Friday, 14 September 2018

Is the revised National Planning Policy Framework the beginning of the end for neighbourhood plans?

There is not much enthusiasm for the new National Planning Policy Framework:
Futures Forum: The new National Policy Planning Framework "is a developers' charter"

And this new 'strategic' bit of national planning guidance must take precedence over the 'non-strategic' bit of local planning guidance:
Futures Forum: Sid Valley Neighbourhood Plan: "last chance for people to have their say on how the Sid Valley should be developed over the next 15 years"

A rather depressing analysis of the new NPPF has been spotted by the East Devon Watch blog:
How neighbourhood plans died | East Devon Watch

Here's the complete piece from the Local Government Lawyer which looks at where we are now with neighbourhood plans:

“They flee from me that sometime did me seek”

Friday, 07 September 2018

Is the revised National Planning Policy Framework the beginning of the end for neighbourhood plans, asks Sue Chadwick.

On 24th July the Government published the new Planning Framework, introduced as "fundamental to strengthening communities and to delivering the homes communities need [1]. This article considers whether the Framework also signals the resurgence of strategic policy – 8 years and 18 days after Regional Spatial Strategies were “abolished” – and the parallel demise of neighbourhood plans.

“Thanked be fortune it hath been otherwise" [2]: the 2012 Framework and the shift towards localism

In 2010 the newly elected Coalition Government accused the existing suite of planning policy documents of being unwieldy and creating an incoherent policy position. In their place, they presented a draft National Planning Policy Framework. The Foreword to the 2011 draft announced that issues with the current policy system would be addressed by “dismantling the unaccountable regional apparatus and introducing neighbourhood planning” and one of its stated objectives was the proposal “to put unprecedented power in the hands of communities to shape the places in which they live”.

By the time the 2012 Framework was adopted, both of these changes were already in place.

On 6th July 2010 Eric Pickles, then Secretary of State for the Department of Communities and Local Government, announced that the government planned to revoke Regional Strategies with a view to returning decision-making powers on housing and planning to local councils and making the planning system “simpler, more efficient ….firmly rooted in the local community”. The validity of the decision was confirmed in subsequent case law [3] and formally enacted in Section 109 of the Localism Act 2011. The same Act introduced a new community-based layer of planning policy where local areas would propose and promote their own Neighbourhood Development Plans.

Neighbourhood plans were described by Mr Pickles as a “triumph for democracy over bureaucracy" [4] but Friends of the Earth were concerned that neighbourhood plans would produce a planning postcode lottery [5] while some academics went further, prophesying “an uneven geography of representation in favour of the better educated, well-off and more vocal social groups”. [6] Even the Chief Executive of the British Property Federation expressed concerns about how easily neighbourhood plans would interrelate with the existing plan system. [7]

Neighbourhood planning has indeed proved more problematic in practice than in theory. The changes were implemented in a piecemeal fashion, and tweaked through subsequent legislation, leading one judge to comment that they could aptly be described as a "statutory thicket" [8]. They have been a consistently disruptive element of the already complicated decision-making process generating significant case law on a number of different issues, with most cases resolved in favour of the neighbourhood plan. Neighbourhood plans have proliferated in areas of relative affluence where there is a community with the necessary time and resources available, raising questions as to their equity where such resources are scarce. As Teresa Pearce MP pointed out in the debate on the Neighbourhood Planning Bill: “costs can exceed the moneys that the council receives… neighbourhood planning must be open to all, and disadvantaged communities need to be able to participate." [9]

In spite of these issues, the number of neighbourhood plans has increased exponentially - the most recent edition of the “Notes on neighbourhood planning” announced the 500th referendum in favour of adoption of such a document. [10] Until relatively recently, the government has also continued to promote this element of the planning system: on 30th January 2018 the then housing minister Dominic Raab stated that “We will continue to protect neighbourhood plans in national policy" [11]. However, in this case political rhetoric has not been supported by political reality.

“A strange fashion of forsaking”: the 2018 Framework and a return to strategic planning

In December 2015 the Government began a consultation on the revision of the 2012 Framework. [12] This consultation document stated that the existing Framework reinforced the “central role of local and neighbourhood plans in the planning system”, did not mention the word strategic at all and proposed no substantial changes to the neighbourhood plan system.

In March 2018 the Government began a further consultation on the Framework [13]. It contained a new paragraph 14 confirming the status of a neighbourhood in meeting housing supply needs, confirming the Written Ministerial Statement in December 2016, “to provide additional certainty for neighbourhood plans in certain circumstances”. It also introduced the concept of ‘strategic’ policies and the need for these policies to be “distinguished clearly”. The consultation closed on 10th May. On 24th July the final version of the Framework was formally adopted. It contained a raft of subtle changes, not included in the original consultation document, that suggest a fundamental shift in the planning policy superstructure away from local in favour of strategic, even regional, plan policy making.

There is a new definition of “Non-Strategic policies” defined as “Policies contained in a neighbourhood plan, or those policies in a plan that are not strategic policies”. In addition Paragraph 18 refers to neighbourhood plans that contain 'just non-strategic policies”. This clearly demotes all neighbourhood plan policies to the ‘second tier’ of the new policy hierarchy. Paragraph 30 then goes on to say that “Once a neighbourhood plan has been brought into force, the policies it contains take precedence over existing non-strategic policies in a local plan covering the neighbourhood area, where they are in conflict.” This suggests that, however recently they were adopted, neighbourhood plan policies will not have such automatic precedence over any strategic policy.

The definition of “Strategic Policies” remains unchanged as: “Policies and strategic site allocations which address strategic priorities in line with the requirements of Section 19 (1B-E) of the Planning and Compulsory Purchase Act 2004”. However:
> The term ‘strategic plan’ is replaced with a reference to ‘strategic policies” in paragraph 11, 60, 73, 117, 135, 136, 138, and 156;

> Paragraphs 25-27, 65 and 67 replace references to 'plan making’ authorities with ‘strategic policy making authorities’.

Strategic policies are moreover defined with reference to section 19 of the Planning and Compulsory Purchase Act 2004, that in turn allows London Borough Councils, Mayoral development corporations, and local authorities within Combined Authority Areas to have strategic policies that are not part of their development plan documents. It cannot be entirely coincidental that the Combined Authorities (Spatial Development Strategy) Regulations 2018 [14] were laid before Parliament just before the new Framework was published and came into force just afterwards. These regulations allow the mayoral combined authorities of Greater Manchester, Liverpool City Region and the West of England to produce and amend spatial development strategies, mirroring the powers that the Mayor of London already has to produce and amend the London Plan.

“All is turned”

Neither the principle nor the substance of most of these changes formed part of either consultation, but the Government’s position seems clear. The new Framework introduces a two-tier hierarchy of policies: strategic and non-strategic. Strategic policies may be contained in either a development plan or a spatial development strategy made by combined authorities and mayoral combined authorities. The National Planning Policy Guidance still states that “A neighbourhood plan attains the same legal status as the Local Plan once it has been approved at a referendum." [15] but such plans are now in fact doomed to occupy a permanent state of permanent relegation in the second tier of this new planning policy hierarchy.

Sue Chadwick is a Senior Associate at Birketts.

Local Government Lawyer - “They flee from me that sometime did me seek”


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