• What has changed in planning
• When the changes come into force
• What they mean for construction
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At nearly 500 pages, the Localism Act is a formidable document. The Act received Royal Assent on 15 November 2011 and does not differ fundamentally from the Bill introduced to Parliament a little less than a year before.
Its purpose is to decentralise power from national government and regional bodies to local councils and neighbourhood communities. Empowering local authorities and local people, releasing them from central interference and regulation, has been the hallmark of the coalition government’s Big Society and localist agenda. In essence, councils and communities are to be freed up and allowed to decide what is best for their local areas and to deliver the measures to achieve those outcomes.
For the construction industry, the question is whether or not the Act will spur an increase in housebuilding, and in development and construction activity more generally.
Much remains unchanged: in putting forward most development proposals, client organisations will still need to apply for planning permission, and can submit outline applications, leaving matters such as the detailed layout and appearance of a scheme for future consideration.
Applicants will retain the right to appeal to the Planning Inspectorate against councils’ refusal or non-determination of their applications. Equally, no right has been introduced for objectors to a grant
of planning permission to appeal to the Planning Inspectorate against that permission, a change that had been pursued by lobbyists during the Bill’s passage through Parliament.
Nevertheless, the Act does contain some significant new provisions that affect the construction industry. Some came into force the day Royal Assent was granted, others took effect on 15 January 2012, and others await secondary legislation.
Perhaps the most significant provision is the removal of the regional tier of the English planning system. This means that the English Regional Spatial Strategies (except the London Plan), including their integral sub-regional strategies (such as the Milton Keynes & South Midlands Strategy), as well as those English county Structure Plan policies that remain extant, will be abolished.
(Eric Pickles, the secretary of state for communities and local government, purported to abolish Regional Spatial Strategies through a ministerial direction in July 2010. CALA Homes successfully challenged the legality of that direction in the courts, with the result that the move was quashed at that time.)
The rationale for removing the regional tier of the planning system is to liberate local councils from having to deliver housing and other development against targets set at regional level, arguing that councils are best placed to determine how many homes and other development to provide in their areas.
Under the Act, councils must still make adequate provision for housing and other development needs in their areas and assess those needs objectively. However, there is a widespread view that the removal of regional targets is likely to lead to less housing and other development being delivered nationally than had the targets remained.
The government has sought to fill the vacuum arising from its abolition of Regional Spatial Strategies by introducing a new legal duty to co-operate among public bodies, including neighbouring councils, in planning for sustainable development. Although this duty was stiffened during the Parliamentary passage of the Bill it appears unlikely it will facilitate effective planning in those towns and cities that straddle council boundaries or need to expand into adjacent, largely rural council areas.
While neighbouring councils must “co-operate” on an “on-going” basis, there is no duty on them to “agree” with each other. It seems likely that burgeoning towns and cities will continue to be hemmed in by their rural neighbours concerned with preserving the status quo. Promoters of sites adjoining towns and cities, but in separate council areas, as well as sites straddling council boundaries, could find they have to rely on the expensive appeals process to secure development.
Where the new duty to co-operate is likely to be more fruitful is in eliciting timely responses to council consultations on planning applications from public bodies, including those with a reputation for tardiness, such as certain offices of the Environment Agency. This should have the effect of speeding up the granting of planning permissions.
Another key set of provisions within the Act, in force since 15 January, relates to the curtailment of examining inspectors’ powers over council development plans, including core strategies, local plans and other development plans. Previously, examining inspectors’ recommendations were binding on councils. Now, councils can invite inspectors to recommend changes to draft plans, but need not be bound by those recommendations.
This step diminishes independent inspectors’ powers, and could potentially undermine confidence in the process of preparing development plans. The risk of politically-driven development allocations or protective designations is heightened, and the likelihood of securing an allocation on a site not included in a draft plan is reduced. The move reinforces the need for promoters of development to engage with councils and other stakeholders from an early stage.
After removing the regional planning tier, the Act introduces a new neighbourhood tier beneath the development plans produced by city, borough and district councils. Neighbourhood development plans (NDPs), produced by parish or town councils or — mainly in areas where there are no parish or town councils — specially constituted neighbourhood forums, will allocate land for development within their “neighbourhoods”, as well as contain policies to guide development proposals within those areas.
Neighbourhood development orders (NDOs), produced by the same bodies, will remove the need for planning permission for particular types of development specified in the order. Community right to build orders (CRBOs), made by specially established “community organisations”, will grant planning permission for specified development on particular sites.
Take-up of NDOs and CRBOs is likely to be limited. Whatever the government may wish, there is likely to be little appetite for community-driven development schemes. On the other hand, take-up of NDPs will be somewhat greater, especially by parish and town councils, which can be expected to build upon their informal parish/town plans and village design statements. Nationally, a total of 233 potential NDPs have received government funding to date as part of its Neighbourhood Planning Frontrunners initiative. Nevertheless, only a small proportion of land is likely to be covered by NDPs.
In many areas, core strategies/local plans produced by local authorities will be the sole source of planning policy, informed only by the government’s new slimline national planning policy framework (NPPF).
Regulations to give effect to the new neighbourhood planning regime come into force in April. The construction industry can engage with the new NDP and NDO system by:
The Localism Act also contains three sets of provisions on the preparation and determination of planning applications.
A duty is to be placed on applicants for large-scale development to undertake pre-application public consultation and to take account of responses received. Forthcoming secondary legislation will stipulate the scale thresholds and consultation requirements.
Councillors will be able to engage in discussions with development promoters and to express views on their proposals. As long as they are not seen as having a closed mind, they can express views and determine applications without fear of judicial review. Although development promoters should encourage councillors to engage with them, promoters should expect councillors to remain wary of such engagement, at least until the more relaxed regime becomes embedded.
The Act also provides that where any local finance considerations are material to a decision on a planning application, they should be taken into account. This provision was brought into effect on 15 January. Although some have argued it breaches the fundamental principle that planning permission should never be bought or sold, it ensures factors such as New Homes Bonus payments and Community Infrastructure Levy receipts are given due weight in planning decisions.
Other provisions in the Act include:
It is likely that this new localist regime will stay for the foreseeable future. It also looks certain that something of a planning post code lottery will emerge, with developments popping up in all sorts of unexpected places simply because local stakeholders desired them — and being held back in other suitable places where their counterparts do not. Nevertheless, the construction industry must work within the new regime and make the most of the opportunities it presents.
Andrew Wintersgill is a senior associate at David Lock Associates
The NPPF, which came into force on March 27, has replaced the 20 or so planning policy statements (PPSs) and planning policy guidance notes (PPGs). By contrast, the NPPF is a crisp 50 or so pages, and intended to be more accessible to the lay reader.
Many of the policies contained in the PPSs and PPGs have been carried forward. However, NPPF has altered previous planning policy in a number of key areas:
The effect of the NPPF should be more planning permissions and more development activity. It will be interesting to see whether this turns out to be the case.
The Localism Act
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CPD test paper: The Localism Act
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