The Duty to Co-operateInterpretation, practice and consequences

Craig Howell Williams QCJanuarys

19 September 2013

Overview:

• Law• Policy• Decisions• Conclusions

The Law

S 33A Planning and Compulsory Purchase Act 2004 (as amended by S110 Localism Act 2011) Duty to co-operate in relation to planning of sustainable development

“(1) Each person who is— (a) a local planning authority, (b) a county council in England that is not a local planning authority, or (c) a body, or other person, that is prescribed or of a prescribed description,must co-operate with every other person who is within paragraph (a), (b) or (c) or subsection (9) in maximising the effectiveness with which activities within subsection (3) are undertaken.”

“Activities”:“(3) The activities within this subsection are— (a) the preparation of development plan documents, (b) the preparation of other local development documents, (c) the preparation of marine plans under the Marine and Coastal Access Act 2009 for the English inshore region, the English offshore region or any part of either of those regions, (d) activities that can reasonably be considered to prepare the way for activities within any of paragraphs (a) to (c) that are, or could be, contemplated, and (e) activities that support activities within any of paragraphs (a) to (c),so far as relating to a strategic matter”

“Strategic matters”:

“(4) For the purposes of subsection (3), each of the following is a “strategic matter”— (a) sustainable development or use of land that has or would have a significant impact on at least two

planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas, and

(b) sustainable development or use of land in a two-tier area if the development or use—(i) is a county matter, or (ii) has or would have a significant impact on a county matter.”

The duty:

“(2) In particular, the duty imposed on a person by subsection (1) requires the person—

(a) to engage constructively, actively and on an ongoing basis in any process by means of which activities within subsection (3) are undertaken, and

(b) to have regard to activities of a person within subsection (9) so far as they are relevant to activities within subsection (3).”

The “engagement required...includes”:“(6) (a) considering whether or not to consult on and prepare, and enter into and publish, agreements on joint approaches to the

undertaking of activities within subsection (3), and (b) If the person is a local planning authority, considering whether to agree under section 28 to prepare joint local development

documents.”

When does the duty apply?

• Duty applies to “preparation of development plan documents”

• Examination Inspector must determine whether or not duty has been complied with (s20(7)-(7C) PCPA 2004)

• Legally unsound plan cannot be adopted

Case Law?University of Bristol v North Somerset Council [201] EWHC 231:• LPA submitted draft CS for examination• U, owning land in GB SW of Bristol, objected to policy and promoted increased housing and review of GB boundaries • Inspector decided duty did not apply because CS prepared and submitted before 15 November 2011 (when s33A came into force) • LPA adopted CS in accordance with Inspector’s recommendations• U challenged adoption on basis that Inspector wrong because of effect of new s20(7)-(7C) PCPA 2004 (Inspector’s duties)• HELD: duty imposed on any plan currently in preparation on 15 November 2011 and effect of new S20(7)-(7C) was not to impose DTC retrospectively

Policy – NPPF Paragraph 179:“Local planning authorities should work collaboratively with other bodies toensure that strategic priorities across local boundaries are properly coordinatedand clearly reflected in individual Local Plans.36 Joint workingshould enable local planning authorities to work together to meetdevelopment requirements which cannot wholly be met within their ownareas – for instance, because of a lack of physical capacity or because to doso would cause significant harm to the principles and policies of thisFramework. As part of this process, they should consider producing joint planning policies on strategic matters and informal strategies such as joint infrastructure and investment plans.”

“Local planning authorities will be expected to demonstrate evidence ofhaving effectively cooperated to plan for issues with cross-boundary impactswhen their Local Plans are submitted for examination. This could be by wayof plans or policies prepared as part of a joint committee, a memorandum ofunderstanding or a jointly prepared strategy which is presented as evidenceof an agreed position. Cooperation should be a continuous process ofengagement from initial thinking through to implementation, resulting in afinal position where plans are in place to provide the land and infrastructurenecessary to support current and projected future levels of development.”

Paragraph 182:

•Coventry Core Strategy•Rushcliffe Core Strategy•Kirklees Core Strategy•York Core Strategy •Hart Core Strategy

DECISIONS:

Coventry:• Draft CS provided for reduced housing provision to meet only own

needs • CC sought to show compliance in a SoCG • SoCG stated common methodologies in needs assessments and

shortfalls to be addressed through later discussions• Inspector concluded:

• No collaboration to produce sub-regional SHMA • Signficance of SoCG undermined by lack of proper SHMA• Lack of proper SHMA undermines claim that each council can meet

needs• Mechanism to deal with shortfalls “no more than an agreement to

seek to agree in the future”

Rushcliffe:• Inspector not satisfied with evidence base for

housing requirement and that RBC’s target was to satisfy local housing needs

• RBC prepared a Duty to Co-operate compliance statement

• Inspector concluded non-compliance on basis of representations from neighbouring authorities all critical of RBC’s housing policies and pointing to lack of co-operation

Kirklees: Inspector’s concerns: • Unclear what co-operation on housing was undertaken in preparation

of CS• Regional Assembly group provided foundation for co-ordination but

not co-operation• Kirklees housing proposals not in line with co-ordinated approach• Kirklees delayed submission of CS to avoid RS conformity requirement• Kirklees approach consultation not co-operation based

York:

• Evidence provided but “broad brush”• Information dealt primarily with early stages • Relevant questions on impact on neighbouring

authorities not addressed eg allocations, infrastructure

Hart: • Hart approached Rushmoor BC and Surrey Heath BC in

order to update 2009 SHMA, but RBC and SHBC declined on basis that they had adopted CSs

• Hart proceeded on SHMA covering Hart only• No agreement between authorities as to level of overall

housing need within HMA, how it could be accommodated and how unmet needs would be met

• Inspector concluded non-compliance, notwithstanding preparedness to work with other authorities

Conclusions: • DTC is fundamental legal requirement• No case law to guide • Mere consultation not enough• Engage constructively, actively and on ongoing

basis• Must at least consider whether to prepare

agreements on joint approaches and joint LDDs• Clear evidential burden, not a box ticking exercise

Consider: • Joint local plans • Align local plans for consistent preparation and adoption and request same Inspector • Agreements where possible between authorities as to joint strategy • Everything possible at all levels to reach agreed strategy • SHMAs should properly address housing needs • Secure strategy not merely agree to seek to agree in future • Joint local authority committees to formalise process • Plan ahead not retro-fit• Regular meetings to monitor progress• Memorandum of understanding• Robust evidence to demonstrate engagement • Record and monitor decisions and other actions • Formal contemporaneous documentation to record decisions and progress • Single comprehensive document to address duty • Statements of common ground including substantive material• Joint evidence

Craig Howell Williams QCFTB Chambers,Francis Taylor BuildingLondon EC4Y 7BY0207 353 8415chw@ftb.eu.com“DISCLAIMER NOTICE This oral presentation including answers given in any question and answer session (“the presentation”) and the accompanying Powerpoint slides are intended for general purposes only and should not be viewed as a comprehensive summary of the subject matters covered. Nothing said in the presentation or contained in this paper constitutes legal or other professional advice and no warranty is given or liability accepted for the contents of the presentation or the accompanying paper. Craig Howell Williams QC and

Francis Taylor Building will not accept responsibility for any loss suffered as a consequence of reliance on information contained in the presentation or paper. We are happy to provide specific legal advice by way of formal instructions.”