The Localism Act 2011 received Royal Assent on 15 November 2011, with the Government hopeful that the majority of its provisions will be in force by April 2012
The Act is a significant milestone in the Government's localism agenda, which is designed to shift power and the decision-making process on a range of matters from Whitehall to the local planning authorities and communities ultimately affected by those decisions.
In a planning context, the Act now puts on a statutory footing a number of previously well publicised changes:
The Abolition of Regional Strategies
This is contained in Section 109 of the Act. In reality, this is unlikely to happen for some time given the work required to conclude the Strategic Environmental Assessment process (of which the Government fell foul in the Cala (1) High Court challenge in 2010) before the Section 109 power can be invoked. Even then, potential legal challenge based on the findings of the SEA cannot be ruled out.
'Duty to co-operate'
Section 110 contains the new alternative approach to strategic planning with local authorities and public bodies working together to 'engage constructively and actively' in putting together development plan documents.
Unsurprisingly, the lack of detail on how this will be monitored and enforced has meant it not receiving a particularly positive response from consultees. Cross-boundary and close border development in particular is likely to be a sticking point, leading to potentially 'political' decisions rather than those based on the planning merits.
As 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.
These have to be in accordance with local planning polices. Two issues arise:
- what is a 'neighbourhood' (the Act is not clear on how this should be assessed)
- is there a potential "prematurity" argument to be raised if Neighbourhood Plans are in the process of being drawn up which could this frustrate development? Ultimately, could this be used to the advantage of well prepared (funded) community groups pushing undesirable development to other less well prepared communities?
Community Infrastructure Levy (CIL)
CIL has been amended to allow monies raised to be used locally. This ties in with the proposed changes set out in the draft CIL Regulations 2012, which are currently out to consultation.
These seek to require a 'meaningful proportion' of CIL to be paid to parish councils towards the provision of infrastructure in the locality.
The Act also extends the meaning of 'provision of infrastructure' to allow for payment towards future maintenance costs of that infrastructure.
Other changes include confirmation that 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.
Detailed pre-application consultations are now a major part of the modern planning process. The formulation of this under the Act as a statutory requirement under Section 122 is therefore unlikely to hold many surprises for practitioners.
This provision will effectively allow members of the planning committee to take part in discussions and presumably express views for or against development prior to the formal debate at the planning committee itself.
This is likely to be controversial given that pre-determination and bias has long been a feature of many judicial review actions where Members appear to approach the decision making process with a 'closed mind'.
It will be interesting to see whether the courts seek to impose limitations on the scope of this power; particularly where an application is controversial or raises matters of significant public interest.
Infrastructure Planning Commission
This will now be known as the Major Infrastructure Planning Unit (MIPU) and will be administered by the Planning Inspectorate.
Presumably, to avoid any perception or accusation of bias or pre-determination, the National Policy Statements to which the MIPU will need to have regard, are now to be formally approved by Parliament.
So, time (and new regulations) will tell whether and how all of these provisions and the emerging National Planning Policy Framework will fit together to deliver a faster, more efficient and transparent planning system advocated by the Government.
In the short to medium term, however, it is perhaps inevitable that with such a wholesale set of changes (with more regulations to follow), the scope for legal challenge will increase; resulting, perhaps, in just the sort of delay to new development that the Government is so anxious to avoid.