Housing and Planning Act 2016—changes to development plans in force on 1 October

Housing and Planning Act 2016—changes to development plans in force on 1 October

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Provisions in the Housing and Planning Act 2016 (HPA 2016) in relation to the Secretary of State’s intervention in local and neighbourhood plan-making, in force from 1 October 2016, aim to get plans in place more quickly, thereby speeding up the planning application process and providing further certainty for developers.

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What are the practical implications of the measures?

Local planning

The measures will reform the Secretary of State’s powers to intervene in local plan-making, with the aim of ensuring that every local planning authority (LPA) has a local plan in place. This is of particular importance for boosting housing supply, because local plans are key to housing delivery, as the primary basis for identifying what development is needed in an area, deciding where it should go and providing the starting point for dealing with planning applications.

A key benefit of the measures is to allow for a 'more targeted approach to intervention in plan-making' by the Secretary of State—to both encourage progress with plan-making and enable more effective intervention where necessary. This should provide more certainty for businesses and communities. For planning applicants, a local plan with robust, evidence-based policies that are then applied through the decision-making process provides clarity about what is and is not an acceptable development. This should enable applicants to bring forward acceptable schemes with minimal delays, enabling development to be brought forward more quickly.

Neighbourhood planning

The intervention measures in relation to neighbourhood planning aim to tackle the problem that the neighbourhood planning process takes, on average, two years to complete (ie from when a group applies to start the process by submitting an application for area designation, to the LPA adopting a plan successful at referendum). Interventions are hoped to reduce overall burdens on LPA.

The government made clear in its response to neighbourhood planning consultation, September 2016 during the passage of the HPA 2016 that it anticipated that this power would only be used in exceptional circumstances and advised that 'communities and LPAs should be working very closely on the neighbourhood plan or order proposal throughout the process'.

What local planning provisions come into force on 1 October?

The HPA 2016, ss 143147, introduced enhance powers for the Secretary of State to intervene in the local plan making process.

Part 6 of the Town and Country Planning (Local Planning) (England) Regulations 2012, SI 2012/767 (the 2012 Regulations) sets out further details on the exercise of the powers set out below.

Power to direct amendment of local development scheme

Section 15 of the Planning and Compulsory Purchase Act 2004 (PCPA 2004) is amended to provide that the Secretary of State, or the Mayor of London, in the case of a London borough, may prepare a local development scheme for a LPA that has failed to prepare one and direct the LPA to bring the scheme into effect.

Power to give direction to examiner of development plan document

The PCPA 20004, s 20 requires LPAs to submit development plan documents to the Secretary of State for independent examination and sets out the purpose of the examination and the recommendations that the person appointed to carry out the examination may make. PCPA 20004, s 20(6) is amended to enable the Secretary of State to direct the appointed person to ‘suspend’ the examination, to consider specified matters, to hear from specified persons, or to take other specified procedural steps.

Intervention by Secretary of State

Exceptionally, under PCPA 2004, s 21(9)(a), the Secretary of State will be given the power to direct an LPA to withdraw its submitted plan. If it does so, the LPA must make a copy of the direction or the withdrawal statement and a copy of the local plan available for inspection by the public and publish them on the LPA's website.

The LPA may be required to reimburse the Secretary of State for any expenditure incurred in relation to an intervention.

The Secretary of State can also issue a ‘holding direction’ to an LPA not to take any step in connection with the adoption of a development plan document while the Secretary of State considers whether to intervene (PCPA 2004, s 21A).

Secretary of State's default powers

Where the Secretary of State considers that an LPA is failing or omitting to do anything that it is necessary for them to do in connection with the preparation, revision or adoption of the document, PCPA 2004, s 27 will enable the Secretary of State to direct the LPA to:

  • prepare or revise a document
  • submit that document to independent examination
  • publish the recommendations of the person appointed to carry out the examination, and
  • consider whether to adopt the document

What neighbourhood planning provisions come into force on 1 October?

Powers in HPA 2016, s 141 enable the Secretary of State to intervene at the request of a neighbourhood planning group, in the rare cases where a neighbourhood development plan (NDP) has passed examination but has been blocked by an LPA (paras 13B and 13C of Schedule 4 to the Town and Country Planning Act 1990 (TCPA 1990)). The Secretary of State can intervene where the LPA:

  • has failed to take a decision whether to send the NDP to referendum within the period prescribed, or
  • does not accept all of the examiner’s recommendations, or
  • proposes to modify the NDP or neighbourhood development order (NDO) proposal in a way that was not recommended by the examiner

Part 8A of the 2012 Regulations prescribes the procedure for such intervention. It provides that:

  • a request for intervention must be made in writing, giving clear reasons why the proposed decision of the LPA should be reconsidered by the Secretary of State
  • where the neighbourhood group is making the request because the LPA decides not to follow a recommendation of the examiner, or makes modifications that the examiner has not recommended, the request must be submitted within six weeks of the date that the LPA publishes its decision
  • LPAs cannot take their final decision on whether an NDP or NDO should proceed to a referendum until the Secretary of State has decided whether to intervene
  • once the Secretary of State has decided whether to intervene, the neighbourhood planning group and the LPA must be informed and invited to make representations. Views would also be sought from those who made representations during the original publicity period
  • the LPA must provide certain information to the Secretary of State or planning inspector appointed on their behalf, including:
    • the examiner's report
    • all the documents submitted by the neighbourhood group with the NDP or NDO
    • any other documents submitted to the LPA by the neighbourhood group in relation to the NDP or NDO
    • any representations that were sent to the examiner
    • representations made in response to an LPA’s proposal to depart from the examiner’s recommendation, and
    • the LPA’s decision statement
  • the Secretary of State must notify the neighbourhood planning group and the LPA of its decision and reasons for it, publish the decision and the reasons for it and send, to any person who had asked to be notified of the decision in relation to the NDP or NDO, a notice explaining that the decision has been made, and where details can be found
  • the LPA may be required to notify certain persons of any decision the Secretary of State proposes to make that is not in accordance with the examiner’s recommendations

LPAs: information about neighbourhood development plans

New section 75ZB (information about neighbourhood development plans) of the TCPA 1990 will require LPAs in England, where a report to the LPA’s planning committee recommends granting planning permission or permission in principle for development in an area where a neighbourhood is in force, to set out how the proposed development was taken into account in making the recommendation and to identify any points of conflict between the plan and the recommendation.

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About the author:

Jen is a solicitor specialising in planning law. She has experience in relation to a range of planning topics, including environmental impact assessment, section 106 agreements, highways orders, compulsory purchase, freedom of information issues, inquiries, judicial review, the Localism Act 2011, the National Planning Policy Framework and major infrastructure projects. After qualifying at Ashurst, Jen worked at Bevan Brittan and subsequently at CMS Cameron McKenna as an associate in the planning team. She worked as an external author for LexisPSL before joining the team in November 2010. She has written for a variety of legal publications, including the New Law Journal, Utilities Week, Planning Resource and The Lawyer. Jen regularly appears on Talking Law videocasts providing legal updates on planning law.