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14/03/2016

The duty to cooperate: What next?

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The duty to cooperate has not been an overwhelming success in helping authorities to meet housing need. But it may soon become moot, says barrister Rose Grogan

Rose GroganThe housing crisis continues to vex those making local plans, and inspectors who have to consider whether a draft plan is capable of meeting the objectively assessed needs of an area. One particular issue is the question of how to get local planning authorities to engage with one another on the issue of housing.

The government’s answer to this in 2011 was the creation of a ‘duty to cooperate’ in the Localism Act. At the time, it was hailed as a better alternative to regional planning, removing an unnecessary layer of policy while still setting the framework for strategic planning across local authority boundaries.

On its face, the duty appears to provide a much-needed framework for addressing strategic planning problems. Local authorities are required to cooperate with one another on cross-boundary issues, and face having their plans found to be unsound by inspectors, leading to considerable delays in bringing forward a plan if the duty is not complied with.

There are cases where inspectors have found that a local authority has not discharged the duty: Central Bedfordshire, Aylesbury Vale, and Hart District Council are three examples. These local authorities barely engaged with their neighbouring authorities, and so it was a clear case of failing to discharge the duty.

“Without a requirement that local authorities reach agreement, the duty will continue to fall short of achieving the ultimate aim of getting local planning authorities to meet housing need”

In practice, however, the duty to cooperate has been the subject of criticism, in particular because it is a duty of form, not substance. In some ways, the criticism is justified. For a start, it does not require agreement. All that is required is evidence that attempts have been made to cooperate.

A further criticism is that the duty is all stick and no carrot, there is little positive incentive for neighbouring authorities to cooperate, and the enforcement of the duty currently depends on inspectors taking a robust approach. What is not clear from cases where local authorities have fallen foul of the duty is whether the threat of unsoundness had any impact on their decision to go about cooperating (or not) in the way that they did.

The duty to cooperate has been the subject of very little litigation. One example is the recent case of (R on the application of Central Bedfordshire Council) v SSCLG [2015] EWHC 2167 (Admin), where the court upheld the finding of an inspector that the duty had not been complied with.

Surprisingly, there have been very few challenges to inspectors’ conclusions that the duty has been complied with. The courts have therefore not had the opportunity to bolster the duty, nor do they appear interested in doing so. Very early on, the courts confirmed that the test on review is whether an inspector’s decision was rational, and the court will not embark on a more searching analysis of whether the duty has in fact been discharged.

Without a requirement that local authorities reach agreement, the duty will continue to fall short of achieving the ultimate aim of getting local planning authorities to meet housing need.

One potential answer to this problem comes from the government’s devolution agenda. The creation of ‘city regions’, with the potential for devolved planning powers suggests a return to regional planning to cater for strategic issues such as housing.

Increasingly, local authorities are coming together to create joint strategic plans to tackle issues such as housing and soon there will be devolved cities with planning powers across a number of local authorities.

All of this sounds very similar to the regional planning that the coalition government abolished in 2010, although this time around regional planning will take on different forms depending on the area. Have we come full circle? 

Rose Grogan is a barrister with 39 Essex Chambers and specialises in planning and environmental law

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