The Duty to Co-Operate and other Conundrums

The Duty to Co-Operate and other Conundrums Introduction 1. In this paper we propose to deal with a miscellany of current conundrums associated with important changes in the law in relation to planning and environmental legislation. The issues to be addressed are, firstly, the vexed question of the proper approach to the duty to co-operate in the context of local development documents that are already progressing through the system. The paper also addresses recent developments and current initiatives in relation to the funding of environmental litigation so as to address the question of compliance with the Aarhus Convention and the legislative follow-up to Jackson LJ s proposals in respect of costs. Finally, there is discussion in relation to the Community Infrastructure Levy Regulations 2010 and the approach taken in the Court of Appeal recently. The duty to co-operate 2. In announcing the provisions of the Localism Bill the government made clear that they proposed to abolish Regional Strategies in order to remove the regional level of planning policy and the top down approach to, for instance, the provision of housing requirements. The quid pro quo for this legislative provision was the incorporation within the Bill of the duty to co-operate. It appears that it was envisaged that the duty to co-operate would replace the provisions in relation to regional planning and enable cross-boundary and other sub-regional matters to be addressed through practical co-operation between adjoining authorities. So much for the theory. 3. Issues have recently arisen as to the extent to which the duty to co-operate applies in relation to Development Plan documents and, in particular, Core Strategies which were prepared prior to the Localism Act coming into force and, in particular, the provisions of Section 110 of the Localism Act being brought into law in January 2012. - 1 -

4. The provisions of Section 110 are obviously central to these contentions, and they provide as follows: 110(1) In Part 2 of the Planning and Compulsory Purchase Act 2004 (local development) after section 33 insert 33A Duty to co-operate in relation to planning of sustainable development (1) Each person who is (a) a local planning authority, (b) a county council in England that is not a local planning authority, or (c) a body, or other person, that is prescribed or of a prescribed description, must co-operate with every other person who is within paragraph (a), (b) or (c) or subsection (9) in maximising the effectiveness with which activities within subsection (3) are undertaken. (2) In particular, the duty imposed on a person by subsection (1) requires the person (a) to engage constructively, actively and on an ongoing basis in any process by means of which activities within subsection (3) are undertaken, and (b) to have regard to activities of a person within subsection (9) so far as they are relevant to activities within subsection (3). (3) The activities within this subsection are (a) the preparation of development plan documents, (b) the preparation of other local development documents, - 2 -

(c) the preparation of marine plans under the Marine and Coastal Access Act 2009 for the English inshore region, the English offshore region or any part of either of those regions, (d) activities that can reasonably be considered to prepare the way for activities within any of paragraphs (a) to (c) that are, or could be, contemplated, and (e) activities that support activities within any of paragraphs (a) to (c), so far as relating to a strategic matter. (4) For the purposes of subsection (3), each of the following is a strategic matter (a) sustainable development or use of land that has or would have a significant impact on at least two planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas, and (b) sustainable development or use of land in a two-tier area if the development or use (i) is a county matter, or (ii) has or would have a significant impact on a county matter. (5) In subsection (4) county matter has the meaning given by paragraph 1 of Schedule 1 to the principal Act (ignoring sub-paragraph 1(1)(i)), planning area means (a) the area of - 3 -

(i) a district council (including a metropolitan district council), (ii) a London borough council, or (iii) a county council in England for an area for which there is no district council, but only so far as that area is neither in a National Park nor in the Broads, (b) a National Park, (c) the Broads, (d) the English inshore region, or (e) the English offshore region, and two-tier area means an area (a) for which there is a county council and a district council, but (b) which is not in a National Park. (6) The engagement required of a person by subsection (2)(a) includes, in particular (a) considering whether to consult on and prepare, and enter into and publish, agreements on joint approaches to the undertaking of activities within subsection (3), and (b) if the person is a local planning authority, considering whether to agree under section 28 to prepare joint local development documents. (7) A person subject to the duty under subsection (1) must have regard to any guidance given by the Secretary of State about how the duty is to be complied with. - 4 -

(8) A person, or description of persons, may be prescribed for the purposes of subsection (1)(c) only if the person, or persons of that description, exercise functions for the purposes of an enactment. (9) A person is within this subsection if the person is a body, or other person, that is prescribed or of a prescribed description. (10) In this section the English inshore region and the English offshore region have the same meaning as in the Marine and Coastal Access Act 2009, and land includes the waters within those regions and the bed and subsoil of those waters. 5. The argument which has emerged is as to whether or not the duty to cooperate applies in relation to plans which were prepared before the Act came into force but which are the subject of examination afterwards. The competing contentions are as follows. The case for not applying the duty to co-operate 6. The argument that the duty to co-operate does not apply runs as follows. By virtue of the new Section 33A of the Planning and Compulsory Purchase Act 2004, the duty to co-operate arises in relation to the preparation of Development Plan documents 1 and applies to a local planning authority. The proponents of this argument contend that, as a result of the structure of the Planning and Compulsory Purchase Act 2004, the stages of preparation and examination are separate. Preparation is a stage which is covered by Section 19 of the Planning and Compulsory Purchase Act 2004 and contains within it a variety of matters to which regard must be had. However, it is contended that that stages ceases at the point where the document is, pursuant to Section 20(1) of the 2004 Act, submitted to the Secretary of State for 1 See Section 33A(iii)(a) - 5 -

independent examination. There are provisions in Section 22 of the 2004 Act which used to lock the Development Plan document into examination, albeit that these have now been reformed. However, the argument is that, once submitted for examination, preparation has ceased. 7. The point which then arises is that it is argued that, because of that distinction between preparation and submission for examination, and because the duty to co-operate applies at the preparation stage, if the Act was not in force at the time when the plan was being prepared then the duty could not be said to arise. Thus, the examination should proceed on the basis that it is not necessary for the Inspector to examine whether or not the duty to co-operate has been complied with. 8. This analysis is the one which it appears is favoured by PINS. It would appear that there is a legal briefing note within PINS which supports the contention that the duty to co-operate does not apply in relation to Development Plan documents prepared prior to the commencement of the relevant provisions of the Localism Act. The argument that the duty to co-operate does apply 9. The argument that the duty to co-operate does apply in relation to Development Plan documents which were prepared before the commencement of Section 110 of the Localism Act runs as follows. Firstly, attention is drawn to the subsequent provisions of the Localism Act 2011 and, in particular, Section 112. Section 112 is a further section inserting new legislation into the 2004 Act. Section 112 provides as follows: 112 Adoption and withdrawal of development plan documents (1) The Planning and Compulsory Purchase Act 2004 is amended as follows. (2) For section 20(7) (independent examiner must make recommendations with reasons) substitute - 6 -

(7) Where the person appointed to carry out the examination (a) has carried it out, and (b) considers that, in all the circumstances, it would be reasonable to conclude (i) that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, and (ii) that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document s preparation, the person must recommend that the document is adopted and give reasons for the recommendation. (7A) Where the person appointed to carry out the examination (a) has carried it out, and (b) is not required by subsection (7) to recommend that the document is adopted, the person must recommend nonadoption of the document and give reasons for the recommendation. (7B) Subsection (7C) applies where the person appointed to carry out the examination (a) does not consider that, in all the circumstances, it would be reasonable to conclude that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, but (b) does consider that, in all the circumstances, it would be reasonable to conclude that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document s preparation. - 7 -

(7C) If asked to do so by the local planning authority, the person appointed to carry out the examination must recommend modifications of the document that would make it one that (a) satisfies the requirements mentioned in subsection (5)(a), and (b) is sound. (3) For section 23(2) and (3) (adoption of development plan documents, whether as prepared or with modifications, must be in accordance with independent examiner s recommendations) substitute (2) If the person appointed to carry out the independent examination of a development plan document recommends that it is adopted, the authority may adopt the document (a) as it is, or (b) with modifications that (taken together) do not materially affect the policies set out in it. (2A) Subsection (3) applies if the person appointed to carry out the independent examination of a development plan document (a) recommends non-adoption, and (b) under section 20(7C) recommends modifications ( the main modifications ). (3) The authority may adopt the document (a) with the main modifications, or (b) with the main modifications and additional modifications if the additional modifications (taken together) do not materially affect the policies that would be set out in the - 8 -

document if it was adopted with the main modifications but no other modifications. (4) Omit section 22(2) (development plan document not to be withdrawn once submitted for independent examination unless examiner or Secretary of State directs that it be withdrawn). (5) In section 21 (intervention by Secretary of State) after subsection (9) insert (9A) The Secretary of State may at any time (a) after a development plan document has been submitted for independent examination under section 20, but (b) before it is adopted under section 23,direct the local planning authority to withdraw the document. (6) The amendments made by subsections (2) and (3) apply in relation to all adoptions of development plan documents that take place after the coming into force of those subsections, including an adoption where steps in relation to the document have taken place before then. 10. Attention is drawn in particular to the provisions of Section 112(6), which made plain that the new provisions inserted into Section 20 of the 2004 Act which affect the tests to be applied by an Inspector at the examination require those tests to be applied in relation to all adoptions of development plan documents that take place after the coming into force of those subsections, including an adoption where steps in relation to the document have taken place before then. 11. When one then looks back to see the changes affected in Section 112(2), the insertions into Section 20(7) of the 2004 Act require an examination of whether or not the duty to co-operate has been complied with. The effect, therefore, of Section 112(6) is to require the Inspector to apply the test of whether or not the duty to co-operate has been complied with even in relation to Development - 9 -

Plan documents where steps in relation to the documents were taken prior to the commencement of the Act. Thus, it is contended that the duty does apply, as compliance with it must form part of the examination prior to adoption. 12. The position, it is contended, is reinforced by the particular requirements introduced in the new Section 20(7B). By virtue of that subsection, the newly created power of the examiner to recommend modifications hinges on whether or not the examiner considers that the plan is unsound but nevertheless the duty to co-operate has been complied with. Only if the duty to co-operate has been complied with can the examiner recommend modifications to make the document sound. This therefore reinforces the significance of the duty applying prior to the commencement of the Act since, if it were the case that the duty to co-operate did not apply, it could be contended that modifications could be recommended even though one of the key tests for empowering the ability to make those modifications had not been scrutinised. Effectively, the provisions of Section 112(2) and Section 112(6) would have been rendered nugatory. 13. The argument is augmented by the point that it cannot be in any way unfair or unexpected that the duty to co-operate would apply since it has been known about and a feature of the Localism Bill for a very significant period of time and certainly for as long as it has been a feature of the legislation that the Regional Strategies would be revoked. A concluded view? 14. Clearly, any legal briefing from PINS in this matter cannot be definitive. The matter can only be ultimately resolved by a ruling in the High Court. Such a ruling appears some way off, as it would have to flow from a challenge in relation to the adoption of a Core Strategy at some point after January 2012. In the mean time, the authors prefer the view that the duty to co-operate does apply, in accordance with Section 112(6), to plans which were prepared prior to the commencement of the Act but the subject of examination after it came into force. It remains to be seen which is the definitive view. - 10 -

15. If it does apply the question of the content of the duty has then to be faced, together with the extent of the role of the Inspector at the examination. Is the duty (and the test for the Inspector) purely procedural or is it substantive? Some guidance will be provided by the finalisation of the NPPF, but the legal questions will remain at large. Costs in environmental cases: the present position 16. The effect of the Community Infrastructure Levy Regulations 2010 17. The provisions of Section 122 of the Community Infrastructure Levy Regulations 2010 have had an important practical impact on the consideration of proposals in relation to planning applications and, in particular, planning appeals where inspectors have sought rigorously to scrutinise the extent to which provisions in a Section 106 obligation might satisfy the rigours of the Regulation 122 requirements. Regulation 122(2) provides as follows: (2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is (a) necessary to make the development acceptable in planning terms; (b) directly related to the development; and (c) fairly and reasonably related in scale and kind to the development. 18. In the recent case of Derwent Holdings Limited v Trafford Borough Council [2011] EWCA Civ 832, a challenge was launched in relation to the validity of a planning permission granted by Trafford Borough Council to Tesco and Lancashire County Cricket Club. A joint application proposed development in two parts: firstly, a superstore on land owned by the Council and, secondly, the redevelopment of Old Trafford Cricket Ground as an improved stadium for international cricket. The proposal was that, if permission were granted, the Council would sell land to Tesco and the proceeds of sale would be passed to Lancashire County Cricket Club to subsidise their development. - 11 -

19. The challenge was based on the contention of the relationship between the two parts of the joint application and the materiality of the obligations secured by the planning agreement. In particular, the officers report, which dealt with the principle of development, noted that: Other than the proposed pedestrian link there is no physical link between the two elements of this application and as such each must be considered separately by the council when assessing the acceptability of the principle of development. 20. The development was described as not an enabling proposal but instead a cross subsidy proposal. The complaint was that, notwithstanding what had been set out in the committee report, by requiring the cross-subsidy to be included in a planning agreement for the issue of any consent there was an acknowledgement that the subsidy of the redevelopment of the cricket ground was necessary to make the development acceptable in planning terms. That was not only contrary to the committee report but it was also difficult to see how it could have been thought that the redevelopment of the cricket ground was necessary to make the superstore acceptable in planning terms. 21. The conclusion reached by Carnwath LJ was as follows: 15 Like the judge, I am unable to accept this argument. We are entitled to start from the presumption that those members who voted for the proposal were guided by the officers advice. If so, they would have understood that they should consider the merits of the two parts of the proposal separately. They would have found in the officers report sufficient reasons to conclude that, so viewed, they were acceptable in planning terms. At the same time they would have been aware that the proposals being put forward as not merely acceptable, but as carrying with it significant regeneration benefits, including the improvement of the cricket ground. The offer of a legal agreement to secure those benefits would no doubt have added to the attractions of the proposal. But that does not mean that it was regarded as necessary to offset some perceived planning objections. Nor is there anything in the officer s report - 12 -

to suggest that it was. There is nothing objectionable in principle in a council and a developer entering into an agreement to secure objectives which are regarded as desirable for the area, whether or not they are necessary to strengthen the planning case for a particular development. 22. As a result of this conclusion, the challenge was dismissed on all grounds, on the basis that the other complaints made were essentially parasitic on this central submission. 23. The conclusions of the Court of Appeal in paragraph 15 as to the legality of the Section 106 obligation in that case is somewhat difficult to square with the provisions of Section 122(2)(a), which specifically sets out that a planning obligation can only be a reason for granting planning permission if it is necessary to make the development acceptable in planning terms. How this obligation fell within that legal requirement is unclear from the conclusions at paragraph 15. Taking the conclusions in paragraph 15 at face value, it would appear that it is quite legitimate for a planning obligation to be taken into account which is not necessary to make the development acceptable in planning terms but simply desirable in terms of the impact on the area. Furthermore, an obligation, it would appear, can be taken into account even if it is not necessary in order to strengthen the planning case for a particular development. 24. The Court of Appeal s decisions leaves open for further consideration the distinction to be drawn between the provisions of Circular 5/2005 and Regulation 122, the one being relevant policy and the other the legal provisions. Ian Dove QC Gordon Wignall No5 Chambers No5 Chambers +44 (0) 845 210 5555 +44 (0) 845 210 5555 iand@no5.com gwi@no5.com www.no5.com www.no5.com - 13 -