Localism or Nimbyism?
The Coalition Government’s localism agenda is being pushed through under the guise of the Localism Bill. If enacted the Bill will have fundamental implications for local democracy in England.
Virtually everyone agrees with local democracy but, when it comes to issues affecting Gypsies and Travellers, the fear amongst activists is that localism is in danger of being ambushed by nimbyism.
Local referendam
Chapter 1 of Part 4 of the Bill gives people, councillors and councils the power to instigate a local referendum on any local issue. Although these referendums will be non-binding, local authorities and other public authorities will be required to take the outcomes into account in decision making.
Clause 39 of the Bill provides that a principal local authority must hold a local referendum (LR) if it receives a valid petition from local people, or a request from one or more members of the authority, or if that local authority passes a resolution.
Clause 41 provides that the threshold for a valid petition is 5% of local electors for the area. However, under clause 40 a local authority may hold a LR even if the threshold is not met.
Clause 43 provides that, where a local authority receives a petition or a request to hold a LR, the local authority must determine whether it is appropriate to hold one or not. This clause may be crucial when it comes to issues affecting Gypsies and Travellers.
Under clause 44 one of the grounds for determining that it is not appropriate to hold a LR is “that the authority thinks that action taken to promote or oppose the referendum is likely to lead to contravention of an enactment or a rule of law.” Very important enactments in this regard may be the Race Relations Act 1976 and, in due course, the Equality Act 2010.
Following the carrying out of the LR, clause 52 states that the local authority must consider the steps it proposes to take and publish its decision and reasons.
The concern amongst Gypsy and Traveller activists is that the LR will be used as a vehicle for some of the virulent anti-Gypsy/Traveller sentiment that is all too commonly seen around England whenever a new Gypsy/Traveller site is proposed or in response to an unauthorised encampment or development.
For these reasons activists are very concerned at the prospect of LRs. Many believe, in any event, that they will amount to a waste of money and resources. There are already a vast array of methods by which members of the public can put across their views to either local or central government, e.g. via campaigning groups, via your local councillor or MP, by putting in submissions about planning applications and so on. The best method of all is by voting in local elections, of course, a right that is all too often not used.
Regional Strategies
Regional Strategies (RSs) contain within them targets for the provision of Gypsy and Traveller pitches within each local authority area. RSs are at the centre of the Office of the Deputy Prime Minister (ODPM) Circular 01/2006 (hereafter Circular 01/2006), Planning for Gypsy and Traveller Caravan Sites (which the Coalition Government state they intend to replace with ‘light touch guidance’). The data currently available shows that Circular 01/2006 has resulted in a slow but sure improvement in the granting of planning permission for Gypsy and Traveller sites and in the provision of new local authority pitches. Whatever the advantages or benefits of localism in general, over 50 years of experience (dating from the Caravan Sites and Control of Development Act 1960) has shown that, if local authorities are left to their own devices, sites will not be built and permission will not be granted. Some form of central control is vital in trying to ensure the provision of an adequate number of sites in suitable locations. Indeed most of the 350 odd local authority sites in England that are currently in place would not have been provided but for the existence of the duty on local authorities to facilitate the provision of sites in the Caravan Sites Act 1968 (a duty which was brought into force in 1970 and eventually repealed by the Criminal Justice and Public Order Act 1994).
Clause 89 provides for the abolition of the regional planning tier and the removal of RSs – see our blog ‘A Right Pickle’ for the successful (first) challenge by Cala Homes (a large housebuilder) to Mr Pickles’ purported early revocation of RSs. Clause 90 (by introducing new section 33A(1) and (3) into the Planning and Compulsory Act (P&CPA) 2004) imposes a duty on local planning authorities (LPAs) and certain other bodies to co-operate in, amongst other things, maximising the effectiveness with which the preparation of development plan documents is undertaken.
The duty on local authorities to assess the need for Gypsy and Traveller sites contained in Housing Act 2004 section 225 remains in place and the Gypsy and Traveller Accommodation Needs Assessments which arise from this duty will become of fundamental importance if RSs are abolished.
Neighbourhoods
Chapter 3 of Part 5 of the Bill allows for the creation of ‘Neighbourhood Areas’ and for the making of ‘Neighbourhood Development Orders’ (NDOs) by either parish councils or the new ‘Neighbourhood Forums’ (NFs). NFs can be set up in areas where there is no parish council (proposed new section 61F to Town and Country Planning Act (T&CPA) 1990 inserted by Part 1 of Schedule 9 of the Bill). An NDO is an order which grants planning permission in a particular neighbourhood area (proposed new section 61E to T&CPA 1990 inserted by Part 2 of Schedule 9 of the Bill).
Proposed new section 61I sets out a number of descriptions of development which NDOs or ‘Neighbourhood Development Plans’ (NDPs) cannot relate to. These descriptions do not seem at this stage to preclude the possibility that NDOs and/or NDPs may relate to Gypsy/Traveller sites. We refer to what we say above about the virulent anti-Gypsy/Traveller sentiment that can often be met with at local level. For this reason it is vital that Gypsy/Traveller sites are specifically included within the list in proposed section 61I.
It is difficult enough as it is (though the position has improved significantly since the introduction of Circular 01/2006) for Gypsies and Travellers to get planning permission for a site from the LPA. If such matters are to be significantly influenced by parish councils or NFs it may become virtually impossible or it might result in a vast increase in appeals to Planning Inspectors.
Part 2 of Schedule 9 of the Bill proposes to amend the P&CPA 2004 to empower parish councils or NFs to propose NDPs. NDPs, once they are made, will become part of the development plan for an area. An LPA would then only be able to override the provisions in an NDP if material considerations supported such a conclusion.
Proposed new section 38A of the P&CPA 2004 requires LPAs to make a NDP if a LR has been held and over half of those voting are in favour of the proposed plan. It should be pointed out that NDOs and NDPs are subject to a process of submission, independent examination and local referendum before they can take effect (proposed new Schedule 4B to the T&CPA 1990 inserted by Schedule 10 of the Bill).
At this stage it should also be pointed out that, ironically (since the Coalition Government opposed regional planning bodies mainly because they were unelected), NFs will not be elected.
Rowan Moore, the Observer’s architecture correspondent, has written[1] :
If some people in a village stand to make hundreds of thousands of pounds from a planning consent, and others do not, and the conflict can only be arbitrated amongst its few hundred inhabitants, the tendency for partisanship and strife will be great. Whether anyone resorts to prussic acid in the Earl Grey remains to be seen.
Retrospective Planning Applications
Chapter 5 of Part 5 of the Bill allows local authorities in England to decline to determine retrospective planning applications where enforcement action is being taken. Clause 103(2) proposes to insert new section 70C into the T&CPA 1990 providing that a LPA may decline to determine a retrospective planning application if an enforcement notice has been issued in relation to any part of the development. Clause 103(4) proposes to amend section 174 of the T&CPA 1990 to provide that, if a retrospective planning application has been made, but an enforcement notice has been issued before the time for making a decision has expired (usually 8 weeks), the developer cannot then appeal against the enforcement notice on the ground in T&CPA 1990 s174(2)(a) (what is commonly known as ‘ground (a)’ – i.e. by arguing that planning permission ought to be granted). In other words, the proposal is that, where no enforcement notice has been issued at the date of making the retrospective planning application, the LPA has 8 weeks within which to issue an enforcement notice and thus block a ground (a) appeal. However, there appears to be a great deal of confusion in the wording of this proposed clause and it would seem to have potentially draconian effects on Gypsies and Travellers. It is likely that amendments will be proposed by Gypsy and Traveller campaigners.
Time to bring back the duty to provide sites
The simple fact is that many Gypsies and Travellers, have had no option but to develop their own land without first applying for planning application because of the persistent failure by local authorities over many years to ensure an adequate provision of sites or to comply with the requirements in government circulars that they assist Gypsies and Travellers in identifying or developing their own sites. We fear that the proposed legislation in the Localism Bill will only make the provision of sites for Gypsies and Travellers even more difficult to achieve.
It follows that, if the Coalition Government are really committed to the provision of sufficient sites for Gypsies and Travellers, then it must take a bold but obvious step and reimpose the duty on local authorities to facilitate the provision of sites. The reinstatement of such a duty would be a classic example of true localism.
Chris Johnson, Travellers Advice Team (TAT) at Community Law Partnership (CLP)
Marc Willers, Garden Court Chambers
March 2011
TAT has a Community Legal Advice funded Gypsy and Traveller Telephone Helpline available on 0845 120 2980 and open Monday to Friday 9am to 5pm. We are also very happy to have informal chats with people who can also phone the CLP switchboard on 0121 685 8595.
Garden Court Chambers has a specialist Gypsy and Traveller Team.
[1] Localism Bill: Letting parishes decide housing priorities will lead to trouble, Observer 19 December 2010.