Town and country planning – District local plan – Duty to co-operate – Claimant challenging decision of inspector appointed by defendant secretary of state that claimant failed to comply with duty to co-operate with neighbouring authorities – Whether inspector erring in law when applying test in section 33A of Planning and Compulsory Purchase Act 2004 – Claim dismissed
The claimant was a local planning authority which prepared the District Local Plan (SDLP) for its administrative area which contained a significant element of green belt as well as areas designated as areas of outstanding natural beauty (AONB). It formed part of a housing market area (HMA) and had further functional and economic relationships with other London boroughs.
The claimant undertook two rounds of consultation under regulation 18 of the Town and Country Planning (Local Planning) (England) Regulations 2012 and undertook the consultation required by regulation 19 of the 2012 Regulations on the SDLP in its proposed submission version. The submission version identified the annualised housing need for the claimant’s district as 698 dwellings, giving rise to a total of 13,960 dwellings over the 20-year plan period from 2015 to 2035.
The duty to co-operate in section 33A of the Planning and Compulsory Purchase Act 2004 required the claimant to engage constructively, actively and on an ongoing basis with neighbouring local authorities to explore whether they had any capacity to meet any of its unmet housing need. Although the claimant’s unmet housing need had been apparent after the regulation 18 consultation stage, the claimant had failed formally to engage with the other authorities until after the regulation 19 consultation stage, just before it was submitted for examination. Accordingly, an inspector appointed by the defendant to undertake the examination of the SDLP concluded that the claimant had failed to comply with the duty to cooperate.
The claimant challenged that decision contending, amongst other things, that the inspector had erred in law in failing to apply a margin of appreciation when considering the test under section 33A of the 2004 Act.
Held: The claim was dismissed.
(1) Local planning authorities and county councils (in two-tier areas) were under a duty to co-operate with each other, and with other prescribed bodies, on strategic matters that crossed administrative boundaries. Strategic policy-making authorities had to collaborate to identify the relevant strategic matters which they needed to address in their plans. They also had to engage with their local communities and relevant bodies.
Effective and on-going joint working between strategic policy-making authorities and relevant bodies was integral to the production of a positively prepared and justified strategy. In order to demonstrate effective and on-going joint working, strategic policy making authorities had to prepare and maintain one or more statements of common ground, documenting the cross-boundary matters being addressed and progress in cooperating, using the approach set out in national planning guidance, and be made publicly available throughout the plan-making process to provide transparency.
(2) The obligation under section 33(A)(1) was to co-operate in “maximising the effectiveness” with which plan documents could be prepared, including an obligation “to engage constructively [etc]” (subsection (2)). Deciding what ought to be done to maximise effectiveness and what measures of constructive engagement should be taken required evaluative judgments by the person subject to the duty regarding planning issues, and use of limited resources available to them. The nature of the decisions to be taken, indicated that a substantial margin of appreciation or discretion should be allowed by a court when reviewing those decisions. The engagement required under subsection (2) included, in particular, “considering” adoption of joint planning approaches (subsection (6)). That was a matter for the judgment of the relevant planning authority, with a substantial margin of appreciation or discretion for the authority. The duty to co-operate arose in relation to each strategic matter individually. There was, therefore, no error by the inspector in the present case focussing upon one of those strategic matters in reaching her conclusions in respect of the duty to cooperate: Zurich Assurance Ltd v Winchester City Council [2014] EWHC 758; [2014] PLSCS 95 followed.
The duty to cooperate was not simply a duty to have a dialogue or discussion. In order to be satisfied it required the statutory qualities set out in section 33A(2)(a) to be demonstrated by the activities comprising the cooperation. Bearing in mind the nature of the decisions being taken a court reviewing the decision of an inspector making a judgment in respect of whether there had been compliance with the duty would be limited to examining whether or not the inspector reached a rational decision, and would afford the decision of the inspector a substantial margin of appreciation or discretion.
(3) The inspector’s conclusions were clearly expressed and the court was unable to identify any defect in the reasoning of her report which set out clearly and in full detail her conclusions and the reasons for them. Her conclusions properly reflected the statutory requirements and the evidence which was before the inspector and did not disclose any misdirection or confusion between the requirements of the duty to cooperate and the requirements of soundness. 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 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. The inspector was required by section 20 of the 2004 Act to reach conclusions in relation to the statutory test, which she had.
(4) It was clear from the detail of the report that the inspector had regard to all of the evidence that had been placed before her. The inspector had had careful regard to all the material which was placed before her and reached conclusions which were lawful and appropriate. Her reasons were clear, full, detailed and justified. Furthermore, there was no substance in the contention that the conclusion reached by the inspector was irrational. Her conclusions were based upon a proper appreciation and application of the relevant statutory tests.
Saira Kabir Sheikh QC and Charles Merrett (instructed by Sharpe Pritchard) appeared for the claimant; Richard Moules (instructed by the Government Legal Department) appeared for the defendant.
Eileen O’Grady, barrister