Localism in planning: myth or reality?

A High Court judge has considered the implications of the Localism Act on the role of the Secretary of State in planning decisions. Simon Goacher analyses the case and what it means for local authorities.

Many local authorities emboldened by the fanfare which surrounded the enactment of the Localism Act and the implementation of the National Planning Policy Framework (NPPF) told their residents that this would be the end of “top down” planning and decisions on development would be made locally.

Whether the reality lives up to the rhetoric has been considered by the High Court in the case of Tewkesbury Borough Council v (1) Secretary Of State For Communities & Local Government (2) Comparo Ltd (3) Welbeck Strategic Land LLP [2013].

As those who work in planning or have followed the BBC documentary, The Planners, will be aware the tensions between developers and local communities affected by development flare up on a regular basis. Local planning officers and councillors often find themselves caught in the middle. The current government aspiration to boost growth and housing development can seem at odds with the desire of local communities to preserve the countryside, particularly in rural areas where development proposals are put forward on green field sites.

Such an issue arose in the village of Bishop Cleve in Gloucestershire. Tewkesbury Borough Council (TBC) received two applications for a total of 1,000 homes. The Council failed to determine the applications within the required timescale. The applicants appealed and following an inquiry the Secretary of State granted permission. In the meantime TBC had resolved that it would have refused permission had it been able to do so. By the time the Secretary of State made his decision the Localism Act had become law and the National Planning Policy Framework (NPPF) had been introduced. TBC argued that this meant the Secretary of State could not ignore the views of the local authority which should be in the “driving seat” of spatial planning in its area.

The difficulty facing TBC will be familiar to many local authorities. The starting point for consideration of any decision on such applications is the development plan. In Tewkesbury’s case, the application and planning proposals conflicted with this. Crucially, Tewkesbury’s plan was out of date, and as a result, the Secretary of State was entitled to attach significantly less weight to its argument of conflict. This was compounded by the fact that TBC could not demonstrate a five year housing land supply. The NPPF states that where a local planning authority cannot demonstrate such a supply it should, “consider favourably applications for housing…”

The Council also sought to argue that the determination was premature given the emerging Joint Core Strategy (JCS) for the area. However, the court decided that the Secretary of State was entitled to attach little weight to the JCS given the early stage of its development. It was being developed jointly with Gloucester City Council and Cheltenham Borough Council but the preferred approach had not been agreed and consultation on it had not yet taken place.

So what does this mean for local decision making? Is the planning system really, as at least one councillor has said, “like the wild west” with developers able to ride rough shod over the views of local people and locally accountable, elected representatives? It seems that the publicity which surrounded the launch of the Localism Act and the NPPF overplayed the shift which was said to be being made from central to local decision making. Males J diplomatically declined to address whether he felt that was the case but he did say, “if it were, I do not suppose that it would be the first time that more has been claimed for legislative reform than has actually been delivered.”

The Localism Act did pave the way for the abolition of the regional tier of planning policy. The government has been unable to complete that process as quickly as it would have liked. The issue is mainly one of timing. TBC found itself in 2012 with a development plan which was based on housing requirements up to 2011. It had not put in place a plan under the regime set up by the Planning and Compulsory Purchase Act 2004. This meant that it could not avail itself of the transitional provision in the NPPF enabling authorities to give full weight to development plan policies adopted since 2004 even if there is a limited degree of conflict with the NPPF. At the time of the inquiry there was no firm timetable in place for the adoption of the JCS.

The case makes it clear that although the NPPF contains a general presumption in favour of development, and lack of a five year housing supply will be a strong material consideration weighing in favour of approval, these are not conclusive. They will be material factors which have to be weighed by the decision maker with all other relevant considerations. In that sense, nothing has changed.

Local authorities will remain vulnerable in seeking to refuse applications for such developments if they do not have an up to date local plan based on robust evidence, or at least one which has reached a sufficient degree of maturity so that it can be afforded a reasonable degree of weight. Authorities that are still developing their core strategies are likely to face some difficult decisions on the way. However, it is only by progressing those strategies that authorities will ensure that they regain control of the planning process in their areas. Maybe then localism in planning will become a reality.

Simon Goacher is head of local government at Weightmans.