Why are local plans failing?

Antonia Murillo analyses the duty to cooperate test and explains why some Local Plans have failed.

Like peas being thrown at a window, news of the failure of Local Plans was reported during the course of the last nine months; first one, then two or three and then all the rest in a lump [1].

The reasons for those failures fall into several categories: failure to comply with the duty to co-operate; failure to meet housing need and/or failing the test of soundness. The first test Inspectors have to consider when reviewing draft development plan documents is whether or not the local planning authority (LPA) has complied with the duty to co-operate (DtC). If the LPA has failed in its duty, no matter how robust the remainder of the plan document may be, Inspectors having made this finding, which is a legal test, then have no option but to recommend the development plan document (Local Plan) be withdrawn to rectify the failure to fulfil the DtC.

The critical dates for LPAs to be aware of are:-

Section 33A(2) of the Planning and Compulsory Purchase Act 2004 requires LPAs to co-operate with a number of external bodies and to engage “constructively, actively and on an ongoing basis”. Those external bodies include the Environment Agency, English Heritage, Natural England, the CAA, the HCA, each Primary Care Trust and transport authorities [2].

The NPPF and the PPG set out how the DtC may be fulfilled. Paragraphs 156 and 178 to 181 of the NPPF set out strategic priorities and that LPAs need to co-operate on planning issues that cross administrative boundaries. As part of that process LPAs 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” [3]. The PPG confirms that the DtC is not a duty to agree but LPAs should make every effort to secure the necessary co-operation before they submit their Local Plans for examination.

So why have Local Plans failed to discharge the DtC? First, it isn’t just those plans that were submitted just after the DtC came into force in November 2011, although a number of those that have failed so far were submitted shortly after November 2011. Secondly, it isn’t just draft core strategies that have failed the DtC test, draft Waste Plans have failed as well.

Whilst the circumstances of many of those LPAs that failed the DtC are fact sensitive, several themes emerge. First, it is the choice of the LPA as to when it submits its development plan document to the Secretary of State. The date of submission is the date that crystallises the document for the purposes of assessing whether or not the plan has “fulfilled” the DtC. Steps taken by the LPA after that date to remedy a defect arising before the document was submitted in relation to the DtC are bound to fail [4].

Secondly, those LPAs who failed the DtC test did so as they could not show they had “constructively” or “actively” engaged with other LPAs or, in some circumstances, one of the bodies identified in the 2012 Regulations. Discussing issues relating to the Local Plan whilst in meetings primarily held for other purposes was not considered sufficient to show constructive engagement [5]. Where there was no joint Strategic Housing Market Assessment, a Statement of Common Ground produced after the Local Plan had been submitted to the Secretary of State was found to be insufficient to rely upon to show the DtC had been discharged [6]. 

Thirdly, LPAs who failed to comply with the DtC did so as they had insufficient evidence to show that they had in fact complied with the duty [7]. In some cases there were few or no minutes of meetings or there were few agreed outcomes from those meetings [8]. Documentation which evidences methodologies, for example, joint Memoranda of Understanding could be sufficient, however where such a document had been drafted the preceding year but had not been signed, and where there was no Statement of Common Ground agreed, it was found that those circumstances were indicative that the LPA had failed in the DtC [9]. 

As the date of submission of the Local Plan has been identified by Inspectors to be critical in terms of proving compliance with the DtC, it would be prudent for LPAs to review all evidence to show that they had complied with each element of engaging “constructively, actively and on an ongoing basis” with third parties prior to the date of submission and that substantive evidence be made available to the Inspector at the preliminary review prior to any Examination in Public [10].

Antonia Murillo is an associate at Bond Dickinson. She can be contacted on 0845 415 6790 or by email.