English Devolution and Community Empowerment Bill enters Parliament
Earlier today, the long-awaited English Devolution Bill (now renamed the English Devolution and Empowerment Bill), found its way onto the floor of the Houses of Parliament.
It is a big piece of legislation. The 340-page bill covers everything from the restructuring of local government and the creation of strategic authorities to the creation of a new “community right-to-buy” and the abolition of upwards-only rent reviews in commercial tenancies.
As such, this blog is not, by-any-means, a comprehensive overview.
Instead, it is focused on the more “planning-y” aspects of the bill. Namely, the planning powers given to each type of strategic authority, the new CIL charging powers and the new community right to buy.
Before we get stuck in, however, I should probably sign-post you to a few resources:
- The Bill, and its explanatory notes, can be found here
- The MHCLG press release can be found here; and finally
- Links to accompanying guidance, explainers and the Bill's impact assessment
Right, now that you have all of the source material available, it is time to get started.
New Strategic Authority Structures and their Planning Powers
I am summarising hugely, but the general idea is that all of England will be covered by a new form of “Strategic Authority” that will address a wide range of strategic issues at a ‘larger-than-local’ level.
The following types of organisations would be allowed to become a strategic authority:
- Combined Authorities – a group of two or more unitary authorities. Combined Authorities can be either mayoral or non-mayoral.
- Combined County Authorities – similar to Combined Authorities but covering those parts of the country where both district and county councils currently exist. In Combined County Authorities, only the county (or unitary if they are in the same area) councils would be a part of the combined authority. The district councils would not be directly represented.
- The Greater London Authority (GLA); and
- it is also theoretically possible for a single council that has reached an agreement with the government to access non-mayoral devolution to be designated a strategic authority, but this is not expected to be very common.
These organisations would be categorised into three types or tiers of strategic authority - each of which would have different planning powers.
I have attempted to combine these into the following table.
| Tier of Strategic Authority | Planning Powers |
|---|---|
Foundation (without an elected Mayor) | Duty to produce a Spatial Development Strategy (clause 52 of PIB) Powers to acquire or appropriate land (including via compulsory purchase) for the purposes of:
( Clause 34 and Parts 1 and 2 of Schedule 15 (Acquisition and development of land) in the Bill) |
Mayoral (with an elected Mayor) | Duty to produce a Spatial Development Strategy (clause 52 of PIB) Duty to collaborate (clause 22 of the Bill) Powers to acquire or appropriate land (including via compulsory purchase) for the purposes of:
(Clause 34 and Parts 1 and 2 of Schedule 15 (Acquisition and development of land) in the Bill) Powers to designate a Mayoral Development Area and subsequently establish a Mayoral Development Corporation (MDC) for that area (Clause 36 and Schedule 17 of the Bill) Powers to intervene in or call-in planning applications of potential strategic importance (Clause 31 and Schedule 11 of the Bill) Power to create Mayoral Development Orders (Clause 32 and Schedule 12 of the Bill) Power to charge Mayoral CIL (Clause 33 and Schedule 14 of the Bill) |
Established Mayoral (with elected Mayor and enhanced governance checks) | Duty to produce a Spatial Development Strategy (clause 52 of PIB) Duty to collaborate (clause 22 of the Bill) Powers to acquire or appropriate land (including via compulsory purchase) for the purposes of:
(Clause 34 and Parts 1 and 2 of Schedule 15 (Acquisition and development of land) in the Bill) Powers to designate a Mayoral Development Area and subsequently establish a Mayoral Development Corporation (MDC) for that area (Clause 36 and Schedule 17 of the Bill) Powers to intervene in or call-in planning applications of potential strategic importance (Clause 31 and Schedule 11 of the Bill) Power to create Mayoral Development Orders (Clause 32 and Schedule 12 of the Bill) Power to charge Mayoral CIL (Clause 33 and Schedule 14 of the Bill) |
Yet more CIL (yay)
As you may have spotted from the table above, the Bill proposes extending the power to charge Mayoral CIL, which currently only applies to the Mayor of London to all Mayoral Strategic Authorities.
It does this by amending sections 206, 213 and 214 of the Planning Act 2008, to expressly refer to ‘relevant mayors’ of strategic authorities.
The changes set out by the Bill are perhaps deceptively simple, when compared to the efforts that will be needed to get to the point where a Mayoral Strategic Authority can actually adopt a charging schedule for its area.
- Firstly, the CIL Regulations will need to be amended. As currently drafted, the regulations mirror the legal position that only the Mayor of London can charge CIL, and (as a result) only London Boroughs are required to take account of Mayoral CIL rates when setting their own charging rates.
- Then, the strategic authority is going to have to grapple with rate-setting - which is not going to be easy. Particularly in areas where the constituent authorities contain a lot of CIL charging authorities, whose local rates won't have been set with the possibility of Mayoral CIL in mind.
- This could lead to a chicken and egg situation, where either the Mayoral CIL charging schedule is adopted against the background of local charging schedules that haven't set sufficient headroom in their own rate-setting to allow for a further strategic levy; or it is delayed until all of the local charging schedules are reviewed.
Whichever way it goes, it has the potential to get very messy indeed!
Assets of Community Value and the Community Right to Buy
The last parts of the Bill that I am going to look at in this post, are Clause 60 and Schedule 27 which:
- introduce a “community right to buy” into the current Assets of Community Value (ACV) regime; and
- create a new category of ACV called a “sporting asset of community value”, which provides enhanced protections for sports grounds and their supporting facilities, such as car parks. Sporting assets of community values will have their own listings, and do not necessarily require nomination. They can be listed automatically by an LPA. Unlike standard ACVs, these listings will not be time limited.
The provisions are very similar to the current ACV requirements in the Localism Act, but the introduction of the community right to buy means that they have introduced some notable differences.
Namely:
- When an ACV is put up for sale, the nominating community group is given the first chance to purchase it.
- The community group and asset owner will either negotiate a price for the ACV, or an independent valuer will set a price based on the market value. The Secretary of State can make regulations setting requirements on how “market value” is to be assessed by the valuer. The community group would need to meet the assessed value in order to purchase the ACV.
- The moratorium on the sale of the asset will be extended from six months to 12 months, to give community groups more time to raise funding to meet the agreed purchase price; and
- The owners of the asset will be able to ask the local authority to check that community groups are making sufficient progress on the sale 6 months into the moratorium - if they are not, then the local authority can end the moratorium period early.
The inclusion of the Right to Buy and, in particular, the ability for the Secretary of State to define “market value” for the purposes of the sale of an ACV once the Bill has been adopted, has the potential to be more disruptive than the current ACV regime, and the community right to bid, has been to date. How disruptive, will largely depend on the detail in the secondary legislation, but given the proposals around removing “hope value” from CPO schemes in the planning and infrastructure bill, some ACV owners may fear a similar approach being taken here.
Conclusion
The English Devolution and Community Empowerment Bill is a wide-ranging and significant piece of legislation. Planning is only a very small part of a much wider set of reforms, which could fundamentally reshape the entirety of local government throughout England.
Planning and local government are very closely bound together. If MHCLG wants to reach its target of 1.5 million homes before the end of the parliament, it is not just the Planning and Infrastructure Bill that needs to be a success. Local Government needs to thrive as well. Fingers crossed, the English Devolution and Community Empowerment Bill will be a step towards making that happen.
Since 2012, community groups have been able to nominate any building or land that has an important social purpose for the community as an Asset of Community Value (ACV). If the owner puts their asset up for sale, there is a 6-month period, known as a moratorium, in which community groups can put together a bid to buy the asset to protect it for community use. However, the owner may currently sell the asset to whoever they like at the end of this period.
As a result, the current system has often failed to protect our valued community spaces, such as pubs, shops and community centres. The government wants to give communities stronger powers to purchase the assets that are important to them.”
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