This is entry number 213, published on 7 February 2011, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. Click here for a link to the whole blog.

Today's entry reports on progress on the scrutiny and implementation of the Localism Bill.

The Localism Bill is currently undergoing its Commons committee stage. Although the regime for planning and authorising nationally significant infrastructure projects is largely unscathed, other provisions of the Bill could create additional hurdles to implementation.

The committee of MPs examining the Bill has had its first four sessions considering the clauses of the Bill in more detail. No changes have been made to the first 31 clauses of the Bill, which deal with:

  • the general power of competence for local authorities,
  • their ability to return to the committee system,  
  • relaxation of predetermination rules,  
  • abolition of the Standards Board,  
  • senior pay accountability and  
  • part of the passing down of EU fines.  

Meanwhile, the government has launched two consultations on aspects of the Bill, presumably confident that they will not change too much during its Parliamentary progress. These are the community right to challenge and the 'community right to buy'.

The consultation documents are here and here, but here is the low-down. Both consultations close on 3 May.

Community right to challenge

This is the ability of community groups to challenge the provision of a service by or on behalf of a local authority, to say they can do it better and to trigger a procurement exercise. This is something of a Trojan horse as it is by no means certain that the community group will win the eventual procurement exercise, which could be won by a company with no community links. I shall refer to it as the CRC.

First, a distinction is made between 'functions' and 'services' of a local authority. THe former are not up for grabs and are where a local authority is making a decision.

The first question that is asked is which services should be exempted. The only ones that the consultation paper says will definitely be excluded are those where legislation prevents outsourcing, e.g. fire and rescue functions. Even services jointly commissioned with other bodies could be subject to the CRC if they relate to local authority functions.

The next question is whether any other public bodies should be subject to the CRC. The consultation paper suggests only fire and rescue authorities for the moment.

Then there are questions about bids. How often should they be able to be made, and for how long? The paper does not make a suggestion. What should a bid contain? The paper suggests that the bid should explain the benefit of the community body providing the service, give details of its financial situation, and say that it will be able to participate in the later procurement exercise and actually be able to provide the service. Seems fair enough.

The only reasons that the paper suggests for rejecting a challenge that are not purely factual (e.g. the service is not subject to the CRC) are that the community group is considered by the local authority not to be (a) suitable for providing the service, or (b) capable of providing it.

Finally, the paper asks what guidance and support would be useful. I would guess that financial support might be requested by prospective bidders. The consultation does not extend to the later procurement process, which is stated to follow existing local authority procedures, and if the contract is large enough, comply with EU procurement rules.

'Community right to buy'

I am getting increasingly exasperated by the use of 'community right to buy' to refer to the right of a community group to say it would like time to bid to buy a community asset. It is nowhere near a right to buy - at the most, it is a 'community right to nudge', to use a Big Society buzzword. At least the Localism Bill does not call it a right to buy, but the associated government documentation does, which is somewhat disingenous. Rant over.

The process in the Bill provides that community groups can nominate land to be recorded on a list of 'assets of community value'. When that land comes to be sold, the owner cannot sell it for a certain period, to give community groups a chance to put a bid together.

The consultation document first asks how 'community value' should be defined. It suggests that it should be left to local authorities, within certain criteria, and that there should be a list of land that cannot be included ('excluded assets'). It suggests that a potential use for land suggested by a community group rather than an actual past or present use should not make it worthy of inclusion.

It suggests that the criteria should include: who owns and occupies the land, what past or present use it had or has, whether there are strong feelings about it in the local community, that it will not be so expensive that community groups will not be able to afford it, and whether there are already restrictions on its sale such as trust port land or allotments.

For excluded land it suggests residential land, except where accommodation is tied to another asset, e.g. rooms above a pub. The paper asks if land should be exempt if it is partly occupied as well as fully occupied, and whether there should be any other land exempted (e.g. when it is subject to the Crichel Down Rules, where land was previously compulsorily purchased, the original owner is given the right of first refusal). It suggests that landowners do not have to comply with the process if they sell the land voluntarily to a community group.

The document suggests that anyone with a 'local connection' may nominate land, and the local authority should be able to do so themselves; suggesting that the nomination process could tie in with the new concept of neighbourhood planning.

If a landowner doesn't want the land to be put on the list, the paper suggests giving 28 days for an appeal to the local authority, who have six weeks to decide it. It asks whether a further appeal should be available, to, for example, the Lands Tribunal.

On timescales, the paper suggests that community groups be given six weeks to register their interest in making a bid, 6 or 20 weeks to prepare their bid, and then 15 months or a year when the landowner can sell the land freely without triggering another moratorium.

Finally, the paper asks what compensation should be payable to affected landowners, suggesting only any additional cost of complying with the procedure in the Bill, with a 90-day limit for claiming it, and that public bodies should be ineligble for claiming compensation.

Plenty of food for thought there. The Bill continues its consideration in committee tomorrow morning, but there are 35 clauses to consider before the CRC and CRB are reached.