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Commercial Question

Power to the people

updated on 21 June 2011


Will localism bring together our neighbourhoods?


The government certainly hopes so; its Localism Bill, which is currently making its way through the parliamentary process, goes to the heart of delivering its "Big Society" concept. By allowing communities to be fully involved in debating what development takes place in their areas and by giving them new powers, controls and influence over planning decisions, the assumption is that communities will become more accepting and supportive.

The planning elements of the bill are contained in part 5 and will impact upon the way in which planning lawyers (and lawyers practising in other areas) must advise their clients; whether they are public or private sector clients, or community groups wishing to take advantage of the new rights the bill affords them.

The planning process is complex and decision making has traditionally been the stronghold of local, regional and central government, with limited input from local people. The introduction of 'neighbourhood forums' is set to change this balance and will add another party into the planning process.

The creation of neighbourhood forums
Many of the new powers will be given to neighbourhood forums. A forum will be designated by the local planning authority in an area; either the parish council or another body whose purpose it is to improve the wellbeing of local people - as such, membership will only be open to locals in the area. The latest amendments to the bill propose membership of at least 21, including representation from the local business community. Forums will be required to have a written constitution and will have a role to play in formulating neighbourhood planning policy and in participating in new rights for communities to own and manage community assets.

Central to the success of the forums is the willingness of local communities to join together and give up time and expertise to participate. A wide variety of skill sets are going to be required to ensure that a forum can be effective. This will include ensuring that:

  • each forum is properly constituted;
  • decisions can be made fairly and democratically;
  • the forum can achieve a high level of technical expertise to enable it to input in a useful way to policy and the decision-making process;
  • there is a level of accountability for decisions taken; and
  • nimbyist factions (ie, Not In My Back Yard) are not given a more powerful voice.

Similar to the transition schools are making from centrally controlled, self-governing academies, the setting up of such forums would ideally be done along with lawyers. The question of how forums can access and pay for the necessary advice to become established properly is as yet unanswered. Some funding may be available for certain elements of a forum's activities and, again, lawyers are likely to be involved in that.

Pre-application consultation
The bill proposes compulsory pre-application discussion between applicants and communities on larger developments (the government is currently suggesting that it would apply to residential developments of more than 200 units and other developments that provide 10,000sqm or more of floor space). Developers will be required to take account of any comments and concerns raised by communities in deciding whether any amendments to their proposals are necessary before they submit their planning applications. This will require developers and their lawyers (and other advisers) to work closely with the local planning authority, local councillors and neighbourhood forums and groups to ensure that consultation is effective and engages as many local people as possible. Also, lawyers will be advising their clients of possible changes they should make to proposed developments to ensure that they are compliant with policy and legislative requirements, and which give their client the best possible chance of success in obtaining planning permission. This is likely to increase both the money and time spent by developers (and local planning authorities) at the start of the application process; in theory, it should lessen the likelihood of legal objections and challenges further down the decision-making process.

Neighbourhood plans
Planning applications will also be subject to a further layer of policy considerations set out in 'neighbourhood plans' once the bill becomes law. Neighbourhood plans will sit beneath the hierarchy of existing central and local policy (note that the regional tier policy is to be abolished under the bill). Crucially, the neighbourhood plan will become part of the existing local development plan framework and, as such, central to all planning decisions taken by the local planning authority.

Neighbourhood plans will be based on a neighbourhood (eg, a parish) and will be written by the parish council or neighbourhood forum, not the planning authority. The intention is that neighbourhood plans will help enable rather than prevent development. However, expectations within local communities - which often try to thwart development - will need to be carefully managed to ensure the plans work effectively.

The proposed statutory process for the preparation of these plans includes extensive community engagement, examination by an independent examiner and a local referendum to adopt the plan. The local planning authority will be required to provide support to parishes or neighbourhood forums and act as an adviser when they are preparing a plan. Adding a further layer of policy to the planning process will inevitably require the involvement of lawyers acting for public and private sector clients. Local authorities, which will bear a much greater administrative burden when they have to deal with the neighbourhood plan process, are likely to need additional support and may even look to external advisers at a time when their internal resources are being cut. Developers and scheme promoters will look to their lawyers to provide strategic advice on the possible implications of the neighbourhood plan policies on land included in the plan. Parish councils or newly formed neighbourhood forums may require external guidance and representation independent of the local planning authority in relation to the process of getting the neighbourhood plan adopted.

There is still a high level of detail required to flesh out the government's proposals. Local communities will need to be confident that time and energy put into participating in neighbourhood forums or other community groups will result in benefits for the local community. With developers' large purse strings and ability to access sophisticated advice, and local planning authorities struggling to find resources to deliver these initiatives, "Power to the people" may take some time to get off the ground.

Kate Brock is a professional support lawyer in the planning and environment team at Pinsent Masons.