Two Mistakes and Two Omissions in the new Beta Duty to Cooperate Guidance

What everyone wants to know from the new beta planning guidance website is whether it will help structure and resolve the current rats in a sack approach to the duty to cooperate. I fear not.  Here are are comments I made on the website today.  However the system doesn’t not enable you to state who you are till after you have made your comments enabling anonymous contributions.  As comments are anonymous, so it is not a consultation.  So I would advise everyone to copy their comments in an email to Steve Quartermain.

It follows current PINS and PAS guidance on separating out the legal and soundness sides of the duty (as long ago set out on this blog) and this introductory material is fine.

The first omission relates to how the tests of positively prepared and effectiveness relates to the NPPF requirement for the plan to be ‘ the plan are the most appropriate given the reasonable alternatives.’ which in turn derives from the EU SEA directive 2001/42/EC.  Many Plans have failed this Forest Heath/Greater Norwich Test.   If a local plan has failed to properly consider needs which arise from outside their area or whether their own needs can with less impact be met outside their area then they will likely as not have failed both the duty and this legal requirement.  The guidance should therefore stress how these alternatives need to be identified at an early stage and consulted on through the SEA/plan making process.

Throughout the guidance conflates effective cooperation (a process issue) with effective outcomes of cooperation ( a policy soundness issue). The leads to the first mistake relates to memorandums of understanding.  It says

Where Local Plans are not being taken forward in the same broad time frame it will be important for the respective local planning authorities to enter into formal agreements, signed by their elected members, demonstrating their long term commitment to a jointly agreed strategy on cross boundary matters. Inspectors will expect to see these agreements at the examination. A key element of the examination will be to ensure that there is sufficient certainty through the agreements to ensure that an effective strategy will be in place for strategic matters when the relevant Local Plans are adopted.

But such agreements to use the memorable phrase by the Coventry inspector, are simply ‘agreements to agree’.  In his report he said.

 the mechanism for dealing with any shortfall in housing provision amounts to no more than an agreement to seek to agree in the future. It simply says that, if it arises, a shortfall will be discussed with neighbouring authorities but there is no commitment from those authorities to assist in remedying the shortfall..while [it]  identifies matters of cross boundary interest it does not resolve them

Such memorandums and statements are forward looking.  However the duty is backward looking, the test is over the adequacy of cooperation at the point of submission.  Again the Coventry Inspector

It is the Council not its neighbors that is required to demonstrate that it has discharged its duty to cooperate.

In that light the par. should be rewritten as follows.

Where Local Plans are not being taken forward in the same broad time frame it will be important for the respective local planning authorities to enter into formal agreements, signed by their elected members, demonstrating their long term commitment to a jointly agreed strategy on cross boundary matters. Inspectors will expect to see these agreements at the examination.  Such agreements must not simply identify strategic matters but include a clear process for resolving them.   A key element of the examination will be to ensure that there is sufficient certainty through the agreements to ensure that an effective strategy will be in place for strategic matters when the relevant Local Plans are adopted. However the test is whether the submitted plan meets the legal duty as submitted not whether in future other plans covered by the same agreement will.   Such agreements will be helpful though in showing there is evidence that a jointly agreed cross boundary strategy is deliverable.

The second error relates to  when such agreement has not been reached.  It says.

Does the duty to cooperate require local planning authorities to reach agreement about the planning strategy before they submit their Local Plans for examination?

No, local planning authorities are not required to reach agreement about the planning strategy before they submit their Local Plans for examination. But local planning authorities should ensure that their Local Plan is effective before they submit it for examination. Cooperation with partners that are key to delivering Local Plans is central to the policy test of soundness. If a Local Plan is found unsound at the examination the Inspector will recommend that it is not adopted.

This sends the wrong message.  What I think it is trying to say is that the legal duity is a duty to cooperate not a duty to agree and that if another authority is unreasonable then this need not prevent you submitting if there is a good case that a cross boundary strategy will ultimately be deliverable through operation of the legal duty and soundness tests.  If this is what it is trying to say though then it should say it and not give the impression that every effort to agree should not me made.

The second omission relates to where their is deadlock and lack of agreement.  What is really missing at the moment is some means of being able to obtain objective independent advice at an early stage the ensure that firstly LPAs meet their duty to consult on and appraise reasonable strategic alternatives, and secondly when there is disagreement about which strategy to submit a means of determining which to pursue.  The guidance should offer a PINS/PAS arbitration/advice procedure  on both of these matters.  This I believe should have two components, first an early intervention approach whilst strategies are being prepared and prior to decision, secondly a means of examining alternative strategies.  The second would require a change to the plan regs but not a major one to enable one or more LPAs to simultaneously submit both a preferred plan and an alternative option, and of course different LPAs in the same strategic grouping may have different preferences.  Currently if an inspector doesn’t like a chosen alternative this needs a major modification and six months plus delay.  This change would remove that ensuring that the examination process can proceed and conclude quickly.  We have already seen the very worrying development recently of examinations that take two or more years to conclude.  this procedural change would eliminate that by enabling plan a and plan b to proceed in parallel.

Adam Smith Institute Call for Abolition of Planning and the Green Belt – Again

Today the Adam Smith Institute published a paper – Burning Down the House – amongst a plethora of papers criticizing right to buy.  Instead they propose ‘supply-side solutions’ what do they mean.  The report references a report for the institute last year by Mark Papworth which argued for

revoking the Town and Country Planning Acts, abolishing national prohibitions such as the Green Belt, and privatising development rights.

It also called for devolving planning from central government to local authorities (If development rights have been privatized how would that work, anyway didn’t we try that, did it result in more of less housing, less).

Whatever one thinks about help to buy, and it is a terrible policy, the government tried a neoliberal agenda and housebuilding went down, it then tried state intervention and housebuilding is up.  There is a lesson their, will the Adam Smith Institute learn it.

Mid Sussex Duty to Cooperate Problems

Letter from examination inspector

Having assessed the representations received and read the Council’s Duty
to Co-operate Statement (Core Document BP11) I consider it would be
helpful to hold an Exploratory Meeting on the issue.
As you know there is a requirement for local planning authorities, in
preparing their local plans, to engage constructively, actively and on an
ongoing basis with a range of local and national bodies. There should be
co-operation on strategic planning issues that cross administrative
The Duty to Co-operate is an independent legal requirement which has
either been met or not and in order that I can draw a preliminary
conclusion on the matter it would help me to ascertain the up-to-date
position, bearing in mind that the situation is continuing to evolve.
I wish to emphasise that this will be a preliminary meeting between the
local planning authorities who have a responsibility to co-operate and I
have drawn no conclusions regarding Mid Sussex District Council’s
compliance with the legal requirement. Formal evidence will not be heard
and I shall determine how to progress the Examination following the
meeting. I am not requesting any further submissions from the invitees
but would appreciate a short note from the Council (to be circulated
beforehand) which briefly sets out the current situation.

Im not surprised as Mid Sussex despite jointly commissioning a ‘new country town’ study with neighbors has decided unilaterally to ignore its conclusions.

Green Belt a Promise that Cannot be Kept?

In the Guardian Hannah Fearn responds to the reports by the CPRE that the amount of Green Belt loss in local plans has doubled in a year to over 150,000.

Now [the coalition]faces claims it is reneging on promises made once again. These were, however, never promises the government could keep. The purpose of localism, and the simplification of planning guidelines, is to allow local authorities to tackle their own local problems in the way they see fit. Having carried out local assessments, councils now concede that demand is so high it is essential to use a small section of green belt land in order to meet the housing needs of residents. It’s not the government that is responsible for a change in policy on the green belt – but that’s exactly why it shouldn’t have made such a commitment in the first place.

She concludes

The green belt was designed to protect areas of natural beauty, but not to strangle our urban heartlands. It has become an inflexible policy, easily abused by the nimby brigade

Certainly the pressure on the government over Green Belt will only increase.  The formation of the All Party Green Belt Group has already seen one animated Westminster Hall debate, and given that over 1/3rd of local authorities have yet to deposit or finalise their plans the figure could easily rise to over 250,000 houses next year.  In the next few weeks Cheltenham/Gloucester/Tewksbury and Birmingham will announce plans that would see over 10,000 houses built on the Green Belt.

The prime minister has pointed the All Party Group to a landmark appeal decision at Thundersley where the Secretary of State refused a development, even though the area had a shortage of housing, because the National Planning Policy Framework (NPPF) says changes to Green Belt boundaries should only be made through local plans, but the local plan process is forcing all local authorities, even those that have stuck firm, to amend them to include Green Belt reviews as the NPPF requires all plans to meet ‘in full’ the objective need for housing.  Local authorities are easy to blame the Planning Inspectorate for overruling them but the inspectorate are blameless as they sit in place of the minister implementing government policy.

The coalition agreement is basically toothless on Green Belt, it just says ‘We will maintain the Green Belt,…and other environmental protections’ it is not suggesting abolition of the Green Belt, so it is easily kept.  It is much weaker than Eric Pickles promise in 2011 that the Green Belt was ‘solid and absolutely inviolate’.

The key issue is whether or not there are realistic alternatives to development of the Green Belt.

Green Belt was never, until the NPPF was published, seen as an end in itself but a tool in a wider scheme of urban containment and development.  Hannah makes an error in stating that Green Belt is to protect areas of natural beauty, this has  has never been an aim of green belt policy, indeed the quality of land is immaterial to its Green Belt status, rather it is a policy of urban containment, a policy which was only sustainable so long as planning set out other places for development to go. It no longer does, we no longer have regional planning, we no longer have new town, we no longer have concerted urban regeneration.

Indeed David Cameron in a speech in 2012 praised the  post-war Regional Plan of Patrick Abercrombie that saw London’s Green Belt established and a string of New Towns.  Some irony in that abolishing regional planning saw a plunge of over 300,000 in the number of houses planned rather than a positive localist response, now with ‘muscular localism’ to use Pickles phrase local plans are being strongarmed to increase release of land for housing, even if it is Green Belt, and minister are sanguine about this.

With the abolition of regional planning the only way you could get the kind of strategy that Abercrombie pioneered is through the voluntary cooperation of local authorities under the government’s duty to cooperate.  Many plans have recently been judged by planning inspectors to fall foul of this, and indeed plan adoption has almost crawled to a halt as a result.  London and Birmingham are seeking land for overspill from the adjoining areas, mostly met with a deafening silence. The duty to cooperate has turned out to be a rats in a sack exercise without the guiding hand of government to force or suggest deals.  European law forces consideration of alternative strategies to minimise environmental impact of these are ‘reasonable alternatives’,  But new guidance on the duty to cooperate issued by the government last week says what should happen when your neighbours don’t agree on a wider strategy, then you should consider ‘every alternative’ – which could easily mean building on Green Belt rather than a new town or urban extensions beyond it.  It is difficult to square this cop out from a regional approach with the European law requirement.

National Policy requires an assessment of what is the most sustainable option, developing in or beyond the Green Belt.  Unfortunately the assessment almost never take a broad enough canvas or strategies a long enough horizon to enable this to be done.  In many cases there will be little choice but to have some Green Belt release, in Gloucestershire for Example you have the Cotswolds on one side and the Forest of Dean and Severn Estuary on the other somewhat limiting your options.  In other cases though such as the Sutton Coalfield Green Belt east of Birmingham there are clear and most sustainable alternatives to building in the Green Belt next to Motorways, they just arnt in the same local authority area.  It is this inability of the new system to look at a broader canvas that led me last year to correctly predict  that the abolition of regional planning would double pressure on the Green Belt because of how much harder it is now to look at alternatives beyond.  At the time the government said, and repeated it last week, that abolition had protected 30 areas of Green Belt, my analysis shows that all of these where Green Belt was proposed for review are now being review or have been forced to schedule reviews by 2016, therefore abolition has not securely protected one hectare of land.

Sop what are the alternatives?  Broadly two, significant urban intensification within cities or Garden Cities, connected by sustainable transport, beyond.

By the first alternative I dont mean just a bit of sprucing up of towns, seeking a shift in preferences for urban living, and restricting greenfield development until every last inch of brownfield has been developed, the kind of approach suggested by the Rogers Urban Taskforce.  This wont be enough, there just isn’t enough brownfield land in the right places, For example at typical urban densities the amount of brownfield land in the south east is barely one years supply of housing at the current rates.  Such stylistic urbanism is not enough.  Given land constraints in areas of high growth intensification will only be sufficient where it can lead to development of such a scale that it can replace many square miles of Green Belt loss, which requires developments to Vancouver or Singapore like densities, 20, 30, 40 storeys plus.  This kind of density is simply physically impossible without rapid transit systems other wise there will be huge congestion.  This is only realistic in a few areas such as Nottingham, Leeds, Liverpool, The Lea Valley in London, the Don Valley in Sheffield etc, This would require a national investment plan of the kind being developed by many merging economies recognizing the major benefits to their economies by urban economies of density and scale.    This would also have a long lead in time.

The second alternative is Garden Cities, the government seem to have gone quiet on the idea after initial enthusiasm, there seems no sign of the promised prospectus and Boles the Planning Minister has said oddly they arn’t a priority for government investment.   Without government sponsored and empowered delivery bodies they wont take off.   No conservative government has really pushed new settlements and it seems this is no different.  Again though they have very long lead in times, which means that our legacy of 20 years without firm long term planning for housing must mean at least in the short term a major loss of Green Belt.  Don’t rule out a u-turn especially if George Osborne, who once launched a Policy Exchange pamphlet calling for abolition of the Green Belt (commissioned by Nick Boles current minister for housing), loses influence, or the politics around one of the really big Green Belt loss proposals, such as Birmingham, get too hot.