Greater Manchester Drop Plans for Joint Spatial Plan as Two Authorities now hung

GMCA

It is intended to seek approval to consult on the next version of the GMSF at the October GMCA. Since the draft GMSF in 2016, Greater Manchester has an elected Mayor in post and will shortly have the ability to produce a Spatial Development Strategy. The previous draft GMSF was produced as a Joint Development Plan Document of the 10 Local Authorities.
It is recommended that the GMCA makes an ‘in principle’ decision to move from the Joint Development Plan Process, (the current position) to a Spatial Development Strategy subject to the relevant Regulations being in place to allow this. Thetimescales for each process are broadly similar:

The SDS regs have just come into force.

The GMCA received legal advice in 2014 that down the joint plan route as this was statutory, however we now have the combined authority SDs regs, however unlike London they arn’t rooted in a GLA the act which makes The SDS part of the development plan and establishes a general conformity rule for local development documents.  There is no such enabling provisions for the SDS, it is not a development plan.  The NPPF of course refers to SDSs, they can contain strategic policies but are not part of the development plan.

The Local Democracy, Economic Development and Construction Act 2009 establishes combined authorities but gives them no planning powers, hence the earlier decision to a joint strategic plan.

However the The Greater Manchester Combined Authority (Functions and
Amendment) Order 2016 states

However the 3.—(1) The GMCA shall have, in relation to the Area, functions corresponding to the functions
in the 1999 Act that the Mayor of London has in relation to Greater London, which are specified in the following provisions of the 1999 Act—
(a) section 334 (the spatial development strategy);
(b) section 335 (public participation)(d);
(c) section 336 (withdrawal);
(d) section 337 (publication)(e);
(e) section 338 (examination in public)(f);
(f) section 339 (review of matters affecting the strategy);
(g) section 340 (reviews of the strategy);
(h) section 341 (alteration or replacement)(g);
(i) section 342 (matters to which the Mayor is to have regard);
(j) section 346 (monitoring and data collection)(h); and
(k) section 348 (mayor’s functions as to planning around Greater London).
(2) The exercise by the GMCA of the functions corresponding to the functions in sections 335 (public participation), 336 (withdrawal), 337 (publication) and 341 (alteration or replacement) of
the 1999 Act requires a unanimous vote in favour by all members of the GMCA appointed by the
constituent councils, or substitute members acting in place of those members, to be carried at a meeting of the GMCA.

So what is the ‘1999’ act?

the citation section at the front states

“the 1999 Act” means the Greater London Authority Act 1999(f);

Hold onto your hat – what power does the SoS have to issue secondary legislation which amends an act of parliament that only applies to London to make it apply to Manchester?

 

It gets more bizarre the 2018 SDS regulations give the legal basis for these regulation as

The Secretary of State, in exercise of the powers conferred by sections 334(7), 335(2)(b) and (d), (3)(d) and (7), 337(4) and (5), 338(8), 342(1) and 343 of the Greater London Authority Act 1999(1), (as applied with modifications by the Greater Manchester Combined Authority (Functions and Amendment) Order 2016(2), the Liverpool City Region Combined Authority (Functions and Amendment) Order 2017(3) and the West of England Combined Authority Order 2017(4)) and having consulted the Lord Chancellor in accordance with section 338(8) of the Greater London Authority Act 1999, makes the following Regulations:

All of these clauses refer to the ‘Mayor’ not the Mayor of any combined authority but as the front page of the Act states

An Act to establish and make provision about the Greater London Authority, the Mayor of London and the London Assembly;

Now image the GMSDS comes under legal challenge, treasury council has to face a judge

Now don’t get me wrong you are stating that the legal basis of the 2018 regulations is the 1999 act which says on its front page applies only to London

No mlud sections 334(7) etc. refer to ‘The Mayor’ they dont state which Mayor

‘So it could apply to the Mayor of Casterbridge?’

‘No mlud…’

Case Dismissed.

So we have a patently unlawful spatial startegy which is not a development plan, though it may or may not be an SDS for purposes of the NPPF(though if unlawful how can it) only a development plan can make changes to Green Belt.

The GMSDS will not be  development plan and there will be no requirement for Borough local plans to be in general conformity with it.  It will be toothless and each individual authority will have to amend the Green Belt by itself.

Sounds like a wheese to get the Mayor off the , stetting housing targets and getting the Boroughs to do the politically difficult stuff.

Yes lets have more SDS, but lets make sure its the will of Parliament to have them.

A possible get out section 105 of the 2009 Local Democracy Act as amended by the 2106 devolution act does allow the SOS to enact powers to combine function, but as there was no joint committee I doubt it.  One for numerous Counsels opinions, or why that a very novel thing in these Brexit days, a simple amending act of Parliament?

Update

Thanks to Duncan Field

The key power is under section 91 of the 2009 Act

The Secretary of State may by order provide for a function of a local authority that is exercisable in relation to an area [F1all or part of which is] within an EPB‘s area to be exercisable by the EPB in relation to the EPB’s area.

(2)The Secretary of State may make an order under this section only if the Secretary of State considers that the function can appropriately be exercised by the EPB.

(3)An order under this section may make provision for the function to be exercisable by the EPB either generally or subject to such conditions or limitations as may be specified in the order.

(4)An order under this section may make provision—

(a)for the function to be exercisable by the EPB instead of by the local authority,

As section 105 extends EPB to mean EPB or combined authority

And the 2016 GMCA Order states in section 3

3.—(1) The GMCA shall have, in relation to the Area, functions corresponding to the functions in the 1999 Act that the Mayor of London has in relation to Greater London, which are specified in the following provisions of the 1999 Act—

(a)section 334 (the spatial development strategy);

(b)section 335 (public participation)(1);

(c)section 336 (withdrawal);

(d)section 337 (publication)(2);

(e)section 338 (examination in public)(3);

(f)section 339 (review of matters affecting the strategy);

(g)section 340 (reviews of the strategy);

(h)section 341 (alteration or replacement)(4);

(i)section 342 (matters to which the Mayor is to have regard);

(j)section 346 (monitoring and data collection)(5); and

(k)section 348 (mayor’s functions as to planning around Greater London).

(2) The exercise by the GMCA of the functions corresponding to the functions in sections 335 (public participation), 336 (withdrawal), 337 (publication) and 341 (alteration or replacement) of the 1999 Act requires a unanimous vote in favour by all members of the GMCA appointed by the constituent councils, or substitute members acting in place of those members, to be carried at a meeting of the GMCA.

So why didnt the SDS regs refer to this?  The power of Mr Burnham to draw up an SDS is not granted by the GLA act (as the frontispeice of the regs state) but by the planning act as amended by the 2009 act and the 2016 order.  The regs may have to be withdrawn and reissued as they are deeply misleading.   Nothing seemingly is more complicated than the planning system in CA areas, where the planning encyclopedia simply cant keep up.

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