THE DUTY TO CO-OPERATE

STRATEGIC PLANNING – INTRODUCTION

The plan-led planning system in England is administered beneath central government in Westminster by local planning authorities (LPAs) – usually district, borough, or unitary councils who prepare local plans for their areas.  Some forms of development are administered by county councils who are tasked with preparing Minerals and Waste plans for instance.  Unitary Councils perform all these functions. 

Under previous iterations of the planning system, there were formal strategic plan-making roles for County Councils and Regional Assemblies who co-ordinated planning policies across their county and regional areas through County Structure Plans and Regional Spatial Strategies.  More on these now defunct functions below. 

Since these county and regional tiers have been for the most part abolished, it is now for local authorities to organise and co-ordinate themselves to ensure that strategic, cross-boundary matters are planned for properly, through a statutory ‘duty to co-operate’.  

THE DUTY TO CO-OPERATE

The Localism Act 2011 placed a duty upon local authorities to co-ordinate on cross-boundary issues (e.g. transport, housing need/supply, Green Belt etc) with neighbouring authorities.  

This legal requirement means that when preparing their respective local plans, local authorities must demonstrate that they have consulted with other neighbouring authorities about strategic approaches to cross-boundary issues or risk having their plans delayed or dismissed by an Inspector at Examination.

There must evidence of this co-operation within the local plan evidence base and will be relevant on issues such as housing and employment to meet sub-regional needs and the delivery of strategic infrastructure. 

Conservative Government Proposed Repeal of the Duty to Co-Operate

Schedule 7 of the Levelling Up and Regeneration Act 2023 includes a provision that will make changes to the plan making process in England, including the repeal of the duty to co-operate. 

The Schedule is not yet enacted and will need secondary legislation.  During the latter part of 2023 and early 2024 this provision had affected how local authorities were dealing with co-operation with neighbouring authorities in their local planning. 

July 2024 – The Labour Government re-instate the Duty to Co-operate

Following the July 2024 general election, a new NPPF consultation setting out a range of planning reforms included an intention to retain the ‘duty-to-co-operate’ for the foreseeable future.   The consultation also indicated that a new strategic level of planning in England would return, probably part of a new Planning and Infrastructure Bill in 2025.

STRATEGIC POLICIES IN DEVELOPMENT PLANS

Chapter 3 of the the National Planning Policy Framework (NPPF) sets out the government’s policy requirements for plan-making across England. 

Paragraphs 20-27 of the NPPF prescribe how strategic polices are to be prepared and maintaining effective co-operation. 

Paragraph 20 of the NPPF states, 

‘Strategic policies should set out an overall strategy for the pattern, scale and quality of development, and make sufficient provision for:

a) housing (including affordable housing), employment, retail, leisure and other commercial development;

b) infrastructure for transport, telecommunications, security, waste management, water supply, wastewater, flood risk and coastal change management, and the provision of minerals and energy (including heat); 

c) community facilities (such as health, education and cultural infrastructure); and

d) conservation and enhancement of the natural, built and historic environment, including landscapes and green infrastructure, and planning measures to address climate change mitigation and adaptation.’

The NPPF requires that strategic policies look ahead, over a minimum 15 year period from adoption, to anticipate and respond to long-term requirements and opportunities, such as those arising from major improvements in infrastructure. 

Paragraph 23 of the NPPF describes how authorities should show broad locations for development on a key diagram, and land use designations and allocations identified on a policies map.

Strategic policies should provide a clear strategy for bringing sufficient land forward, and at a sufficient rate, to address objectively assessed needs over the plan period, in line with the presumption in favour of sustainable development.

This should include planning for and allocating sufficient sites to deliver the strategic priorities of the area (except insofar as these needs can be demonstrated to be met more appropriately through other mechanisms, such as brownfield registers or non-strategic policies).

SUB-REGIONAL PLANNING

Devolution agreements have granted powers to certain mayoral-led and combined authorities (for example, Liverpool City Region Combined Authority) to prepare Spatial Development Strategies.

The strategy and policies often cover themes that cross multiple boroughs or districts, delivering housing, employment, infrastructure, transport and biodiversity objectives. The London Plan is an example of a Spatial Development Strategy, providing policy levers which metropolitan boroughs must consider when formulating their Local Plans and when deciding planning applications.

Joint strategic plans prepared by local councils working together are another example of sub-regional, strategic planning. Examples are the Greater Manchester Spatial Framework or the Partnership for South Hampshire who’s member authorities have an agreed Statement of Common Ground in place to inform production of their emerging joint spatial strategy. 

REGIONAL PLANNING IN LONDON – THE LONDON PLAN

In London a three-tier structure to the planning system is retained – made up of the Greater London Authority, run by the Mayor of London and the 33 local, metropolitan boroughs as well as Neighbourhood Forums.

The Mayor of London has responsibility for strategic planning and is required to produce a Spatial Development Strategy, known as the ‘London Plan’.  This provides the broad strategy for the London area for a 15- 20 year period.

The current Mayor of London is Sadiq Khan.

NOW ABOLISHED – REGIONAL SPATIAL STRATEGIES – RSS

In the eight English regions outside of London, regional assemblies were formed by the Labour government in 1998 to undertake the role of strategic planning.

These were responsible for spatial planning policy and were tasked with preparing Regional Spatial Strategies (RSS) to replace Regional Planning Guidance (RPGs) and County Structure Plans as the strategic tier of planning policy in the system.

In June 2010, the incoming Coalition Government announced its intentions to abolish regional spatial strategies and return spatial planning powers to local government.

Regional Spatial Strategies (and their replacements, Regional Strategies) set targets and policies on ‘cross-boundary’ matters such as housing, employment and retail development across districts on a regional or sub-regional basis.

The English Regions

Regional Strategies were popular with those who favoured a co-ordinated, strategic approach to policy making. However, there were also many critics of the approach.  Regional Strategies were prepared by Regional Planning Boards made up of unelected members, which were considered by many to be unaccountable and undemocratic.

Local Authorities had to prepare a Local Development Framework (now replaced by Local Plans) in accord with the Regional Strategy for their area – or else their plans would be declared ‘unsound’ when they came to be examined by an independent inspector.

This meant that many local authorities had strategic housing and other targets, which often required unpopular greenfield or Green Belt land releases in their area, imposed upon them from above.

Regionally imposed growth was strongly opposed by communities in many local areas – particularly across the south east of England.  On a local political level, it became very difficult for politicians to support policies or applications which implemented regionally imposed policies that were unpopular with their electorate.  Inevitable accusations of NIMBYism came from those in the development industry.

Few authorities completed the preparation and adoption of their Local Development Frameworks (local plans) and consequently, housing targets were rarely met.  Across the country this has contributed to the slowest annual rates of house building since the Second World War and an acute housing crisis.

THE REVOCATION OF REGIONAL PLANS

When the Con-Lib Coalition Government came to power in 2010, one of the first actions of the incoming Secretary of State, Eric Pickles was to ‘revoke’ all Regional Strategies with immediate effect – with a promise to implement a replacement framework based on the principles of Localism and the Big Society.  Local areas would be able to determine their own housing targets and other policies, based on an assessment of local needs.  Democracy and accountability would be returned to the system and local communities would be in control of their own destinies.

Unfortunately for Mr. Pickles, a successful legal challenge by Cala Homes in 2010, (relating to a proposed housing development at Barton Farm in Winchester) had the effect of re-instating (or ‘un-revoking’) Regional Strategies.

However, this was only a temporary delay and with the exception of the London Plan, all Regional Strategies have now been revoked by the Government.

NOW ABOLISHED – COUNTY STRUCTURE PLANS

Until 2004, county councils had a legal duty to prepare, and regularly review, a ‘Structure Plan’ for their administrative areas. The ‘Structure Plan’ provided a consistent strategic level framework for the preparation of detailed local plans by district and borough councils and, in the case of minerals and waste planning, by the county council itself.  Structure plan policies formed part of the development plan, used as a starting point in the determination of planning applications.

The Planning and Compulsory Purchase Act (2004) altered the development plan process to concentrate strategic policy at the regional level (using Regional Strategies) and removed the requirement for county councils to produce structure plans.

The 2004 Act saved existing structure plan policies until 27 September 2007.  Only in instances where existing Structure Plan policies had not been superseded by other relevant national or regional policies were they ‘saved’ beyond this date by the Secretary of State.  Any policies which were not saved were effectively deleted.

Although Regional Strategies were brought in to replace Structure Plan policies, in some areas the RSs never formally reached adoption.  In these areas, structure plan polices were never replaced and therefore, saved structure plan policies still form part of the development plan.

NOW ABOLISHED – UNITARY DEVELOPMENT PLANS

In London and the metropolitan areas, and in a few non-metropolitan unitary areas, authorities have produced unitary development plans (UDPs), which combined the functions of former structure and local plans.

They were often prepared in two parts, comprising strategic and local elements.

UDPs, like Local Plans, allocated sites for housing, employment, retail or other uses and set out the policies which the authority will apply in deciding whether or not development will gain planning permission.

The 2011 Localism Act brought in a system that required unitary authorities to prepare local plans for their areas in place of UDPs.