PF22

Legislation Committee No 1

Proposed Playing Fields (Community Involvement in Disposal Decisions) (Wales) Measure

Response to the consultation on the Proposed Playing Fields (Community Involvement in Disposal Decisions) (Wales) Measure

Letter from Jane Davidson AM, Minister for Environment, Sustainability and Housing to the Chair of Legislation Committee No 1 (dated 5 February 2009)

I am grateful for the opportunity to give written evidence on the above Member Proposed Measure.

The Annex to this letter sets out my written submission as Minister for Environment, Sustainability and Housing, and addresses the key points identified in the Committee’s consultation letter dated 12 December.

Jane Davidson AM/AC
Minister for Environment, Sustainability and Housing

Annex

Submission by Minister for Environment, Sustainability and Housing 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 Assembly Government's encouragement for sport, activities such as cycling and walking, and the enjoyment of the natural environment.  The proposed Measure is intended to promote the retention of publicly owned playing fields by amending the procedures which local authorities must use prior to their disposal.

1.2 The Measure, as now being considered, requires authorities to undertake an impact assessment, to distribute that assessment to local organisations and households for consultation purposes, to consider any representations received and to prepare and similarly distribute a decision statement.  The Measure provides for Welsh Ministers to intervene where they receive representations that an authority has failed to comply with the procedural requirements of the Measure.

1.3 I understand that my colleague, the Minister for Social Justice and Local Government has already provided evidence about the safeguards in place to protect playing fields in Wales, and the effectiveness of the Proposed Measure in improving them.  

Disposal and Management of Local Authority Land

1.4 The most important safeguard, set out in the Local Government Act 1972, requires authorities wishing to dispose of open space land to advertise their intention to do so for two consecutive weeks in a newspaper circulating in the area and to consider any objections received.   Decisions about the disposal of land, particularly that used for playing fields, are often highly political.  They are related to the authority's resource management strategy, and to other corporate policies, for example, for education, transport, housing, and environment.

1.5 In addition to disposal,  local authorities are responsible for the provision of new, and the management of most public open space used for sport, recreation and for amenity purposes.  The use of playing fields is often related to ground maintenance, to the type and quality of facilities provided, to the provision of support services such as wardens, and the creation of secure and safe environments.  Lack of investment in maintenance and these support services can reduce the level of use made of any playing field.   

The Role of Land Use Planning

1.6 Planning supports the delivery of Assembly Government strategies and policies. While it provides a range of safeguards by which development on playing fields can be addressed,  the land acquisition, disposal and management policies of local authorities or of other organisations and agencies are not the concern of land use planning, which manages the use and development of land in the public interest.

1.7 The Assembly Government provides the legislative and procedural framework for the planning system in Wales.  Planning is delivered on a day to day basis by each of the 22 local authorities and 3 National Park authorities, responsible for the preparation of a local development plan, and for deciding planning applications and enforcing planning policies within its area.   Although it rarely does so, given that each local planning authority is best equipped to know the circumstances in its area, the Welsh Ministers have powers to intervene in both the development plan and development management processes.

1.8 The planning system already requires community involvement in the preparation of local development plans and consultations about planning applications under consideration by local planning authorities.   Planning policies offer protection for playing fields except in specified circumstances, and for the allocation of land for new spaces and facilities to meet changing needs.  The planning framework provides for community and other stakeholders' involvement, to enable local policies to address community play, sport and recreation needs. It is not concerned with local authority acquisition and disposal procedures, nor with the management of land used for sport and recreation purposes.  The available planning mechanisms are peripheral to the thrust of the Proposed Measure.     

1.9 A detailed note on the planning policy and legislative framework in Wales is  appended to this evidence.

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 It must be right that local authorities should assess the impact of the sale of  playing fields, and indeed of other land on their communities.  Provision for this is already made in relation to the disposal of specific sites in the publicity and consultation arrangements associated with land disposal set out in the Local Government Act 1972.  The Act requires that authorities should consider any objections received before reaching a decision.

2.2 More generally, and not directly related to decisions to sell specific areas of land, communities are consulted during the preparation of Community Strategies  and any other strategies for sport and recreation. They are also consulted during the local development plan process and when planning applications are being considered, the latter usually when a decision to dispose of land has already been taken and the local authority is proposing its after-use. The Proposed Measure would require local authorities to undertake a separate impact assessment for each disposal.  However, the Measure, while assessing the impact of proposed disposal, would not prevent an Authority from proceeding with disposal in the event of an unfavourable assessment.     

• The principal definitions (Section 2)?

2.3 The definition of "playing pitch” appears similar to that in the General Development Procedure Order of 1995.  However, the Order refers to pitches "used” for the sports specified, rather than being "marked for use” as in the Measure. Whether this needs further thought is an issue the Committee may want to consider.

• 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)?

• 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 While TAN 16 recommends local planning authorities to prepare Open Space Assessments for their areas, these are not mandatory and, as they serve a different purpose, they would not in themselves be an appropriate basis for individual land disposal decisions.  The proposal to require the preparation of Impact Assessments, to carry out consultations and to prepare and publicise decision statements are likely to have significant resource implications for local authority estates management, legal, leisure and planning services.

• The statutory consultees as set out in the Schedule to the proposed Measure?

2.5 The Measure should list statutory consultees, as provided for in secondary legislation in relation to the preparation of local development plans and certain categories of planning applications.  It would be for each local authority to consider whether to consult other people.

• The powers of Welsh Ministers to issue stop and remedial directions to local authorities (Section 7)?

2.6 The powers of the Welsh Ministers to issue stop and remedial directions apply in relation to the procedural requirements of the draft Measure.  The Measure does not give Welsh Ministers powers in relation to the decision made by local authorities.

As in the planning system, local authorities should retain responsibility for complying with legislative requirements.  The Public Services Ombudsman for Wales, and the Courts are able to consider complaints and challenges.  

3. What are the practical and financial implications of putting these provisions in place?

3.1 Any additional restrictions on the disposal of playing fields are likely to have financial implications for local authorities, and these may impact on particular budgets.  The implications are for others to consider.

4. Will the proposed Measure achieve its overall purpose and aim?

4.1 The Measure concentrates on the disposal of playing field land by local authorities.  There would need to be careful justification for the Measure not applying to other forms of land use. Requiring local authorities to seek and consider the views of statutory consultees, and others, before deciding to dispose of land, improves the transparency of the process, but has significant resource implications. As currently drafted, the Proposed Measure would still not prevent an authority taking a decision which is contrary to possible objections from the public and statutory consultees.

Jane Davidson AC/AM

Minister for Environment, Sustainability and Housing

February  2009

Appendix

The Planning System
Planning Policy Wales

The Assembly Government's national planning policies are set out in 'Planning Policy Wales'. This provides the context for preparation of local planning authority development plans and may be taken into account when planning decisions are taken by local planning authorities or by the Welsh Ministers.

'Planning Policy Wales’ seeks to protect all playing fields from development, except where;

• facilities can best be retained and enhanced through the development of a small part of a site;

• alternative provision of equivalent community benefit is made available; or

• there is an excess of such provision in the area.

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.

Technical Advice Note (TAN) 16: Sport, Recreation and Open Space

'Planning Policy Wales’ is supported by a series of technical advice notes which clarify and amplify, but cannot contain new national planning polices.  TAN 16, 'Sport and Recreation' was originally issued in 1998.  It provided advice on a limited number of sport and recreation topics.  A revised TAN 16,  'Sport, Recreation and Open Space’ was published on 3 February to provide updated and improved guidance in the context of the Assembly Government's strategies for the environment, play, sport, health and well-being.

TAN 16 advises local authorities to prepare open space assessments as part of the local development plan process to enable them to prepare better informed policies for the future open space, sport and recreation needs of their communities.

The TAN recognises that local standards best reflect local circumstances, although it accepts that authorities will continue to refer to the 'benchmark standards' now taken by Fields in Trust.

Local Development Plans

Each of the 25 local planning authorities in Wales is responsible for the preparation of a local development plan, setting out policies for the future use and development of land in its area.  Authorities are required to consult and involve the community and other stakeholders from the outset when preparing a plan, so that there is 'ownership' of the plan and confidence in its use for decision making. Additionally, each plan must be subject to an independent public examination where objectors have the right to have their views considered by a Planning Inspector.

Planning applications should be determined in accordance with policies in the adopted development plan for the area.  However, plans are not prescriptive, and authorities may grant planning permission for proposals which depart from plan policies, if they consider that other material planning considerations justify this.  Whenever they do so, and particularly when they propose to depart from their plan, they are expected to provide clear reasons for their decision.

Many development plans already in place in Wales contain policies which are based on 'Planning Policy Wales' to protect all playing fields except in specified  circumstances.  Where there is no plan policy, 'Planning Policy Wales' would be a material consideration in any planning decision taken about the development of any playing field.  Development plans are also the means by which new open spaces and playing fields can be identified and protected, linked to changing settlement patterns and community needs.

Departure Applications and Call in Requests  

When a local planning authority considers a planning application to be a departure from its development plan, it must advertise the application by site notice and in a newspaper circulating in the area concerned, and take account of any representations and objections received before deciding whether or not to grant planning permission.

When an authority considers a planning application, it is minded to approve, to be a significant departure from the development plan, it is required to notify the Assembly Government, which then has 21 days in which to consider whether the application should be called in for the Welsh Ministers' determination.  Call in occurs only rarely, where an application is considered to raise matters of more than local importance, which should not be left in local hands.

Any individual or organisation can ask the Assembly Government to call in any planning application for its own decision.   Such requests are usually received from individuals, but they may also come from organisations like the Sports Council for Wales or Fields in Trust.  To date the Sports Council for Wales has not exercised its right to request call in.  Each request is carefully assessed in relation to the issues raised, and only those which raise issues of more than local importance are considered appropriate for call in.     

Town and Country Planning (General Development Procedure) Order 1995

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 at least one playing pitch which is a delineated area of at least 0.4 acres (including any run-off area) and 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.

As indicated in TAN 16, it is proposed to bring forward legislation to reduce the minimum threshold for local planning authorities to consult the Sports Council for Wales 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 for Wales is now provided in TAN 16.  This will complement the Partnership Agreements the Sports Council is drawing up with local authorities, and the work of Planning Aid Wales to improve the effective involvement of all communities and stakeholders in the planning process.