Tim Ayres and Lynn Franklin - Gordon Brown’s eco-towns are going to be built on a legal minefield. Here’s a guide to tip-toeing through it
The proposed development of eco-towns promises to bring a complex set of legal issues for all involved.
First of all, they will generate opposition, so those bodies involved in promoting sites should be keen to ensure that the sustainability appraisal for their site is sound.
As part of its support for eco-towns, the government will submit the 15 shortlisted sites to a sustainability appraisal, with a view to adopting a nationwide PPS later this year. Proper consultation on the sites by councils will be essential. However, in some parts of the country it will be some time before up-to-date planning documents are in place. That is where the new PPS will provide the policy justification.
Although the government has suggested that the normal planning processes are likely to be adequate for most eco-town schemes, where there is a policy vacuum we may see schemes being called in for determination by the secretary of state.
Planning applications will also have to be as bulletproof as possible to withstand legal challenge. In particular, the environmental impact assessment and the design and access statement supporting the application will need to be robust. Issues such as biodiversity, local energy generation and accessible green space will also arise.
Undoubtedly, complex planning obligations and similar agreements will need to be negotiated on such matters as transport infrastructure, public space and affordable housing, and the government will be looking for section 106 heads of terms to be drawn up and negotiated at an early stage.
Planning applications will have to be as bulletproof as possible to withstand legal challenge.
The funding and delivery of infrastructure will be critical. Funding is likely to come from a variety of public sources, such as the growth point budget and regional infrastructure funds. However, the government expects a lot of money to come from the private sector, thanks to increases in land values. Developer contributions to infrastructure will be fed into the local authority pot through section 106 contributions and through the community infrastructure levy, if and when it is introduced. And for larger schemes of 10,000 homes or more, input from the major infrastructure providers will be essential. Confidence in partnership arrangements will therefore need to be high.
Setting up the legal vehicle to deliver the eco-town will need particular care. Legal models are available, each with its own set of commercial and taxation issues. The possibilities include joint venture companies or partnerships, and limited liability partnerships. A full understanding of the advantages and disadvantages of particular vehicles will be needed. Where significant transport infrastructure is likely, the government has even suggested a statutory body such as a new town development corporation.
Land assembly issues will need to be tackled as early as possible. Although some of the schemes can be delivered by a single landowner, this will be unusual. Identifying all legal interests in the land and programming the phasing of acquisition in tandem with the phasing of development will be crucial.
The success of an eco-town will in large measure depend upon how well its infrastructure and communal facilities are managed after delivery. Long-term management and maintenance arrangements will need to be robust and well resourced.
Experience suggests that public organisations are best placed to deliver long-term involvement and secure funding, and there will undoubtedly be calls for public participation in the management of green spaces and community facilities. Bespoke trusts may need to be set up and arrangements made for their long-term administration.
Many of the issues set out are common to complex mixed-use sites. However, what makes eco-towns different is that the bar has been set higher and each step will be in the glare of public, professional and media scrutiny. The road ahead will not be easy.
Tim Ayres and Lynne Franklin are senior associates at Pinsent Masons