The High Court’s rejection of St Albans City & District Council’s judicial review claim against an inspector’s finding that it had failed to discharge the duty to co-operate (DtC) in preparing its local plan underlines the snakes and ladders that the Localism Act 2011 has created for the plan-led system.
In R (on the application of St Albans City & District Council) v Secretary of State for Communities and Local Government [2017] EWHC 1751 (Admin), Cranston, J rejected the suggestion that the authority could sidestep the need to “engage constructively, actively and on an ongoing basis” on strategic planning matters under Section 33A of the Planning and Compulsory Purchase Act 2004 (introduced following the abolition of regional planning under the Localism Act 2011) because the district is a freestanding housing market area (HMA).
The authority had allocated green belt in its area for new homes but refused to participate meaningfully in a joint strategic housing market assessment with neighbouring authorities. There was no specific list of strategic cross-boundary matters or priorities in its plan. It resumed a dialogue about the issues after submitting its local plan for examination. A consortium of developers presented legal opinions stating that “there is no lawful basis for concluding that the DtC has not been fulfilled”.
The inspector concluded that it was “difficult to conclude that the council has approached cross-boundary priorities in a meaningful and positive way” or that despite a record of activity there had been “meaningful engagement” with the issues.
Upholding that assessment, and rejecting the authority’s grounds of claim, the judgment confirms that an apparent impasse between authorities on the extent of the HMA does not mean the end of the DtC – active and ongoing work is required “even when discussions seem to have hit the buffers”.
The inspector did not have to balance out co-operation on different areas and reach a composite view. Nor was he wrong to express a provisional view on soundness as a result of the DtC failings without having first considered the exact HMA boundary. He did not have to explain which matters were “strategic” (so that he could explain why the DtC was inadequate in relation to them). The void in identifying what they were was a function of the authority’s own failure to engage.
The decision will have a ripple effect, as neighbouring authorities review their approach. It underlines a system that is deeply dysfunctional – before spatial planning choices can be made, there is a mire of demographic analysis to try to agree and a methodological minefield beyond it. The government will at some point have to dust off its powers to direct joint plan preparation by a group of authorities (or a county council lead role) under Section 9 or 10 of the Neighbourhood Planning Act 2017.
Roy Pinnock is a partner in the planning and public law team at Dentons
