Coalition Governments Localism Agenda - Essay Example

?Critically discuss the legal implications of the Coalition Government’s localism agenda for local ity planners and private sector developers Introduction to the localism agenda “Localism” as a way of life means that the value of local initiatives and small scale activities, spearheaded by proponents in the immediate community, are emphasised in lieu of the conventional trend to rely more on large-scale activities planned on a national or global scale. Ideologically, it is founded on the idea of giving concrete and sustained effect to local democracy, relegating greater discretionary power to the people rather than concentrating the decision-making in the central government. The localism agenda as envisioned in the UK is institutionally linked to the Big Society Agenda. “Big Society” is the tagline used by the Coalition Government to signify that it trust people “to take control of the decisions that affect them by devolving power closer to neighbourhoods, increasing citizen participation, promoting community ownership, lifting inspection burden on councils and removing regional government.” (Structural Reform Plan, 2010; Pickles, 2012). The rationale of localism and the Big Society is incorporated in several acts of legislation, one of which is the Decentralisation and Localism bill of 2010 (NCVO, 2011). Additional laws were passed in January of 2012, but majority of the proposed legislation is expected to be passed in April 2012 (Localism-agenda.com, 2012). The Localism Act The Localism Act, which became law on November 2011, signalled a “radical shift of power from Westminster to local people,” according to the announcement of the Coalition Government (Silver, 2010). Specifically, it intends to this by adopting a framework which enables government to decentralise by: (1) removing central burdens; (2) empowering people to take action; (3) letting local people control public spending; (4) breaking apart monopolies; (5) making public bodies and services transparent; and (6) strengthening accountability (Pickles, 2012). There are several benefits to the Act, the most evident of which are that (1) the Act empower local people; (2) it frees local government from central and regional control; (3) it gives local communities a real share in local growth; and (4) it provides for a more efficient and more local planning system, among others. Increased involvement will be drawn from voluntary and private sector organisations in the running of public services, and a “fundamental redefinition of the role of the state as a provider of public services” (Silver, 2010). Easily, there is seen a great appeal in allowing local decision-makers to tailor local services, particularly local planning, The Planning System under the Localism Act 2011 There are several key issues that are seen to be relevant to the adoption of localism in development planning. Since the bulk of additional legislation will be introduced by April 2012, it is not clear at this point how many of these concerns will be eventually addressed by the appropriate statutes. They include, among others: How equal representation may be guaranteed for everyone in formulating neighbourhood plans Provision of financial and intellectual support for neighbourhood forums The prescribed process of adapting valid local plans in light of the Localism Bill Ensuring collaboration between local authorities in arriving at strategic plans Coordinating at a national level through the National Planning Policy Framework How effectively the New Homes Bonus and a reformed CIL will be in incentivising development The practical application of ‘presumption in favour of sustainable development’ Ensuring transparent & effective consultation with neighbourhoods by businesses Maintaining a balance between participation & representation by holding local members to account (Chelgate, 2011) Other than these issues, the new legislation imposes an expanded set of responsibilities for both local authorities and developers. Cook (2011) conducted a poll among legal experts, who identified five areas where councils are expected to shoulder enhanced responsibilities: First additional duty for councils will involve facilitating neighbourhood planning. They must approve of the neighbourhood forums that formulate the neighbourhood development plans. Several forums may be created which, pursuant to the act, should be representative of different community sectors. Local authorities are also charged with ascertaining that plans arrived at by the various forums do no conflict with other planning policies, and that they comply with the council’s own core strategy, or with the national planning policy of the local strategy did not exist. Local authorities will therefore also be compelled to devise their local strategies. The legal concerns in this regard include the resolution of conflict that will certainly arise in the recognition of neighbourhood forums, of which there must only be one for any specific area. Whichever forum the council shall decide upon may therefore be open to legal challenges from rival groups who were not chosen. Also, the council has to ensure that the plans and orders arrived at by the forums are compliant with EU law, particularly where environmental protection is concerned, and that they do not contravene the Human Rights Act by discriminating, however unwittingly, against particular groups (Cook, 2011). Second, the Act requires councils to maintain a list of the property and land situated within their area that possesses “community value,” which would exempt it from development. It is also mandatory upon them to consider proposals from the local community as to which properties should be included in the list. The council is therefore legally bound to make sure the list is lawful, unbiased, and does not take into account “immaterial considerations.” Among other things, it must have been nominated by the community, or by a voluntary or community body previously defined by the council (Cook, 2011). Corollary to this, it is also incumbent upon the council to make sure that properties are not unduly listed as a spoiling tactic, merely to prevent unwanted development. Another concern is that the list may discourage landowners from allowing communities use of their land for charitable purposes, for fear that the property so used may be included on the list. From these scenarios, it is easy to foresee that councils may very likely be the targets of legal action by the various developers or groups with conflicting interests. This likelihood becomes more pronounced when one considers that the definition of “community value” remains ambiguous and prone to various interpretations. Third, the abolition of regional strategies means that housing targets are no longer imposed by higher authorities, but must be set by local authorities. In the formulation of such targets, therefore, councils’ bases must be above reproach, and must comply with requirements by the National Planning Policy Framework, one of which is to plan for growth. The councils also have a “duty to cooperate” under the Act, meaning that they are required to work together and with other public instrumentalities on important issues involved in planning. Where councils are perceived to lack substantial compliance with these duties, they are open to legal challenge as to why alternative options have not been chosen. The same may be brought by developers when councils refuse their planning applications (Cook, 2011). Fourth, the processing of planning applications entail financial considerations, such as housing or development programmes that offer government grants. The New Homes Bonus is one such incentive, rewarding local authorities for every net additional home that is built or returned to use ins their respective areas (Wilson W, 2011). The Act requires that local financial considerations taken into account must be “material to the application.” It includes any funds received pursuant to the Community Infrastructure Levy (Communities and Local Government, 2011). This is a new developer levy the intention of which is to gather funds to support local infrastructure. What is uncertain, and maybe open to legal challenge, is the weight of importance attributed to financial benefits the council may realize in approving applications or arriving at decisions. Parties whose interests were not given due course may contest the resultant decision on the basis of the overriding importance the council may have given to their choice. Fifth, the Act provides for greater enforcement powers for the councils. For instance, councils are now empowered to apply to a magistrate’s court for a planning enforcement order where infractions by landowners are discovered, such as the concealment of an illegal structure. The difference between then and now is that previously, councils may apply for an order within a four-year limit after the structure was completed; now, there is no prescription period, and the order may be applied for even beyond the four years. The legal implication is that councils should more carefully define what comprises such acts as “concealment” for which a landowner or developer may be penalised or sanctioned (Cook, 2011). This is in order to avoid the abusive application of its greater powers that may inadvertently punish innocent parties. On the part of developers, the Act imposes a statutory duty upon developers to consult people in the locality before they submit any large planning applications, and compliance with such a requirement is a major consideration in the approval of such application. Therefore in case special interest groups, pressure groups or third parties perceive that the developer’s consultation had been inadequate, this could open the chance for legal action by them against the developer. Another duty developers must discharge is to provide proof that they had conducted a pre-application consultation. Full documentation of activities relating to the consultation will be mandatory, together with provision of the corpus of evidence specifying the details including who were consulted, when and where such consultation took place, and to what degree. Finally developers must also demonstrate that their application embodies the salient matters arrived at during consultation. The Act requires applicants to manifest their regard to any responses to the consultation at the time they submit their application, and to show how their application has been adapted to comments raised in the consultation, or be prone to legal challenge (Cook, 2011). Legal controversies Since the Act has only recently been promulgated, and the bulk of the legislation is still to come, there has been no legal action yet filed pertaining to these laws. However, before the Localism Bill was approved, some controversial issues regarding legalism have already emerged which may provide a glimpse of future issues that may be litigated under this agenda. One illustrative case is that of garden grabbing. “Garden grabbing” has been outlawed by the Coalition Government, with the scrapping of the minimum density figures of 30 dwellings per hectare that are outlined in PPG3, as well as classification of gardens as “previously developed land”. “Garden grabbing” refers to the destructive practice of developing in the gardens of existing houses. This practice has resulted in a “lack of family sized homes and flats that local people need,” according to housing minister Grant Shapps. He lamented the proliferation of one or two bedroom executive flats in locales where the greatest need is for family homes, and saw an advantage in delegating to councils the power to decide the levels of density which are best for their area (Remarkable Group, 2012). The declassification of gardens as “previously developed land,” otherwise known as “Brownfield land,” takes it out of the category of property under the law that usually pertains to derelict factories and disused railway sidings. On the one hand, councils and communities have welcomed this change because it allows the local officials to determine how much of their green space to preserve. However, some special advocacy groups such as the Campaign to Protect Rural England (CPRE) are concerned that the current move to empower localities to determine their own development policies might undermine or totally eliminate Brownfield development in urban areas, causing land developers to move into the countryside and create “sprawl,” the undesirable patchwork development in isolated areas in the countryside (Remarkable Group 2012). CPRE’s proposal holds water to some extent; after all, although the number of homes situated in Brownfield land has risen to 80 per cent in 2008, compared to only 56 per cent in 1997, the development on gardens and other residential lands has more than doubled, from 11 to 23 per cent within the same span of time (NCVO, 2011). Thus, there may be some merit to the proposal that some form of centralised oversight or guidelines may be needed, although this is not well taken by proponents of localism development. The latter see decision-making by councils under the guidance of a national framework as not true localism, but a system that works as “just another tool of top-down policy” according to Greg Clark, minister for decentralisation (Remarkable Group, 2012). On the other hand, the scrapping of density targets is lauded by British Property Federation (BPF), which welcomes the greater discretion given local officials which may result in faster decisions as well as implementation. The outlawing of “garden grabbing” brings to fore the conflicting interests that have not yet been ruled upon by the courts. The absence of a solid body of jurisprudence will tend to constrain the broad reforms adopted by localism, until such time as the courts would have defined the rights and obligations of contesting parties under the new legislation. It is also a matter of concern that the lack of a unifying framework which the councils are to abide by may result in a fragmented rather than integrated legal structure. CPRE states that “it is essential to have a robust national policy framework” which guides local development in the most efficient way possible (Remarkable Group, 2012), something that may not possible in purely localised development due to the disjunct in decision making between localities (Vidal, 2011). Case Law: Cala Homes v Secretary of State, on the abolition of Regional Spatial Strategies A legal controversy arose in 27 May 2010, when Secretary of State (SoS) for Communities and Local Government, Eric Pickles, by the use of delegated or secondary legislation, informed local authorities that the Regional Spatial Strategies (RSS) are no longer in effect, and that councils should thereafter ignore the figures specified in their local plans. Instead, they should refer to their “option one” figures pending the consultation on new targets. A challenge against this decision was issued by the Cala Homes at the High Court (Cala v SoS, [2010] EWHC 2866 (Admin)), which eventually ruled in favour of CALA, on the grounds that: (1) the SoS, in revoking the RSS, over-reached the powers conferred upon him by Parliament and was therefore acting ultra vires; and (2) had he acted within the bounds of his authority, a Strategic Environmental Assessment should have first been undertaken as to the effects of such revocation (Fenwick, 2010). The controversy does not end with this judgment, however. On 7 Feb 2011, a second legal challenge posed by Cala Homes, this time aimed at overturning the position of the Government that the proposed withdrawal of RSSs is a ‘material consideration’ for which the decision-maker is empowered to make a determination which may be inconsistent with the plan. This is pursuant to Section 38(6) of the Housing Act of 2004, which provides that any determination made under the planning Acts must be consistent with the plan, unless material considerations indicate otherwise” (Goodall, 2011). In this second judgment, the High Court, through Mr. Justice Lindblom, ruled that “the Secretary of State’s role…is, essentially, political and proactive,” and his act of writing to local planning authorities to provide guidance in how proposals are to be handled is within his purvey as general supervisor of the planning system (Alliance Planning, 2011). Bibliography Alliance Planning 2011 “Second Cala Homes Challenge Fails” Alliance Planning. Accessed 13 February 2012 from http://www.alliance-plan.co.uk/news.jsp?newsID=140 Cala Homes (South) Limited v Secretary of State for Communities and Local Government, Case No. CO/8474/2010, Citation No. [2010] EWHC 2866 (Admin) Chelgate 2011 “Westminster Briefing Conference: Planning after the Localism Bill,” Chelgate. Accessed 13 February 2012 from http://www.chelgate.com/featured/westminster-briefing-planning-localism/ Communities and Local Government 2011 “The Community Infrastructure Levy.” Planning, Building and the Environment. Accessed 13 February 2012 from http://www.communities.gov.uk/planningandbuilding/planningsystem/communityinfrastructurelevy/ Cook, B 2011 “Localism Rules,” Planning. 5 Dec. 2011. Department for Communities and Local Government 2011 A Plain English Guide to the Localism Act. Eland House, Bressenden Place, London Draft National Planning Policy Framework 2011, July Department for Communities and Local Government. Fyson, T 2011 “The New Trend for Attacking Planning.” Planning (14672073), 3/11/2011, Issue 1904, p 17 Goodall, M H “Cala Homes Lose Again.” 27 May 2011. Accessed 13 February 2012 from http://planninglawblog.blogspot.com/2011/05/cala-homes-lose-again.html Fenwick, K 2010 “Cala Homes wins High Court case over RSSs” Alliance Planning. Accessed 13 February 2012 from http://www.alliance-plan.co.uk/news.jsp?newsID=132 HM Government 2010 Political Reform Draft Structural Reform Plan. Accessed 13 February 2012 from http://www.number10.gov.uk/wp-content/uploads/Draft-Political-Reform-SRP.pdf National Council for Voluntary Organisations (NCVO) 2011 “Localism Agenda”, Third Sector Foresight. 4 February 2011. Accessed 13 February 2012 from http://www.3s4.org.uk/drivers/localism-agenda Pickles, E 2012 “Communities and Local Government: our vision” Number 10, HM Government. Accessed 13 February 2012 from http://www.number10.gov.uk/policy/communities-and-local-government-dclg/ Remarkable Group 2012 “Density Targets Scrapped” Remarkable Engagement. Accessed 13 February 2012 from http://www.remarkable-engagement.co.uk/density-targets-scrapped Silver, D 2010 “Localism and Big Society: Open for all?” One Northwest. Accessed 13 February 2012 from http://www.onenorthwest.org.uk/documents/big%20society%20localism%20and%20the%20BME%20Third%20Sector.pdf Vidal, J 2011 “Planning reform will lead to development ‘free-for-all’,” The Guardian. 30 August 2011. Accessed 13 February 2012 from http://www.guardian.co.uk/politics/2011/aug/30/planning-reform-undemocratic-green-groups Wilson, J 2011 “The Localism Bill in London – Policy Digest.” Future of London. Accessed 13 February 2012 from http://www.futureoflondon.org.uk/futureoflondon/wp-content/uploads/downloads/2011/10/2011-09-29-Localism-Briefing-Paper.pdf Wilson, W 2011 “The New Homes Bonus Scheme,” Standard Note SN/SP/5724. Library of the House of Commons. Accessed 13 February 2012 from http://www.parliament.uk/briefing-papers/SN05724.pdf Read More