This is entry number 202, first published on 7 January 2011, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. 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 the non-planning provisions in the Localism Bill as they could affect infrastructure.
This blog entry is the final one explaining and commenting on the provisions of the Localism Bill as they affect infrastructure planning. Previous entries considered changes to the planning and authorisation regime under the Planning Act 2008 ( here) and other planning-related changes ( here). Today's entry deals with the non-planning provisions of the Bill. The Bill will have its second reading in the House of Commons (where its general principles are debated and voted upon) on Monday 17 January.
More Flexibility in Dealing with Local Authorities
Local authorities will be able to deal with promoters of - and objectors to - infrastructure projects more creatively once their new 'general power of competence' comes into force, which is likely to be April 2012 along with many other of the provisions of what will then be the Localism Act 2011 (or possibly 2012).
Currently, local authorities can only do what a statute has given them power to do. This presumption will be reversed to allow them to do everything that a statute does not prevent them from doing. The power is expressed as allowing them to do 'anything that individuals generally may do', so we may see some local authorities going on holiday, getting depressed, and appearing on reality TV shows.
Where planning applications are sought from local authorities, there were strict rules on those taking the decision being able to speak in favour or against the application in advance, given the quasi-judicial role they were undertaking. The Bill seeks to relax this by providing that views expressed by councillors before taking decisions need not indicate a closed mind when making the decision. To what extent this will affect more general requirements for natural justice remains to be seen. There may be a period of testing the new law where councillors on planning committees feel freer to speak against applications opposed by their constituents, until they are reined in by the courts.
Referendums
The power in the Bill to hold local referendums is 'localism' at its purest. Local authorities must hold referendums in their area if 5% of their electorate petition for one, or if just one councillor requests one, as long as the subject-matter is local to the area and not vexatious, abusive, or illegal. While 5% of an electorate is quite high, the threshold of one councillor seems rather low - a single rogue councillor could cause chaos by calling for repeated referendums (if managing to avoid charges of vexation).
Referendums could be used to gauge - or marshal - public opinion against a proposed infrastructure project in the area, which could increase opposition when an application is made later, or they could seek to change planning policies favouring infrastructure, or even reverse the granting of permission. The protection of major infrastructure projects from neighbourhood planning is not carrid over to local referendums.
Taking Over Services - The Community Right to Challenge
In a new twist on the privatisation of public services, outside bodies can make 'expressions of interest' in running services provided by a local authority or potentially another body exercising public functions. The authority can only refuse on grounds to be set out by the government later; otherwise they have to run a procurement exercise.
This potentially makes council services more vulnerable to being taken over than previous privatisation regimes such as compulsory competitive tendering and 'market testing' in the 1980s and 90s, since an expression of interest could potentially be made at any time (although councils can restrict the time expressions can be made to certain periods only). On the other hand, only voluntary, community or charitable bodies, parish councils and council employees can lodge expressions of interest, although the categories can be extended. The right applies to services provided 'by or on behalf of' councils, and so already-privatised services are equally vulnerable.
Infrastructure providers may be caught by the definition of public authority that is to come later, and so their services may be vulnerable to takeover by others; as it stands they would not be able to submit expressions of interest in taking over council services themselves.
Protected Land - Assets of Community Value
Parish councils and other community groups (to be specified later) can seek to protect land by getting it added to a local authority's list of 'land of community value'. The effect of doing so would be to prevent the land from being sold until the community had had a chance to bid for it, although the full details will be set out later.
Although aimed at school playing fields and the like, this provision could cause problems for infrastructure providers. Land that they had earmarked for development could be added to the list of land of community value, making dealing in it more difficult.
Passing on EU fines
One provision of the Bill that had not been heralded in advance is that where the UK government is fined by the EU Court of Justice for failing to fulfil an obligation under an EU treaty (e.g. to implement a directive properly), it may pass on some or all of the fine to a local or other public authority. This could have implications for infrastructure providers (as partly 'public authorities'), for their perceived part in the failure to implement a directive.
The Rest
A large part of the Bill (36 clauses) deals with housing, but this is not particularly relevant to infrastructure planning and so I do not set out the provisions here.
Finally there are some London-specific clauses at the end, where the Mayor takes over the London Development Agency's and the Homes and Communities Agency's London roles, must produce an environmental strategy and can create 'mayoral development corporations'.
In summary, the Bill contains some welcome changes to the Planning Act regime, although its other provisions could increase the arsenal of ways of frustrating a major infrastructure project by a well-organised local opposition.
Coming Up ...
Next week, there are two debates in the House of Lords on the energy National Policy Statements (everything except nuclear on Tuesday and nuclear on Thursday). These will be reported as usual.
Meanwhile, the Infrastructure Planning Commission (IPC) has received its third application, which it must decide to reject or accept for examination by 29 January, for an energy from waste plant near Merthyr Tydfil - here is its project page. On the plus side the promoter is Covanta Energy, whose other application was accepted, but on the minus side it is on Wales, and failing to avoid associated development there (which is not allowed in Wales) caused the rejection of the other application the IPC has received.
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