The Localism Act 2011 - National Development Orders

The Localism Act 2011 - National Development Orders

The Localism Act 2011 received Royal Assent on 15 November 2011 and is coming into force in a piecemeal fashion (see Legal update, Localism Bill 2010-11 receives Royal Assent). The government estimates that the changes to the planning regime will come into effect in April 2012.

Section 116 of the Localism Act 2011 inserts into the TCPA 1990:

  • Sections 61E to 61Q (NDOs) .
  • Schedule 4B (process for making of NDOs).

These new provisions allow for planning permission to be granted through an NDO.

The order making powers of section 116 of the Localism Act 2011 came into force on 15 November 2011. On 15 January 2012, sections 116 and 121 of the Localism Act 2011 came into force so far as the amendments to the TCPA 1990 confer power on the Secretary of State to prescribe matters by, or make provision in, a development order.

On 6 April 2012, the NPG Regulations come into force.

Development not requiring specific planning permission

Under the TCPA 1990, planning permission is required for the carrying out of any development on land (section 57(1), TCPA 1990).

Development is defined as the "carrying out of building, engineering, mining or other operations in, on, over or under the land or the making of any material change in the use of any buildings or other land" (section 55(1), TCPA 1990).

The basic requirement for planning permission to be obtained for development is modified:

  • Nationally by the GPDO 1995.

The GPDO 1995 deems planning permission to have been granted for certain types of minor development.

  • Locally by an LDO.

An LDO deems planning permission to have been granted for additional types of development not covered by the GPDO 1995. LDOs are made by LPAs.

An NDO will be a local grant of planning permission.

What is an NDO?

An NDO is a development order that deems planning permission to have been granted for specific development or specified classes of development within all or part of a neighbourhood area (section 61E(2), TCPA 1990).

NDOs are intended to help speed up the planning process. Where there is an NDO in force, developers will not need to make a separate planning application for development permitted by the NDO.

NDOs will be made by the LPA on the initiative of:

  • A parish council, where the neighbourhood area has a parish council.
  • A neighbourhood forum, where the neighbourhood area does not have a parish council

(Section 61E(6), TCPA 1990.)

Regulations may also specify other categories of organisations that can become neighbourhood forums, such as residents' associations or civic groups.

Community right to build orders

A CRBO is a particular type of NDO providing for community-led site-specific development. The Localism Act 2011 inserts a new Schedule 4C into the TCPA 1990 (CRBOs) which gives power to community organisations to apply for these orders.

Procedure for making an NDO

Schedule 4B to the TCPA 1990 and Part 6 of the NPG Regulations (regulations 21 to 27) set out the process for making NDOs.

Proposal for an NDO

The proposal for an NDO must be in a prescribed form and be accompanied by:

  • A draft of the NDO.
  • A statement containing a summary of the proposals and setting out why the NDO should be made.
  • Other documents and information of a prescribed description.

(Paragraph 1(2) and 1(3)(b), Schedule 4B, TCPA 1990.)

Regulation 22 of the NPG Regulations sets out further requirements including:

  • A map identifying the land to which the proposed NDO relates.
  • A consultation statement.
  • An archaeology statement (if appropriate).
  • A statement explaining how the NDO meets the basic conditions.

The draft NDO and the accompanying documents and information must comply with guidance published by the Secretary of State (paragraph 1(6), Schedule 4B, TCPA 1990).

The LPA must give advice or assistance (but not financial assistance) to an applicant as they think appropriate (paragraph 3(1), Schedule 4B, TCPA 1990). The support could involve providing technical support or advice on how to draft an NDO or facilitating public consultations on proposals. The Secretary of State can provide financial assistance concerning NDOs (clause 117(2)(a), Localism Act 2011). The power could be used to help fund a parish council or a neighbourhood forum to develop a draft NDO.

There is a power for the Secretary of State to make regulations dealing with the procedural requirements that must be complied with before proposals for an NDO may be submitted to or considered by an LPA, such as ensuring applicants consult and involve the public at an early stage of their proposals or notify statutory bodies (paragraph 4, Schedule 4B, TCPA 1990). Regulation 21 of the NPG Regulations sets out these requirements. The list of consultees is set out in paragraph 2 of Schedule 1 to the NPG Regulations.

Publicity requirements for a proposed NDO

As soon as an LPA has received a proposed NDO, the LPA must publicise it and notify any consultees that an NDO has been received (regulation 23(1), NPG Regulations).

Consideration of proposals by an LPA

An LPA can decline to determine a repeat application for an NDO. An application is a repeat application if it meets the following two conditions:

  • In the two-year period ending with the date on which the proposal in question was received:
    • the LPA refused a proposal that is the same as, or similar to, the proposal in question; or
    • a referendum on an order that is the same as, or similar to, the proposal in question was held and 50% or less voted in favour of the order.

The LPA considers there was no significant change in relevant considerations since the refusal of the proposal or the holding of the referendum.

(Paragraph 5, Schedule 4B, TCPA 1990.)

If the LPA declines to consider the proposal, they must notify the applicant and state the reasons (paragraph 5(6), Schedule 4B, TCPA 1990). The reasons must be published (regulation 25(2), NPG Regulations). If the LPA does not decline the proposal, the LPA must consider whether:

  • The applicant is authorised to apply for an NDO.
  • The proposal complies with provisions made by or under section 61F of the TCPA 1990 (authorisation to act in relation to neighbourhood areas).
  • The proposal and documents comply with the requirements of paragraph 1, Schedule 4B of the TCPA 1990 (process for making of NDOs).
  • The applicant complied with any regulations made under paragraph 4, Schedule 4B of the TCPA 1990 (requirements that need to be satisfied before a proposal is made).

(Paragraph 6(2), Schedule 4B, TCPA 1990.)

If the LPA is satisfied all the requirements are met, the draft NDO must be submitted for independent examination (paragraphs 7(1) and 7(2), Schedule 4B, TCPA 1990 and regulation 24, NPG Regulations)

If the requirements are not met, the LPA can refuse the proposal (paragraph 6(4), Schedule 4B, TCPA 1990). Reasons for the refusal must be published (regulation 25(2), NPG Regulations).

There are many more points surrounding NDO's and if you would like to discuss these in more detail, please contact us at property@leedsday.co.uk or 01480 454301.


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