The Duty to Cooperate is not a Tickbox Exercise #NPPF #Planoraks
The first in our new ‘planoraks’ series, a term suggested by Simon Ricketts (I hope it catches on).
I have been hearing about how different regional and sub-regional groupings are approaching the ‘duty to cooperate’. For example around Birmingham they are looking at a ‘template and ladder’ approach – essentially a mapping exercise of what needs to be done and who needs to be involved. Whilst useful this will not be enough. Sound plans are about sound decisions on sound options, more is needed. Without a framework for understanding what those sound decisions are and how they should be arrived a mapping exercise could simply become a tickbox exercise that wont produce the goods – sound decisions on sound options.
It should I hope by now well understood in planning that the legal test is about process, a hurdle to get you to the examination. It is a duty to cooperate not a duty to agree.
Whilst the ‘Positively prepared’ soundness test, another with the ‘Effective’ and ‘Justified’ are about outcomes from that process, a much higher bar about getting a sound plan from the inspector’s report. And if you cannot agree on such an outcome – you wont have a sound plan, and neither will those who you have or have not cooperated with.
The section 33 duty itself ‘to engage constructively, actively and on an ongoing basis’ says nothing about outcomes, it is on all fours with the duty to consult and the SEA duty to consider reasonable alternatives, all of which are process legal tests. The key rider is over ‘activities within subsection (3)’ and those ‘activities’ all refer to the ‘preparation’ of plans.
However of course the final NPPF soundness tests are all about outcomes, you can pass the legal test, on having cooperated, but fail the soundness tests because that cooperation has not been effective.
Note the change in what is now para. 181. In the draft it was ‘evidence of successfully cooperated’ now ‘successfully cooperated’ is replaced by ‘effectively cooperated’, a more precise wording. The significance of this is that it now ties more into the effective soundness test, the success per-se of cooperation was and is not one of the soundness tests – you don’t have to agree on absolutely everything, but the outcome of the cooperation must be effective, justified (including the requirement of this test to be deliverable ‘based on effective joint working on cross-boundary strategic priorities’) where necessary including agreement on ‘meeting unmet requirements from neighbouring authorities where it is reasonable to do so and consistent with achieving sustainable development’.
The strategic priorities are those listed in para. 156 and one thing that plan LPAs will need to do to show both legal compliance and soundness is map out the issues on those priorities. This first phase of mapping is not as yet making the decisions on what goes where, it is deciding on what what decisions need to be undertaken, what evidence exists and needs to be collected to make those decisions and in order to meet the SEA directive/Forest Heath/Greater Norwich Test – what reasonable alternative options (including options on strategic sites) need to be consulted on.
So the drawing up of any initial DTC template should be the scoping phase of a project programme to achieve the soundness outcomes – resulting in the best possible plan [and plans] in the circumstances. It is effectively a Gap Analysis, what do we know – what do we need to know, what have we consulted on, what do we need to consult on, what decisions have we taken, what do we need to take? We dont need to reinvent the wheel and go back to square one, what matters is the ability to demonstrate these at the point of plan submission. This is not for the soundness test is certainly not a a test of retrospection, it is a test of meeting strategic priorities going forward and showing evidence that the tough but necessary & justified decisions to meet these priorities have been made. (There is a legal dispute as to whether the legal duty is retrospective going on at the moment which I wont go into).
So give an example a regional grouping might set out a template under the headings of the para 156 priorities – lets just focus on one of these:
The homes…needed in the area.
How do we interpret ‘in the area‘ - do we interpret this lemma in isolation as meaning just LPA by LPA targets like an old fashioned structure plan? I don’t think so for three reasons: firstly this would not be compatible with the infrastructure requirement bullet, infrastructure exists in places not Local Planning Authority areas, secondly it would not be compatible with the effectiveness soundness test regarding cross-boundary deliverability, and finally the SEA & Habitats directives are blind to borders, what matters are the ‘significant environmental effects’ – and ‘appropriate assessment’, so you have to consider issues to do with those impacts, whether ‘significant environmental effects’ under the SEA directives – such as the location of strategic sites, or of appropriate assessment of impact under the habitats directive, such as distance thresholds from SPAs, populations size increase limits within those radii and SANGs requirements. Remember the SEA directive requires assessment of the ‘Plan or programme’ and any DTC template is a classic example of such a programme, so must be designed to show the necessary chain of decisions and evidence to achieve directive compliance. So inclusion ‘strategic’ in this sense means what it meant for the more advanced regional strategies, allocations by area, strategic location and having regard to significant cumulative impact on natura 2000 sites. This is no coincidence as regional bodies were feeling their way through these directives with the help and prodding of Natural England and the Courts.
So for these homes we need evidence under the related other strategic priorities such as infrastructure – for example new waste water treatment facilities, and of course the knock on and cumulative impact of upgrading/providing that infrastructure. An audit trail of a decision chain. In this case consideration of impact on catchment as required under the EU Water Framework directive and natura 2000 sites within that catchment (the Rye Mead works which feeds three new towns and two Garden Cities in two counties, next to an SPA, is a classic example, clearly for plans to be deliverable they have to be lawful).
This will imply a mosiac of overlapping and variable geometries, as new para. 180 of the NPPF implies, but these overlapping issues will converge on the decisions needed in place, the reasonable alternative options, including options for strategic sites and their associated strategic infrastructure.
There are many ways such a programme template could be set out. However as a suggestion it might be time to dust off some good old tools -to simplify and structure decisions rather than wading through a 50 page spreadsheet,- such as Analysis of Interconnected Decision Areas (AIDA)/Strategic Choice and its more modern GIS based developments such as LUCIS and its use of AHP (Decision Making for Leaders: The Analytical Hierarchy Process for Decisions in a Complex World, Saaty 1982) - to simplify, manage and visualise this complexity. If anyone needs any advice on approaches and techniques that can be used in very simple and visually compelling ways then please get in touch.
I would like to illustrate this in more detail with a live example – any volunteers?
Of course there is the possibility of deadlock in reaching these strategic decisions, as well as the related issue on how these strategic priorities cutting across LPA boundaries will be examined. I will deal with that in a follow up post.