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Why is the Duty to Cooperate being abolished?
In many ways, the Planning for the Future white paper tells us what we already know: that, on the whole, the Duty to Cooperate does not work. While the Duty is also relevant to employment, industrial and other forms of development, it is largely focused on the issue of housing delivery. In this country, we have constantly failed to plan for, and to deliver, the number of houses that we need and the Duty to Cooperate has done little to ensure that shortfall in one area is made up elsewhere.
The government’s acknowledgement that the Duty to Cooperate does not work is hugely significant and denotes a marked shift away from the 'make do and mend' approach. While there are a few examples of where the Duty has succeeded (for example, in East Riding of Yorkshire and Hull, and in Warwickshire) it is outweighed by the sheer number of examples of where there have been failings, including in Birmingham, Bristol, Sussex and London.
Delivering the houses that we need is a pressing issue for the government. It has recently indicated that this needs to be addressed through building 300,000 homes a year. This is a significant target. The last time we reached this magnitude of housing delivery was some 50 years ago, in 1969. Since then, measured against that threshold of 300,000 a year, there has been a significant shortfall in delivery. The shortfall amounts to some six million homes; homes we have failed to deliver against that target, accentuating the housing crisis more and more each year.
What is the alternative suggested in the white paper?
If we move away from the Duty to Cooperate, the natural answer is to return to regional spatial planning. But there is a problem. Regional spatial planning was abolished by the government in 2010, as a Conservative Party election promise. That makes it very difficult for this government to return to regional planning which it dismissed as top-down and undemocratic.
The white paper does not, in fact, suggest what will replace the Duty to Cooperate. So, we have no idea. The white paper says the government will use the Standard Method to set a figure for each LPA, informed by taking account of policy constraints, such as Green Belt. But there is no explanation of how that will work. There is no mechanism to show how the figures will be redistributed between different authorities taking account of policy constraints.
The critical issue of policy constraints
It is these policy constraints which are key here. They feature heavily under the present system. The government has set a national target of 300,000 new homes a year. But that is only just reached under the revised second version of Standard Method (SM2), issued in December 2020. And crucially, this is before any policy constraints are applied. For plan making, paragraph 11 of the NPPF allows LPAs to reduce their housing requirement because of constraints such as Green Belt. That means the actual realised national housing target will be well below 300,000, and so will delivery. That is because there are extensive constraints across the country.
Possible solution: A move to county planning
It follows that to get to 300,000 new homes a year (taking account of constraints) some form of readjustment across different LPA areas is required. This used to be done by regional strategic planning boards. But as outlined above, that is unlikely to be a solution favoured by this government.
More likely is a return of some form of county planning. That is certainly the direction of travel for which the government seems to be aiming. For some time now, it has been encouraging all district, borough and city councils within a county to merge into a single unitary authority. This is for a variety of reasons including costs saving and administrative efficiency. In some areas, a full new county authority has been created, such as in Cornwall. Elsewhere it has happened in part, such as the two combined authorities in Cheshire (Cheshire East and Cheshire West) or in Wiltshire, where the whole county is a single authority apart from the main city of Swindon.
There is plainly more scope to meet identified housing - as set out in the Standard Method – but at the county level. While, at present, it is sometimes the case that entire districts or boroughs are dominated by Green Belt or Areas of Natural Beauty (AONB), there are few areas, where such constraints apply across the whole county. This is, perhaps, with the exception of Surrey which is largely constrained by Green Belt. On the whole, however, county-level planning provides a real solution in most parts of the country for meeting housing needs whilst also taking account of constraints.
What to do about a problem like London?
That still leaves London. Under SM2, London’s housing need is now calculated at nearly 100,000 new homes a year. But London boroughs, collectively, have never delivered that. The most that has been achieved in any one year in the last 20 years, is 39,000 new homes. London’s inner boroughs are all physically constrained by other boroughs and the outer boroughs are all constrained by Green Belt. The government hopes that redundant offices and town centre uses will solve the problem. But there is no tangible evidence to support delivery at the rates required. London needs helps from its neighbours. Which is why we do need regional planning. Something that Boris Johnson advocated when he was the Mayor of London.
Chris Young QC
Chris is widely acknowledged as one of the leading planning barristers in the country, placed in the top three in Planning Resource’s top rated planning silks 2020. He acts for all of the UK’s leading house builders and many of the major land promoters and has an enviable track record at planning appeals.
Known for his work in the residential sector, Chris is advising on some of the largest development proposals in the UK, including several new settlements such as Cattal near Harrogate, Sibson Garden Village in Huntingdonshire and a 19,000 home proposal south of Bedford on the Oxford to Cambridge railway line and a number of major urban extensions. Chris also has extensive experience of promoting care home villages, large scale logistics parks, retail and employment developments.
