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Will co-operation make it happen?

The Duty to Co-operate (DTC) is now firmly established within the plan-making process as a legal test within the Localism Act 2011.

It requires local authorities to engage constructively, actively and on an ongoing basis with one another to effectively deal with strategic, cross-boundary matters. The revised NPPF supplements the Localism Act by providing new policy on how the DTC should be satisfied. 

The principal addition to the DTC provisions in national policy (which have been carried forward from the draft version of the revised NPPF) is that local authorities and elected mayors or combined authorities (with plan-making powers) will now be required to prepare Statements of Common Ground (SOCG) to document and evidence compliance with the DTC. 

The Government has confirmed that it shall update Planning Practice Guidance (PPG) to provide further detail on the preparation and content of SOCGs. However, this remains outstanding at the time of writing (draft PPG updates were published alongside the draft revised NPPF, as summarised in my previous summary).

Statements of Common Ground

SOCGs will have an important role in future plan-making. They are referenced within the revised presumption of sustainable development (footnote 5 at paragraph 11) and within paragraphs 24-27 which relate to maintaining effective co-operation.

Following publication of the draft revised NPPF, I wrote about how SOCGs would now be important in satisfying the tests of soundness, and their role in demonstrating exceptional circumstances in justifying changes to Green Belt boundaries (in terms of evidencing that all other reasonable options for meeting needs have been examined fully with neighbouring authorities). This policy remains unchanged and is available here.

Annex 1 of the NPPF requires that the new provisions, and therefore SOCGs, will apply to plans which are submitted post 24 January 2019.

Summary and Implications

The DTC legislation remains unaltered but there are implications for its operation through the revised NPPF with national policy now requiring SOCGs to demonstrate effective and ongoing joint working.

SOCGs are likely to 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.

When consulting upon the draft revised NPPF, MHCLG stated that they did not regard SOCGs as a significant change in practice in evidencing the DTC so did not propose transitional arrangements. The SOCG requirement is unlikely to trouble authorities which have advanced agreed positions on strategic matters such as memoranda of agreement/understanding (e.g. Coventry & Warwickshire, Cambridgeshire & Peterborough and Oxfordshire) but the ability to prepare SOCGs in the short-term 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).

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.

As SOCGs are not required by law it appears that the key sanction for those authorities which fail to prepare them will be an inability to satisfy the DTC where their plans are submitted post-24 January 2019. However, it appears that a significant incentive for advancing SOCGs will be enhanced prospects for securing funding for strategic infrastructure and growth, as evidenced through the Housing and Growth deals announced by Government during spring 2018.

For further information on Duty to Co-operate matters please contact Matthew Fox.

15 August 2018