Under starter's orders

Two weeks ago, Peter Stevens wrote about the government’s proposals in the Localism Bill for neighbourhood development plans. In the second of a two-part series, he now looks at what the legislation says about neighbourhood development orders.

In the recently published Localism Bill, the same rules regarding the body that can be a qualifying body entitled to initiate the process for making a neighbourhood development order and as regards the neighbourhood area, are applicable to neighbourhood development orders as they are to neighbourhood development plans.

The effect of a neighbourhood development order is that it grants planning permission in relation to a particular neighbourhood area either for development specified in the order or for development of any class specified in the order, but this cannot include excluded development (defined in the same way as for neighbourhood development plans).

The order may make provision in relation to all land in the neighbourhood area, or any part of that land, or a site in that area specified in the order. It may not grant permission for development where planning permission is already granted for that development. It may make different provision for different cases or circumstances and may be granted unconditionally or subject to conditions or limitations, but conditions may only relate to obtaining the approval of the LPA, but not of anyone else, and specify the period within which applications for approval must be made.

However the above is subject to the power for regulations to be made under the proposed Act entitling a parish council, in prescribed circumstances, to require any application for approval to be determined by them instead of by the LPA and the regulations may make provision for the procedure and other matters relating to the powers of parish councils.

An order may provide for the granting of planning permission to be subject to a condition that the development commences before the end of the period prescribed in the order.

The procedure that will lead to the LPA making a neighbourhood development order is in many respects identical to that as for making a neighbourhood development plan, including independent examination, consultation with and participation by the public, the holding of a referendum, voting rights and the obligation to make the order if more than half the people voting are in favour.

The arrangements for appointing an examiner and holding the examination, and the scope of the matters to be considered by the examiner, are exactly the same as for neighbourhood development plans except that, in addition, he must consider whether any period specified as that within which an application must be made for the approval of the authority of any matter, or the period specified as that within which the development must be commenced, are appropriate.  This therefore covers matters such as the basic conditions (appropriateness having regard to national policies and guidance issued by the Secretary of State, general conformity with the strategic policies contained in the development plan, and compliance with EU obligations) and non-contravention with the Convention on Human Rights.

The planning merits of the proposed order are not for consideration by the LPA or by the examiner (except to the extent of compliance with those matters outlined above) but it is possible that the obligation to consider "such other matters as may be prescribed" or the Secretary of State`s guidance might impose some blanket restriction on particular forms of development over and above excluded development.

The same rules apply to the recommendations that can be made by the examiner as regards whether the draft order is to be submitted to a referendum and the nature of the modifications that he may make, with the addition of the entitlement to make recommendations for modifications on the time limits referred to above; and likewise the consideration of the recommendations by the LPA and the modifications that it may make before the draft order goes to the referendum.

The same requirements also apply as regards the holding of the referendum, the people entitled to vote and the obligation on the LPA to make the order if more than half of the people voting in the referendum have voted in favour, but may not do so otherwise.

The Secretary of State has the power to make an order revoking a neighbourhood development order 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 order, 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.

Peter Stevens is a partner at Clarkslegal (www.clarkslegal.com). He can be contacted on 020 7539 8065 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..