“Section 20 of the Planning and Compulsory Purchase Act 2004 requires that a Local Planning Authority must not submit a Local Plan for Examination unless it is ready for independent examination. To be ready, the Local Plan must be compliant with the requirements of the Planning and Compulsory Purchase Act and Regulations and, most importantly, it must be "sound".
To knowingly submit a Local Plan which is not sound would be unlawful.
Taken as a whole, the NPPF sets out the meaning of sustainable development in both plan making and decision taking. The test of soundness is explained in the overarching paragraph 182. This is not a menu to pick and choose, it must be:
Positively Prepared Justified
Consistent with National Policy
This Council is fully aware that the proposed submission Local Plan does not meet any of these four tests.
The following is a list of some, but not all, reasons why the Local Plan is not sound:
1. The Council is not meeting or even seeking to meet its objectively assessed housing need, as required by paragraphs 14 and 47 of the NPPF. This is admitted by the Council at paragraph 4.10 of today's Submission Local Plan Report.
2. The Council does not have a five year housing supply as required by paragraph 47 of the NPPF.
3. The Council does not have any flexibility in its housing supply, as required by paragraph 14 of the NPPF.
4. The Council is failing to identify specific deliverable sites to meet its housing requirement as required by paragraph 47 of NPPF.
5. The Council is rejecting sites which it has found to be suitable, available and achievable in highly sustainable locations, for what appear to be political rather than planning reasons.
6. The Council's housing trajectory is delaying the delivery of housing to the back end of its plan period, including sites which are not developable sites as defined in footnote 12 to paragraph 47 of NPPF. This includes HAT1 (SDS5) and Symondshyde (SDS6), both of which should be removed from the Local Plan until the Council can provide evidence of suitability and deliverability.
7. The Council is seeking to use a perceived lack of primary school capacity in the large excluded villages as a reason not to allocate sites which it has found suitable, available and achievable, in the most sustainable locations in the borough. However, this Council is now fully aware that its assessment of primary school capacity, based on a generic county wide pupil yield is wrong. The Council is required by paragraph 182 of the NPPF to positively and objectively assess its infrastructure needs and by paragraph 158 to base its Local Plan on the most adequate , up-to-date and relevant evidence. It is presently refusing to do so.
8. The Council's most senior and influential members appear to have controlled the preparation of this Local Plan at every stage, with the central objective not to develop any significant new housing in Brookmans Park, whilst caring little for the rest of the borough, as witnessed by the allocation of sites at Panshanger and Symondshyde, which are comparatively or totally unsuitable, particularly when compared to the highly sustainable large villages to the south of the borough.
The Good Councillor's Guide (Code of Conduct) says in Section 5:
"You should act objectively, impartially, fairly, on merit and represent the whole community, not just those in your own ward".
9. The Council is now suggesting an "early review" of the Local Plan. This is not to satisfy the government's requirement to keep the plan up to date, but because the Council is aware that its submission Local Plan is not sound.
10. The Procedural Practice in the Examination of Local Plans explains the pre-submission requirements for a Local Plan in Section 1. It says:
1.1 LPAs should rigorously assess the plan before it is published to ensure that it is a plan which they think is sound. The plan should focus relentlessly on the critical issues and the strategies to address them, paying careful attention to deliverability and viability. This approach may raise uncomfortable questions but the whole point of the plan is to address critical issues as far as possible.
1.2 The Planning and Compulsory Purchase Act 2004 specifically provides that a LPA must not submit the plan unless it considers the document is ready for examination.
1.3 LPA's are urged to complete a rigorous and objective assessment of their plan in order to satisfy themselves of the legal requirement in Section 20 (2) of the 2004 Planning and Compulsory Purchase Act.
11. This Council has been formally and regularly notified of important decisions in respect of Local Plans which have been found unsound. These include Planning Inspector Reports, High Court Judgments and Court of Appeal Judgments, all of which this Council is choosing to ignore.
The correct procedure is to prepare an addendum to repair the errors and omissions in the Local Plan, which would then require public consultation. Whilst this might take the Council 8 to 10 weeks, it would be far more efficient than submitting a Local Plan which is not sound.
So the Councillors and the planning officers are fully aware that this Local Plan is not sound and it is not ready for submission.
To submit the Local Plan for examination in its present condition will not comply with the statutory requirements of the Planning and Compulsory Purchase Act 2004. As such the submission of this Local Plan will be unlawful and will expose the Council to the risk of legal challenge and costs.
In the light of the information I have conveyed to the CHPP, would the elected members here today please confirm to the community that they will personally pay the additional costs that might be incurred by this Council if it decides today to submit a Local Plan for Examination, which it knows or should know is unlawful?”
Answer by the Chairman
“The Officer report considers each of the tests of soundness in turn and considers that the Local Plan is capable of being found sound in its current form. This is a matter that Members are being asked to consider tonight. And ultimately this is a question which will be addressed by the Inspector.
The Audit Commission Act 1998 surcharge, which was the mechanism by which councillors could once be surcharged to recover public money, was repealed by Section 90 of the Local Government Act 2000.