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16/03/2020

Legal landscape: Could inspectors act on duty to cooperate?

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Sevenoaks, Wealden, and St Albans are just three planning authorities whose local plans have foundered because they failed in their duty to cooperate. Perhaps inspectors could exercise some control over how authorities comply with the DTC, says Wayne Beglan.

We live in a plan-led system. The development plan should be the starting point for every planning application. But recently an increasing number of local planning authorities have been experiencing difficulty in getting their local plans adopted because of duty to cooperate (DTC) failures.

Recent examples include Sevenoaks, Wealden, and potentially St Albans for a second time. Because local plans can no longer consider ‘omission sites’ directly, those promoting them will often be tactically incentivised to derail a plan by seeking to demonstrate DTC failures with a view either to seeking inclusion of their site in a future variant of the local plan or submitting a planning application or appeal free of policies in the emerging plan which run contrary to their proposed development.

The issue arises because, unlike other kinds of defects or deficiencies in local plans, the DTC issue is binary: it is ‘pass or fail’. Failure by an inch is as good (or as bad) as failure by a mile. Failure means withdrawing the plan and starting again; and, accordingly, much more often than not, a vacuum in local plan provision which runs entirely contrary to the central theme of our domestic planning process. It therefore represents a good target for omission site objectors. It is often those areas where emerging plans are most contentious, and therefore where the need for an adopted up-to-date local plan is at its highest, where DTC arguments come to the fore.

Compliance with the DTC is tested as at the date of submission of the plan, so there is currently no prospect of later steps taken during the examination process curing a failure. Also, whether an authority has complied is a matter of planning judgment for the inspector, whose views may vary. Such decisions are, therefore, difficult to challenge in the High Court as the cases on DTC show.

“Government has tried to make compliance easier by relaxing the DTC guidance”


In brief

  • Unlike other deficiencies in local plans, the DTC issue is binary:  it is ‘pass or fail’ 
  • Examining inspectors have proved flexible and inventive in providing main modifications to resolve plan-making issues 
  • Were inspectors given this power, more plans could be adopted within reasonable time frames

The government has tried to make compliance easier by relaxing the DTC guidance in the PPG. Yet still multiple authorities fail. In the absence of abolished regional plans, no one could doubt the importance of requiring authorities to cooperate on issues of cross-boundary strategic significance such as meeting housing need, providing sufficient infrastructure, and promoting the most appropriate spatial strategies. The increasing number of joint plans under consideration is testament to that.

But is a binary test the best way of achieving necessary cooperation? Examining inspectors have proved themselves flexible and inventive in providing main modifications to resolve a host of issues in plan-making. Where they consider spatial strategies are not sound, or adequate provision is not being made, then further sustainability appraisals and evidence studies to make up those gaps (or to explain why that cannot soundly be done) can be produced within the examination process. There is no reason in principle or logic why inspectors should not now be given a measure of control over how the DTC should be complied with in cases where they have identified failures. In substance, when plans fail for DTC reasons, the relevant authority will normally be required to conduct further DTC work to overcome the identified failures in any event.

The question, therefore, is whether that can better take place within the examination process or not (either by suspension or by specially arranged hearing sessions with DTC partners around the examination table). Such a judgement could be made by an inspector taking into account the wishes of the authority. If the DTC has been missed by an inch, an inspector may wish to adopt that approach, as may the authority. If it has been missed by a mile, then either the inspector or the authority may decide it is better for the authority to regroup and start again. In either event, such a power is likely to lead to far more plans being adopted within the reasonable time frames the government wishes to see. The primary legislation should be amended accordingly.

Wayne Beglan of Cornerstone Barristers specialises in judicial review, planning, regeneration and housing

Image credit | iStock

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