Neighbourhood Planning Legal Update and understanding the Basic Conditions 3 February 2016www.pas.gov.uk

Housekeeping + Introductions

What is Planning Advisory Service for? “The Planning Advisory Service (PAS) is part of the Local Government Association. The purpose of PAS is to support local planning authorities to provide effective and efficient planning services, to drive improvement in those services and to respond to and deliver changes in the planning system” (Grant offer letter for )

Key Facts Started in 2004 Funded by DCLG 11 staff. Supplier framework. Peer community. Always subsidised. Mostly without charge. Non-judgemental. Not inspectors Respond to reform. Keep you current Support, promote, innovate

Objectives To explore the implications of recent and forthcoming changes in the legal context of neighbourhood planning To share learning and develop practical advice on how to approach the examination of the basic conditions

Agenda – morning 9.45Registration and Coffee 10.00Introduction to the session 10.10Presentation 1: Recent Changes to legislation. Forthcoming changes through the Housing and Planning Bill Q & A 11.00Workshop 1: Discussion: Sharing experiences - What are the implications for your authority’s approach to Neighbourhood planning? 11.30Coffee 11.45Presentation 2: What are the basic conditions? 12.05Presentation 3: The East Staffordshire experience at examinations 12.25Q & A 12.45Lunch

Agenda – afternoon 13.30Workshop 2: How do the basic conditions restrict the LPA role? And what do they permit the LPA to do? 14.30Feedback session 14.45Coffee 15.00Workshop 3: Action planning 15.30Plenary session to feedback 16.00Close

National Update Forthcoming changes through the Housing and Planning Bill Jenny Frew Neighbourhood planning

Conservative Party manifesto commitment 9

10 A growing movement

The Housing and Planning Bill 11

Housing Bill measures Automatic designation of whole parishes Automatic designation of non-parished areas after time limits Statutory time limits on a local planning authority decisions: 1.Forum designation 2.Decision to proceed to referendum 3.Holding a referendum 4.Making a plan Powers for the Secretary of State to: intervene to send a plan to referendum if there are delays or disagreements New powers for neighbourhood forums to request notification of planning applications in their neighbourhood area 1.To speed up and simplify neighbourhood planning 2. Greater powers for neighbourhood forums We are also contributing to measures on: Secondary regulations will enact powers Creating new parishes, Starter Homes, Permission in Principle and Brownfield register

13 Closer look at Bill provisions: Designation Automatic designation of whole parishes Woodcote NP: conforms with existing parish boundary Automatic designation of non- parished areas after time limits Kentish Town: partially covers 3 wards

Closer look at Bill provisions: Statutory time limits on decisions Statutory time limits on a local planning authority decisions: Forum designation Decision to proceed to referendum Holding a referendum Making a plan 14 Average 26 weeks; 30% over 6 months Average 5-6 weeks; some over 3 months, one never! Average 8 weeks Some 6 weeks, some over 4 months Average 6 weeks. Big range: 4 to 223 days

Closer look at Bill provisions: Secretary of State Intervention New Powers for the Secretary of State to intervene to send a plan to referendum if there are delays or disagreements where the LPA has failed to take a decision within the period prescribed, or where the LPA do not accept all of the examiner’s recommendations; or where the LPA propose to modify the plan or Order proposal (other than modifications to ensure compliance with EU obligations or Convention rights, or to correct errors). 15

Closer look at Bill provisions: Powers for forums New Powers for neighbourhood forums to request notification of planning applications in their neighbourhood area Brings forums into line with parishes 16

Also contributing to measures on: Creating new parishes Relevant to neighbourhood forums Starter Homes 20% market discount See also NPPF consultation – deadline 22 Feb Permission in Principle Voluntary. Details subject to consultation Brownfield register 17

Jenny Frew Any Questions?

Produce a list of implications Discussion: Sharing experiences. What are the implications for your authority’s approach to Neighbourhood planning?

Coffee

The basic conditions and recent case law

What are the basic conditions? a)having regard to national policies and advice contained in guidance issued by the Secretary of State b)having 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 c)having special regard to the desirability of preserving or enhancing the character or appearance of any conservation area d)contributes to the achievement of sustainable development e)in general conformity with the strategic policies contained in the development plan for the area of the authority (or any part of that area). f)does not breach, and is otherwise compatible with, EU obligations

Paragraph 8(2) of Schedule 4B to the Town and Country Planning Act 1990 as applied to neighbourhood plans by section 38A of the Planning and Compulsory Purchase Act Where can I find the Basic Conditions?

QBs must prepare a Basic Conditions Statement setting out how a draft neighbourhood plan or Order meets the basic conditions to be submitted to the LPA. What must a QB do?

What should a local planning authority do to assist a qualifying body in considering the basic conditions? Discuss the contents of the basic conditions statement Provide constructive comments If consider a NP may fall short of meeting basic conditions – discuss with QB prior to submission

Legal challenges as local communities sought to use NPs to resist speculative development pressures SoS was generally supportive, recovering appeals where NPs reached submission stage, and attaching significant weight to their policies Early attempts by developers to challenge emerging neighbourhood plans were unsuccessful E.g. BDW Trading Ltd. v. Cheshire West & Chester Borough Council R (Gladman Developments Ltd.) v. Aylesbury Vale DC Recent case law introduces uncertainty? Legal Context

Crane v. Secretary of State for Communities and Local Government [2015] Application refused for 111 dwellings - substantive weight given to applications conflict with Broughton Ashley NP Appeal dismissed by SoS High court challenge on whether appeal decision was lawful, given that the policies of the development plan for the supply of housing land were acknowledged to be "out of date“ (i.e. there was no 5 year housing supply). Unsuccessful challenge Recent Case Law: Challenges to neighbourhood plans during plan making

Crane v. Secretary of State for Communities and Local Government [2015] Recent Case Law: Challenges to neighbourhood plans during plan making Implications: A proposal on an unallocated site can be in conflict with a NP which allocates land for housing, even if it does not contain explicit policies to restrict housing elsewhere. Conflict with a plan that is out of date can be given very substantial negative weight in the planning balance.

Recent Case Law: Challenges to neighbourhood plans during plan making R (Larkfleet Homes Ltd) v. Rutland County Council [2015] Site allocations excluded from Uppingham Site Allocations and Policies DPD on basis that they would be included in the Uppingham NP Challenge over inclusion of site allocation policies in NP Appeal rejected

Recent Case Law: Challenges to neighbourhood plans during plan making Implications: NPs may allocate land, and do not need to be prepared as a local development document in order to do so. Section 17 of the Planning and Compulsory Purchase Act 2004 does not apply to neighbourhood plans, as they are not prepared by the local planning authority. A Strategic Environmental Assessment of a neighbourhood plan must consider both positive and negative effects. R (Larkfleet Homes Ltd) v. Rutland County Council [2015]

Recent Case Law: Challenges to neighbourhood plans during plan making Woodcock Holdings Ltd. v. Secretary of State for Communities and Local Government [2015] Application refused for 120 dwellings Appeal dismissed by SoS because the proposal conflicted with, and was premature in relation to, the emerging Hurstpierpoint and Sayers Common NP Successful challenge, decision found unlawful on basis that: Emerging plan policies must be treated as ‘out of date’ where there is no 5 year supply of housing judged against objectively assessed housing needs Clear reasons are needed for giving meeting OAN less weight than the Neighbourhood Plan process The NP adoption test is far more limited than for Local Plans. Issues in play for planning applications may not even be covered by the NP process.

Recent Case Law: Challenges to policies during plan making Woodcock Holdings Ltd. v. Secretary of State for Communities and Local Government [2015] Implications: for conflict to be relied on, emerging policies should be at a significantly advanced stage and consistent with meeting OAN (regardless of whether they are Local or Neighbourhood Plans); and for prematurity to be relied on, the plan-making process itself should be working on the basis of meeting OAN that have been tested by independent examination.

Recent Case Law: Approvals in conflict with NP Earls Barton Application refused for 39 dwellings in Earls Barton, Wellingborough Emerging East Barton NP – approved at referendum on same day as SoS’s decision letter issued Proposal conflicted with emerging NP – as site outside limits for development in NP and size and type of development does not comply with NP policy Appeal allowed - no 5 year land supply, relevant policies in emerging NP could therefore not be considered up to date. Plan not yet made and therefore does not carry full statutory weight.

Recent Case Law: Approvals in conflict with NP Application refused 110 homes in Lewes, East Sussex Emerging Ringmer NP, passed referendum Site allocated in NP but proposal in conflict with the housing quantity intention Appeal allowed - additional 24 dwellings would not create greater adverse effect Lewes

Neighbourhood Development Plans Basic Conditions at Examination -the East Staffordshire Experience Planning Advisory Service Manchester, 3 rd February 2016

Glenn J ones Neighbourhood Planning Support Officer East Staffordshire Borough Council 36

What is East Staffordshire like? Largely rural with affluent villages Large town of Burton upon Trent due for considerable urban extensions. Pockets of deprivation in inner areas. Home to Molson Coors and Marston’s Breweries...and Marmite! Successful market town of Uttoxeter, due for considerable urban extensions. Home to JCB and the Racecourse 37

East Staffordshire’s NPs 17 NPs – 5 7 “made”, 2 passed Referendum on Jan 28 th, and made on 1 st Feb. 1 at Reg 16, 4 at Reg 14, 5 others ranging from just-designated to nearly at Reg 14. Mix of rural village and urban (including inner urban) parishes 11 with Frontrunner money Nearly all have used consultants 38

39 NOT YET UPDATED!!

East Staffordshire’s Local Plan Adopted Oct Now have 5 year housing supply Most NPs prepared whilst new LP had limited weight NPs examined against out-of-date 2006 Plan and no 5 yr housing land supply 40

National policies (1) In early days, Examiners light touch as they, (and we) found our feet. Are now far stricter e.g. Local Green Space designations that do not meet all the criteria, are too big, have dubious public access, etc are taken out. Seem to take LPA comments submitted to them at Reg. 16 seriously. 41

National policies (2) Examiners will strike out policies that are too onerous on developers, are incapable of being implemented, or restrict development without good cause. Only one case of 2 Examiners with contradictory views – on the March 2015 Ministerial Statement on parking standards 42

Sustainable development Examiners seem to have assumed that, since NPPF and Local Plan both have sustainable development at their heart, then as long as NP accords with these, the SD Basic Condition is met. 43

General Conformity with Local Plan (1) Many NPs examined against non-NPPF compliant 2006 Local Plan (housing moratorium) Examiners have taken pragmatic approach (and QBs too) and taken into account upcoming Plan’s strategy and draft allocations, even when Plan at early stage (Preferred Options stage of LP for Rolleston on Dove NP Exam in 2013). 44

General Conformity with Local Plan (2) LPAs hampered by only being able to stop an NP which does not meet this BC by refusing to take to Referendum. Far too late in process, when QB already expended much time, effort & money. 45

General Conformity with Local Plan (3) ESBC have tried to overcome this by: asking for, and checking, early draft well before Reg.14, to try and nip any non-conforming policies in the bud and enable us to SEA screen; formal responses at both Reg.14 and Reg.16 (so Examiner sees any disquiet we have); asking Development Management to scrutinise policies for implementation problems, and use their views to argue why we would not be able to implement NP’s policies. 46

General Conformity with Local Plan (4) not being afraid to sabre-rattle, if necessary, about the Plan being likely to fail further down the line. Other LPAs have used intermediaries, such as a consultant, where a QB refuses to listen to the LPA. 47

General Conformity with Local Plan (5) To further assist QBs in being clear what they have to be in conformity with, our new Local Plan includes a Policy that : sets out clearly the strategic housing requirement for each settlement or type of settlement; states which are the ‘strategic’ policies with which the NP has to be in general conformity. 48

Does Not Breach EU Obligations We combine SEA and HRA screening at early stage. We use our own template to do this. Failure to meet this BC (including Human Rights obligations) has never been an issue. May be more closely scrutinised now SEA, or justification why SEA not required, is a required document for the Examination. 49

Glenn Jones Neighbourhood Planning Support Officer

Q&A

Lunch

Produce: a list of restrictions on the role a list on the extent of the role Workshop 2: How do the basic conditions restrict the LPA role? And what do they permit the LPA to do?

Feedback and Q&A

Coffee

Workshop 3: Action planning What do I need to consider and put in place in my LPA and how do I do it?

Feedback

Resources Suite of Locality guidance NPPG Planning Aid website PAS website, including briefing notes, FAQs, compliance checklist, Model Service Level Agreement #neighbourhoodplanning ning.org.uk

Relevant (policy based) PAS events Neighbourhood planning Viability Beyond the Duty HEDNA and SHELAA To be announced: Planning reforms

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Next Steps…. What else would you like us to do to help you? -new case study topics? -new briefing notes? -some outcome reporting – what has happened as a result of NP?

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