Planning matters

19 July 2017 update: the first Regulations commencing a series of provisions in the Neighbourhood Planning Act 2017 were laid on 18 July and are already in force.

The key plan-making provision now in force under the Neighbourhood Planning Act 2017 (Commencement No. 1) Regulations 2017 is in s12 of the Act; it means that the Secretary of State (SoS) can go ahead and make the new Regulations (under the power in force since enactment) that will prescribe the detail of how often a local planning authority must review its local development documents (LDDs) and whether or not revision ensues.

Also for plan-making, s1 is now in force so that a local planning authority has to have regard to a ‘post-examination’, unmade neighbourhood development plan (‘neighbourhood plan’) as a material consideration in the determination of planning applications. In force too is the definition in the same section of what constitutes a post-examination neighbourhood plan (and the circumstances when a draft neighbourhood plan ceases to be a post-examination neighbourhood plan [also in s1]). 

With s3 now in force, just prior to a draft neighbourhood plan being made after succeeding at referendum, it is now the case that the Plan forms part of the development plan (but it would not continue to do so if the LPA were to decide it should not be made).

S11 being in force now means that the SoS can publish data standards that will set the technical specifications required for local development schemes and LDDs (including local plans). Both the SoS and London’s Mayor can also now direct councils to revise their LDS’, to comply with the published data standards.

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The Neighbourhood Planning Act 2017 (NPA 2017) gained Royal Assent on 27 April, and several of its provisions have already come into force.  This guide focusses on the measures in the Act relating to plan-making.

The NPA 2017 confirms the Government message that neighbourhood planning is here to stay; local planning authorities (LPAs) must support it, and once section 1 is brought into force, a ‘post-examination’ unmade neighbourhood development plan (‘neighbourhood plan’) will have to be taken into account in the determination of planning applications. 

The Act defines a post-examination neighbourhood plan and stipulates when a draft neighbourhood plan would cease to be considered a post-examination neighbourhood plan (also in section 1).  And at the next stage, just prior to a draft neighbourhood plan being made after succeeding at referendum, the Plan will form part of the development plan (but it would not continue to do so if the LPA decides it should not be made) (section 3).

Neighbourhood plan examiners will have to provide the neighbourhood planning body, the LPA and any others prescribed in regulations with the opportunity to meet at certain stages of the examination process (future regulations can stipulate the procedure and what is to be discussed), and examiners will also have to publish a draft report (section 7).

Councils will have to spell out, in their Statements of Community Involvement (SCI), exactly how they will help neighbourhood plan-making bodies (section 6).

The Act also includes steps for modifying ‘made’ neighbourhood plans and (and orders) (section 4), and provisions for changing neighbourhood area boundaries (section 5).  Section 4 is now in force, to the extent that it permits the Secretary of State (SoS) to make the necessary regulations.

A September 2016 technical consultation set out the details of the neighbourhood planning procedures proposed.  The Government’s response to the technical consultation reported that most respondents supported the proposals, which will require amendments to regulations, including the Neighbourhood Planning (General) Regulations 2012.  Amendments relating to the content of an SCI will require amendments to the Town and Country Planning (Local Planning) (England) Regulations 2012.

It is worth recalling that during the passage of the NPA 2017, the Housing and Planning Minister issued a written ministerial statement (WMS) demonstrating the Government’s support for neighbourhood planning. Since then, and in making a planning decision on proposed residential development, the relevant policies for the supply of housing in a made neighbourhood plan (i.e. part of the development plan), should not be deemed ‘out of date’ in the context of paragraph 49 of the National Planning Policy Framework, when all of the following circumstances apply:

• the WMS is less than 2 years old, or the neighbourhood plan has been part of the development plan for 2 years or less;
• the neighbourhood plan allocates sites for housing; and
• the LPA can demonstrate a three-year supply of deliverable housing sites.

In contrast to support for ‘bottom-up’ planning shown in the neighbourhood planning sections of the Act , the changes proposed in the ‘local’ planning sections are very much ‘top-down’.

In the context of the Government seeking to ensure that all LPAs have an up to date local plan, provisions in the Act mean the SoS will be able to make regulations to require a LPA to review local development documents (LDDs) i.e. statutory development plan documents (DPDs) and non-statutory supplementary planning documents (SPDs) ‘at prescribed times’.  If the LPA considers that, having reviewed a LDD, it does not need to revise it, the authority would have to publish its reasons (section 12).   The regulations may also specify the matters an SCI must include (section 13, which is in force to the extent that it gives the SoS power to make regulations, as is section 12).

Other provisions will allow the preparation of a local plan to be taken out of the hands of a single local planning authority, whilst avoiding the SoS preparing it directly: this ‘should very much be a last resort’, according to Housing and Planning Minister Gavin Barwell.

The SoS will have a new power to direct two or more LPAs to prepare a joint DPD, if  it would ‘facilitate the more effective planning of the development and use of land’ in one or more of their areas (including a spatial development strategy, where applicable) (section 9).  The powers would include the SoS setting a timetable for joint plan preparation, and specifying the areas and matters to be covered – even though he or she cannot do so for ‘standard’ (i.e. non-joint) DPDs.  The SoS may modify or withdraw the direction, and the SoS, Mayor or a combined authority will be able to apportion liability for expenditure on joint plan preparation as the SoS considers appropriate.  Section 9 is also in force to the extent that it permits the SoS to make regulations.

County councils will be given default powers by invitation from the SoS to prepare DPDs where the SoS thinks that a district council in the County Council’s area is failing or omitting to prepare, revise or adopt a DPD (section 10).

LPA DPDs ‘taken as a whole’ will have to ‘identify the strategic priorities for the development and use of land in the authority’s area’ (as per the National Planning Policy Framework now) – but not in London, a mayoral development corporation, or where there is a combined authority that produces a spatial development strategy, and the LPA is satisfied that the spatial development strategy sets out the strategic priorities (section 8).  This requirement relates to the Government’s Housing White Paper proposal to ensure that every authority is covered by a plan, but removes the expectation that they should be covered by a single local plan:

And the SoS must issue guidance for LPAs on how their LDDs (taken as a whole) should address the housing needs that relate to old age or disability.  The Housing White Paper explains more:

Data standards for local development schemes or documents may be set by the SoS by Regulations (section 11), as the Government believes ‘to capitalise on the opportunities provided by new technology and gain maximum value, key planning data need to be published in a consistent format across the country’.  The ‘consistent format’ will include definitions and data standards will reflect Open Data principles, according to ‘The Neighbourhood Planning Bill: Further information on how the Government intends to exercise the Bill’s delegated powers’(the ‘further information document’).  A digital planning pilot programme is proposed, in order to establish the data standards that are of most value to the planning system, followed by a 2017/18 consultation with LPAs.

With the exception of the requirement to provide guidance as to how LDDs should address housing needs that relate to old age or disability, new or amended secondary legislation will be required – notably, amendments to the Town and Country Planning (Local Planning) (England) Regulations 2012 which set out the procedures for preparing LDDs.

Provided that the seemingly inevitable occurs, and Conservatives win the general election, it is highly likely that ministers and civil servants will pick up where they left off with the amendment and drafting of regulations, orders and guidance required by the Act.  Consequently, the development plan – albeit with increased emphasis on the relative importance of the role of the neighbourhood plan - will continue to be considered a key tool in the Government’s policy paraphernalia for increasing the number of housing starts, and providing more certainty for all forms of development.