Localism Bill

Memorandum submitted by Kate Bailey MRTPI CMLI (L 96)

1. My interest in the Localism Bill derives from my professional experience as a planner and a landscape architect who has, since 1972, been employed by local authorities, development corporations, the Planning Inspectorate and various planning consultancies. I have been a community planning volunteer for NW Planning Aid since 1987 and a self-employed planning and landscape consultant since 2002, working with local planning authorities, housing developers and community organisations including Parish Councils.

2. I share the view of Ministers, as expressed in the Local Growth White Paper, that the planning system is a key mechanism for increasing confidence in investment in order to achieve sustainable development. Planning is also a vital tool in the delivery of the Government’s ambitions for adaptation to climate change, flood risk and energy efficiency. In my experience, developers look to the planning system for clarity and certainty before they are willing to invest. By abolishing the Regional Strategies and creating a new category of neighbourhood plans, I am concerned that the Localism Bill has introduced new layers of complexity and uncertainty into the planning system that will seriously damage the ability of the development industry to recover from the current recession.

3. Others have been more eloquent than I can be, but I must echo their grave concerns about the abolition of Regional Strategies, not because of the loss of housing targets, but because of the irreplaceable loss of environmental, social and economic policies, professional skills, experience and documented evidence. True localism should allow for local decisions to be made in different parts of the country. We may not be able to rely on regional policies anymore, because of fierce resistance in the affluent south-east, but many in the north-west are already regretting the demise of 4NW and NWDA. There is a void in the Bill where it fails to provide any replacement for the strategic planning functions of regional authorities. There is no mention of the role that could be played by LEPs in this respect and I fear that local planning authorities with depleted resources, required to focus on local planning at neighbourhood level, will struggle to achieve an effective strategic over-view.

4. Nevertheless I must commend the stated intention in the Bill "to provide for community empowerment" although its drafting suggests that Ministers have only limited understanding of best practice within the planning profession. As the High Court judgement in the Cala Homes case has recently confirmed, the weight given to any 'material consideration' depends on the individual circumstances and it is for the decision maker to decide on the appropriate weight. Professional planners are trained to make decisions in the wider public interest. They are required to weigh in the balance all the statutory requirements, strategic and local policies and environmental constraints, plus the over-riding imperative to encourage sustainable development, together with the social needs and aspirations of diverse communities.

5. Proper planning is not simply a matter of "getting communities to express their ambitions and aspirations right from the beginning" as Ministers now suggest, though the 2004 PCP Act made that the starting point for the statutory process. The Local Development Framework system of plan making is 'front-loaded' so that public engagement has become an integral part of the process. Every LDF Core Strategy is required to express the community's 'vision' for their area. Decisions on local planning policies are made by democratically elected members, based on factual evidence and the best available technical advice about locally achievable options, following public consultation periods when local people are encouraged to express their aspirations and ambitions. Local authorities publish all the responses at each stage of the process with an explanation of how each person's response has influenced the final plan. Anyone who wishes to be heard will be invited to speak at the Examination in Public, where the Planning Inspector is required to listen and to take their views into account when making his or her recommendations about the plan.

6. Similarly, planning consultants working with developer clients invariably involve local residents in the vicinity of any development site in pre-application discussions, to find out about possible impacts on their neighbourhood, their concerns and ways in which these could be overcome. Local planning authorities already require consultation statements to be submitted with planning applications, to explain what consultations have taken place and what changes have been made to the development proposals as a consequence. Even if the proposal goes to appeal, the Planning Inspector must ensure that everyone who wishes to object has the opportunity to make their views known and that all views are taken into account.

7. In addition to their knowledge of the statutory legal framework, most planners possess the necessary skills and experience in terms of enabling, supporting, facilitating and empowering communities to engage with local planning issues. The existing statutory framework makes community engagement an integral part of the process. However, local planning authorities are now having to reduce their "back-office" planning staff to a bare minimum and the Planning Aid England 'pro-bono' professional advice service, which supports local communities and encourages them to become involved in local decisions, will cease to exist on 31 March 2011. Therefore the introduction of "extreme localism" into the statutory planning system gives rise to a number of significant concerns.

8. The process of preparation and adoption of neighbourhood plans, as described in the Bill, is convoluted, muddled and open to undue influence by parties with very little interest in the needs and aspirations of the local community. If the CLG Impact Statement is to believed, the Bill is based on wishful thinking and the hope that "the empowerment of neighbourhood communities … will lead to behavioural change in such a way as to make local communities more predisposed to accept development." Unfortunately there is no clear explanation of the powers, responsibilities and accountability of the proposed neighbourhood forums. The legal status of neighbourhood forums and their plans, the transparency of the plan-making process and the relationship of those plans to statutory Development Plan Documents, is of prime importance, to provide certainty in the planning system.

9. From my work with local authorities and individual communities it is clear to me that community engagement takes a considerable amount of time and effort, to engage people who are not aware of, or who would not normally become involved in, planning decisions about their area. Whilst Parish Councils are democratically elected, with open meetings, residents groups tend to be composed of people who come together to address a single issue. Therefore the composition of a 'neighbourhood forum' based on an existing residents group must be diversified, in order to fairly (and democratically?) represent the views of the silent majority in their neighbourhood.

10. The new section 38A (inserted into PCP Act 2004) requires local planning authorities to make a neighbourhood development plan if a referendum has been held and more than half of those voting are in favour of the proposed plan. To allow a referendum to be passed by a 50% majority, when less than 5% of residents may have voted, is an inadequate response to the need for fair and equal representation at neighbourhood level.

11. From my work with developers and landowners it seems to me that the Bill invites them to influence local groups seeking new facilities for their community. The CLG Impact Assessment confirms that "Indeed, developers will be able to approach neighbourhood communities with an offer of financial support to promote a neighbourhood plan which explicitly identifies a specific development proposal of the kind that the developer would wish to take forward." The Bill encourages this approach, rather than seeking to safeguard local communities from the schemes of those developers who wish to achieve a greater quantum of development than would otherwise be acceptable in those locations. The converse is of course also likely, that developers and landowners may decide to delay, or not to develop land at all, where a neighbourhood plan requires a wide range of new community facilities that would prejudice the viability of their development proposals, particularly where land values are low, as in regeneration areas.

12. Whilst it has a laudable aim, to devolve more powers to councils and neighbourhoods and to give local communities greater control over local decisions like housing and planning, the Bill fails to strengthen, and merely serves to confuse, the existing legal framework. It places a duty to cooperate on local planning authorities but fails to explain what will happen if they are unable to agree. It suggests that civic groups can become neighbourhood forums, but fails to explain how a local authority is supposed to determine which group should be chosen to be the designated representative of the whole community. In particular, the Bill fails to address the issues of social exclusion and inequalities within communities, and the low level of awareness of the planning process within groups such as the elderly infirm, people with disabilities, minority ethnic groups, faith groups, low income families and others whose views are unlikely to be adequately represented by a neighbourhood forum.

13. The Bill provides for the creation of neighbourhood development orders and plans but fails to explain how the various stages leading to adoption will be adequately funded, other than suggesting that some future developer may be charged. Developers have become accustomed to making financial contributions towards the cost of affordable housing and other community benefits, but in my experience they will offer only one pot of money to be used to achieve the community's 'wish list'. Therefore, if developer contributions are used to pay for a neighbourhood plan, there will be less money available for other purposes.

14. Clause 100 seems to suggest that the Minister will have powers to provide financial assistance in connection with neighbourhood planning but this section is vague, ill defined and inconsistent with comments somewhere that £20,000 per neighbourhood may be provided to a local authority but will not be paid to the community. The CLG Impact Statement suggests that neighbourhood plans will cost on average between £17,000 and £63,000, which may be true in some cases but does not seem to allow for the very costly Strategic Environmental Assessments (typically £20,000) or Environmental Impact Assessments (minimum £50,000) that will be required to justify the plans (EU Regulations). If the costly process of neighbourhood planning is not properly funded and resourced then the outcomes hoped for by the Government, including behaviour change in communities and a reduction in the level of antagonism within the planning system, will not be achieved.

15. The Bill seems to intend that neighbourhood development plans will become part of the adopted development plan for an area, in which case they must be made sufficiently robust and technically detailed so that they can carry considerable weight in the determination of any planning application or appeal. For this reason it seems illogical and irrational for the Bill to stipulate (Schedule 10 paragraph 7) that neighbourhood plans and orders will be subject to examination by an independent person who must not be "a local government employee or a civil servant … and must have appropriate qualifications and experience". Planning decisions are always open to legal challenge and if the examination of a document that will become part of the development plan is not carried out by a Planning Inspector, then I feel sure that the legal profession rather than the community will be the main beneficiary of this Bill.

16. Finally, Ministers have decided not to introduce a new 'third party' right of appeal. Therefore I share the concerns of many in the development industry that, because the Bill will give local people, residents groups and local councillors the power to instigate local referendums on any local issue, some may use this mechanism to delay, interfere with or prevent development proposals of which they disapprove.

February 2011