It has been seen that there are very comprehensive controls imposed on local authorities in relation to finance, with particular reference to limits on the amounts which can be sought from central government and the purposes for which money can be spent. Other forms of statutory control will be examined in this part of the chapter, with particular reference to the relationship between central and local government as seen in the Town and Country Planning Act.
Once again the relationship is defined by law in the Act and although it gives some autonomy to the local planning authorities, central government in the shape of the Secretary of State for the Environment and his department wield great influence. Nevertheless, a good deal will depend on the policies being operated in the name of the Secretary of State at any one time. In the crucially important area of development control, where the local planning authorities are required to determine applications for planning permission if a person intends to undertake ‘development’ on land, central government policy may be in favour of encouraging as much residential and industrial development as possi-
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ble. Consequently, if applications for planning permission for such develop- ment are ever refused by a local planning authority, an appeal by the disap- pointed applicant to the Secretary of State is likely to be successful. Indeed, on some occasions the Secretary of State may ‘call in’ an application for decision before the local planning authority is able to deal with it.
Central government influence may also have been felt where the Secretary of State has imposed his policy preferences in approving the local planning authority’s own policies in its development plan, or where the Secretary of State has issued a circular. Government circulars are intended to provide local authorities with guidance on a variety of issues, as well as information. Some local authorities may require guidance on the practical implications of some new piece of legislation which has just come onto the statute book while central government may be anxious to inform local authorities about policy prefer- ences. Both these functions can be performed by circulars; non-statutory chan- nels of communication which have considerable influence over the way that local authorities perform many of their functions. Indeed, where a circular pre- scribes a policy it is often the case that much time is taken up at a planning inquiry arguing whether the instant case of (say) a refusal of planning permis- sion falls within that policy as described by the words of the circular. This then is the background to a number of statutory controls of local government activ- ity. However, in looking at the important areas of control, some of which have been outlined earlier, it should be remembered that although there are controls available to central government they do not necessarily have to be used and often are not used. It is clearly important that local authorities should be allowed to use their local knowledge and expertise and maintain an effective measure of autonomy. Ideally, therefore, the relationship between the two tiers of government should be defined as a collaborative partnership with ultimate control of many functions residing with central government, with its concern for implementation and co-ordination of national policies. However, the finan- cial arrangements outlined above do compromise very severely local authori- ties’ autonomy.
4.5.1 Statutory control
Some of the more important statutory financial controls affecting local authori- ties have already been outlined. In the case of the many functions performed by local authorities there is always a need for a statutory framework, effectively defining the terms on which central government will allocate a function. This legislative task will often take place against a background of consultation with, among other organisations, the local authority associations. The statutory framework legislated by Parliament will indicate the nature and scope of any powers given to the local authorities, an issue which will be taken up in Chapter 7, and will indicate the scope of any central government control in the exercise of the function concerned. Section 1 of the Education Act 1993, for example,
states that ‘The Secretary of State shall promote the education of the people of England and Wales’.
In the area of town and country planning, the Minister of Town and Country Planning Act 1943 (now repealed) states that the minister now responsible for planning, the Secretary of State the Environment, had a duty to secure ‘consis- tency and continuity in the framing and execution of a national policy with respect to the use and development of land throughout England and Wales’.
The detailed statutory framework is, of course, to be found in the principal Acts of Parliament. These Acts often contain further powers permitting the Secretary of State or other minister responsible for a function to make rules and regula- tions and other items of delegated legislation governing the detailed conduct of the local authorities. It has been seen in Chapter 3 that procedural rules have been made for the conduct of public local inquiries into planning appeals, pre- scribing the steps to be taken by local authorities and others involved in the inquiry process. Another example occurs in the Town and Country Planning (General Development) Order 1995, another item of delegated legislation made by the Secretary of State under the powers conferred on him for this purpose by the Town and Country Planning Act 1990. This order contains a vast amount of detail about the operation of the planning system. Among other things it sets out the procedures to be followed by local planning authorities in dealing with applications for planning permission and those categories of ‘development’
which are defined as ‘permitted development’, that is, for which planning per- mission is deemed to have been granted, eg the extension of a dwelling house by up to 15% of its cubic capacity.
4.5.2 The administrative appeal process
Where a function is conferred on a local authority there may be various reasons why it is deemed appropriate that there should be an appeal against the author- ity’s decision and that the appeal should go to the Secretary of State as opposed to an inferior court or an administrative tribunal. In one of the most frequently used appeal processes, where a local planning authority refuses or grants a con- ditional planning permission, it is the Secretary of State for the Environment’s concern for national planning policy which indicates the need for him to be cen- trally involved in the planning appeal process. Indeed, he is involved in other planning appeal processes, the two most important of which are appeals against a local planning authority’s decision on the question of whether a proposal involves ‘development’ and requires planning permission, and appeals against enforcement notices served by a local planning authority alleging unlawful development, eg without planning permission. Where such an appeal is under- taken the statutory powers of the Secretary of State are widely defined. In the case of the appeal, eg against a refusal or conditional grant of planning permis- sion, the Secretary of State is able to look afresh at the applicant’s proposal and is required to decide at the outset whether a planning permission should be
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granted or whether any condition or conditions should be deleted from a plan- ning permission. Although many applications for planning permission involv- ing proposals to build single houses, for example, do not involve any policy, it has been seen that in other cases where policy is in issue the appeal decision may permit the Secretary of State’s policy preference to be applied.
4.5.3 The approval process
Where a local authority initiates various proposals, which may be administra- tive or legislative, there is usually a statutory requirement that the Secretary of State approves or confirms them before they become effective or have the force of law. Apart from particular schemes requiring financial sanction, the approval process applies to three very important areas of local authority activity: bylaws, compulsory purchase orders, and (in the area of town and country planning again) development plans. Compulsory purchase orders and bylaws are dealt with in Chapter 8. Suffice it to say in this context that the confirming authority in the appropriate central government department is unlikely to give confirma- tion where the order or bylaw is considered to be beyond the statutory powers of the local authority. Development plans are the vehicles for local authorities’
planning policies under the Town and Country Planning Act. There are two principal varieties of development plan: the structure plan (referred to in Chapter 3) and the local or district plan. It has been seen that the structure plan is prepared by the county planning authority and is essentially a written policy strategy for the county area indicating, eg the likely demand for housing in the next 10 years and the broad areas where that demand may be satisfied. The completed structure plan is submitted to the Secretary of State for the Environment of approval but before arriving at a decision whether to approve the plan, he will convene and eventually consider the report of an Examination in Public. By contrast, the local or district plan is usually made by the con- stituent district councils within the county and fills out in detail (some of it map-based) the broad policies of the structure plan. This type of development plan can be approved and adopted by the local authority which made it, but the Secretary of State does have a reserve power to call in such a plan for his own and not the local authority’s approval. It could be the case that a local or district plan would be ‘called in’ if it made no attempt to identify any land in its areas for future housing provision where the structure plan has already insisted that the district has the most suitable potential in broad, strategic terms. Once approved, a local planning authority is required to have regard to a develop- ment plan in deciding whether to grant planning permission.
4.5.4 Default powers
Reference was made in Chapter 1 to the default powers of the Secretary of State for the Environment in s 164 of the Housing Act 1985 and the Secretary of State
for Education in s 68 of the Education Act 1944. It is difficult to generalise about default powers except to say that they facilitate central government intervention on those occasions, eg after a central government inspection, when it is consid- ered that a local authority is not undertaking a proper discharge of its statutory functions. While some default powers require some prerequisite such as an unreasonable act before the Secretary of State can intervene, other default pow- ers operate simply on the basis that the Secretary of State is of the belief that a function will not be performed properly. The default power in s 100 of the Town and Country Planning Act is somewhat different. It states that if it appears to the Secretary of State, after consultation with a local planning author- ity, that certain action should be taken, he may require that that action be taken, eg that an enforcement notice should be served or that an order revoking plan- ning permission should be submitted to him for confirmation. Default powers in other areas of local authority activity may lead, as in the case of s 164 of the Housing Act 1985, to the Secretary of State taking over the function himself. On the other hand and perhaps more frequently, an exercise of default powers in a statute like the Education Act 1944 requires the Secretary of State to serve a direction. Such a direction might require a local education authority to provide a certain type of educational facility which, hitherto, it had unreasonably failed to provide. Non-compliance with the direction would permit the Secretary of State to apply to the High Court for an order ofmandamusagainst the education authority. This remedy, which is dealt with more generally in Chapter 13, com- prises an order of the court requiring the authority to comply with any lawful direction. Under the Town and Country Planning Act directions are relatively common and, as such, are not seen as default powers in quite the same way.
Some of the more common purposes for which directions are used include the Secretary of State’s power to ‘call in’ an application for planning permission for his own decision and a ‘standing’ requirement that any proposal to grant plan- ning permission which would be a ‘substantial departure’ from development plan policies should be advertised and (in some limited cases) referred to the Secretary of State for decision.