At a time when many lawyers are grappling with the implications of the new Bribery Act, the Localism Bill’s passage through parliament has received relatively little attention. This despite the array of legislative changes that are contained within its three slim volumes.

Due to come into effect early next year, the bill is a centrepiece of coalition law-making. For some people, it is a coherently envisaged, radical agenda for change that will empower citizens and usher in a renaissance in English local governance. For others, it is a sprawling, ill-conceived, inadequately thought-through bill that will dump extra burdens on to the shoulders of already over-stretched local authorities.

Certainly, the Localism Bill has broad ambitions. It proposes key changes to local government, to communities and to the planning system. It explicitly sets out to transfer power away from government and down to community level and, in many ways, it provides the legislative ballast for the conceptual Big Society of which the prime minister is so enduringly fond.

Transferring power

The Localism Bill sets out to give a series of new rights to local authorities, to parish councils and other community groups. However, it is worth noting that it does not devolve rights directly to individuals.

Local councils will receive a new General Power of Competence. They will be allowed to keep the business rates and the residential rents they collect, instead of – as is now the case – handing them over to central government and receiving them back, subject to byzantine treasury calculations and multiple hoop jumping.

They will have far greater say in how they manage their own housing stock and elected councillors will be freed from the sometime tyranny of the National Standards Board as that body is abolished. Member conduct will return to being an issue covered by local voluntary agreement and the criminal code.

The changes to the planning system should strengthen parish councils in their dealings with district councils, as should the new, more flexible approach to the commissioning and delivery of local services. Community groups are perhaps the biggest beneficiaries of all. Changes to the planning system are targeted directly at them and are intended to lend local groups considerable new muscle in their dealings with local government.

Government view

Eric Pickles – notoriously unfond of the legal profession – is, to some extent, the public face of the bill. But the man charged with leading the legislation through parliament (and with possessing a safer pair of hands than his irascible departmental boss) is Greg Clark, minister of state for decentralisation.

Not surprisingly, he has high hopes for what the new legislation will do. ‘You’ll have different things being done in different places, rather than a uniform system imposed from above,’ Clark tells the Gazette.

‘I think things will be much more local – which is obvious – reflecting the very different character and needs of different areas rather than the uniformity that sometimes papers over different needs in different areas… I think the system will be more personal.’

Clark has spent several years thinking about how to counter what he sees as government’s impersonal, centralising tendencies – in 2003 he wrote a book about this very subject. For him, the Localism Bill offers a necessary and very welcome antidote to government control .

‘It’s completely impossible for central government to be able to respond to the personal needs of people...’ he explains, ‘and so the rights that are in the bil­l will give much greater power to people who know personally the people in their area and can tailor services and community activities around that. So I think and hope that at the end of it we’ll have a set of public services… that are more diverse, that are more local, but are also more personal.’

Nicholas Dobson, senior consultant at Pannone and Gazette columnist, is familiar with the detail of the bill and believes it heralds a serious attempt by government to change the way local government does business: ‘It’s a culture change... but it lacks coherent and strategic vision.’

Over at the Local Government Information Unit, director Jonathan Carr-West partly agrees: ‘It is an odd bill. It could be hugely transformative. Equally, it might not be.’ He believes the legislation’s ambition creates this sense of contrariness. ‘It’s not a badly drafted bill. It’s just trying to do some very complicated things.’

This breadth, lack of detail, and the something-for-everyone feel of the bill, mean that, at the moment, Dobson takes a tougher line. To his mind, the bill is ‘whatever anyone thinks it is – like Humpty Dumpty in Alice’. He adds: ‘Local authorities think of localism in terms of delegation of power to themselves. Eric Pickles thinks it’s about empowering local people…The bill sets the direction of travel (but there’s) no hard transfer of function between authorities.’

This lack of ‘hard transfer’ is the opposite of a problem for Clark. He says: ‘The provisions in the bill are back-stop provisions in a sense. If a council voluntarily wants to work with its community council then they don’t need to wait for the bill, they can do that. The point of the bill is to give some rights for communities in areas where the council may not be quite so enthusiastic and may want to thwart [them]… It would be unusual for a parish council to insist legally on its rights. In the vast majority of cases, perhaps knowing the rights exist as a back-stop, districts and parishes will sit down together and work together and [they] already are.’

Newark and Sherwood District Council’s deputy chief executive and monitoring officer Kirsty Cole thinks it makes eminent sense for district authorities to work closely with their parishes. ‘Parish councils,’ she notes, ‘are already beginning a dialogue with us about what powers they can take. Local government needs to start the same process with central government.’

General Power of Competence

Once the bill is passed into law, local authorities will enjoy a significant new power: a General Power of Competence.

The Local Government Act 2000 conferred on local authorities a ‘wellbeing power’ but the London Authorities Mutual Limited (LAML) case punctured authorities’ confidence in it.

In LAML, the court ruled as unlawful the mutual insurance vehicle that had been set up by a group of councils who were trying to save money for the benefit of their residents. The perception was that the ruling dealt the wellbeing power a fatal blow.

Mark Hynes, director of governance and democracy, finance and resources at Lambeth, is enthusiastic about the new General Power, not least because Lambeth Council was a party to the LAML case.

‘I think it’s a welcome provision,’ he explains. ‘Too often lawyers have got themselves into a mess with what’s ultra vires and what’s intra vires. We were part of the LAML case, which is a classic example. We were trying to be innovative, looking at saving money – all the things that Eric Pickles would be supporting, and yet we were thwarted by the narrow interpretation of the general Power of Wellbeing …it was a nonsense. So the General Power of Competence will get around that nonsense.’

Clark agrees. ‘The whole point of General Power of Competence is to make it luminously clear that local authorities can do things that previously were questionable as to whether they were ultra vires. The Power of Wellbeing was thought to offer some possibilities for authorities but ended up have…The more you can front load it and the more you involve the community in thinking about its future then you’ve got a plan against which applications can be determined.’

This is an area that causes Newark’s Cole some anxiety. Put simply, won’t beefing up the planning muscle of community groups inevitably make it harder for unpopular applications to get consent? ‘We do have some concerns about the impact of neighbourhood planning and what this will mean for strategic planning decisions… Will we ever see another wind farm?’

Clark, though, remains sanguine. ‘Neighbourhood planning has to operate in a context of responsibility and clearly there are larger than local aspects.’

In Lambeth, Mark Hynes shares the minister’s relaxed take on neighbourhood planning – but for rather different reasons. ‘Local development plans gave communities the opportunity to shape things anyway,’ he says. ‘I struggle to see what’s so specifically different about this.’

Enforcement

Steven Durno, of the Law Society’s Planning and Environmental Law Committee, believes that clause 108 of the bill, which details changes to the enforcement procedure available to local authorities for development control, will cause ‘great concerns to planning and property practitioners’.

Currently, local authorities may take action against parties who breach the terms of development control consents within either four or 10 years – depending on the circumstances. The bill will change this period of limitation to a 12-month term from the point at which an authority has notice of the breach. This will create uncertainty. The potential limitation period that need concern third party property purchasers – the period beyond which they need worry that a local authority can come along and demolish their building – is greatly reduced.

Durno thinks the government is seeking change to the enforcement system because of two cases, Fidler and Beezley. He believes this response is entirely disproportionate, given the atypical nature of the two cases. In the first case, Mr Fidler built an unauthorised, castle-like structure, behind a screen of hay bales. In the second, Mr Beesley constructed an unauthorised home within a properly authorised barn. In both cases, building works had to be reversed.

Community muscle

As well as the right to draw up neighbourhood plans, communities will enjoy new rights to buy assets listed by the local authority. They will be empowered to challenge the sale of assets – private, as well as publicly owned – that they think ought to be held in community ownership.

This sounds like heady stuff. But planning specialist Ashworth is unconvinced: ‘There are provisions in the bill for the community to buy, to challenge, to have a referendum. These are good ideas but do not really enable a community. They simply give the power of the pulpit; an ability to ask questions. And like most people in pulpits,’ he continues, ‘communities are poor as church mice and will not be able to secure the assets or carry out the services that the bill implies that they have a right to. They do not have the resources to do so.’

More to come

And the government’s not finished yet, Clark says: ‘Shortly we’ll be publishing a revised national planning policy framework and that will set out policies on issues like renewable energy … Within that there is a role for neighbourhoods to think about what is the best place for renewable energy… but that will need to be in the context of national policy.’

The government’s hope that the planning changes it is introducing will deliver a more bottom-up, more cost-effective, less litigious system of development control, is predicated on a view that the current English model is riddled with legal disputes.

This view is not shared by Ashworth. To his mind, the planning system ‘is not particularly litigious’. He estimates that fewer than 20 cases a year are successfully challenged in the high court and that, in any event, some disagreements are inevitable given the inherent complexity of planning.

Ashworth says: ‘The planning system will always generate tensions. It is almost designed to do so. It constrains the landowner who wishes to use their property as they wish. It seeks to balance competing land uses, which means that not all users will get what they want. It mediates boundary and nuisance concerns, and says that some impacts are acceptable; which will rarely lead to perfect harmony. It is used to tax, for social engineering, to displace and to dispossess. How can anyone think that addressing those issues will not be contentious?’

Footing the bill

The costs of delivering many of the new rights and powers enshrined in the Localism Bill will fall squarely on local authorities. At a time when many are trying to tackle budgetary cuts of as much as 40%, is this too much to bear?

Certainly, local government lawyers are extremely concerned that, while a slew of extra responsibilities have been landed in their laps by central government, there appears to be no attendant extra funding to help them fulfil their new obligations.

The requirement that councils facilitate the range of new powers available to parish councils, neighbourhood forums, and pretty much any other articulate and organised community group that wishes to avail themselves of their new rights, has the potential to be a budgetary black hole.

How can councils prepare revenue strategies when they don’t know what the uptake of the new community powers will be? How can they predict the frequency with which community groups may take up the right to call a referendum – the cost of which could be onerous?

Does this financial uncertainty make local authorities nervous? Lambeth’s Hynes says: ‘Well yes… [The power to call a referendum] could very well result in us having to run an election process with all the cost that entails.’

Durno thinks that, given their dense concentrations of articulate residents, it will be ‘London boroughs that will really suffer’. This lack of apparent financial support for already hard-pressed councils is an issue about which he feels strongly. ‘The government is deliberately setting out to ensure that local authorities fail.’

This issue of the burden of costs for already cash-strapped councils, is one the Gazette put to the minister. He tries to reassure. ‘We’ve given money to the Planning Advisory Service – run by the Local Government Association, on behalf of local authorities – to make sure that even before the bill comes into effect there is a good capacity to advise authorities with questions on the implementation of this.’

Will funding be made available to authorities where significant numbers of residents take up the new rights available to them under the act?

‘It’s not possible with complete certainty in advance to say what this is going to cost,’ says Clark. ‘But what we are absolutely clear about is that there is a new burdens doctrine, which the government has accepted is required of all government departments, which is that any additional costs of the new policy on local government should and will be reimbursed.’

Clark then clarifies how this will be done: ‘Demands on authorities will be funded through the local government finance settlement.’

This sounds like a distinct shift in the government’s position. If it is confirmed, it will provide welcome reassurance to local authorities that are worried about the new and potentially limitless financial liabilities being thrust upon them from above.

Catherine Bowman is a freelance writer