As we have seen, one of the proposals in the Planning for the Future White Paper is the abolition of the Duty to Cooperate.
It is not a duty to agree, only to co-operate, and yet has in some cases caused havoc, perhaps unsurprisingly in the wake of the Housing Delivery Test meaning that several neighbouring LPAs may all be asked to ‘over-deliver’ as compared to their own OANs. The consequences for a local plan of being seen to have failed are serious and result in a game-over right at the start, yet there is no doubt that it has come to be seen as a tick-box exercise rather than a meaningful mechanism to secure effective cross-boundary working.
As Catriona Riddell stated in Planning in April 2020, “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”.
No wonder that the authors of the White Paper have called time.
In recent times at least three councils have seen their local plans derailed over difficulties with the duty to cooperate: Wealden in February 2020, Sevenoaks in March 2020, and very recently now St Albans. According to research by Lichfields, this has happened 14 times since the introduction of the duty in the Localism Act 2011.
Warning was first given by the Inspectors in in the St Albans Local Plan Examination in April 2020. By way of background, planning permission had been granted by the Secretary of State for a strategic rail freight interchange (SRFI) to serve London and the South East on a site in St Albans. This followed an extensive search for a suitable site to meet the pressing national need. In short it was concluded that there was no other site.
The Council had rigorously resisted the SRFI at all stages including through statutory challenges.
Having failed to prevent permission being granted, the Council nonetheless submitted a local plan which sought to allocate the Site for housing (Park Street Garden Village) to meet its OAN. Whilst acknowledging the national need for an SRFI it considered that the site could contribute to meeting its need for housing instead.
At the local plan examination, the developer (represented by David Forsdick QC) contended that the duty to co-operate in respect of meeting the need for an SRFI had not been complied with and that the plan was not sound because it made impossible meeting the national need which had exceptionally justified the permission for the SRFI. It was argued that there were ample opportunities for the Council to meet its OAN and that the housing site search had been artificially constrained to large sites and had proceeded on a flawed basis leaving out of account the national benefits of the SRFI and the national harm by allocating the site for housing instead.
All those points were accepted and the examination put on hold.
The Council subsequently agreed in a letter to the Inspectors in July 2020 that it would have to make major modifications to allocate the site for the SRFI and would have to redo its Green Belt assessment to find alternative sites for housing.
Ultimately, this concession was not sufficient to save the plan. The Inspectors have emphasised that the duty cannot be remedied through the examination process once the plan has been submitted for examination.
It remains to be seen whether there will now be any Government intervention, given that St Albans is one of the 15 local authorities threatened with intervention in 2017.