The Power of Neighbourhood Planning - book review

Henry Peterson, Convener, Neighbourhood Planners.London

This book differs from other practitioner guides or academic studies of neighbourhood planning. Written by an experienced solicitor and planning consultant, its prime focus is in unravelling the legal complexities that now surround the neighbourhood planning regime, from the first stages of designating a neighbourhood area and forum through to examination and final ‘making’ of a plan by the local planning authority.

The author traces the history of what started life in 2010 as a simple (while radical) Conservative Party proposition that ordinary citizens should be granted powers to prepare spatial plans of statutory force, for their immediate local neighbourhood. Given the statutory effect of these plans, as compared with parish plans or informal documents, the framework has inevitably become weighed down with a body of regulation, Government guidance, and case law. This requires much from those preparing a neighbourhood plan, in terms of persistence, stamina, and the rapid acquisition of relevant expertise.

This legal consolidation of the regime has been ‘Inevitable’ because the process involves different parties (developers, landowners, councils, and local residents) with competing interests and often a lot of money at stake (particularly in terms of housing development in rural areas). The content of the book relates mainly to neighbourhood planning by parish and town councils, rather than to a London context. But much of the advice is relevant to issues with which members of the Neighbourhood Planners.London network have been grappling since the 2011 Localism Act.

Most of us involved in neighbourhood planning have become familiar with National Planning Practice Guidance and the Locality Roadmap. Few have delved into the detail of all the sets of Neighbourhood Planning Regulations, or the legal cases which have established several of the key principles which now underpin the neighbourhood planning framework. This book covers this ground in language comprehensible to a lay audience, as well as including a comprehensive glossary of terms and a useful compendium of legal judgments (with hyperlinks).

The first three chapters run through the statutory background to England’s current planning system, before reviewing the sequence of stages in the neighbourhood planning process. Peter Edwards draws attention to fact that once a Draft Neighbourhood Plan is submitted to the local authority, the neighbourhood forum/parish council is reduced to an interested observer – a mere bystander with no meaningful influence or real control over what happens next. The current legislation allows no right of reply to an examiner’s recommendations and modifications. Any right of appeal to the Secretary of State arises only in rare circumstances.

Peter Edwards makes suggestions for how this gap in the process could be filled via minor legislative changes. Meanwhile, in a London context, neighbourhood forums need to be alert to every opportunity to maximise their influence during the ‘post submission’ stage. There is no obstacle to a Forum responding to representations made by developers or other parties, in comments submitted on its own draft plan at the latter stage of the S16 local authority consultation and ‘publicity period’.

On the examination process, the author perhaps underplays the moment of power held by the ‘qualifying body’ in exerting its right to an ‘agreed’ choice of examiner. It has been accepted in legal proceedings that the qualifying body ‘have to consent to the appointment of an examiner’ (Legard R (on the application of) v the Royal Borough of Kensington and Chelsea 2018). Unwelcome imposition of a unilateral choice of examiner by the local authority can be resisted. There is the opportunity for a forum or parish council to take the initiative in defining the attributes and experience they seek from an examiner, and using the NPIERS system (jointly with the local authority) to find an agreed choice of individual in whom the qualifying body has confidence.

The negative consequences of an examiner who will bow to aggressive Section 16 representations from developers, when combined with a local authority nervous of legal challenge, is made clear by Peter Edwards in an extensive and important chapter on housing. This critiques the heavy Government emphasis on neighbourhood plans having to meet specified housing targets, as layered onto the regime by the 2018 NPPF. In commenting on Government messaging that the ‘housing crisis’ results from an unreconstructed planning system, he notes that The fundamental and underlying problem here is that neither the planning system nor its plan-makers can control delivery or deliverability and certainly not by any of the means the NPPF seeks to attribute to them.

A final chapter is optimistic that the neighbourhood planning framework, despite some continuing faults and complexities, should be judged a success. A postscript, added in May 2020, looks ahead to the impact of new permitted development rights and what may come next in an era of Coronavirus.

As a guide to those embarking on a neighbourhood plan, the book identifies the many potential legal pitfalls that can throw a neighbourhood plan off course, even at its closing stages. This will help to arm neighbourhood forums and parish councils in their dealings with developers and with local authorities which prove to be unsupportive – from the designation stage onwards. For local authorities, consultants, lawyers as well as those working on a neighbourhood plan, the book is a welcome addition to what remains a slim range of detailed information and guidance on the subject.