Legal Viewpoint - Ease consultation changes into use

The Localism Act, the legislation at the heart of David Cameron's Big Society, is now on the statute books.

Its provisions largely result from the government's early focus on increasing communities' influence on the planning process, before those aspirations were tempered by the need to rejuvenate the development industry and help boost an ailing economy.

Section 122 of the act contains a relatively short, and on first glance straightforward, provision requiring certain applications to be subject to pre-application consultation. Secondary legislation will specify the types of applications to which the obligation will apply. However, the impact assessment on the Localism Bill anticipated that large-scale schemes such as residential developments of 200 or more homes or non-residential development of at least 10,000 square metres would be caught.

Section 122 requires potential applicants to consult "specified persons", who are to be defined in secondary legislation, on the details of the planning application. The application must also be published in a manner likely to bring it to the attention of a majority of persons living at or occupying premises in the vicinity of the proposed development site. In undertaking consultation, regard must be had to any local authority good practice advice. In finalising the application, the applicant must then have regard to the responses to the consultation.

In principle, these requirements do not appear unduly onerous. Indeed, most developers of large-scale schemes currently undertake pre-application consultation, with varying degrees of sophistication. However, this is the first time there has been a statutory duty to consult on planning applications. Much of the detail will be contained in secondary legislation, which may also require applications to be accompanied by particulars of how the developer has complied with the consultation requirements and taken account of responses. Statements recording community engagement are already familiar practice to many developers.

The duty will ensure that people wishing to "collaborate" on the design of the proposed development can contact the developer. Secondary legislation can also make provision for such "collaboration". The common meaning of collaboration is "joint working". To grant consultees the right to work jointly with applicants on the design of a proposed development would be a significant and potentially onerous step, and the government would be well advised to exercise caution in this respect.

The provisions are not yet in effect. It is vital that sensible transitional arrangements are imposed, as the introduction of any new statutory duty creates a fresh avenue for potential legal challenge. The government must ensure that applicants with proposals already in the system will not be forced to repeat expensive and time-consuming consultation exercises simply to achieve full compliance with technical legal requirements.

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