Neighbourhood Planning Bill

Written evidence submitted by Henry Peterson OBE, Chair of St Quintin and Woodlands Neighbourhood Forum (NPB 05)

Summary and introduction

1.1 This evidence addresses two questions

· is the original devolutionary aspiration of the Localism Act, that neighbourhood plans can be brought into effect by groups of ordinary local citizens, proving viable four years on from the first such plan?

· is the neighbourhood planning process now at threat from the number and type of legal challenges surfacing in relation to neighbourhood plans?

1.2 I am submitting this evidence as someone who has been closely involved in the Localism agenda since 2004, and who has worked as a London Borough chief officer and subsequently as a consultant to the Local Government Association.

1.3 I hope that my evidence will be of assistance to the Committee. It is based on the experience of having chaired a neighbourhood forum and authored a neighbourhood plan in a London context.

2. Can neighbourhood plans realistically be prepared by ordinary citizens?

2.1 The assumptions behind the neighbourhood planning framework included in the 2011 Localism Act were ambitious and some might say idealistic. They are exemplified by the statement of Eric Pickles in his introduction of the 2010 Bill into the House of Commons:

‘The Bill will reverse the centralist creep of decades and replace it with local control. It is a triumph for democracy over bureaucracy. It will fundamentally shake up the balance of power in this country, revitalising local democracy and putting power back where it belongs, in the hands of the people. [1]

2.2 As a former local government officer, I was at that time unconvinced that the neighbourhood planning provisions of the 2011 Act would prove workable in practice. It felt as though this novel addition to the English planning system was one of a number of 'Big Society' ideas which might not be taken up by the public.

2.3 Subsequent firsthand involvement in preparing a neighbourhood plan (and participating in London and elsewhere as a DCLG neighbourhood planning 'champion') has since convinced me otherwise. The process works, and delivers good outcomes.

Do neighbourhood plans need 'professional' input?

2.4 The St Quintin and Woodlands Neighbourhood Plan in North Kensington was prepared by a group of ordinary citizens working as volunteers, without consultancy support of any kind. The process requires a level of organisational skills, but the primary requirement is that of persistence.

2.5 Government grant to fund preparation of the StQW Neighbourhood Plan amounted to £6,700, from the DCLG programme administered by Locality. The local authority (RB Kensington and Chelsea) received the standard DCLG funding to meet the Council's costs in arranging the examination of the Draft Plan and the subsequent referendum.

2.6 These are very low costs for the creation of a statutory spatial plan, let alone for a sustained 2 year exercise in genuine 'community engagement'. All work in drafting the neighbourhood plan, convening public meetings to discuss its content and policies, and in achieving a 23% turnout at the local referendum, was at no other cost to the public purse.

2.7 The StQW Neighbourhood Plan had a 'yes' vote of 92% on a 23% turnout at its referendum in February 2016 (not much lower than turnout at the Borough's elections). The Plan has yet to be 'made' as part of the Development Plan for the Borough as a result of a judicial review application by a landowner and potential housing developer in relation to a piece of land designated in the Plan as Local Green Space. I make no comment on this case, which awaits a decision of the Courts.

2.8 No one pretends that preparation of this neighbourhood plan will change fundamentally the planning context of a part of North Kensington. As with all neighbourhood plans, the policies in the StQW Plan needed to meet the tests of 'general conformity' with the Local Plan and 'having regard' to the NPPF in order to pass examination. But these requirements do not render such a plan meaningless, or without effect.

2.9 From the perspective of local residents and businesses, the neighbourhood plan has brought several positive results through:

· introducing policies with greater flexibility than allowed for in the Borough's Local Plan, permitting an element of mixed use in an Employment Zone and allowing for a wider range of use classes in local shopping parades with high vacancy levels

· allocating sites for new housing in parts of the neighbourhood where local people consider that further residential development should be encouraged

· protecting three valued areas of open land via designation as Local Green Space, such space being a resource always at threat in Inner London

· widening understanding and acceptance amongst the public in the area that spatial planning will inevitably involve choices and trade-offs. Neighbourhood plans are not a 'nimbys charter'. The process of their preparation is educative for all involved.

2.10 The exercise of neighbourhood plan preparation proved worthwhile overall. It has however taken longer, and absorbed much more volunteer input, than was originally envisaged. If neighbourhood planning is to continue to expand across England, Parliament needs to ensure that to becomes a little easier rather than a little harder.

2.11 Legislation and regulations have been introduced since 2011 to streamline the process, and to set deadlines by which local authority decisions have to be made. These arrangements would have been helpful to our neighbourhood forum at the early stages, and will be helping neighbourhood forums now.

2.12 The current Bill includes further provisions to make it easier for the boundaries of neighbourhood areas to be amended, and for neighbourhood plans to be updated with minor modifications. These too will be welcomed by the neighbourhood planning community.

2.13 There are however some signs that the neighbourhood planning regime, as currently in place, is under threat of push back from the development industry and from housing developers in particular. The Committee may wish to look into this issue.

2.14 Hitherto, a series of Court judgments (and robust interventions by successive Secretaries of State on 'recovered' appeals) has supported the original concept of neighbourhood planning. But housing developers and entrenched commercial interests do not give up easily. Further cases are coming through the Courts. There are aspects of the current legislative framework which may need some refinement if Parliament's aspirations for neighbourhood planning are not to be obstructed or undermined.

3. The threat of legal challenges to neighbourhood plans

3.1 It is inevitable that neighbourhood plans will on occasions conflict with the interests of landowners and developers. Such plans would not be an effective and meaningful part of the planning system if they did not involve choices and decisions on site allocations, which are never going to please everyone.

3.2 The scale of financial resources which housing developers have been willing to apply to contesting neighbourhood plans through the Courts, and in seeking to quash either whole plans or individual policies, is a growing concern to the neighbourhood planning community.

3.3 To date, the Courts have reached decisions which largely support the role of neighbourhood plans. The principle that these plans can allocate sites is now firmly established. The requirements for 'general conformity' have been pronounced on judicially, and defined at a level which allows for some variation or fine-tuning of Local Plan policies. Neighbourhood plans would be a pointless exercise if these basic tenets had not been upheld.

3.4 But some consequences are emerging from the series of judicial review applications of local authority decisions on neighbourhood plans (now over a dozen substantive case). The main fallout has been in the increasing professionalisation of plan preparation, taking the process away from its original ambition of one led by ordinary citizens.

3.5 Neighbourhood forums are generally made up of people with a wide range of skills. They often include those familiar with the planning system, or who are fast learners. The product of their labours is examined and modified as necessary by an examiner with relevant expertise, before being voted on. Hence the prospects of a 'made' neighbourhood plan including policies which are either outlandish or cause public harm is minimal

3.6 What constitutes 'harm' in the eyes of a landowner or developer with a site to promote is of course another matter. As the number of judicial review applications has grown, the range of grounds used by those contesting local authority decisions has widened.

3.7 As has been the case with Local Plans, the intricacies of Strategic Environmental Assessments proved an initial popular area for challenge. More recently, new issues such as the fairness of the examination process has been questioned, along with the adequacy of scoring systems for prioritising housing sites and the adequacy of the evidence base deployed in neighbourhood plan preparation.

3.8. The resultant risk is that

· parish councils (and especially neighbourhood forums) conclude that the effort required to prepare a neighbourhood plan is not worth it, if the end result can be attacked via judicial review with a reasonable chance of success.

· local planning authorities, especially smaller District Councils, become reluctant to defend their decisions to advance plans to referendum and adoption, in cases where legal action is threatened, even if the grounds of challenge are weak.

The local authority role in 'defending' neighbourhood plans

3.8 An inherent part of the neighbourhood planning system is that those who make the investment in preparing the plan are not the body which applies the plan's policies post adoption. In the early stages, those involved in the forum or parish council often see it as 'our' plan and the local authority see it as 'their' plan. It is not unusual for there to be disagreements between the two parties involved. There would be little point in embarking on a neighbourhood plan if everyone at neighbourhood level was 100% happy with extant policies in the Local Plan.

3.9 Thus, at the final stages of the referendum and adoption of a neighbourhood plan, the local planning authority (at elected member or officer level) may feel reluctant to take ownership of a plan that is not of their making. There may have been disagreements over the content of the plan. In many cases these will have been resolved through modifications recommended by the examiner. But the extent to which the planning authority is willing to spend scarce financial resources defending a plan and its policies through the courts can come into question (as has been the case with Aylesbury Vale DC and the Haddenham Neighbourhood Plan).

3.10 The Committee may therefore wish to look more closely at the role of the local planning authority in relation to neighbourhood plans. There is perhaps some lack of clarity as to what is involved.

3.11 In terms of the legislative framework, the first series of duties placed on an authority by the 2011 Act in receipt of a designation application are largely administrative [2] . Matters

of planning judgment while the plan is being prepared are subsequently decided by the Qualifying Body, subject to satisfying a set of relatively rigorous 'basic conditions' and the assessment of a qualified and independent examiner.

3.12 The role of the examiner is prescribed in some detail in the Act. As recognised in a series of legal judgments, the examiner is required only to be satisfied that a draft plan meets a set of statutory 'basic conditions'. Where the draft plan does not, the examiner may recommend modifications to ensure compliance with these conditions. In practice, it appears that every examiner's report to date has recommended at least some modifications

3.13 It is the decisions of the local planning authority (rather than the Qualifying Body or the examiner) which can be challenged via judicial review. .

3.14 When the local planning authority receives the examiner's report, it is required to make a series of decisions prescribed in the Act. It must satisfy itself that the plan, with recommended modifications, meets the basic conditions. The authority can make further modifications if it considers these necessary (but only in order to ensure that the basic conditions and Convention rights are met). Neither the examiner nor the local authority are required to apply the test of 'soundness' as would a planning inspector in the case of Local Plan.

3.15 What seems to be left unclear at present is the extent to which the local authority is expected to review in great depth the post examination plan, and to set out its own reasons (as well as those of the examiner in the published examination report) as to why the post-examination plan meets the basic conditions?

3.16 The range of decisions that the planning authority can make at this stage are limited in scope by specific provisions in the 2011 Act. There are also requirements at this stage in the process whereby the authority 'must' act provided that the Qualifying Body has prepared a draft plan which fulfils the necessary legal requirements. Hence the discretion of the local authority is finite at this stage of the process.

3.17 If the authority wishes to differ from that recommendations of the examiner, a further set of requirements must be met including 'giving reasons' and notifying various parties on points of difference. Current legislation requires the examiner to give reasons for making recommendations and modifications on a draft neighbourhood plan, but the wording in Schedule 8 of the 2011 Act asks only that the authority consider each of the recommendations made by the report (and the reasons for them), and decide what action to take on each recommendation. This does not suggest that the authority is required either to rehearse exhaustively the reasoning of the examiner, or to substitute its own reasoning.

3.18 Planning Practice Guidance (as published by DCLG) currently includes much helpful information in its section on neighbourhood planning. But the guidance does not expand on how the local authority should approach decision-making following receipt the examiner's report. It is assumed that existing law on rationality of local authority decision-making applies. But where an independent examiner has already studied the detail of a draft neighbourhood plan, and may have held a public hearing, to what extent should a local authority be expected to second guess this exercise? This is an area that the Committee may find it helpful to explore.

3.19 Where an authority considers the 'making' of a neighbourhood plan would breach, or would otherwise be incompatible with, any EU obligation or any of the Convention rights (within the meaning of the Human Rights Act 1998) it can decide not to progress the plan (section 61E of Schedule 8 of the 2011 Act). This much is clear.

3.20 Given this sequence of scrutiny of a draft neighbourhood plan, the final product should be a document of which the local planning authority accepts full 'ownership'. While it may not be the creator of the plan, it will be the body implementing its policies when dealing with future planning applications from the neighbourhood area. But there is a risk that such a sense of ownership may not extend to defending expensive legal actions, if frequent challenges to neighbourhood plans become more widespread.

3.21 In a recently decided case (Stonegate Homes v Horsham District Council) a 'made' neighbourhood plan has been quashed by the High Court on grounds that the local authority had failed to lawfully assess reasonable alternatives to the spatial strategy as established by the HNP. The District Council is quoted as saying the plan had been examined by an independent and qualified neighbourhood plan examiner. The examiner did not raise any concerns with the plan. Horsham District Council accepted the examiner’s findings, and so proceeded to referendum. 

3.21 The Stonegate case involved a particular factual background and may not prove to have wider repercussions. But any increased level of uncertainty over neighbourhood planning legislation is likely to deter Qualifying Bodies from embarking on a neighbourhood plan. More worryingly, local authorities, as the final decision-maker in adopting a neighbourhood plan, may become increasingly risk averse.

4. Conclusions

· Neighbourhood plans were conceived in the spirit of putting power back in the hands of the people

· it remains possible for 'ordinary citizens' to prepare a neighbourhood plan without involvement of local authority professionals or expensive consultancy input

· this is becoming harder as the range and scope of legal challenges is widened

· developers, with deep pockets, are responding in new ways to a part of the English planning system that has been generally welcomed by the public as a levelling of the playing field. Neighbourhood forums and parish councils generally have no funds to take part in legal actions and rely on local authorities to defend final plans

· further DCLG guidance is needed on how local authorities should address an examiner's report, prior to arranging a referendum. To what extent is this stage primarily 'administrative' in arranging a referendum, or one in which the local planning authority must make its own and separate set of detailed planning judgements?

18 October 2016


[1] HC Deb 17 January 2011 col 558

[2] Christopher Lockhart Mummery QC commented as such in his NPIERS 'healthcheck' of the StQW Draft Neighbourhood Plan. His comment relates to the period up until the LPA receives the examiner's report, after which the LPA has a further set of duties set out at paragraph 12 Schedule 8 of the 2011 Act and discussed below.

 

Prepared 19th October 2016