#NPPF Formal Consultation Response Part 2 – Plan Making and Joint Working

2a Plan-making The Framework has clarified the tests of soundness, and introduces a useful additional test to ensure local plans are positively prepared to meet objectively assessed need and infrastructure requirements.


Do you: Strongly Agree/Agree/Neither Agree or Disagree/Disagree/Strongly Disagree


It is important to consider the new test alongside the ‘duty to cooperate’ (see answer to the following question).

At the outset of an Examination in Public (EiP) into a submitted plans an independent inspector will deal with the lawfulness of a plan. If the inspector considers there is a prima-face case that a plan is unlawful they will write to the LPA recommending that it is withdrawn. Of course parties may issue a legal challenge once the binding report is issued. The legal test will be ‘engage constructively’ but the policy soundness test will be stricter
‘successfully cooperated’ . The inspector may find that the outcome of cooperation is unsatisfactory and find the plan unsound.

This new test is a useful one and essential with the planned revocation of regional plans. Without the test there is a great danger that localism would see each local planning authority assuming that their neighbours would take the load. Contrary to the panglossian optimism of the planning minister the large majority of local planning authorities have sought to reduce housing levels to below levels associated with household growth. This would be unacceptable both socially and economically.

The new test omits the existing test of ‘able to be monitored’. The impact assessment oddly confuses this with the removal of the bureaucratic requirement to produce annual monitoring reports. The issues are quite different. Without this test we could see vague plans get through without clear targets which would test whether they are succeeding.

Where the evidence is ‘proportionate’ is a logically not a soundness test, it is a test of its scale and how it is prepared not of its quality.  The wording ‘robust and credible’ needs to be retained.

Consistency, In the sense of internal consistency was dropped in the last version of PPS12, to much puzzlement, please put it back.

Finally in the last few years the test of flexibility has also slipped out. This has proved extremely useful at examinations as it required plans to assess fallback positions and ‘plan bs’ if a strategy did not work out because of a failure to deliver key sites.

The NPPF should clarify, as PPS12 does, that local application and elaboration of national policy is acceptable if they have sound evidence that it is justified by local circumstances.


2b Do you have comments? (Please begin with relevant

paragraph number)

Yes see attached table for para. by para.comments.


2c Joint working The policies for planning strategically across local boundaries provide a clear framework and enough flexibility for councils and other bodies to work together effectively.


Do you: Strongly Agree/Agree/Neither Agree or Disagree/Disagree/Strongly Disagree


It is already being applied and is showing that without further strengthening it is unworkable.

The ‘duty to cooperate‘ would be created by section 95 of the
Bill, and this section was heavily modified in committee stage in the Lords. It would insert a new section 33A into the 2004 act requiring to ‘to engage constructively, actively and on an ongoing basis in any process …the preparation of development plan documents’, on a ‘strategic matter’ concerning two or more local planning authorities.

Notwithstanding the DCLG’s committees concerns about the vagueness of the wording used the bill proposes a duty to engage not a duty to agree. We might well see and have and are seeing neighbouring authorities arguing for years about what should the outcome be. Indeed a ‘duty to agree’ would be preposterous. So what are the issues and potential solutions for the many matters where housing and other issues spill over local authority boundaries? Because of the extremely tight ‘underbounding’ of many large towns in the 1974 local government reorganisation this issue affects most such areas; as well as many smaller towns.

NPPF para. 44-47 refers to the duty, it cross refers para. 23 strategic priorities on the matters cooperation should cover (note the countryside and the rural economy are not such matters curiously). Para 46. is the critical one providing the ‘teeth’ of the post-regional plan system.

“Local planning authorities will be expected to demonstrate evidence of having successfully cooperated to plan for issues with cross-boundary impacts when their Local Plans are submitted for examination. This could be by way of plans or policies prepared as part of a joint committee, a memorandum of understanding or a jointly prepared strategy which is presented as evidence of an agreed position.”


Para. 48 provides a new soundness test – that plans should be:

Positively prepared …based on a strategy which seeks to meet objectively assessed development and infrastructure requirements, including unmet requirements from neighbouring authorities where it is practical to do so consistently with the presumption in favour of sustainable development.

As stated the inspector may find that the outcome of cooperation is unsatisfactory and find the plan unsound.

This is already being applied and I will give two crucial recent cases.

The first is Rochford, a district in the Thames Gateway Essex mostly greenbelt. Like many areas where Greenbelts were too tightly drawn and remaining areas within the inner boundary of Green Belt had run out (they were typically drawn up lifespans of 20 years) meeting needs implied a green belt strategic review. The regional plan set targets which implied such a review. The submitted plan however proposed a low target and meeting the shortfall in a neighbouring authority – Basildon – which also had a high target requiring a review. Basildon said no we don’t want the extra housing. Rochford asked for the examination to be suspended until after the localism bill got royal assent, the inspector said no in the first case to apply the ‘duty to cooperate’ she said that it could be found unsound as the delivery of the strategy would depend upon delivery in the adjoining authority.

The lesson is clear, the combination of the requirement to meet objectively assessed needs and the duty to cooperate means that local planning authorities, in areas of tight planning or boundary constraints must either:

a) have agreed diversionary strategies to areas outside the constraints; or

b) have a strategic review of those planning constraints.

There is a name for such strategies – regional planning.

The second case is Stevenage. Here regional plans have followed the longstanding expansion of Stevenage to its North and West into North Herts district. Before proposed revocation of the regional plan both were cooperating on a joint approach. After the statement in June 2010 North Herts pulled out – a deliberate strategy of non-cooperation.

Because of this the inspector found the Stevenage plan ‘unsound’. It was undeliverable because of the non-cooperation. The very same week the CALA II decision came in – the regional plan had to be conformed to. Shortly thereafter the NPPF was published. The end result of this is the bizarre outcome that if the plan was examined today it would not be Stevenage that would be found unsound but North Herts, for not cooperating. Not surprisingly Stevenage have issued a judicial review.

Some authorities at EiP have also had to delay or suspend examinations because of challenges that they have not carried out Strategic Environmental Assessments on the impact of reducing housing targets from the regional plan levels (example South Wilts).

All of this has produced a chaotic situation. Not only do local planning authorities now only have a matter of months to produce up to date plans, they have in the same timescale to agree on joint strategic plans for the same areas and resolve disputes – example expansion of Harlow, Oxford, Bristol, Milton Keynes, Northampton – that have been raging for 30 years or even longer without resolution. The rats in a sack are supposed to fight it out.

There is a risk that some authorities will effectively seek a joint strategy of non-cooperation – gaming the system – by agreeing jointly to propose together as low a target as they can possibly get away with. There is already some evidence of this occurring in places such as in most of Herts and around Milton Keynes.

Looking at the two options above is stark and politically unacceptable to many Green Belt authorities, either take certain urban expansion areas out of the Green Belt, or cooperate with districts many miles away outside the Green Belt to take the overspill. Unless this takes place as a nation we shall fall short of meeting housing needs.

Indeed it is easy to forget the reason we had growth areas and growth points was, in part, a means of resolving pressure on large towns and preventing unacceptable sprawl by diverting pressure to planned areas which would undergo large scale, planned, employment led-growth. Indeed from the figures in the Housing Green Paper, Homes for the Future 2005, it is clear that the then government decided on this approach as to do otherwise would mean increasing housing numbers for districts outside the Green Belt by around 40% on average.

So the consequences are clear. If the Green Belt is ‘solid and absolutely inviolate’ as the SoS claims, and there are to be no national growth areas then there will need to be massive growth in remoter rural England. If the local authorities concerned cannot agree this then they won’t get their plans through and developers will then be able to build ‘what they like, where they like, when they like‘.

If not inviolate then LPAs could meet housing need locally by a review of Green Belt inner boundaries. Good examples of this stark choice are the 3 ministers constituencies, Tunbridge Wells – Greg Clarke, Brentwood – Eric Pickles, and Welwyn Hatfield – Grant Shapps. If you meet local objectively assessed need you have to go into the Green Belt. Indeed precedent, such as the Woking first EIP, has set that meeting housing need, a national policy, is sufficient to meet the ‘exceptional circumstances’ test of national Green Belt policy. Indeed this is a good thing as the alternative, moving all development outside the Green Belt, is not always the most sustainable solution, as the first Barker report found. In the 1980s there was a considerable over-expansion of Green Belt, indeed it was a perverse effect of the ‘liberalisation’ of planning in that era as Green Belt was applied strictly when other policies promoted growth. Green Belts typically have a life span of 20-30 years – that is the inner boundaries allowed for growth over that period. Now they are straining.

Indeed Welwyn-Hatfield has recently consulted on various options – one of which – meeting housing need locally would lead to two-three times more loss of Green Belt than was proposed under the regional plan.

Indeed such calculations, now being undertaken by many authorities, give the lie to the statements that the Green Belt is ‘safe’. Indeed the NPPF is biggest threat ever faced to the Green Belt.

The reason is the Green Belt was designed from the outset as one of a series of tools to be applied through a ‘larger than local’ plan. Without such a plan the Green Belt is much weaker and may break under strains. Development pressures will build to explosive levels locally, to the extent that some future government may consider that Green Belts are too restrictive and should be abolished (as has been discussed within the corridors of Whitehall and Downing Street several times under different governments), or their will be numerous local incursions as pressures build up. The alternative to regional planning is political suicide, and the government have now committed it.

Ministers may have hoped that by saying the Green Belt is ‘safe’ they would diffuse matters. Given that the vast majority of the public confuse the Green Belt with ‘greenfield’ they may have hoped that people would be fooled. The real problem is that the NPPF combined with the abolition of regional planning threatens both with unplanned housing via planning by appeal. Indeed the real risk is that many local leaders may find the choice of proposing targets meeting need, or accepting need displaced from elsewhere, too politically difficult; and may simply go down the planning by appeal route – then blaming the government or planning inspectors as they used to blame Regional Assemblies. We already have an example in Horsham District where the leader has said ok if this is what you want but it will mean losing on appeal. This case is notable as this was the first sound core strategy in the country. If this authority finds it is politically difficult to plan positively for growth then almost everywhere will.

Larger than local planning performs an essential economic function without it you can either build too few houses, diverting spending to land rent, or too many, creating indebtedness and the ghost estates you see in Ireland and Spain. The countries with the weakest planning systems and a lack or regional planning have suffered most in the Great Recession. Good planning is not a ‘drag anchor’ to growth, it is its foundation.

The informal arrangements proposed by the NPPF for larger than local planning are inadequate. Guidance by the Planning Officers Society on informal arrangements does not try to conceal how inadequate they are. A ‘memorandum of understanding or a jointly prepared strategy’ would come under challenge at the first EIP of the jointly affected local planning authorities. Objectors would say that they have not had an opportunity to comment on such an approach or look at its strategic environmental effects. This is a legal requirement under EU directive 2001/24/EC which is blind to borders and whether plans or programmes are statutory or not (as long as they are required by ‘legislative, regulatory or administrative provisions‘). Therefore all such joint approaches will require strategic environmental assessment and the early consultation on reasonable alternative options that this requires. The first examination in the area will become the examination for the whole of the affected area; this is unsatisfactory and potentially unlawful. An informal system of joint larger than local examinations will be needed. Effectively local planning authorities will have to rebuild the whole structure of regional and sub-regional planning from scratch.

It is not that the government is opposed to larger than local planning, rather they have opposed the form it took before, and sought futilely to abolish it without proper parliamentary authority or following correct legal procedures, and now faced with a vacuum that is causing chaos and shrinking housing numbers nationally, they are now hoping local planning authorities will get together spontaneously to fill it.

There is a way forward. Advisers such as John Howell MP and Minister such as Bob Neill have said they are fans of the old structure plan system. It is ‘larger than local planning’ of roughly that scale we need, around the travel to work areas/housing market areas of our larger towns, or groups of smaller towns in between.

But counties, the previous basis of structure plans, are not always a good basis for doing this today. We now have many unitary authorities in historic county areas – such as in Kent and Essex, so counties taking on functions would create a democratic deficit. In some cases such as Berks no historic county is left at all. In some counties we already have successful joint arrangements in parts of counties (East and West Northants, South Worc, PUSH [South Hampshire], Greater Norwich). However in other cases towns that need to expand are right on county borders, such as Milton Keynes and Harlow.

I propose a series of pragmatic reforms as follows:

1) The power to prevent local planning authorities from withdrawing plans without SoS agreement stays (the Localism Bill clause 97 is removed) – to prevent a stalling strategy

2) A new clause is inserted to the Localism Bill – right after the new ‘duty to cooperate’ clause – setting out a statutory duty for local planning authorities to have entered into a joint strategic planning scheme for an area

3) A new clause is inserted into the Localism Bill making such joint strategic plans statutory and providing for their examination. Any ‘local plan’ within the area of a joint strategic plan would need to be in ‘general conformity’ with the joint strategic plan.

4) Requiring local planning authorities to submit a strategic planning scheme to the SoS within 2 months of Royal Assent of the Localism Bill. The policy presumption would be that where submitted by two or more local planning authorities these would be automatically approved unless the SoS used powers in default (see below). Such a scheme would have the option of proposing that larger plans, or joint plans (e.g. Cornwall, South Worcs) where the plan covers one or more whole housing market areas, would also function as a strategic planning scheme – removing the need for two-tier plans in LPAs wholly covering housing market areas.

5) Where authorities refuse to enter into a joint strategic planning scheme, or where one is submitted with key authorities omitted, the SOS would have a new default power, created by adding a new clause 29a to the Planning and Compensation Act 2004 to set up a joint planning committee under section 29 of that act

6) That ministers undertake to revoke regional plans until these new strategic plans replacing them are agreed – then RSS can be revoked in the areas covered (you would also not need to SEA the revocation, only the replacement strategy).


This would work much better than the suggested localism bill clauses on joint infrastructure plans. These missed the point. You can’t separate infrastructure from development and they proposed no path for implementation.

Effectively my proposal sets up a new flexible ‘structure planning’ type arrangement, but locally driven. The default SOS default power might never be used, but the threat to use it would work wonders in creating locally driven agreement. The reforms would merely formalise what LPAs are doing in the absence of regional plans anyway.

Looking at how this might go ahead you could see joint committees set up at County level in some counties such as Oxon. Some counties might form joint committees with unitaries, the District and the County (Dorset, Herts). In some very large counties the counties might be split to reflect existing sub-regional arrangements (eg. North and South Devon, Hamps, and North and South Essex and Kent) . Large towns on county edges would need cross-border joint committees that might go one or two parishes out. This would prevent the expansion of a large town dragging down through controversy the planning of all districts around it.

These reforms would work in conjuction with the proposed reforms to the ‘presumption’. It would be a workable, natural and pragmatic solution. The presumption should be for statutory committees under section 29 of the 2004 act, or else new plans will need to be agreed via every single constituent, rather than by majority vote. The experience is that statutory committees (such as East Northants) have worked much more swiftly than informal arrangements.

Finally the presumption of having one local plans should not apply to joint waste plans. These have worked very well and now face having years of work thrown away by the NPPF.


2d    Do you have comments? (Please begin with relevant paragraph number)


Yes see attached table for para. by para.comments.


One thought on “#NPPF Formal Consultation Response Part 2 – Plan Making and Joint Working

  1. Pingback: #NPPF Response to Consultation – Collected in One Post « Decisions, Decisions, Decisions

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