Ian Dove QC and Thea Osmund-Smith acting on behalf of Lion Court Homes successfully submitted that Coventry City Council failed to discharge it’s duty to co-operate, as required under s 33A of the Planning and Compulsory Purchase Act 2004, and therefore the Plan was found to be unlawful.

On 1st February 2013, in response to the Inspector’s concerns about the Council’s failure to discharge the duty, the parties engaged in a preliminary hearing session to enable the Inspector to reach a conclusion on the matter. 

The situation in Coventry is highly unusual, if not unique, in that the Council has withdrawn a Core Strategy that was found sound in 2010. The withdrawn Core Strategy made provision for some 33,500 houses, whereas the Plan significantly reduced this to 11,373. One of the reasons, the Council submitted, was the collapse of the sub-regional agreement which underpinned the previous Core Strategy. The Plan only seeks to make provision for Coventry’s own requirements, whereas the Core Strategy looked wider. It has been submitted that a change in political control has had a bearing, particularly in relation to the agenda for the greenbelt.

Instead of engaging in an analysis of what is expected from the duty, on which there is still considerable ambiguity, the Inspector embarked upon an analysis of what the Council actually did. Broadly speaking the Council sought to cooperate with local planning authorities in the metropolitan area through its involvement with The Metropolitan Area’s Duty to Cooperate and Finish Group and in doing so discussed and remained at loggerheads on soundness but failed to discuss lawfulness altogether, in particular there was nothing direct or specific said about housing numbers in the Plan. Coventry CC also sought to cooperate with local planning authorities in Warwickshire through its membership of The Coventry, Solihull, Warwickshire Association of Planning Officers. In this endeavour they yet again engaged in conversation about whether the “right” approach was taken to housing requirement assessment yet failed to consider lawfulness. 

The Council did not treat the introduction of the duty to cooperate or the publication of the Framework as a prompt to renew its efforts to produce a joint SHMA, which was very important based on: the need for effective cooperation bearing in mind the breakdown in the sub-regional agreement that underpinned the withdrawn Core Strategy; the abrupt change in approach towards housing provision could, on the face of it, have an effect on neighbouring local planning authorities; the emerging assessment of housing need, unlike neighbouring councils, was well below that of Phase II Review of the RS for the West Midlands (which shows inconsistency across the housing market) and two Councils having expressed concern about the apparent under provision. 

It is for, inter alia, these reasons that while the Inspector agreed there was evidence that the duty was not ignored, the Council did not engage constructively with neighbouring local planning authorities on the strategic matter of the number of houses proposed in the Plan and consequently it has not sought to maximise the effectiveness of the plan making process.

The Inspector made reference to the potential implications of his decision yet felt no other conclusion could be reached. The options for the Council are to receive the Inspector’s report or in the alternative, choose to withdraw the Plan from submission to an appropriate stage of preparation to enable the Council to seek to remedy any defects which have been identified. 

Please click here to view the profiles of Ian Dove QC and Thea Osmund-Smith