(7) The Secretary of State or another local planning authority may
enter into arrangements with the authority for the provision of the
services of any of their employees as examiners.

(8) Those arrangements may include—

(a) 5provision requiring payments to be made by the authority
to the Secretary of State or other local planning authority,
and

(b) other provision in relation to those payments and other
financial matters.

8 (1) 10The examiner must consider the following—

(a) whether the draft neighbourhood development order
meets the basic conditions (see sub-paragraph (2)),

(b) whether the draft order complies with the provision made
by or under sections 61E(2), 61I and 61K,

(c) 15whether any period specified under section 61K(2)(b) or
(5) is appropriate,

(d) whether the area for any referendum should extend
beyond the neighbourhood area to which the draft order
relates, and

(e) 20such other matters as may be prescribed.

(2) A draft order meets the basic conditions if—

(a) having regard to national policies and advice contained in
guidance issued by the Secretary of State, it is appropriate
to make the order,

(b) 25having special regard to the desirability of preserving any
listed building or its setting or any features of special
architectural or historic interest that it possesses, it is
appropriate to make the order,

(c) having special regard to the desirability of preserving or
30enhancing the character or appearance of any conservation
area, it is appropriate to make the order,

(d) the making of the order is in general conformity with the
strategic policies contained in the development plan for
the area of the authority (or any part of that area),

(e) 35the making of the order does not breach, and is otherwise
compatible with, EU obligations, and

(f) prescribed conditions are met in relation to the order and
prescribed matters have been complied with in connection
with the proposal for the order.

(3) 40Sub-paragraph (2)(b) applies in relation to a listed building only in
so far as the order grants planning permission for development
that affects the building or its setting.

(4) Sub-paragraph (2)(c) applies in relation to a conservation area
only in so far as the order grants planning permission for
45development in relation to buildings or other land in the area.

(5) In this paragraph “listed building” has the same meaning as in the
Planning (Listed Buildings and Conservation Areas) Act 1990.

(6) The examiner is not to consider any matter that does not fall
within sub-paragraph (1) (apart from considering whether the
draft order is compatible with the Convention rights).

9 (1) The general rule is that the examination of the issues by the
5examiner is to take the form of the consideration of written
representations.

(2) But the examiner must cause a hearing to be held for the purpose
of receiving oral representations about a particular issue at the
hearing—

(a) 10in any case where the examiner considers that the
consideration of oral representations is necessary to ensure
adequate examination of the issue or a person has a fair
chance to put a case, or

(b) in such other cases as may be prescribed.

(3) 15The following persons are entitled to make oral representations
about the issue at the hearing—

(a) the qualifying body,

(b) the local planning authority,

(c) where the hearing is held to give a person a fair chance to
20put a case, that person, and

(d) such other persons as may be prescribed.

(4) The hearing must be in public.

(5) It is for the examiner to decide how the hearing is to be conducted,
including—

(a) 25whether a person making oral representations may be
questioned by another person and, if so, the matters to
which the questioning may relate, and

(b) the amount of time for the making of a person’s oral
representations or for any questioning by another person.

(6) 30In making decisions about the questioning of a person’s oral
representations by another, the examiner must apply the principle
that the questioning should be done by the examiner except where
the examiner considers that questioning by another is necessary to
ensure—

(a) 35adequate examination of a particular issue, or

(b) a person has a fair chance to put a case.

(7) Sub-paragraph (5) is subject to regulations under paragraph 11.

10 (1) The examiner must make a report on the draft order containing
recommendations in accordance with this paragraph (and no
40other recommendations).

(2) The report must recommend either—

(a) that the draft order is submitted to a referendum, or

(b) that modifications specified in the report are made to the
draft order and that the draft order as modified is
45submitted to a referendum, or

(c) that the proposal for the order is refused.

(3) The only modifications that may be recommended are—

(a) modifications that the examiner considers need to be made
to secure that the draft order meets the basic conditions
mentioned in paragraph 8(2),

(b) 5modifications that the examiner considers need to be made
to secure that the draft order is compatible with the
Convention rights,

(c) modifications that the examiner considers need to be made
to secure that the draft order complies with the provision
10made by or under sections 61E(2), 61I and 61K,

(d) modifications specifying a period under section 61K(2)(b)
or (5), and

(e) modifications for the purpose of correcting errors.

(4) The report may not recommend that an order (with or without
15modifications) is submitted to a referendum if the examiner
considers that the order does not—

(a) meet the basic conditions mentioned in paragraph 8(2), or

(b) comply with the provision made by or under sections
61E(2), 61I and 61K.

(5) 20If the report recommends that an order (with or without
modifications) is submitted to a referendum, the report must also
make—

(a) a recommendation as to whether the area for the
referendum should extend beyond the neighbourhood
25area to which the order relates, and

(b) if a recommendation is made for an extended area, a
recommendation as to what the extended area should be.

(6) The report must—

(a) give reasons for each of its recommendations, and

(b) 30contain a summary of its main findings.

(7) The examiner must send a copy of the report to the qualifying
body and the local planning authority.

(8) The local planning authority must then arrange for the publication
of the report in such manner as may be prescribed.

11 (1) 35Regulations may make provision in connection with examinations
under paragraph 7.

(2) The regulations may in particular make provision as to—

(a) the giving of notice and publicity in connection with an
examination,

(b) 40the information and documents relating to an examination
that are to be made available to the public,

(c) the making of reasonable charges for anything provided as
a result of the regulations,

(d) the making of written or oral representations in relation to
45draft neighbourhood development orders (including the
time by which written representations must be made),

(e) the written representations which are to be, or which may
be or may not be, considered at an examination,

(f) the refusal to allow oral representations of a prescribed
description to be made at a hearing,

(g) the procedure to be followed at an examination (including
the procedure to be followed at a hearing),

(h) 5the payment by a local planning authority of remuneration
and expenses of the examiner, and

(i) the award of costs by the examiner.

Consideration by authority of recommendations made by examiner etc

12 (1) This paragraph applies if an examiner has made a report under
10paragraph 10.

(2) The local planning authority must—

(a) consider each of the recommendations made by the report
(and the reasons for them), and

(b) decide what action to take in response to each
15recommendation.

(3) The authority must also consider such other matters as may be
prescribed.

(4) If the authority are satisfied—

(a) that the draft order meets the basic conditions mentioned
20in paragraph 8(2), is compatible with the Convention
rights and complies with the provision made by or under
sections 61E(2), 61I and 61K, or

(b) that the draft order would meet those conditions, be
compatible with those rights and comply with that
25provision if modifications were made to the draft order
(whether or not recommended by the examiner),

a referendum in accordance with paragraph 14 must be held on
the making by the authority of a neighbourhood development
order.

(5) 30The order on which the referendum is to be held is the draft order
subject to such modifications (if any) as the authority consider
appropriate.

(6) The only modifications that the authority may make are—

(a) modifications that the authority consider need to be made
35to secure that the draft order meets the basic conditions
mentioned in paragraph 8(2),

(b) modifications that the authority consider need to be made
to secure that the draft order is compatible with the
Convention rights,

(c) 40modifications that the authority consider need to be made
to secure that the draft order complies with the provision
made by or under sections 61E(2), 61I and 61K,

(d) modifications specifying a period under section 61K(2)(b)
or (5), and

(e) 45modifications for the purpose of correcting errors.

(7) The area in which the referendum is to take place must, as a
minimum, be the neighbourhood area to which the proposed
order relates.

(8) If the authority consider it appropriate to do so, they may extend
5the area in which the referendum is to take place to include other
areas (whether or not those areas fall wholly or partly outside the
authority’s area).

(9) If the authority decide to extend the area in which the referendum
is to take place, they must publish a map of that area.

(10) 10In any case where the authority are not satisfied as mentioned in
sub-paragraph (4), they must refuse the proposal.

(11) The authority must publish in such manner as may be
prescribed—

(a) the decisions they make under this paragraph,

(b) 15their reasons for making those decisions, and

(c) such other matters relating to those decisions as may be
prescribed.

(12) The authority must send a copy of the matters required to be
published to—

(a) 20the qualifying body, and

(b) such other persons as may be prescribed.

13 (1) If—

(a) the local planning authority propose to make a decision
which differs from that recommended by the examiner,
25and

(b) the reason for the difference is (wholly or partly) as a result
of new evidence or a new fact or a different view taken by
the authority as to a particular fact,

the authority must notify prescribed persons of their proposed
30decision (and the reason for it) and invite representations.

(2) If the authority consider it appropriate to do so, they may refer the
issue to independent examination.

(3) Regulations may make provision about examinations under this
paragraph (and the regulations may include any provision of a
35kind mentioned in paragraph 11(2)).

(4) This paragraph does not apply in relation to recommendations in
relation to the area in which a referendum is to take place.

Referendum

14 (1) This paragraph makes provision in relation to a referendum that,
40as a result of paragraph 12(4), must be held on the making of a
neighbourhood development order.

(2) A relevant council must make arrangements for the referendum to
take place in so much of their area as falls within the area (“the
referendum area”) in which the referendum is to take place (as
45determined under paragraph 12(7) and (8)).

(3) A “relevant council” means—

(a) a district council,

(b) a London borough council,

(c) a metropolitan district council, or

(d) 50a county council in relation to any area in England for
which there is no district council.

(4) A person is entitled to vote in the referendum if on the prescribed
date—

(a) the person is entitled to vote in an election of any
55councillors of a relevant council any of whose area is in the
referendum area, and

(b) the person’s qualifying address for the election is in the
referendum area.

(5) Sub-paragraph (4) does not apply in relation to so much of the
60referendum area as falls within the City of London.

(6) In that case a person is entitled to vote in the referendum if on the
prescribed date—

(a) the person is entitled to vote in an Authority election, and

(b) the person’s qualifying address for the election is in the
65City of London.

(7) For the purposes of this paragraph—

(a) “Authority election” has the same meaning as in the
Representation of the People Act 1983 (see section 203(1)),

(b) the Inner Temple and the Middle Temple are to be treated
70as forming part of the City of London, and

(c) “qualifying address” has the same meaning as in the
Representation of the People Act 1983 (see section 9).

15 (1) Regulations may make provision about referendums held under
paragraph 14.

(2) 75The regulations may in particular make provision—

(a) dealing with any case where there are two or more
relevant councils any of whose areas fall within the
referendum area,

(b) for only one relevant council to be subject to the duty to
80make arrangements for the referendum in a case within
paragraph (a),

(c) prescribing a date by which the referendum must be held
or before which it cannot be held,

(d) as to the question to be asked in the referendum and any
85explanatory material in relation to that question (including
provision conferring power on a local planning authority
to set the question and provide that material),

(e) as to the publicity to be given in connection with the
referendum,

(f) 90about the limitation of expenditure in connection with the
referendum,

(g) as to the conduct of the referendum,

(h) as to when, where and how voting in the referendum is to
take place,

(i) as to how the votes cast are to be counted,

(j) 5about certification as to the number of persons voting in
the referendum and as to the number of those persons
voting in favour of a neighbourhood development order,
and

(k) about the combination of polls at a referendum held under
10paragraph 14 with polls at another referendum or at any
election.

(3) The regulations may apply or incorporate, with or without
modifications, any provision made by or under any enactment
relating to elections or referendums.

(4) 15But where the regulations apply or incorporate (with or without
modifications) any provision that creates an offence, the
regulations may not impose a penalty greater than is provided for
in respect of that provision.

(5) Before making the regulations, the Secretary of State must consult
20the Electoral Commission.

(6) In this paragraph “enactment” means an enactment, whenever
passed or made.

Interpretation

16 In this Schedule—

• 25“the Convention rights” has the same meaning as in the
  Human Rights Act 1998, and

• “development plan”—

  (a)

  includes a development plan for the purposes of
  paragraph 1 of Schedule 8 to the Planning and
  30Compulsory Purchase Act 2004 (transitional
  provisions), but

  (b)

  does not include so much of a development plan as
  consists of a neighbourhood development plan under
  section 38A of that Act.”

Section 101

35SCHEDULE 11 Neighbourhood planning: community right to build orders

This is the Schedule to be inserted as Schedule 4C to the Town and Country

Planning Act 1990—

Section 61P

“Schedule 4C Community right to build orders

Introduction

1 (1) This Schedule makes special provision about a particular type of
5neighbourhood development order, which is to be known as a
“community right to build order”.

(2) In their application to community right to build orders, the
provisions of this Act relating to neighbourhood development
orders have effect subject to the provision made by or under this
10Schedule.

(3) In its application to community organisations, section 61G
(meaning of “neighbourhood area”) has effect subject to the
provision made by this Schedule.

Meaning of “community right to build order”

2 (1) 15A neighbourhood development order is a community right to
build order if—

(a) the order is made pursuant to a proposal made by a
community organisation,

(b) the order grants planning permission for specified
20development in relation to a specified site in the specified
neighbourhood area, and

(c) the specified development does not exceed prescribed
limits.

(2) Regulations under sub-paragraph (1)(c) may prescribe a limit by
25reference to—

(a) the area in which the development is to take place,

(b) the number or type of operations or uses of land
constituting the development, or

(c) any other factor.

(3) 30In this paragraph “specified” means specified in the community
right to build order.

Meaning of “community organisation”

3 (1) For the purposes of this Schedule a “community organisation” is a
body corporate—

(a) 35which is established for the express purpose of furthering
the social, economic and environmental well-being of
individuals living, or wanting to live, in a particular area,
and

(b) which meets such other conditions in relation to its
40establishment or constitution as may be prescribed.

(2) Regulations under sub-paragraph (1)(b) may make provision in
relation to—

(a) the distribution of profits made by the body to its
members,

(b) the distribution of the assets of the body (in the event of its
winding up or in any other circumstances),

(c) 5the membership of the body, and

(d) the control of the body (whether by the exercise of voting
rights or otherwise).

Proposals by community organisations for community right to build orders

4 (1) A community organisation is authorised for the purposes of a
10community right to build order to act in relation to a
neighbourhood area (whether or not any part of the
neighbourhood area falls within the area of a parish council) if—

(a) the area mentioned in paragraph 3(1)(a) consists of or
includes the neighbourhood area, and

(b) 15at the time the proposal for the order is made more than
half of the members of the organisation live in the
neighbourhood area.

(2) Accordingly, the community organisation is in that case to be
regarded as a qualifying body for the purposes of section 61E.

(3) 20Nothing in section 61F is to apply in relation to community right
to build orders except subsections (11)(a) and (12)(c) of that
section.

(4) In particular, the reference in section 61F(9) to a neighbourhood
development order is not to include a reference to a community
25right to build order (in a case where a community organisation is
also a neighbourhood forum).

(5) But a local planning authority may decline to consider a proposal
for a community right to build order or other neighbourhood
development order if—

(a) 30another proposal has been made for a community right to
build order or other neighbourhood development order,

(b) the other proposal is outstanding, and

(c) the authority consider that the development and site to
which the proposals relate are the same or substantially the
35same.

(6) If the authority decline to consider the proposal, they must notify
the person making the proposal of that fact and of their reasons for
declining to consider it.

(7) A proposal for a community right to build order must state that
40the proposal is for such an order.

5 (1) A community organisation is to be regarded as a relevant body for
the purposes of section 61G if—

(a) the area specified in the application made by the
organisation consists of or includes the area mentioned in
45paragraph 3(1)(a), and

(b) at the time the application is made more than half of the
members of the organisation live in the area specified in
the application.

(2) The application made by the community organisation may specify
5any area within the local planning authority’s area, irrespective of
whether or not any part of the specified area falls within the area
of a parish council.

(3) This paragraph applies only if the application by the community
organisation under section 61G is made in connection with a
10proposal (or an anticipated proposal) for a community right to
build order.

Development likely to have significant effects on environment etc

6 (1) A local planning authority must decline to consider a proposal for
a community right to build order if they consider that—

(a) 15the specified development falls within Annex 2 to the EIA
directive and is likely to have significant effects on the
environment by virtue of factors such as its nature, size or
location, or

(b) the specified development is likely to have significant
20effects on a qualifying European site (whether alone or in
combination with other plans or projects) and is not
directly connected with or necessary to the management of
that site.

(2) In determining whether or not the specified development is
25within sub-paragraph (1)(a), the authority must take into account
any relevant criteria mentioned in Annex 3 to the EIA directive.

(3) If the authority decline to consider the proposal as a result of sub-
paragraph (1), they must notify the community organisation
making the proposal of that fact and of their reasons for declining
30to consider it.