Environment and Planning Cabinet Panel by 00A3aH2A

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									                                                                    Agenda Item No.
HERTFORDSHIRE COUNTY COUNCIL

ENVIRONMENT AND PLANNING CABINET PANEL

TUESDAY 8 MARCH 2011 AT 10:00 A.M
                                                                         5
                                                                      INFORMATION
                                                                         REPORT
THE LOCALISM BILL

Report of the Director of Environment and Commercial Services


Author: Chris Bearton             Tel: 01992 556309

Executive Member: Derrick Ashley, Environment, Planning and Waste


1.    Purpose of report

      To inform the Panel of the proposed changes to the planning system
      as set out in the Localism Bill, identify the potential impacts for the
      County Council in relation to its existing planning and associated
      functions and update the Panel on progress towards establishing the
      Hertfordshire Local Enterprise Partnership.

2.    Summary

2.1   On the 13 December 2010, the Government laid before Parliament the
      Localism Bill which outlined some significant changes to the
      relationship between communities, local authorities and central
      government. The Bill has just received its second reading in
      Parliament, and is now progressing to the Committee stage and is due
      to receive Royal Assent in November this year.

2.2   The planning system is identified as a key area to deliver these
      reforms. There is a recurring theme throughout the draft Bill that looks
      to restore democratic and local control over the planning system,
      shifting power back to local communities. There are a number of other
      parts of the localism agenda (such as the Government’s ‘Free Schools’
      policy) which are likely to have an impact upon some of the County
      Council’s planning functions but these are dealt with through other
      emerging legislation such as the Academies Act 2010.

2.3   The Bill sets out a number of key changes to the planning system
      including:-

             Revocation of Regional Strategies and saved Structure Plan
              policies.
             A ‘Duty to Co-operate’ between local authorities and ‘other
              bodies’ involved in bringing forward development.



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             Changes to Local Development Documents and the examination
              process.
             The introduction of Neighbourhood Planning.
             A new duty for developers to consult on development proposals
              before they are submitted to the Local Planning Authority.
             Changes to the Community Infrastructure Levy (CIL) and
              provisions for a percentage of CIL to be passed to others to
              spend on infrastructure.
             The abolition of the Infrastructure Planning Commission (IPC)
              and changes to the consultation process on Nationally
              Significant planning applications.

2.4   The Bill does not appear to substantively change the statutory planning
      responsibilities of the County Council, though it is relatively vague and
      much of the detail has been left to the publication of further regulations
      and statutory guidance. Until such guidance is published and the Bill is
      given Royal Assent later this year, the full extent of the implications for
      the County Council will not be known. However, the requirement for the
      County Council to engage with the preparation of Neighbourhood Plans
      will fundamental change the way in which the County Council
      participates in the plan preparation process and will have implications
      for both the County Council’s planning function and other supporting
      services. Depending on the level of involvement, set out in future
      guidance, these impacts could be significant and require a fundamental
      review of how some services are delivered. Officers will continue to
      monitor any changes to the emerging legislation and report back to
      Members once the full impacts of the Bill on the County Council’s
      services are known.

2.5   Hertfordshire’s Local Enterprise Partnership (LEP) was one of 24
      approved by the Government in October 2010 and will be primarily
      involved in securing economic development opportunities for the
      County. An interim Board has been established. The draft Bill does not
      make any specific provisions for the LEP, confirming that they will not
      have any legal entity or decision making powers. It is not clear at this
      stage whether or not they will be included within those bodies required
      to co-operate with activities related to development planning.

3.    Recommendation

      That the Panel notes the potential implications for the Council’s
      planning and associated services as set out at Section 6 of this report.

4.    The Localism Bill

4.1   On the 13 December 2010, the Government laid before Parliament the
      Localism Bill which outlined some significant changes to the
      relationship between communities, local authorities and central
      government. The Bill has just received its second reading in Parliament



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      and is now progressing to the Committee stage and is due to receive
      Royal Assent in November this year.

4.2   The planning system is identified as a key area to deliver these
      reforms. There is a recurring theme throughout that looks to restore
      democratic and local control over the planning system and shifting
      power back to local communities. There are a number of other parts of
      the localism agenda (such as the Government’s ‘Free Schools’ policy)
      which are likely to have an impact upon some of the County Council’s
      planning and associated functions but these are dealt with through
      other emerging legislation such as the Academies Act 2010.

4.3   The proposed reforms will represent a significant change to the way
      the planning system currently operates. It is continuing its passage
      through Parliament and may be subject to change following future
      debates and lobbying from professional and interested bodies. The Bill
      only sets out changes in principal and much of the detail will come
      forward through regulations and secondary legislation. Until the Bill has
      been enacted, and further legislation or guidance is published, the full
      implications of the proposed changes are unlikely to be known. The
      proposed changes within the Bill that relate to the planning system are
      outlined below.

      Revocation of Regional Strategies

4.4   The coalition government believes that top-down target setting in
      relation to housing and other planning issues is an ineffective way to
      deliver future housing and the associated infrastructure necessary to
      support future economic development. The Bill provides the necessary
      legislation to revoke existing Regional Strategies and also provides for
      the revocation of saved Structure Plan policies that are currently part of
      the statutory development plan.

      Duty to co-operate

4.5   The Bill sets out a new ‘duty to co-operate’ for Local Planning
      Authorities (LPAs) and ‘other bodies’ in relation to sustainable
      development in the planning process. ‘Other bodies’ are not specified
      (these will be specified in future guidance) but will be “persons or
      persons of that description, exercising functions for the purpose of an
      enactment”. This implies it will involve organisations with statutory
      responsibilities but is also likely to encompass services that are
      provided by organisations on a non-statutory basis.

4.6   The ‘duty to co-operate’ includes, but is not limited to, responding to
      consultations and providing information to LPAs when requested.
      There is provision in the Bill for the Secretary of State to issue future
      guidance on how local authorities and the ‘other bodies’ should comply
      with this duty.



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      Local Development Documents

4.7   In light of the revocation of Regional Spatial Strategies, Local Plans
      produced by district councils will become the principal document of the
      Development Plan and are likely to be similar in nature to existing LDF
      documents. LPAs will still be required to set out a Local Development
      Scheme, setting out the timetable for the Plan’s preparation and report
      on its implementation. However, these will now be for the interest of
      public transparency and will no longer need to be submitted to the
      Secretary of State (although there is still scope for government
      intervention). The most significant difference will be how the
      documents are examined. Currently, Development Plan Documents
      (DPDs) are subject to independent examination, where an Inspector’s
      report is binding and Local Planning Authorities are required to make
      changes prior to its adoption. Under the proposed changes, the
      documents will still be subject to independent examination but it is up
      to the discretion of individual authorities i) whether they ask the
      Inspector for recommendations and ii) whether or not they choose to
      modify the Plan in light of these recommendations.

      Neighbourhood Planning

4.8   The Bill will legislate for communities to be able to shape the nature of
      development within their area through ‘neighbourhood planning’.
      Neighbourhood planning will be taken forward by Parish Councils or
      nominated Neighbourhood Forums, both of which can initiate a process
      for requiring LPAs to undertake planning at a neighbourhood level.

4.9   There are three elements to new neighbourhood planning -
      Neighbourhood Plans, Neighbourhood Development Orders and
      Community Right to Build.

             Neighbourhood Plans – will be able to set out a community’s
              policies for the development and use of land in their area and
              once adopted will form part of the Development Plan. LPAs are
              obliged to undertake Local Planning on behalf of either the
              relevant Parish Council or Neighbourhood Forum, however, the
              proposals must first be subject to a referendum and supported
              by at least 50% of the local population. Once completed, the
              plan will be subjected to independent examination and
              subsequent local referendum before it can be adopted. There is
              a requirement for Neighbourhood Plans to satisfy a number of
              conditions: conform to national policy, guidance and strategic
              policies set out in local development plans and comply with EU
              requirements. There is list of excluded development set out in
              Council Directive 85/337/ECC (such as airports, railways,
              thermal treatment plants etc) that neighbourhood plans cannot
              make provision for.


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             Neighbourhood Development Orders (NDO) – will grant
              planning permission (either outlined or detailed) in relation to a
              particular development site or neighbourhood area for i)
              development specified in the order or ii) for a particular use
              class, without the need to apply for planning permission from the
              LPA. As with Neighbourhood Plans, proposals are initiated by
              Parish Councils or Neighbourhood Forums and are subjected to
              a referendum and independent examination. NDO’s are not
              allowed to include development that is considered a ‘county
              matter’, nationally significant infrastructure (set out in National
              Policy Statements) or that set out in the Environmental
              Assessment Regulations (Council Directive 85/337/ECC). There
              is a power to introduce charges in relation to development
              authorised by an NDO in order to support costs associated
              which LPAs incur in relation to neighbourhood planning.

             Community Right to Build – is similar to an NDO but is specific
              for community-led development (such as village halls) where the
              benefit of development will be retained by the local community.
              It will apply to small scale community-led schemes.

       Consultation in relation to Planning Applications

4.10   The Bill sets out the provision requiring prospective applicants to
       consult with local residents before applying for planning permission and
       a requirement to submit evidence alongside the application of how the
       responses have been incorporated into the proposals. Consultation will
       need to have taken place in line with local authority guidance where
       they have chosen to issue this. Descriptions and thresholds of the
       development that will be required to conform to these consultation
       requirements will be set out in secondary legislation. This is similar to
       current pre-application consultation that is currently carried out by
       many developers on larger scale developments. It will not replace the
       statutory duty of local authorities to advertise and consult on
       development proposals.

       Community Infrastructure Levy (CIL)

4.11   The Community Infrastructure Levy will still be subject to independent
       examination. As with the new Local Plans, the inspector’s conclusions
       will no longer be binding and it will be the decision of individual
       authorities whether or not to implement them. Provisions are made for
       the Secretary of State to direct the charging authority to pass funds
       raised by the authority to other bodies. Although ‘other bodies’ are not
       specified in the Bill, it is expected (following recent ministerial
       statements) that this will include a proportion of the money raised from
       the development back to the neighbourhood in which it is located.




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       Enforcement

4.12   The enforcement provisions have four strands all of which are
       designed to help enforcement officers do their job.

             Where the time limit for enforcement has expired, but
              enforcement officers believe there has been concealment, the
              authority can apply for a Planning Enforcement Order. If
              concealment is proven, this will allow the LPA a further year to
              take enforcement action.

             If an enforcement notice is served the LPA can decline to
              determine a retrospective planning application for the same
              development. If a retrospective application is made, no ground
              for appeal can be made against an enforcement notice served
              before the retrospective application is determined.

             The maximum penalty for failure to comply with breach of
              condition notice will be raised from a level 3 to a level 4 fine
              (maximum £2,500). Prosecutions for damage to protected trees
              and for displaying illegal advertisements will be possible within 6
              months of discovery rather than 6 months of commencement.

             Powers currently available in London to control illegal
              advertisement are to be extended to the rest of the country.
              LPAs will be able to remove unauthorised hoardings and graffiti
              with cost recovery and require land-owners to deal with
              persistent fly-posting.

       Nationally Significant Infrastructure Projects

4.13   The Bill requires National Policy Statements (NPSs) that set out the
       guiding principals for nationally significant infrastructure, to be subject
       to Parliamentary approval and prior public consultation, including with
       County Council’s as ‘upper tier authorities’. The Bill contains the
       provision to abolish the Infrastructure Planning Commission (IPC) and
       to establish a process that will speed up the determination of major
       infrastructure projects that will ultimately be determined by the
       Secretary of State. It streamlines the involvement of local planning
       authorities in the decision making process. Currently, all authorities
       within a County boundary where there is a proposed project are
       consulted. The new provisions would mean that only lower-tier districts
       that abut the boundary of the lower-tier boundary of the district in which
       the development is located will be consulted. However, any local
       authority can apply to become an interested party, though it is up to the
       decision maker/panel whether or not to accept the request. The County
       Council will be a statutory consultee where a project is located within
       its boundaries or within a neighbouring upper tier or unitary authority.



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5.    The Bill – Other proposals (non-planning specific) that could have
      an impact upon the planning system

5.1   There are a number of sections within the Bill, that although not
      specifically related to planning, may have some impacts on the
      planning system and the County Council’s planning function.

      Local Referendums

5.2   As well as the referendums in relation to Neighbourhood Plans,
      Neighbourhood Development Orders and Community Right to Build,
      the Bill sets out a duty for local authorities to hold a referendum on “any
      issue that is put forward by local communities or elected local member”
      (should authorities consider the request to be appropriate). Such
      requests could relate to controversial planning applications that are
      either determined by the County Council or other planning matters that
      have an impact beyond a single district authority or straddle the County
      boundary.

      EU fines

5.3   The Bill sets out a provision to require local or public authorities to
      make payments in respect of certain EU financial sanctions. At this
      stage, it is not clear what sanctions local authorities may be
      responsible for or how such sanctions would be operated, however
      there are a number of areas such as the EU Waste Framework
      Directive (preparation of Waste Development Frameworks), UK
      Renewable Energy Target, Carbon Reduction Target (80% by 2050)
      and Landfill Directive targets that the planning system will have a key
      role in helping local authorities deliver.

      Pre-determination

5.4   The Bill makes provisions that will allow Members to indicate their view
      on particular matters, without it being considered as amounting to pre-
      determination. This relates to all areas of the County Council where
      decisions are made by Members and will include those related to
      planning matters. This will allow Members who sit on the Development
      Control Committee to indicate their intended view before the
      Committee sits to make a decision.

6.    Potential Implications for the County Council’s Planning and
      Associated Services

6.1   The changes to the planning system set out in the Localism Bill will
      have potentially significant implications for the County Council’s
      planning and associated services. The full extent of these impacts is
      unlikely to be known until i) the Bill has been given Royal Assent and ii)
      the detail of many of the proposals comes forward through the


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      publication of further regulation and secondary legislation. Some of the
      potential implications for the County Council are outlined below.

      Minerals and Waste Planning

6.2   The County Council’s statutory function as Waste and Mineral Planning
      Authority requires it to produce a development plan (the Minerals and
      Waste Development Framework) that guides development involving
      minerals and waste proposals and to determine development
      proposals. This requirement remains unchanged in light of the
      requirements set out in the draft Bill. The Government have made it
      clear that authorities that are not making timely provision with their
      Waste Development Frameworks are likely to be liable for any
      European fines as a result of unsatisfactory process in relation to the
      EU Waste Framework Directive. The County Council have raised
      concerns with DCLG about this approach.

      Duty to co-operate

6.3   The County Council already engages with local authorities during the
      preparation of Local Development Frameworks, although at present
      much of the work is undertaken on a voluntary basis and comes
      forward following requests from individual authorities. Under a new
      ‘duty to co-operate’, the County Council may be required by law to
      input into Local Plans, Neighbourhood Plans and Neighbourhood
      Development Orders, as well as other activities that support the
      planning of sustainable development. This is likely to apply primarily to
      the County Council’s statutory functions in relation to Highways,
      Minerals and Waste, Lead Local Flood Authority and Local Education
      Authority. However, it is also likely to relate to other supporting
      functions in connection with the provision of an evidence base for the
      plan making process such as the Planning, Information and Monitoring
      Service (PIMS), the Historic Environment Record (HER) and
      Biodiversity Action Plans.

6.4   Although the exact requirements under the ‘duty to co-operate’ are not
      yet known, it is likely that they will have implications for the services
      that the County Council provides, particularly in terms of the support
      services outlined above. Currently, a number of different service areas
      are engaged in the preparation of Local Development Frameworks for
      the ten districts. In the future, it is likely that requirement will extend to
      supporting civic parishes (parish councils and town councils) and
      Neighbourhood Forums in the preparation of Neighbourhood Plans and
      Neighbourhood Development Orders. There are currently 128 civic
      parishes and approximately 25 Neighbourhood Forums in Hertfordshire
      which, combined with any new Neighbourhood Forums brought forward
      under the provisions set out in the Bill, will have consequences for both
      the County Council’s planning function and supporting services
      possibly requiring a review of how these services are delivered.



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      Consultation on Development Plan Documents

6.5   Currently, the County Council is a statutory consultee on emerging
      Local Development Frameworks prepared by Hertfordshire
      borough/district councils and those of adjoining authorities. Under the
      new legislation, the need for LPAs to consult “relevant authorities, any
      part of whose area is in or adjoins the area of the local authority” does
      not change therefore the County Council will still be formally consulted
      as part of the plan making process. At this stage it is not clear whether
      or not the same provision will apply to Neighbourhood Plans,
      Neighbourhood Development Orders or Community Right to Build.

      National Policy Statements and Major Infrastructure Projects

6.6   The County Council currently voluntarily responds to consultations on
      draft National Policy Statements for major infrastructure proposals
      handled by the IPC. This now becomes a statutory responsibility. The
      County Council is already a statutory consultee on major infrastructure
      proposals within or adjoining the County. This responsibility continues.
      Changes to the consultation arrangements for district councils may
      result in calls for the County Council to make a collective response on
      behalf of Hertfordshire local authorities.

      Remuneration in regards to costs associated with Neighbourhood
      Planning

6.7   It is not clear whether the provision in the Act that allows the
      introduction of a charge in relation to development authorised under an
      Neighbourhood Development Orders to support the costs incurred by
      local authorities, will also apply to the costs incurred by the County
      Council as part of its ‘duty to co-operate’ and further guidance will be
      set out in future regulations. Consideration may need to be given to
      developing a charging schedule in relation to the support the County
      Council provides.

      Guidance for pre-application consultation

6.8   The County Council will need to decide whether or not to develop and
      publish guidance for developers (in relation to the development
      management responsibilities of the County Council) on the type and
      extent of public consultation that should be carried out before a
      planning application is submitted.

      Community Infrastructure Levy

6.9   Through the Hertfordshire Infrastructure and Investment Strategy
      (HIIS), the County Council, with all other local authorities in
      Hertfordshire and other agencies, has been engaged in identifying
      future infrastructure needs and funding required to support future
      development across Hertfordshire. The local authorities have been


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       considering options for how they might go about bringing in Levy
       arrangements but no conclusions have yet been reached. The
       provision in the Act for a percentage of the Community Infrastructure
       Levy to be reallocated to the neighbourhood in which development is
       located will influence future discussions on this issue and will have an
       impact upon CIL arrangements across the County. It potentially has
       implications for monies available from CIL to support County Council
       services in responding to development pressures.

6.10   Any charge introduced as part of an NDO to support the costs of
       Neighbourhood Planning could potentially affect the level of CIL that
       can be levied within an area covered by an NDO. Again, this may have
       implications for monies available from CIL to support County Council
       services in responding to development pressures.

       Determination of Local Referendum requests in relation to planning
       issues

6.11   Should the County Council be issued with a local referendum request
       in relation to a planning issue, it must determine whether or not the
       request is appropriate with regards to:-

       i)     if it is likely to lead to contravention of an enactment or rule of
              law;
       ii)    whether or not the issue is a local matter;
       iii)   if it refers to a matter specified by order of the Secretary of
              State;
       iv)    if the petition is vexatious or abusive.

6.12   The need to hold a referendum in relation to a planning application
       could delay making a decision on the proposal and increase the costs
       associated with its determination.

7.     Hertfordshire Local Enterprise Partnership

7.1    Hertfordshire's Local Enterprise Partnership was one of 24 (from a total
       of 61) approved by the Government in October 2010. Its primary role is
       to provide strategic leadership and be responsible for:-

             ensuring that conditions are created to maximise economic
              opportunities within Hertfordshire;
             maximising public and private sector investment in the creation
              of wealth and jobs;
             improving the co-ordination, effectiveness and impact of
              economic development programmes;
             advocating on behalf of the Hertfordshire economy nationally
              and internationally, and
             working with neighbouring economies to address key economic
              challenges and opportunities.



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7.2   A stakeholder event was held in December 2010, bringing together
      over 70 representatives from business which supported the LEP bid,
      academia, the voluntary and community sector and local authorities.
      Those present endorsed the general principles of the LEP including a
      small business-focussed board supported by a series of programme
      boards covering Enterprise and Innovation, Skills and Employment,
      Strategic Infrastructure and Investment and Advocacy.

      An interim Board has been formed (see below) and will meet on 24
      February 2011.

       Position           Name               Organisation     Title
       Chair              Sir Tim Wilson                      Retired Vice Chancellor
                                                              University of
                                                              Hertfordshire
       Business           Dan Dark           Warner           Senior Vice President &
       Representative                        Brothers         Managing Director,
                                                              Warner Bros. Studios
                                                              Leavesden
       Business           John Keddie        GSK              Vice President - Global
       Representative                                         Operations, Worldwide
                                                              Real Estate and Facilities

       Business           Tbc                Tesco
       Representative
       Business           John Gourd         Johnson          Site Planning & Services
       Representative                        Matthey          Director
       Business Forum     Tim Hutchings      Hertfordshire    Chief Executive
       Representative                        Chamber of
                                             Commerce
                                             Industry
       Local Authority    David Lloyd        Hertfordshire    Deputy Leader of the
       Representative                        County Council   Council, Executive
                                                              Member - Resources &
                                                              Economic Well-Being
       Local Authority    Tbc
       Representative
       Local Authority    Tbc
       Representative
       Academia           Mark Pegg          Ashridge         Director
       Representative                        Business
                                             School
       Academia           Quintin McKellar   University of    Vice Chancellor
       Representative                        Hertfordshire
       Parliamentary      Richard                             MP for Watford
       Champion           Harrington MP

7.3   The draft Bill does not make any specific provisions for the new Local
      Enterprise Partnerships (LEPs), confirming that they will not have any
      legal entity or decision making powers. However, it is still unclear as to
      whether or not they will be included within those bodies required to co-
      operate with activities related to development planning.




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8.    Financial Implications

      There are likely to be financial implications arising from various
      proposals in the draft Bill, but at this stage the scale of these, without
      the greater clarification that will be forthcoming in subsequent guidance
      and statute, is impossible to quantify.

Background Papers

Localism Bill (DCLG, 2010)
http://www.publications.parliament.uk/pa/cm201011/cmbills/126/part1/11126.i-
v.html




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