The Neighbourhood Planning (General) Regulations

Thornton Allen, the new Leisure and Tourism Commercial Property Partner comments….

Neighbourhood Planning is the new initiative set out in the Localism Act 2011 which is designed to give the community greater ownership of matters that affect their local area. Through the decentralisation of planning powers, it is hoped there will be a more positive approach to sustainable development. Neighbourhood Planning is designed to give communities the opportunity to determine where new homes, shops and offices are to  be built; grant planning permission to buildings which they wish to see go ahead, and to have a say in what those buildings look like.

The Neighbourhood Planning (General) Regulations 2012 (the Regulations) are due to come into force on 6 April 2012. They add flesh to the bones of the new system of Neighbourhood Planning outlined in the Localism Act, setting out detailed provisions for the setting up and administration of neighbourhood areas.

A neighbourhood area is an area which, for the purposes of Neighbourhood Planning, is agreed by the local authority as the area to make decisions in relation to the following:

  • Neighbourhood forums;
  • Neighbourhood Development Plans,
  • Neighbourhood Development Orders and Community Right to Build Orders.

The Regulations seek to deal with all of the above and the process for their establishment. An explanation of each of the key elements is set out below.

Neighbourhood forums

Part 3 of the Regulations contains provisions for the setting up of Neighbourhood forums, who will govern activities within the neighbourhood area. In order for an organisation or body to be given neighbourhood forum status there are certain criteria that need to be met. The local planning authority will need to be satisfied that:

  • the purpose of the creation of the forum is to promote or improve the "social, economic, and environmental well being of an area"
  • its membership must be open to individuals who are within the neighbourhood area
  • its membership must includes a minimum of 21 people who are in the neighbourhood area

Any proposal which meets the criteria must be granted and the Local Planning Authority will have no discretion to decline an application. The provisions particularly focus on the content of applications and the role the local authority has to play in publicising any application and designation of a neighbourhood forum. The local authority needs to publicise the application on a website and any other means thought to be appropriate to bring the application to the attention of those who live, work or carry on business in the area.

The publication needs to contain a copy of the application; a statement to the effect that no further designation of a body can be made for a neighbourhood until that designation expires or is withdrawn; details of how representations can be made and the closing date for the representations to be made.

Neighbourhood Development Plans (NDPs)

Part 5 of the Regulations contains provisions relating to the creation of NDPs. An NDP will set out the planning policies for the development and use of the land in a neighbourhood. The proposed plans are received from the parish council or the neighbourhood forum, and following a referendum the local authority will make the plans.

There is particular attention made to the consultation and publicity of the plan prior to the submission of the proposal to the local authority. Equally the decision making and publication processes adopted by the local authority are dealt with in the provisions. The neighbourhood forum or the parish council initiate the process for adoption of the NDP and the local authority will have an obligation to provide support and ensure compliance. Before the plan is put to a referendum it will be considered by a professionally qualified independent assessor to ensure that the plan complies with both legal requirements and national planning policy. The plan will equally need to be aligned with neighbouring plans and strategic elements of the development plan.

The Plan will then be put to a referendum, the referendum has to include the whole of the neighbourhood area. All of the votes are equally weighted so there is no opportunity for 'outvoting', for example, where someone living close to a potential development has more of a weighting than someone living further away. The referendum will operate on a simple majority vote and if a plan is passed at the referendum then the local authority will be under a duty to adopt the NDP.

Neighbourhood Development Orders (NDOs) and Community Right to Build Orders

NDOs give the community the chance to permit certain types of development without the need for a planning application. The proposals are put forward by either the neighbourhood forum or the parish council. Again, as with NDPs, the Regulations set out the procedure for a referendum and then the local planning authority will put the plans in place. There are special provisions required to ensure compliance with consultation, submission and decision making. The referendum will be decided on a majority vote and if the proposals pass the referendum the local authority will be under a legal duty to bring them into force
Community right to build orders are a form of NDO. They allow certain community organisations to bring forward smaller scale development on smaller sites without the need for planning permission. Any benefit from the community development order has to stay within the community.

Specifically, they must take into consideration superior planning policy and must be in conformity with the development plan for the local area. Further, they must be compatible with EU and human rights obligations. To ensure this, a qualified independent assessor will check the proposals before they are put to a referendum to ensure that they are of workable quality. The referendum will be decided on a majority vote and if the proposals pass the referendum the local authority will be under a legal duty to bring them into force.

All of the key features introduced under the Neighbourhood Planning Regulations have to meet certain conditions before they can be put to a referendum; this is to ensure that the proposals are legally compliant and that they are in accordance with the wider national planning policy. In this way, it is hoped that Neighbourhood Planning will not be used as a mechanism for blocking development. As the Government has made clear, it hopes and intends that "localism" will in fact lead to more development, and not less.

Additional provisions

Further matters addressed by the Regulations include provision for the revocation or modification of a NDO (including a community right to build order) and NDPs (Part 8 of the Regulations) and provision to ensure that the correct methods of publication are exercised.

Schedule 1 sets out the different consultation bodies, providing a list of consultees for neighbourhood development plans, neighbourhood development orders and community right to build orders.

Part 9 gives effect to Schedules 2 and 3 which are concerned with the Habitats Directive and the Environmental Impacts Assessment Directive respectively, and the correct procedures and assessments taking place.
Schedule 2 is concerned with the Habitats Directive which requires any plan or project which is likely to have a significant impact on a European site then it must be subject to an appropriate assessment.

Schedule 3 provides provisions relating to the Environmental Impacts Assessment Directive. The Directive requires that EIA development has to be subject to a development consent process.

As set out above, the Regulations are due to come into force on the 6th April 2012 and it has already been reported that local communities are keen to be involved in the shaping of their community for the future; the results of how this will work in practice will be eagerly anticipated. A key difficulty that may prevent the take up of these new powers will be both lack of funding, and (perhaps as a result) a lack of expertise and knowledge to draw up effective and compliant plans and orders.

For further information, please contact Thornton Allen on thornton.allen@michelmores.com or 01392 687726. Thornton has recently joined Michelmores as a partner in the commercial property team and will be able to assist you with any commercial property issues you may have.

Author: David Richardson

Category: Sectors

Last updated: 2012-07-16 14:45:49

Disclaimer: This information has been prepared by Michelmores LLP as a general guide only and does not constitute legal advice on any specific matter and should not be relied upon as such. We recommend that you seek professional advice before taking action. No liability can be accepted by us for any action taken or not taken as a result of this information.

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