Written evidence from the Law Society
(ARSS 63)
The Law Society is the representative body of over
100,000 solicitors in England and Wales. The Society negotiates
on behalf of the profession and lobbies regulators, governments
and others. This consultation response has been prepared by members
of the Law Society's Planning and Environmental Law Committee.
The Committee comprises 20 practitioners expert in these areas
of law from a cross section of the profession, both public and
private sectors, and from across the UK nations.
1. SUMMARY
1.1 The Society believes that the abolition of
regional housing targets will mean fewer dwellings are built.
1.2 Incentives may have some place, but there
is much to be done on this. The Society has doubts that the current
proposals will prove sufficiently attractive to make developments
palatable to local communities. They may also lead to poorer decisions
as planning permission is granted to the proposal which yields
the greatest advantage for a community, or is even bought and
sold.
1.3 It would be helpful to look at the sub-national
systems which existed before the regional government experiment
for examples of ways to cascade national figures down to authorities.
1.4 The duty to co-operate needs an effective
sanction against non-compliance.
2. RESPONSE TO
QUESTIONS POSED
2.1 The implications of the abolition of regional
house building targets
2.1.1 There is no particular legal aspect here,
but common sense suggests that without a steer from Central Government
as to how many dwellings are needed authorities will be reluctant
to accept many new houses. The regional function simply splits
the national figure down to individual authorities. Without that
national and regional allocation, how are local authorities to
decide how much they should take and whether they have reached
an appropriate level? Are they for example to commission their
own economic research?
2.1.2 Common sense suggests that there will be
a reduction (the Society suggests of some significance) in housing
supply at least in the short to medium term.
2.2 The likely effectiveness of incentives
2.2.1 This is largely a socio-economic and behavioural
issue. Is the carrot tempting enough? There is a danger that this
will turn into the buying and selling of planning permissions.
The development which yields the highest will stand the best chance
of obtaining permission. The matching of council tax sounds generous
but it has been pointed out to us that this will take a long time
to be felt tangibly by the electorate. The full effects will take
more than six years. It will be a very far sighted councillor
in a very safe seat to vote for a needed but unpopular development
on that basis.
2.2.2 The Society would encourage the coalition
Government to be clearer when it uses the term "localism"
in the planning context. The determination of planning applications
is likely to remain with the local planning authority, but much
is made in press releases etc about the increased role of the
"local community". It is important not to overstate
what the role and influence of local people is to be, so as to
avoid disappointment when "incentives" become clearer.
2.2.3 Incentives may well work—but is the
outcome of that always desirable? Local authorities, keen to attract
the financial benefits of development, may be persuaded to approve
certain types of planning application—but we must be careful
to avoid inappropriate planning decisions.
(A) For example, if the incentives for housing
development are attractive, a local authority may be persuaded
to approve applications in locations which are not sustainable.
(B) Viewed strategically, the right location
for housing development might be a neighbouring authority's area
so whatever the scheme for incentives is, it must avoid unhelpful
"competition" between authorities as well as poor planning.
2.3 Arrangements for cooperation between authorities
in relation to certain strategic matters
2.3.1 Before RSSs we had Regional Policy Guidance
(RPG), but no regional government. Issues which had to be sorted
out at sub-national level, but higher than counties, were arranged
by groupings facilitated by central government. RPGs were informed
by that process. And in the minerals field, the regional aggregates
working party split up the national minerals requirements. Similar
arrangements are obviously necessary.
2.4 Existing proposals on a duty to cooperate
and the possibility of Local Enterprise Partnerships (LEPs) fulfilling
a planning function
2.4.1 The effectiveness of a duty to cooperate
depends (sadly) in the last analysis on the effectiveness of the
sanction. All administrative decision making has to take relevant
issues into account. So if a relevant issue is raised late it
does not cease to be relevant. In the planning field there is
the additional requirement to comply with EU law on environmental
assessment, both strategic and particular; where failure can lead
to invalidity. Effective penalties for failure to co-operate will
be needed.
2.5 Research and data
2.5.1 There should be no barriers to dissemination
of existing material, and the LEP could take responsibility for
ensuring work is kept up to date. This is likely to mean that
different authorities within the LEP area are asked to take responsibility
for different pieces of research, with the LEP coordinating. This
may assist cross boundary cooperation.
September 2010
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