The Duty to Co-operate Interpretation, practice and consequences

1. The Duty to Co-operateInterpretation, practice and consequences • Craig Howell Williams QC • Januarys • 19 September 2013

2. Overview: • Law • Policy • Decisions • Conclusions

3. 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.”

4. “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”

5. “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.”

6. 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).”

7. 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.”

8. 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

9. 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

10. Policy – NPPF • Paragraph 179: • “Local planning authorities should work collaboratively with other bodies to • ensure that strategic priorities across local boundaries are properly coordinated • and clearly reflected in individual Local Plans.36 Joint working • should enable local planning authorities to work together to meet • development requirements which cannot wholly be met within their own • areas – for instance, because of a lack of physical capacity or because to do • so would cause significant harm to the principles and policies of this • Framework. 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.”

11. Paragraph 182: • “Local planning authorities will be expected to demonstrate evidence of • having effectively cooperated to plan for issues with cross-boundary impacts • when their Local Plans are submitted for examination. This could be by way • of plans or policies prepared as part of a joint committee, a memorandum of • understanding or a jointly prepared strategy which is presented as evidence • of an agreed position. Cooperation should be a continuous process of • engagement from initial thinking through to implementation, resulting in a • final position where plans are in place to provide the land and infrastructure • necessary to support current and projected future levels of development.”

12. DECISIONS: • Coventry Core Strategy • Rushcliffe Core Strategy • Kirklees Core Strategy • York Core Strategy • Hart Core Strategy

13. 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”

14. 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

15. 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

16. York: • Evidence provided but “broad brush” • Information dealt primarily with early stages • Relevant questions on impact on neighbouring authorities not addressed eg allocations, infrastructure

17. 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

18. 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

19. 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

20. 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.”