PINS chief says inspectors’ “hands are tied” on duty to cooperate, despite Government call for flexibility

Matthew Pennycook wrote to PINS earlier this month, urging inspectors to treat local plans submitted in the current plan-making system "with an appropriate degree of flexibility".

He made specific mention of the duty to cooperate, writing: "In advance of the new plan-making system and mechanisms for cross-boundary cooperation coming into force, the final set of local plans being delivered within the current system remain essential to facilitating the effective delivery of housing, jobs and infrastructure.

"It is therefore critical that Inspectors approach examinations of current system plans with the appropriate degree of flexibility.

"The evidencing of expectations to establish whether the legal and soundness tests have been met – including with respect to the Duty to Cooperate – should be proportionate to the context in which plans in the existing system are being prepared."

However, in a response to the letter on Thursday (30 October), PINS chief executive Paul Morrison said some local authorities have "not engaged in the constructive, active and ongoing way required in legislation" regarding the duty.

He wrote: "You will be aware that the Duty to Cooperate has caused difficulties in several examinations recently. In some instances, the issue relates to the production of evidence to demonstrate compliance, and in those cases my Inspectors will continue to take a proportionate approach.

"With these instances in mind, I welcome the emphasis given in your letter to the advice in the Planning Practice Guidance relating to the Duty to Cooperate and the evidence that local authorities should produce to demonstrate compliance.

"In other instances, however, the issue has been that the authority simply has not engaged in the constructive, active and ongoing way required in legislation. As you appreciate, where that is so, the Inspector's hands are tied."

Morrison added: "In my view, the fact that Inspectors are unable to remedy such shortcomings can be a blocker in the current system, and for operational reasons I welcome the absence of this feature in the new system.

"I would note that replicating that arrangement for the current system would increase the degree to which Inspectors are able to exercise flexibility and bring plans through examination to adoption."

Morrison also welcomed the revocation of a 2014 ministerial letter, saying it would provide inspectors with the latitude to ensure local plans meet the needs of their communities by considering a 'fuller range of options'.

He added that PINS has now launched a new pre-examination checklist — currently being deployed through its Advisory Visits programme — which is beginning to be taken up by local authorities and has received positive feedback so far.

The chief executive said he would keep the Minister updated on how the process rolls out more widely.

The exchange comes a week on from two councils in Oxfordshire calling on an inspector to rethink warnings that they had failed in their duty to cooperate, in light of Pennycook's letter.

An inspector had previously recommended that South Oxfordshire and the Vale of White Horse councils withdraw their joint local plan over concerns about the duty.

Commenting on Pennycook's correspondence, Cllr David Rouane, Leader of South Oxfordshire District Council, said the "new steer from the government seems quite clear to me – Inspectors should provide a degree of flexibility during the examination process to give good local plans like ours every chance to be adopted."

Adam Carey