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.
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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