Duty to Co-operate & TCP Regs 2012 - Public forum - Planning Advisory Service (PAS)

Not just a logical answer but clearly a pragmatic response is to say the regs are clearly lacking somewhere, or even the act itself. It cannot have been the intention that the Mayor of London would be consulted for anything that does not affect London, nor Marine Management Organisation for those authorities with no coastline! Yes at a quick reading "where appropriate" is missing unless we've missed it somewhere. And please surely no local authorities want to be consulted on other authorities plans when they are a long way away, unless you are Newark and Sherwood who seem to be on a crusade of their own! One further point that CLG might like to think about - I had to dig about fairly hard to even find that these regs had come out, perhaps news on the CLG site might have helped!

Completely agree on your point about advertising the fact that the new Regs have been published. Hopeless. I shall send at email to Alex Turner raising the issue above. Thanks for your feedback.

Nick would you mind posting the response you get from CLG here? This is something we have also been puzzled by! Thanks.

I would also appreciate seeing the CLG response to this. I suspect we may be directed to PCPA 2004 Section 33A (3) which mentions that the activities to which DTC applies are those which relate to a "strategic matter". A strategic matter is subsequently defined (in part 4) as affecting two or more areas, or as a "county matter". There does seem to be a need to make it clear that the bodies with which DTC needs to be demonstrated would be only those affected by such a strategic matter. Very confusing!

The email has been sent yesterday morning. Once/If I get a response, I'll be sure to share it here.

If you are proposing less housing than household projections derived figures suggest because of presumed suppression of inward migration then surely you have to consult every other LPA in the country because you are implying in order to meet the needs tests in the new NPPF - that they will have to have written agreement to take the extra housing to mee the shortfall in order to meet the duty to coop and soundness tests a & c. This is not a joke by the way - it is a live issue at several EIPs and inspectors have been sympathetic. The NPPF would not deliver the required housing unless this was the case.

I think the key wording is in 33A, namely: must cooperate with every other person....in maximising the effectiveness with which activities....are undertaken. If you firmly believe you are maximising the effectiveness of preparing your DPDs and other local development documents by attempting to cooperate with, for example, the Mayor of London when you work outside of London and boroughs adjoining London, then go ahead. Personally, I'd question that belief. I also note that in the original post 'cooperate' and 'consult' have been used interchangeably. I don't think they are the same thing. This is, as ever, only my opinion and certainly not a legal interpretation.

Adam I think you need to distinguish between the legal duty to cooperate - under section 33A - which is all about process from its wording, and the soundness tests that results from that A & D which is all about outcome - meeting larger than local needs etc. etc. The 33A test is not that high a bar. It is a duty to cooperate not a duty to agree. You need to show you have been willing and the PINS/DCLG legal interpretation is that it is not retrospective. I note the Barrister that challenged that position in BANE (that since royal assent you have to show at the point of submission that all your past activities, including those before assent met the test) has given up on this point. (sorry ive seen a forum posting but its lips my mind where). However the soundness tests are tests of outcome, to what extent do you meet strategic needs and opportunities, and is a much higher bar, If their is a failing here the inspector will look to see im sure to what extent the issues were discussed though process in order to satisfy the test of examining reasonable alternatives (the SEA issue) - so the soundness tests and the legal tests are somewhat intertwined. Of course there is an issue of significance. If you are Bedfordshire and proposing to ban landfill waste from London then yet bet you would need to consult the GLA for example. But if you are a district in Cumbria who migration assumptions and plan numbers would mean 0.2 people a year less migrating from Greater London I think any fair person would consider that de minimis. David Vickry, of PINS, is giving a detailed talk on the duty at a conference in a few days which should be one to watch.

Andrew, You're right that it's as much about impact than geography. I think the original question was whether the regulations 'instruct' you to cooperate with everyone else. That's why I was referring to the 'maximising the effectiveness' part of the regulation. As I read it, they instruct you to cooperate with anyone in your preparation of a DPD with whom you believe that such cooperation will be maximinsing the effectiveness of that DPD. It isn't perhaps as clear as saying 'as appropriate', but I believe it amounts to the same thing.