All part of the plan

Planning_iStock_000002733689Small_120x90The National Planning Policy Framework may have generated all the controversy, but the Localism Act heralds a massive shake-up in planning. John Holmes examines the changes.


After an arduous – and sometimes acrimonious – almost 12 months passage through Parliament, the Localism Act finally received Royal Assent on 15 November 2011.

It may be true to say that during the final days of debate attention was elsewhere in the sphere of planning, with the furore over the consultation draft of the National Planning Policy Framework (NPPF), a debate which has still to be settled and one which managed to align The Daily Telegraph, The Daily Mail, the National Trust and the Morning Star all on the same side in condemnation of the proposals.

If, as the Government claims, the Localism Act is the greatest change to the planning system since 1947, planning practitioners still have the challenges of the NPPF, the proposed reform of the appeals system, the introduction of the Community Infrastructure Levy and, tucked away in the Coalition Agreement, proposed third party rights of appeal. It is little wonder then that a member of the Department for Communities and Local Government select committee on the NPPF asked the question: “Are these changes a planning lawyers charter?”.

What does the Act do? And when will it do it?

Some parts of the Act are already in effect, others will become so over the coming months. The aim is to have the entire Act in force from April 2012.

Part 6 planning provisions

The planning provisions are set out in Part 6 of the Act, Chapters 1 to 7, sections 109 to 144 inclusive and Schedules 8 to 13 inclusive.

The chapters deal with the following:

  • Chapter 1 Plans and Strategies, sections 109 to 113;
  • Chapter 2 Community Infrastructure Levy, sections 114 and 115;
  • Chapter 3 Neighbourhood Planning, sections 116 to 121;
  • Chapter 4 Consultation, section 122;
  • Chapter 5 Enforcement, sections 123 to 127;
  • Chapter 6 Nationally Significant Infrastructure projects;
  • Chapter 7 Other planning matters, sections 143 and 144.

The following sections are in full effect from the date of this article:

  • section 110 (duty to co-operate in relation to planning of sustainable development);
  • sections 117 to 120 (charges, collection, enforcement, financial assistance for neighbourhood planning); and
  • section 144 (application of Part 6 (Planning) to the Crown).

The following are in effect in part:

  • paragraphs 57 and 58 of Schedule 4, and part of section 26 (amendments to existing standards provisions);
  • part of section 109 (abolition of regional strategies) and part of Schedule 8;
  • the provisions inserted by section 122 (consultation before applying for planning permission); and
  • Part 15 of Schedule 25, and the corresponding part of section 237 (repeals and revocations).

And the Order only making powers of:

  • sections 116 (neighbourhood planning) and 121 (consequential amendments) and Schedules 9 to 12.

The abolition of regional strategies

Section 109 sees the abolition of regional strategies. In practice, regional strategies will continue on life support for some time, given the consultation which only ends on 20 January 2012 as a consequence of the decision in the Cala (1) High Court challenge in 2010 – Cala Homes (South) Limited v Secretary of State for Communities and Local Government [2010] EWHC 2866 (Admin).

Even then, a potential legal challenge based on the findings of the strategic environmental assessments cannot be ruled out and indeed Cala (3) has recently been lodged against the Secretary of State’s continued refusal of its housing application in Winchester.

‘Duty to co-operate’

Section 110 contains the replacement approach to strategic planning, with local authorities and public bodies working together to “engage constructively and actively” in putting together development plan documents.

If they have not done so already, planning authorities revising their plans should be contacting their neighbours. However, as is common in these situations, political concerns and decisions are more likely to be involved in the resolution of cross-boundary and border development than solely planning issues.

Neighbourhood plans

A cornerstone of the Government’s ‘Big Society’ agenda and part of the push towards local involvement in planning decision making, section 116 of the Act provides the power for local communities to prepare ‘neighbourhood plans’, which must be in accordance with local planning policies.

Much will rely – as is the case for most of the planning provisions – in the detail of the orders and regulations to be laid before Parliament, but one can envisage a few problems and a risk of parochialism. Two issues immediately spring to mind.

Firstly, what is to be taken as a ‘neighbourhood’? Practitioners in the area of town and village greens will shudder at the thought of how this concept was continually defined by the courts.

Secondly, there is the risk of prematurity if neighbourhood plans are in the course of being drafted to frustrate development. A concern of their Lordships throughout the passage of the Bill was that of parochialism by better prepared/better funded community groups. As one peer commented, if they were a resident of a village that wanted no changes they would “recruit like-minded neighbours and make sure that we had no additional housing in the neighbourhood and would shift the issue onto other villages that were not so quick off the starting blocks”.

Community Infrastructure Levy (CIL)

Although Conservative Party policy before the last general election was to abolish CIL, it has been saved and amended to allow monies raised to be used locally – including a “meaningful proportion to be paid to parish councils for local use”. This ties in with the proposed changes set out in the draft Community Infrastructure Levy (Amendment) Regulations 2012, currently out for consultation, and due to come into force on 6 April 2012.

The Act also extends the meaning of ‘provision of infrastructure’, to allow for payment towards future maintenance costs of that infrastructure.

An inspector’s report recommending approval of a charging schedule will no longer be binding on the charging authority; which again puts the final decision on whether to adopt the charging schedule back in the hands of the charging authority itself.

The big debate on CIL, however, is yet to be had.

Consultation

Given that detailed pre-application consultations are now a major part of the modern planning process – and indeed many savvy developers are increasingly using social media as part of the consultation process – the new statutory duty under section 122 is unlikely to hold many surprises for applicants, but may have a resource impact on local planning authorities.

Pre-determination

Tied into the consultation process, however, is the question of predetermination by members of the council.

Although not strictly a planning process change, the provision (Part 1 Chapter 6 section 25) will effectively allow members, including those of the planning committee, to take part in discussions and – presumably – express views for or against development prior to formal debate at planning committee without fettering their right to vote on the application.

Given that pre-determination and bias has long been an almost staple feature of judicial review actions, it will be interesting to see whether the courts seek to impose limitations on the scope of this power; particularly on controversial or public interest applications.

Enforcement

The changes to the enforcement regime have almost slipped under the radar unnoticed. However, these include:

  • the ability to refuse to determine retrospective planning applications (section123);
  • amending the time limits for enforcing against concealed breaches of planning control and making planning enforcement orders (section 124);
  • amending the penalties for planning offences (section126); and
  • new powers in respect of unauthorised advertisements (section127).

The future [well, the next six months]

The exact implications of the new Act will not become clear for some time, as regulations and guidelines will be issued over the coming months. There will also be the new NPPF and the transitional arrangements promised by the Government with regard to the development plan process.

It also remains to be seen how many neighbourhood forums are set up and how many of them choose to make local development plans and/or local development orders, which would potentially alter the local development plan policy framework.

There is also – given that the main planning changes affect England only – the question of what is happening in Wales.

John Holmes is Head of Planning at national law firm Hill Dickinson LLP. He can be contacted on 0151 600 8808 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..