When are you past "preparation stage" as far as the Duty and 'November 2011 - Public forum - Planning Advisory Service (PAS)

I may be missing something but, as far as I can see, your plan is in submission when you have submitted it to the Secretary if State for independent examination and not before. Publication and pre-submission consultation both take place before submission.

Yes, but the Duty applies to “Preparation Stage” and it may be argued that Regulation 19 is not preparation as it is not part of Regulation 18. It is publication of the draft submission document therefore does it qualify under Section 19 or Section 20 of the Planning and Compulsory Purchase Act? Under S33A clause (3)(e) it refers to activities which support plan preparation, which could only reasonably occur at the plan preparation stage, not later i.e. when you are developing policies not publishing a draft plan which you consider “sound” and ready for adoption (if successful at examination). Considering that S33A is not retrospective, and therefore cannot impose an obligation which did not exist prior to plan submission and if you have gone beyond plan preparation stage prior to 15th November 2011 i.e. you have published a plan that you consider sound but then owing to circumstances submit it after 15th November should you be covered by regional plan preparation or should the duty apply to you, and you have to comply retrospectively (even though all preparation took place prior to the enactment)? Or would it in fact only to apply to any subsequently work that you may have to do between publication and submission if necessary i.e. only preparation carried out after 15th November 2011?

I would strongly recommend you take legal advice if you are considering using these arguments to rebut criticisms over duty to co-operate. 1) The position is by no means clear 2) If you have published before Nov 2011 and the plan is only now coming before an Inspector, even if it was sound then, changes will almost certainly be needed - has the plan gone forward completely unchanged? 3) Whatever the legal technicalities, the Government clearly intends LPSs to co-operate and inspectors are taking a hard line. In the light of the above it seems to be that you would be better off co-operating and demonstrating co-operation. 4) There is a very high price for being wrong on this.

Is the legislation actually refering to the 'preparation stage' or simply to the 'preparation of' the plan? If it is the latter, then isn't the word 'preparation' just being used in a general sense in that the duty applies throughout all stages whilst the plan is being 'put together/worked on/prepared', up until examination when it has to stop?

Perhaps this provides another perspective (which is different from my first thoughts) and only came into force two months after Section 110 i.e. 33A: Section 112(6), which made plain that the new provisions inserted into Section 20 of the 2004 Act which affect the tests to be applied by an Inspector at the examination require those tests to be applied “in relation to all adoptions of development plan documents that take place after the coming into force of those subsections, including an adoption where steps in relation to the document have taken place before then.” The effect, therefore, of Section 112(6) is to require the Inspector to apply the test of whether or not the duty to co-operate has been complied with even in relation to Development Plan documents where steps in relation to the documents were taken prior to the commencement of the Act. I'm still not completely convinced about when "preparation" ends and the situation for those that have gone past preparation stage and what that would legally be defined as under the Acts and Regulations. As you mentioned legal advice is probably necessary. Any further consultation after November 2011 would of course be(Regulation 19) is part of "preparation" or "submission" i.e. Section 19 or 20 or something other that does not sit conveniently in either camp and therefore is open to interpretation and the High Court.

further to my last post which didn't all upload... "Any further consultation after November 2011 would of course be subject to the duty to cooperate. Howwever I am still to be convinced whether "publication" (Regulation 19) is part of "preparation" or "submission" i.e. Section 19 or 20 or something other that does not sit conveniently in either camp and therefore is open to interpretation and the High Court."

Hi, I think preparation ends on submission. I don't see any grey area here.

HI In light of the above what definite evidence to do you have? Would you class "publication" as part of the preparation stage then even though it is seperate and technically is the publication of a "sound" plan for exmination? Thanks

Hi Matthew, There is a really important point here. I think you risk running into SA challenge if you suggest that preparation has finished on publication. A published plan at Reg 19 should not be presented as the ‘final plan’. A local plan must be presented as a draft for consultation to comply with the requirements of the SEA regulations. It must be a genuine consultation that offers the scope for further changes, if appropriate. I know that the understanding was that the local authority is publishing the plan they believe to be sound. However, this was originally intended to distinguish publication from issues and options or (the then formal) preferred options consultations. The point about SEA regulations is key.

The process was changed a few years ago so that the period for representations preceded submission and not the other way around. This was so that if there was any representation that the planning authority thought could derail the plan, they could delay submission and work on addressing the issue before they moved forward. This has to mean that the Duty to Co-operate also ends on submission and not on publication.