Three more little words … “duty to co-operate” this time

Just as examiners have started to bare their teeth about local plans meeting housing need, they have also begun to chide authorities who have failed to fulfil the duty to co-operate.

The duty in the Localism Act 2011 requires local authorities and public bodies to engage constructively on strategic issues to maximise the effectiveness of local plan preparation.  Authorities must demonstrate that they have complied with the duty at the examination of their plans.  If they have not done so then the plan must die; at least until resurrected by the authority going through another iteration of the plan complying with the duty.  And some plans are dying.

In Hart the examiner found that the authority had not properly engaged with other authorities at a time when it was still considering the level of housing need to be met, and ill-attended meetings late in the plan making process could not address that failure[1].  The draft plan has now been withdrawn.

In Kirklees the examiner’s view was even clearer:

“It is not clear what, if any, co-operation was undertaken in the preparation of the Core Strategy before its contents were finalised …” and “I have seen no evidence that, during this period, there has been any effort to meaningfully engage with adjacent Councils with a view to a proper re-assessment of the Core Strategy’s provisions.”[2]

So failing to meet the duty is a real risk.  What does an authority have to do?

The draft NPPG gives some useful guidance on the duty.  It makes it clear that co-operation should deliver results, rather than just being an excuse to meet, and that the duty applies through the whole of the plan making process.  The NPPG could be clearer that it requires an open mind about the outcomes.  In far too many cases the “engagement” is on paper only, since the authority has already decided what it wants to do.  It would also be helpful if the NPPG drew a distinction between co-operation and collusion; there are signs of authorities hiding behind co-operation to avoid meeting “objectively assessed needs“. 

There are still real questions about the duty:

  • what happens if an adjoining authority refuses to co-operate?  The NPPG suggests this should be explained as part of the examination — but fails to indicate what happens, if anything, to the authority that is not co-operating.
  • why is there no similar duty to co-operate on applications, particularly ones of strategic significance?  Delivery is important and the absence of a duty at the sharp end is disappointing.
  • most importantly, will examiners continue to act as bravely as they are at the moment?  PINS is doing a fantastic job policing the boundaries of plan-making.  We all have to hope that they remain courageous.
Stephen Ashworth

About Stephen Ashworth

Stephen advises in the field of planning, public and regulatory law. His practice concentrates on regeneration, residential, urban extensions/ garden villages and settlements, and infrastructure projects working for both the private and public sectors.

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