Act local

The much heralded localism bill has, at long last, been published '“ all two volumes, 207 clauses and 24 schedules of it; to say nothing of the 103 pages of explanatory notes and 'an essential guide' also issued by the government.

Part 5 of the bill deals with planning matters and contains some 30 clauses. These must also be read in conjunction with five specific schedules. However, a greater understanding of the full nature and extent of some of the provisions will not be possible until various orders and regulations are made or existing ones amended.

Whatever happens during its progress through parliament, the bill will have a profound impact on the future workings of the planning regime. In the meantime, it is interesting not because of what is in it, but because of what has already fallen by the wayside '“ third-party rights of appeal against the grant of planning permission (the so-called NIMBY's charter); the curtailment of appellants' right to appeal against the refusal of planning permission; and payments to local objectors to remove opposition to development proposals, or paying for planning permission as it is more commonly known. The government has surprisingly seen, or been made to have seen, sense on all of these issues.

Transforming relationships

So, what do we have? The starting point is a piece of legislation specifically designed to help build the 'Big Society' by radically transforming the relationships between central government, local government, communities and individuals. The ideological concept of shifting power down to local people could turn out to be both positive and negative for the property and development industry.

There are a number of potentially major implications which could give rise to significant litigation should the bill make the statute book in its current form.

The requirement for pre-application consultation for significant developments, for example, could have far-reaching consequences in practice. Developers may have to collaborate with others on the design of a proposed development to show that their views have been taken into account. This could potentially go far beyond mere consultation. Clearly a scheme which has significant local support should at least in theory secure planning approval. Alternatively, if developers do not consult properly they will put planning permissions in jeopardy and risk judicial challenge.

Additionally, a referendum on local issues can be called by at least five per cent of the local electorate, and the local authority must consider what its response is to be. This is potentially open to objectors to delay and defeat particularly contentious planning issues.

Community right to buy creates, in the absence of definition, a contentious constraint; for example, in relation to land owned by the private sector. Is this really what the government envisages '“ a form of community compulsory purchase regime? How does the government expect private landowners to react? More importantly, how does the government expect this to be paid for?

Costly conflicts

As originally suggested, the new 'community right to build' was to be restricted to rural areas only to address the real and acknowledged concerns of the lack of rural affordable housing. This has been extended to all communities across the country.

The level of support required for a project to get off the ground has been dramatically reduced from the already revised 75 per cent of voters down to only more than 50 per cent of voters in a referendum. This is almost certainly going to prove a divisive proposal with the potential for bitter and costly conflict up and down the country.

Regional planning policy is to be swept away and we are to see new style 'neighbourhood plans'. Neighbourhood development orders can be sought if local communities, in the form of parish councils or alternatively designated neighbourhood forums comprising at least three local residents, request them. These will have the effect of granting planning permission for a development or type of development in their neighbourhood.

It is interesting to note from the schedules that neighbourhood planning requires compliance with a convoluted process including examination by the secretary of state before it is made. That being the case, one must ask why will forming a community group and requesting the local council to initiate the NDO process be considered more streamlined than simply applying for planning permission in the usual way? The same question seems to arise when considering the new community right to build.

Trouble ahead

The bill as published still raises considerable uncertainties and clearly lacks detail. Developers, local authorities and the public will have to muddle through and work out on a piecemeal basis how the new system is intended to operate and affects their interests. This will no doubt give rise to interesting discussions, ingenious solutions and all-too familiar conflicts.

The true test of the success of the new proposals will of course be whether the bill delivers the much-needed development in the right locations. Only the passage of time will provide the answer but by then it may be too late. Ken Clarke's recent acknowledgement of failures in the early part of an incoming administration should provide a salutary lesson for coalition ministers.