Neighbourhood Development Orders and Heritage
Once adopted by the local planning authority development of the type described in the order can proceed without a planning application, although in some cases satisfying conditions may require the later approval of the local planning authority. Listed building consent and planning permission for relevant demolition in a conservation area requirements are unaffected.
Scope for planning permission under a neighbourhood development order
A neighbourhood development order may provide that any specific development or any class of development in the whole or part of the relevant area is given planning permission, provided it is not excluded development (ref. 1).
Excluded development is any of the following (ref. 2):
- Minerals or waste development that would normally be handled by a county council, where there is one
- Development that would fall to be considered under EU law concerning the assessment of effects on the environment – generally large-scale development
- A nationally significant infrastructure project
- Development of a type prescribed by government
Neighbourhood development orders may be time limited and may contain conditions or limitations. Those conditions may include obtaining the later approval of the local planning authority to certain matters such as the specification of materials or other matters of detailed design (ref. 3).
Outline of process to obtain an order
Obtaining a neighbourhood development order is a complex process and the information below is intended as a general introduction. More detail can be found in the government's Neighbourhood Planning guidance.
The designated neighbourhood forum or parish council may at any time submit a draft order and supporting statement to the local planning authority (ref. 4). Regulations govern the detail of the process including consultation (ref. 5). Historic England must be consulted in all cases.
Subject to various formal requirements, the local planning authority is obliged to submit the proposed order to an independent examiner (ref. 6). It is their job amongst other things to assess whether the proposed order satisfies all the 'basic conditions'. The 'basic conditions' are as follows (ref. 7):
- Having regard to the National Planning Policy Framework (NPPF) and advice contained in guidance issued by the Secretary of State, it is appropriate to make the order
- Having special regard to the desirability of preserving any listed building or its setting or any features of special architectural or historic interest that it possesses, it is appropriate to make the order
- Having special regard to the desirability of preserving or enhancing the character or appearance of any conservation area, it is appropriate to make the order
- The order contributes to the achievement of sustainable development (as defined in the NPPF)
- The order is in general confirming with the strategic policies in the local development plan
- The order does not breach retained EU obligations (such as those relating to the protection of habitats)
The government has released guidance on neighbourhood planning (ref. 8)
An order will be taken as contributing to the achievement of sustainable development if it complies with the policies of the NPPF.
So in terms of heritage conservation, the tests for the appropriateness of a neighbourhood development order are the same as for any planning application provided the local development plan contains strategic policies on the conservation and enhancement of the historic environment, including landscape, as it is obliged to do (ref. 9).
If the examiner approves of the draft order it must be put to a referendum. If more than half of those voting in the referendum vote in favour the order must be made by the local planning authority (ref. 10).
Community right to build orders
This is a species of neighbourhood development order. The process to completion and the 'basic conditions' it must satisfy are materially the same as for any neighbourhood development order (ref. 11). The essential differences are that the party proposing a community right to build order is a 'community organisation' established for the express purpose of furthering social, environmental and economic well-being in the area and that the order grants planning permission for a specific project on a specific site only.
Archaeology and neighbourhood development
Many sites of archaeological significance are only protected through the planning system, including an estimated 80,000 sites that are of national and perhaps international importance. Since these sites may not be obvious to the casual observer, it is important that the process of making a neighbourhood development order recognises their existence and the appropriate policies in the NPPF are applied before the requirement for planning permission that protects these sites is effectively removed, possibly for some considerable period of time.
Neighbourhood forums and relevant local authorities are advised to use all the available information resources to assess the likelihood of sites of archaeological significance being affected by the proposed order so the 'basic conditions' can be properly addressed.
As a safeguard, when Historic England is consulted in accordance with the regulations (ref. 5) it may advise that an 'archaeology statement' is required. If so, the applicant will need to consult the relevant historic environment record, set out the findings of that consultation in the application for the order and explain how the findings have been taken into account in order to comply with the 'basic conditions' and therefore the policies in the NPPF protecting archaeological heritage assets, amongst other things.
(8) Neighbourhood Planning Guidance, Ministry of Housing, Communities and Local Government, September 2020
(9) Paragraph 20, National Planning Policy Framework, Ministry of Housing, Communities and Local Government, July 2021