Soundness and the tests at a plan examination

Soundness is the test an inspector applies to a local plan at examination, and it has four limbs: the plan must be positively prepared, justified, effective and consistent with national policy. A plan that fails any one of them is unsound, and the usual consequence is not rejection but a set of main modifications that change the plan before it is adopted.

Soundness is a different question from legal compliance, and the two failures have very different outcomes. Understanding which one you are arguing about is the first thing to get right.

What soundness means

Under section 20 of the Planning and Compulsory Purchase Act 2004, the local planning authority submits its plan for independent examination, and the inspector must consider whether it satisfies the statutory requirements and whether it is sound.

Soundness is a judgement about whether the plan will work. It is not a judgement about whether the plan is the best plan that could have been written, and it is not a mechanism for substituting a different strategy because someone prefers one. Inspectors say this repeatedly and representors keep hoping otherwise.

The four tests come from national policy. Because the National Planning Policy Framework has been reissued more than once, check the current edition for the exact wording and the policy code, rather than quoting a paragraph number from an older copy.

The four tests

Positively prepared asks whether the plan provides a strategy which, as a minimum, seeks to meet the area's objectively assessed needs, and whether unmet need from neighbouring areas has been dealt with where it is reasonable to do so and consistent with achieving sustainable development. This is where housing numbers are fought over.

Justified asks whether the plan is an appropriate strategy, taking into account the reasonable alternatives, and based on proportionate evidence. Two limbs, both of which matter. A strategy can be reasonable and still fail because the alternatives were never properly considered.

Effective asks whether the plan is deliverable over its period, including whether cross-boundary strategic matters have been addressed through joint working. Deliverability is where site-specific evidence bites: access, viability, infrastructure, flood risk and land ownership.

Consistent with national policy asks whether the plan enables sustainable development in line with national policy, or provides a clear reason for departing from it where local circumstances justify one.

The evidence behind each test

Every test is really a question about a document in the evidence base, and knowing which document to attack is more useful than knowing the wording of the test.

Where a site is proposed for allocation, the evidence that matters is the site assessment: why this site and not the one next to it, what constraints were identified, and whether the deliverability assumptions stand up. Our note on settlement boundaries in local plans covers how those lines get drawn and how they are challenged.

Legal compliance as a separate question

Before soundness, the inspector considers whether the plan meets the legal requirements. These are procedural and they are unforgiving.

They include whether the plan is in the authority's local development scheme, whether consultation followed the statement of community involvement and the Town and Country Planning (Local Planning) (England) Regulations 2012, whether a sustainability appraisal was carried out, whether a habitats regulations assessment was needed and done, and whether the public sector equality duty was complied with. Our explainer on habitats regulations assessment covers the last of those in detail.

The duty to cooperate under section 33A of the 2004 Act sits here rather than under soundness, and that placement matters enormously. A soundness failure can usually be cured by modification. A duty to cooperate failure cannot be remedied after submission, and plans have been withdrawn for it. Our note on the duty to cooperate and why plans fail on it sets out how that happens.

Legislative reform in this area has been enacted but its commencement has been staged, so check the current position on legislation.gov.uk before relying on the duty as it stood a few years ago.

Main modifications and how they arise

Where the inspector concludes the plan is unsound as submitted, the authority may ask, under section 20 of the 2004 Act, for modifications to be recommended that would make it sound.

The sequence is fairly consistent. Hearings identify the problems, the inspector issues post-hearing advice or interim findings, the authority prepares schedules of main modifications, those are published for public consultation for a period of at least six weeks along with any updated sustainability appraisal, the inspector considers the responses, and the final report recommends the modifications.

Main modifications can be substantial: deleting an allocation, adding one, changing the housing requirement, rewriting a development management policy. Minor modifications, which do not affect soundness, are made by the authority without the inspector's recommendation and without consultation, so check which category a proposed change falls into.

Consultation on main modifications is a second opportunity to make representations, and it is one many people miss because the plan has dropped out of the news by then.

Making an effective representation

Representations are made at the publication stage under regulation 19 of the 2012 Regulations, and the form asks three things. Say them plainly.

1. Which test of soundness, or which legal requirement, you say the plan fails, and name it.
2. Why it fails, in evidenced terms, with reference to the specific document in the evidence base you are challenging.
3. What change would make the plan sound, drafted as words you would be content to see in the plan.

That third element is where most representations are weakest and where a good one earns its place. An inspector cannot recommend a modification nobody has articulated, and a representation that ends with suggested wording is far more likely to produce one.

Ask to appear at the hearing sessions if you want to. The right to be heard belongs to those who made representations seeking a change and requested it, and hearings are discussions around a table rather than cross-examination. Bring one point, evidenced.

Timescales and what to expect

Examinations take longer than anyone plans for. Submission to adoption commonly runs well beyond a year, and complex plans with suspended examinations and additional evidence gathering take longer still.

The stages are public: submission documents, the inspector's initial questions, the hearing programme, hearing statements, post-hearing advice, main modifications consultation, the final report, and adoption by full council. All of it appears on the authority's examination web pages, and the inspector's initial questions are usually the most informative document produced in the whole process, because they show what the inspector thinks the problems are.

Read those questions when they appear. They will tell you more about the plan's prospects than any amount of commentary.

This is general guidance, not legal advice. Plan-making procedure has been subject to reform with staged commencement, so check the current statutory position and the current National Planning Policy Framework before relying on it.