UK: Planning Act Blog 189: Localism Bill Delay, But Here Are Its Likely Contents

Last Updated: 23 November 2010
Article by Angus Walker

The Planning Act 2008 is one of the most important pieces of legislation affecting major infrastructure projects for many years. The same new procedure will be available for new nuclear power stations, onshore and offshore windfarms, railways, motorways, electricity pylons, and many more high-profile projects.

This is entry number 189, first published on 22 November 2010, of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog. If you would like to be notified when the blog is updated, with links sent by email, click here.

Today's entry reports on delays to the 'imminent' Localism Bill and its likely contents.

The Localism Bill was widely expected to be published today, partly aided by a declaration by Greg Clark MP in a speech on Thursday that it was 'imminent'. Now it seems it may be delayed for a further two or even three weeks.

The official reason for the delay is 'Parliamentary congestion', which is not a seasonal virus but the fact that time on the floor of either House for the Bill to be considered is difficult to find. Unofficially, it is believed to be wrangling over some of the Bill's contents, notably what powers will be given to directly elected mayors outside London (see below).

Undaunted by this news, I have harvested the hints and speculation and bring you what the Bill is likely to contain - and not to contain. The Bill is expected to be some 300 clauses long and cover a disparate assortment of changes to planning and local government.

Infrastructure planning

One of the main jobs of the Localism Bill will be to amend the regime for authorising nationally significant infrastructure projects (NSIPs) introduced by the Planning Act 2008 - hence its relevance here. The Bill will amend the Planning Act rather than replace it (something of a relief given the name of this blog).

It is likely to amend the Planning Act to require National Policy Statements (NPSs) to be approved by a vote in Parliament. This was a pledge of the Conservatives before the election, but is only referred to obliquely in the Coalition Agreement when setting out the Lib Dems' dispensations on nuclear power.

It is likely to amend references to the Infrastructure Planning Commission (IPC) to refer instead to the Planning Inspectorate (or the Major Infrastructure Planning Unit of it), which will take over consideration of NSIPs from April 2012. MIPU will examine applications but decisions will be made by the government, as is currently the case until National Policy Statements have been finalised. We are expecting the government to give itself a three-month deadline for making decisions once MIPU has made a recommendation.

The Bill is not going to tweak the thresholds that define whether a project is an NSIP or not. This is because the Planning Act already contains a power to do this by order. Indeed, an order is expected to be consulted upon in the new year on bringing the Thames Tunnel within the scope of the Act (helpfully meaning it won't have to involve abortive planning applications that are then 'called in').

It remains to be seen how much the Bill will address perceived gaps in the Planning Act regime, such as there being no body charged with discharging conditions attached to a development consent order, and no 'host' local authority for an offshore project. The Bill may also enlarge the scope of development consent orders to restore items that were removed in response to the perceived 'democratic deficit' of the IPC deciding applications.

Other planning changes

The Bill is expected to abolish the level of plan-making above local authorities (regional strategies) but to add a level below local authorities (neighbourhood plans). The text of the clause to do the former has already been published in response to the Cala Homes judgement (see earlier blog entry). 'Neighbourhoods' are likely to be formed around parishes or local government wards.

The pre-application consultation duty that is one of the main features of the Planning Act regime is to be extended to all major applications, not just infrastructure applications. It will be interesting to see what the thresholds are for this and whether it is as extensive as the requirements in the Planning Act. Such a duty may only be introduced when there is no neighbourhood plan in place, or may apply generally.

Local authorities may be required to complete their development plans by mid-2102. These would be any uncompleted first iterations since the 'local development framework' was introduced by the Planning and Compulaory Purchase Act 2004.

A new 'duty to cooperate' between local authorities will be placed upon them. This is to encourage decision-making at the right level - if a development impacts on a wide area, then the local authorities involved should get together rather than just the host one deciding everything.

There is to be a presumption in favour of sustainable development, but as this is likely to be qualified by compatibility with national, local and now neighbourhood development plan policies, it does not change the status quo that much.

The Bill will abolish Regional Development Agencies (RDAs), but despite RDAs having statutory powers, the Bill is not expected to give explicit powers to Local Enterprise Partnerships (LEPs), recently set up to replace them.

The Bill may deal with planning guidance and introduce a 'national planning framwork' to replace the current planning policy guidance and planning policy statements.

The Bill is not expected to contain rights of appeal against grants of planning permission (at the moment only refusals can be appealed). This had been mooted in the Conservatives' 'green paper' Open Source Planning before the election.

Other non-planning changes

Councils are likely to be given a 'general power of competence', i.e. they can do anything that they are not prohibited from doing rather than only being able to do what statute allows them to do. The Local Government Act 2000 appeared to go most of the way toward this, with a general power 'to promote or improve the social, economic and environmental well being of [local authority] areas' but that has not been interpreted very widely in practice. This could have a significant effect on the doctrine of 'ultra vires' (outside the powers) that has been the subject of many a court case.

There is to be clarification of law on predetermination and bias in local government. Councillors will have the carrot of more freedom to speak on issues they have views on, but the stick is that there will be criminal sanctions for making decisions for personal gain.

There are to be referendums on whether to have elected mayors (probably in 2012) in England's twelve largest cities outside London: eleven are Birmingham, Bradford, Bristol, Coventry, Leeds, Leicester, Liverpool, Manchester, Newcastle-upon-Tyne, Nottingham and Sheffield - can you name the twelfth? The Bill was originally going to set up mayors for these cities without a referendum, but it has since been decided to let local people have a say first. How Boris-like the powers given to such mayors will be appears to be one of the Bill's sticking points.

The matching by the government of council tax receipts from new homes may be included in the Bill to encourage house-building from the bottom up rather than from the top down via quotas in the doomed regional strategies.

The Bill may introduce a new way of privatising local authority-run services by allowing outside organisations (whether this will include private sector as well as 'third sector' groups is as yet unknown) to challenge local authorities that they can do better.

Finally, there is to be a shake-up of allocations for council housing and homelessness assistance. A consultation on this subject was launched this morning.

So those are the Localism Bill headlines - I hope I don't have to eat my words in a couple of weeks' time. Oh, and the twelfth city is Wakefield.

Previous entry 188: lessons learned from Planning Act regime analysed at seminar

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