St Albans begins legal challenge of 'duty to cooperate' failure findings

It has applied to the High Court for permission to seek a judicial review of the decision by planning expert David Hogger, which it is challenging on five separate grounds.

Section 33A of the 2004 Planning and Compulsory Purchase Act requires local planning authorities to "engage constructively, actively and on an ongoing basis" with neighbouring authorities on matters relevant to land use planning. Authorities are not, however, required to come to agreement.

Last week, another planning inspector found that Castle Point Council in Essex had not met its duty to co-operate when drawing up its own local plan. The inspector in this case said that the council had "decided to 'plough its own furrow'" when setting housing targets for the area, and had not taken into account the implications of its decision for neighbouring communities.

Planning law expert Elizabeth Wiseman of Pinsent Masons, the law firm behind Out-Law.com, said that the conclusions in both cases demonstrated the "importance" placed on the duty to co-operate by planning inspectors.

"It is clear that local authorities cannot be selective over with who, or on what issues, it chooses to cooperate," she said. "Furthermore, keeping silent is simply not an option."

"Whilst the housing crisis continues, there is a need for local authorities to engage with one another on the issue of housing. Many argue that the duty to cooperate is not the answer: for a start, it does not require agreement. One potential answer comes from the devolution agenda and the creation of 'city regions' with planning powers, such as the Manchester combined authority. This provides for a return to regional planning to cater for strategic issues such as housing," she said.

Although the St Alban's case was "just one in a line of local plans that have been refused due to the failure to comply with the duty to cooperate", its decision to challenge the inspector's findings was "unusual", she said.

"This may provide the court with an opportunity to bolster the duty, but we will have to wait and see whether they choose to do so," she said.

St Albans submitted its draft SLP to the Department for Communities and Local Government (DCLG) for approval last year. The plan sets out the council's proposed policies on development in the district until 2031; and identifies land for new housing, infrastructure, commerce, industry and social amenities.

The council is challenging the inspector's "flawed" conclusions on five grounds. These include its belief that the inspector took "immaterial considerations" into account when identifying the strategic issues within the SLP; that he failed to take into account certain parts of the plan-making process when reaching his conclusions on the duty to cooperate; and that he made conclusions on the soundness of the SLP which were wrong.

Council leader Julian Daly said that St Albans remained "committed to meeting with the councils which raised concerns so that we can understand and address their positions".

"I will continue to work closely with the other parties' spokespeople in the development of the council's approach," he said.