The Neighbourhood Planning (Referendums) Regulations 2012

Citation and commencement

1.  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

2.—(1) In these Regulations—

“the 1983 Act” means the Representation of the People Act 1983(1);

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

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

“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(2);

“European Parliamentary election” must be construed in accordance with section 27(1) of the Representation of the People Act 1985(3)

“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(4);

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

“local referendum” means—

(a)

a referendum under Part 1A of the Local Government Act 2000 (local authority governance in England);

(b)

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(5);

“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(6);

“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(7);

“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)

a Parliamentary election;

(b)

a European Parliamentary election;

(c)

a GLA election;

(d)

a local government election;

(e)

a local referendum;

(f)

a mayoral election;

(g)

a police and crime commissioner election.

(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(8).

Question to be asked in a referendum

3.  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

4.—(1) Not fewer than 28 days before the date on which the referendum will be held, the proper officer of the relevant council(9) 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.

(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;

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

(iii) the question to be asked in the referendum;

(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;

(vii) the referendum expenses limit that will apply in relation to the referendum and the number of persons entitled to vote by reference to which that limit has been calculated;

(viii) that the referendum 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; 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(10) 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.

(4) The days mentioned in paragraph (5) are to be disregarded in calculating the period of 28 days 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

5.—(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)(11); and “publication” is to be construed accordingly.

General restriction on referendum expenses

6.—(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;

“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—

where N is number of entries in the relevant register;

“for referendum purposes” means—

(a)

in connection with the conduct or management of any campaign conducted with a view to promoting or procuring a particular result in the referendum, or

(b)

otherwise 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 published under section 13 of the 1983 Act(12) after the conclusion of the canvass conducted under section 10 of that Act in the year immediately preceding that in which the referendum is held, which has or have effect in respect of the referendum area (whether or not the persons to whom these 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 12 months 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 the commencement of section 154(1) of the Criminal Justice Act 2003(13), the reference in paragraph (5)(a) to 12 months 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

7.—(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

8.—(1) This regulation applies, in relation to the referendum, where the poll is not taken together with the poll at a relevant election.

(2) The referendum is to be conducted in accordance with the Neighbourhood Planning Referendums Rules (set out in Schedule 3).

(3) The enactments mentioned Tables 1 to 6 of Schedule 4 have effect in relation to the referendum, subject to—

(a) unless the context otherwise requires, the general modifications specified in paragraph (4), and

(b) the modifications specified in those Tables.

(4) The general modifications are—

(a) a reference to an election must be construed as a reference to the referendum;

(b) a reference to a returning officer must be construed as a reference to the counting officer;

(c) a reference to a constituency, an electoral division or a ward, or a reference to a voting area must be construed as a reference to the referendum area;

(d) a reference to any local authority by or in respect of which an election is held must be construed as a reference to the relevant council;

(e) a reference to voting for, or a vote for, a candidate must be construed as a reference to voting for, or a vote for, an answer;

(f) a reference to promoting or procuring the election of a candidate, or furthering a person’s candidature, must be construed as a reference to promoting or procuring a particular result in the referendum;

(g) references to nomination papers and, except as mentioned in sub-paragraphs (e) and (f), references to candidates, are ignored;

(h) a reference to the return of a person must be construed as a reference to a particular result in the referendum;

(i) a reference to a person voting as an elector must be construed as a person voting on their own behalf;

(j) a reference to a person’s entitlement as an elector to an absent vote must be construed as a reference to a person’s entitlement to vote by post on their own behalf or to vote by proxy;

(k) where anything is required to be done in the presence of election, polling, counting or other agents, the reference to the presence of agents is ignored;

(l) a reference to anything having been prescribed must be construed as a reference to its being provided for by a provision of subordinate legislation applied by these Regulations;

(m) a form which is required to be used may be used with such variations as the circumstances require;

(n) a reference to the registration officer, in relation to a district, London borough, the Common Council of the City of London or the Isles of Scilly, is a reference to the relevant registration officer appointed under section 8 or 203(4) of the 1983 Act(14), and for the purpose of the exercise of a registration officer’s functions in relation to the referendum, section 52(1) to (4) (discharge of registration duties) and section 54(1), (3) and (4) (payment of expenses of registration) of that Act have effect;

(o) any reference to an enactment or instrument made under an enactment must be construed as a reference to that enactment or instrument as applied by these Regulations;

(p) so much of any provision as applies to an election petition is ignored;

(q) so much of any provision as applies only in Scotland, Wales or Northern Ireland is ignored.

Counting officer

9.—(1) Where the relevant council is not the Common Council of the City of London, functions conferred by these Regulations on the counting officer are to be exercised in the referendum area by the person who is for the time being the returning officer at local government elections in which the referendum area is situated under section 35(1) or (3) of the 1983 Act(15).

(2) Where the relevant council is the Common Council of the City of London, functions conferred by these Regulations on the counting officer are to be exercised by the person who is for the time being appointed by the Common Council to act as the counting officer of the referendum.

(3) It is the counting officer’s general duty at the referendum to do all such acts and things as may be necessary for effectually conducting the referendum in the manner provided by these Regulations.

(4) The counting officer must also appoint and pay any such persons as may be necessary for the purpose of the counting of the votes.

Cross-boundary referendum areas and the Chief Counting Officer

10.—(1) This regulation applies where the referendum area comprises any part of the area of more than one relevant council.

(2) Where under these Regulations a proper officer is required to publish any notice or document, that notice or document must be published in the same manner and on the same date in respect of each relevant council.

(3) Where paragraph (2) applies, the decision as to the manner and date of the publicity required is to be made by the proper officers of the relevant councils jointly or, if they cannot agree, by the proper officer of the relevant council in whose portion of the referendum area the greater or greatest (as the case may be) number of local government electors is registered.

(4) Where this regulation applies—

(a) the relevant council in whose portion of the referendum area the greater or greatest (as the case may be) number of local government electors is registered, or

(b) such other relevant council as both or all (as the case may be) the councils agree,

must appoint a person to be Chief Counting Officer in relation to the referendum.

(5) The Chief Counting Officer may give, to a counting officer, directions relating to the discharge of the counting officer’s functions at the referendum, including directions requiring the provision to the Chief Counting Officer of any information which the counting officer has or is entitled to have and directions requiring them to take specified steps in preparation for the referendum.

(6) It is the duty of a counting officer to whom directions are given under paragraph (5) to discharge that counting officer’s functions at the referendum in accordance with the directions.

(7) In relation to the discharge of all or any of the functions of the Chief Counting Officer in relation to the referendum, the Chief Counting Officer may, in writing, appoint—

(a) deputies;

(b) clerks.

Combination of polls: general

11.—(1) Where the poll at a referendum would be taken on a day that falls within the period beginning 28 days before the day on which the poll is to be taken at a relevant election, the poll at the referendum may be taken on the day on which the poll is to be taken at the relevant election and the polls may be taken together if the returning officer or counting officer for the relevant election and the counting officer for the referendum think fit.

(2) Where the poll at a referendum would be taken on a day that falls within the period beginning 28 days before the day on which the poll is to be taken at another referendum, the poll at both referendums may be taken on the same day and the polls may be taken together if the counting officer thinks fit.

(3) The cost of taking the combined polls (excluding any cost solely attributable to one election or referendum) and any cost attributable to their combination are to be apportioned equally among the elections or referendums.

Combination of polls: conduct of referendum

12.—(1) This regulation applies, in relation to the referendum, where polls are taken together in accordance with regulation 11.

(2) The poll at the referendum is to be conducted in accordance with the Neighbourhood Planning Referendums (Combination of Polls) Rules (set out in Schedule 5).

(3) The enactments mentioned in Tables 1 to 6 of Schedule 4 have effect, in relation to the referendum, subject to—

(a) unless the context otherwise requires, the general modifications in regulation 8(4), and

(b) the modifications specified in those Tables.

(4) The enactments mentioned in Part 2 of Schedule 4 have effect, in relation to the referendum, subject to the modifications specified in that Part.

(5) Where the polls at a relevant election are held on the same day as the referendum, a person who is entitled to vote at the referendum is to be treated as being entitled to vote by post, or to vote by proxy, at the referendum where that person is entitled under the absent voter legislation to vote by post, or to vote by proxy, at the relevant election.

(6) In paragraph (5), “absent voter legislation” means one or more of the following—

(a) Schedule 4 to the Representation of the People Act 2000(16);

(b) Schedule 2 to the Police and Crime Commissioner Elections Order 2012(17); and

(c) Schedule 2 to the European Parliamentary Elections Regulations 2004(18).

Combination of polls: supplementary provisions relating to relevant elections

13.—(1) This regulation applies, in relation to the relevant election, where polls are taken together in accordance with regulation 11.

(2) The enactments mentioned in Tables 2, 3 and 6 of Part 1 and Parts 2 and 3 of Schedule 4, have effect, in relation to the relevant election taken together with the referendum, subject to—

(a) unless the context otherwise requires, the general modifications specified in paragraph (3), and

(b) the modifications specified in Tables 2, 3 and 6 and Parts 2 and 3.

(3) The general modifications are—

(a) a reference to an election must be construed as including the referendum;

(b) a reference to a returning officer must be construed as including the counting officer;

(c) a reference to a constituency, an electoral division or a ward, or a reference to a voting area must be construed as including the referendum area;

(d) a reference to any local authority by or in respect of which an election is held must be construed as including the relevant council;

(e) a reference to voting for, or a vote for, a candidate must be construed as including voting for, or a vote for, an answer;

(f) a reference to promoting or procuring the election of a candidate, or furthering a person’s candidature, must be construed as including promoting or procuring a particular result in the referendum;

(g) a reference to the return of a person must be construed as including a particular result in the referendum;

(h) a reference to a person voting as an elector must be construed as including a person voting on their own behalf;

(i) a reference to a person’s entitlement as an elector to an absent vote must be construed as including a person’s entitlement to vote by post on their own behalf or to vote by proxy;

(j) a reference to anything having been prescribed must be construed as including its being provided for by a provision of subordinate legislation applied by these Regulations;

(k) a form which is required to be used may be used with such variations as the circumstances require;

(l) a reference to the registration officer, in relation to a district, London borough, the Common Council of the City of London or the Isles of Scilly, includes a reference to the relevant registration officer appointed under section 8 or 203(4) of the 1983 Act, and for the purpose of the exercise of a registration officer’s functions in relation to the referendum, section 52(1) to (4) (discharge of registration duties) and section 54(1), (3) and (4) (payment of expenses of registration) of that Act have effect;

(m) any reference to an enactment or instrument made under an enactment must be construed as including that enactment or instrument as applied by these Regulations.

Advertisements

14.  The Town and Country Planning (Control of Advertisements) Regulations 2007(19) have effect in relation to the display on any site in a referendum area of an advertisement relating specifically to the referendum as they have effect in relation to the display of an advertisement relating specifically to a local government election.

Non-domestic rating: premises used for referendum purposes

15.  In relation to premises in a referendum area, section 65(6) of the Local Government Finance Act 1988(20) has effect as if—

(a) the reference to public meetings in furtherance of a person’s candidature at an election included a reference to public meetings promoting a particular result in the referendum, and

(b) the reference to the use by a returning officer for the purpose of taking the poll in an election included a reference to the use for the purpose of taking the poll in the referendum by a person exercising functions of a counting officer in accordance with regulation 9.

Referendums not arranged by the local planning authority

16.  If any relevant council is not the local planning authority, the relevant council and the local planning authority must co-operate in relation to the holding of referendums, and in particular—

(a) the proper officer of the local planning authority must inform the proper officer of the relevant council as soon as they know that a referendum is required to be held by paragraph 12(4) of Schedule 4B, or paragraph 10(3) of Schedule 4C, to the 1990 Act;

(b) the proper officer of the local planning authority must promptly provide to the proper officer of the relevant council—

(i) a summary of written representations, and

(ii) any information or copies of documents held by the local planning authority,

which the proper officer of the relevant council requires to comply with regulation 4;

(c) the proper officers of the local planning authority and the relevant council must each respond as soon as reasonably practicable to any request for information from the other in connection with the holding of the referendum; and

(d) the proper officer of the relevant council must, as soon as reasonably practicable, inform the proper officer of the local planning authority of the result of the referendum.

Signed by authority of the Secretary of State for Communities and Local Government

Grant Shapps

Minister of State

Department for Communities and Local Government

2nd August 2012