The Localism Act 2011 opportunities for developers?

Date: 20/02/12

The government has been keen to promote the Localism Act 2011 (“the Act”) as the mechanism by which local authority powers will be devolved to local people. The desired effect being the ability of local people to influence and to some degree dictate, what type and how much development happens in their area.

However, we believe the Act also presents a real opportunity for proactive developers.

Pre-application consultation

Pre-application consultation has been a preference up to now – requested by the majority of local planning authorities (LPAs) and carried out by some applicants, but to varying degrees of success. The Act has introduced a legal requirement for applicants to conduct pre-application consultation.

Applicants will need to be more thorough when they carry out pre-application consultations in order to ensure compliance with the legal requirements of the Act, in particular showing how they have taken into account representations from local people when submitting the planning application. This is rather a double-edged sword but has the potential to avoid objections which can result in delays with the application process. Local people will be approached, before final applications and plans are submitted, to raise concerns and potential issues, which could influence the final form of application. The applicant will then have the opportunity to resolve any issues, or provide mitigation to make the scheme more acceptable to local people.

Practitioners speculate that this will apply to major applications only, however, until the statutory guidance is issued, it is not clear who will be required to carry out pre-application consultation.

Neighbourhood planning

We see this as an opportunity for developers to engage with neighbourhoods and provide development which local people can support.

Where Parish or Town Councils exist, they will ideally take the lead in neighbourhood planning. However, some Parish and Town Councils lack the resources or desire to lead neighbourhood planning and we think there is real incentive for developers to get involved early and take the lead. In so doing, developers could genuinely accommodate local peoples’ proposals in the basic ‘blueprint’ for development in the area. Also, where there is no Parish/Town Council it may be even more relevant for developers to get involved early so they can actively spearhead neighbourhood planning and effectively act on behalf of neighbourhood groups – joining with the community where they intend to develop.

The delegation of powers is not absolute, because the LPA will still need to approve various stages of the neighbourhood planning process. The LPA will be responsible for ensuring neighbourhoods do not overlap and that any neighbourhood development plan conforms with the LPA’s own development plan policies. However, the final decision on whether a neighbourhood development plan will be brought into force by the LPA will be made by referendum. The referendum will consist of local people who will be invited to vote and if a majority of those voting vote in favour of the plan then the LPA will bring it into force. Once in force the plan will form part of the development plan and in fact will take precedence if there is any conflict with the existing provisions of the development plan.

A neighbourhood forum need not only be local residents, it can consist of a group of business people e.g. the business occupiers within an industrial park may wish to join together (so long as there is a minimum of 21 individuals) to bring forward proposals for development within the industrial park and adjoining land, where appropriate. In such cases the LPA can designate a neighbourhood area as a ‘business area’.

Neighbourhood Development Order (“NDO”)

NDOs can be used by neighbourhood forums to grant permission for certain types of development within its area. They will remove the need to apply for permission to the LPA for development which is prescribed within the NDO.

NDO could be an advantage to developers who have got involved and taken the time to help create neighbourhoods and their forums. They will be able to apply for an NDO which could accommodate their plans for future development. It maybe that the main use of NDOs will be to permit renewable energy installation, in the same way as Councils are currently using local development orders to allow for renewable energy schemes within enterprise zones.

Community Right to Build Orders (“CRBO”)

Another type of NDO is CRBO. CBROs can be brought forward by “community organisations”, which have been defined as any corporate body “which is established for the express purpose of furthering the social, economic and environmental well-being of individuals living, or wanting to live, in a particular area”. The Government envisage these being used by communities to supplement the provisions in the development plan e.g. for affordable housing on a small rural site.

Removal of Predetermination

The ability for Councillors to actively engage with applicants will present an excellent opportunity for developers to canvas opinions and forge links with Councillors. Their views generally reflect those of their constituents and their opinion ought to be capable of influencing them, in return.

This could help applicants to carry out meaningful and productive pre-application consultation, using Councillors to broker conversations with the local residents and LPA. Early engagement could also reduce time taken at Committee, discussing applications, because they will be familiar with the case and its history and will, ideally, have already provided feedback to the applicant in order to deal with any potential concerns before the application was submitted.

Opportunity for developers

There is potentially large scope for developers to gain from the Act. Developers could engage early with local people and get involved in formulating Neighbourhood Forum and neighbourhood areas to formulate neighbourhood development plans which suit their plans for an area, but which can also provide the local people with facilities they want e.g. community centre. It is clear that developers will initially have to spend more money, but this may be a small price to pay to get development approved, possibly negating the need to go through the planning appeal process.

Therefore developers should consider responding proactively to the Act now, before it comes into full force during the early part of 2012. It is arguably a perfect time to help influence local people on what development can be brought to their area, taking into account the full range of economic and community interests that community-supported development can bring along with it.

If you would like to hear more on this subject, or you have any enquiries in relation to this or any other planning issue, please feel free to contact Jo Hannah, Head of Planning on jo.hannah@dwf.co.uk or Pamela Chesterman, Senior Solicitor on pamela.chesterman@dwf.co.uk.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

 
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