Why some councils are still struggling to meet the duty to cooperate

So far this year, three councils have seen their draft local plans derailed at examination because they failed to meet the legal duty to cooperate. Early engagement and demonstrating co-operation with both neighbours and government bodies through statements of common ground are key to avoiding such problems, say practitioners.

St Albans city centre (pic: Bill Boaden via Geograph)
St Albans city centre (pic: Bill Boaden via Geograph)

The inspectors into the St Albans and district local plan warned the Hertfordshire local authority earlier this month that they are likely to recommend that its local plan should be withdrawn because of its failure to engage effectively with neighbouring authorities. The council is yet to respond, but, if the plan is withdrawn or formally failed, it would be the second draft plan put forward by St Albans to have fallen foul of the duty. Back in November 2016, an earlier version was withdrawn also for failing the duty.

St Albans is the latest of three authorities this year that have failed to satisfy a planning inspector that they have fulfilled the duty to co-operate, a legal requirement that all plans must meet. Also this month, Sevenoaks District Council in Kent announced that it was mounting a legal challenge to an inspector's recommendation, issued in March, that "its local plan should not be adopted because of the lack of ongoing, active and constructive engagement with neighbouring authorities in an attempt to resolve the issue of unmet housing need".

Meanwhile, Wealden District Council in East Sussex formally withdrew its plan in February after the inspector's report pointed "to 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".

The duty to co-operate was introduced by the 2011 Localism Act as a strategic planning mechanism to replace regional spatial strategies, which had been scrapped by the incoming Coalition government. The duty states that councils must engage continuously and constructively with their neighbours on strategic cross-border issues like housing and infrastructure provision. "It relies on councils voluntarily working together on common issues in preparing their local plans," said Catriona Riddell, strategic planning specialist at the Planning Officers Society. "But its effectiveness in securing cross-boundary working has always been problematic."

Research by planning consultancy Lichfields shows that 13 plans - excluding the latest plan from St Albans - have now been withdrawn from examination or recommended for non-adoption since 2012 because of a failure to meet the duty to cooperate (see table and bar chart below). The figures show that almost two-thirds of the total were in the first four years after the duty came into force with no plans failing in 2018 and 2019 before the three failures this year.

The common theme linking those three councils is that they are all in high-growth areas of the Wider South East, and they all have high amounts of green belt or other protected areas. The lack of engagement with neighbours on accommodating unmet housing need was a key issue mentioned by inspectors in all three cases.

"The local plans now coming forward cover areas where development is severely constrained by the green belt but they have high housebuilding targets according to the government's standard method for assessing local housing need," Riddell said. "This makes co-operation, even more challenging." She said the government's proposed English Devolution White Paper, due to emerge later this year, may help address the problem by proposing the creation of new bodies to address strategic housing issues.

"Inspectors have a lot of discretion in assessing whether a council has fulfilled the duty to co-operate in drawing up its local plan, and their judgement has been challenged in the courts," said Zack Simons, a planning barrister at Landmark Chambers. "It's been the subject of more than 30 legal challenges both by developers and local authorities which have as yet all been unsuccessful," he pointed out.

The duty is one of the first issues addressed at a local plan inquiry, said practitioners. "The inspectors into the St Albans and Wealden plans suspended the inquiries before the substantive plans were considered because of concerns over whether they had fulfilled the duty to co-operate," said Troy Hayes, managing director of consultancy Troy Planning+Design.

"Councils need to demonstrate that they have effectively collaborated with their neighbouring authorities from the earliest stages of plan preparation," said Tim Burden, a director at planning consultancy Turley. "The council's challenge in meeting its housebuilding target should be discussed at that early stage," he said.

"Sevenoaks Council did not convince the inspector that it had discussed sharing its housebuilding target with neighbouring authorities sufficiently early on in the plan preparation and gone on to consider joint solutions," said Hayes. However, the council leader Peter Fleming pointed out that "at those early stages, the authority did not have the housing figures to discuss with its neighbouring authorities".

"Statements of common ground signed by the neighbouring authorities are important tools to demonstrate that they are collaborating effectively," said David Bainbridge, a planning director at consultancy Savills. "At St Albans, they did not have them in place at the right time, which was picked up by the inspector." The 2018 NPPF introduced a requirement for councils to produce statements of common ground to document how they have met the duty with their neighbours. Bainbridge added that difficulties with the duty to cooperate have "pestered the planning system" since the abolition of regional strategies in 2010.

He also advised that councils should take a comprehensive view of the strategic issues in their borough which can then be discussed with neighbouring authorities. He pointed to the St Albans local plan's proposals for a garden village on a site that had been identified by central government for a strategic rail freight interchange (SRFI). "It doesn't seem as if the council took a strategic view and discussed the different options for meeting its housing need with neighbouring authorities, including the SRFI site and potentially others," said Bainbridge. However, a statement from St Albans Council said the SRFI was directly discussed with neighbouring authorities as part of duty to co-operate discussions and formal local plan consultations.

Burden stressed the importance of effective engagement with public agencies, as well as neighbouring councils, throughout the plan preparation process. He points to disagreements between Wealden Borough Council and Natural England over the emission model used to assess the impact of development on the Ashdown Forest and other Special Areas of Conservation in the district. "The council put forward a different model to Natural England's and consulted with it far too late in the plan preparation process," he said.

In a statement Wealden District Council leader Bob Standley, said: "Unfortunately, the planning inspector found that we put too great an emphasis on protecting the environment and that we need to do more to build houses in Wealden which our neighbouring councils cannot accommodate."

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