UK: Planning Act Blog 240: Government Tables 237 Amendments To The Localism Bill

Last Updated: 13 May 2011
Article by Angus Walker

This is entry number 240, published on 12 May 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 considers a raft of government amendments to the Localism Bill tabled yesterday.

My having said that no government amendments were expected to the Localism Bill at Report Stage in the House of Commons (taking place next Tuesday), yesterday Eric Pickles tabled 237 amendments to the Bill. If only they had done so three blog entries ago. There were also 30 or so more amendments from backbenchers and the Labour front bench.

In my defence I was not expecting any amendments to the infrastructure planning parts of the Bill and indeed there are none, but it is worth reporting on the remainder as they are still of interest.

In summary there are:

  • seven amendments to the general power of competence,
  • 48 amendments to the provisions about fire and rescue authorities,
  • 33 amendments to local authority governance arrangements,
  • 16 amendments to the power to pass on EU fines,
  • two amendments to the powers to hold local referendums,
  • three amendments to local government finance provisions,
  • 13 amendments to the duty to co-operate,
  • two amendments to development plan provisions,
  • 24 amendments to the new neighbourhood planning regime,
  • two amendments to the new pre-application consultation duty,
  • Clauses 119 and 152 (amendments to the Government of Wales Act 2006) are removed,
  • three amendments about the community right to challenge and land of community value,
  • 14 amendments to the housing provisions in the Bill,
  • 19 amendments to the provisions about London, and
  • 48 amendments to the general provisions (order-making, commencement, repeals etc.) at the end of the Bill.

Here are some of the more interesting provisions. The amendments are numbered and references are given so that you can look up the precise wording on the official list. But be warned - there are many pages to wade through.

General power of competence

The general ability to repeal legislation that restricts the general power of competence is given a list of safeguards (New Clause 12).

Local referendums

While Zac Goldsmith MP et al seek to make referendums binding, the only government amendment in that area is to remove the government's ability to declare matters to be outside the scope of local referendums (amendment 185).

Duty to co-operate

The amendments to the duty on local authorities to co-operate with each other (144-156) are quite extensive, so I thought the simplest thing would be to show the clause before and after (god forbid that Parliament introduces the viewing of amendments by tracked changes).

These are shown at the end of this blog post. There are changes to whom the duty applies, to what activities the duty applies, and what fulfilling the duty consists of. Although more wide-ranging, the clause is now rather lengthy, going from 313 to 768 words long. Perhaps local authorities will wish to co-operate to work out what it means.

Neighbourhood planning

The amendments to neighbourhood planning are interesting. First, the criteria for setting up a valid neighbourhood forum are replaced with new criteria, of which the significant changes are that the minimum number of people who can set one up is raised from 3 to 21 (but they can work there as well as living there, or be councillors), and that as well as furthering well-being of individuals, its purpose can also be to promote the carrying on of business in the area. This falls short of business organisations' lobbying for forums to be able to consist of businesses only, though (160)

The criteria for local authorities to accept bids for forums are supplemented by the forum having had to have tried to recruit a broad section of the community and all of the three categories of residents, businesses and councillors. The government can add further conditions later (161-162).

Another amendment provides that neighbourhood forums can be set up that straddle the boundaries between more than one local authority (163).

The apparent ability for neighbourhood development plans to override conservation area and listed building protection has been addressed by putting these as criteria for acceptance (173-174). Conservation groups had been very concerned about this.

Pre-application consultation

The new duty of pre-application consultation for larger planning applications is amended so that activity carried out before the Act comes into force can count (183 and NC22).

Money valid consideration for planning permissions

A new clause is added so that 'local finance considerations' become a material consideration when deciding planning applications, i.e. government grants or payment of the Community Infrastructure Levy.

This provision is to allow things like the New Homes Bonus to make grants of planning permission more likely (otherwise it would have to be ignored and thus would be useless), but may prove to be controversial (NC15).

Other provisions

Three new clauses allow the government to give advice and assistance in relation to the 'community right to challenge' (local government services) and the land of community value powers (NC16-18).

The purpose of some amendments is a little obscure, e.g. 'Leave out 'commences' and insert 'begins' (164), but my favourite is amendment 94: 'Leave out 'In' and insert 'Omit''.

All these amendments are likely to be made next week, given the government's majority. Finally, back to the duty to co-operate:

Before (313 words):

90 (1) In Part 2 of the Planning and Compulsory Purchase Act 2004 (local development) after section 33 insert-
"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."

After (766 words):

90 (1) In Part 2 of the Planning and Compulsory Purchase Act 2004 (local development) after section 33 insert-
"33A Duty to co-operate in relation to planning of sustainable development
(1) Each person who is—
(a) a local planning authority,
(aa) a county council in England that is not 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), (aa) or (b) or subsection (7) 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
(a) to engage constructively, actively and on an ongoing basis in any process by means of which activities within subsection (3) are undertaken, and
(b) to have regard to activities of a person within subsection (7) so far as they are relevant to activities within subsection (3).
(3) The activities within this subsection are—
(a) the preparation of development plan documents,
(b) the preparation of other local development documents, and
(c) the preparation of marine plans under the Marine and Coastal Access Act 2009 for the English inshore region, the English offshore region or any part of either of those regions,
(d) activities that can reasonably be considered to prepare the way for activities within any of paragraphs (a) to (c) that are, or could be contemplated, and
(e) activities that support activities within any of paragraphs (a) to (c),
so far as relating to a strategic matter.
(3A) For the purposes of subsection (3), each of the following is a "strategic matter"-
(a) sustainable development or use of land that has or would have a significant impact on at least two planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas, and
(b) sustainable development or use of land in a two-tier area if the development or use-
(i) is a county matter, or
(ii) has or would have a significant impact on a county matter.
(3B) In subsection (3A)-
"county matter" has the meaning given by paragraph 1 of Schedule 1 to the principal Act (ignoring sub-paragraph 1(1)(i)),
"planning area" means—
(a) the area of—
(i) a district council (including a metropolitan district council),
(ii) a London borough council, or
(iii) a county council in England for an area for which there is no district council,
but only so far as that area is neither in a National Park nor in the Broads,
(b) a National Park,
(c) the Broads,
(d) the English inshore region, or
(e) the English offshore region, and
"two-tier area" means an area—
(f) for which there is a county council and a district council, but
(g) which is not in a National Park.
(4) The engagement required of a person by subsection (2)(a) includes, in particular—
(a) considering whether to consult on and prepare, and enter into and publish, agreements on joint approaches to the undertaking of activities within subsection (3), and
(b) if the person is a local planning authority, considering whether to agree under section 28 to prepare joint local development documents.
(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.
(7) A person is within this subsection if the person is a body, or other person, that is prescribed or of a prescribed description.
(8) In this section—
"the English inshore region" and "the English offshore region" have the same meaning as in the Marine and Coastal Access Act 2009, and
"land" includes the waters within those regions and the bed and subsoil of those waters."
(2) In section 16 of the Planning and Compulsory Purchase Act 2004 (applying Part 2 for purposes of a county council's minerals and waste development scheme) after subsection (4) insert—
"(5) Also, subsection (3)(b) does not apply to section 33A(1)(a) and (aa)."'.
(3) In section 20(5) of the Planning and Compulsory Purchase Act 2004 (development plan documents: purpose of independent examination) after paragraph (b) insert "; and
(c) whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation."'.

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