Sevenoaks District Court v Secretary of State for Housing Communities And Local Government

The duty to co-operate in Planning and Compulsory Purchase Act 2004, section 33A, requires constructive, active and ongoing engagement on each strategic matter. It does not require the authorities to secure a particular substantive outcome, but it requires more than dialogue or discussion. The quality and timing of the engagement must maximise the effectiveness of plan preparation. Where unmet housing need becomes apparent, a planning authority must engage with neighbouring authorities early enough for that engagement to inform the plan. An inspector may conclude that the duty has not been discharged even if neighbouring authorities would probably have refused to accommodate the unmet need. Judicial review is confined to whether the inspector’s conclusion was rational and lawful.

Sevenoaks District Council challenged the examination inspector’s conclusion that the duty to co-operate had not been complied with in preparing the Sevenoaks District Local Plan. The plan provided for substantially less housing than the figure generated by the Government’s standard methodology. The inspector considered that the Council had failed to engage constructively, actively and on an ongoing basis with neighbouring authorities about the resulting unmet housing need, particularly before publication of the Regulation 19 plan.

The Council alleged that the inspector had failed to allow a margin of appreciation, confused the duty to co-operate with soundness, failed to consider material evidence, and gave inadequate or irrational reasons. The central issues were the proper statutory test, the timing and quality of the engagement required, and the intensity of judicial review.

1. Claim dismissed. None of the four grounds of challenge was made out.
2. The duty under section 33A of the Planning and Compulsory Purchase Act 2004 arises separately in relation to each strategic matter. It requires engagement that is constructive, active and ongoing, undertaken to maximise the effectiveness of plan preparation. It is not contingent on securing a particular substantive outcome, but it is not merely a duty to have a dialogue.
3. The inspector correctly focused on the strategic issue of unmet housing need. She was entitled to find that the Council became aware of the extent of that need after the Regulation 18 consultation, but did not engage meaningfully with neighbouring authorities until after the Regulation 19 consultation and shortly before submission of the plan. Engagement at that stage was too late to inform or influence plan preparation.
4. The duty to co-operate was distinct from the requirement that the plan be sound. The inspector assessed the quality and timing of the engagement, rather than requiring the Council to secure accommodation of the unmet need. The possibility that earlier engagement might have produced the same result did not cure the failure to engage at the appropriate time.
5. Following Zurich Assurance Limited v Winchester City Council [2014] EWHC 758 and Trustees of the Barker Mill Estates v Test Valley Borough Council [2017] PTSR 408, the inspector’s evaluative judgment attracted a substantial margin of appreciation. The court’s role was limited to deciding whether the inspector could rationally conclude that it was reasonable to find compliance or non-compliance.
6. The inspector had regard to the evidence, including statements of common ground, peer-review material, the views of neighbouring authorities and environmental constraints. Her reasons were clear, full, detailed and rational. The failure to make an earlier formal request was material because it deprived the authorities of a proper opportunity to consider the issue before the plan was settled.