PF8
Legislation Committee 1
Response to the consultation on the Proposed Playing Fields (Community Involvement in Disposal Decisions) (Wales) Measure
The Minister for Social Justice and Local Government
I am grateful for the opportunity to appear before the Committee to give oral evidence on the above Member Proposed Measure, on 5 February.
As requested by the Committee, the Annex to this letter forms the Assembly Government’s written submission and addresses the key points identified in the Committee’s consultation letter dated 12 December.
The Assembly Government supports the underlying purpose of the Measure in seeking to provide an additional safeguard before local authorities dispose of playing fields. However, the Assembly Government remains unconvinced that the Measure, as currently presented, represents the most appropriate way forward.
The Assembly Government has had useful initial discussions with Dai Lloyd AM on the scope of his Measure. It is proposed to hold further discussions over the coming weeks to consider our remaining concerns.
The attached response describes the range of existing safeguards to ensure that local authorities assess the need, and provide, for sport and recreation facilities in their communities. In this context, the Assembly Government considers certain aspects of the Measure to be unnecessary and disproportionate in their application. This is particularly so in relation to community and town councils.
We do not consider it necessary or appropriate for Welsh Ministers to have powers to intervene in disposal decisions, which are essentially matters to be determined at the local level. Where there are concerns that due process has not been followed, there are existing avenues for remedy, such as judicial review procedures and the Public Services Ombudsman for Wales.
Yours sincerely
Brian Gibbons AM/AC
Minister for Social Justice and Local Government
Annex
Proposed Playing Fields (Community Involvement In Disposal Decisions) (Wales) Measure
Submission by Minister for Social Justice and Local Government to National Assembly for Wales Legislation Committee No. 1
1. Is there a need for an Assembly Measure in relation to community involvement in decisions by local authorities whether to dispose of playing fields?
1.1 The Measure highlights the importance of sport and outdoor recreational facilities in our communities. 'One Wales’ recognises that most people do not take enough physical activity. It accepts that physical activity is beneficial to health and encourages sport, activities such as cycling and walking, enjoyment of the natural environment and promotes retention of school playing fields (among other things). A greater level of physical exercise is a vital ingredient of many of our policy initiatives, such as 'Climbing Higher’, our long-term strategy for sport and physical activity, and 'Health Challenge Wales’. We know that people in less well-off communities are less likely to participate in sport and physical activity, contributing to the higher levels of chronic disease and disability that we see in those areas. For this reason, sport, play and physical activity are important elements of our 'Communities First’ programme.
1.2 During the debate on the motion to grant leave to Dai Lloyd AM to introduce the Measure, I signalled that the Assembly Government was supportive of the underlying purpose of the Measure. There have been useful discussions with Dr Lloyd about the scope of his proposals. The Assembly Government will look to have further discussions with Dr Lloyd on a number of remaining concerns about the practical implications of the Measure.
1.3 There area a number of existing safeguards to protect playing fields in Wales. The Assembly Government accepts that there is scope to strengthen certain of these arrangements and is already doing so in some respects. It might be helpful to the Committee if I were initially to outline the safeguards that are in place.
Disposal of Local Authority Land
1.4 Part VII of the Local Government Act 1972 enables local authorities to dispose of land "in any manner they wish.” In the case of open space land, authorities must advertise their intention to dispose of the land for two consecutive weeks in a newspaper circulating in the area and to consider any objections received. The Assembly Government supports Dai Lloyd’s proposal to strengthen these provisions by requiring local authorities to consult relevant statutorily prescribed consultees.
'Planning Policy Wales’
1.5 'Planning Policy Wales’ provides a national planning policy framework for local planning authority development plans and planning decisions about the provision and protection of land and facilities for sport and recreation. 'Planning Policy Wales’ states that playing fields should be protected from development, except where development of a small part of a site will enable the retention and enhancement of facilities, alternative provision of equivalent community benefit is made available, or where excess provision exists. Authorities are guided to set standards of provision for sport and recreation (and other land uses) so that local deficiencies can be identified and, where possible, addressed. Local standards should guide the provision, protection or development of recreation land.
'Technical Advice Note 16 - Sport and Recreation ("TAN 16”)
1.6 'Planning Policy Wales’ is supported by a series of technical advice notes which clarify and amplify the national planning polices within it. TAN 16 was originally issued in 1998. It preceded 'Planning Policy Wales’ and provides advice on topics encountered by planning authorities relating to planning for sport and recreation. Publication of updated guidance in a revised 'TAN 16 - Sport, Recreation and Open Space’ is imminent. The revised TAN 16 will provide guidance within the framework set out in 'Planning Policy Wales.’ It has been prepared in the context of wider Assembly Government policies for sport, recreation, the environment, play and health and well-being.
1.7 The revised TAN 16 advises local authorities to carry out open space assessments to enable them better to provide for the open space, sport and recreation needs of their communities. Such assessments, when linked with the preparation of the local development plan, can provide the basis for an open space, sport and recreation strategy to inform corporate policies for the provision and protection of facilities and spaces to meet changing needs. The TAN recognises that local standards best reflect local circumstances, although it accepts that many authorities will continue to refer to the more flexible 'benchmarking standards' approach now provided by Fields in Trust.
Town and Country Planning (General Development Procedure) Order 1995 ("General Development Procedure Order”)
1.8 The General Development Procedure Order requires local planning authorities to consult the Sports Council for Wales before granting planning permission for certain applications for development likely to prejudice the use, or lead to the loss of use, of land being used (or which was used within the preceding 5 years) as a playing field. A playing field means the whole of a site which encompasses a delineated area of at least 0.4 hectares (including any run-off area) which is used for association football, American football, rugby, cricket, hockey, lacrosse, rounders, baseball, softball, Australian football, Gaelic football, shinty, hurling, polo or cycle polo.
1.9 Following consultation on the revised TAN 16, it is proposed to bring forward legislation to reduce the minimum threshold for local planning authorities to consult the Sports Council on planning applications affecting playing fields from 0.4 hectares to 0.2 hectares. It is proposed to make this amendment to the Order, with others relating more generally to the operation of the development management system, later this year. Guidance to restate and clarify local planning authority consultations with the Sports Council will be provided in the new TAN 16.
1.10 The Sports Council has not, in the past, used its powers to request the Welsh Ministers to call in any planning applications affecting playing fields. As I indicated during the debate on Dai Lloyd’s motion in February last year, when meeting key stakeholders, partners and other groups, the Sports Council has, when appropriate, raised awareness of the controls currently in place and the channels of communication open to anyone who wishes to express concerns about specific proposals. Moreover, the Sports Council is currently working closely with local authorities in drawing up partnership agreements (known as 'Local Authority Partnership Agreements’). These aim to underpin our strategic aims and objectives, as set out in the proposed 'Climbing Higher Active for Life’ action plan, as well as addressing individual authorities’ priorities and needs, including safeguarding space for sport and physical activity.
1.11 In addition, the Assembly Government has invited Planning Aid Wales to explore the most effective ways to engage stakeholders and local communities in the planning process, including sport and recreation issues.
School Playing Fields
1.12 The Education (School Premises) Regulations 1999 require schools with pupils who have attained the age of 8 years to provide "team game playing fields” in accordance with minimum area standards prescribed in the regulations. Playing fields do not have to be provided on the site of a school or adjacent to it. They must, however, be close enough for pupils to reach them with sufficient ease, whether on foot or using such reasonable transport as it can be certain will be available to them. These requirements are not negotiable.
2. What are your views on the key provisions set out in the proposed Measure, ie: the duty on local authorities to consider the impact that selling off playing fields would have on local communities before deciding whether to dispose?
2.1 The Assembly Government believes that it is right that local authorities should assess carefully the impact that reduced provision for sport and recreation can have on their communities and the health and well-being of the people that live in them. However, we consider that this is best done through existing strategic planning mechanisms, such as the preparation of the community strategy and any open space, sport and recreation strategy which may have been prepared to ensure that an appropriate level of facilities and open spaces is provided or maintained. Requiring local authorities to undertake a separate impact assessment for each disposal would seem to be unnecessary and, potentially, costly duplication.
The principal definitions (Section 2)?
2.2 The definition of "playing pitch” in section 2(e) of the Measure appears to be a variation of that in the General Development Procedure Order. The rationale for the definition would seem to warrant further consideration.
The duty on local authorities to prepare and consult on impact statements before deciding whether to dispose (in particular, the method and scale of consultation, and content of impact statements) (Section 3)?
2.3 The requirement (in section 4) to send a copy of the impact statement to the occupiers of every household in the locality is excessive and potentially costly given the large numbers involved, particularly in urban areas. A requirement to notify households within a reasonable distance of the consultation and provide a copy on request would be sufficient.
The duty on local authorities to prepare a decision statement, including its content, and the arrangements for making known its decision (Section 6)?
2.4 The Assembly Government agrees that it is appropriate for authorities to publish a report (or decision statement) setting out the consultation responses received and how it intends to proceed. However, the requirement to send a copy to every person to whom the impact statement (if the principle of such statements is accepted) was sent is excessive. The proposed arrangements for giving notice of when and where the statement can be inspected should be sufficient. Alternatively, the Measure might provide that a copy must be sent to any person that submitted substantive written representations (rather than simply signing a petition) as part of the formal consultation period.
The statutory consultees as set out in the Schedule to the proposed Measure?
2.5 There are practical difficulties in seeking to identify and maintain an appropriate and up to date statutory list of consultees, particularly one including third sector and non-statutory organisations. In the Assembly Government’s view, the schedule should prescribe only relevant statutory bodies. It would be for local authorities to identify other appropriate organisations, in exercise of the requirement in section 4(1)(b) of the Measure to consult "other persons” that appear to the authority to represent the interests of persons likely to use the playing field. This might be supplemented by the inclusion of a power for the Welsh Ministers to issue guidance covering other organisations, or types of organisations, that it would be appropriate for authorities to consult.
2.6 In the Assembly Government’s view, the power in section 4(2) for Welsh Ministers to amend the schedule to the Measure should more appropriately be subject to negative resolution procedure. Affirmative resolution is rather a cumbersome process for what are likely to be largely technical amendments, such as changes to the names of particular organisations.
The powers of Welsh Ministers to issue stop and remedial directions to local authorities (Section 7)?
2.7 It is neither appropriate nor necessary for Welsh Ministers to have powers to intervene in disposal decisions. Local authorities, as independent statutory bodies, are responsible for ensuring that they comply with the requirements of legislation. Appropriate avenues for redress, such as judicial review and the Public Services Ombudsman for Wales, already exist where it is perceived that there has been maladministration and due process has not been followed.
2.8 In any event, the role of Welsh Ministers would be limited to considering whether the procedural requirements as set out in the Measure had been complied with. It would not be appropriate for Ministers to put themselves in the place of the authority in determining whether or not a disposal should proceed. There is a danger that a power to make directions would create unrealistic expectations amongst objectors to a disposal as to the role of Ministers.
3. What are the practical and financial implications of putting these provisions in place?
3.1 Any restrictions on the disposal of playing fields might have implications for local authorities’ capital investment strategies, such as school investment programmes to bring all school stock up to good physical condition, especially when dealing with school closures and investment in new build.
3.2 It is for Dr Lloyd, as the promoter of the Measure, to undertake an assessment of the financial implications. There is no provision in Assembly Government budgets to fund the financial implications for the public bodies concerned.
3.3 The Measure applies equally to community and town councils and national park authorities in Wales. The compliance costs of the provisions, as currently set out in the Measure, are likely to be prohibitive for many community and town councils in particular, given their limited budgets. There are also likely to be issues of capacity and lack of expertise within these councils.
4. Will the proposed Measure achieve its overall purpose and aim?
4.1 It is anticipated that the Measure would achieve its overall stated purpose of "…providing an additional safeguard in the form of a duty on local authorities to assess the impact of the disposal of a playing field on the local community and to consult with certain specified people.” However, certain aspects of the Measure are considered to be disproportionate to the perceived problem, for the reasons set out above.
Brian Gibbons AM
Minister for Social Justice and Local Government
January 2009
