Broken plans - the problem with “soundness”
The downfall of the North Essex plan
Don’t take my word for it - ask the Office of the Parliamentary Counsel (some of the finest lawyers in the land): good law needs “precise and concrete words”.
So what should we make of “soundness”?
The OED gives “sound” - just the adjective, before we even get to the noun, the verb or the adverb - 20 different meanings. Which one did Parliament have in mind when “sound” appeared in the Planning and Compulsory Purchase Act in September 2004 as a new legal test for examining local plans?
#Planoraks who missed the halcyon days of local plan inquiries might be surprised to hear that the idea was for the “soundness” test finally to boot lawyers out of the process and make examinations “less adversarial” - still some work to be done on that score!
In any event, the Act didn’t define “sound”.
Ministers penned a definition, not in legislation but in the 2004 version of PPS12. But note what it didn’t include: there was a requirement for “clear mechanisms for implementation” and that “the plan is reasonably flexible to enable it to deal with changing circumstances” - all very sensible stuff - but no need to show a plan is deliverable.
PPS12 was updated in 2008 - here we see the now-familiar “justified” / “effective” / “consistent with national policy” trifecta that made its way into the NPPF. Including the idea that a plan should be deliverable. But the focus of PPS12’s approach to deliverability was on ensuring schemes were supported by adequate infrstratucture, and had the cooperation of landowners, developers and neighbouring authorities.
PPS12’s formulation was broadly carried over into the 2012 NPPF, but with a further caveat. Plans not only had to be deliverable. They now had to be aspirational as well.
By the time of the 2018 and 2019 NPPF revisions, plans now have to be “aspirational but deliverable”. But deliverable means something more than it did in 2004, 2008 or even 2012. Now - because of the PPG on viability introduced in July 2018, they have to be viable too:
“The role for viability assessment is primarily at the plan making stage. Viability assessment should not compromise sustainable development but should be used to ensure that policies are realistic, and that the total cumulative cost of all relevant policies will not undermine deliverability of the plan.”
The courts haven’t come to the rescue to clarify the meaning of “soundness”. On the contrary, the Planning Court tells us that “soundness” is a matter for the examining inspector and the LPA. It is not a matter for the court unless it can be shown that the LPA's policy strategy is irrational (e.g. as a response to the policy requirements of the NPPF): Barker Mill Estates.
So - 5 quick-fire problems with the “soundness” test are that:
It’s vague.
It’s not defined in the law.
Its evolving elaboration in national policy is also vague.
It is (in part because of all this vagueness) essentially unenforceable in court.
It has now become overladen not only with the NPPF’s (often conflicting) requirements e.g. for aspiration + deliverability, but also the PPG’s requirements to show that all that aspiration is viable many years before most of it will actually come forward.
Why are local plan examinations often so drawn out, so laborious, and yet - as a result of having to consider so many diffuse issues - unable to drill down into detail when they need to… well, the “soundness” test isn’t a good start.
Which takes us to North Essex.
On 15th May 2020, Inspector Roger Clews put the triumvirate of Braintree, Colchester and Tendring councils out of their misery. Another desperately needed and long-emerging plan. It had been knocked hard in June 2018, but not quite knocked out. The strategy was “aspirational” - 3 garden communities providing over 40,000 homes.
In the end, it proved more aspiration than could be paid for, or supported with adequate infrastructure. After many years of work by the Councils, and by developers, consultees to the process and the public, and weeks of examination hearings, we still have no prospect of a plan. Because the work done so far cannot demonstrate today that the garden communities would achieve viable land prices into the future. Which means the plan isn’t deliverable. Which means it’s unsound. Back to the drawing board.
Garden communities have their critics. For some LPAs, they are an all-to-convenient repository for housing to avoid making the more difficult but necessary releases of land for development across the rest of their districts.
Be that as it may, another very significant plan bites the dust. Which will have - as in Uttlesford, Sevenoaks, Wealden, St Albans and South Bucks & Chiltern - dire consequences for those who need new homes now, and in particular new affordable homes.
What to do?
Well, you may remember my view on the duty to cooperate. Some have suggested delivering large residential schemes through the development consent order process in the Planning Act 2008. That could undoubtedly increase the prospects of some schemes achieving consent, but the streamlined process comes at its own (also heavily front-loaded) cost.
A return to the pre-2004 Act days of local plan inquiries which examined the detailed objections to a plan without being lumbered by an imprecise catch-all “soundness” test that asks LPAs to do so many different and sometimes contradictory things at the same time?
As if the Ministry doesn’t have enough changes to the law on its plate at the moment. Perhaps this is one to return to after lock-down.
In the meantime, stay well #planoraks.
