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.
Decisions, Decisions, Decisions 
It would have been helpful to have explicit guidance on what a duty to co-operate is and how it differs from a duty to agree. How many meetings constitute the duty? At what level? What evidence should be used? What protocol should be used in the case of disagreement? Who should arbitrate disagreement – surely not the planning inspector. We have plenty of guidance on rubbish bins, bungalows and car parking – why not this?
Isn’t this what guidance is supposed to be for? What we have now is guidance by failure with no coherence or uniformity.