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New (and common) ground for the Duty to Co-operate?

The 2010 coalition government wasted no time in dismantling the “unaccountable regional apparatus” from the planning system and replaced it with the Duty to Co-operate (DTC) through the Localism Act 2011.

The 2010 coalition government wasted no time in dismantling the “unaccountable regional apparatus” from the planning system and replaced it with the Duty to Co-operate (DTC) through the Localism Act 2011. This legal test, requiring local authorities to engage constructively, actively and on an ongoing basis with one another to effectively deal with strategic, cross-boundary matters, is now a fundamental part of the plan-making process. Here, we provide an overview of how the process will change under NPPF V2 (and the Draft PPG Update).

At the outset, it’s important to recognise that there are no proposals to amend the Localism Act so changes to national policy and guidance will only supplement the DTC legislation. That said, there is a new proposal within the draft policy to require local authorities and elected mayors or combined authorities (with plan-making powers) to prepare Statements of Common Ground (SOCG) to document and evidence compliance with the DTC.

The intention to introduce SOCGs was announced within the Housing White Paper and “Planning for the right homes in the right places” (2017), with a view to increasing certainty and transparency and encouraging co-operation.

The other significant addition to national policy relating to the DTC is the need to have examined fully all other reasonable options for meeting need, including land within neighbouring authorities, before changing Green Belt boundaries.

Draft National Policy and Guidance

The SOCGs will have an important role in future plan-making:

  • They are referenced within the revised presumption in favour of sustainable development (footnote 6 at paragraph 11) as a means of establishing how unmet development needs will be met.
  • They are referenced within Paragraphs 26-29 which relate to maintaining effective co-operation. These carry forward original paragraphs 178-181 but reference is now made to the role of strategic plan-making authorities and the need for engagement with Mayors and combined authorities which do not benefit from plan-making powers. The “strategic plan-making authorities” will need to prepare and maintain one or more SOCG, documenting the cross boundary matters being addressed and progress in co-operation.
  • They will be critical to the tests of soundness (paragraph 36):

"Positively prepared"

The strategy for meeting objectively assessed need "is informed by agreements with other authorities".

“Effective”

"based on effective joint working on cross boundary strategic matters that have been dealt with rather than deferred, as evidenced by the statement of common ground”. The Draft PPG Update explains that this means “addressing matters as fully as possible … rather than deferring issues to subsequent plan updates”, suggesting an increased emphasis on resolving strategic matters and discouraging policies for early plan reviews (albeit the draft guidance does acknowledge this may be required in certain circumstances).

  • Para. 136 states that SOCGs will comprise important evidence in demonstrating whether or not neighbouring authorities can assist in accommodating cross-boundary needs, in relation to the assessment of whether exceptional circumstances exist to justify changes to Green Belt boundaries (i.e. demonstrating that all other reasonable options for meeting needs have been examined fully).

There is further detailed guidance within the Draft PPG Update on the preparation and scope of SOCGs:

  • They should identify the geographical area; key strategic matters; authorities and additional signatories; governance arrangements; housing requirements and distribution (or process for agreeing it); record of agreements; and additional strategic matters still to be addressed.
  • Elected mayors without strategic plan-making powers can be signatories where they are responsible for delivering specific strategic priorities, and there is encouragement for mayors to play a co-ordinating role in SOCG preparation.
  • SOCGs can be a vehicle to identify the need for strategic cross-boundary infrastructure, and can support applications for investment and growth funds.

The 2017 consultations proposed that SOCGs be in place within twelve months of publication of NPPF V2. However, these transitional provisions have not been carried forward with the requirement brought into effect once the revised NPPF is published (albeit plans submitted within six months of the revised NPPF being published will benefit from a “period of grace” in which they are examined against policies from the original NPPF).

The 2017 consultations indicated that the Government will consider intervention by amending local development schemes where authorities which do not produce or maintain an SOCG, although this is not made explicit within the updated PPG.  

Summary and Implications

Although the DTC legislation remains unaltered, there are implications for its operation through draft national policy.

SOCGs will play a significant role in plan-making in satisfying the DTC and tests of soundness. They will also be instrumental in demonstrating exceptional circumstances to justify Green Belt release.

There is an increased emphasis upon strategic matters being agreed rather than “deferred”, which appears to be more akin to a “duty to agree”, with the SOCG comprising the evidence base underpinning this.

The Government does not regard SOCGs as a significant change in practice in evidencing the DTC so have not proposed transitional arrangements, albeit there is a period of grace for plans submitted within six months of the NPPF V2 being published. This is unlikely to trouble authorities which have advanced agreed positions on strategic matters such as memoranda of agreement/understanding (e.g. Coventry & Warwickshire and Cambridgeshire & Peterborough) but the ability to prepare SOCGs over the next twelve months is likely to prove challenging where agreements are in their infancy or remain unresolved (e.g. the Greater Birmingham and Black Country Housing Market Area).

The SOCG concept received a lukewarm reception from local authorities following the 2017 consultations, with concern they would amount to a “duty to agree” and complicate plan-making. Conversely, private sector organisations broadly welcomed the concept which is likely to reflect the support amongst sections of the development industry for a more comprehensive approach to delivering strategic development needs.

It is clear that elected mayors and combined authorities will have a key role in preparing SOCGs. They will be responsible for their preparation where they are delivering a spatial development strategy (where they have plan-making powers) and otherwise are encouraged to take a facilitator role, which could prove invaluable in areas where agreement over strategic matters is some way off.

It is unclear what the sanctions will be for those authorities which fail to prepare SOCGs, save for being unable to submit their plans for examination. However, it appears that a significant incentive for advancing SOCGs will be enhanced prospects for securing funding for strategic infrastructure and growth.

Further Turley commentary on the draft revised NPPF is available here. If you have any queries relating to the NPPF, please contact Matthew Fox.

14 March 2018

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