Introduction

The Secretary of State for Communities and Local Government, the Rt Hon Eric Pickles MP is fond of claiming that he has three priorities:- Localism, Localism and Localism.

The Bill that has now been presented to Parliament has been heavily trailed and is based upon two Conservative Party policy papers:-

• Control Shift 1
• Open Source Planning 2

For those interested in understanding the genesis of policies now being implemented by the Coalition, these papers are useful, and provide a good insight into the thinking behind many of the provisions in the Localism Bill.

Unusually, the Government has also published a contextual policy paper entitled Decentralisation and the Localism Bill: an essential Guide. This appears under the signature of the Minister of State for Decentralisation, the Rt Hon Greg Clark MP and seeks to explain the link between The Big Society and the Localism Bill. It does so through six ‘essential actions’:-

• Lift the burden of bureaucracy
• Empower communities to do things their way

• Increase local control of public finance
• Diversity the supply of public services
• Open up Government to public scrutiny
• Strengthen accountability to local people

The Government sees this strategy as work-in-progress and welcomes contributions.

‘This guide is not a formal consultation document. Rather, in advance of a progress report due to be published next year, it sets out the thinking that underpins the Localism Bill and which forms the basis for further action across Government’ 3

1 Control Shift: Returning Power to Local Communities (2009) Conservative Party Responsibility Agenda – Policy Green Paper No.9. Available as a downloadable PDF from http://www.conservatives.com/News/News_stories/2009/02/Its_time_to_transfer_power_from_the_c entral_state_to_local_people.aspx

2 Open Source Planning Green Paper (2010) Policy Green Paper No.14. Available at http://www.conservatives.com/~/media/Files/Green%20Papers/planning-green-paper.ashx

3 Decentralisation and the Localism Bill: an essential Guide, (2010), p.3 Available at http://www.communities.gov.uk/publications/localgovernment/decentralisationguide

The Bill itself is 407 pages long and consists of 207 Clauses and 24 Schedules. It is extremely complex and, in many parts, highly technical. Explanatory Notes 4  have also been published and provide a valuable resource for those wishing to understand the Bill.

The Bill covers a very wide range of issues, but is mostly concerned with:-

• The structures and governance of local authorities in England
• Extending the ability of electors to take or influence decisions at local levels
• Reforming aspects of Planning law and process
• Changing aspects of managing social housing in England
• Local Government in London

As with much primary legislation, the Bill is full of powers for Government Ministers to make detailed Regulations or Orders. Whilst some of these are ‘reserve powers’ to be held … in case they are needed, others are absolutely essential to the Bill’s implementation. Some of these will have a major impact upon the conduct and practice of public engagement.

Given the complexity of the Bill, many organisations will no doubt prepare comprehensive commentaries in the coming weeks. For Consultation Institute members, this is intended as an initial, preliminary view of those aspects of the Bill that are most relevant to consultation and public engagement.

The Bill’s key Public engagement provisions – at a glance

• Local Referendums! o Upon request o Re Council tax
• Re Directly-elected Mayors
• Re Neighbourhood Planning (including the ‘Right to Build’)
• A ‘community right to challenge’ and express an interest to deliver services
• A ‘community right to buy’ listed assets
• Pre-application consultation for large developments
• Local planning at Neighbourhood levels

4 Localism Bill 2009 Explanatory Notes. Available at http://www.publications.parliament.uk/pa/cm201011/cmbills/126/en/2011126en.pdf

The Bill seeks to repeal two important new duties introduced in the Local Democracy

Act, 2009:-

• The duty to promote democracy
• The duty to respond to petitions etc (But see Section Referendums 2.d)

Note, however, that contrary to much speculation, the Bill does not seek to repeal S.138 of the Local Government & Public Involvement in Health Act 2007 – the duty to inform, consult and involve. Neither does it appear to repeal the requirement under the Planning & Compulsory Purchase Act, 2004 which requires Planning Authorities to develop and publish a Statement of Community Involvement (SCI).

Local Referendums5

1. Local referendums are neither new nor particularly rare. Parishes have had the right to hold them since 1972, and Councils considering introducing directly- elected Mayors. There have also been Transport referendums, notably in Edinburgh and in Mancheste
2. The Bill envisages four different scenarios under which Referendums can be held
3. Changing Governance of Local Authorities

The Bill gives Councils more flexibility to choose the way in which they are governed. The Government has already decided to create directly-elected Mayors for 10 cities if the Bill becomes law but, for other areas, local people can petition for a change to its arrangements.

The assumption appears to be that this will normally be by those campaigning to adopt a directly-elected Mayor, but Schedule 2 is wider than this. If 5% sign a petition demanding a Referendum on this matter, or if the Secretary Of State issues ‘directions’ or an ‘order’ for one, the Council must organise such a Poll.

Note that regulations will be needed to provide for the details of running these Referendums (although almost 40 have already been held since2002).

Excessive’ Council Tax

The Bill has complex provisions to determine whether a proposed increase is ‘excessive’. If a Council proposes such a rate, it must also prepare a set of ‘substitute calculations’ and then hold a Referendum whereby local electors can either approve or veto the proposed increase.

Neighbourhood Planning

New planning arrangements at ‘neighbourhood’ levels (See below) envisage communities using the ballot box to take significant planning decisions affecting their local areas. These will be ‘binding’ Referendums

This will only happen if the Parish/Town Council (there are almost 9,000 of them in England) or a ‘Neighbourhood Forum’ has opted to prepare a Neighbourhood plan, but clearly will appeal to many who wish either to ensure or to prevent a particular development, or type of development.

5 We have followed the Government in using the term referendums for the plural of referendum

Upon demand

The Bill requires Councils (though not Parishes/Town Councils, at this stage) to hold a Referendum if one of two ‘triggers’ is activated. They are:-

• A valid petition (or e-Petition) signed by 5% of local government electors and stating the question they want asked
• Written requests from elected members of an authority

 

Top-tier Councils then have to consider whether it is appropriate to hold a Referendum, but can only decline on one of four grounds:-

• If it is likely to be a contravention of a law or rule of law
• If the matter is not one that ‘over which the authority … or its partner authorities has an influence…’
• If the matter is about something the Secretary of State has vetoed in an Order
• If it is ‘vexatious or abusive’

This means that referendums are more likely than not. They will have to relate to ‘local matters’, defined as the ‘economic, social or environmental well-being of the area’, so it is very wide.

Note:-

The reference to ‘partner authorities’ is important, for these will include NHS Trusts, the Police and a variety of other bodies and opens the way for local people to demand a Referendum about the actions of public bodies that are not (at least for now) directly democratically accountable locally.

Councils can modify the question in a Referendum, but must consult either the lead petitioner or the elected member(s) who made the request.

Referendums held upon demand are advisory only. Councils can decide for themselves whether or not to act upon the results. If the question relates to an issue of greatest relevance to a ‘partner authority’, the Council must inform that partner of the outcome, and it, in turn, ‘must consider what steps (if any) … ‘ it proposes to take

3. In practice the way in which referendums work depends much on the practical rules that govern their administration. The Government‘s proposed regulations will be of importance and will cover:-

• When, where and how voting takes place
• How the votes will be counted

subject to consultation with the Electoral Commission

Institute assessment

No-one knows how keen the public might be to exercise a vote through local referendums. Turnout at previous Referendums has varied enormously; they can also be costly – anything from £70,000 to £250,000 for a mid-size Unitary authority. Parish referendums can, however, be cheap.

From a public engagement angle, the really significant process may not be the Referendum itself but the campaigning and counter- campaigning it may encourage. With the use of Social media and other new technology tools, the Bill may dramatically increase the amount of dialogue, especially on matters of controversy such as planning or some local social and economic policies.

But Referendums are blunt Yes/No instruments not always conducive to the search for compromise and consensus. They may be more attractive to people wishing to stop things rather than create things. If turnouts are low, decisions may be made on weak democratic mandates, and there is a further risk that representative democracy is undermined.

Despite these reservations, the Institute welcomes attempts to let communities take more responsibility for local decisions. There will be a steep – but interesting learning-curve – for local politicians, officials, but also for civil society.

The Community ‘Right to Challenge’

1. This is one of the Government’s Big Society provisions. Its intention is to oblige Councils to consider alternatives to the current delivery arrangements for public services.

2. The mechanism for this will be for organisations or individuals to submit an ‘expression of interest’ or EOI. Such a procedure can be initiated by:-

• A Voluntary or community body
• Charities
• A Town/Parish council
• Two or more employees
• Any other person or body ‘specified by the Secretary of State’

3. A Council has to consider the EOI – and decide whether accepting it ‘would promote or improve the social, economic or environmental well-being of the Authority’.

4. If the Council accepts the EOI, with or without modification, it must run a procurement exercise, but there is no requirement to change supplie Indeed, the body that initiates the EOI can even withdraw it, but the procurement exercise can still proceed.

Institute assessment

The current financial crisis may mean that there is no need for this provision in the short-term. Many public bodies are already seeking partners who can offer help in delivering services.

This provision, however, seeks a long-term culture-change by moving away from a default-position whereby services are developed and delivered by the public body that specifies or pays for it. This just continues an existing trend towards public bodies becoming commissioners of services.

The radical element in this proposal is that the eligibility bar for an ‘expression of interest’ is low, so that virtually anyone can prompt a re-think about how services are provided. We think it needs to be viewed alongside the other parallel initiatives of the right to buy and the right to build. Taken together, they have the potential to stimulate debates and dialogues about issues not previously considered in the public arena, and form a corner-stone of Big Society thinking by the present Government

The Community ‘Right to Buy’

1. This will work through the creation of a list of assets of community value. This list will, in part be assembled from a process of ‘community nomination’, normally a Parish/Town Council although Regulations are expected to extend this to other organisations or individuals.

A separate list has to be maintained, showing details of all unsuccessful community nominations.

2. The Bill does not specify the precise meaning of ‘land of community value’, as the Secretary of State will need to publish Regulations on the point.

3. Land or assets on this list cannot be disposed of without a moratorium during which a community interest group can ask to be considered as a potential bidder for the asset. There is no right of ‘first refusal’, merely a period of time (currently unspecified) designed to enable interested groups to organise and prepare competitive bids for assets

4. It is possible that owners of assets can argue that they might suffer loss as a result of their assets being listed. There is therefore provision to allow the Government to introduce Regulations for compensation – no doubt to ensure the Bill meets the requirements of the European Convention on Human Rights

Institute assessment

This is a continuation of the previous Government’s desire for asset transfers, but is a more systematic attempt to identify those that are seen to be of community value.

We think that the whole process of nominating land and assets may lead to interesting debates and possible conflicts at local levels, and we also fear that expectations will be raised. It is one thing to have the opportunity to bid, and another to raise the necessary funding to successfully purchase an asset.

As this provision was, in part, inspired by the sad experience of post office closures and the disposal of other assets valued by the community (Public Houses?), it remains to be seen whether it can help communities salvage some of these. Would a Health Centre, a Fire Station or Library count as assets for these purposes, and will community groups be able to use this provision- alongside the right to challenge – to take over some of these activities.

Planning reform – including pre-application consultation for large developments

1. Traditional development control processes impose no requirement on those seeking planning permission to undertake any consultation with local communities or anyone else affected by their plans until the application has been submitted. Very large infrastructure projects are an exception but, since the 2008 Planning Act, these have been determined by the Infrastructure Planning Commission.

2. The Bill makes a number of changes to Planning law with the aim of simplifying the process, and limiting the Planning Inspectorate’s rights to reject or amend local development plans. Regional Spatial Strategies are abolished but a new ‘duty to co-operate’ obliges Planning Authorities to work together to ensure the sustainable development of the land, and to help build the strategic infrastructure.

3. Co-operation means ‘to engage constructively, actively and on an on-going basis’ and in particular includes providing a substantive response to

• a relevant consultation
• a request for information

4. Clause 102 of the Bill introduces a important new duty – for developers in major projects to consult local communities before submitting planning applications. This has to be done visibly:- A developer ‘must publicise the proposed application in such manner as …is likely top bring the proposal to the attention of a majority of the persons who live at, or otherwise occupy premises in the vicinity of the land’

In addition, the clause requires publicity for contact details of those who will receive comments on the proposed application. There must also be sufficient time to enable those who wish to comment to do so ‘in good time’.

5. It is not enough just to publicise the consultation. There is also a legal duty to ‘have regard to any responses to the consultation that the … has received’ and an account of the consultation must accompany any planning application for a development to which the new duty applies.

Institute assessment

Pre-application consultation was recently introduced in Scotland but it is too early to discern any significant impacts.

Responsible developers of major projects have often undertaken consultation voluntarily as it helps them devise schemes that take account of public views; extending this best practice across the board will introduce consistency, and provide Planning Authorities with a better evidence base upon which to take decisions

Although some developers will regard this as an unreasonable imposition, and possibly seek to do the minimum necessary, we expect Planning Authorities to lay down strict criteria in line with their Statements of Community Involvement. Where projects are particularly controversial, the Institute may offer its independent Consultation Compliance Assessment as a means of ensuring that the quality of the consultation undertaken meets minimum standards.

Neighbourhood Planning

1. The provisions for neighbourhood planning may prove to be the most radical of the Bill’s proposals and offer communities a more ‘local’ tier of planning decision- making than hitherto. In keeping with the philosophy of Localism, the new powers are not compulsory, and where local communities choose not to activate them, planning decisions will continue to be taken as now.

2. The key provision is to enable Parish or Town Councils to develop Neighbourhood Plans and take certain planning decisions. As only 35% of the country is covered by the 9,000 local Councils, the remainder of the country can seek designation as a neighbourhood area, provided there is an application from organisations having the potential to become a ‘neighbourhood forum’. That potential is assessed according to four conditions:

• Objectives of furthering social, economic and environmental well-being
• Open membership
• At least three members from the area
• A written constitution

3. It is obvious that there is scope for disputes as to what may constitute a ‘neighbourhood area’ or what organisations might become ‘neighbourhood forums’ so Planning Authorities will have powers – albeit limited, to approve or modify applications. Detailed regulations will emerge on these and they will include provisions for consultation with the public and for a process to invite and consider representations on the matter.

4. Qualifying bodies (i.e. Parish/Town Councils or potential Neighbourhood Forums) can take the initiative and prepare Neighbourhood Development Plans. These are defined as a plan that ‘sets out policies … in relation to the development and use of land in a particular neighbourhood area’

5. These plans may be subject to independent examination and also to a binding Referendu If a majority of voters approve the Plan, it has to be incorporated into the wider Development Plan. The RTPI has declared itself unhappy about the lack of clarity on this important part of the process. The key phrase appears to be that neighbourhood plans become part of the Local Development plans unless ‘material considerations’ indicate otherwise.

6. Local Councils and others will clearly need skills and some funding to develop Neighbourhood plans and the opportunities they provide, and the Bill obliges Planning authorities to provide technical advice and assistance. It enables them to charge for their services and there may also be some financial assistance provided by the Government. The Explanatory Notes to the Bill for example states that ‘ …powers could be used, for example to help fund a neighbourhood forum to develop a draft neighbourhood plan … or to support an education campaign about neighbourhood planning’.

Note, however, that the Government has indicated that current arrangements for the funding of Planning Aid will cease – and the RTPI and others are exploring alternative ways to help local communities.

7. The so-called Right to Build takes the form of a Neighbourhood Development Order. Until Regulations are published about the prescribed form these take, and the minimum standards of documentation required, it is likely that Forums and local Councils will need to ensure adequate publicity, consider representations and consult local people before making a proposal to the Planning authority.

8. These orders can, in effect, grant planning permission either for a specific development or a class of development, and if key conditions are satisfied, an independent examination of the proposals will be undertaken. Generally, this will be done by considering written representations, but on occasions there may be oral hearings. If the Examiner is satisfied, the proposal goes to a Local Referendum, though there is scope to make modifications to the proposal (e.g. to be consistent with other strategic policies in the local development plan). The result of the Referendum is binding. What differentiates ‘community right to build’ orders from others is that they must be initiated by ‘community organisations’.

Institute assessment

The Government hopes that, far from being a NIMBY’s charter, this will encourage local people to bring forward constructive proposals for their areas. Along with financial incentives, it sees this as a means to overcome drawbacks in the present planning system that prevents much sensible development.

We are less sure that this will happen on a widespread basis, but much depends upon the help that neighbourhoods receive to prepare high-quality plans. Vigorous opponents to specific developments may be better at raising the funds to employ planning specialists, so it is urgent that the Government finds a replacement to the Planning Aid model soon.

From a public engagement angle, this new tier of planning will bring approx 100,000 Councillors far closer to issues of controversy. Some will welcome this and grasp the opportunities to work with opinion-leaders in their communities. But others may feel less comfortable – and much may need to be done to encourage younger people to become local Councillors.

There are also knock-on effects for District, Unitary and County Councils, who have a patchy record of inter-working with Parishes/Town Councillors. In large cities and in London, the concept of ‘neighbourhood forums’ will trigger a further level of representative (or not!) dialogues with huge implications for public involvement.

For developers and planning professionals, these proposals mean an enormous change – and they will need to fight for their proposals and policies as never before. Indeed, they will have to convince the public! How exciting!

Other provisions of interest

The Localism Bill contains many other proposals that will be of some interest in the context of public engagement. They include:

• Introducing the General Power of competence for local authorities. This could be important in relation to the Right to Buy for community assets, and enables Councils to undertake commercial activities through a Company

• Abolition of the ‘pre-determination’ rules that prevent Councillors from speaking their minds or expressing views on behalf of constituents in certain planning matters. This will make dialogues and consultation more honest and transparent

• Abolition of the Standards Board regime and the encouragement of local, voluntary codes of conduct.

• Publication of Senior Officers’ Pay. Should aid transparency and the quality of some consultations

• Abolition of the Infrastructure Planning Commission – but continuation of many of its processes. National Policy Statements will now be subject to House of Commons approval

• Abolition of the Tenant Services Authority, and a requirement for local housing authorities to develop a tenancy strategy for its area. Private registered landlords must be consulted, but we think a whole range of changes to the management of social housing and homelessness will require significant local public involvement and consultation

• Streamlined consultation for the London Mayor. Current law requires the London Mayor to consult the London Assembly and functional bodies first; these proposals enables a wider public consultation without the preliminaries.

Conclusion

This Bill is a massive measure designed to change the mindset of local people and those who represent them. It poses formidable problems but offers great opportunities – if local government wishes to grasp them. The Institute has expertise in this field – as do its members and supporters and will work hard to help everyone understand the proposals and how to make them work.

 

This is the 26^th Briefing Paper; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement