Has the duty to cooperate been adequately followed in this instance and do you envisage decisions in recent cases such as Solihull Met Borough Council and the pending court case involving Lichfield Council as lending support to any legal challenge by Project Fields?
The objectively assessed level of housing need in Birmingham is for around 89,000 dwellings. Local residents argued that the duty to cooperate required the city council to identify where any shortfall in housing provision would be met through allocation of land in neighbouring local planning authority (LPA) areas. This would have delayed the examination of the BDP until those adjoining areas had undertaken their own local plan reviews.
The council relied on a commitment from seven neighbouring authorities in the housing market area (HMA) to review their adopted or emerging local plans should this be necessary to address any shortfall. The inspector accepted this, as well as requiring some modifications to the BDP to reflect the duty to cooperate: a policy spelling out that provision would need to be made to meet the shortfall within the plan period in the Greater Birmingham HMA; and a requirement for the council to monitor housing land supply and delivery in the city and in neighbouring authorities and to take an active role in promoting appropriate provision across the HMA. If sufficient housing land does not come forward, the BDP will be subject to a full or partial review.
The Solihull case (Solihull Metropolitan Borough Council v Gallagher Estates Limited  EWCA Civ 1610,  All ER (D) 214 (Dec)) is not particularly helpful on duty to cooperate, as its focus was on the prior question of the correct approach to identifying the housing requirement in a local plan. The key decision is the recent case of Trustees of the Barker Mill Estates v Test Valley Borough Council  EWHC 3028 (Admin), in which Mr Justice Holgate set out the correct approach to legal challenges under PCPA 2004, s 113 based on the duty to cooperate. The judge emphasised that the question of compliance with the duty to cooperate is a matter of judgment for the inspector. Furthermore, the legislation imposing the duty to cooperate affords a margin of appreciation to LPAs, which must not be subject by the court to intrusive review. Accordingly, the court’s role is limited to reviewing whether the inspector could rationally make an assessment that it would be ‘reasonable to conclude’ that the LPA had complied with the duty. This is quite a limited ground of review.
Is there a danger that this could lead to a ‘stepping stone’ to further development on West Midland’s green belt as opposed to identifying suitable brownfield sites to build new homes?
The inspector examining the BDP was at pains to limit the release of green belt land and specifically found that there were no other substantial areas of greenfield or green belt land in Birmingham that should be considered for development. Nevertheless, there will be pressure for further releases of green belt land. The BDP establishes that there is a high level of housing need—89,000 dwellings—and that the supply of land in Birmingham is a long way short of meeting that need. The duty to cooperate and various policies in the BDP require other authorities in the West Midlands to assist in providing 51,000 dwellings over the plan period. That will inevitably put pressure on the West Midlands green belt.
What are the likely implications for other developers and local planning authorities?
The Secretary of State’s decision to lift the ‘hold’ on the BDP and facilitate the release of green belt land, despite very strong local and Parliamentary opposition, is an indication of the government’s commitment to building more houses. It may embolden developers with sites on the green belt, and sends a message to local authorities that large strategic releases of green belt land will be supported where there is a high level of housing need.
Interviewed by Evelyn Reid.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.