Wychavon District CouncilThe Localism BillOlwen Dutton

Local Government Partner

8 July 2011

The Localism Bill

• 512 pages

• 215 Clauses

• 25 Schedules

• 142 powers for the Secretary of State to make subordinate

Regulations

• At Committee Stage in House of Lords this week

• Royal Assent – November 2011

• Implementation – from April 2012

Topics in the Bill

• General Power of Competence• Committees• Predetermination • Standards• Senior Salaries • Local Referenda • Council Tax and Business Rates• Community Right to Provide Services• Assets of Community Value • Planning • Housing

General Power of Competence

General Power of Competence (Cl. 1-9)

• “A local authority has power to do anything that individuals

generally may do”

Powers of an individual

Powers of an Authority

New Powers of an Authority

So, what does it mean?

Increases powers to Trade, but through a Trading Company –• Not limited to trading with “Public Bodies”• No need to use Section 1, LA(G&S) Act 1970• Will now cover Academy and Free Schools, GPCCs, Contractors

and the public• No requirement for economic, social or environmental benefit• No need to rely on Section 2, LGA 2000 + Trading Powers

Regulations

Fills odd gaps in powers –• Taking out commercial insurance

But…..

• Not a free for all

• The new power overlaps existing powers, but:

- Where an existing power is subject to “restrictions”, those restrictions apply to the general power within the overlap

- Pre-commencement statutory “prohibitions, restrictions or limitations” remain and apply to the new general power

- You still need to know the pre-existing legislation

Predetermination

Predetermination

• A member or co-opted member is not to be taken to have had, or

to have appeared to have had, a closed mind when making a

decision just because:

- the decision-maker had previously done anything that

directly or indirectly indicated what view the decision-maker took or

would or might take, in relation to a matter, and

- the matter was relevant to the decision(Clause 13(2))

• To apply to local authorities but not Police or Fire Authorities

• The courts got there first anyway!

Predisposition, not Predetermination

• R (Island Farm Development Ltd) v Bridgend CBC

“Councillors will inevitably be bound to have views on and may well have

expressed them about issues of public interest locally. It would be quite

impossible for decisions to be made by the elected members whom the

law requires to make them if their observations could disqualify them

because it might appear that they had formed a view in advance. Whatever

their views, they must approach their decision-making with an open mind

in the sense that they must have regard to all material considerations and

must be prepared to change their views if persuaded that they should.”

Predisposition, not Predetermination

• R (Island Farm Development Ltd) v Bridgend CBC

“Evidence of political affiliation or of the adoption of policies towards a

planning purpose will not for these purposes by itself amount to an

appearance of the real possibility of predetermination, or what counts as

bias for these purposes. Something more is required, something which

goes to the appearance of a predetermined, closed mind in the decision-

making itself.”

Standards

Headlines

• Standards for England abolished

• General Principles and Model Code of Conduct repealed

• Statutory Standards Committees abolished

• New statutory register of interests• Criminal offence to fail to register, declare or withdraw for interests

• No complaints after ‘Appointed Day’

• 2 months to resolve outstanding complaints

• Power of suspension ceases on Appointed Day

• No appeals

Continuing duty to promote and maintain high standards of conduct

• Authorities may adopt a voluntary Code and local protocols / guidance

•Member-officer relations•Use of IT•Planning and Lobbying (per ACSeS)•Gifts and hospitality

• If the authority adopts a voluntary Code –•The authority must deal with complaints of breach –•Initial assessment / investigation / hearing (but may delegate)

• No statutory sanctions•Reprimand•Withdraw facilities (Broadland DC v Lashley)•Remove from Cabinet or Committees (with consent of Group

Leader)

What is left?

• Criminal Law•Bribery•Misconduct in public office•Failure to register or declare interests•Theft and false accounting

• Civil Liability•Statutory Immunity, Section 265, PHA 1875•Misfeasance in public office•Moores v Bude Stratton TC•Defamation

• DIY•Broadland DC v Lashley•Injunctions – e.g. harassment

• Ombudsman

Local Referenda

Three New Routes to a Local Referendum

1. A principal authority must hold a referendum if it receives a

relevant petition signed by 5% of local government electors•Can be for whole of an authority’s area or for one or more

wards or electoral divisions

2. A principal authority may hold a referendum if it receives a

qualifying and appropriate request from Councillors

3. Council can simply resolve to hold a referendum

Binding Referenda on Council Tax Increases

• Secretary of State will set “principles” by which each authority can

determine whether its proposed increase in Council Tax or Precept

is “excessive”, and set an “alternative notional amount” as a

comparator.

• Referendum by billing authority/ies not later than 1st Thursday in

May

• If “No” vote, substitute calculations on basis of “alternative notional

amount” take effect

• For precepting authorities, result of referendum is the aggregate of

votes in all referenda

Community Right to Challenge

Community Right to Challenge –Taking over local services and facilities

• A “Relevant Body” -•Charitable, voluntary or community body•Parish Council•Two or more employees•Such other person or body as specified

• May submit an Expression of Interest to a principal authority,

bidding to provide all or part of a service on behalf of a principal

authority

• A Relevant body may propose to deliver service as joint venture

with partners.

Assets of Community Value

List of Land of Community Value

• “Community Nominations” of building or land by Parish and

Community Councils and other specified persons

• The authority may also nominate

• If land is “of community value”, Council must put on the register for

5 years

• Notification to landowner and as local land charge

Moratorium

• If owner wishes to sell land on “pass” list –•Notify authority of intention to sell•Authority gives notice to person who nominated and

publicise in locality• Owner may not dispose of land

•Until after an Interim Moratorium Period (3 weeks)•If a relevant “Community Interest Group” expresses intention

to bid, until after a Full Moratorium Period (6 months?)• No requirement to sell to a Community Interest Group

•At full or discount price• Regulations will provide for payment of compensation to

landowner by Council

Planning

Planning

• Abolition of Regional Strategies•Council Tax and Business Rates “bribes” to incentivise

granting of planning permissions•Presumption in favour of “sustainable” development

• Pre-application consultation on 200+ homes or 10,000 sq m

• LPA may decline to determine a retrospective planning application

• Where unauthorised development is concealed, LPA may apply to

Magistrates for 12 months in which to commence enforcement

action

• Infrastructure Planning Commission absorbed into DCLG

Neighbourhood Planning

1. Community Right to Build Order•grants planning permission for specific development on a

specific site

2. Neighbourhood Development Order•Increases “permitted development” for a defined area

3. Neighbourhood Development Plan•Local Plan for local area•Can transfer Development Control responsibility to a

“Community Organisation”

• Each must be –•Proposed by a Community or Business Organisation•Subject to 50% approval in local referendum

The Localism Bill

End of Presentation

Olwen Dutton, Partner

T: 0870 194 5006

E: olwen.dutton@bevanbrittan.com