On 29 June 2016, the members of Bath and North East Somerset, Bristol City and South Gloucestershire Councils (the Constituent Councils) voted in favour of going ahead with the West of England devolution deal under the Devolution Agreement.

North Somerset Council had already decided against proceeding with the devolution deal. Its members voted on 8 June 2016 to withdraw from the deal, citing their concerns over becoming part of an additional level of local government.

On 9 February 2016, the Constituent Councils formed the new West of England Combined Authority (WECA). The day before, the Department for Communities and Local Government authorised the legal mechanism to create WECA: the West of England Combined Authority Order (the Order).

Under the Order's legal framework, the Constituent Councils as WECA will work together at a strategic level to promote regional development, unlocking £900m worth of additional investment for the South West. They will make decisions on transport, planning and other matters for the common benefit of their constituent council areas, which make up the Combined Authority Area (the Area). As North Somerset Council withdrew from the devolution deal, its area is excluded from the Area.

The Order devolves a range of powers to WECA. It hands several powers to the new West of England Mayor (the WofE Mayor) to exercise alone once elected on 4 May 2017, and some powers to WECA as a body made up of the WofE Mayor and its three members (the Constituent Councils appointing one member each).

The powers under the Order for the WofE Mayor or WECA are devolved partly from central government, partly from the Mayor of London model, and partly from the Constituent Councils in their individual capacities.

The WofE Mayor will play a decisive executive role in the region's strategic development, with oversight from the Constituent Councils whose approval is needed on certain matters where their individual council areas are affected.

This briefing gives an overview of:

  • How the WofE Mayor or the Combined Authority will make decisions
  • The key powers devolved, with a focus on their impact on strategic planning
  • When the powers come into force.

Decision-making

WECA's members will vote on all WECA decisions that are not reserved for the WofE Mayor. For some important decisions, for instance on transport levies payable by the Constituent Councils, a unanimous vote will be required. Otherwise a decision will be approved by a simple majority vote, so long as the WofE Mayor votes with the majority. If there is a 2–2 split vote, the motion will fail.

The Order leaves some planning and other decisions to the WofE Mayor alone, subject to a requirement to consult the other WECA members.

Under WECA's constitutional arrangements, its decision-making will be informed by several committees and advisory boards, such as Advisory Boards for Skills, Infrastructure and Business. The individuals sitting on these committees or advisory boards will be drawn from the Constituent Councils' relevant portfolio holders or members.

Powers

Funding

The WofE Mayor will have a wide power devolved from central government to make grants to the Constituent Councils for specific public expenditures to carry out WECA policies.

The grants will be the main means of distributing the funds provided by central government for local development.

Between 8 February 2017 (when the Order was made) and 8 May 2017 (when the first WofE Mayor takes office), WECA members can exercise the power of grant by unanimous vote. This voting power of the members expires as soon as the WofE Mayor takes office.

The Constituent Councils may be individually responsible for paying some WECA costs (for instance for the WofE Mayor's designated political adviser under the Order), if the WofE Mayor or WECA decides not to meet those costs from other resources available to WECA.

Transport

The WofE Mayor alone will have the powers to develop local transport policies, prepare a local transport plan (LTP, including key route network, bus strategy and other matters), and grant funding for transport initiatives. Until the WofE Mayor takes office, these powers rest with WECA members; after the WofE Mayor takes office, the members may only assist the Mayor in exercising these powers as consultees.

Under the Transport Act 2000, as amended by the Local Transport Act 2008, all local transport authorities, now including WECA, are required to produce an LTP relating to transport to, from and within their area. The Department for Transport's guidance on local transport plans states:

"In considering this duty authorities should bear in mind that patterns of transport use are not necessarily restricted by local authority boundaries. It is important that an LTP is a practical document, and where cross‑boundary travel is particularly important to users, neighbouring authorities may wish to consider a joint Local Transport Plan."

In the West of England, the current LTP is a Joint Local Transport Plan (JLTP) approved in 2011 by the four West of England authorities, including North Somerset Council. The JTLP covers the years 2011 to 2026.

For consultation in tandem with the draft West of England Joint Spatial Plan (JSP, see below), the draft West of England Joint Transport Study: Transport Vision (the Transport Vision) was also published in autumn 2016. The Transport Vision is intended to support the JSP's policies, but it will also be used to update the JLTP. The WofE Mayor will have powers to commence the update of a joint LTP but only for the Area, although the WofE Mayor may wish to agree with North Somerset Council an updated JLTP following adoption of the JSP.

WECA takes over several of the Constituent Councils' current passenger transport functions, including formulating policies for, and the eventual delivery of, public passenger transport services.

Meanwhile WECA can work jointly with the Constituent Councils to enter into highways agreements, for instance for the carrying out of highways works or the improvement of highways. Whilst WECA is granted these powers by the Order, the Constituent Councils will still be able to exercise them in their individual capacities as local authorities and local highway authorities.

Planning

  • WECA's spatial development strategy

The Order authorises WECA to prepare, adopt and amend its own "spatial development strategy" (SDS) to deal with matters of strategic importance to the Area. The SDS is the responsibility of the Constituent Councils and the WofE Mayor, and can only cover the Area, therefore excluding North Somerset.

The legal approval mechanism for the SDS is unclear. To approve the SDS, the Order states that unanimous WECA member approval is required. However, the Order goes on to state that approval of the SDS is a WECA function exercisable only by the WofE Mayor. It is not clear which of these incompatible approval procedures takes precedence.

It may have been the intention when drafting the Order to limit WECA's responsibility for the SDS (and in particular the constraints relating to member approval) to the period up to appointment of the WofE Mayor; however this limitation (which applies to several other of the Order's provisions) has not found its way into the Order's drafting on SDS approval.

  • WECA's joint spatial strategy and the West of England Joint Spatial Plan

The Order's provisions dealing with the preparation of the SDS are scheduled to come into effect in May 2018. This presumably is to allow time for the Constituent Councils and North Somerset Council to finalise the JSP. The JSP is legally separate to the Order, and lies outside the influence of the WofE Mayor. It is currently being developed by the Constituent Councils and North Somerset Council. It is expected that the JSP will be submitted to the Secretary of State for examination in Spring 2018.

Once the SDS is approved and published, it will form part of the overall "development plan" for each of the Constituent Councils. They will be under a duty to have regard to the SDS alongside, but separate to, their respective development plan documents, which will include their own local plans and the JSP. Further, each Constituent Council's own local plan will need to be consistent with the SDS (see Appendix 1 for details of the legislation underlying the JSP and the SDS).

While the Constituent Councils will have a duty to have regard to both the SDS and JSP, the legislation does not prescribe which of the SDS or the JSP should carry greater weight in decision-making, whether at Constituent Council or WECA level. The intention may be for the SDS and JSP to be consistent, and thereby for no conflict between the two to arise. However, where there is inconsistency between the SDS and the JSP, greater weight is likely to be given to the SDS within the Area based on its adoption at a more recent time, therefore providing a more up-to-date strategy to guide development and transport schemes.

It may be that the SDS will replace the JSP as the strategic plan for the Area – however such an outcome would leave the JSP applying to North Somerset only, contradicting its original joint purpose.

SDS policies cannot take effect in North Somerset. Accordingly, North Somerset will be expected to cooperate with WECA outside the SDS's legal framework to align their strategic planning approaches. Such cooperation between North Somerset and WECA will not fall within the Localism Act 2011's (the 2011 Act) duty to cooperate, which does not directly encompass combined authorities. However, North Somerset will continue to have a 2011 Act duty to cooperate with each of the Constituent Councils as neighbouring local planning authorities in the preparation and adoption of their development plans,

The new West of England Joint Committee (the WofE Joint Committee), comprising the Constituent Councils, the WofE Mayor and North Somerset Council, is set to be a vital forum of regional cooperation. The WofE Joint Committee is designed to help manage areas of overlap between WECA and North Somerset, such as the JSP, or recommendations of the Local Enterprise Partnership Business Board that are relevant to both the Area and North Somerset.

  • The WofE Mayor's call-in power

From May 2018, the WofE Mayor will have discretion to call in planning applications made to the Constituent Councils if the applications are of strategic importance, and must consult WECA members before making a determination (although no members' vote is required to approve such determinations).

The Order limits the WofE Mayor's call-in power to strategic, cross-boundary linear infrastructure identified in the SDS, and falling within the categories of public highway infrastructure, bridges, bus ways, surface rail, rapid-transit and flood defences.

Mayoral development corporations

The WofE Mayor will be able to designate particular parts of the Area as "Mayoral Development Areas" (MDAs), and for each MDA to ask the Secretary of State to appoint a "Mayoral Development Corporation" (MDC) as the local planning authority.

However, any WofE Mayoral designation of an MDA, or creation of an MDC, will be subject to the consent of the WECA member whose local authority area is affected.

Housing & regeneration

Several powers to provide homes, regenerate land and deliver supporting infrastructure are devolved to WECA from the Homes and Communities Agency (HCA), with the HCA retaining the right to exercise these powers concurrently.

Compulsory purchase

WECA has compulsory purchase powers for planning and housing purposes, including for regeneration and infrastructure. WECA may exercise in its Area the compulsory purchase powers already available to the HCA, or WECA's Constituent Councils' planning and housing CPO powers. The expropriation powers are shared rather than given away – the HCA and the Constituent Councils can still exercise their respective compulsory purchase powers just as they could before WECA came into existence.

The Order stipulates that before commencing the CPO process, the proposal must be approved at a WECA meeting by all the WECA members whose council area contains any part of the land subject to the proposed compulsory acquisition.

Timings

Under the Order, the WECA or WofE Mayoral powers come into force gradually:

  • In February 2017, the funding powers for grants came into effect, as did the powers for transport, housing, regeneration and compulsory purchase
  • In May 2017, the MDC powers will come into effect
  • In May 2018, the planning powers will come into effect.

Appendix 1: the legislation underlying the JSP and SDS

The SDS will sit alongside the JSP and other "development plan documents" (DPDs) that make up the "development plan" for each of the Constituent Councils. Each Constituent Council must have regard to the SDS, and their DPDs must be consistent with the SDS. This Appendix summaries these elements of the "development plan" for the Constituent Councils.

The elements of the development plan

  • Core strategies

Each Constituent Council has its own "core strategy" as a local plan. Their respective core strategies arise under section 17 of the Planning and Compulsory Purchase Act 2004, and are "local development documents" in the "local plan" category, which makes them also "development plan documents" (under Regulation 5 of the Town and Country Planning (Local Planning) (England) Regulations 2012.

  • The JSP

The JSP arises under the same legislation as the core strategies. It therefore is also a "local development document", again in the "local plan" category, making it a "development plan document". The JSP does not replace existing "local plans" or "core strategies", but will be a material consideration in decision-making as a higher-level strategic planning framework. Further, the JSP will inform the preparation and adoption of "core strategies" and "local plans" for the four local authorities until the adoption of an SDS (see below).

  • The SDS

The SDS is under different legislation to the core strategies and JSP. It arises from a duplication of the Mayor of London's spatial development strategy powers under the Greater London Authority Act 1999 (the 1999 Act), which are incorporated into the West of England Combined Authority Order 2017 (the Order). The procedures for WECA to prepare and publish its SDS are set out in the 1999 Act, and are exclusive to spatial development strategies.

Under the Order's Schedule 2, for each of the Constituent Councils the development plan for their own areas has three parts: first, the SDS; second, their own development plan documents (taken as a whole) that have been adopted or approved in relation to their area; and third, their neighbourhood development plans.

Also under Schedule 2 of the Order, the Constituent Councils must, in exercising any function, have regard to WECA's SDS, and their own development plan documents must be consistent with the SDS. Hence the SDS will inform local plan preparation by the Constituent Councils once adopted.