Duty to co-operate requirement disapplied after plan submitted for examination

The Court of Appeal upheld a judgment of the High Court which ruled that Selby District Council were not bound by section 33A of the Planning and Compulsory Purchase Act 2004 because a core strategy had been submitted for independent examination before the statute came into force.

The action was brought by Samuel Smith Old Brewery who had significant land holdings in the district. The council submitted a draft core strategy under section 20 of the 2004 act and subsequently a planning inspector after initial opening sessions ruled that it was not sound. He did however agree to suspend the examination for six months in order that the council could make modifications to the plan against the wishes of the claimant who argued that it should be completely rejected. During the six month period section 33A came into force which imposed on the council a duty to co-operate with neighbouring authorities. On resumption of the examination the inspector ruled that this duty did not apply where a core strategy had already been submitted for examination. The inspector subsequently found the strategy to be sound subject to some modifications and it was then adopted by the council. The High Court in rejecting the company’s challenge concluded that section 33A only applied when a local authority was preparing documents under section 19 of the act and not when an examination stage had been reached which was governed by section 20.
Lord Justice Sales held that the High Court had been correct in its ruling and this was clear from a natural interpretation of sections 19, 20 and 23 of the act which governed the preparation, examination and adoption of local development documents. The preparation of a document and its subsequent examination were two separate stages independent of each other. At the examination stage it was within the inspector’s jurisdiction to determine what should happen. Section 33A clearly related to the preparation of a plan but it was not a duty which the council had to perform after an examination had commenced the judge ruled. On examination the inspector was concerned about whether the plan satisfied the statutory requirements rather than whether the council had met the procedural requirements in its preparation.
Although the local authority might undertake further work once an examination was underway this did not trigger section 33A the judge held. A degree of co-operation with neighbouring authorities was required as a means of persuading an inspector that a plan was sound including any work undertaken during the suspension of the examination. This allowed the inspector to make a fact specific assessment and still allow satisfactory planning policy documents to emerge in good time which was in the public interest. This did not mean however that section 33A had been engaged and there was no basis for the claimant’s challenge and the case was dismissed.

Samuel Smith Old Brewery (Tadcaster) v Selby District Council

Date: 5 November 2015

Ref: C1/2014/4099

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