A layer of complexity, a review of the ramifications of the Localism Act five years on

The Localism Act 2011 obtained royal assent in November 2011, gradually bringing into effect a raft of legislation supporting the government’s communities-based agenda. Following the Conservative Party’s 2010 manifesto, subtitled ‘Invitation to join the government of Britain’, localism remained a focus of the coalition government, and remains a focus of the current government.

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This article was first published in Property Law Journal (October 2016) and is also available at www.lawjournals.co.uk

 

Neighbourhood Planning Unchained? The Neighbourhood Planning Bill 2016

Having lost its infrastructure component between the Queen’s Speech and publication, the slimline Neighbourhood Planning Bill had its first reading in the House of Commons earlier in September, and its technical consultation is open for responses until 19 October 2016.

The most interesting element of the Bill from a neighbourhood plan perspective is the process for modifying a neighbourhood plan – although the requirement for subsequent regulations means the precise effect is not yet known.

nhdChanges to bear in mind

This provision is helpful following the changes to the Planning Practice Guidance made earlier in the summer, which suggested that a fresh neighbourhood plan process would be needed (including a referendum) to update a plan where its policies become out of date.

The Bill provides a three tier process:

  • The local planning authority may make minor modifications with the consent of the neighbourhood planning body, without further consultation, examination or a referendum.
  • Where more substantial changes are proposed, a streamlined process is available (as long as the changes do not change the nature of the plan).  An examiner will then consider the amended plan (normally via written representations, and a further referendum is not required).
  • If the modifications would change the nature of the plan, a fresh neighbourhood plan process would be required. 

While it is questionable how streamlined this written representation process will be, and whether it would apply in circumstances where neighbourhood plans must be updated to be in general conformity with new local plans, the prospect of a quicker and simpler way of modifying a neighbourhood plan is to be welcomed.  Owners and developers will need to monitor carefully whether changes are being made that would prejudice their interests (and whether the process is being followed properly).

Weight

There are also several provisions which seek to give greater weight to neighbourhood plans, perhaps with political intentions. For example, provisions give weight to neighbourhood plans which have passed referenda but have not formally been “made” by the local authority.  It is not clear how much of an issue this has been, particularly given the current Planning Practice Guidance which states that emerging neighbourhood plans can be a material consideration, referring back to paragraph 216 of the National Planning Policy Framework weighing of emerging plans.  However, the Government is clearly keen to emphasise the importance of neighbourhood plans, and make it clear that local planning authorities cannot limit the consideration of neighbourhood plans by failing to “make” them. The Bill also requires local planning authorities’ statements of community involvement to set out their policies for giving advice and assistance with the making and modification of neighbourhood plans.

These changes demonstrate the continuing focus on and political will behind neighbourhood planning.

 

Lions and tigers and … Assets of Community Value

The first Asset of Community Value (ACV) case to reach the Upper Tribunal has upheld the listing of a field used by the local community without the permission of the landowner.  The decision will be of considerable interest to the owners of similar properties, considering the uses of land which can benefit the community for ACV purposes, and the bar to show a continuing community use.  The process for listing an ACV is explained here. The case has serious implications for owners allowing inoffensive use of land with development potential, including ‘meanwhile’ uses of buildings.

Backdoor village green?

fieldBedmond Lane field, located in the Green Belt and crossed by two footpaths, had been used informally by the local community for 40 years until 2014. A local residents’ association nominated it as an ACV in 2013, and it was listed by St Albans City and District Council without notice to the owner (Banner Homes) in March 2014.  Banner requested a review of the decision to list the field (and fenced the footpath/ erected notices stating “private land no unauthorised access”).  The Council decided to maintain the listing in September 2014.  Banner appealed to the First Tier Tribunal, which upheld the listing decision in April 2015.

Banner were then granted permission to appeal to the Upper Tribunal on two grounds:

  • whether the community use in Section 88(2)(a) of the Localism Act 2011 could include an unlawful use (Ground 1); and
  • whether there was a reasonable prospect of a community use in the next five years (Ground 2).

Unlawful community uses

Banner argued that use of land without permission could not meet the test for listing as an ACV.  Rejecting that, the Upper Tribunal pointed to:

  • the lack of specific exclusions in the ACV legislation for unlawful use (and allowance for criminal use in dealing with acquisition of rights by prescription);
  • the fact that the requirement for the use to further the social wellbeing or social interests of the local community provides some “inbuilt protection” from a public policy perspective; and
  • the fact that ACV registration does not create any private rights, unlike the Town and Village Green regime.

More than fanciful

On Ground 2, the Upper Tribunal rejected the argument that the ‘realistic reuse’ test under Section 88 of the Localism Act ACV regime requires anything more than a possibility (as opposed to a likelihood) of a main community use of the land in the future.  Noting Banner Homes’ insistence that it was not and never had been its intention to grant rights of access or use to the public, Levenson J concluded that the future use test was one for the local authority or the Tribunal, and “is not a matter for veto by the landowner”.

The First Tier Tribunal’s decision – that it was “not fanciful” that a community use could re-start if Banner had a change of heart – was upheld. Banner’s difficulties in securing planning permission to graze horses on the Green Belt land (and the limited chance of planning permission being obtained for other uses in the immediate future) was treated as relevant.

Planning prospects

Government guidance recognises that LPAs may treat ACV status as a material consideration.  The Upper Tribunal judgment suggests that “as a matter of planning policy any necessary permission is likely to be refused while land is listed”.  That is wrong but reflects the way that ACV listing is emerging as a trip hazard for developers.

The combination of a low bar to meet the future use test and the limited weight given to the representations of owners will be a matter of concern for the owners of potential ACV sites.  While it is sensible that the decision maker considers the property and its potential in the round, to avoid all owners promising they would never allow a community use and therefore defeating the listing of any asset, a sensible balance needs to be struck.

This case will be of concern to owners of similar development sites.  While the use of fences and notices may interrupt the creation of other rights, they may not prevent the prospect of ACV listing, and owners may wish to take concrete steps to show that it would be fanciful for the main use of the property to be a community use in the future – possibly by obtaining planning permission for a non-community use if possible.

Neighbourhood watch

signNeighbourhood Planning remains a political priority and is one of the areas for which Planning Policy Guidance has recently been updated.  Following the Woodcock Holdings decision, relating to the Husterpoint and Sayers Common 2031 Neighbourhood Plan, the recommended approach to Neighbourhood Plans emerging before up to date Local Plans are in place has been clarified.

Already clear?

In Sayers Common, the Secretary of State dismissed an appeal despite his Inspector’s recommendation to allow it.  He concluded that the proposal would conflict with the Neighbourhood Plan, formally made after the Inspector’s report.  Permission was refused as the proposal would conflict with a requirement to enhance the existing settlement pattern, and was considerably in excess of the 30-40 dwellings the Neighbourhood Plan considered could be accommodated during the plan period.

However, this was quashed when Woodcock Holdings Limited successfully challenged the decision, on the basis that the Secretary of State had failed to identify the nature and extent of the conflict with the Neighbourhood Plan, had not applied the presumption in favour of sustainable development, the PPG guidance (that permission would seldom be refused for a pre-examination draft plan had not been complied with), and that the NPPF policy regarding weight to be afforded to an emerging plan had not been followed. The judgment did conclude that a neighbourhood plan could come forward ahead of a Local Plan, but the legal challenge was allowed on all grounds (see our blog on the detail).

Back to the future

The planning application has been re-determined by the Secretary of State, who again refused permission on the basis that it was not in accordance with the Local Plan or the now-made Neighbourhood Plan, to which he gave “careful consideration”.  He also gave the emerging Local Plan “very limited weight”, and reached the same conclusions regarding conflict with the policies as before.

As discussed previously in relation to the DLA Delivery Limited case, which challenged a Neighbourhood Plan prepared in accordance with an emerging local plan (rather than the existing expired core strategy), there has been debate on the treatment of Neighbourhood Plans which come forward in the absence of an up to date Local Plan.  Recent updates to the Planning Policy Guidance clarifies the Government’s position where a Neighbourhood Plan comes forward in advance of a new Local Plan. The Guidance states that:

  • Neighbourhood Plan policies “may become out of date, for example if they conflict with policies in a Local Plan that is adopted after the making of the neighbourhood plan. In such cases, the more recent plan policy takes precedence“.
  • communities may decide to update all or part of their Neighbourhood Plans where they have become out of date, which will require a fresh examination and referendum, putting a considerable burden on Neighbourhood Plan steering groups.

The best way to avoid this is to ensure that Neighbourhood Plan policies either do not interfere with meeting Objectively Assessed Needs or, more difficult where there is no proper assessment of needs on the table, that any restraint policies are consistent with maintaining a 5 year housing land supply. The PPG update does not suggest that a Neighbourhood Plan that is immediately out of date at adoption – because its policies thwart a 5 year Housing Land Supply – should be given more weight than the policy imperative to maintain housing land supply and meet OAN.

In Woodcock Holdings the relevant parts of the Neighbourhood Plan were held to be inconsistent with the NPPF in this sense and so unlikely to survive either examination or allow a finding of prematurity.  The latest Sayers Common decision does not explain how an out of date set of NP settlement policies could be given overriding importance relative to national policy requirements in that sense.

Putting the Neighbourhood Plan cart before the Local Plan horse

newickThe Court of Appeal has granted permission for the first Neighbourhood Plan case to be heard by it on appeal. The appeal is brought by DLA Delivery Limited, who applied for planning permission for 63 houses on the edge of the village of Newick, East Sussex.  DLA promoted its site as part of both the Local Plan, and the Neighbourhood Plan process, which have been running concurrently.  Although DLA’s land was identified as a suitable reserve housing site in the emerging Local Plan, the Neighbourhood Plan did not allocate it.

Accordance with what?

While the Local Plan is still emerging, the Neighbourhood Plan has been progressed. DLA sought permission to judicially review the local planning authority’s decision to hold a referendum on the draft Neighbourhood Plan (which has subsequently been formally made, becoming part of the local development plan).  In addition to environmental grounds, DLA claimed that the Neighbourhood Plan was not in conformity with the appropriate strategic policies.  The Neighbourhood Plan had been prepared in accordance with the policies of the emerging Local Plan.  However, as the Local Plan had not yet been adopted,  the plan currently in force covered the period to 2011.  DLA argued that the Neighbourhood Plan could not be in accordance with the strategic policies, and therefore meet the basic conditions to be made, as the plan it related to was not yet in force.

Court of Appeal prepared to look again

The claim was dismissed in the High Court by Foskett J, but granted permission to appeal on one of eight grounds – the need for the Neighbourhood Plan to be in ‘general’ conformity with strategic policies.  Permission to appeal on the other grounds has subsequently been granted by Lord Justice Lindblom in the Court of Appeal.

The case raises interesting points at a time where neighbourhood planning is a political priority, with measures to speed the process included in the Housing and Planning Bill.  Meanwhile, Local Plans with their need for a vast evidence base, may lag behind.  It remains to be seen how the following issues, addressed in the High Court in Woodcock Holdings, will be dealt with by the Court of Appeal.

  • Where Local and Neighbourhood Plans come forward at the same time, should the Neighbourhood Plan look back to the existing plan, or forward to the emerging plan?
  • How can a Neighbourhood Plan, in general conformity with an out of date Local Plan, meet the needs of the community going forward?
  • Should a Local Plan be able to override a Neighbourhood Plan once it has measured its objectively assessed need, if more homes are needed?

Independence day?

A further point of interest raised by the appeal is the appointment of Neighbourhood Plan Examiners. While Local Plans are examined by inspectors appointed by the Planning Inspectorate, Neighbourhood Plan examiners are appointed by the relevant Neighbourhood Plan steering group.  Whilst the claimant emphasised that they made no criticism of the examiner personally, they did suggest that the appointment of the examiner by the parish council gave rise to an appearance of bias.  It will be interesting to see what the Court of Appeal make of this “apparent bias” in the appointment of examiners – should it be another job for the Planning Inspectorate?

Neighbourhood planning: full steam ahead?

The Housing and Planning Bill seeks to further the Government’s localism agenda, by speeding up the neighbourhood planning process.  The Bill includes provisions to automatically designate neighbourhood areas where Local Planning Authorities (LPAs) do not make a decision in time, and will impose a timetable on the consideration of neighbourhood plans.

The Government is now undertaking a consultation on the contents of regulations to be made under the Bill once it becomes law.  The consultations suggests a range of measures which will further increase the pressure on LPAs to progress neighbourhood plan applications.

Neighbourhood-planNoting that 90% of applications are from Parish Councils, and 90% of those applications are for the whole parish, the consultation suggests removing the ability of local planning authorities to amend the area applied for in these circumstances, unless part of the area was designated for another plan. Rather than having eight weeks to consider this type of application, the LPA would have to approve it as soon as possible.

The consultation suggests a limit of 13 weeks for LPAs to consider applications for neighbourhood forums, where applications are to a single LPA, or 20 weeks where two must be involved, and an exception where part of the area has already been designated.

The consultation also asks whether an LPA should be given five weeks from receiving an examiner’s report to decide whether to call a referendum, unless they disagree with the examiner, or agree more time is needed with the neighbourhood group. The consultation suggests a procedure to notify interested parties where they disagree with the examiner.

The consultation suggests that referenda should be held within ten weeks of the decision to call a referendum, or 14 weeks in a designated business area. It also suggests that following a referendum, the LPA should be required to bring the plan into force within eight weeks.

The process by which the Secretary of State may intervene when requested by the neighbourhood planning group is also suggested.

The consultation also proposes that designated neighbourhood forums be added to the list of bodies consulted by LPAs when they are preparing local plans. Alongside the provision in the Bill which allows neighbourhood forums to request that they be notified when planning applications are made, this increases the sway neighbourhood forums will have as part of the wider planning process.

These measures all emphasise the importance to the Government of neighbourhood plans, and increase the pressure on LPAs to progress applications. While there is clear political intent to involve people in planning decisions at a local level, this comes at a time when LPAs may be struggling with the volume of planning applications and have limited capacity available for the work associated with neighbourhood planning.

It remains to be seen whether these measures will boost the number of neighbourhood plans being made, or whether they will increase pressure on (already) stretched LPAs without significant results.

Inspector’s decisions and the kitchen sink

The recent decision in Villages Action Group v Secretary of State for Communities and Local Government highlights the need to handle early stage Neighbourhood Plans carefully on appeal.

The Aldingbourne and Westergate Villages Action Group challenged the Secretary of State’s grant of permission for a residential development in Aldingbourne, West Sussex on appeal, on the basis that his inspector had failed to consider the emerging Aldingbourne Neighbourhood plan (or give adequate reasons for dismissing concerns about restricting the expansion of a neighbouring school). The appeal site was earmarked for a school expansion in the emerging Neighbourhood Plan (NP). The NP was at a very early stage – having only been published in first draft after the Inquiry (and so well short of even the start of the local authority publicity period referred to in the PPG).  Reference to the NP by the local authority in its statement of case accepted that it was material but of minimal weight.

The Limit of Reason(s)

Mrs Justice Lang held that the Inspector was not obliged to refer to the draft NP in her decision letter, because it was at a very early stage and attracted little weight, the school expansion idea was hopeless, the documents were not provided to her and little reliance was placed on it at the Inquiry (or afterwards). She also refused to accept that the Inspector had overlooked the NP as a material consideration (despite making no comment on it in the decision).

NPThere are some points to bear in mind on appeal:

  • Unlike planning authorities, the Inspectorate/ Secretary of State have a statutory duty to give reasons.
  • Only ‘main issues’ must be referred to in decision letters.
  • There is no general duty of inquiry on appeal – absent a statutory duty to consider issues, parties must raise issues and evidence sufficiently clearly.
  • The challenge was dismissed, with no error by the Inspector established.

Prematurity vs Conflict of Policies

The judgment implies that prematurity (as opposed to simple conflict with emerging policies) will not be a ‘main/ principal important controversial issue’ worthy of freestanding inquiry or even a real consideration unless the plan is at an advanced stage.  The PPG arguably sets the bar in a different way – preventing prematurity refusal, not consideration per se, where the NP is still embryonic.

As in the Court of Appeal’s decision in the Shinfield Glebe challenge (1), the question could be asked and answered differently – was the early stage NP (and any prematurity effect) genuinely material in the sense that it might have led the Inspector to reach a different conclusion (or was otherwise fundamental)? If so – which is perhaps doubtful on the facts described in the judgment – could it sensibly have resulted in anything other than permission? The PPG suggests not.

(1) where the Planning for Growth ministerial statement, issued after the Inquiry, was held not to have been considered because it was not included in the decision letter.

 

Tip of the iceberg?

The controversy around basement extensions continues. In the same month that barristers’ Chambers Lincolns Inn proposed a subterranean facility and JCB announced a bespoke basements digger, a Private Members’ Bill has been introduced to allow local planning authorities to restrict basement excavations underneath or adjacent to residential properties.

The Bill is being promoted by Karen Buck, MP for Westminster North, to:

  • Alleviate the disruption suffered by neighbours during the construction of so-called “iceberg” basements which according to Buck involve “digging down several levels and hundreds of feet out for home gyms and spas, cinemas and gun rooms, and dance floors and the almost mandatory pools“; and
  • Avoid the effects of poorly designed and constructed basements on surrounding properties, including listed buildings, and streets and pavements, and the water table.

The Bill follows an unsuccessful judicial review of the Royal Borough of Kensington and houseChelsea’s new restrictive basement policy, Ms Buck emphasised the risk to local authorities of expensive appeals against their policies. A recent appeal illustrates the way that the Planning Inspectorate is willing to weigh amenity harm against the long term housing and townscape benefits such projects may bring.

Westminster is already proposing revisions to its January 2014 Basements Development policies with a linked Article 4 Direction to remove permitted development rights for basement extensions.

The Bill is being promoted on the basis that local authorities should not need to go “cap in hand to the Secretary of State” to obtain such powers. It remains to be seen whether going cap in hand to Parliament will work.

Little detail was included in the motion for leave to bring in the Bill, which was summarised as “to restrict the application of permitted development rights; to grant local planning authorities powers to restrict the size and depth of basement excavations underneath or adjacent to residential properties; and for connected purposes“. Such measures may prove controversial, as while some residents in particular areas may seek to carry out basement development, their long suffering neighbours may support greater restrictions.

The Basement Excavation (Restriction of Permitted Development) Bill 2015-16 is yet to be published, and is due to have its second reading in the House of Commons on 29 January 2016.

Power to the people?

Localism remains a political priority.  The introduction of Neighbourhood Planning and the ability to nominate Assets of Community Value via the Localism Act 2011 has given communities powerful tools to control development locally.

The importance of Neighbourhood Plans has been emphasised by recent Secretary of State decisions on appeal, with several applications refused where they were considered to prejudice emerging plans, and permission granted for sites allocated in neighbourhood plans before the adoption of local plans. The initial protection provided by designated Assets of Community Value has also been expanded, with some permitted development rights removed from pubs which are listed.

These Localism measures are now being employed by communities to oppose large projects of importance to the Government.  Adjacent to Heathrow Airport, the villages of Sipson, Harmondsworth and Harlington have set up the Heathrow Villages Forum.  Having received a grant of £7,000 to create a neighbourhood plan, they have set the proposed boundary and are planning to submit it to the London Borough of Hillingdon for designation as a neighbourhood plan area.  One of the key issues identified is that the area is “blighted by the spectre of Heathrow airport expansion”, suggesting the likely approach of the Neighbourhood Plan towards expansion.

bridgeMeanwhile, Thames Central Open Spaces, a group opposing the Garden Bridge, have successfully nominated the area of the Queen’s Walk, proposed as the landing site of the Garden Bridge on the South Bank, as an Asset of Community Value.  This means that before the freehold of the land is transferred, or a lease of the land of more than 25 years is granted, in each case to allow the construction of the bridge, the land will first have to be offered to the community.  If a community interest group expresses an intention to submit a bid in the initial 6 week moratorium period, a further four and a half month moratorium will be triggered.  Only after that moratorium can the land be sold or leased.  Although there are ways to avoid the constraints, given the tight timescale for construction of the Garden Bridge, to fit with the Thames Tideway Tunnel construction, this delay could potentially cause issues.

How these local challenges are dealt with on large and politically prominent projects will be an interesting test of the Government’s commitment to Localism.  This is particularly topical following the Queen’s Speech announcement that planning applications for wind farms over 50 megawatts will be decided by local councils rather than under the Nationally Significant Infrastructure Projects regime, and the recent Ministerial Statement requiring proposals for wind energy development to be refused planning permission unless the site is identified in a Local or Neighbourhood Plan, and the proposal has the backing of affected communities.  Are we really entering a phase of power to the people?

Save the “Great British Pub”

On 6 April an amendment to the Town and Country Planning (General Permitted Development) Order 1995 came into force, placing additional restrictions on pubs which have been listed as Assets of Community Value (ACVs).

We have previously set out the steps for an asset to become listed as an ACV, and the implications once it is listed.

OldStarResearch undertaken by Planning shows that pubs are the most popular type of asset to be listed as an ACV, and they have been the subject of emotive campaigns for listing.

In January Kris Hopkins, the Community Pubs Minister, announced these changes as a measure to protect the “Great British pub” as a national treasure.

This amendment to the Order means that a pub listed as an ACV, or nominated to become an ACV, cannot change use under permitted development rights, but instead must apply for planning permission.  The permitted development rights which are not available for ACV or nominee pubs are:

  • change to a shop;
  • change to a restaurant or café;
  • change to financial and professional services premises
  • change to a temporary state funded school for a maximum of one academic year;
  • change to be used as flexible financial and professional services premises, restaurant or café or business premises for a maximum two year period; or
  • to be demolished

This pro-ACV stance contrasts with the Government’s response to a Select Committee Inquiry into community rights, in which it refused a recommendation to make ACV status a material consideration in planning applications, except for minor works.

Local planning authorities can continue to decide whether or not ACV status is a material consideration.  This leaves an interesting situation where a ACV pub could require planning permission for change of use or demolition, but its ACV status may not be a material consideration in that application for the same change which but for its ACV status could be carried out under permitted development rights.