|©Parliamentary copyright||Prepared 18th February 2011|
Memorandum submitted by The London Borough of Hammersmith & Fulham, The Royal Borough of Kensington & Chelsea, Wandsworth Borough Council and Westminster City Council (L 113)
The Localism Bill, introduced to Parliament on 13 December outlined a wide range of changes to the way local authorities will work and function.
The majority of the changes proposed in the Bill are warmly welcomed by our authorities, particularly the:
· greater freedoms to operate for local authorities which will be embedded by the General Power of Competence,
· housing reforms with the ability to discharge a homelessness duty to the private sector supported by additional flexibility for local authorities around housing tenure and determining who should qualify for social housing,
· Additional planning enforcement powers
· Provision for local authorities to offer local discounts on business rates which we consider to be a step in the right direction, introducing flexibility for local authorities to support the regeneration of identified areas.
Rather than covering every reform outlined in the Bill, Section 1 of this submission identifies issues which we believe need to be clarified and proposed amendments, whilst Section 2 identifies further opportunities and additional clauses for consideration by the committee. Appendix A also details the regulatory burdens under which local authorities would continue to operate.
Part 1 of the Bill – Local Government
General Power of Authorities (Clauses 1 to 7)
1.1 The four boroughs consider that the General Power of Competence is broadly welcomed and a logical development of the earlier Wellbeing Power. The limits of operating within an ultra vires framework were highlighted by the case of the London Authorities Mutual Limited (LAML) which, though supported by the government, was deemed to fall outside the scope of the wellbeing power and therefore illegal. The General Power of Competence seeks to overcome this power by allowing councils to do anything generally permitted to an individual. However, the power outlined in the Bill continues to include an apparent ‘safeguard’ that the Secretary of State can limit the use of the power at any time - which is contrary to the spirit of the Bill. We therefore consider that with the power being subject to existing law, real changes are only likely to come about as a result of successful application to the Secretary of State on specific topics. It also fails to fully reflect pre-election documents and statements that no action except raising taxes will be beyond the powers of local government in England.
1.2 For ease of reference and to demonstrate the limitations on benefits expected from the General Power, the table below sets out for consideration by the committee some areas in which the general power of competence could and should be clarified or enhanced:
Part 2 of the Bill
2.1 We strongly oppose the clause (30) permitting the government to pass EU fines onto local authorities. We believe that this clause should be removed altogether, particularly as these would arise from failing to meet nationally imposed targets, made between national governments in the European Union. Furthermore, it is often very difficult to assess or prove which authority (national, regional or local) may have been responsible for breaches around issues such as air quality or waste.
2.2 Under the existing terms of the Bill, Local authorities would have no way of budgeting for any such fine and no right of appeal. Any penalty or failure to meet national targets should therefore be borne at a national level.
Part 3 of the Bill
Non Domestic Rates
3.1 We welcome Part 3 of the Bill giving authorities the power to set local discounts on non-domestic rates. The reductions however will be expected to be funded locally.
3.2 Given the current financial climate, funding any such discount would be extremely unlikely for billing authorities. As a result, in the short to mid-term, we consider that this provision will have minimal impact on the council or local businesses.
3.3 We would therefore welcome the Bill being amended to allow local authorities to retain sufficient revenue raised through business rates, reflecting the cost of the services the local authority provides to businesses, in the process contributing to the regeneration of areas and supporting sectors that are important to communities.
Part 4 of the Bill
Local Referendums (Clauses 39 to 55)
4.1 These clauses introduce a new duty to hold local referendums where i) a valid petition requesting a referendum is received; ii) on request from one of more members of the authority; or iii) where the authority resolves to hold one.
4.2 Referendums feature in three places in the Bill – on general issues, council tax levels and in neighbourhood planning.
4.3 In relation to neighbourhood planning, we submit that a referendum on a neighbourhood plan may prove to be an unsatisfactory means of engagement – referenda are of value for single simple questions. Neighbourhood plans will contain a range of measures and consideration should therefore be given to supporting more effective and comprehensive means of engagement.
4.4 The holding of referendums is likely to be costly for local authorities, particularly with the threshold outlined in the Bill being as little as 5% of a ward’s population needing to have signed a petition in order to trigger a referendum on an issue. For example, the threshold in Stanley ward in RBK&C would be only 2 56 persons and the threshold in Hammersmith’s College Park and Old Oak ward would be only 273 . The residents of a single block or street could by themselves trigger a referendum on a relevant issue. Similarly, no minimum threshold is required of turnout of registered voters in order for the vote to be declared valid. It is entirely possible that with such low thresholds an authority could be required to undertake several dozen referendums each year on issues of purely local significance.
4.5 We request that the clauses concerning referendums are amended to increase the threshold of electorate required to have signed a petition in order to trigger a referendum.
4.6 We also submit that the relevant clauses in the Bill should be amended, establishing a minimum threshold of registered voters in an area having voted in order for the referendum result to be declared valid.
4.7 As with a number of other clauses in the Bill, a range of provisions still exist allowing a Minister to use regulations to create new laws which have the same force as acts of Parliament without having undergone the same rigorous scrutiny process.
4.8 In particular, we would wish for the Bill to be amended, removing the Secretary of State’s discretion over the setting of council tax levels given local concerns should be addressed by a referendum if a local authority sought to set significant increases in Council Tax levels.
Community Right to Challenge & Assets of Community Value (Clauses 66 to 76)
5.1 The principle of greater empowerment for our communities is welcomed whilst we note that the definition of what constitutes assets of community value will be set out in regulations. It will be important for that definition to have potential for local variation, as different communities will value different assets.
5.2 The creation of the list of assets of community value places a new regulatory burden on local authorities. The government will understand the need to keep the bureaucratic costs of this provision to an absolute minimum.
5.3 The provision of compensation in relation to land or buildings being included on the list could also – depending on the wording of the regulations – result in a very cautious interpretation of assets to be included on the list, which would be counter to the spirit of the bill.
5.4 At present the provisions could make the disposal of assets by local authorities bureaucratic and time consuming, preventing local authorities from rationalising or deriving much needed income from the disposal of landholdings in a timely manner during a period of financial restraint.
5.5 Similarly, further information is required around how the community Right to Challenge would operate, particularly how local authorities can ensure existing contractual obligations are honoured. The Bill must also ensure that the Right to Challenge does not impede Councils’ drive to procure more effectively and share services in order to deliver efficiency savings.
5.7 We also believe the committee should consider amending the Bill, extending the Right to Challenge to local authorities, permitting them to challenge central government and / or quangos in order to take over the running of services that are currently delivered at a national level.
5.8 This would have the advantage of allowing local authorities to join up services, target specific problems and bring services together, thereby reducing overlap and bureaucracy. An example of where such joined up working has been successful is the innovative approach taken to the Family Recovery Programme in Westminster, which has brought together a range of services, intensively targeted at families with complex needs, resulting in significant social and economic benefits to the households.
Part 5 of the Bill – Planning
Local Development Scheme (Clause 91)
6.1 The Localism Bill modifies the provisions regarding Local Development Schemes. However, it would potentially increase the burden on local authorities by requiring information on document preparation to be ‘up-to-date’, rather than published on a periodic basis.
Local Development Monitoring (Clause 93)
7.1 The Localism Bill removes the requirement on local authorities to submit an annual planning monitoring report to the Secretary of State or the Mayor of London. Ending this annual requirement is a change welcomed by the authorities’ as part of the removal of bureaucratic burdens.
7.2 However, at this stage the Bill does not remove the requirement for local authorities to produce a monitoring report for public consumption with the Secretary of State having powers to make regulations around the timing, content and form or reports and that the interval between subsequent reports should still be no longer than 12 months.
7.3 We therefore submit that the Localism Bill be amended to repeal the requirement set out in the 2004 Planning and Compulsory Purchase Act, on local authorities to produce a local development monitoring report for public consumption.
Community Infrastructure Levy (Clauses 94 to 95)
8.1 With the Bill establishing provisions relating to passing Community Infrastructure Levy (CIL) to other bodies, meeting the commitment of the government that a ‘meaningful proportion’ of the CIL revenue raised in each neighbourhood should be allocated back to the neighbourhood to spend on the infrastructure that local people think is most necessary, further clarification is needed around what would constitute a ‘meaningful proportion’ and how this would be allocated to the community.
8.2 It is also understood that this requirement is unlikely to be extended to the Mayoral CIL, which would appears to place an additional separate management and financial burden solely upon local authorities.
Neighbourhood Planning (Clauses 96 to 101)
9.1 The Bill legislates for communities to be able to shape the development of their neighbourhoods through the process of ‘Neighbourhood Planning’, particularly the introduction of Neighbourhood Development Plans, Neighbourhood Development Orders (NDOs) and Community Right to Build Orders (CRBOs).
9.2 However, it is unclear on what grounds a local authority can refuse to designate a neighbourhood forum or what they would be expected to do if they had more than one valid application for a forum covering the same area.9.3 Similarly, there is a lack of clarity around how Neighbourhood Plans and Development Orders would operate, in particular:
· Neighbourhood Plans must be in general conformity with ‘strategic policy’. It is understood that the definition of what constitutes ‘strategic policy’ will be contained in the National Planning Policy Framework. We strongly suggest that this definition should be those policies contained in the Core Strategy of the Local Development Framework. This would strike the right balance between providing certainty to developers about the nature of developments sought in the area, and the ability of the community to ‘tailor make’ policies to suit their particular circumstances. A more narrow definition will not aid the development industry, and could lead to significant confusion.
· In the event of there being a conflict between a policy in the Local Development Framework and a policy in the Neighbourhood Plan, it is not clear which would take precedence. The Planning and Compulsory Purchase Act 2004 establishes that in the event of two development plan documents conflicting, the most recent will take precedence. However, neighbourhood plans are not development plan documents, and more importantly do not form part of the Local Development Framework, as the new clauses are to be inserted into the Town and Country Planning Act 1990, not the Planning and Compulsory Purchase Act 2004.
9.4 The process for the preparation of Neighbourhood Plans is likely to be arduous – including proposals for an examination and a referendum. Both of these costs – certainly in terms of officer time to advise on the correct procedures, and possibly also financially - will fall on the local authority.
9.5 This is likely to present a significant barrier to neighbourhood plans being developed. In addition, the local authority will have to source and recruit suitable people to examine the plans, and there will also become an expectation that suitable training is offered. At present there is a risk that where local authorities are not able to absorb these costs, less affluent communities will be disadvantaged. Funding may be obtained by neighbourhood fora from development interests, but issues then arise regarding the independence of any resulting plan.
9.6 Consideration could therefore be given to streamlining the process for the production of Neighbourhood Plans if Neighbourhood Plans were included in the Local Development Framework, as provisions under the Planning and Compulsory Purchase Act (PCPA) 2004, rather than the Town and Country Planning Act (TCPA) 1990.
9.7 This change would see neighbourhood plans being defined as Local Development Documents (LDD) – which would be subject to examination by the Planning Inspectorate if they allocate land for a particular purpose, or Supplementary Planning Documents (SPD) where no examination is required if they do not. This would ensure both LDDs and SPDs conform with existing strategic policies. The option would still remain for a neighbourhood forum to produce its own LDD relevant to the particular area. This would also ensure it receives a detailed examination which, if it were found to be sound, would give it status and precedence for the area. This is suggested as an alternative to establish plans within existing frameworks and remove the requirement to hold a simple referendum on what may ultimately be a range of complex policies and measures.
9.8 We are also extremely concerned that under the terms of the Bill Neighbourhood Development Orders and Community Right to Build Orders are not required to adhere to existing conservation area or historic buildings legislation, although local authority development must continue to abide by these. Valuable trees, currently protected by conservation area status, could also be lost.
9.9 With a number of designated conservation areas and a World Heritage Site located across the four boroughs, this could have a detrimental effect on the management and conservation of historic urban environments.
9.10 We therefore submit that the Bill should be amended so NDOs and CRBOs are required to adhere to existing conservation area and historic buildings legislation.
9.11 Finally, consideration needs to be given to the fact that NDOs and CRBOs would, as drafted in the Bill, enable community groups to secure development without the requirement for Section 106 contributions or Community Infrastructure Levy. Developers may therefore seek to approach community groups to obtain NDOs or CRBOs and by-pass this requirement, reducing infrastructure funds, affordable housing and other important off-sets.
Planning Enforcement (Clauses 103 to 106)
10.1 The additional powers around planning enforcement including allowing authorities to decline to determine retrospective planning applications for locations where enforcement action is being taken are welcome.
10.2 However given the value of land in central London and potential benefits from breaching advertising legislation and condition notices, we would submit that the revised level 4 maximum penalty of £2,500 is an insufficient deterrent.
10.3 We therefore recommend that the Bill is amended so that the penalty for breaching condition notices and advertising is established by the magistrate, reflecting the circumstances of the individual case and taking into account the land value.
10.4 We also recommend that the proposals for three year immunity from enforcement for unauthorised advertisements is removed from the Bill as this proposes an additional constraint on enforcement of unauthorised advertising.
11.1 With the Localism Bill outlining how local amenity groups can establish Parish Councils, clarification is sought around how Parish Council would expect to be funded and operate in a complex urban environment, such as those experienced in our four boroughs.
11.2 With Parish Councils having tax raising powers and the ability to take over the running of various revenue-raising activities, these would be expected to have a significant impact on the ability of the larger local authority to provide existing services. Similarly, there would be an additional cost burden to the taxpayer which would include the running of elections, the establishment of Parish Council offices and confusion arising from three tiers of government operating in parts of the capital.
Part 6 of the Bill
Housing (Clauses 121 to 156)
12.1 We broadly welcome the measures to reform the social housing system, giving local authorities greater powers to determine who should qualify for housing, reforming tenure, abolishing the Housing Revenue Account and discharging a homelessness duty to the private rented sector.
12.2 The reforms do not however empower local authorities to freely set rents without incurring financial penalties. This limits the ability of authorities to incentivise downsizing, in the process tackling underoccupancy and overcrowding, as well as running contrary to the spirit of localism.
12.3 We also consider that it would be consistent for the Government to introduce a single fixed term assured shorthold tenancy for all sectors. For example, a n initial 12 month term would align with the minimum term that is proposed where a Council discharges a homelessness duty into the private rented sector.
12 .4 Tenancy reviews at the end of a fixed term should also allow for rent reviews and rent increases relative to the tenant’s ability to pay. We would also support arrangements where specific terms can be set as a condition of occupation. This could be for instance providing accommodation for young people on condition that they agree to engage with training and employment services or help reduce anti-social behaviour .
12 .5 We therefore submit that the Bill should be amended to permit local authorities greater powers to set rents for social housing properties (with suitable safeguard requiring consultation with residents) and establish specific terms of occupation.
12 .6 Under the terms of the Bill, we also consider that further potential exists to simplify arrangements to tackle homelessness. We should be seeking to tackle homelessness at the earliest opportunity. It is our view that a c ouncil should be able to discharge a rehousing duty when suitable accommodation is identified for a priority need household where there is a clear threat of homelessness rather than where that household is found to be homeless - i.e. before and without the acceptance of the s193 (2) duty.
12 .7 Consideration should also be given to introducing a new power of review of household circumstan ces to applicants accommodated in temporary accommodat ion where the local authority is about to discharge its rehousing duty by making an offer of accommodation. Households could, for example, be accommodat ed in temporary accommodation for up to two years during which time there could be a significant change in their circumstances with limited ability on the part of the authority to consider these changes prior to making an offer of accommodation.
12.8 Borrowing by local authorities is governed by the prudential code of borrowing. Permitting the Secretary of State to cap borrowing by local authorities for investment in such assets as their housing stock – as has been outlined in the recent announcement concerning the abolition of the Housing Revenue Account, runs contrary to the prudential code and is likely to limit the ability of authorities to deliver additional housing and regeneration programmes.
12.9 We would welcome an amendment repealing the restrictions on local authority powers to ring-fence borrowing against designated revenue streams, as established under Section 13 of the Local Government Act 2003, particularly given the potential to undertake additional borrowing for investment in housing which is currently under-utilised and would continue to be so under the terms of the recently-announced Self-Financing Settlement.
Part 7 of the Bill – London
Mayoral Development Corporations (Clauses 167 to 193)
13.1 We have significant concerns about the additional powers proposed in the Bill for the Mayor to create Mayoral Development Corporations. Whilst the Mayor’s office have indicated that they have no plans at present to create any MDCs beyond an Olympic Park MDC, the provisions of the bill are counter-intuitive to the principle of localism and could potentially impact upon authorities’ plans for the renewal and regeneration of neighbourhoods.
13.2 We therefore submit that the clauses relating to Mayoral Development Corporations be amended so as to identify areas where MDCs could be created and permit local authorities a greater role in the designation and operation of MDCs by guaranteeing they have to agree with its creation, and that they have a right to representation in the membership of MDCs.
17.1 Whilst the majority of the reforms outlined in the Bill are welcomed, we
consider that the potential exists to extend the radical nature of the Bill, genuinely empowering local authorities to effectively manage their areas, breaking free of existing burdens and enhance the localist agenda.
17.2 We therefore wish to propose a number of additional clauses to be included in the final Bill which will make a substantial difference to the role of local authorities.
Cost Recovery for Local Authorities
18.1 With local authorities currently planning for significant reductions in grant funding over the period of the Spending Review, substantial opportunities exist to permit local authorities full cost recovery on a range of the services it provides.
18.2 For example, existing planning and licensing regulations mean that both of these services are subsidised in complex built environments, such as within central London.
18.3 Additional clauses should therefore be included within the bill permitting local authorities full cost recovery on these and other services, in accordance with the principles of freeing up local authorities to plan their budgets and maintain the quality of service expected by applicants
18.4 In cases of planning applications of very large developments, or developments of a particularly complex nature where specialist advice is required, the authority should be able to require a fee based on the value of the contract, to be paid as a bond. Any funds unspent at the end of the assessment process could then be refunded. This system is already in operation in Australia.
19.1 Appendix A sets out key data returns which local authorities are formally expected to make to different government departments. This currently amounts to 156 returns, 19 of which are new, supported by 466 specific indicators. At the moment this list does not include measures or returns required by governmental sub-contractors, third party agents, quangos or voluntary sector providers, nor does it feature all of the data that may be required to support the various governmental business plans.
19.2 Local authorities will also have to take into account the data requirements needed to support new performance frameworks in Adult Social Care and Health as well as contributing to the regional performance framework that is being developed by London Local Authorities through London Councils.
19.3 The gestures made so far to reduce the burden of regulation, such as the abolition of the Comprehensive Area Assessment, have in reality only freed a small amount of resource as the majority of the regulation imposed on our operations remains in place. 56 returns (35 NIs and an additional 21 collections) have been deleted from the list of requirements – including withdrawal of the requirement to conduct a Place survey.
19.4 Greater consideration should therefore be given to reducing these burdens via the Localism Bill and we ask that the committee consider a significant reduction in these requirements through the insertion of relevant additional clauses.
19.5 We would also recommend that, under the terms of the Bill, the Department for Communities and Local Government is established as operating a gate-keeping role on behalf of all government departments and agencies to ensure that there is a live business need for current data from local authorities and duplicate requests are eliminated.
19.6 Finally, we believe that where data collection is considered essential for central government, the local authority or third party is paid for collection, thereby reducing the cost of regulatory burdens on local authorities.
20.1 There are a number of regulatory burdens imposed on local authorities by the Town and Country Planning Act, which could be addressed by additional clauses in the Localism Bill amending sections in the Town and Country Planning Act and related regulations.
SI 653 The Town and Country Planning (Use Classes) (Amendment) Order 2010 and the Town & Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2010 (2010 No. 2134)
21.1 This regulation requires planning permission for properties occupied by three or more people not all related. This is largely unenforceable and will be ignored in most places. Overall it tends to discourage landlords from providing low cost affordable housing accommodation and we recommend that the Bill should scrape the requirement for planning permission by this Order.
Submissions accompanying planning applications
22.1 A considerable quantity of information is required as part of the previous Government’s validation checklist. Some improvement resulted from new guidance introduced in March 2010, but at the same time this reduced the flexibility to correct any problem of missing information after registration. There must be scope to reduce this burden further, without prejudicing the processing of the application. Additional burdens are also being created, especially for smaller scale applications, by the growing nature conservation requirements relating to protected species.
22.2 A new clause under Part 5 of the Bill could reduce further the extent of information required to accompany planning applications as appropriate to the scale and nature of the application, to be set by the Local Planning Authority.
Land Disposal Consents
23.1 In view of the current emphasis on property disposals, the whole area of Secretary of State (and in some cases Charity Commission) consent to dispose and the complexities of the various general consents for particular types of disposal are ripe for review, with a view to streamlining the disposal consent regime as much as possible and letting councils take responsibility for what they want to keep or dispose of and the price at which they do so (subject only to their general fiduciary duties).
23.2 We therefore propose that new clauses be inserted under Part 5 of the Bill to completely remove the need for various general consents.
Local newspaper advertising
25.1 Some dozens of statutes require the publication of notices, each contains its own clause and not all provisions are the same. London Borough of Camden when granted an exemption on this duty saw an 80% reduction in advertising and publication costs from £30,000 to £5,700 through using other means to advertise planning applications.
25.2 A new clause under Part 5 of the Bill should remove the requirements to advertise in newspapers and require or allow publication on council websites.
Provisions to have a Committee Making Structure
26.1 We submit that the Bill should seek to include an additional clause removing any residual Overview and Scrutiny requirements. Existing requirements to have, for example, separate Overview & Scrutiny Committees exercising health and crime and disorder functions are bureaucratic and unnecessary, particularly if these functions could be included within the terms of reference of a single relevant committee.
|©Parliamentary copyright||Prepared 18th February 2011|