Is the force of localism still with us?
The Localism Bill was heralded as introducing “A new era of people power”. Talk of the Big Society has been eclipsed, but neighbourhood plans have been bigger news than anyone expected. Sue Chadwick highlights some current issues and makes a few predictions.
A New Hope
The Localism Act 2011 [1] [2] provided for a new neighbourhood planning regime, including powers for community groups to establish themselves as neighbourhood forums, designate planning areas, and create their own Development Plans – or ‘NDPs’ for those areas. Plans have to meet a number of criteria including conformity with strategic policies in the relevant local plan, and must be compatible with EU and human rights obligations. The local planning authority should support the process through organising the independent examination of, and referendum for, the NP and will adopt it if the local referendum is in favour. Once adopted the NDP becomes part of the legal framework and planning decisions for the area must be taken in accordance with it. Even an emerging NDP can carry some weight in the planning process [3].
The NDP Awakens
After a slow start, NDPs have become increasingly popular ways for local communities with the will and resources to shape the development of their areas. The Nathaniel Lichfield report: “Neighbourhood Plans: In Theory, in Practice, in The Future” published in June this year [4] identified 1800 designated Neighbourhood Plan Areas, and 160 plans adopted - 62% of which were ‘in force alongside out of date Local Plans'.
NDPs have also received financial support during a time when many local authorities have experienced reduction or removal of central government funding. In November 2015 the Government made £600,000 of resource grant funding to pilot authorities wanting to support neighbourhood planning and from April 2016 any group engaged in producing a plan is entitled to a £9000 grant, with a further £6000 available for groups facing 'complex issues'. [5] This is not the end of the financial benefits either, as once a plan is in place, local areas are eligible to receive 25% of what the local authority receives in Community Infrastructure Levy or ’CIL’ received from new development in the area - which compares favourably with the 15% available where there is no plan. [6] In addition - and in contrast to the restrictions on what local authorities can use CIL for – neighbourhood areas can use this money to provide or improve infrastructure or for “anything else that is concerned with addressing the demands that development places on an area”
The Developers Strike Back
It did not take long for NDPs to become the subject of case law, with three recent cases establishing some significant precedents:
- In June 2015 the Court of Appeal considered whether the Uppingham Neighbourhood plan could include site allocation policies for housing, following a challenge from Larkfleet Homes to the Council’s decision to hold a referendum on it. [7] They confirmed the view taken by Justice Collins that NDPS were not subject to the same regulatory requirements as development plan documents but that the statutory provisions were " plainly wide enough,… to allow site allocation policies to be included in such plans”;
- Within a month, the High Court ruled on another challenge – this time by DLA Delivery Ltd -to the decision of Lewes District Council to adopt an NDP for Newick [8]. In this case, the adopted plan was out of date and so did not contain 'relevant strategic content' while its replacement was still some way from adoption. Justice Foskett had to address the issue of whether the impossibility of being 'in conformity with' relevant strategic policies prevented the adoption of the NDP altogether. Relying strongly on the previous Gladman case [9], he acknowledged that there was in effect no Local Plan to be 'in conformity' with - but concluded that " A neighbourhood development plan may include policies relating to the use and development of land for housing in its neighbourhood even in the absence of any development plan document setting out strategic housing policies”;
- In January this year Justice Holgate ruled on the ‘Crownhall’ case where the developer challenged the decision to adopt an NDP for Loxwood Parish [10] asserting that it was inappropriate to make the NDP in that particular policy context and the plan itself relied on a flawed scoring system. He made clear distinctions between the regulatory framework for NDPs and Local Plans and confirmed that both the Inspector examining the plan and the Council “discharged their respective obligations” without legal defect, and that the plan met the requirement of general conformity with strategic policies.
Not all NDPs have survived challenges so successfully. In March this year Aylesbury Vale decided not to continue to contest a developer challenge to the Haddenham Neighbourhood plan. A High Court Order was then made confirming that Chapter 6 of the Plan, containing policies relating to housing, was quashed with immediate effect. [11]
Revenge of the DCLG?
In some ways the government’s support for neighbourhood planning continues unabated from its enthusiastic origins in 2010. The November 2015 Autumn Statement proposed that local communities could allocate land for housing through neighbourhood plans, even where that land was not allocated in the local plan [12] . The subsequent December 2015 Consultation on the National Planning Policy Framework included proposals for NDPs to allocate “appropriate small scale sites” in the Green Belt specifically for starter homes. [13] In spite of Brexit, the Government still clearly has time and resources to continue to promote neighbourhood planning. On 2nd September the Government published its response to the consultation replies received on Neighbourhood Planning in the Technical consultation. The draft regulations [14] were approved by the House of Lords on 6th September [15] and they will be in place by 1st October, and will require local planning authorities to hold a referendum on a neighbourhood plan within 56 working days of their decision that a referendum should be held, or 84 working days in more complex cases [16]. Their Lordships quibbled over the details of the consultation arrangements but there was broad cross-party agreement that neighbourhood planning should be supported.
In other ways however, central government controls are being tightened in a way which is at odds with the localism agenda. On 14th July 2014 the Secretary of State announced his decision to include housing appeals in neighbourhood plan areas within his general power of 'recovery' to ensure that local people "get the right types of development for their community" [17] This was extended in July 2015, January 2016 and again in 7 July 2016 for another six months, with the criteria refined to residential development of more than 25 units. [18]
More than a phantom menace?
In the House of Lords debate on 6th September their Lordships pointed out that while the government was promoting neighbourhood plans, there was a notable absence of support for local authorities who in some cases were shedding planning officers. There was no substantive response on this point. It seems likely therefore that at the future holds more examples of plans produced under what the Nathaniel Lichfield report named the "bypass model' where neighbourhood plans allocate sites, determine housing numbers and define boundaries in the absence of a current local plan, or even the "inverted model” where the neighbourhood plan takes on the role of strategic planning policy context for that area as the local plan evolves.
In the meantime, the Neighbourhood Planning and Infrastructure Bill has just been published. In terms of neighbourhood planning changes include enhanced status for neighbourhood development plans in the planning system, greater flexibility for modification of plans and more scope for local areas to work together.
The Government has also published two new consultations, the first of which is on the content of the regulations implementing the neighbourhood planning clauses including the procedures for modifying neighbourhood plans and a requirement for local planning authorities to review their Statements of Community Involvement regularly [19]. It does not look as though any time will be wasted in bringing the further changes into effect.
Sue Chadwick is a Senior Associate at Birketts. She can be contacted on 01223 326615 or This email address is being protected from spambots. You need JavaScript enabled to view it..
[1] https://www.gov.uk/government/news/localism-bill-starts-a-new-era-of-people-power
[2] Section 116 and schedules 9, 10 and 11 of the Localism Act 2011
[3] NPPG Paragraph: 007Reference ID: 41- 007-20140306
[4] http://nlpplanning.com/uploads/ffiles/2016/07/327421.pdf
[5] http://mycommunity.org.uk/programme/neighbourhood-planning/?_a=funding
[6] Community Infrastructure Levy (Amendment) Regulations 2013 (SI 2013/982) Amended regulation 59C
[7] http://www.bailii.org/ew/cases/EWCA/Civ/2015/597.html
[8] http://www.bailii.org/ew/cases/EWHC/Admin/2015/2311.html
[9] http://www.bailii.org/ew/cases/EWHC/Admin/2014/4323.html
[10] http://www.bailii.org/ew/cases/EWHC/Admin/2016/73.html
[11] http://www.aylesburyvaledc.gov.uk/haddenham-neighbourhood-plan
[12] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/479749/52229_Blue_Book_PU1865_Web_Accessible.pdf para 3.106
[13] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/488276/151207_Consultation_document.pdf para 49
[14] http://www.legislation.gov.uk/ukdsi/2016/9780111147757/contents
[15] https://hansard.parliament.uk/lords/2016-09-06/debates/16090640000438/NeighbourhoodPlanning(Referendums)(Amendment)Regulations2016
[16] where there is also a business referendum; where the neighbourhood planning area falls within more than one local planning authority area; or where the local planning authority is not the principal authority responsible for arranging the referendum
[17] HC Deb 10 July 2014 c25WS
[18] HCWS 74 7 July 2016