Overall at the inquiry, the inspector has to consider:
- 'Soundness' of the plan, and, since the introduction of the Localism Act,
- a 'Duty to Co-operate' with other local authorities and other public bodies, when drawing up the plan.
However, only the latter has been considered so far at the EiP, and below.
The Duty to co-operate 
1. The South East Waste Planning Advisory Group (SEWPAG) and the East of England Waste Technical Advisory Body (EoEWTAB), comprising the waste planning authorities of their respective areas, submitted representations about the North London Waste Plan (NLWP) and also a joint statement to be considered in the Examination at the hearing session on Main Matter 1: Legal Issues. In the submissions, they raised the “duty to co-operate” and claimed that the requirement had not been met by the NLWP..3. There is no dispute about co-operation between the 7 North London Boroughs, other London Boroughs or other persons.
The Substance of the Submissions
Application of the duty to co-operate
4. SEWPAG and EoEWAB jointly claim the NLWP has failed in the duty to co-operate in that it has failed in its obligation “to engage, constructively, actively and on an on-going basis” with regard to the development of the Plan. The Councils have not engaged actively with the planning authorities outside London when preparing the Plan and no evidence has been adduced to show any such co-operation.5. The Councils responded, accepting that in relation to the preparation of development plan documents, S33A “imposes a duty on specified bodies to co-operate with one another if there are strategic matters planned in the Plan”. They also submitted that S33A of the 2004 Act defines a “strategic matter” very narrowly. The relevant definition is “sustainable development or use of land that has or would have a significant impact on at least two planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas…. .”7. Moreover, the Councils submitted that a “planning area” as defined in the Act, does not include County Councils such as Essex, Oxfordshire, Hertfordshire, Surrey, Buckinghamshire and Northamptonshire. They are non-qualifying Councils for the purposes of the Plan.8. The NLWA supported the Councils and added that in order to demonstrate that the duty was engaged in relation to areas outside London, it would be necessary to establish that policies for development or use of land would have a significant impact. No evidence has been produced to demonstrate such an impact.
9. S33A (1) states that “… each person who is: (a) a local planning authority, (b)…., or (c) …, must co-operate with every other person who is within paragraph (a), (b) or (c) … in maximising the effectiveness with which activities within subsection (3) are undertaken.”10. Subsection (3) indicates that the activities within this subsection include “(a) the preparation of development plan documents, and (e) activities that support activities within any of the paragraphs (a) to (c), so far as relating to a strategic matter.”11. Subsection (4) defines “a strategic matter” for the purposes of subsection (3) as “(a) sustainable development or use of land that has or would have a significant impact on at least two planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas, and (b) sustainable development or use of land in a two tier area if the development or use (i) is a county matter, or (ii) has or would have a significant impact on a county matter.”12. The definition of “planning area” in Subsection (5) includes “(a) the area of – (i) a district council (including a metropolitan district council), (ii) a London borough council, or (iii) a county council in England for an area for which there is no district council, but only so far as neither is in a National Park nor in the Broads, (b) …”14. The Councils also submit that the “planning area” where there has to be a significant impact does not include county councils if they have district councils within them. I have had regard to this interpretation of S33A but, in any event, a district council (including a metropolitan district) is defined as a planning area. Accordingly, at the very least, notwithstanding that waste management is a county matter in a two tier area, I consider that where there is (or could be) a significant impact involving a strategic matter, there would be a duty to co-operate with either the county council or the district council where at least two planning areas were affected. Additionally, county councils which are waste planning authorities would qualify as a “person” with whom there must be co-operation under S33A(1)(a) because they are the local planning authority for waste management.15. Finally, I turn to the submission by the Councils that the Plan does not propose any development or use of land which would have a significant impact outside the 7 Boroughs. The Councils reinforce this claim by referring to the lack of any proposal for a new waste site on the border of the Plan area and then examining each of the policies in the Plan. The policies would have the effect of continuing the waste uses at sites in two lists (Schedules A and B) and proposing allocations at sites in Schedule C. The Councils state that new waste development on Schedule C sites would have to satisfy other policies in the Plan and, in so doing, would not have any significant impact on planning areas outside the 7 Boroughs. I do not dispute their submissions on this point. Furthermore, I have no evidence to dispute the claim that the existing Schedule A and B waste sites do not give rise to significant impacts on particular planning areas outside the 7 Boroughs.16. Nevertheless, this stance ignores the fact that waste which arises in the NLWP area is being exported to be managed elsewhere and the cumulative effect of the policies in the Plan is to perpetuate the pattern. Indeed, as the NLWP acknowledges, “However, even at the end of the plan period, waste will continue to cross boundaries for treatment.”(para 2.31); and “There are no sites for landfill in north London. Historically the area has been reliant on landfill sites outside the region. This reliance will decline as north London’s new waste facilities come on line and waste is treated higher up the waste hierarchy. However, even when greater self-sufficiency has been achieved there is still likely to be a requirement for some types of landfill, particularly for non-biodegradable and non-recyclable waste.” (para 2.32)18. Accordingly, I conclude that the absence of policies or proposals in the NLWP to manage all the waste arisings and the consequent continuation of the export of waste would be likely to have a significant impact on at least two planning areas by virtue of the waste being managed or deposited in them. Consequently, the North London Councils have a duty to co-operate with the councils representing the “planning areas” in which the waste would be managed or deposited.19. I note the claim by the NLWA that the NLWP is based upon the apportionment in the London Plan, that the London RTB has engaged with representatives from the South East and the East of England and that there is no need to repeat the engagement process. However, the London Plan was prepared before the coming into effect of S110 of the Localism Act and I do not consider that the Councils are absolved from the duty to co-operate as described in the 2004 Act and the NPPF.20. I shall now consider whether co-operation as envisaged by the 2004 Act and the NPPF has been carried out but, in the meantime, ask the Councils themselves to consider whether there has been any co-operation which has been constructive, active, ongoing and effective.
 S110 of the Localism Act inserted S33A into the Planning and Compulsory Purchase Act 2004: A duty to co-operate in relation to planning of sustainable development.
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