PART ONE

Introduction

On 18^th November 2010 Greg Clark, the then Shadow Secretary of State for Energy and Climate Change in October 2008, gave a speech to Localis, an independent, think tank promoting neo-localist ideas.¹ Mr Clark talked about the need to “reboot planning to meet the needs of the 21st century” and went on to assert that “The principle is simple. Local people come together and agree, “this is what we want our area to look like. Here is where we want the new homes to go and how we want them designed; here is where we want new shops and offices; here are the green spaces we want to protect.”

On 13^th December 2010 Eric Pickles, then Secretary of State for Communities and Local Government, introduced the Localism Bill to Parliament², claiming that it would function as the foundation of the Coalition’s vision of a new, ‘big society… radically transforming the relationships between central government, local government, communities and individuals’. The Bill included proposals for a new element of the planning system – Neighbourhood Planning – comprising:

• A new category of development order – the Community Right to Build – enabling permission to be granted in certain places for certain types of development;

• A new kind of development plan – the Neighbourhood Development Plan (“NDP”); made by communities rather than local authorities.

Although Mr Pickles described the proposals as a “triumph for democracy over bureaucracy”³ this statement was not supported by the complex web of laws and policies that are currently in place to regulate the process of making and adopting a neighbourhood plan.

The Localism Act introduces selective changes to existing planning Acts: the Town and Country Planning Act 1990 (“the 1990 Act”) and the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) and delegated legislation, principally The Neighbourhood Planning (General) Regulations 2012⁴ (“the 2012 Regulations”) and the Neighbourhood Planning (Referendums) Regulations 2012⁵ (“the Referendum Regulations”). Further changes have been brought in with the Housing and Planning Act 2016 and the Neighbourhood Planning Act 2017. In addition, neighbourhood planning is referred to a number of times in the 2012 National Planning Policy Framework (“the Framework”) and has its own section in the government’s online National Planning Policy Guidance (“the NPPG”). In Kebbell Developments Mr Justice Kerr agreed with the description of the current system as a “statutory thicket”⁶ and it is hard to disagree.

It is a long time since any politician has mentioned the Big Society. The vote on whether or not to leave Europe revealed an increasingly divided nation and in this post-Brexit world political attention is focussed on economic survival and solving the housing crisis. . Nevertheless, neighbourhood planning is alive and well and appears to be one of the few areas of law and policy that politicians on both sides of the house see as largely positive. It has been a rare political success story for the Government, and is an enduringly popular concept with local communities. This political support has been backed up by the plans in practice. Some neighbourhood plans have been able to prevent or control local development as, if not more, effectively than the local plan.

Neighbourhood planning has been good for the lawyers too: neighbourhood plans have generated a significant amount of case law, in areas including compliance with key European Directives on Environmental Assessment and Habitats Regulations, the requirement for the plan to be ‘in conformity with’ the relevant local authority plan, and even whether or not plan examiners were biased. The legal and policy context is wide and complex, and the issues are significant and contentious. For the local group considering its own plan, or for the local authority charged with overseeing the development and adoption of such a plan, the prospects can be daunting.

This book is intended to provide an overview of the making, adoption, and implementation of the neighbourhood development plan. It will set out an overview of the process, and the legislation driving that process and will identify and explain the key conclusions in the relevant case law in each area. It will include, where relevant, reference to key national planning policy and guidance, and will end with a reflection on the current and future relevance of neighbourhood planning in the planning landscape.

Overview of the Neighbourhood Plan Process

Traditional development plans produced by local authorities involve the following key stages:

• Information gathering involving research and analysis on a range of economic, social and environmental subjects to provide a factual base for the plan and initial consultation with local councils and other relevant bodies.

• Publication of an Issues Paper setting out a series of strategic, general and local issues against which representations may be lodged.

• Further consultation and research before publication of the draft plan and a further consultation.

• An examination in Public which can take months, sometimes more than a year, to conclude.

• Publication of the Examiners report and adoption of the plan.

In addition, in order to show compliance with the Framework, the local authority must show that: 1) the statutory duty to cooperate contained in section 110 of the Localism Act 2011 has been taken into account and complied with and 2) that the plan meets the criteria set out in the NPPG to show that it is ‘sound’. This is a long and complex process. Indeed, the difficulty of getting plans adopted was considered in the 2014 report of the House of Commons Communities and Local Government Committee⁷ who described plan production as a game of ‘snakes and ladders’ where years of progress could be negated in the final stages of plan production with the publication of an unfavourable inspector’s report.

In contrast the neighbourhood plan involves just one significant consultation stage and may be examined without any need for a public hearing. The basic process for making and adopting an NDP can be summarised as follows:

• There must be a valid qualifying body to make the plan.

• There must be a designated area to which the plan relates.

• The qualifying body begins with preparation of a draft of the plan and consults on it locally. The relevant local authority must give advice and assistance as it considers appropriate during this process. As soon as the draft plan exists, it will be a material consideration in the determination of planning applications.

• The qualifying body then submits the plan formally to the relevant local planning authority.

• If the local planning authority is satisfied that the draft plan meets certain statutory requirements it must publish the plan, consult on it publicly and then submit the draft plan for independent examination by an examiner appointed for that purpose.

• The examiner must consider whether the draft plan meets “the basic conditions” including whether or not it is appropriate to make the order having regard to national policies and advice, and whether the order is “in general conformity with” strategic policies in the development plan.

• The examiner must take into account representations made. These are generally made in writing rather than orally, but there is scope for an oral hearing in some circumstances.

• The examiner must make a report on the draft plan, with reasons, and recommendations.

• The examiner can recommend modifications where the examiner considers that they are required to secure that the draft plan meets the basic conditions. The examiner may recommend that the draft plan should be submitted to a referendum; or that it should be submitted to a referendum with specified modifications; or that it should be rejected.

• The local planning authority must consider the examiner’s recommendations and reasons and decide what action to take. The authority must publish its “decision statement” if satisfied that the draft plan meets the “basic conditions”.

• The only modifications the local planning authority may make to the draft plan are modifications it considers necessary to “secure that the draft [plan] meets the basic conditions.

• If the local planning authority proposes to make a decision that differs from that recommended by the examiner the authority must notify “prescribed persons” of its decision and reasons, and invite representations, or refer the issue to independent examination.

• If satisfied that the basic conditions are met the local planning authority must put the draft plan to a local referendum.

• Once held, if the referendum is in favour of making the plan, it is made.

• Once made, the NDP becomes part of the ‘Development Plan for the area with equal status to other local authority policies and is taken into account as a primary consideration in all planning decisions.

As soon as neighbourhood plan is formally adopted it becomes a key element in the complex process of considering and deciding planning applications, because it becomes one of the documents that must be considered in the determination of all applications – the development plan.

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