In light of the recent news that the Planning Inspectorate has advised Wealden District Council that it failed in its legal duty to cooperate and therefore cannot proceed with its local plan, Kate Jardine, senior associate of planning at Thomson Snell & Passmore, looks at the importance of duty to cooperate in Local Plans and advises on best practice for planning authorities and public bodies
In an environment where the divide between local and central government appears to be ever-widening – the process of preparing a Local Plan to meet the needs of an area is one upon which it is becoming harder for each ‘side’ to come to an agreement or even a compromised position.
As if the job of preparing local plans wasn’t difficult enough: balancing the wishes of local residents (and many planning officers too!) to protect the natural environment with the clear need for housing and infrastructure to support the growth, both economically and socially, of an area.
And nowhere is this felt more acutely than in the South East, the gateway into/out of Europe, a strong commuter zone for London; an area which, in the past couple of months, has seen at least two of its submitted Local Plans recommended for withdrawal by the examining Inspector at the first hurdle.
Refuting ‘failure to comply’ allegations
Sevenoaks Council is in the process of standing its ground and refuting the Inspector’s allegations of its failure to comply with the Duty to Co-operate; whilst Wealden District Council has, against the same allegation, admitted defeat and withdrawn its Plan and is starting again. More probably, this is due to the strength and number of the assertions made by the Inspector of its failure to comply with not just one statutory body, but all of its neighbouring authorities as well as Natural England, and rejecting the advice of its own experts.
The Inspector identified her main concern as being, “the lack of constructive engagement with neighbouring authorities and Natural England in respect of impacts on habitats and landscape and in respect of the issue of unmet housing need in Eastbourne”.
What is the Duty to Co-operate?
The Planning and Compulsory Purchase Act 2004 placed a legal duty on public bodies to engage constructively, actively and on an ongoing basis with each other to maximise the effectiveness of local plan preparation relating to strategic cross-boundary matters. Its aim is to encourage positive and continual partnership on planning matters that go beyond the boundaries of a single local planning authority’s (LPA) administrative area.
The courts have confirmed that it is not a ‘duty to agree’ and that it depends on the issues to be addressed as to what level of duty should be engaged. So long as there is evidence that genuine engagement has taken place, the fact that there is no final agreement on the matters, does not amount to a failure to comply with the Duty. As the wording suggests, it is a Duty to Co-operate.
The problem is that, with the introduction of the Housing Delivery Test last year, many LPAs have found themselves in the territory of having to deliver far more housing than their own objectively assessed tests have identified. The result of this, particularly where LPAs within close proximity of each other are all being asked to ‘over-deliver’, is that the Duty to Cooperate is seen as a tick-box exercise. Some may go further and say that it has no effect and is a waste of precious time and resources for all involved. Nevertheless, the duty still exists in law and so LPAs (and others) are currently bound to evidence their compliance with it in the plan-making process and at the examination of their submitted plans.
How did Wealden DC fail to comply with the Duty?
According to the Inspector’s conclusions, Wealden failed on a number of points. The first of which is that, when attempting to arrive at an appropriate tariff to apply to development to protect the Ashdown Forest Special Area of Conservation, it chose to apply an emissions model which was not in line with its own air quality consultant’s advice and the advice of Natural England. The model which Wealden chose was likely to over-estimate future vehicle pollutant emissions, according to its own advisor and Natural England. I am not going to try and explain here the effects of applying one model over another – that is for the experts (whose advice I shall happily accept!)
However, as far as the effect of not complying with the Duty to Co-operate, the Inspector makes an important point that, “Whilst the Council may be entitled to take a different view from the advice of a nationally important body and an acknowledged expert on the subject, it needs to support its position with adequate evidence. It did not do so but instead took a position which was in scientific terms lacking in credibility.” In going this step further, the Inspector highlights the importance and rationale behind the necessity of complying with the Duty: it is not solely a procedural hurdle over which all horses are being asked to jump without question or reason.
This is not the only failing identified by the Inspector. On cross-boundary issues, she states that, despite the formation of a multi-party working group with neighbouring authorities and Natural England (the Ashdown Forest Working Group), one of the aims of which was to share information and evidence to support the strategic decisions to be made in relation to the protection of the Ashdown Forest, Wealden failed to openly share information that it held, in a timely manner, claiming a risk of public disclosure under Freedom of Information requests if it released the information to the other members of the Working Group (except Natural England). This bias towards Natural England only served to underline the failure by Wealden of constructive engagement with its neighbouring authorities on strategic matters.
Insofar as the housing needs of Eastbourne were concerned, Wealden accepted that Eastbourne cannot meet its own housing needs, and that it shares a housing market area with the town, and yet it consistently failed to constructively engage in trying to seek solutions to assist Eastbourne in meeting its need. The Inspector concluded that, “rather than being an opportunity to work collaboratively to address and find strategic solutions to overcome the serious obstacles to delivering development both in Wealden and in Eastbourne, [the meetings] were a forum to communicate the constraints which the LPA [Wealden] considered would prevent them from helping”.
The assertion by the Inspector of Wealden’s failure to comply with the Duty was supported by no less than five of its neighbouring authorities (Rother, Eastbourne, Lewes, South Downs and Tunbridge Wells). This does not bode well for future relationships and perhaps this is where the difference between the case of Wealden and the case of Sevenoaks can be highlighted; Sevenoaks’ neighbours all contested the Inspector’s assertion that it had failed to engage with them.
What should they have done?
The National Planning Policy Framework sets out the requirements for a plan to be found sound. It must be: (a) positively prepared; (b) justified; (c) effective; and (d) consistent with national policy. A common theme running through these tests is that it be based on joint working and agreement with other authorities.
The Planning Inspectorate also sets out its procedural guide to local plan examinations, which provides (paras 1.14-1.15) best practice on how to evidence compliance with the Duty. Essentially, it states that the Inspector must be satisfied that the authority has met the Duty by engaging with neighbouring authorities and other bodies “constructively, actively and on an ongoing basis”. How they do this is at their discretion but the lesson to be learnt from this and also from the Sevenoaks case is that policymakers must be brutally honest with themselves about whether they can evidence this continued negotiation throughout the whole of the consultation period. And it is not just a case of producing a note of a meeting or a telephone call. Inspectors clearly want more than just a record of what has happened. They want to see co-operation.
Despite planning law playing a large part in how the Inspector assesses the Duty, it remains an objective assessment. By law, local authorities are required to ensure that, in their opinion, the plan is sound and legally compliant. This opinion-based assessment provides the potential for disparity between the local authority and the Inspector.
Earlier assessment?
When public bodies risk placing themselves in expensive situations which may have been preventable, a possible solution could be that an independent check be conducted on the soundness and legality of the draft plan before it is submitted for examination, in particular the Duty to Cooperate.
Wealden now face going back to the drawing board with many of the topics it will be addressing at Examination, at much cost. And to whom?
Whilst political pressure is often a factor in encouraging the progression of a Plan to the submission stage, the Duty is on the LPA itself and it is ultimately the residents, visitors and businesses of the borough which face the consequences of not having a Plan in place. It is therefore incumbent upon the LPA as a regulatory body (rather than a political one) to ensure, by whatever means possible, that it complies with the legislation by which it is bound and which seeks to safeguard the future of an area.
Kate Jardine
Senior associate of planning
Twitter: @pragmaticlawyer
LinkedIn: Thomson Snell & Passmore
