The Localism Act 2011 (Commencement No. 7 and Transitional, Saving and Transitory Provisions) Order 2012
(“the Seventh Commencement Order”)
The Seventh Commencement Order has effectively brought fully into force the neighbourhood planning elements of the Localism Act 2011. With one exception, from 6 August 2012 Schedules 4A and 4B of the 1990 Act are in force: neighbourhood planning is now a reality.
The exception is that in an area designated as a business area under s61H of the 1990 Act the duty to hold a referendum or an additional referendum does not apply until regulations are made in relation to the holding of business referendums in such areas.
The Neighbourhood Planning (Referendums) Regulations 2012
(“the Referendums Regulations”)
Now that the Seventh Commencement Order has brought neighbourhood planning on stream LPAs will soon start to be required to hold neighbourhood referenda in response to the submission of qualifying proposed Neighbourhood
Development Orders, Neighbourhood Development Plans and Community Right to Build Orders. The Referendums Regulations put in place the procedural machinery for the conducting of these referenda. Primarily this is done by way of the creation of what are to be known as the Neighbourhood Planning Referendums Rules which are contained in Schedule 3 to the regulations.
The Neighbourhood Planning (General) Regulations 2012
The provisions of the Localism Act 2011 relating to Neighbourhood Planning have only been brought into force so far as the Secretary of State’s power to make subordinate legislation is concerned. The Neighbourhood Planning (General) Regulations 2012 is the first piece of subordinate legislation to be made. The Regulations make provision for the procedure for designating a Neighbourhood Area and for designating an organisation or body as a Neighbourhood Forum. They came into force on 6 April 2012.
The role of the Secretary of State
How far has the system changed?
Tewkesbury BC v Secretary of State for Communities and Local Government
 EWHC 286 (Admin)
The Localism Act 2011 has made significant changes to the planning system but it did not bring about a fundamental change in the approach to planning applications. The Secretary of State had not undermined the democratic process.
Two developers applied for planning permission for the development of farmland including the construction of 1,000 new dwellings. The land was not in the Green Belt. Tewkesbury Borough Council failed to make a decision in time on either application, so the developers appealed to the Secretary of State.
The Inspector recommended approval, and the Secretary of State granted planning permission and in so doing found that although the proposed development contravened the various documents that together made up the Council’s development plan that plan was out of date and did not comply with national policy requiring local authorities to maintain a five-year supply of housing land, and consequently should be given very little weight. (The Council had not produced a local development plan despite the statutory requirement to produce one being some 9 years old),
The Inspector also found that there was also no issue of prematurity, given that the Council’s emerging Joint Core Strategy was at the early stages of development and was in any event unlikely to provide for a five-year housing supply.
The local planning authority applied to quash the decision of the Secretary of State.
The local authority challenged the Secretary of State’s decision under the Localism Act 2011, claiming that by determining the need for local housing provision the Secretary of State had undermined the democratic process and acted contrary to the fundamental change said to have been occasioned by the Localism Act 2011, which was intended to transfer power to local communities.
The High Court refused the application by the local authority.
The court held that both the Inspector and Secretary of State had made their decisions by “an entirely unexceptional” application of established principles and policies to the evidence and had made legitimate decisions on matters of planning judgment and there was no question of those decisions being Wednesbury unreasonable.
The Court accepted that the Localism Act 2011 had made significant changes to the planning system but there was nothing in either the wording of the Act or accompanying policy statements that removed the role of the Secretary of State in determining appeals or removed long standing policies such as the need for local authorities to have a five-year housing supply (which were in fact expressly reaffirmed in the National Planning Policy Framework). While the Localism Act 2011 did indeed give local communities more say over developments in their area, there were conditions attached to the exercise of that greater say, such as the need for the preparation of up to date Local Development Plans which made provision for a five-year housing supply.
This judgment makes it clear that although the Localism Act makes local development plans the starting point of the planning enquiry, power comes with responsibility, and local authorities will need to fulfil their statutory duties to have an up to date development plan in order to benefit from having greater weight attached to those plans.
Local authorities’ discretion over designation
R (Daws Hill Neighbourhood Forum) v Wycombe DC
 EWHC 513 (Admin)
A local authority has a wide discretion when deciding whether to designate an area as a Neighbourhood Area. In exercising this discretion it must take into account the factual and policy matrix applying to the area.
A residents’ association (D) was established to engage with the Council in respect of a number of sites including two brownfield sites of strategic importance. One of these sites was purchased by a builder and outline planning permission was anticipated in the near future, and the second was already subject to a grant of outline permission. Following the coming into force of the Localism Act 2011, D applied to become a Neighbourhood Forum in respect of a Neighbourhood Area covering inter alia the strategic sites. The District Council subsequently decided in principle to designate a Neighbourhood Area for the Forum, but excluded the two strategic sites from that area. D applied for judicial review of the decision by the local authority.
D submitted that in excluding the two strategic sites the local authority had failed to give effect to the purpose behind the Localism Act 2011 to give new rights and powers to communities to allow them to participate in the planning process by guiding development in their neighbourhoods.
The High court refused the application by D.
The court held that s61G(5) of the Town and Country Planning Act 1990 gave local authorities a wide and broad discretion when considering whether an area was appropriate for designation as a Neighbourhood Area. Further, the court held that the exercise of that discretion would be guided by the specific facts and policies relating to the proposed area.
In the instant case, the Council had properly paid due regard to the circumstances existing at the time of their decision, and had properly taken into account the following factors: that it could take up to 21 months for the Neighbourhood Plan process to be completed, by which time development on one strategic site would have commenced and the planning process would have been well under way on the other such that there would have been no useful purpose in including them within the Neighbourhood Area. Further, the likelihood that a referendum would be required over a larger area than the proposed Neighbourhood Area suggested a mismatch between the proposed Area and the area affected. Consequently, the challenge to the limited extent of the designation failed.
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