Thursday, 19 May 2016

Neighbourhood Plans. Power & Responsibility.

A wise man once said that neighbourhood plans (NPs) are the future and if today’s present represents that future then that prophecy has already come to pass. From inception in the 2011 Localism Act there are now, according to the Government, 193 NPs approved at referendum and nearly 2,000 groups involved, covering around ten million people. If those rates of participation continue neighbourhood plans will be today’s future as well as yesterday’s.

This is a good thing. Open Source Planning (2010) stated that “the creation of an open source planning system means that local people in each neighbourhood … will be able to specify what kind of development and use of land they want to see in their area. … a fundamental and long overdue rebalancing of power ….”. Public participation in planning is a good thing. A community identifying the best sites within and around it for development is a good thing. 

How though do local people identify how much development is right for their area? PPG states that ‘in most cases’ NPs will have to take into account the local council’s assessment of housing and other development needs in the area. What though if there is no local council assessment of housing and other development needs in the area? Well the PPG also states that NPs can come first, which clearly constitutes the rebalancing of power sought by open source planners, but the scales of local planning seem now to be tipping in favour of the local community's NP over the wider community's Local Plan (LP).

During the recent to-ing and fro-ing between the Houses of Commons and Lords about the Housing & Planning Bill (H&PB) the Commons rejected an amendment by the Lords to give neighbourhoods with plans in place the right to appeal applications for new housing. As initially promoted by peers, this would have extended to areas with emerging NPs as well as those with plans in place.

Following the decision by the House of Commons to insist on an amendment requiring planning authorities to take account of NPs policies, Baroness Parminter tabled a new amendment to introduce a ‘neighbourhood right to be heard’. Even in cases of NPs still emerging, the LPA would have been required to consult and where the decision of the LPA goes against the NP, the LPA would be required to consult the Secretary of State. However, as reported by the FT, after accepting Brandon Lewis’ desire to ensure that neighbourhood plans ‘enjoy the primacy that we intend them to have in planning law’, Baroness Parminter chose to withdraw the amendment. 

Primacy. That goes well beyond the PPG and well beyond the letter that Brandon Lewis sent to Sarah Richards, Chief Executive of PINS, earlier this year that asked that Planning Inspectors be made aware of the importance placed by Government on NPs (and the time volunteers put into crating them) and the emphasis in the NPPF that planning applications that conflict with made NPs should not normally be granted.

Just a few days after the H&PB received royal assent the NP side of the scales has been strengthened further by news of a Neighbourhood Planning & Infrastructure Bill, which will “further strengthen neighbourhood planning and give even more power to local people”. According to the Queen’s Speech this new legislation will make the local government duty to support groups more transparent and will improve the process for reviewing and updating plans.

As NPs grow in significance, and as, more and more, it is they and not a LP that will set out how much development will occur in an area, then it should surely follow that the scrutiny afforded to NPs to sure grow as well. The framework for examining the two is quite different. Neighbourhood plans are made, local plans are adopted and the difference between the two is explicit in the PPG. "When considering the content of a neighbourhood plan or Order proposal, an independent examiner’s role is limited to testing whether or not a draft neighbourhood plan or Order meets the basic conditions, and other matters set out in paragraph 8 of Schedule 4B to the Town and Country Planning Act 1990 (as amended). The independent examiner is not testing the soundness of a neighbourhood plan or examining other material considerations."

This 'lighter touch' approach contrasts sharply with the NPPF’s requirements for LP preparation, as summarised by the Planning Advisory Service:
  • Has the plan been positively prepared i.e. based on a strategy which seeks to meet objectively assessed requirements?
  • Is the plan justified?
  • Is it based on robust and credible evidence?
  • Is it the most appropriate strategy when considered against the alternatives?
  • Is the document effective?
  • Is it deliverable?
  • Is it flexible?
  • Will it be able to be monitored?
  • Is it consistent with national policy?
Beyond these tests of soundness, there are also legal and procedural requirements on LPs, including the Duty To Cooperate, that do not apply to NPs. No doubt the Government would claim that the 'lighter touch' NP approach is working. It is certainly keen to promote the fact that plans for housebuilding are more than 10% higher in the first areas with a NP as opposed to only the council’s LP. That sounds wonderful, but what if that LP was out of date and a yet-to-be completed SHMA would have justified twice as many homes in those settlements? That 10% figure warrants further analysis.
Turley looked at NPs in 2014 and though this data is a little old it does shine a brighter light on how they are being used in pratice.
  • 73% of plans have been produced in authorities with Conservative-controlled councils. In contrast, only 9% have been produced in Labour-controlled areas;
  • 67% cover rural neighbourhood areas and 33% urban areas;
  • 46% have been published in the South East, followed by 12% in the South West and 11% in both the East and West Midlands; and
  • 75% of plans have been produced in the south of England [areas below the line linking the Severn and Humber estuaries] compared with 25% of plans in the north.
Taking the research as a whole, Turley conclude that “a key theme of 55% of all neighbourhood plans is the preservation and protection of that which currently exists, evidenced by policies that seek to place significant restrictions on new development”. “Of the neighbourhood plans published for consultation in rural areas, 63% contain ‘protectionist’ policies compared with 40% in urban area plans. Conversely, of the plans published for consultation in urban areas, 60% contain ‘pro-development’ policies compared with 37% in rural areas. This evidence suggests that a significant number of emerging plans, especially those in rural locations, have been prepared with the aim of protecting neighbourhood areas from new development”.

With great power comes great responsibility, but there is a gap emerging between the two in the planning system. The power to allocate land is lying more and more with the NPs, but the responsibility for significantly boosting the supply of housing (and to maintain a five year supply of housing land that might otherwise render a development plan out of date) lies with the LPAs. Having addressed the balance of power the Government might do well to address the balance of responsibility.