The Neighbourhood Planning (Referendums) Regulations 2012

Made: 2nd August 2012

Coming into force in accordance with regulation 1

The Secretary of State makes the following Regulations in exercise of the powers conferred by paragraph 16 of Schedule 4B to the Town and Country Planning Act 1990 and section 38A(3) of the Planning and Compulsory Purchase Act 2004 .

In accordance with paragraph 16(5) of that Schedule, the Secretary of State has consulted the Electoral Commission on these Regulations.

In accordance with section 333(3A) of that Act, a draft of this instrument has been laid before and approved by a resolution of each House of Parliament.

Citation and commencement

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These Regulations may be cited as the Neighbourhood Planning (Referendums) Regulations 2012 and come into force on the day after the day on which they are made.

Interpretation

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• (1) In these Regulations—

• “the 1983 Act” means the Representation of the People Act 1983 ;

• “the 1990 Act” means the Town and Country Planning Act 1990;

• “the 2004 Act” means the Planning and Compulsory Purchase Act 2004;

• “business referendum” means the additional referendum referred to in paragraph 15 of Schedule 4B to the 1990 Act;

• “counting observer” means the person appointed to that position under rule 19 of the Neighbourhood Planning Referendums Rules or rule 19 of the Neighbourhood Planning Referendums (Combination of Polls) Rules;

• “counting officer” means the person referred to in regulation 9;

• “electoral area” has the meaning given in section 203(1) of the 1983 Act ;

• ...

• “GLA election” means the election of a Mayor of London or a member of the London Assembly in accordance with Part 1 of the Greater London Authority Act 1999 ;

• “local government election” means the election of a councillor for any electoral area;

• “local referendum” means—a referendum under Part 1A of the Local Government Act 2000 (local authority governance in England);a referendum under Chapter 4ZA of Part 1 of the Local Government Finance Act 1992 (council tax increases);

• “mayoral election” means the election for the return of an elected mayor as defined by section 9H of the Local Government Act 2000 ;

• “neighbourhood plan” means a neighbourhood development plan as defined in section 38A of the 2004 Act;

• “police and crime commissioner election” means the election of a police and crime commissioner in accordance with Chapter 6 of Part 1 of the Police Reform and Social Responsibility Act 2011 ;

• “polling observer” means the person appointed to that position under rule 19 of the Neighbourhood Planning Referendums Rules or rule 19 of the Neighbourhood Planning Referendums (Combination of Polls) Rules;

• “proper officer” must be construed in accordance with section 270(3) of the Local Government Act 1972 ;

• “referendum”, except in the definition “local referendum”, means a referendum required to be held as a result of paragraph 12(4) of Schedule 4B, or paragraph 10(3) of Schedule 4C, to the 1990 Act;

• “referendum period” means the period beginning with the date on which the information statement and documents required to be published by regulation 4(1) are published and ending on the date on which the referendum is held; and

• “relevant election” means—a Parliamentary election;...a GLA election;a local government election;a local referendum;a mayoral election;a police and crime commissioner election;

• “residential referendum” means the referendum referred to in paragraph 14(2) of Schedule 4B to the 1990 Act.

• (2) A reference in these Regulations to a neighbourhood development order includes a community right to build order except in so far as the contrary intention appears .

Question to be asked in a referendum

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The question to be asked in the referendum is, where the proposal in relation to which the referendum is to be held is—

• (a) a neighbourhood plan, the question set out in paragraph 1 of Schedule 1;

• (b) a neighbourhood development order, other than a community right to build order, the question set out in paragraph 2 of Schedule 1;

• (c) a community right to build order, the question set out in paragraph 3 of Schedule 1.

Information to be made available in relation to referendums

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• (1) ...The proper officer of the relevant council must ensure the information statement and the specified documents are—

• (a) published on the website of the relevant council; and

• (b) made available during the referendum period for inspection—

• (i) at the principal offices of the relevant council; and

• (ii) where the relevant council controls any premises which are open to the public in the referendum area, at such of those premises as the council considers appropriate having regard to the desirability of ensuring a geographical distribution of premises where the statement and documents are made available, provided that in all cases they are available at least at one such premises; and

• (c) where regulation 17 applies, and subject to paragraph (3A), made available during the referendum period in such other manner if any as the proper officer considers necessary to bring them to the attention of persons likely to be entitled to vote in the business referendum.

• (1A) The information statement and the specified documents must be published in accordance with paragraph (1)(a) not fewer than—

• (a) where regulation 17 applies, 56 days before the date on which the referendums will be held (subject to paragraph 3A)); or

• (b) in any other case, 28 days before the date on which the referendum will be held.

• (1B) Where regulation 17 applies (and subject to paragraph (3B)), the information statement and specified documents must be published on the same date in respect of each of the referendums.

• (2) The information statement and the specified documents published in accordance with paragraph (1) must, as far as reasonably practicable, remain available throughout the referendum period in the form in which they were originally published.

• (3) For the purposes of this regulation—

• (a) “the information statement” is a statement that specifies—

• (i) that a referendum will be held and, where regulation 17 applies, that two referendums will be held on the same date one of which is a business referendum;

• (ii) the date on which the referendum or referendums will be held;

• (iii) the question to be asked in the referendum or referendums;

• (iv) a map of the referendum area;

• (v) where the referendum area is not identical to the neighbourhood area, a map of the neighbourhood area;

• (vi) a description of persons entitled to vote in the referendum and, where regulation 17 applies, each of the referendums;

• (vii) the referendum expenses limit that will apply in relation to the referendum or, where regulation 17 applies, as the overall limit for both referendums, and the number of persons by reference to which that limit has been calculated;

• (viii) that the referendum or referendums will be conducted in accordance with procedures similar to those used at local government elections; and

• (ix) the address and times at which a copy of the specified documents can be inspected, including, where regulation 17 applies, the specified documents relating to the business referendum; and

• (b) “the specified documents” are—

• (i) the draft neighbourhood plan or neighbourhood development order;

• (ii) the report made by the independent examiner under paragraph 10 of Schedule 4B to the 1990 (in the case of a neighbourhood plan, as applied by section 38A(3) of the 2004 Act);

• (iii) a summary of any representations submitted to the independent examiner pursuant to paragraph 9 of Schedule 4B to the 1990 Act;

• (iv) a statement—

• (aa) in the case of a draft neighbourhood development order (excluding a community right to build order), that the local planning authority are satisfied the order meets the basic conditions mentioned in paragraph 8(2) of Schedule 4B to the 1990 Act and complies with the provision made by or under sections 61E(2), 61J and 61L of that Act, or

• (bb) in the case of a draft neighbourhood plan, that the local planning authority are satisfied the draft plan meets those basic conditions and complies with the provision made by or under sections 38A and 38B of the 2004 Act; or

• (cc) in the case of a community right to build order, that the independent examiner has recommended that the draft order is submitted to a referendum under paragraph 10(3) of Schedule 4C to that Act;

• (v) a statement that sets out general information as to town and country planning (including neighbourhood planning) and the referendum, which is prepared having regard to any guidance issued by the Secretary of State; and

• (vi) in the case of a community right to build order, a statement that sets out details of any enfranchisement right which are not to be exercisable in relation to land the development of which is to be authorised by the draft order, and the properties, or types of properties, in relation to which, the qualifying body proposes that right is not exercisable.

• (3A) Where regulation 17 applies, the referendum expenses limit in paragraph (3)(a)(vii) shall be published and made available in accordance with paragraph (1) as soon as practicable after the initial registration list is received by the business registration officer.

• (3B) Where regulation 17 applies, this regulation does not require publication or making available of more than one statement, nor of the same document more than once, except in so far as is necessary to bring the information set out in paragraph (3) in respect of both referendums to the attention of persons entitled to vote in either of the referendums.

• (3C) In this regulation “referendum expenses limit” has the same meaning as in regulation 6(1).

• (4) The days mentioned in paragraph (5) are to be disregarded in calculating the period ... referred to in paragraph (1).

• (5) The days mentioned in this paragraph are—

• (a) a Saturday or Sunday,

• (b) Christmas Eve, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in England, and

• (c) any day appointed as a day of public thanksgiving or mourning in England.

Restriction on publication etc of promotional material

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• (1) This regulation applies to any material which—

• (a) provides general information about the referendum;

• (b) deals with any of the issues raised by the question to be asked in the referendum; or

• (c) puts any arguments for or against a particular answer to that question.

• (2) No material to which this regulation applies is to be published by or on behalf of—

• (a) the relevant council, or

• (b) the local planning authority for the referendum area, where that is not the relevant council,

during the referendum period.

• (3) Paragraph (2) does not apply to—

• (a) material required to be published under regulation 4, or

• (b) the publication of press notices containing factual information where the sole purpose of the publication is to refute or correct any inaccuracy in material published by a person other than the relevant council.

• (4) In this regulation “publish” means make available to the public, or to any section of the public, in whatever form and by whatever means (including, in particular, by inclusion in any programme included in a programme service within the meaning of the Broadcasting Act 1990) ; and “publication” is to be construed accordingly.

General restriction on referendum expenses

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• (1) In this regulation and in regulation 7—

• “campaign organiser” means an individual or body by whom, or on whose behalf, referendum expenses are incurred (including expenses treated as incurred) in connection with a referendum campaign;

• “initial registration list” means the information provided by a billing authority to a business registration officer in accordance with paragraph 13 of Schedule 6 and includes any corrections or alterations made to it in accordance with the provisions of that Schedule;

• “referendum campaign” means a campaign conducted with a view to promoting or procuring a particular outcome in relation to the question to be asked in a referendum;

• “referendum expenses” means the expenses incurred by or on behalf of any individual or body during the referendum period for referendum purposes in respect of any of the matters set out in paragraphs 1 to 7 of Schedule 2, as read in accordance with paragraph 8 of that Schedule;

• “referendum expenses limit” is calculated using the formula—$£ 2 , 362 + ( 0.059 x N )$ where N is—if regulation 17 does not apply, the number of entries in the relevant register;if regulation 17 applies, the sum of the number of entries in the relevant register and the number of rate-payers on the initial registration list;

• “for referendum purposes” means—in connection with the conduct or management of any campaign conducted with a view to promoting or procuring a particular result in the referendum, orotherwise in connection with promoting or procuring any such outcome;

• “relevant register” means the part or parts of the register or registers of local government electors kept in accordance with section 9(1) of the 1983 Act which has or have effect in respect of the referendum area on the day on which the referendum period begins (whether or not the persons to whom the entries relate are entitled to vote in the referendum).

• (2) The total referendum expenses incurred or, in accordance with regulation 7, treated as incurred, by, or on behalf of, a campaign organiser must not exceed the referendum expenses limit.

• (3) Where any referendum expenses are incurred in excess of the referendum expenses limit, a person who knew or ought reasonably to have known that that limit would be exceeded, or who, without reasonable excuse, authorises another person to exceed that limit, is guilty of an offence.

• (4) Where an offence under paragraph (3) which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or any other person purporting to act in such capacity, that person, as well as the body corporate, is guilty of an offence and is liable to be proceeded against and punished accordingly.

• (5) A person who commits an offence under paragraph (3) is liable—

• (a) on summary conviction, to a fine not exceeding the statutory maximum or imprisonment for a term not exceeding the general limit in a magistrates’ court or both, or

• (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 12 months or both.

• (6) In relation to an offence committed before 2nd May 2022, the reference in paragraph (5)(a) to the general limit in a magistrates’ court is to be read as a reference to 6 months.

• (7) Where information is given to the Director of Public Prosecutions (“the DPP”) that an offence under paragraph (3) has been committed, it is the DPP's duty to make such inquiries and institute such prosecutions as the circumstances of the case appear to the DPP to require.

• (8) Nothing in paragraph (2) affects the right of any creditor who, when the expenses were incurred, was ignorant of that expense being in contravention of that paragraph.

Notional referendum expenses

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• (1) This regulation applies where property, services or facilities provided for the use or benefit of any person either—

• (a) free of charge, or

• (b) at a discount of more than 10 per cent of the commercial rate for the use of the property or for the provision of the services or facilities,

is or are made use of by or on behalf of that person in circumstances such that, if any expenses were to be (or are) actually incurred by that person or on that person's behalf in respect of that use, they would be (or are) referendum expenses incurred by that person or on that person's behalf.

• (2) Subject to paragraph (5), where this regulation applies, an amount of referendum expenses determined in accordance with paragraph (3) is, unless it is not more than £200, to be treated for the purposes of regulation 6 as incurred by that person for the period for which the property, services or facilities is or are made use of as mentioned in paragraph (1).

• (3) The amount mentioned in paragraph (2) is such proportion of either—

• (a) the commercial rate for use of the property or the provision of the services or facilities (where the property, services or facilities is or are provided free of charge), or

• (b) the difference between that commercial rate and the amount of the expenses actually incurred by or on behalf of that person in respect of the use of the property or the provision of the services or facilities (where the property, services or facilities is or are provided at a discount),

as is reasonably attributable to the use made of the property, services or facilities as mentioned in paragraph (1).

• (4) Where the services of an employee are made available by that employee's employer for the use or benefit of a person, the amount which is to be taken as constituting the commercial rate for the provision of those services is the amount of the remuneration or allowances payable to the employee by the employer in respect of the period for which the employee's services are made available (but that amount is not to include any amount in respect of contributions or other payments for which the employer is liable in respect of that employee).

• (5) No amount of referendum expenses is to be regarded as incurred by virtue of paragraph (2) in respect of the provision by any individual of the individual's own services which the individual provides voluntarily in that individual's own time and free of charge.

Conduct of referendum: poll at referendum not taken together with poll at relevant election or referendum

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