4 The new planning system
28. The new planning system will be very different
from that which was in place before the General Election. The
Secretary of State summarised the two major policy pledges of
the Government:
There are two policy undertakings: one is the Localism
Bill, with which everyone will become very familiar very shortly;
the second is the commitment in the Coalition Agreement to rationalise
and revise the national planning framework. It is clear that some
things need to be decided nationally, and local planning needs
to be in a national context. I think it has grown to a size that
is out of control [
] While the Bill is going through its
Committee stage, we will be working with the industry, local government
and stakeholders to rationalise this into something that is clear
and usable.[36]
In this chapter, we address the challenges that the
new planning system must address, including: effective strategic
planning issues and 'larger than local' planning issues; Local
Enterprise Partnerships and their role in the strategic planning
process; local authorities' 'duty to co-operate' and the option
of local authorities working together, developing strategic planning
frameworks with statutory status; and planning processes for controversial
strategic issues, including aggregate mineral supply, sites for
Gypsies and Travellers, and waste disposal.
Strategic planning
29. Baker Associates' evidence defines 'strategic
planning':
Nobody who has any appreciation of planning, or cares
for the issues planning deals with, has ever doubted the need
for planning to have local and strategic components [...] Strategic
matters can be defined as matters that are very important, which
concern more than one authority and topic, relate to extended
timescales, and on which decisions need to be made in order to
give priority and common purpose to the objectives for an area.[37]
In removing the strategic planning tier of RSSs,
the Government wants planning based more emphatically on local
choice. How one defines 'local' is crucial, according to the Chartered
Institute of Housing:
The need to involve communities in robust consultation
processes to set new core strategies and planning frameworks is
a critical issue. However, more clarity is needed about what 'local'
means in planning decisions, and how potential disagreements in
and between communities will be resolved and reconciled in the
process.[38]
30. The memorandum from planning consultants Baker
Associates summed up a widespread view of the problem:
The wholesome model of people working amiably and
creatively on the future of a patch of land within an established
community to provide a desirable facility cannot be extrapolated
to deal with the housing needs of the country or of less favoured
groups in society, and it cannot deal with waste management, energy
generation, transport infrastructure or major arts, sports or
leisure facilities. There are some matters to be dealt with that
arise from and affect wider areas and greater timeframes than
are of interest to people acting 'locally'.[39]
31. It is not clear how the planning relationship
between the local and the strategic will be achieved. John Acres,
Catesby's Planning Director, told us he was worried about the
sudden change to the planning system, from top-down policies to
bottom-up ones, referring specifically to house building:
[W]e are changing a system completely from what is
seen as top down, which is a hierarchical system where there is
an overall target, regional targets and local targets, to a bottom-up
system that is supposed to be built up from neighbourhoods. I
have to say that having worked at every level and with a parish
council involved in local planning, it is very difficult for people
at a local level to see the bigger picture. At the end of the
day, if you are to build up a commitment to house building you
must look strategically even though you are local because you
have to bear in mind that wider picture.[40]
32. Justin Milward, from the Woodland Trust, used
a specific example of the National Forest in the Midlands to illustrate
his view that planning should not be devolved entirely to the
local level:
I think the local delivery can be enhanced by a degree
of strategic environmental planning at a level between the national
and the local. For instance, nature conservation is very much
informed these days by the idea of landscape-scale environmental
planning [...] That landscapescale is useful to inform local
delivery [
] The National Forest in the Midlands [...] covers,
I think, about 200 square miles, and they have increased their
woodland cover from 6% to 18% over their lifetime. Their area
covers three counties and six districts and boroughs, and I think
it's generally accepted that, if there wasn't a degree of planning
over and above those administrative areas, it might not have been
as successful.[41]
33. This approach, combining top-down and bottom-up
planning, is highlighted by Catesby Property Group:
[
] the new Government's philosophy of community-led
planning [...] is a laudable aim, but not an original one. Local
participation has been a basic element of the planning process
for at least 40 years. In truth, planning must be a combination
of 'top-down' advice and 'bottom-up' aspiration if the system
is to work efficiently and effectively.[42]
Researchers Graham Pearce from Aston University,
and Sarah Ayres from Bristol University, described how planning
policies need to be pitched at the right level:
There is no single or right spatial
level at which planning policies should be framed and delivered,
and different approaches will be necessary to suit different areas.
Nonetheless, there are key economic, environmental and social
challenges that cannot be met solely through reliance on national
or local decision-making, which underlines the need for a form
of intermediate or 'meso' level strategic planning.[43]
'LARGER THAN LOCAL' PLANNING
34. A grouping of 29 organisations from a range of
sectors, including such diverse organisations as the National
Housing Federation, the British Property Federation, the Planning
Officers Association, WWF-UK and Sustrans, wrote to the Secretary
of State at the end of July 2010, advocating the continuation
of some kind of strategic planningwhat it termed 'larger
than local' planningunder the new regime:
We wish to ensure that the larger than local planning
and investmentwhich we term strategic planningis
carried out to address the most pressing issues facing the nation
such as economic recovery, meeting housing need and demand, sustainable
transport, regeneration, sustainable development and growth, investment
in our infrastructure, biodiversity loss, climate change, and
reducing inequality.[44]
35. Councillor Derek Antrobus, chair of the Greater
Manchester Planning and Housing Commission, spoke of the need
for such a strategic outlook:
[...] whatever we do we need to recognise the porosity
of [local authority] boundaries and to think wider than the individual
local authority. That can take a variety of forms. For example,
in Greater Manchester, there is a long history of the 10 authorities
that constitute the conurbation working together. We also need
to be alive to our connections with authorities that border Great
Manchester: Warrington, East Cheshire and so forth. There will
always be a need to integrate our thinking on spatial planning.[45]
36. The need for strategiclarger than localplanning
is no less apparent with respect to house building than in other
areas of planning. Miles Butler from the Association of Directors
of Environment, Economy, Planning and Transport (ADEPT) told us
of his concerns about how local planning decisions on housing
will relate to national ones in urban areas:
In a small rural parish the evidence base for providing
some affordable housing on a small scale in the community may
well be there, and as long as everybody is clear that it is being
done for that purpose, I can see it working very effectively without
any real challenge to it [...] It is much more difficult to make
that work in a densely developed existing urban fabric [...] There
is the larger issue of whether the sum of all those kinds of developments
will add up to the totality of housing that is required to make
the economy work and grow. I suspect that we will still end up
with a need for some very large strategic housing sites. Those
do not sit in a theoretical space, but in real spaces next to
real communities, and that issue will still have to be resolved
somewhere.[46]
37. In terms of economic development and the certainty
which the private sector needs to be able to invest, the need
is not just for strategic planning which covers more than just
a local authority area, but for planning which covers a longer
timeframe. Andrew Whittaker, from the Home Builders Federation,
told us about the house building industry's need for strategic
planning:
One of the benefits of regional strategies was that
they were long-term documents; they looked forward over a 20-year
period, so you could change whether an area was a growth area
or a regeneration area; you had a long-term vision for it. I think
the threat of localism is that people do not look forward very
far. Everybody does it; you do not even know where you are going
on holiday next year, let alone how you will plan for your area
for the next 20 years. That was what strategic planning was about;
it was to take a long-term view. I think that will be quite difficult.
[
] All we want is clear sets of rules. Our problem at the
moment is that we cannot see this long-term vision and clear rules
for an industry that invests millions of pounds in long-term strategies
and delivery [
] Development is not like a water tap; you
do not turn it on and off; you have to do a lot of work upfront
that takes years and years and costs a lot of money, and it is
the threat to that investment that we are quite worried about.[47]
38. John Acres recognised the role for strategic
planning, however skeletal it might be, and illustrated the point
with an example of how it could be done:
One of the things I did before I came today was to
go through the files. I found the strategic planning guidance
for both Merseyside and West Midlands that was produced in October
1988 during the period of the previous Conservative Government
[
] It is very slimI think it runs to 12 pages. It
has general statements of policy and a set of numbers in the appendix.
That seems to me to be a helpful intervention because it gives
people a clear idea of the general strategyI know I must
not use the word "region"for a strategic area,
i.e. above local level.[48]
39. Miles Butler also told us of the need for a strategic
plan in some form:
[
] if the need for planning at a larger than
local level is accepted, that will have to be created in some
form. We call it a plan. It could be a vision, a statement or
whatever. It does not really matter what we call it. The point
is that there would need to be something brought about by agreement.
The duty to co-operate would be the vehicle by which you would
come to that agreement, and the test of whether your individual
local plans were sound would be that they were in accord with
that agreement. That would be the way you could deliver it without
introducing a separate statutory level, but it would need teeth
and be recognised; it could not just be a voluntary exercise that
everybody could ignore once they had gone through it. It would
need to have some bind but be agreed within the sub-region.[49]
40. John Baker, from planning consultants Baker Associates,
suggested a way forward which would enable effective strategiclarger
than localplanning without recreating the top-down problems
of regional spatial strategies:
If we had one level of plan for all the recognised
districts we have already, and a very clear, strong and biting
obligation on those who make the plans to have regard to the evidence,
including the evidence that reflects the role of those places
within functional areas, I think we could crack on very quickly
indeed [...] We can almost do what we need to do now provided
things like some of the key wording in PPS3 stay in place and
there is a clear, binding andas I saybiting obligation
on authorities to have regard to the evidence.[50]
41. There is widespread support for arrangements
to deal with planning issues that are of strategic importance
wider than the scale of individual local authorities, and the
Secretary of State accepted the principle of effective planning
on this scale. However, when questioned about the perceived gap
around strategic planning, and the need to bring planning together
in sub-regional areas or between local authorities, the Secretary
of State did not acknowledge the need for strategic planning that
covered more than just housing. He said:
The duty to co-operate is an important function of
local authorities, but this is really about bringing planning
closer to communities and the reality on the ground. I appreciate
it is comforting to planners but we do not believe that it is
a system that works. The suggestion of a vacuum is completely
wrong, because we are now moving to a different system. That different
system is now in place, in the sense that its principal ingredient
is the new housing bonus and new houses that are granted permission
will qualify for it.[51]
42. We do not agree that strategic planning is merely
"comforting to planners"; it performs an essential role
in effective place-shaping and in ensuring economic growth and
prosperity. The New Homes Bonus may or may not fill the vacuum
in strategic planning as far as housing is concerned (we return
to this point later in the Report). What it will not do is in
any way fill the vacuum in respect of other strategic planning
issues. The New Homes Bonus has nothing to say about renewable
energy; about waste management facilities; about minerals extraction;
about coastal erosion; about flooding; about water infrastructure;
or about any one of a number of other important strategic planning
issues previously addressed in regional spatial strategies. Those
issues include transport: we note that our colleagues on the Transport
Committee have recently expressed concern, in a report on transport
and the economy, that the abolition of regional planning organisations
and the lack of effective strategies at the regional level will
lead to a loss of strategic transport planning capacity in some
of the areas where it is most needed.[52]
STRATEGIC PLANNING: CONCLUSION
43. The evidence that we received showed a widespread
concern about the proposed absence of planning at a level between
the national and the local. There is a real risk of local authorities,
individually or in combination, failing to address important planning
issues in an effective and co-ordinated manner. There needs to
be a way of ensuring effective planning at a larger-than-local
level. This does not need to be over-prescriptive, but a statutory
underpinning of strategic planning is essential to ensure that
all planning issues are dealt with fairly and consistently.
We recommend that the Government include effective strategic planning
arrangements in the Localism Bill, and that it work with all sectors
to devise and promulgate an agreed approach to larger-than-local
planning across a number of authorities. The Government needs
to ensure a biting obligation on local authorities to have regard
to the evidence and to meet identified needs. This obligation
should be specified in national policy and in particular, the
tests of soundness for local development frameworks. In each case,
national policy should highlight the objective, the data sources
or assessment mechanisms used to identify the need, and the mechanism
for ensuring that each local planning authority makes an appropriate
contribution to meeting the need identified (reflecting different
environmental constraints, policy objectives or other practical
considerations). The Planning Inspectorate should implement these
requirements to ensure a consistent basis for assessing plans
brought forward at the local level.
Controversial strategic issues
44. The need for strategic planning is particularly
acute in certain controversial areas where local people do not
want developments that might adversely affect their immediate
lives or communities. As Steve Tremlett, a planner from East Sussex,
notes, "[t]here are already tensions in reaching consensus
on controversial strategic issues, and without statutory regional
policy to deliver these objectives local authorities may not have
the discipline to carry them out."[53]
Councillor Jim Harker, from East Midlands Councils, spoke of the
unavoidable element of conflict in deciding on such controversial
issues:
In a way, conflict is inevitable, because if you
left it to districts to make those individual decisions it would
be quite difficult to get things done. You need the element of
conflict and debate where everybody has the opportunity to put
their point of view, but having somebody a bit more dispassionate
who takes the decision is the right way to go about it.[54]
MINERALS AND WASTE
45. Our evidence highlighted confusion among senior
officials and Ministers about the new planning system as it relates
to minerals and waste. When questioned, the Secretary of State
confirmed that the new Infrastructure Planning Unit would take
responsibility for minerals and waste management, as stated in
paragraph 323 of the White Paper Local Growth. However,
when questioned again at the end of the session, the Minister
for Decentralisation and Planning Policy, Greg Clark, responded:
We have not taken a view on whether they will end
up there. What we have said is that initially for the transitional
arrangements while the Bill goes through, the new unit will operate
on the basis of the present arrangements, but we will be looking
at that and will review it.[55]
Then, in relation to this question and referring
her answer to the Secretary of State, Katrine Sporle, Chief Executive
of the Planning Inspectorate, said:
My difficulty in answering this question is that
I have not seen the clauses in the Localism Bill. I am aware that
the major infrastructure unit is something you want to transfer.
I await the clauses in the Localism Bill to see exactly what powers
are transferred. It wasn't my understanding that minerals and
waste would move from the current jurisdiction because they are
covered under development plan work and are already in preparation
by first tier authorities.[56]
The Secretary of State then replied:
Can I clarify that there was an error in the White
Paper? We are very sorry. We will be seeking to clarify that.
It is suggested in the White Paper that this would go to the inspectorate;
it's not
To tell you the truth, up to about 30 seconds ago
I had no idea.[57]
46. We accept the Secretary of State's comment that
"to err is human",[58]
and we are grateful to the Department for sending supplementary
evidence clarifying the position that the supply of aggregate
minerals and planning for waste will, for the time being, remain
within local planning authorities and will not move to the new
Major Infrastructure Planning Unit.[59]
It also illustrates the tension that exists between DCLG wanting
to give planning powers back to local authoritiesin line
with the principles of localismwhile, at the same time,
rightly recognising that some issues cannot be dealt with at the
purely local level.
47. We received evidence illustrating the benefits
of the current arrangements. In respect of minerals, the Minerals
Products Association wrote about the current system: "The
Managed Aggregates Supply System (MASS) has been successful in
fulfilling that role for a period in excess of 30 years".[60]
In respect of waste, the Environmental Services Association told
us:
Regional Spatial Strategies provide direction and
context on the urgent need for new waste management facilities
and apportion the tonnages of municipal and commercial and industrial
wastes that should be planned for, on an annual basis, by each
individual planning authority. Planning authorities are therefore
required to produce development plans which identify sites capable
of managing the amount and types of waste specified within the
Regional Spatial Strategy.
The apportionment figures are a key consideration
when testing submitted development plans. Regional apportionment
also provides a context for the setting of recycling targets,
identifying shortfalls in treatment capacity and driving investment
in new facilities for the treatment and recovery of waste diverted
from landfill.
The broad locations of sites suitable for (sub-)regionally
significant waste management infrastructure (e.g. hazardous waste
facilities) are identified in Regional Spatial Strategies: a strategic
planning function that local planning authorities would likely
lack the resources or the political will to perform.[61]
48. The
supply of aggregate minerals and planning for waste will, for
the time being, remain within local planning authorities. These
are matters that reside well with upper tier authorities, although
there should also be guidance to them from the strategic level.
We are concerned that the confusion that arose in evidence over
whether the function might move to the Planning Inspectorate (as
successor to the Infrastructure Planning Commission) shows again
the unduly hasty approach to reform of RSSs. A body of skill and
experience has built up over the years, in partnership forums,
to shape planning for both aggregate minerals and waste planning.
We urge the Government to retain these arrangements, which have
shown themselves to be advantageous, cheap and a means of keeping
the anxiety over these difficult planning issues to a minimum.
GYPSY AND TRAVELLER SITES
49. The issue of Gypsy and Traveller Sites also raised
serious issues about how planning decisions are made. The Secretary
of State announced that "decisions on housing supply (including
the provision of Travellers' sites) will rest with Local Planning
Authorities without the framework of regional numbers".[62]
The guidance gives more detail:
[
] local councils are in the best place to
assess the needs of Gypsies and Travellers in their area. The
abolition of RSSs will mean that local authorities will be responsible
for determining the right level of site provision, reflecting
local need and historic demand and bringing forward land in development
plan documents.[63]
50. However, there is concern that abolition of RSSs
will reduce the provision of sites for Gypsies and Travellers
and make it harder for local authorities to share out sites over
an area larger than the local authority. Mention of Gypsy and
Traveller sites is often met with strong reactions: from Gypsies
and Travellers, who believe that they are not being treated equably;
and from certain groups that are concerned about the potential
adverse effect of the sites on their neighbourhood. We received
six written submissions specifically about the impact of the abolition
of RSSs on Gypsies and Travellers,[64]
and many others referred to the impact of the abolition on Gypsies
and Travellers in general terms. The Gypsy Council highlights
the inadequate housing provision given to Gypsies and Travellers,
based on January 2010 figures:
A central dimension of the inequality from which
we suffer is the huge difficulty we have in getting culturally
appropriate accommodation. Based on the January 2010 Caravan Count
around 21% of Gypsies and Travellers are legally homeless in that
they are living on unauthorised sites (land which they own but
for which they do not have planning permission) or are on authorised
encampments (land which they do not own, including the road side).
[65]
51. The Community Law Partnership thinks that these
statistics will worsen without some form of central control:
The history of the attempt to ensure adequate provision
of Gypsy and Traveller sites (which can be dated from the introduction
of the Caravan Sites and Control of Development Act 1960) has
shown that, without some form of central control and central oversight,
site provision will not be achieved.[66]
The Irish Traveller Movement in Britain wrote in
bleak terms about the future for Gypsies and Travellers:
At the same time as revoking RSSs, the Coalition
Government has offered no tangible or credible alternative to
resolving the accommodation issues facing Gypsy and Traveller
communities. Conversely, it has indicated an intention to give
more power to local authorities, despite the fact that local authorities
were unwilling to provide sites in the past. It has also chosen
to ignore the invaluable evidence base created by the Gypsy Traveller
Accommodation Assessments and indicated that it will increase
enforcement measures that will only exacerbate, not alleviate,
the incidence of unauthorised sites. To add to this the Government's
decision to cut the Homes and Communities Agency Gypsy and Traveller
Sites grant by 100% has presently put the nail in the coffin of
financially supporting local authorities to identify and build
new sites.[67]
52. Dr Angus Murdoch summarised this double problem
posed for Gypsies and Travellers: stronger enforcement against
them in establishing unauthorised sites and no enforcement for
local authorities to provide sites:
Unfortunately, the emphasis in the proposed reforms
seems to be towards yet stronger enforcement against those unauthorised
sites which the under-provision of authorised site necessarily
ensures, whilst enforcement against the recalcitrant authorities
whose avoidance of successive responsibilities has created that
very situation, is ignored.[68]
53. Councillor Derek Antrobus, chair of the Planning
and Housing Commission at the Association of Greater Manchester
Authorities, doubted whether district councils, without a regional
body, would make adequate provision for controversial planning
proposals such as Gypsy and Traveller sitesor sites for
waste disposal:
There are some areas about which I would have concerns.
I sat on the regional planning group for the North West. One of
the most contentious areas where some authorities were reluctant
to allocate was to do with Gypsies and Travellers. That was very
controversial. I wonder whether or not local authorities would
make adequate provision for that without the sanction of regional
spatial strategies. I also chaired Greater Manchester Waste Planning
Committee for the production of the DPD. That was also controversial.
There were some very sensitive sites. In the end, we recognised
it was our duty to provide sufficient sites to meet the requirements
of the RSS. I do not know what would have happened if it had not
been a statutory requirement.[69]
54. The joint written submission from Eric Avebury,
Thomas Action, Alan Townsend, Andrew Ryder and Marc Willers highlighted
the need for further action from central government to ensure
that Travellers' and Gypsies' concerns are listened to:
An effective planning framework which can deliver
the sites needed will continue to require monitoring and direction
from Central Government [
] It is imperative that the Coalition
Government engages with Gypsies and Travellers and listens to
their concerns and aspirations. To that end we would urge the
Government to ensure that the highly successful CLG Gypsy and
Traveller Forum continues to meet regularly to advise the government
on its policies.[70]
55. Evidence from the Building and Social Housing
Foundation (BSHF) made suggestions to increase Gypsy and Traveller
accommodation annually, by the Government requiring each local
authority to publish its Gypsy and Traveller accommodation targets
and completions:
[
] this will help to promote transparency and
ensure that the costs of undersupply are minimised [
] This
information should be collated centrally and published by CLG,
to improve transparency and aid monitoring.[71]
56. Under the definition of 'affordable housing'
in the New Homes Bonus final scheme design document, the Government
includes Gypsy and Traveller sites that are owned and managed
by local authorities or registered social landlords, meaning that
there will be some financial incentive to local authorities to
provide for such sites.[72]
Gypsy and Traveller sites: conclusion
57. Gypsy and Traveller sites are a contentious issue
and without a statutory requirement for local authorities to provide
sufficient sites, there is great concern that Gypsies and Travellers
will not have adequate accommodation and that the new system of
planning may discriminate against these communities. This means
there is a problem both for those individuals without accommodation,
and also for settled communities that have unwanted, unauthorised
sites. Urgent action is needed by the Government to ensure that
there is adequate permanent and transit site provision to meet
the needs of Gypsies and Travellers, by increasing both. We see
little evidence that the abolition of RSSs will do anything but
hinder the resolution of problems relating to Gypsy and Traveller
housing.
We support the continuation of the CLG Gypsy and Traveller Forum,
but see the need for urgent guidance to local authorities to support
them in their new role following the abolition of planning for
Gypsies and Travellers at the regional level.
RENEWABLE ENERGY AND PLANNING FOR
CLIMATE CHANGE
58. Our evidence repeatedly questioned how renewable
energy, planning for climate change and other environmental concerns
will be addressed in the new system. The RSPB asked "how
local authorities will together make adequate contributions to
national renewable energy targets".[73]
Thames Water was concerned about negative environmental impacts,
following the abolition of RSSs:
Our region requires large-scale investment in infrastructure
to address urgent environmental needs, such as river water quality
or increasing demand for water. The RSSs contained detailed policies
on these issues and were essential guides to local authorities
when deciding on planning applications.[74]
59. Hugh Ellis, from the TCPA, raised problems concerned
with renewable energy and how the country as a whole will know
when renewable energy needs are being achieved:
I'm genuinely struggling to see how we do that without
some strategic framework that has that dreaded word in ita
targetbut if we don't do it and we miss our renewable energy
targets, we'll invent strategic planning as a result of the phased
withdrawal from the East Anglian coast on sea-level rise, which,
depending on which science you care to read, is now a likelihood
rather than not.[75]
He stressed the need for a statutory duty for joint
infrastructure plans to deal with climate change because "[t]here
has to be such a clear signal that it is not negotiable that you
can think about those issues, because the overwhelming national
interest has to be an effective response to climate change".[76]
60. Renewable energy and investigating and adapting
to climate change are key aims of government policy, but they
appear to have been largely forgotten in the Government's rush
to abolish RSSs. Environmental issues do not stop at local or
county boundaries, yet they are issues that local authorities
can all too easily postpone. However, local targets, like national
and international targets, are an important building block to
support real action. Environmental issues need to be considered
in a broader context and we agree with the evidence that recommended
a strategic approach, with clear obligations on all local authorities
to play their part in tackling these challenges.
We recommend that the Government ensure that a new strategic framework
is developed to incorporate the environmental aspects of planning;
that framework should be included in the Localism Bill. National
targets on environmental issues such as renewable energy will
need to be distributed to each local authority preparing a local
development framework, following a period of consultation and
engagement with interested parties.
Local authorities' 'duty to co-operate'
61. The Government's answer to the perceived gap
between local and national levels has been to urge local authorities
and organisations involved with planning to co-operate with each
other and have regard to broader considerations, backed by a new
statutory 'duty to cooperate'. The Local Growth White Paper
stresses the need for proper collaboration between people and
groups in order to achieve good planning and notes the Government's
intention, through the Localism Bill, "to place a new statutory
duty to cooperate on local authorities, public bodies involved
in plan-making and on private bodies that are critical to plan-making,
such as infrastructure providers".[77]
62. The Minister for Planning, Greg Clark, told us
of the changes in the new system:
The key difference is that it is bottom up rather
than top down. We have said, it is absolutely right, that where
strategically adjacent authorities find it convenient [
]
to pool their sovereignty, as it were, and have a cross-city approach,
particularly to economic development, obviously it makes sense
to do so. Another example is my part of the world: Kent and Essex.
There you clearly have infrastructural connections, common development
needs and challenges around the Thames estuary. Through the local
enterprise partnership they have decided to come together to pool
their sovereignty, so what you have is a voluntary system that
reflects a natural economic geography that is not only permitted
but is part of the system rather than the imposition of a regional
arrangement that, in the case of Kent and Essex, separated the
natural interests between those regions.[78]
63. Although generally welcomed, there was considerable
doubt amongst our witnesses as to whether the 'duty to cooperate'
would be an effective means of securing robust strategic planning.
Criticisms particularly focussed on the lack of any effective
sanctions for a failure to observe the duty. Roy Donson, from
Barratt Developments, described the duty to co-operate is "one
of the great unknowns at the moment"[79]
and asked what would happen if it was not adhered to:
Where is the sanction if people do not co-operate?
It comes right back to the beginning. In the process we are in,
these are all pieces of the jigsaw and we do not have those pieces
yet. I would very much like to have those pieces rather rapidly,
please.[80]
64. Fiona Howie, from CPRE, also pointed out the
lack of clarity in the proposal and the need for effective sanctions:
Just on the duty to co-operate, we believe it might
be able to play quite a useful role in ensuring that neighbouring
authorities are talking across their boundaries, but we believe
that some more clarity or clarification is needed to explain what
it really will mean. We're concerned that if it simply means that
people, in developing their local plan, just have to say to their
neighbour, "Oh, we're doing it. Do you want to see it? We
can choose to ignore everything you say and we don't have to try
and ensure that they vaguely match up in developing them,"
obviously it has the potential to be meaningless, so it needs
to have some sort of teeth to try and ensure that, in co-operating,
people are lining their plans up, rather than just nodding to
each other but not responding to feedback on trying to make things
line up.[81]
The RSPB also stressed this point, describing its
experiences of local authorities failing to co-operate in the
past: "conflicts over the shared protection of the natural
environment have arisen between local authorities where their
respective interests are not aligned".[82]
65. This problem is accentuated when controversial
issues are addressed. Rather than relying on local authorities
working together, Grundon Waste Management suggested that unpopular,
but necessary, developments such as waste management facilities
(which serve populations larger than that covered by any single
planning authority) are unlikely to secure the approval of any
individual authority:
To date there have been no proposals for how 'appropriate
co-operation between local planning authorities' can realistically
be achieved. For 'un-neighbourly' developments such as waste management
facilities, local planning authorities, whose members have an
eye on their electorate, are going to pay lip service to any 'appropriate
co-operation' with adjoining authorities. There needs to be a
more formal arrangement to provide the necessary waste management
capacity required to implement the national waste strategy and
meet our obligations under European legislation.[83]
66. Even an advocate of the duty to co-operate such
as Councillor Ken Thornber, Leader of Hampshire Country Council,
told us that: "I am not one to want sanctions but I believe
in the construct that there ought to be the reserve power of final
intervention by the Secretary of State".[84]
67. The Secretary of State nonetheless told us of
his optimism that local authorities would work together, without
the need for sanctions to enforce a duty to co-operate:
I think we have a much more optimistic view with
regard to local authorities. I pick out the Greater Manchester
authorities [
] There you have a number of authorities that
have sensibly come together to work in harmony on strategic matters.
I think that the decision of Kent, Essex and East Sussex to come
together will be a force in which they can co-operate together.
It is in their interest to co-operate. Much of the structure that
was put in before the spatial strategies was predicated on co-operation
and worked very well. I am confident that local authorities will
rise to this challenge.[85]
68. The Localism Bill provides for the insertion
of the following new section in the Planning and Compulsory Purchase
Act 2004:
33A Duty to co-operate in relation to planning
of sustainable development
(1) Each person who is
(a) a local 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.
(2) In particular, the duty imposed on a person by
subsection (1) requires the person to engage constructively, actively
and on an ongoing 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,
and
(c) other activities that support the planning of
development,
so far as relating to sustainable development and
use of land including, in particular, sustainable development
and use of land for or in connection with strategic infrastructure.
(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).
(5) A person subject to the duty under subsection
(1) must have regard to any guidance given by the Secretary of
State about how the duty is to be complied with.
(6) A person, or description of persons, may be prescribed
for the purposes of subsection (1)(b) only if the person, or persons
of that description, exercise functions for the purposes of an
enactment.
69. The language of this proposed provision combines
the vocabulary of aspiration and encouragement, which would seem
to have little place in law, with vague and imprecise references
to future central Government guidance. The courts could be asked
to decide whether people are engaging "constructively"
and whether their responses are "substantive"; meanwhile,
people will have to "have regard to" the Secretary of
State's guidance about how the duty is to be complied with. This
strikes us as bad law, poorly conceived, shoddily drafted, and
opening the door to judges, rather than democratically-elected
representatives, deciding on how the planning system operates.
"Constructive, active and ongoing engagement" between
authorities on planning issues would be welcome, certainly: but
there remains doubt as to whether the duty as defined in the Bill
will have the effect of encouraging local authorities to work
together to help deliver priorities that cannot be delivered within
a single authority's area. The Bill does not define a failure
to co-operate, does not refer to the resolving of conflicts when
local authorities cannot resolve them by themselves and does not
specify any sanctions for failure to co-operate.
70. Furthermore, there is no sign of the statutory
framework for strategic planning promised in DCLG's written evidence,
which in any event would cover only "neighbouring authorities"
rather than groups of authorities that may need to be covered:
We believe it would be helpful to offer authorities
who want to work together more formally the option of developing
strategic frameworks with statutory status. Having an agreed planning
approach across neighbouring authorities on issues such as infrastructure,
employment, transport or the natural environment will provide
certainty for all parties engaged in the planning process and
help attract investors.[86]
71. The need for strategic planning at a larger-than-local
level has been discussed at some length during debate on the proposed
'duty to cooperate' in the Localism Public Bill Committee.[87]
In response to that debate, the Government, in the person of the
Minister for Planning, Rt Hon Greg Clark MP, has gone some way
towards recognising the concerns about whether the "duty
to cooperate" will be effective:
[
] I acknowledge the opportunity that we have
to strengthen that duty to co-operate, to make it bite and to
make it more encompassing that it is. From the amendments that
have been tabled to the amendments that have been shared, there
is the opportunity to establish a set of changes to this duty
that will provide a good basis on which to replace the regional
strategies with something that reflects that approach [
]
I am very clear that there should be a strengthening of the duty
to co-operate.[88]
The Minister has undertaken "to return during
the Bill's passage with a set of Government amendments with the
objective of achieving as much consensus as possible."[89]
DUTY TO COOPERATE: CONCLUSION
72. We welcome the Government's acknowledgement during
the Public Bill Committee stage of the Localism Bill that the
'duty to cooperate' needs to be strengthened. Many of those who
are involved in the day-to-day business of making plans work fear
that a duty to cooperate becomes meaningless without a statutory
framework of the sort promised in the Department's written submission
to us, but which has so far failed to emerge. As drafted, the
'duty to cooperate' will not be a panacea for the absence of effective
strategic planning and will not achieve the co-ordination necessary
to address the controversial strategic issues to which our witnesses
have drawn attention. There are already examples of where local
authorities co-operate successfully; the test of the duty will
be where there is reluctance of local authorities to cooperate.
We look
forward to the Government bringing forward amendments to the Localism
Bill which will provide a framework for local authorities to work
within, outlining what actions local authorities should take in
their duty to cooperate, how they measure success or failure,
how parties may insist on the delivery of what has been agreed,
and default options if there is inadequate cooperation.
LOCAL ENTERPRISE PARTNERSHIPS
73. Local Enterprise Partnerships (LEPs) are to be
partnerships between local authorities and businesses based on
economic regions. These partnerships are intended to encourage
local authorities and businesses to work together to support their
local economies:
We are encouraging a wide range of ideas but we anticipate
that local enterprise partnerships will comprise both local authorities
and business with a prominent business leader chairing the board.
We also expect that partnerships will reflect the natural economic
geography of the areas they servecovering the real functional
economic and travel to work areasrather than existing administrative
boundaries. Partnerships will want to provide strategic leadership
in setting local economic priorities and creating the right environment
for business and growth by tackling issues such as planning, housing,
local transport, employment, enterprise and the transition to
low carbon economy. This suggests a close relationship with any
strategic planning frameworks that are brought forward, particularly
in terms of local economies.[90]
74. The reference to planning as one of the issues
that local enterprise partnerships would tackleand the
absence of any other frameworks for strategic planningled
many to assume that LEPs would be the vehicle for the larger-than-local
planning and cooperation between local authorities, the need for
which we discuss above. However, notwithstanding the fact that
LEPs appeared to be, as one of our witnesses put it, "the
only show in town",[91]
the evidence presented to us expressed considerable scepticism
about whether they were the appropriate means of ensuring effective
strategic planning.
75. Since submitting its written evidence, the Government
has published its White Paper, Local Growth, which highlights
the Government's view of LEPs, their non-statutory basis, and
their fluid constitutional and legal nature, depending on which
area they are covering:
The Government does not intend to define local enterprise
partnerships in legislation. Governance structures will need to
be sufficiently robust and clear to ensure proper accountability
for delivery. Partnerships will differ across the country in both
form and functions in order to best meet local circumstances and
opportunities. A partnership may need legal personality or a specified
accountable body in some circumstances such as if it wished to
own assets or contract to deliver certain functions. The constitution
and legal status of each partnership will be a matter for the
partners, informed by the activities they wished to pursue.[92]
The Business, Innovation and Skills Committee's report
The New Local Enterprise Partnerships: an Initial Assessment,
published in December 2010, explores the structures, functions
and accountability of LEPs.[93]
76. Witnesses raised four main objections to LEPs
as strategic planning bodies. The first and perhaps most fundamental
is that they lack democratic accountability. The West Midland
Regional Sustainability Forum summed up the concerns of many when
it argued "LEPs should not be given any planning powers once
held by regional and local government as it risks undermining
the notion of a planning system that is democratically accountable
and able to integrate environmental, social and economic concerns".[94]
77. The need for planning to integrate environmental,
social and economic concerns leads us to the second principle
objection, which is that local enterprise partnerships, as illustrated
by their very name, are economically based. As Colin Haylock from
the RTPI told us:
[
] simply built into the title of LEP is the
suggestion that it's primarily about economic issues. We can't
ignore the fact that economic issues are incredibly important,
but planning is trying to deal with economic success alongside
dealing with a series of other issues, trying to effect the right
sort of balance between economic performance and environmental
performance, trying to produce genuinely sustainable, socially
sustainable communities. The suggestion then is that, if this
is replacing any form of strategic planning, it has to have that
breadth of dimension.[95]
78. Thirdly, there is the non-statutory and intentionally
voluntary nature of LEPs. John Acres, from Catesby, argued
[
] if we have LEPs making key decisions in
what is a quasi-judicial process, i.e. planning, where you make
legal decisions that have an impact and people appeal against
them, you must rely on policy when you appeal. What status can
you give the policy of a LEP that has no powers as such?[96]
79. Finally, linked with the voluntary and non-statutory
nature of LEPs, there is the fact that LEPs do not, and presumably
will not necessarily, cover the whole country: some areas are
not covered by a LEP, whilst others are covered by more than one.
Strategic planning, if it is to be both fair (in taking account
of the needs and preferences of all affected communities) and
effective, needs to be undertaken on a much more consistent basis.
80. The proper role for LEPs in planning emerges
slightly more clearly from the Planning Minister's evidence to
us about how LEPs will function:
[...] part of their ambition and their purpose in
coming together is to be able to have joint strategies, to favour
economic development and say to outside investors that if they
come to their areas they will have a planning regime and system
for processing planning applications that is certain, dependable
and professionally organised. That is one of the ways in which
they will present themselves to the world. In some of the more
rural areas they have different priorities, but it is open to
all of them to pool sovereignty in that way.[97]
81. We
support the concept of local partnership arrangements to which
local enterprise partnerships are giving effect. Nevertheless,
we are pleased that the Government has not advocated giving planning
powers to LEPs. LEPs are not under any compulsion to consider
environmental or social issues or to consider the multitude of
interests that concern planning. Their primary purpose is 'enterprise',
which as an advocacy function cannot sit comfortably with statutory
democratic regulation. Local authorities and others need to work
with LEPs, and to have regard to them in preparing their local
development frameworks and when deciding planning applications;
for their part, LEPs should demonstrate a responsibility for achieving
sustainable development. However, LEPs are not a suitable vehicle
for strategic planning.
36 Q 270 Back
37
Ev 76 Back
38
ARSS 135, Chartered Institute of Housing, para 3.6 Back
39
Ev 76 Back
40
Q 177 Back
41
Q 144 Back
42
Ev 114 Back
43
ARSS 60, Aston and Bristol University, para 2.2 Back
44
http://www.rtpi.org.uk/item/3937 Back
45
Q 241 Back
46
Q 66 Back
47
Q 176 Back
48
Q 179 Back
49
Q 70 Back
50
Q 15 Back
51
Q 277 Back
52
Transport Committee, Third Report of Session 2010-11, Transport
and the economy, HC 473, para 105. Back
53
ARSS 6, Steve Tremlett, p6 Back
54
Q 246 Back
55
Q 336 Back
56
Q 335 Back
57
Qq 337 and 338 Back
58
Q 337 Back
59
Ev 152 Back
60
ARSS107, Mineral Products Association, p1 Back
61
ARSS 88, Environmental Services Association, paras 7-9 Back
62
See footnote 21. Back
63
See footnote 23. Back
64
ARSS 27, Community Law Partnership, ARSS 50, Dr Angus Murdoch,
ARSS 54, Irish Traveller Movement in Britain, ARSS 55, The Gypsy
Council, ARSS 56, Eric Avebury et al and ARSS 71, BSHF. Back
65
ARSS 55, The Gypsy Council, p2 Back
66
ARSS 27, Community Law Partnership, p3 Back
67
ARSS 54, Irish Traveller Movement in Britain, p2 Back
68
ARSS 50, Dr Angus Murdoch, p9 Back
69
Q 244 Back
70
ARSS 56, Eric Avebury et al, p3 Back
71
ARSS 71, BSHF, p8 Back
72
http://www.communities.gov.uk/documents/housing/pdf/1846530.pdf Back
73
ARSS 122, RSPB, para 4 Back
74
ARSS 143, Thames Water, para 6 Back
75
Q 109 Back
76
Q 105 Back
77
http://www.bis.gov.uk/assets/biscore/economic-development/docs/l/cm7961-local-growth-white-paper.pdf,
paragraph 3.2.1. Back
78
Q 280 Back
79
Q 215 Back
80
Q 215 Back
81
Q 150 Back
82
ARSS 122, RSPB, para 5 Back
83
ARSS 96, Grundon Waste Management, para 3.2 Back
84
Q 242 Back
85
Q 283 Back
86
Ev 151 Back
87
Localism Public Bill Committee, 13th and 14th
sittings (15 February 2011), cols 547ff Back
88
Localism Public Bill Committee, 14th sitting (15 February
2011), cols 599, 601 Back
89
Ibid., col 600 Back
90
Ev 152 Back
91
Q 234 Back
92
http://www.bis.gov.uk/assets/biscore/economic-development/docs/l/cm7961-local-growth-white-paper.pdf,
page 14 Back
93
First Report of the Business, Innovation and Skills Committee,
Session 2010-11 (HC 434), The New Local Enterprise Partnerships:
an Initial Assessment. Back
94
ARSS 17, West Midlands Sustainability Forum, p3 Back
95
Q 88 Back
96
Q 215 Back
97
Q 288 Back
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