St Albans Court Challenge Fails – It Did Breach Duty to Cooperate

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Planning inspector David Hogger recommended the district’s crucial Strategic Local Plan (SLP) was withdrawn last year – it outlines major developments for the district planned until 2031, including building 4,000 homes in the Green Belt.

Mr Hogger said SADC had not fully co-operated with surrounding districts after objections by Dacorum borough council, Hertsmere borough council, Three Rivers district council, and Watford borough council were lodged under the group name South West Herts Group (SWHG).

The four councils said SADC had not consulted them when planning to build thousands of houses close to their infrastructure.

Hertfordshire County Council, Central Bedfordshire Council, Welwyn and Hatfield District Council and North Herts District Council were also named on the court papers along with the other councils as “interested parties” in the case.

SADC pursued a case at the High Court, overseen by Sir Ross Cranston, to overturn this decision and rescue all the time and money which would be lost – more than 10 years of work. They now face the likely prospect of having to re-write the plan.

At the High Court hearing last month Matthew Reed QC, for St Albans Council, told the judge that St Albans had discussed the issue at length with the other councils.

However, he said that the other councils didn’t come round to their point of view adding that they had therefore “agreed to disagree”.

He said that the planning inspector’s finding that they hadn’t cooperated was “irrational” because of his “failure to take into account material considerations”.

In his decision today, though the judge in backing the inspector said he accepted that the duty to cooperate was not a duty to agree, and that whether or not there was agreement it was “not determinative of the duty to cooperate.”

He said the inspector “fully appreciated the issue,” and continued: “The issue before him was that of cooperation, and in my view he was entitled to reach the conclusions he did on whether it had been effective, constructive, and ongoing.”

In a complex, 18 page, written judgment running to more than 8,000 words he said: “It is plain from his reasons that the Inspector considered cooperation along a range of dimensions and over time. He reached, as he was entitled to do, an overall judgement about compliance with the duty to cooperate.”

He added : “In my view the Inspector was neither irrational nor unlawful in his approach.”

SADC’s portfolio holder for planning, district Cllr Mary Maynard, said: “We were pleased that the judge found sufficient merit in our case to give us permission to apply for judicial review. Nevertheless, today’s judgment is disappointing.”

She will “take stock and re-assess [the] approach”, and “commutted to delivering” the SLP, and will arrange meetings with portfolio holders from all neighbouring councils to move forward into the future.

“We want to make sure we achieve the very best outcomes for residents. This will include balancing the delivery of the right number of homes to meet the needs of our growing population, ensuring our business and retail community continue to thrive and protecting our precious Green Belt and green spaces.”

Planning policy committee member, district Cllr David Yates, agreed it was disappointing: “The Inspector may have been legally entitled to conclude that St Albans had not shown him that it had cooperated sufficiently with neighbouring local authorities, but that doesn’t get us any closer to having an SLP in place.

“It’s frustrating that whilst everyone acknowledges that a duty to cooperate is not a duty to agree, reaching a disagreement is taken as indicating a failure to cooperate.”

Another planning police committee member, district Cllr Iain Grant, added: “I hope to see early progress in our continued work with neighbouring authorities to resolve the points of difference and make progress on delivery of much-needed affordable and other housing for this district.”

Some notable sections

The issue before him was that of cooperation, and in my view he was entitled to reach the conclusions he did on whether it had been effective, constructive, and on-going. …

I accept the Secretary of State’s submission that once there is disagreement, I would add even fundamental disagreement, that is not an end of the duty to cooperate, especially in an area such as housing markets and housing need which involve as much art as science, and in which no two experts seem to agree. As Paterson J underlined in R (on the application of Central Bedfordshire Council) v Secretary of State for Communities and Local Government [2015] EWHC 2167 (Admin), the duty to cooperate is active and on-going, and that to my mind means active and on-going even when discussions seem to have hit the buffers. …

 

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