Duty to Co-operate in Local Plan Making – another local authority is criticised

St Albans City & District Council submitted its draft Strategic Local Plan for examination earlier this year. The Inspector appointed to examine the Plan raised a number of preliminary concerns regarding legal compliance, namely whether the Duty to Co-operate (DtC) had been met together with related matters regarding the soundness of the Plan. The Inspector held an initial hearing session to consider the Council’s approach to the DtC.

Section 33A of the Planning and Compulsory Purchase Act 2004 (as amended by Section 110 the Localism Act 2011) establishes the DtC, being a legal duty to co-operate in relation to planning sustainable development. This requires each authority to engage constructively, actively and on an on-going basis in the preparation of development plan documents. Authorities are also required to have regard to related guidance contained in the National Planning Policy Framework and the Planning Practice Guidance.

On 28 November 2016, the Inspector issued a letter concluding that the DtC had not been met by the Council. The Inspector concluded that he could not confirm that the Council had adequately considered helping meet other authorities’ development needs. Therefore the Plan would not be effective and could not be found to be sound. His findings provide a useful reminder as to how planning authorities should act when preparing a Local Plan and when addressing matters which affect other planning authorities:

• There must be a clear statement of the strategic priorities in each Local Plan, particularly those with cross-boundary implications. All sub-regional and regional issues should be clearly identified and the Plan should explain how each such issue has been addressed. Implicit references to these priorities will not be sufficient.
• In order for effective policies on strategic cross-boundary matters and priorities to be put in place, those matters must be identified at the earliest possible stage in the plan making process. There must then be constructive engagement with other authorities throughout the pre-examination stage. The Court of Appeal in Samuel Smith Old Brewery (Tadcaster) v Selby DC (2015) confirmed that this is the stage when the DtC must be met, and also that even after submission of a Local Plan for approval, co-operation should continue.
• Whilst it is not necessary to formally monitor compliance with the DtC a Local Plan progresses, a structured approach to meetings, identifying issues to be addressed and likely outcomes and the bodies that need to be involved will demonstrate commitment to the DtC. Criticisms of the Council’s approach included the fact that whilst there was active engagement initially, this was not maintained throughout the process, joint meetings were held infrequently, and the recommendations and outcomes of meetings were unclear.
• The DtC is not a duty to agree. The fact that neighbouring authorities disagree on matters does not in itself demonstrate that the DtC has not been met. Authorities must make every effort to try and reach agreement and they should be able to demonstrate how they have made this effort though the policies that are finally produced. It is not open to an authority to be selective over which neighbouring bodies it co-operates with.
• The DtC requires detailed diligence to be carried out. The Inspector found that the Council had not undertaken a full analysis of the issues facing local authorities in the area, nor a robust assessment of how these issues should be addressed.

The Inspector directed that the Council has two options, namely that it accept his findings on the DtC, and if so, he will have to recommend that the Local Plan is not adopted, or it may choose to withdraw the Local Plan from examination. We wait to hear which route the Council decides to take.

The Inspector commented in particular on the Council’s approach to housing need and identification of housing sites. This follows criticism of the Coventry Core Strategy where no joint strategic housing market assessment had been prepared with adjoining authorities, and the Vale of Aylesbury Plan where other authorities had not been properly involved in the supporting housing needs assessment.

Compliance with the DtC on housing matters will be of particular relevance to London boroughs at this time of significant need for more housing in the capital. Boroughs will need to undertake housing assessments jointly with neighbouring authorities outside London. As noted above, the authorities do not necessarily need to agree on strategic priorities such as housing but they must engage with each other, and that engagement must be proactive and ongoing, in order to try and achieve priorities which are of mutual benefit to all authorities involved.