Wealden Council’s Local Plan has been thrown out by a planning inspector because it failed one of the requirements for legal compliance, that of the Duty to Co-operate.
In addition there are “significant failings” in the plan, according to the inspector Louise Nurser, who conducted the first stage of an examination of the plan last year.
She says the Government’s National Planning Policy Framework expects joint working on areas of common interest to be “diligently undertaken” for the mutual benefit of neighbouring authorities.
But the inspector says in her report: “My central concern in respect of the legal compliance of the plan relates to the lack of constructive engagement with neighbouring authorities and Natural England in respect of impacts on habitats and landscape and in respect of the issue of unmet housing need in Eastbourne.”
The inspector says the council relied – against the advice of Natural England – on an emissions model which did not allow for emission improvements over time, a position which was “in scientific terms lacking credibility”.
She added there were other examples of “inadequate engagement” with Natural England and she raised concern about the way the council approached cross-boundary issues with other authorities.
The inspector said the council held significant amounts of data which could potentially be of use to other local planning authorities to support work on strategic the cross-boundary matter of air quality, with particular reference to impacts on the Ashdown Forest.
But, she said, the council did not share the information on a constructive basis with all its fellow members of the Ashdown Forest Working Group (AFWG).
The council was also criticised for delays which meant it was not in a position to sign a Statement of Common Ground produced by the AFWG at the “appropriate time”.
In addition a session, to discuss mitigation measures to offset alleged impacts on the atmospheric pollution of two Special Areas of Conservation, Lewes Downs, and Pevensey Levels, was held too late for the local planning authorities to undertake meaningful engagement as policies had already been drafted.
The inspector turned to unmet housing needs in Eastbourne, a severely constrained borough, both physically and due to significant infrastructure limitations to growth.
She said it was commonly accepted, including by Wealden, that Eastbourne was unable to meet all its housing and employment needs. It lay within Wealden’s Housing Market Area and shared a Functional Economic Market Area. As such, there was a close functional and geographical relationship between the two local planning authorities.
The inspector said: “The Framework, and Planning Practice Guidance, are explicit that local planning authorities should meet their own housing need and meet the needs of other authorities in the same housing market as far as is consistent with the policies set out in the Framework.”
But in a draft version of the Wealden Local Plan, dated March 2017 where the end date of the proposed plan period was brought forward from 2037 to 2028, the council no longer intended to provide for any of Eastbourne’s unmet housing needs.
No meaningful discussion
The inspector said there was no meaningful discussion at a meeting held in January 2018 between officers at Wealden and Eastbourne about how Eastbourne’s unmet needs could be met.
Louise Nurser said: “The change in the plan period and the presentation of constraints were simply presented to Eastbourne without proactive discussion from Wealden Council about how the issue of unmet needs could be addressed within the original plan period. There is no sign that there was any meaningful discussion of scenarios or alternatives.”
The council was accused of not responding constructively for further requests from Eastbourne to engage.
The planning inspector said her conclusions in regard to the council’s “inadequate record” in terms of engagement were endorsed by the representations of five neighbouring local planning authorities: Rother District Council, Eastbourne Borough Council and a group who put forward a joint representation, Lewes District Council, South Downs National Park Authority and Tunbridge Wells Borough Council.
The inspector said: “They argued that the council had failed to meet Duty to Co-operate in relation to air quality matters, cross boundary impacts on the Special Areas of Conservation, Eastbourne’s unmet housing and employment needs, and strategic infrastructure.”
Wealden asked the councils to withdraw their objections in relation to the Duty of Co-operation, citing examples of recent actions taken, but all five maintained their position.
The inspection said: “In conclusion I consider that the council has not undertaken constructive engagement with neighbouring authorities.
“The absence of such engagement means the submitted plan has not been shaped by an adequate consideration of the strategic issues discussed above, nor has the council adequately engaged with neighbouring authorities to assist in their plan-making processes.
“The Duty to Co-operate places a legal duty on local planning authorities to engage constructively, actively and on an on-going basis to maximise the effectiveness of Local Plan preparation in the context of strategic cross boundary matters.
“If a local planning authority cannot demonstrate that it has complied with the duty at the independent examination of the Local Plans, then the Local Plan will not be able tp proceed further in examination.
“I am sorry to have to tell you that it is my conclusion that the council has failed in this legal duty and that the submitted plan cannot proceed further in examination.”
The full report of the planning inspector can be seen here on the Wealden Council website.
See Wealden’s interpretation of the planning inspector’s report here: Wealden must build more houses.