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Comment: Localism and Decentralisation Bill

14 December 2010

LONDON, 14 December 2010 - Comment: Localism and Decentralisation Bill

Abolition of regional planning

Michael Gallimore: "Whatever the merits of the proposal to abolish RSSs, the Government's attempt to introduce it by the back door has led it into trouble.  The Secretary of State's ongoing legal battle with Cala Homes is testament to this, and increasingly his position looks farcical."

Claire Dutch: "Certain aspects of the abolition of regional planning cause deep concern.  It is not yet clear whether the much-vaunted Local Enterprise Partnerships will be capable of generating the impetus, focus and funds necessary for the delivery of strategic infrastructure.  Many fear they will become talking shops and little more.  And what happens in those parts of the country not covered by an LEP?  Are they simply left to get on with it themselves, without any strategic direction?"

Neighbourhood Plans

Claire Dutch:  "It will be fascinating to see how nimbyism influences the production of neighbourhood plans.  In reality, you ask 100 people whether they support the provision of affordable housing and 100 will tell you they do.  But only a few of those will agree to it in their back yards."

Claire Fallows: "Neighbourhood plans, to be produced by Parish Councils or "neighbourhood forums", are central to the Government's localism agenda.  Is it a step too far to delegate responsibility for a crucial tier of the development plan to unelected and potentially inexperienced individuals with no accountability for the wider public interest? The complex and sensitive nature of plan-making explains why it has traditionally been left to the professionals and elected members, in consultation with the community."

Michael Gallimore: The big question is how communities will respond to the call to produce neighbourhood plans.  Will they engage, and in what numbers?  What will happen if they don't?  Will they really be prepared to contemplate the delivery of housing in the numbers needed, and promised by Government?  

Local Plans

Claire Fallows: Inspector's recommendations on modifications to Core Strategies are currently binding.  The Bill tweaks this to allow local planning authorities to make further modifications - provided they are not material.  The scope of this power is likely to be tested in challenges through the courts.

The Community Right to Build

Harry Spurr: It will be interesting to see how local communities deal with the challenges they will face in invoking a Community Right to Build - site assembly, funding, technical and environmental issues, construction, and so on.  In practice I can see a lot of well-supported schemes grinding to a halt for lack of expertise and resources.

Harry Spurr: "A Community Right to Build is an interesting idea, and attractive in theory.  But it applies only to small schemes which don't need environmental assessment.  So the "right" is in fact fairly limited." 

Third party rights of appeal

Claire Fallows: "It is a huge relief not to see the inclusion of third party rights of appeal or the curtailing of the general right of appeal.  Third party rights of appeal would have been an unwelcome addition to the armoury of those determined to frustrate acceptable development by fighting to the last.  The resulting cost, delay and uncertainty would have been very damaging to an industry struggling to recover from the economic crisis.  We keep our fingers crossed that this does not turn out to be a temporary reprieve."

Pre-determination and bias

Claire Dutch: "The Bill proposes a radical change to existing laws on predetermination and bias.  It will mean that members who have expressed firm views on a proposal will not be precluded from voting on the planning committee. It remains to be seen whether the high standards of conduct the Bill requires from members will actually deliver good decision making."

Community Infrastructure Levy

Michael Gallimore: The Government has performed something of a u-turn on CIL.  Originally the plan was to abolish it; now, they plan to retain it with only minor changes.  At the very least the certainty on this issue is most welcome; the industry knows now what to expect - developers can make investment decisions and councils can set to work on their schedules. 

Media Briefing Note: Localism and Decentralisation Bill Expected
The eagerly-awaited Localism and Decentralisation Bill is due to be published within the next week or so.  This legislation, prepared with surprising rapidity over recent months, is expected to contain far-reaching and controversial measures for reform of the planning system.  For example, root and branch change is proposed to the appeal system, removing for the first time in history the absolute right of a developer to challenge the refusal of a local authority to grant planning permission.  Equally important, the Government is set to reveal details of the New Homes Bonus - the controversial mechanism conceived to deliver much-needed housing, but about which there is widespread industry scepticism.  Similarly, the Community Right to Build and the concept of Neighbourhood Plans are expected to effect a radical shift in the established approach to local plan making. 
Michael Gallimore, Head of Planning at Hogan Lovells, said:
"We are poised on the brink of the most fundamental set of reforms to the planning system since the birth of the regime in 1947.  This is a truly important moment not only for the industry, but for the wider economy.  The implications of the proposed changes are expected to be far-reaching indeed." 
Hogan Lovells will continue to monitor these developments and, in due course, provide analysis on their implications.
For more information, please contact:
Michael Gallimore
+44 20 7296 2253
Harry Spurr
Professional Support Lawyer
+44 20 7296 2082
Rachael Droog
PR Coordinator
+44 20 7296 2780

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