Localism Bill

Memorandum submitted by the Planning Officers Society (L 91)

1.0 Preamble

1.1 We are very supportive of the localism agenda in planning, but have a number of concerns about the detail regarding the new processes that are proposed in the Bill. Given the laudable objective of better connecting planning with people, it is essential that the new system is easy to understand and operate, and does not go the way of the Local Development Framework (LDF) by being bogged down in opaque, time consuming, and costly process.

1.2 The preparation time, the cost, and the sheer weight of the LDF process is disproportionate to the outcomes, especially given that in a fast changing world planning needs to be light on its feet in responding to the issues and opportunities of the day. We want to help the government to create a planning system that will enable us, and our partners in the development industry, to do more, not less, advance plan making that will create a basis for sustainable development and local decision making that is bang up to date.

1.3 Of very immediate concern, government needs to ensure there are no barriers, including financial, to all councils having a Core Strategy in place as soon as possible to enable the efficient preparation of Neighbourhood Plans and the implementation of the Community Infrastructure Levy (CIL). We would also urge councils to review their own internal governance arrangements to minimise the time taken to progress plans and their adoption.

1.4 In addition to considering how best to put the new localism processes into effect, we urge the government to consider the planning process as a whole and to work with practitioners in the POS to find more efficient and effective ways of meeting the above objectives.

1.5 We would also flag the need for the government to be clearer in its messages to communities and the press about what localism in planning really means – done properly, it should not be a Nimby Charter, but unfortunately our members are reporting that some communities are vigorously challenging growth proposals, including those that are Core Strategy compliant, because they have received a message about localism that is too simplistic. This is causing political tensions within local authorities. Our reading of the government’s intention is that through the removal of top-down regional policies and targets and the active participation of communities in creating plans, growth and infrastructure proposals will be better understood at the local level, and, with the financial incentives in place, the Nimby voice will be muted. The government needs to make clear to communities that localism in planning is not about preventing growth, and is not about passing the burden of growth to others less able to resist.

1.6 POS would also support government in promoting in Local Planning Authorities (LPAs) and the profession the idea that a change in culture is required if communities are to have more influence and ownership of planning. This includes a much greater emphasis on advance plan making work of all kinds (ie. in advance of planning applications being submitted, or LDOs/NDOs [1] being made), with more opportunity for planners to work creatively with their communities. This change in priorities has implications for how the end to end planning process is funded and organised, and has implications for how councillors, other council departments and services and infrastructure providers contribute to the work.

1.7 POS believe that if we can help Government put in place a practical and adequately funded toolbox for neighbourhood planning, alongside a streamlined LDF process, LPAs will be more engaged in supporting communities in the realisation of their ambitions, working together rather than in opposition. Our suggestions for improvement to the Bill, and to later regulation and guidance are set out below.

2.0 Strategic Planning & the Duty to Cooperate

2.1 We have heard ministers from time to time saying that with the demise of top down regional planning it is entirely up to councils to put in place whatever local cross-boundary arrangements they consider appropriate to their strategic needs. However, it is essential that local authorities work together to plan economic and housing growth, and to secure the private and public funding for infrastructure that will support growth and enable the renewal of failing assets. A high level of political co-operation and compromise may be required.

2.2 Will the government give clear instruction to local authorities that local plans must address and resolve such issues, or they will be unsound? Will the government encourage formal joint arrangements between local authorities to undertake strategic planning? If councils do not put formal arrangements in place, there is no guarantee that individual councils will be willing to adopt what may be unpalatable policies for them, but which are in the wider interest or deal effectively with major infrastructure needs. Key areas for strategic planning arrangements include energy, waste, minerals, water (supply and quality), transport, and major development to support economic growth (including housing).

2.3 Building effective partnerships with the business sector and other stakeholders, such as infrastructure and utility interests, will continue to be important in delivering long term sustainable growth. Collaboration between local authorities and the waste and minerals industry through regional advisory groups (RAWPs and RTABs) is just one example of where industry input to strategic planning has added value in the past. The government has recognised the value of business input and is encouraging Local Enterprise Partnerships (LEPs) to take on a strategic planning role. However, LEPs have no statutory basis and can only be advisory in that regard (and as such will not be subject to the ‘duty to cooperate’ – see below); and we must learn lessons from the past and avoid the same criticism that regional structures faced in terms of the ‘democratic deficit’.

2.4 It is in everyone’s interest that government encourages the strongest possible working arrangements relative to the task, and the work of POS in encouraging members to adopt best practice, particularly where political power sharing or compromise is the price, would be assisted by government endorsement. It is in no-one’s interest, including the development industry, utilities and transport, that parts of the country fail to undertake strategic planning quickly and effectively and therefore inhibit economic recovery.

2.5 We very much welcome the duty to cooperate, but it is a behaviour rather than an action that can be easily assessed, and guidance is required as to what is required of a council or consultee to give practical effect. Having a plan found unsound may be the consequence of LPAs failing in their duty to co-operate, but that is not a penalty as such. What will be the penalty, including that on other parties that are subject to the duty? POS would be willing to help create the necessary advice to those to whom the duty applies.

2.6 We consider that a good way to secure meaningful cooperation would be to require a practical and measureable outcome of cooperation. We would suggest that each LPA should prepare a "Strategic Infrastructure Assessment" (SIA) that would set out strategic infrastructure priorities over a certain time-period, the process for deciding priorities – including who was involved – and funding provision. This would be the main mechanism for a co-ordinated approach to strategic planning and for LPAs to engage effectively (and transparently) with public and private sector infrastructure providers. It would also support LPAs in bidding for national or any other funding pots available to support sustainable economic growth.

2.7 SIAs would be done on a joint LPA basis, ideally on a sub-regional geography i.e. not every individual LPA would have to produce one but they all would have to contribute to one for their area. SIAs would be reviewed on an annual basis alongside the annual Community Planning Statement (as proposed by the POS in Para 4.4).  The impact of major applications should be assessed against the SIA. The SIA would also have to be taken into account in the LPA’s ‘strategic principles’ for their local plan and when considering priorities for infrastructure funding, particularly Community Infrastructure Levy (CIL). 

Clause 90 - Duty to co-operate in relation to planning of sustainable development

Proposed Amendment (1)

This section will be inserted to Part 2 of the Planning and Compulsory Purchase Act 2004 (local development) after section 33 where the definition of a Local Planning Authority (LPA) does not include county councils (Sec 37).  As county councils are LPAs in terms of minerals and waste, and under the Town and Country Planning Regulations 1992 (e.g. in relation to education), sub-section (1) (a) of Clause 90 should be amended to the following:

‘(1) Each person who is-

(a) a local or Principal planning authority, or

(b) a body, or other person, that is prescribed or of a prescribed description, must co-operate with every other person who is within paragraph (a) or (b) in maximising the effectiveness with which activities within subsection (3) are undertaken.’

 Proposed Amendment (2)

LPAs should be required to prepare a Strategic Infrastructure Assessment (SIA), which would set out strategic infrastructure priorities over a certain time-period, the process for deciding priorities – including who was involved – and funding provision. All those authorities identified in (1) (a) and (b) would have to contribute to one for their area. SIAs would be reviewed on an annual basis alongside the annual Community Planning Statement (as proposed by the POS in para. 3.4). 

It is important that county councils are involved in the SIA, where relevant, given that they will still have a duty of survey (under the 2004 Act) and a Local Economic Assessment duty (under the 2010 Act), as well as being transport and education authorities.  

Further details of the SIA should be provided in the regulations. This should include a list of issues that are considered as ‘strategic infrastructure’ e.g. energy, waste, minerals, water, transport, major housing/economic development.

Amend Clause 90 as follows:

(2) In particular, the duty imposed on a person by subsection (1) requires the person to engage constructively, actively and on an on-going basis in any process by means of which activities within subsection (3) are undertaken.

(3) The activities within this subsection are-

(a) the preparation of development plan documents,

(b) the preparation of other local development documents,

(insert new subsection (c) )

(c) co-ordinating with infrastructure providers to undertake a strategic infrastructure assessment and draw up a delivery plan setting out priorities (for a set period of time related to the local plan), process for agreeing priorities and all funding matters which must be reviewed on an annual basis.

(d) other activities that support the planning of development, so far as relating to sustainable development and use of land including

(4) The engagement required of a person by subsection (2) includes, in particular-

(a) giving a substantive response if consulted under this Part in connection with the undertaking of activities within subsection (3)(a), and

(b) giving a substantive response to any request received from a person within subsection (1)(a) or (b) for information to assist the maker of the request to discharge responsibilities in connection with the undertaking of activities within subsection (3)

3.0 Neighbourhood Development Plan (NDP)

3.1 Together with the Community Right to Build, this is the government’s flagship in bringing localism into planning. It is essential that the NDP process is one that is easy to understand and manageable for parish councils and other community bodies to ensure that NDPs are adopted widely. This is essential if it is to bring about real change in the community’s ownership of planning process and outcomes.

3.2 In our view, as drafted, the Bill describes processes that are rather too demanding, protracted and expensive to encourage much take up. They are the kinds of process that LPAs currently wrestle with in progressing the LDF. The government needs to acknowledge the importance of LPAs working closely with their communities on preparing NDPs, throughout the process, in order to ensure that they are carried out properly and will be immune from later challenge.

3.3 Given that the intention is that NDPs sit alongside the current LDF, there will be an increase in advance plan making activity, which will have resource implications for LPAs. For some councils, where they have a Core Strategy in place, and particularly in rural areas, NDPs could quickly become an alternative to their existing programme of LDF work. However, most will not be willing to delay their existing programmes of work, bearing in mind that they have growth or regeneration agendas that require a bedrock of sound plans, particularly in diverse and hard pressed areas, where communities are highly unlikely to have the capacity to easily bring forward NDPs of their own.

3.4 We suggest that to assist the process of engagement with communities and encourage debate and understanding about an LDF / NDP programme of work that is appropriate and affordable, LPAs produce an annual "Community Planning Statement" (CPS) in place of the existing Statement of Community Involvement (SCI), the Local Development Scheme (LDS), and the Annual Monitoring Report (AMR). This will be a programme of work that will show how NDPs can be supported alongside the LDF, and the sources of funding. In reviewing it annually, ward councillors will be encouraged to engage with their neighbourhoods on NDPs, and help create better understanding of the planning processes on offer.

3.5 The Bill makes provision for the LPA to organise and bear the cost of the NDP examination, the referendum, and provide support to the process in a number of other areas. These are significant costs that the LPA will need to recover, and the government’s proposals in that regard need to be clear. In addition, the preparation costs of NDPs are likely to range from between £25,000 and £250,000, depending on scale and complexity, and the government’s proposals for funding them needs to be clear. A lack of clarity about the certainty and scale of funding will discourage a significant number of communities from bringing forward proposals for NDPs, and will not engender the support of councils. These changes to the planning system are taking place at a time of extreme financial pressure on councils, including the loss of Housing and Planning Delivery Grant, and planning departments are taking enormous cuts. On the other hand, a clear two or three year commitment to funding, specifically targeting this area of work, will enable councils to prepare their CPSs with confidence, and to generally encourage the NDP process. And it is especially important that in diverse local authority areas, the affluent communities do not take an unfair share of the limited NDP resources available, or otherwise distract the LPAs from planning for regeneration in deprived areas.

3.6 Following on from para. 1.5 above, and the need to avoid NDPs becoming a tool for nimbyism, we understand that it is the intention that NDPs would be required to provide for at least the same level of development as the development plan, and hopefully more. However, it is not clear how that will work in practice where development plans do not show all allocations on a site specific or parish or neighbourhood level, or where there is no Core Strategy in place. We suggest that in order to help achieve the "golden thread", the LPA should undertake policy and process accreditation of the NDP to ensure that the approach taken is appropriate, in the wider interests of the council’s area, and supports wider cross boundary and national planning policies and objectives.

3.7 This reflects a further concern regarding the proposal that NDPs must be in "general conformity" with the local plan – consideration needs to be given as to what that means in circumstances where neighbourhoods seek to constrain development, and preserve the status quo. We would recommend that through a process of policy accreditation, the LPA identifies key policy and project requirements that must be met, and these should be given appropriate weighting in the examination of the NDP. This suggests that the LPA ought to have a statutory role in creating the brief for the NDP before there is any possibility of it departing from key Local Plan aims, objectives and proposals. The brief would deal with strategic elements only, covering development requirements that should be provided for in the NDP, and any matters which it should not include (for example to ensure that the NDP complies with national policy on supermarket development). This requirement would provide certainty and clarity at the outset of NDP preparation rather than leaving such matters to be resolved only after the NDP has been prepared. It should result in a lighter touch examination at the end of the process – the last thing we want is LPAs bitterly contesting draft NDPs at examination.

3.8 Finally, we must voice our concern regarding the proposal that a referendum will be the means by which the NDP is finally approved or rejected. A referendum is a blunt instrument that, unlike an elected body or an independent examiner, is unable to give a weighting to different interests and representations – it is unlikely that the NDP process will be entirely harmonious within communities. And a referendum might have a variety of uncertain outcomes such as a very low turnout, or a very close result. Furthermore, younger members of local communities and local businesses, both of which have a legitimate vested interest in their local community, will be excluded from the referendum process. All this could lead to subsequent dissatisfaction and legal challenge.

3.9 We would suggest that should the proposals for holding a referendum be retained that consideration is given to holding the referendum before the examination. A possible process is that the LPA endorses that the NDP is sound enough to go to a referendum, and that it is sufficiently well explained and illustrated to be properly understood in the community. The referendum should then be held and a vote in favour would take the Plan into examination. The examiner would determine whether all interests had been properly accounted for, and that an unfortunate outcome to the referendum, (such as a low turn out or a very close vote), was properly considered, and make any necessary recommendations to the Plan’s sponsors and the LPA for changes to the Plan prior to adoption. This would also ensure that the promoters of the neighbourhood development plan would only be committed to the cost of providing evidence and witnesses for the examination when they knew that they had a successful outcome to the referendum. The same principle should apply to neighbourhood development orders.

3.10 At this point we would put in a good word for the Planning Inspectorate – the Bill excludes them from being appointed to examine a NDP. But we know that they have a pool of very well respected examiners, whose independence is proven, and in whom confidence is high. We would not wish to exclude others, but the examination of a plan is a particular skill, and the Inspectorate has it. We understand the desire to make neighbourhoods feel as independent as possible from Government and councils, but this is an unnecessary exclusion.

3.11 Finally, our members’ experience of local referenda and parish polls would suggest that there might be some more efficient, effective and cheaper ways of obtaining the views of local people. POS would be happy to share that knowledge.

Proposed changes to the Bill

1 Community planning statement

Amend Clause 91 to -

(a) Remove Sections 15 and of the Planning and Compulsory Purchase Act dealing with the local development scheme and statement of community involvement

(b) Replace them with a new Section headed "Community planning statement", which will have the following functions -

i) To set out the arrangements the local planning authority will make to support and advise on the preparation of neighbourhood development plans

ii) To set out the local planning authority’s programme for the preparation of development plan documents and how that will relate to the preparation of neighbourhood development plans

iii) To set out how the local planning authority will go about public participation on development plan documents prepared by it; and how it will consult on planning applications

2 Neighbourhood development plan brief

Amend Clause 96, Schedule 9 to introduce a requirement for the LPA to provide for each neighbourhood development plan a brief which sets out the key requirements which the NDP should meet in order to comply with national and local planning policy. This will cover both development which should be provided for in the NDP, and any nature of development which should not be included.

3 Process for examination and adoption of neighbourhood development orders and neighbourhood development plans

Amend Clause 96, Schedule 9 to provide for neighbourhood development orders and neighbourhood development plans to be subject to referendum before independent examination.

A similar change is proposed to Clause 96, Schedule 11 in relation to community right to build orders.

4 Independent examiners

Amend Scedule 10, para. 7 to allow the Planning Inspectorate to provide independent examiners

Matters for clarification

1 Confirmation that the intention is that NDPs should provide for at least the level of development indicated by the strategic policies of the development plan - presumably the core strategy.

2 How the appropriate level of development would be determined where the core strategy does not provide development targets to such a fine level as the area for an NDP.

3 Clarification of Section 61G that the extent of a neighbourhood area should normally be the area of a parish or town council, or the area proposed by a neighbourhood forum, and that they are mutually exclusive - town councils sometimes cover very large places and populations and may benefit from being allowed smaller neighbourhood planning areas within them.

4 Given that the approval of a NDP (and a CRtB scheme) is by referendum, we understand the democratic imperative of ensuring that a revised plan is subjected to the same process. However, in our experience, most plans undergo a variety of minor changes as they are progressed, and it would not be practical or cost-effective to instigate a process that culminated in a referendum each time. Better to have a minor revisions process, which could include a local consultation, and a final decision by the plan sponsors having taken the advice of the LPA.

4.0 Community Right to Build

4.1 Picking up on the government’s wish to satisfy the need for more affordable housing in rural areas, we would suggest that this could be given a short term boost by a simple amendment to paragraph 30 of PPS 3 removing the statement that ‘rural exception sites should only be used for affordable housing in perpetuity’. This sentence effectively precludes any market housing on exception sites, which can provide not only a cross subsidy to assist with the delivery of the affordable housing, but also contribute to a mixed community as a village expands.

4.2 Landowners would have more incentive to offer up land for development if they can see a greater financial return than if the land is restricted to affordable housing. It would also help farms and small rural businesses to be more viable by releasing capital for them to re-invest in their businesses. This change to para. 30 could be made now, in advance of the National Planning Framework, where we would expect to see it, and provide an immediate incentive to rural housing delivery.

4.3 Turning to Community Right to Build (CRtB) itself we would suggest that sufficient detail is required regarding what is to be built to ensure it will properly take into account important constraints, and so the community, and neighbours to the development in particular, know what is being voted for and properly understand the impacts. In this way potential developers will also have certainty, and the community and LPA can determine if what gets built conforms to what has been approved.

4.4 Clarity is required as to whether conditions could be attached to a CRtB scheme. This seems right as, for example, some neighbours may need protecting from some of the impacts. How will conditions be attached? What status will they have and how will they be enforced? The same questions apply to appropriate Section 106 agreements because although we note CRtB will be exempt CIL we envisage there may well be directly related Section 106 requirements. This needs clarification so that, for example, communities can be assured that the housing with be occupied as intended, ie. ensuring that the ‘affordable’ element of a housing scheme is secured for as long as it is needed, and that this can be legally enforced.

4.5 As with Neighbourhood Plans, there will be resource implications for LPAs in ensuring an effective CRtB initiative gets on the ground, yet LPAs will not benefit from planning fees for these schemes.

Proposed change

1. Paragraph 30 of PPS3 removing the statement that ‘rural exception sitesshould only be used for affordable housing in perpetuity’.

Matters for clarification

1. What detail will be required in a proposal for a CRtB scheme?

2. How will conditions / Section 106 agreements be attached to a planning permission?

3. How will the development and any conditions be monitored and enforced?

5.0 Enforcement

5.1 The POS welcomes the Bill’s provisions in respect of enforcement, and would suggest the following further improvements:

1. Stop notices: an important tool to bring breaches of planning under control quickly – but the two systems that currently exist are unnecessary. Suggest one system with the following features:

a. A stop notice when served lasts 28 days

b. It becomes permanent if an enforcement notice is served within that period

c. Compensation is payable only if it transpires that there was no break of planning legislation

2. Retrospective applications: an opportunity to combine the planning permission and enforcement systems:

a. Decision can be a joint planning refusal and enforcement notice

b. LPA should have the ability to set the planning application fee to cover the additional costs (eg. 2 x normal fee).

3. Breaches of planning control, but no application and the development is acceptable:

a. If a contravener refuses to make an application and the development is OK, they "get away with it" currently. We suggest a planning permission should be issued (with conditions) and a charge put on the land for 10 x the planning application fee, if considered appropriate by the LPA.

4. Breaches of planning control, but no application and the development is not acceptable:

a. The contravener is not subject to any penalty charge, and we suggest

an enforcement notice should be issued and a charge put on the land for 10 x the planning application fee, if considered appropriate by the LPA.

5. Fines do not match the profits or the uplift in property values, so we suggest:

a. an increase in the fines that can be imposed by Magistrates Courts to demonstrate the importance of enforcement and to deter future unauthorised activity

b. Fines need to go to the LPA to fund the enforcement service

c. Ability to use confiscation orders within planning enforcement

6. We suggest reframing planning rules around planning permissions being kept alive by "technical starts" and improve the effectiveness of completion notices to deal with part finished buildings (see July 2001 ODPM study). The key problems are that the process is very cumbersome and the outcome is uncertain:

a. Completion of a part-finished development is not guaranteed.

b. If not completed, the part-completed development is lawful and cannot be removed

c. The requirement for confirmation of a completion notice by the Secretary of State is unnecessary.

7. We need more streamlined regulatory procedures - such as reducing the time it takes to deal with appeals against the service of enforcement notices; and any repeat unauthorised activity by the same perpetrator to be capable of expedited action.

6.0 Community Infrastructure Levy

6.1 The three provisions in the Bill relate to funds for neighbourhoods, extending funding to on-going infrastructure costs and restricting the scope of the Examiner at charging schedule examination.

6.2 The intention to ensure that neighbourhoods derive some benefit from development through the provision of locally determined infrastructure improvement is well understood, but care needs to be taken to ensure that such contributions are not so substantial that they undermine the principle of the CIL in providing infrastructure to support needs arising from development. In this respect a realistic definition of "meaningful proportion" will be crucial to guide CIL authorities, examiners and community groups. Particularly in the early stages of CIL implementation it will be very difficult to assess likely neighbourhood demands and there will need to be flexibility to allow for this in determining charging schedules. At present the Bill provides only that regulations may require CIL authorities to pass on funds to others. All details are to be in regulations. This is such a significant change that more clarity about the intention behind the provision is needed at this stage to understand and debate its impact.

6.3 The extension of the use of CIL funds to on-going costs of infrastructure provision is welcome, but again needs to be treated with caution in determining charging schedules and programmes for expenditure. Funds retained for on-going maintenance will inevitably reduce the capacity to fund new infrastructure. Whilst this will ultimately be a matter for local determination the government may wish to consider regulation to limit on-going maintenance payments (eg. by limiting the length of time and nature of costs eligible).

6.4 The limitation on the role of Examiners is broadly in line with the government’s proposals for LDFs and is to be welcomed.

Proposed change

1. Amend the Bill provisions in respect of funding for neighbourhoods to provide greater clarity in respect of the intentions and limitations of how this will operate.

2. Ensure regulations in respect of on-going funding for infrastructure clarifies the type of spending eligible and includes a limitation on the length of time for any particular item.

 7.0 Pre-application engagement for major consultations

7.1 The explanatory note accompanying the Bill suggests that only about 600 applications per annum are expected to be subject to the Clause 102 pre- application consultation requirement. Whilst the government hopes good pre- application practice will be taken forward voluntarily, an opportunity to assist local communities to become involved with other major proposals will be lost.

7.2 The Killian Pretty report identified the need for more comprehensive pre-application involvement than is provided for by the clause. In Scotland all applications for 50 or more dwellings or their equivalent are subject to a similar provision to Clause 102.

Proposed change

POS recommends the prescribed development description should use major applications as the appropriate threshold

8.0 Definition of Sustainable Development

8.1 We understand that some consider that the definition of sustainable development should be included in the Localism Bill to give it statutory weight in the consideration of planning policy and planning applications. We think that would be a mistake.

8.2 Understanding of what constitutes sustainable development has changed considerably over the past ten years or so, with a strong emphasis today on the economic and social factors as well as environmental. Today we think we have an idea of what would constitute a sustainable neighbourhood, and what would be required of different kinds of development for it to be sustainable. But tomorrow our view might change as circumstances change.

8.3 It is therefore important that any definition is capable of easy modification in order to capture the nuance of the day, and that means it is best located in the National Planning Framework (NPF).

8.4 However, we are opposed to the definition being used to determine planning applications in the absence of a Local Plan / Core Strategy. The answer is to ensure that all LPAs do have a Local Plan in place, and that meanwhile they continue to use saved policies, the Sustainable Community Strategy, and policies in the National Planning Framework, and other material considerations, to determine applications.

8.5 If the Government does proceed to use the definition in the ways proposed, we consider that to be relevant and useful, and to ensure the proper planning of an area, any definition that is used to judge plan making proposals or planning applications needs to embrace the local dimension – many aspects of sustainable development are meaningful only at the local level. For example, the housing mix in a planning application needs to take into account local housing need as expressed in the local housing market assessment, and renewable energy requirements have to take into account local opportunities to harness it. Even where a Council has no approved Core Strategy, it is very likely that it will have collected or can access relevant information to assist an applicant, including the Sustainable Community Strategy, which is still a statutory requirement.

8.6 We would therefore suggest a three-part definition on the following lines:

February 2011

[1] Local Development Orders & Neighbourhood Development Orders