Last reviewed 4 October 2016
Commencement Orders and amendments issued in July 2016 associated with the new Housing and Planning Act and Town and Country Planning Regulations, herald the latest chapter in what is probably the biggest shake-up of planning in a generation. Roland Finch summarises the main changes.
The Housing and Planning Act 2016 (Commencement No. 2 Transitional Provisions and Savings) Regulations 2016 and the Town and Country Planning (Local Planning) (England) (Amendment) Regulations 2016 are probably not pieces of legislation whose titles roll off the tongue easily. However, when they were issued in July 2016, they heralded the latest chapter in a big shake-up of planning.
These regulations give force to certain provisions contained in earlier primary legislation, which further implements and develops the concept of “Neighbourhood Planning”.
Background and context
The Coalition Government, which was in office between 2010 and 2015, announced its intention early in the Parliament to involve local communities in the planning process. It was generally acknowledged that local people found the planning regime overly complicated and difficult to influence, leading to frustration about the amount of perceived “red tape”.
The result was a series of pieces of legislation, aimed at redressing the balance. So over the subsequent years, there have been a collection of Acts which follow and amend the Planning Act of 2008. These are in chronological order:
Localism Act 2011
Growth and Infrastructure Act 2013
Infrastructure Act 2015
Housing and Planning Act 2016.
Each of these has spawned a series of regulations and Commencement Orders bringing various parts of the primary legislation into force.
Neighbourhood planning (first introduced through the Localism Act 2011) is defined as a way to give communities direct power to develop a shared vision for their neighbourhood as follows:
“Neighbourhood planning gives communities direct power to develop a shared vision for their neighbourhood and shape the development and growth of their local area. They [communities] are able to choose where they want new homes, shops and offices to be built, have their say on what those new buildings should look like and what infrastructure should be provided, and grant planning permission for the new buildings they want to see go ahead.
“Neighbourhood planning provides a powerful set of tools for local people to ensure that they get the right types of development for their community where the ambition of the neighbourhood is aligned with the strategic needs and priorities of the wider local area.”
See Planning Practice Guidance website.
In a nutshell, neighbourhood planning is a process whereby communities can influence development in their areas by means of Neighbourhood Development Plans (NDPs), Neighbourhood Development Orders (NDOs) and Community Right to Build Orders.
The legislation gives power to “qualifying bodies” — these include town or parish councils and where they do not exist, designated “neighbourhood forums”, which must meet certain criteria.
NDPs are added to the local plan and are used in deciding planning applications in that area. Although they are not able to block development that is already part of the local plan, they can influence the location and appearance of the development.
There are two other tools that have been introduced by the new neighbourhood planning legislation.
NDOs, which can be used to permit:
material changes of use of land and buildings
Community Right to Build Orders — a special type of NDO which can be used to grant planning permission, but only for small scale development which is for community benefit on a specific site or sites in a designated neighbourhood.
The Localism Act 2011 also places a duty on local authorities to hold referendum(s) where a neighbourhood plan, Order or a Community Right to Build Order has a successful examination and the local planning authority is satisfied that it meets the basic conditions set out in the legislation.
The Housing and Planning Act 2016
The stated intention of this legislation from a planning perspective is to implement some of the detail promised in the earlier legislation.
Although the Act itself received Royal Assent in May 2016, several parts do not come into effect until after that date, with a number starting in October 2016, so the commencement Order described above is therefore quite significant.
Part 6 of the Act concerns neighbourhood planning and the following sections are of particular interest.
Provisions in force from 1 October 2016 are the following.
Section 141 enables the Secretary of State, at the request of a parish council or neighbourhood forum responsible for neighbourhood planning in an area, to intervene in a local planning authority’s decision whether to hold a referendum on a neighbourhood development order or plan proposal.
Section 142 requires a local planning authority, at the request of a neighbourhood forum in their area, to notify the forum of planning applications in the neighbourhood area for which the forum is designated.
Section 145 (Items 1–4) relate to intervention by the Secretary of State and allows the minister to “call in” certain development plans for further inspection and approval.
Section 146 amends the Secretary of State’s default powers. The minister retains his or her current powers but can also direct local planning authority to prepare or revise a document, to submit that document to independent examination, to publish the recommendations of the person appointed to carry out the examination and to consider whether to adopt the document.
Section 147 and schedule 11 relate to the default powers that by Mayor of London or combined authority can exercise.
Section 148 sets out a mechanism for dealing with costs incurred by the Secretary of State in connection with interventions, and in particular the independent examinations of development plans, together with mechanisms showing how these are to be recouped.
Section 156 amends the Town and Country Planning Act 1990, and requires local planning authorities in England to set out how a proposed neighbourhood plan was taken into account in making their recommendation and to identify any points of conflict between the plan and the recommendation.
Section 171 requires the Secretary of State to undertake a review of the planning system to see how it can be improved with regard to the provision of sustainable drainage systems.
In addition to these provisions, ss.9, 10 and 11 of the Act come into force on 31 October 2016. These relate to self-build and custom housing as defined in the Self-build and Custom Housebuilding Act 2015.
Section 9 amends some of the definitions contained in the 2015 Act, while s.10 introduces a new duty for local authorities to allow “sufficient suitable development permissions” to meet demand for this type of housebuilding.
Section 11 permits the Secretary of State to set out in regulations the circumstances whereby local authorities may apply for an exemption of their duty in s.9.
The Town and Country Planning (Local Planning) (England) (Amendment) Regulations 2016
The Town and Country Planning (Local Planning) (England) (Amendment) Regulations 2016 and Neighbourhood Planning (General) and Development Management Procedure (Amendment) Regulations 2016 implement the consequent amendments to the earlier legislation and also in force from 1 October 2016.
Where next with this legislation?
So what is next on the horizon? The Planning Act 2008 and the Localism Act heralded a new process for obtaining planning consent for Nationally Significant Infrastructure Projects (NSIPs).
Development Consent Orders (DCOs) for NSIPs are granted by the Secretary of State as an alternative to needing planning permission from a local authority.
The Housing and Planning Act 2016 also includes provision for a DCO to grant consent for housing which is linked to an application for an NSIP.
In addition, consent may be granted for housing where there is no functional link, but where there is a close geographical link between the housing and the NSIP.
It is anticipated that a Neighbourhood Planning and Infrastructure Act, announced in the Queen’s speech in 2016 will integrate Neighbourhood Planning with this process, as well as regularising the position of the National Infrastructure Commission, and its role in looking at future NSIPs on behalf of the Government.
Meanwhile, the Government has begun consultations on the detail of a proposed Neighbourhood Planning Bill. Details of the consultation can be found here:
And the Bill itself here:
The Government’s stated intention of placing communities at the forefront of planning is well underway. Neighbourhood planning is not a legal requirement and local people have other ways of influencing local planning decisions, but the legislative framework has been rebalanced a little in their favour. All that is needed now is for communities themselves to engage with the process.