Teamwork - failing the duty to cooperate
The downfall of the St Albans local plan
10 months ago, James Brokenshire (the minister for nominative determinism) urged local plan inspectors to be “pragmatic”.
Be careful what you wish for.
Since then, Inspectors and the Secretary of State have knocked back / knocked out plans in the West of England, Sevenoaks, Wealden, Uttlesford, Central Beds, Eastleigh and London.
To that list we now add St Albans (full disclosure: I appeared for a developer at the January 2020 examination hearings objecting to the plan).
St Albans has form here:
Its most “recent” development plan document dates back to November 1994 (when Baby D topped the charts with that timeless classic Let Me Be Your Fantasy).
St Albans submitted a plan for examination in 2016, but that was rejected by the inspector because it failed the duty to cooperate.
St Albans challenged that decision in the High Court, but without success.
And here we are again. Another plan. And another failure in the duty to cooperate. And St Albans aren’t alone - Sevenoaks and Wealden have fallen at the same hurdle.
So what is the duty to cooperate? How do the courts approach whether it’s been met? Why do LPAs fail to meet it? And is it working?
5 headlines on the law:
The duty to cooperate was introduced by the Localism Act 2011 to fill the cross-LPA-boundary shoes vacated by abolished regional plans. It’s at section 33A of the Planning and Compulsory Purchase Act 2004. Among other things, it requires LPAs preparing development plan documents to “engage constructively” and “on an ongoing basis” on the “sustainable development or use of land” which would have a significant impact on at least two LPA areas. Constructive engagement may include by “agreements on joint approaches”, or entering into joint DPDs (see the NPPF and PPG guidance on what’s expected). The duty ceases once the plan examination has begun: Samuel Smith.
That this is a legal duty rather than a policy duty is important. Because if the duty is failed, that’s the end of the story for an emerging plan. Inspectors have no discretion to allow a plan to proceed notwithstanding a failure in the duty to cooperate. It can’t be cured by an early review. It can’t be rectified by further work post-submission. It’s a show-stopper.
Almost every aspect of the duty to cooperate requires an exercise of judgment for the LPA e.g. on what amounts to sustainable development, what would have a significant impact on 2+ LPA areas, what measures of constructive engagement should take place etc.: Barker Mill Estates. And remember, it’s a duty to cooperate, not a duty to agree: St Albans.
An examining inspector deciding whether the duty’s been met needs to undertake a rigorous examination of the documents to form a planning judgment on whether there has been an active and ongoing process of cooperation: Central Beds v SoS.
In reviewing an Inspector's decision on an LPA’s performance of its duty cooperate, the court's role is limited to considering whether the inspector’s judgment on these points was rational: Zurich Assurance.
Lots of layers of planning judgment on broad terms like “constructive” or “sustainable”, and a very limited supervisory role for the court. Which explains why almost a decade and 30+ court cases into the life of the duty to cooperate, every legal challenge based on a failure to apply the duty properly has failed.
A sobering statistic for Sevenoaks, which just launched a legal challenge against Inspector Karen Baker’s findings that it failed to engage properly with neighbouring Kent authorities on unmet housing need.
What went wrong in St Albans, Wealden and Sevenoaks? The cases are different, but the thread which connects them is a failure to engage adequately on addressing their unmet housing needs in neighbouring LPAs, or on meeting the housing needs of their neighbours. What engagement there is comes too late, only after the strategy has been fixed or the plan has been published for consultation.
So, is the duty to cooperate working? Was it doomed from the start?
Commenting on the then-draft duty, the Communities & Local Government select committee said in 2011 that:
“The language of this proposed provision combines the vocabulary of aspiration and encouragement, which would seem to have little place in law, with vague and imprecise references to future central Government guidance […] This strikes us as bad law, poorly conceived, shoddily drafted…”
Greg Clarke’s answer? That they were being too pessimistic about LPAs’ capacity for teamwork. Ye of little faith.
In 2013, the Guardian told us that:
The duty to co-operate is flawed, because local politics breeds different – sometimes conflicting – local visions for everything from employment to housing. Without a regional level of oversight to knock heads together, more councils could become locked into long disputes over housing and as a result, new homes will take longer to deliver.
In the end, I think that warning has turned out to be correct.
Try though we might, there are (at least) 3 basic problems with the duty to cooperate:
As it’s only a duty to engage - not to agree - even when it’s complied with, that doesn’t always deliver effective cross-boundary solutions. Indeed, it could be fully complied with and deliver precisely nothing.
Policing it through the courts has (so far anyway) been a doomed enterprise.
And the really substantive, early engagement that could actually be valuable takes lots of time, resources and mutual political will that lots of LPAs simply (and understandably) can’t muster.
Oh to return to the happy, conflict-free, top-down days of regional planning.
Stay well, #planoraks.
