The ‘duty to cooperate’ is hobbling plan-making, by Catriona Riddell

For many years, the development industry has been unanimous in saying that the duty for planning authorities to cooperate with each other on the preparation of strategic policies does not work.

The government has recognised the duty's weaknesses, and has attempted to improve things through minor changes to the National Planning Policy Framework. Whilst these may have helped a little, the duty has continued to be a significant hindrance to local plan preparation, particularly around London and Birmingham, where green belt issues remain a major challenge.

Sevenoaks and St Albans are the latest casualties, with both councils being told that their local plans have failed the duty to cooperate. As plans cannot be modified at the examination stage to ensure compliance with the duty, the councils will have to start the plan-making process again, at a significant cost to all involved.

In the Sevenoaks case, the inspector recognised that there was a considerable amount of joint working going on with neighbouring authorities. But the crux of the matter seems to be the fact that the council left it too late to declare that it had a shortfall in meeting its housing needs, and that it did not then explicitly ask neighbouring authorities to help. The council's defence was that all surrounding local planning authorities were at different stages in their own plan-making and the evidence that there would be a shortfall was therefore not available any earlier. If Sevenoaks District Council had explicitly asked its neighbours to help, and had been allowed to progress onto the next stage of the examination to explore whether any shortfall issues could be resolved, the outcome could have been different.

Yet again, this demonstrates the need for an overarching strategic framework which all local planning authorities can work towards delivering through their individual local plans. This would help set clear parameters around overall development needs and provide a mechanism to deliver a sustainable pattern of growth across the area, taking into account constrained areas and areas of potential opportunity. There are models for doing this in the form of statutory joint plans and through the preparation of a non-statutory growth frameworks, as used by an increasing number of local authorities.

Although St Albans City and District Council is currently preparing a joint strategic plan (JSP) with neighbouring authorities, this is at an early stage. As the council had already been threatened with government intervention on the grounds of slow plan preparation, It was not able to delay submission until the JSP was at a stage to influence the local plan.

At least St Albans Council was able to show that it was working with its neighbours. In situations as the one that arose in Sevenoaks, in which groups of local authorities are not working together on a joint plan, they should align their respective local plan timetables so that they all reach the examination stage at the same time. This would facilitate joint examination sessions on shared strategic matters and the duty to cooperate, as has already happened in some areas.

The recent failures have also exposed another key weakness in the system; the fact that the duty to cooperate is a process-driven test, based on a single person's judgement of the evidence before them. The examination contract is between the local planning authority and an individual inspector (in some cases two inspectors), not the Planning Inspectorate as a whole. There is often a fine line between a plan being judged to comply or not comply with policy and guidance, and it has been clear from all cases so far that inspectors differ in their approaches. There is nothing wrong with that, but it reinforces the belief that different inspectors could come to different conclusions on the same plan.

Given the severity of the consequences of non-compliance with the duty, there should be some form of referral mechanism or peer review by the Planning Inspectorate to ensure that that judgement is fair, as soon as any red flags are raised. There may already be some such process undertaken privately by the Planning Inspectorate to support inspectors, but this needs to be formalised and made more transparent to reduce the risks to both the local planning authority and of any potential legal challenge to the Planning Inspectorate.

Ultimately, the continuing failure of local plans on duty to cooperate grounds reflects a wider systemic failure in the planning system, and no further minor amendments will change that. It is a process-driven, legal test with a very high penalty attached to failure. It is not, as it should be, an outcome-based strategic planning mechanism that aims to deliver long term sustainable growth and help align strategic spatial and other investment priorities. A failed plan is in no-one's interest. If the government wants to see all local plans delivered by the end of 2023, and recognises the important role planning plays in addressing the significant challenges we face to deliver long term sustainable growth, the duty to cooperate must be repealed at the earliest opportunity, and replaced with a more effective strategic planning mechanism.

Catriona Riddell is strategic planning convenor for the Planning Officers Society and a freelance consultant

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