Local Government Landscape Set To Change

Well the Tories all knew that this would happen, but even by our own very pessimistic forecasts the results of recent local council by-elections has been quite staggering. In one election this week the Conservatives lost a previously impervious council seat on Sandwell MBC in the West Midlands with a huge 45% swing to Labour. Of course local factors would doubtless be in play, and this local authority was hit hard by the cancellation of the Building Schools for the Future programme. But even taking this into account that result really does stand out.

This result follows a pretty predictable pattern of local government strength increasing for parties in opposition. Immediately prior to 1997 the Conservatives suffered a meltdown in their local councillor base. In one night in 1994 over 1,500 councillors were wiped out. Whole swathes of the UK became Tory-free zones. As John Major shuffled out of Downing Street on that gloriously sunny day in May 1997 the Conservatives were in an absolutely awful state.

Over the next 13 years there was not a single year where the blues didn't make significant new gains. Voters are far more likely to vote against the government. It is human nature to be motivated against something than to be for it. In the coming years it is entirely likely that previous Labour strongholds seized by the Conservatives and Lib Dems when Gordon Brown and Tony Blair occupied Number 10 will return to the fold.

The political landscape in local government is really set to change.

Antony Calvert
Conservative Consultant, Curtin&Co

PINS response to CALA Homes: Analysis

Following the Cala Homes decision in the High Court most local council’s haven’t really known which way to jump in recent days. They have reacted quite understandably like rabbits caught in the glare of headlights.

The advice from the Planning Inspectorate then is not surprising but it is important. The advice is aimed at settling the minds of both developers and Council’s but when we take a closer look it is nothing more than a fudge to hold the line.

The new Localism Bill will in very simple terms state that the Regional Strategies are revoked and therein the housing targets derived of them are gone as well.

The Planning Guidance is careful to offer weight to both the Government’s view that it is intent on revoking the RSSs and the High Court decision that states until legislation is formally adopted the 2004 Act establishing RSSs applies, and any evidence or analysis using the policies of the RSS has relevance as a consequence.

There is no way that local councils can escape the conundrum this places them in – developers will now be able to cite the RSS policy framework as a material consideration that inspectors will have to give weight to.

In essence the judgements that will be made by inspectors will be a balance of fairness. If the application of RSS can be adjudged as unreasonable set against the prospect of the new legislation then an Inspector can give that perspective weight. The problem is that until the legislation is made law the existing statute is of greater importance than a Government’s announced intent.

Those sites that are subject to appeals that have fallen after Eric Pickles July announcement and the reinstatement of the RSSs under the Court ruling will have to be carefully assessed against the relevance and fairness test. Again, this is highly subjective and is likely to lead to some fairly complex legal wrangling.

The following approach has been developed by the Planning Inspectorate to assist in determining which cases may merit reopening, which may be dealt with by a reference back to parties for comment and which cases may not need any additional action:

(a) where RSS policy has no material relevance because the decision is of limited (local only) scale and impact and the decision-maker can rely on local statutory development plan policy alone as would have been the case before 6 July 2010, no further action is required;

(b) where it appears to an Inspector that RSS policy may be material as a consequence of the significant (greater than local) scale or impact of the proposal, but the cases put by the parties make no reference to RSS, the Inspector must refer to the parties, seeking a view as to the materiality and weight of RSS policies. Chart should be informed.

(c) where a decision relies on both local policy and RSS policy on the same issue, it is possible that the local statutory development plan policy can be relied upon if by applying less weight to the RSS policy the outcome does not change;

(d) where both local policy and RSS policy are relied upon on the same issue, but the RSS is relied on to a greater extent and if as a result of applying reduced weight to the RS the outcome is less certain or could change, then the parties’ views should be canvassed (Chart should then be advised); and

(e) where the parties’ cases rely primarily on the RSS, then the parties should be canvassed.
(f) If there is a reference to the parties or a re-opening, the Inspector should consider whether the case can be completed following consideration of issues raised by the parties or whether a postponement or adjournment is warranted.

None of this is straightforward and each developer with a case will have to test the water on a site by site basis, authority by authority. The position of those Councils who ripped up their Local Plans with great glee since July is of most note, they are vulnerable to appeals.

It appears as if the authorities are carefully acknowledging that they cannot ignore the court ruling, but that they are aware of the Localism Bill hitting the ground very shortly. Therein this debate becomes a matter of timing and process, how quickly can developers get their sites reconsidered using the RSSs before Pickles gets the Localism Bill adopted as an Act.

Dr Paul Harvey
Consultant, Curtin&Co

Planning Inspectorate confirm RS numbers form part of all development plans "on an ongoing basis"

The Planning Inspectorate has issued guidance following thte CALA homes decision - effectively confirming that the 'former' RSS numbers will still apply in planning decisions until the abolition is ratified in legislation following the Localism Bill's passage through parliament.

This effectively leaves developers with an open window for applications and appeals on the basis of RSS numbers until this point in time (estimated as November 2012).

The Planning Inspectorate's key line as far as the development community is concerned reads as follows:

"Until any further announcement is made and/or legislation to formally repeal or revoke RS is implemented, the Cala decision means that RS is part of the development plan on an ongoing basis."

Updates on the situation will follow as they are made public.

A "victory for Localism" as Manchester becomes the first city-region authority outside of the capital

Manchester's super-council was signed off by Ministers today to become the first city-region authority outside of London.

The council will hold responsibility for housing, job creation, transport and economic development, and will formalise the Manchester region LEP approved by the DCLG and BIS last month.

Centre for Cities think tank analyst Keiran Larkin has hailed the move "a victory for localism" - watch out for further developments in city-region LEPs across the country over the coming months.......

Cala High Court ruling political analysis

An Analysis of the Political Dimension to the ‘Cala’ Decision

The High Court decision to wrap Eric Pickles across the knuckles for acting unlawfully when he unilaterally announced without primary legislation that the Regional Spatial Strategies and housing targets based on them were scrapped in July is a very serious political decision.

It is not just a case of political embarrassment that the High Court has judged the Secretary of State for Local Government and Communities to have acted unlawfully: The far more salient point is that councils across the country have been ripping up their Core Strategies and throwing out planning applications based on his decision.

If, for now, the Regional Strategies are alive and kicking and their targets are relevant and enforceable then developers will have a field day at appeal with sites that local authorities have thrown out, or sites that have been allocated in Core Strategies that authorities have since thrown out. Everybody who acted immediately on Pickles’ decision in July is now in a Pickle.

This decision could mean planning by appeal for the next year or more whilst the Localism Bill travels through the Parliamentary process. Developers may be submitting applications at some considerable pace based on the Regional Strategies policies and targets in order to beat the new legislation scrapping those same policies and targets. This is a recipe for confusion and for a lot of work for the Planning Inspectorate. It will also mean developers having to explain what will look like a very aggressive move to both councillors and communities who had assumed RSSs were gone for good.

You could not script the drama that this High Court decision is going to create. Watch out now for the Town Hall reaction which is likely to be as dramatic and angry – this is politics and the Judiciary are getting in the way of politicians doing what they want.

The Judgement:

The Judgement itself was very clear and stated that:

“The LDEDCA 2009 maintains in place, with some modifications, the whole elaborate machinery set up by Parliament under the PCPA 2004 to create a new statutory tier of regional planning guidance in the form of Regional Spatial Strategies, now re-named as Regional Strategies. I refer to some particular features of the regime set out in Part 5 of the 2009 Act below, but the main and critical point is that there is no sufficient indication in section 79(6) of the 2009 Act that Parliament intended to reserve to the Secretary of State a power to set that whole elaborate structure at nought if, in his opinion, it was expedient or necessary to do so because it was not operating in the public interest. If Parliament had intended to create such a power for the Secretary of State – something akin to a Henry VIII clause, since the practical effect of it would be to grant the Secretary of State power to denude primary legislation of any practical effect, without having to seek the approval of Parliament for such a course by passing further legislation – it would in my opinion undoubtedly have used much clearer language to achieve that effect and would have given the provision far greater prominence than section 79(6) has, tucked away as a final sub-section in a provision otherwise dealing with revision of Regional Strategies. A contrast may be drawn in that regard between the location of section 79(6) in Part 5 of the 2009 Act and the prominence given to section 70(1) as the leading provision in Part 5, which sets the scene for the provisions which follow in that Part and is the basis for the whole elaborate framework which that Part puts in place.

The provisions in Part 5 of the 2009 Act requiring Regional Strategies to be published, making provision for the public to have opportunities to make representations regarding their drafting (including, where appropriate, at examinations in public) and for community involvement in the preparation of such planning policy guidance (see section 75) are all strong indications as to the importance which Regional Strategies are intended to have in the operation of the planning system and for the guidance of the public. These are important means of ensuring public participation in the creation of planning policy and transparency in relation to such policy, and it is not plausible to suppose that Parliament intended that they should be capable of being simply by-passed by action taken by the Secretary of State under section 79(6), which carries with it no procedural protections or requirements at all;

The centrality which Parliament intended Regional Strategies to have in the planning system is underlined by the strong practical effect to be given to them as set out in section 36(3) and (6) of the PCPA 2004 (as amended by the 2009 Act), when applications for planning permission fall to be determined. Again, I do not consider that it is plausible to suppose that Parliament can have intended that the Secretary of State's power in section 79(6) should extend to abrogating the whole system to have in place and give effect to such a primary instrument of planning policy.”

Conclusion:

The central legal point is that the Judge declares that the legislation regarding Regional Strategies exists, that the Secretary of State does not have the delegated authority outside of Parliament to abrogate RSSs from the planning system and, crucially, that they remain in place and applicable to all planning considerations. It will take an Act of Parliament to remove them.

The Government is, at this stage, not proposing to appeal the decision and other developers are lining up to launch their own legal actions based on their own experiences around the country.

There are a few key points that need to be established:

1) How local authorities will react – they have neither the expertise nor finances to tackle legal challenges, and they will be wary of the High Court ruling. However, for those authorities that have already scrapped their LDFs or have taken decisions based on the scrapping of housing targets and RSS policies, they now find themselves in a no-man’s land. Developers will need to carefully explore the options with these authorities in light of the publication of the Localism Bill’s timetable.

2) The Localism Bill’s timetable is everything now: Just how much time have developers got to play with until the RSSs and Housing Targets are scrapped under primary legislation. There is no question that the Government is still committed to its new planning framework so it is a question of “when” rather than “if”.

3) The dialogue between councils and developers is now emphasised not just as a part of the Localism agenda, but also as a part of the process of planning between now and the adoption of the Localism Bill.

The three key points are watching for reaction, looking for time, and opening dialogue. This is a messy situation and everyone will be picking up the pieces and trying to feel their way over the coming weeks.

Dr Paul Harvey, Curtin&Co

DCLG launch Business Plan for 2011-2015

Timescales were published today by the DCLG in their ‘2011-2015 Business Plan’.

The Localism Bill will be introduced this month.

An ‘Affordable rent’ scheme which will contribute towards up to 150,000 new affordable homes will be implemented in April 2011.

Funding for town and parish councils to develop neighbourhood plans will be made available in April 2011.

The New Homes Bonus Scheme entitling planning authorities to cash for every new home built is also due to commence in April 2011.

RDA Assets list published

The RDA's asset-list was released today following in the wake of a parliamentary question and the Government's White Paper last week.

Should be interesting to see how the DCLG disposes of these in the coming months.

The full list will be made available online here in the coming days:

http://deposits.parliament.uk./