Neighbourhood Development Plans
10 January 2011
An outline of the proposals - including the status of the plans and the bodies authorised to promote them
The Government`s intention to involve local communities in planning matters was well publicised over a number of months but ministerial statements left it unclear how the proposed neighbourhood plans would relate to strategies and policies contained in local planning authority development plan documents, such as Core Strategies, that have been gradually emerging through the local development framework system introduced by the Planning and Compulsory Purchase Act 2004. The Localism Bill published last month has clarified some of the main areas of uncertainty.
The following comments address the contents of the Bill in its current, initial form. There is a reasonable expectation that the major planning provisions will remain in substantially the same form when the Bill is enacted later this year or next but inevitably there will be changes to the detailed contents.
One of the key points is that neighbourhood development plans will have the status of being part of the development plan. Consequently they must be taken very seriously because of their significance in respect of the determination of planning applications in the neighbourhood area to which they relate, since the effect of section 38 of the 2004 Act is that a planning application must be determined in accordance with the development plan unless material considerations indicate otherwise.
There is no obligation to create a neighbourhood development plan but where one has been created there will be two tiers of documents comprising the development plan, with the new neighbourhood development plans taking the place of regional strategies, though of course with an entirely different function, and being additional to the local planning authority`s Development Plan Documents (DPDs). The exception is in Greater London where the London Plan will remain as the spatial development strategy, the boroughs will have their own development plan documents, and neighbourhood development plans can also be created.
Another key feature of neighbourhood development plans is that their contents must have regard to national policies and advice in guidance from the Secretary of State, and be in general conformity with strategic policies in the development plan for the area.
Neighbourhood plans could not operate sensibly if they could contain policies in conflict with those in the upper tier local planning authority Development Plan Documents and it is a great relief to see that there is this fetter which prevents neighbourhoods from putting in place policies that run counter to those which have emerged through the statutory process of public consultation and examination for soundness applicable to LPA development plan documents. However it remains to be seen how "strategic policies" will be construed and therefore what scope there will be for neighbourhood plans to frustrate the aspirations of the LPA`s policy objectives. Insofar as the LPA`s DPDs policies are relatively broad-brush, neighbourhood plans will be able to satisfy the Government`s objective of enabling local communities to decide the location for different forms of new development, but where the DPD identifies matters such as the total number of houses required for the District over the plan period, there may be difficulties where individual neighbourhood development plans fail to make adequate provision, unless the DPD has identified the required provision for that neighbourhood.
It will remain the responsibility of the local planning authority to determine planning applications, but in doing so it will be under the statutory duty to have regard to the neighbourhood development plan as described above.
The local planning authority (LPA) will also be the body which formally makes neighbourhood development plans and it has a role in checking that certain basic statutory requirements and regulations have been met by a proposed neighbourhood development plan. However as regards the content, it is the duty of an independent examiner to check that the proposed neighbourhood plan conforms with national policies and the strategic policies in the LPA`s DPDs.
Although the Bill makes provision for regulations to be introduced to deal with many aspects of these proposals, there is nonetheless a considerable amount of detail regarding the bodies which can initiate the procedure and the process for the creation of these plans.
The local planning authority must respond to a proposal for a neighbourhood development plan made by a "qualifying body" in respect of a neighbourhood area. Where there is a parish council for the whole or any part of the intended neighbourhood area, that is to say the area to be specified in the neighbourhood development plan as the area in respect of which the policies for development and land use will relate, the parish council will be the qualifying body for the purpose of initiating the process.
Where this is not the case, an organisation or body must first be designated as a neighbourhood forum by the LPA in relation to a proposed neighbourhood area. It is important to note that an organisation or body can only be designated as a neighbourhood forum in respect of a specified neighbourhood area and it cannot be so designated for an area that consists of or includes the whole or any part of the area of a parish council.
There are several conditions to be satisfied before a LPA may designate a neighbourhood forum. It must be established for the express purpose of furthering the social, economic and environmental well-being of individuals living, or wanting to live, in an area that consists of or includes the neighbourhood area. Its membership must be open to individuals living, or wanting to live, in the neighbourhood area, at least three members must live in the neighbourhood area and it must have a written constitution. There can only be one neighbourhood forum for any neighbourhood area.
There are various stages before the formal making of a neighbourhood development plan, involving acceptance of the draft plan first by the LPA to whom it is submitted, and subsequently by an independent examiner, after they have checked that a number of requirements are satisfied, consideration of the examiner`s report by the LPA and then (if the proposal is accepted) the holding of a local referendum in the neighbourhood area to ascertain whether the plan has local support. A majority of those voting is required. The LPA is obliged to give such advice or assistance to qualifying bodies as they consider appropriate for facilitating the making of proposals for neighbourhood development plans, but this does not include a duty to give financial assistance.
The procedure in greater detail
The LPA must be satisfied that the proposal is in the right form, that the qualifying body is authorised in relation to the proposed neighbourhood area, and that publicity and consultation requirements as may be set by regulations have been satisfied. As regards its content, the proposal must not include provision for "excluded development", namely county matters, waste development, projects that fall within Annex 1 of the EU Directive regarding the requirement of environmental assessment, nationally significant infrastructure projects, and other development prescribed by regulations.
Provided that the LPA is satisfied with the basic requirements, and unless the proposal is a repeat proposal, it must pass the draft plan and other supporting or prescribed documents to an independent examiner.
The LPA makes the examination arrangements and appoints the examiner if the qualifying body consents to the appointment - otherwise it is made by the Secretary of State - and the examiner will then deal with certain matters by considering written representations or, in certain circumstances, by means of a hearing.
The scope of the matters to be considered by the examiner is relatively limited. These include matters also required to have been considered by the LPA (whether the qualifying body is authorised etc, and absence of any excluded development) and in addition whether the draft plan meets "the basic conditions". These are that having regard to national policies and advice contained in the Secretary of State`s guidance, it is appropriate to make the plan, that it is in general conformity with the strategic policies contained in the development plan for the area, that it would not breach or be incompatible with EU obligations, and that prescribed conditions etc. are met. There is also a duty to consider "such other matters as may be prescribed". The plan must also be compatible with the Convention on Human Rights. He must also consider whether the area for the referendum should extend beyond the proposed neighbourhood area. No other matters may be considered, so clearly the examiner may not consider the planning merits of proposals (nor may the LPA at all) save to the extent of compliance as outlined above.
The general rule is that the examination takes the form of written representations but a hearing in public will be arranged in respect of particular issues if the examiner considers that this is necessary to ensure adequate examination or a fair chance for a person to put his case.
The examiner must make a report on the draft plan containing recommendations, which are principally concerned with the submission of acceptable proposals to a local referendum. The recommendations that he can make are that the draft plan is submitted, that it is submitted with modifications contained in his report, or that it is refused; but the only modifications that he can make are those that he considers necessary to make the draft plan meet "the basic conditions" or other fundamental statutory requirements such as the promoter being an appropriate qualifying body for the neighbourhood area, etc. If the report recommends submission to referendum, the examiner must also make a recommendation whether the area for the referendum should extend beyond the neighbourhood area.
The LPA must then consider the report recommendations and if it is satisfied that the draft plan meets the basic conditions and the other requirements or would do so with modifications, whether or not recommended by the examiner, a referendum must be held on the draft plan subject to such modifications as the LPA considers appropriate.
The area for the referendum must include the whole of the neighbourhood area, but the LPA may extend the area to include other areas whether or not they fall outside the LPA`s area.
The relevant council must make arrangements for the referendum to take place in so much of their area as falls within the referendum area. The people entitled to vote must satisfy the requirements of being both on the electoral roll and residing in the referendum area, with the exception of the City of London for which special rules apply.
If more than half the people voting have voted in favour, the LPA must make the neighbourhood development plan, but may not do so otherwise.
The Secretary of State has the power to make an order revoking a neighbourhood development plan and the LPA also has the power to revoke but only with the consent of the Secretary of State.
Legal challenge may only be made by judicial review, with a time limit for filing the claim form in Court of six weeks from the date of the publication of the decision to make the plan, or publication of the decision relating to the LPA`s consideration of the examiner`s recommendations, or from the date of declaration of the result of the referendum.
Clarkslegal, specialist Inward Investment lawyers in London, Reading and throughout the Thames Valley.
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