Thursday, March 5, 2015

The NDP Referendum

The Neighbourhood Development Plan for my village/parish has been cleared by the examiner and at the referendum, on a turnout of about 30%, 90% voted for and 10% against. These stages have raised some interesting issues not clearly covered in the legislation and guidance.

The examiner made some recommendations that were not intended to change the purpose of the plan; notably the drawing of a village envelope around the existing built-up area.  The version of the Plan that had been consulted on did not have this boundary defined and I had worked for the LPA in preparing a local plan where this exercise was regarded as too onerous (ie requiring a detailed survey of the perimeter of the village, looking at every garden and paddock) and the alternative of assessing the extent of the built up area  when applications were submitted has worked well for the last 40 years.  This was pointed out to the neighbourhood planners who, undeterred, agreed the line of the boundary during a ten minute period of the steering group sitting round a table in the village hall.  The question arose as to whether the neighbourhood planners had to follow what the examiner had said or the recommendation could have been ignored on the basis that the public could not be consulted ?

The National Planning Policy Guidance has recently been revised to confirm that any significant impacts arising from NDP policies or proposals must be assessed in the Sustainability Appraisal.  The Plan in question might be unusual in proposing a housing development that has been made the subject of an application before the Plan has been 'made'.  The impact of the development of part of the allocated site has been described both in the application and regarded by the Council Landscape Officer as 'significant'. The applicant claims that the significance is not sufficient to trigger an Environmental Impact Assessment but if this impact is not in the Sustainabilty Appraisal or an SEA,  the question will arise as to whether the LPA can still 'make' the Plan?

The question which must be posed at the NDP Referendum is, "Do you want the LPA to use the neighbourhood plan to help decide planning applications in the neighbourhood area?"  A planning minister has recently confirmed that, "...Neighbourhood plans have a legal weight prior to being adopted through a referendum. The fact that a plan is being written and is in place, subject to a referendum, gives it legal weight; it does not have that status only after a referendum."
(4 Mar 2015 : Column 358WH The Parliamentary Under-Secretary of State for Communities and Local Government - Penny Mordaunt). This is obviously the case under s38(6)* where any representation on a planning application is a 'material consideration' and it would be reasonable for a decison-maker to give substantial weight to comments based on a substantial evidence base even if the 'people' have not yet endorsed it.  However,  The DCLG has agreed that it would also be reasonable in following s38(6), for a decision-maker to give substantial weight to a plan based on substantial evidence even if it failed its referendum.  Asking, as the current regulations require, whether the plan should be 'used to help in making decisions' is pointless as the plan must be taken into account whatever the result of the referendum.

Given that the effect of a neighbourhood plan receiving a simple majority vote is that it becomes the 'development plan' for the neighbourhood area for the purposes of s38(6), this should have been the question put in the referendum.  However, in order to cast a vote on this question it would be reasonably necessary for the electorate to know the contents of the relevant local plan and be able to compare its effect against the possible effect of the neighbourhood plan. Given that very few people would be able or willing to read, understand and compare these two competing plans I would give little or no more weight to a neighbourhood plan that got its majority than to one that did not.

An application had been made between the deposit of the plan and its examination and referendum, that has now been considered by the planning sub-committee of the parish council.  The PC has not been trained on how to weigh evidence in the consideration of a planning application and expressed concern about the weight to be given to the NDP at its very final stages and the slightly conflicting views of neighbours that the PC would like to be seen to be taking into account.  Although it will not comprise the development plan until it is formally 'made', the PC would seem to be reluctant to relinquish its discretion to demote the weight given to the Plan despite the efforts of many of its members in its preparation.

It will be the LPA that has the ultimate responsibility for deciding what weight to give to the NDP and possibly to regret the lack of supervision provided in its preparation and the precise wording of its policies.

*The determination of the application must be made in accordance with the development plan unless material considerations indicate otherwise

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