Castle Point council are probably aware of the Inspector’s decision as to whether the Duty to Cooperate on strategic matters has been complied with. The decision should be made public next week.
The Duty to Cooperate “places a legal duty on local planning authorities, county councils in England and public bodies to engage constructively, actively and on an ongoing basis to maximise the effectiveness of Local and Marine Plan preparation in the context of strategic cross boundary matters.
The duty to cooperate is not a duty to agree. But local planning authorities should make every effort to secure the necessary cooperation on strategic cross boundary matters before they submit their Local Plans for examination.
Local planning authorities must demonstrate how they have complied with the duty at the independent examination of their Local Plans. If a local planning authority cannot demonstrate that it has complied with the duty then the Local Plan will not be able to proceed further in examination.
Local planning authorities will need to satisfy themselves about whether they have complied with the duty. As part of their consideration, local planning authorities will need to bear in mind that the cooperation should produce effective and deliverable policies on strategic cross boundary matters.”
Castle Point representatives pointed out that through the Thames Gateway and South Essex Partnerships cooperation was underway between neighbouring authorities. Whether the areas of cooperation, and the levels of strategic success were satisfactory in important areas, will be decided by the Inspector, Mr David Smith.
Castle Point is the smallest of the neighbouring Boroughs and therefore may not be expected to take lead responsibility in setting strategic cooperation agendas. By implication, should their duty to Cooperate be considered to have Failed, it could also be considered an indictment of the efforts of Essex County Council, the Unitary Authority that is Thurrock Council and Rochford, Basildon and Southend Councils.
Rose Grogan a barrister with 39 Essex Chambers and a specialist in planning and environmental law wrote, in March 2016;
“One particular issue is the question of how to get local planning authorities to engage with one another on the issue of housing.
The government’s answer to this in 2011 was the creation of a ‘duty to cooperate’ in the Localism Act. At the time, it was hailed as a better alternative to regional planning, removing an unnecessary layer of policy while still setting the framework for strategic planning across local authority boundaries.
On its face, the duty appears to provide a much-needed framework for addressing strategic planning problems. Local authorities are required to cooperate with one another on cross-boundary issues, and face having their plans found to be unsound by inspectors, leading to considerable delays in bringing forward a plan if the duty is not complied with.
There are cases where inspectors have found that a local authority has not discharged the duty: Central Bedfordshire, Aylesbury Vale, and Hart District Council are three examples. These local authorities barely engaged with their neighbouring authorities, and so it was a clear case of failing to discharge the duty.”
“In practice, however, the duty to cooperate has been the subject of criticism, in particular because it is a duty of form, not substance. In some ways, the criticism is justified. For a start, it does not require agreement. All that is required is evidence that attempts have been made to cooperate.
A further criticism is that the duty is all stick and no carrot, there is little positive incentive for neighbouring authorities to cooperate, and the enforcement of the duty currently depends on inspectors taking a robust approach. What is not clear from cases where local authorities have fallen foul of the duty is whether the threat of unsoundness had any impact on their decision to go about cooperating (or not) in the way that they did.
Surprisingly, there have been very few challenges to inspectors’ conclusions that the duty has been complied with. The courts have therefore not had the opportunity to bolster the duty, nor do they appear interested in doing so. Very early on, the courts confirmed that the test on review is whether an inspector’s decision was rational, and the court will not embark on a more searching analysis of whether the duty has in fact been discharged.
Without a requirement that local authorities reach agreement, the duty will continue to fall short of achieving the ultimate aim of getting local planning authorities to meet housing need.”
“Do your duty as you see it, and damn the consequences.” George Patton Jr