Why Inspectors Cannot Legally Make Fundamentally Unsound Plans Sound through an Early Review #NPPF

A recap on a key issue that has arisen in the last few weeks and covered here in the last couple of days.

As put by  correspondent Hocus Pocus

 now the precedent [west berks] has been set, the “three-year review” could be about to become the default ‘get out of jail free’ card for plans that don’t meet NPPF requirements. Politically, the Government can’t afford a rash of unsound plans under their ‘new’ system having spent several years slamming regional strategies / espousing localism. Your new entry on Dacorum appears to support that point where the Inspector is apparently inviting a partial review as an easy solution where a straight reading of the evidence might suggest an alternate conclusion.

As I said I dont think West Berks is a precedent rather it was a pragmatic response to a plan bot having a full lifespan through unavoidable delays.  The plan was fundamentally sound and the authority did not dodge or fudge fundamental issues on need or housing land.

That is quite different from Dacorum where the plan is (in most independent commentators views im sure and looking at the note the inspectors) fundamentally sound and all the key difficult issues were dodged including the evidence necessary to resolve them.

As I said yesterday I think (and this is my only issue with an excellent inspectors note) this is beyond the inspectors discretion and unlawful and would likely lead to a successful legal challenge to the inspectors report.  Inspectors in the regulations and under the policy terms of the NPPF can make recommendations which if adopted by the LPA can make an unsound plan sound, but they have no power to judge a fundamental unsound sound and then recommend an early review because it is fundamentally unsound.

Lets take a look at the NPPF para 182

The Local Plan will be examined by an independent inspector whose role is to assess whether the plan has been prepared in accordance with the Duty to Cooperate, legal and procedural requirements, and whether it is sound. A local planning authority should submit a plan for examination which it considers is “sound”

AndPINS Examining Development Plans para 7

LPAs should rigorously assess the DPD before it is published under Regulation 27 to ensure that it is a plan which they think is sound. The document published should be the document they intend to submit under Regulation 30 to the Inspectorate. The 2004 Act specifically provides that a LPA must not submit the DPD unless it considers the document is ready for examination. Changes after submission by the LPA should be unnecessary and may be disregarded by the Inspector unless there are exceptional reasons that justify them.

The changes here are to the development plan as submitted not a future review of that plan.

And in paras 2.5 on

In looking at the matters and issues, Inspectors will seek to identify any fundamental or cumulative flaws at the first possible opportunity.
This will avoid wasted time and money if the submitted DPD has major problems (or may even on the face of it appear unsound)…
If the Inspector forms an early view that the submitted DPD may have serious shortcomings that point to potential unsoundness, the Inspector will bring this to the attention of the LPA.

Exceptionally, the Inspector may consider that the examination cannot be completed without additional work being undertaken (such as the need for further sustainability appraisal of alternative options) which may necessitate consideration of a suspension of the examination or, in the worse case scenario, withdrawal of the DPD.

Now where is the provision for such a plan to be found sound and reviewed later as the new ‘normal’.

Im sure lawyers will have  field day with this.

The key other problem with the early review suggestion is it completely removed the incentive beyond the design of the post 2004 system – binding inspectors reports.  This and the intention that plans are as sound as they can reasonably be on submission is supposed to prevent LPAs stalling on the key issues – not planning.  The early review angle will be seen by the many NIMTO council leaders as a joyous let out, till well after the next elections, for a review of course which may and probably will never happen.  Its a pig ion a poke and inspectors should not in my view fall for it.