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St Albans loses legal challenge over 'duty to cooperate'

St Albans District Council has lost a legal challenge to a planning inspector's decision that it did not meet its duty to cooperate with neighbouring planning authorities when drawing up its draft Strategic Local Plan (SLP).14 Jul 2017

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.

Inspector David Hogger recommended the plan should be withdrawn in September 2016 after objections from Dacorum Borough Council, Hertsmere Borough Council, Three Rivers District Council, and Watford Borough Council, who said that the St Albans authority had not worked with them when planning thousands of houses close to their own infrastructure.

St Albans District Council had challenged what it called the inspector's "flawed" conclusions on five grounds. Those included 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.

In its judgement, the High Court ruled instead that the inspector had "fully appreciated the issue" of what should be considered when judging compliance with the duty to cooperate.

Under section 33A of the Planning and Compensation Act 2004, local planning authorities (LPAs) are required to demonstrate evidence of having made every effort to co-operate with regard to issues with cross-boundary impacts. Whilst this is a different question to the 'soundness' of the plan, as in this case, it can lead to an indication that the plan will be found un-sound and so LPAs are invited to withdraw their draft plan. 

St Albans District Council had applied to the High Court for permission to seek a judicial review of the inspector’s decision that the duty to co-operate had not been met, arguing that it had discussed the SLP with the other authorities, with particularly good progress having been made on economic and employment issues, but that they had been unable to reach agreement on the fundamental issue of housing need..

The High Court, in its decision, re-stated the principle that the duty to cooperate is not a "balancing" test, so while it said it was positive that St Albans District Council had undertaken economic cooperation , it had not cooperated on many of the planning topics and strategic priorities that informed the development needs as a whole of the other authorities.

Planning expert Matthew Fox of Pinsent Masons, the law firm behind Out-Law.com, said: "This case is a useful reminder and assessment of the principles that LPAs need to take into account in order to ensure they comply with the duty to co-operate. The judge focused on whether the Council's co-operation with its neighbours had been effective, constructive, and ongoing; and stated its failure was neither robust nor comprehensive, with meetings essentially only taking place to deal with 'big picture' issues."

"It also highlights the crucial importance of seeking to agree Housing Market Areas at an early stage, including the methodology to do so. Here, the Council stuck with the conclusions of its consultants in this regard, and did not appear to move at all in light of the differing view of the neighbouring authorities – there was the implied criticism throughout the inspector’s decision of this approach," he said.