District council fails in Planning Court challenge to finding it failed to comply with duty to cooperate

Sevenoaks District Council has failed in a Planning Court challenge to an inspector’s finding that it had failed to comply with the duty to cooperate when preparing the Sevenoaks District Local Plan for its administrative area.

The duty to cooperate is set out in section 33A of the Planning and Compulsory Purchase Act 2004.

Sevenoaks advanced four grounds of challenge:

1. The inspector erred in law in failing to apply a margin of appreciation when considering the test under section 33A of the 2004 Act.
2. The inspector failed to correctly interpret and apply the duty to cooperate, and in reality conflated that duty with the requirement that a plan be sound.
3. The inspector failed to have regard to material considerations and in particular to consider the material evidence that was placed before her.
4. The inspector's reasons were inadequate.

However in Sevenoaks District Council v Secretary of State for Housing Communities And Local Government [2020] EWHC 3054 (Admin) Mr Justice Dove rejected the challenge.

The judge concluded:

55. From this distillation of the Inspector's conclusions and reasoning it is clear to see that there is no substance in the claimant's grounds. In my view it perhaps makes most sense to start with the claimant's Ground 2, the contention that the Inspector failed to properly interpret and apply the duty to cooperate and conflated it with the requirement for soundness. In my view there is no basis for this contention when the Inspector's conclusions and reasons are properly understood. Firstly, as to the application of the test it is clear from paragraph 37 that the Inspector directed herself to whether, in accordance with the requirements of section 20(7)(a)(ii), it was reasonable for her to conclude that the duty to cooperate had been complied with. She found that once the extent of the unmet need emerged after completion of the Regulation 18 consultation on the SDLP, the claimant should have contacted its neighbouring authorities and engaged constructively in an attempt to resolve the issues arising from its unmet housing needs. Her conclusion that there was no communication, let alone engagement, in between the emergence of this issue and embarking upon a Regulation 19 consultation underpinned her conclusion that there had not been constructive, active and ongoing engagement in relation to that issue. It is clear from paragraphs 37 and 43, and indeed from the totality of her reasoning, that what she was scrutinising and assessing was not the identification of a particular solution for the strategic issue of unmet housing need, but rather the quality of the manner in which it had been addressed. Her conclusions were, based on her factual findings as to what in fact happened after the Regulation 18 consultation disclosed the extent of the unmet housing need, that no constructive and active engagement was undertaken at the time when it was required in advance of the Regulation 19 version of the SDLP being settled. These conclusions properly reflected the statutory requirements and the evidence which was before the Inspector and do not disclose any misdirection on her part, or confusion between the requirements of the duty to cooperate and the requirements of the soundness with respect to this strategic issue.

56. Turning to Ground 1 there is force in the submission made by Mr Moules that, in truth, this is a clear-cut case based on the findings that the Inspector reached. As set out above, the Inspector concluded (as she was entitled to on the evidence before her) that at the time when the strategic issue in relation to unmet housing need crystallised, there was no constructive, active or ongoing engagement and, indeed, the matter was not raised with neighbouring authorities until after the Regulation 19 consultation on the SDLP and at a very late stage in plan preparation. Requests made of neighbouring authorities on the 11 April 2019 post-dated the Regulation 19 consultation and were shortly prior to the plan being submitted. In those circumstances the Inspector was entitled to conclude that these discussions were not taking place at a time when they could properly inform and influence plan preparation and maximise the effectiveness of that activity. As the Inspector recorded in paragraph 37, she found, as she was entitled to, that had engagement occurred after the Regulation 18 consultation and prior to the Regulation 19 consultation "it might have resulted in a more positive outcome". Further, as the Inspector recorded, the possibility that it may have led to the same outcome was nothing to the point. Effective, constructive and active engagement had not taken place at the time when it was required. By the time there was communication in respect of the issue it was too late.

57. Although the claimant stressed its belief that whenever called upon to do so neighbouring authorities would have refused to provide assistance, I am not satisfied that this provides any basis for concluding that the Inspector's conclusions were irrational. Indeed, as she notes, Tunbridge Wells Borough Council noted in its written material that if the request to address the claimant's unmet housing need had been made at any point prior to the submission of its comments on the Regulation 19 version of the plan then their response would have addressed the issue more fully. There was, therefore, evidence before the Inspector to support her judgment in this respect. In the light of these matters I am unable to accept that there is any substance in the claimant's Ground 1. There is no justification for the suggestion that the Inspector failed to afford a margin of appreciation to the claimant in reaching her conclusions; the clear-cut nature of the conclusions which the Inspector reached were fully set out and ultimately the Inspector was required by section 20 of the 2004 Act to reach conclusions in relation to the statutory test which she did.

58. Turning to the submissions in relation to Ground 3, I am unable to accept that the Inspector failed to have regard to the material which was available to her in reaching her conclusions. It is clear to me from the detail of the report that the Inspector had regard to all of the evidence that had been placed before her. The Inspector clearly addressed the detailed material in relation to the duty to cooperate meetings and the preparation of joint evidence. She also engaged with the existence of statements of common ground and the views of the neighbouring local authorities. She gave careful consideration to the peer review which had been undertaken and reflected on the responses from adjoining authorities to request they meet unmet housing need from the claimant and the environmental constraints under which the claimant had to operate. In my view the submissions advanced in respect of Ground 3 effectively amount to a disagreement with the Inspector on the conclusions which she ought to have forged based upon the material which was before her. Ultimately, the availability of this evidence did not dissuade the Inspector from reaching the conclusions which she did in respect of quality and timing of the engagement in the present case: the generality of the position presented by the claimant does not gainsay the detailed conclusions reached by the Inspector as to the nature of the duty to cooperate activities, or lack of them, at the critical point of time when the extent of nature of the unmet housing need emerged at the conclusion of the Regulation 18 consultation. In my view it is clear that the Inspector had careful regard to all of the material which was placed before her and reached conclusions which, I have already set out in respect of my views on Grounds 1 and 2, were lawful and appropriate.

59. I have already expressed my view as to the quality and nature of the reasons provided by the Inspector in respect of the examination. In my view her reasons were clear, full, detailed and justified. In addition, under Ground 4 it is contended that the conclusion which she reached was irrational. In my judgment there is no substance whatever in that contention. For the reasons which I have already given the Inspector's conclusions were clearly open to her and based upon a proper appreciation and application of the relevant statutory tests.”

Mr Justice Dove said it followed that he was satisfied that there was no substance in any of the grounds upon which this claim was advanced and the claimant's case must be dismissed.