New Bill Dumps Localism 07Feb2013

Localism – the story so far

The coalition Government’s localism agenda - an effort to redistribute power ‘from Whitehall back to the town halls’ - was met by many developers of waste infrastructure with a degree of scepticism. The Government’s first efforts were led by the Localism Act 2011 and the flagship National Planning Policy Framework. Both were greeted with cautious optimism from either side of the development divide. However, nearly a year on, the jury’s still out on whether replacing an array of policy and guidance with a single slim 65-page volume will improve the planning process in practice.

While the coalition Government’s localism agenda is suitable in most cases, it poses challenges for a minority of more contentious applications. There’s tension between the need to support and co-ordinate nationally important waste infrastructure projects – which are often unpopular in communities - and the aspiration to make decisions locally. This can put locally elected councillors in a difficult position. If they choose to approve the waste infrastructure proposals needed to support local businesses and communities, they risk electoral unpopularity. Irrespective of the councillor’s inclinations, the developer might find that their carefully crafted proposal - even after fully engaging with the community - quickly becomes caught up in local politics.

A Retreat from Localism

Against this background, the Government have brought in The Growth and Infrastructure Bill 2013. As I write this, the Bill is being scrutinised in The House of Lords and we expect it to come into force in October 2013. The Bill is a mixed bag of amendments intended introduced by Baroness Hanham as a ‘deregulatory measure’. Many of the amendments signal a significant departure from localism.

One of the most significant departures is the so-called ‘planning guarantee’. Underperforming Local Planning Authorities (‘LPAs’) - those with a poor record in deciding applications within the statutory timeframe, or which have a high proportion of decisions overturned on appeal - will be effectively blacklisted. Once designated, a developer will be able to sidestep these LPAs and have the option of applying for planning permission directly to the Secretary of State. The Government have stated that the power to designate will be used ‘sparingly’ and the consultation on criteria for being included on the ‘blacklist’ closed on 17 January 2013.

Operators of existing Energy from Waste facilities consented under the Electricity Act 1989 will welcome the Bill’s proposal to allow applications to vary their consents. They can apply directly to the Secretary of State who may also grant planning permission and deem that any conditions previously discharged on the ‘old’ planning permission are deemed discharged on the ‘new’ varied planning permission. This means developers can avoid resubmitting schemes previously agreed with the LPA.

Both of these changes mean developers can take their proposals directly to the Secretary of State who is likely to have a broader ‘UK Plc’ perspective on the merits of a waste infrastructure proposal than colleagues in the town hall.

Good news for developers?

This might sound good but a direct application has its own risks. Firstly, local politics will remain a factor because it’s likely that the LPA will still have a prominent, if not determinative, role in the process. Secondly, it’s likely that the direct application process might be more expensive than the traditional route. And thirdly, if the Secretary of State turns down the application, there’s no further right to appeal.

While most of the important detail of The Growth and Infrastructure Bill 2013 will follow in secondary legislation, overall the Bill acknowledges that localism is not always the best way to secure the development we need in the UK. Despite successive government’s efforts planning remains a complex area. If you are applying planning permission for waste infrastructure, whether applying locally or directly, you should first seek expert advice. 

Jonathan Leary

Specialist solicitor with Zyda Law.