Room with a view - Independence Day for Neighbourhood Planning?


20 July 2016

In the brave new post-Brexit world the context is ripe for the rise and rise of the neighbourhood plan.

In the brave new post-Brexit world, with traditional power structures disintegrating and previously overlooked sectors of the population making themselves heard, the context is ripe for the rise and rise of the neighbourhood plan.

Developers hoping to build in an area where a new planning forum is proposed or a neighbourhood plan is in the pipeline ignore these local voices at their peril.

What is neighbourhood planning?

Neighbourhood planning was introduced by the Localism Act 2011. The most significant local plan powers are the ability for a local community to:

  • create a neighbourhood planning forum
  • get a local area designated as a local planning area
  • facilitate certain types of development through a Development Order
  • designate land for development in the area through neighbourhood plans.

Why is it important?

Neighbourhood planning enables local communities to have genuine and increasingly significant control over what can and cannot be built in their areas. The most serious impacts will be felt where there is an emerging neighbourhood plan close to adoption or a neighbourhood plan is in place and more up to date than the local authority one. However, if current plans to allow Community Infrastructure Levy (CIL) funding to be reserved for and diverted to local areas are formally approved, then neighbourhood planning forums – and parish councils - could have a significant financial role in new developments too.

Neighbourhood plans

It is important to remember that a neighbourhood plan, once adopted, becomes part of the formal ‘development plan’ for the area – and must be taken into account when any application is determined. Even an emerging plan will be a significant material consideration in such determinations. At a time when councils are still struggling to adopt sound and compliant area-wide plans it is wise to pay attention to both emerging and adopted versions of neighbourhood plans as they may well represent the most up to date and therefore influential local planning policies affecting development proposals in a given local area.

It is even more important to be aware that where there is conflict between a development proposal and a neighbourhood site designation, the neighbourhood plan, if up to date, is likely to be highly significant and may give the local council a good reason for refusal of that proposal.

The increasing significance of neighbourhood plans is demonstrated by a significant increase in case law on this topic in the last few years. The three summarised here are both recent and significant in different ways.
 

  • In the ‘Crownhall Estates’ case (1) the developer challenged the decision of Chichester District Council to allow a vote on adoption of the Lowood Neighbourhood Plan. The developer claimed that the council’s site selection exercise was defective and should in particular have allocated more land for housing development than it did. The court disagreed, supporting the approach taken by the independent examiner to site selection. The plan remained in place, frustrating Crownhall’s development ambitions.
     
  • In the ‘Larkfleet Homes’ (2) case the developer asserted that it was not legitimate for specific site allocations to be set out in a neighbourhood plan. The Court of Appeal rejected this assertion and confirmed the view taken in the previous High Court decision: “The provisions relating specifically to neighbourhood development plans are plainly wide enough…to allow site allocation policies to be included”.
     
  • In the ‘DLA Delivery” case (3) the High Court considered, among other matters, the role of an adopted Neighbourhood Development Plan (NDP) where there was no general development plan in place, so that it was impossible, practically, for the NDP to be ‘in conformity with’ the superior plan. In these circumstances, Justice Foskett ruled that the NDP would still be a material consideration, and might be useful in “unlocking for development a site that has general planning merit”.

Neighbourhood portions

As well as having significant impact in terms of strategic plan policies, neighbourhood forums could also have significant amounts of infrastructure spending money – often referred to as the ‘neighbourhood portion’.

Under the Community Infrastructure Levy (Amendment) Regulations 2013, 15% of all money received from Community Infrastructure Levy (CIL) must be transferred to the local area but this proportion increases to 25% where there is a neighbourhood plan in place.

While a charging authority is required to apply CIL to funding ’infrastructure’ – and to define what that means, the neighbourhood portion can either be applied to infrastructure or to anything else that ’supports the development of an area’ (4) including affordable housing. Although guidance advises local councils to work closely with the charging authority (5), the councils are not required to follow the charging authority’s priorities.

Future implications

Parish councils and planning forums have not traditionally been seen as significant players in the development process but their potential to frustrate - or positively influence development has increased and is unlikely to diminish in the near future. Indeed there are clear indications that their powers will increase rather than diminish.

The Housing and Planning Act 2016 includes:

  • powers for the Secretary of State to prescribe time periods within which local planning authorities must undertake key neighbourhood planning functions, and to intervene in some local authority decision making in relation to local referenda
  • a new duty for all local authorities to notify the forum of planning applications in the neighbourhood area in which the forum is designated
  • the power for the Secretary of State to amend the definition of ‘planning authority’ and ‘relevant planning function’ in relation to the new duty to promote the supply of starter homes.

The Government has already published draft regulations on the changes to referenda timetables, and these are due to come into force on 1 October (6). They amend the existing regulations (7) by imposing shorter, specific, timetables on the referendum process involved in approving a neighbourhood plan.

The Neighbourhood Planning and Infrastructure Bill is likely to be published in the summer and the notes to the Queen’s Speech suggest that it will include measures to “Further empower local communities to plan the homes and infrastructure that they need” including strengthening neighbourhood planning by “making the local government duty to support groups more transparent and by improving the process for reviewing and updating plans.”

Conclusion

Local bodies such as parish councils and neighbourhood planning forums are sometimes seen as potentially problematic in development terms and they certainly have the power to restrict development through neighbourhood plan policies. On the other hand, they also have the potential to facilitate the implementation of a development where they can be persuaded to use CIL receipts towards the provision of complementary infrastructure.

If you are planning development in an area with an existing parish council or neighbourhood plan, or there is an emerging planning forum in the area engaged in promoting formal designation of its area or in the early stages of plan formation, it makes sense to find out as much as possible about their ambitions for the area.

(1) R(Crownhall Estates Ltd) v Chichester District Council [2016] EWHC 73 (Admin)
(2) R (Larkfleet Homes) v Rutland County Council [2015] EWCA Civ 597
(3) R(DLA Delivery Ltd) v Lewes DC [2015] EWHC 2311 (Admin)
(4) Reg 59C
(5) Paragraph: 079 Reference ID: 25-079-20140612
(6) The Neighbourhood Planning (Referendums) (Amendment) Regulations 2016
(7) Neighbourhood Planning (Referendums) Regulations 2012 (S.I. 2012/2031)

The content of this article is for general information only. For further information regarding neighbourhood planning, please contact Sue Chadwick. Law covered as at July 2016.