face of the Bill – including:

· How local referenda areas will be defined.

· The thresholds to which they apply and on which they are based.

· how to ensure that referendum questions avoid bias.

· The basis on which a petition has to have 5% of local community signatures.

· Who will bear the costs of holding local referendums?

3.1.7 Finally, it is understood that local referenda will not apply to nationally significant infrastructure projects, which we believe is sensible, given the comprehensive pre-application and application processes which already exist to provide extensive opportunities for community consultation and involvement.

Assets of Community Value

3.1.7 These provisions allow individuals to apply to have land or buildings designated as "assets of community value", and prevent the disposal of land or buildings designated as "assets of community value" for up to five years.

3.1.8 Industry would value greater clarity on a number of areas:

· Whether these assets will attract higher protection from development?

· The length of the moratorium period - which industry believes should be no longer than 3 months.

· The types of assets that could be designated (for instance a village pub. However, care is needed when considering designation of private / open land or land surrounding an energy development, such as a substation or gas terminal, because of the potential future need of such land to meet additional local or national energy needs, or other requirements).

· Whether designation will only take place if communities bring forward funds to purchase the land or asset, or whether a designation could be made without funding being available, and in which case what arrangements would be put in place in respect of compensation to the asset owner if a moratorium was then put on disposal of the asset.

· The process for designation of assets of community value, including consultation, which needs to be robust, workable, transparent and timely, and scrutinised by an independent assessor.

· Who will make decisions on whether an asset is considered "of community value", what criteria will need to be fulfilled and whether the process / criteria will differ across the country.

· How the designation of "assets of community value" fits within the overall planning process, with care needed to not create separate unrelated processes, which would appear to allow objectors to apply for land to be designated as an "asset of community value" once pre-application consultation has commenced or a consent application has been submitted, which could potentially frustrate or even stop a legitimate development.

3.1.9 Therefore, for all of the reasons above, Industry believes that consideration of designation of land or buildings as "assets of community value" should only be undertaken as part of the Development Plan process.

Pre-Determination

3.1.10 Whilst these provisions do not change existing rules they do appear to allow local council members or co-opted members to be able to decide on applications and not be considered biased even if they have previously held publicly known views for or against a particular issue.

3.1.11 Industry welcomes these provisions as potentially helpful in clarifying that councillors are allowed to hear from all interested parties before an application is submitted, including the developer. However, companies believe that appropriate checks and balances are needed to ensure that people with strongly-held views can, whilst having the right and opportunity to expresses their views, nevertheless vote on the merits of individual planning applications.

Pre-application consultation

3.1.12 It is understood that the pre-application process will be required for major projects above a certain threshold, and we would welcome clarity on some key areas in order to ensure the proposed pre-application consultation arrangements:

· Are proportionate to the development in question;

· Have a clear timeframe/time limit for the consultation process which is proportionate to the scale/nature of the project (the Bill does not currently set a time limit);

· Provide clarity and consistency in respect of the consultation requirements (the Bill leaves much of the detail to be clarified in Development Consent Orders but there is a risk of inconsistency if the consultation is to follow ‘local good practice’ which may vary considerably).

Transitional Arrangements

3.1.13 These provisions provide for the Secretary of State to give a direction on the handling on or after the abolition of the Infrastructure Planning Commission (IPC) date in respect of applications notified to or received by the IPC or by the Secretary of State.

3.1.14 Industry would welcome further clarification, especially on when projects will be deemed to have commenced under the IPC regime and therefore continue through that process i.e. is it once pre-application consultation has started or once the application has been submitted to or accepted by the IPC?

3.1.15 It is noted that the power of the Secretary of State to issue a direction under Section 108 is currently only discretionary (‘may’). Companies would welcome:

· The Secretary of State being required (rather than simply having discretionary power) to direct what happens to such applications in order to provide clarity and a higher degree of certainty;

· If this was not the case, companies would welcome clarity on what would happen to an application/proposed application, if the Secretary of State did not issue a direction?

· If there is only a discretionary requirement, companies believe that applicants should be given the opportunity to ask the Secretary of State to issue a direction.

3.1.16 The previous transitional arrangements to the Planning Act 2008 Nationally Significant Infrastructure Planning (NSIP) regime were very clear and well implemented, with clear periods before and after the transfer date. A similar level of clarity is needed by the industry and would therefore be welcomed.

3.2 Localism

Neighbourhood Plans

3.2.1 Allows a local authority to designate a Neighbourhood Forum, including people who live or want to live in the area to formulate Neighbourhood Plans, to improve the economic, social or environmental welfare of people in a specified area, which once adopted are subsumed into the Local Plans.

3.2.2 Whilst Neighbourhood Planning is potentially a positive way of engaging local communities in the transition to a lower carbon economy there are a number of key areas which companies believe require further strengthening and clarity:

· The criteria and process for designating Neighbourhood Forums, including publicity and consultation requirements which should be robust, workable, transparent, timely and certain.

· Ensuring Neighbourhood Forum do genuinely represent the interests of local communities those who live in them such that someone cannot just state they may wish to live in an area in order to seek to take part in a forum.

· Developers could potentially be faced with differing charges in different areas, as local authorities can charge for neighbourhood planning. There is also no requirement for costs to be incurred reasonably or efficiently, nor is there clarity on who will pay for them.

· It will be important to ensure that Neighbourhood Development Plans are consistent with, and are specifically required to support national policy priorities, the strategic elements of Local Plans and the delivery of their aims and objectives.

· The Bill helpfully states that Neighbourhood Forums are to be established for the express purpose of furthering the social, economic and environmental well-being of individuals living in an area. It would also be helpful if Neighbourhood Development Plans had a similar requirement to facilitate sustainable development.

· In conjunction with development incentives, the neighbourhood planning process should encourage communities to develop and grow in a positive but sustainable and strategic way. It should therefore be clarified within the Bill that Neighbourhood Plans should not be able to exclude certain types of development, rather, they should focus on what types of development should be particularly encouraged in order to contribute to sustainable development.

· The number of Neighbourhood Plans across England could potentially be very large and the resulting considerable additional administrative tasks could make it particularly challenging for energy companies to be actively involved in their development. It will therefore be of even greater importance that Neighbourhood Plans are capable of being independently scrutinised (see below) for consistency with national and local policy, and local plans.

· However, where appropriate, utility companies should still be consulted early on in the formation of a Neighbourhood Plan to ensure effective consideration of energy capacity needs and efficient and timely planning of network extensions and other infrastructure.

· Because Neighbourhood Plans are subsumed into Local Plans they could well be reviewed by an independent scrutineer appointed by a recognised body such as the Planning Inspectorate or the Royal Town Planning Institute, for conformity with national and local policy, including aligning with the strategic aims of the Local Plan.

London Mayoral Powers

3.2.3 Allows for the establishment of Mayoral Development Corporations - with the ability to confer Schedule 8 of the Electricity Act Section 37 powers to them.

3.2.4 Industry would welcome clarity on:

· Whether this excludes Nationally Significant Infrastructure Projects and those currently consented by the DECC consents team.

· Whether such powers will be conferred on other existing directly elected Mayors and others once they come into being.

Strengthening Local Democracy: A Duty to Cooperate

3.2.5 We welcome the inclusion of a duty to co-operate in relation to planning of sustainable development (Part 5, Chapter 1) and believe these provisions should be strengthened further to include a specific duty to jointly plan for strategic infrastructure, including energy infrastructure and to work across local authority boundaries to jointly develop Infrastructure Plans, rather than just co-operate. This could for example include joint gathering and assessment of an area’s capacity for renewable energy generation or the sharing of a supply chain for biomass stations, or the waste heat from a conventional power station.

4.0 Conclusion

4.1 The Industry continues to be supportive of effective reform of the planning regime.

4.2 This includes many of the proposals contained within the Localism Bill; the return of decision-making for NSIPs to the DECC Secretary of State; the establishment of a high-level strategic National Planning Policy Framework; the rationalisation of Planning Policy Statements; and the re-consultation and enhanced Parliamentary scrutiny of the Energy National Policy Statements, which, after final amendment, should now be designated as soon as possible. This is vital to provide the necessary stable policy framework the industry needs to invest, whilst the other reforms are progressed.

4.3 Integration of, and alignment between the main provisions of the Localism Bill with the existing planning regime and other planned reforms is key to ensuring the objectives of the Bill are fully realised and that decision-making is undertaken from a position balancing both the need to deliver the Government’s essential energy policy goals whilst reflecting its commitment to localism.

4.4 In particular it is essential that the Localism Bill and the National Planning Policy Framework are aligned, and industry would like to see the National Planning Policy Framework included within the Localism Bill to ensure that it has a statutory footing.

4.5 We believe the Bill provides a unique opportunity to further align the neighbourhood, local and national planning regimes with the targets set by Parliament under the Climate Change Act. We look forward to working with members of the Committee to achieve this.

February 2011

The views expressed in this paper cannot be taken to represent the views of all parts of all the companies in the UKBCSE. However, they do reflect a general consensus.