Samuel Smith Old Brewery (Tadcaster) v Selby District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 27 October 2014 |
| Neutral Citation | [2014] EWHC 3441 (Admin) |
| Docket Number | Case No: CO/17241/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 October 2014 |
[2014] EWHC 3441 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
IN THE MATTER OF AN APPLICATION UNDER SECTION 113 OF THE PLANNING AND COMPULSORY PURCHASE ACT 2004
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/17241/2013
Peter Village QC and James Strachan QC (instructed by Pinsent Masons) for the Claimant
Alan Evans (instructed by Selby District Council) for the Defendant
Hearing dates: 10th, 11th and 14th July 2014
Samuel Smith Old Brewery (Tadcaster), SSOBT, the Claimant, is a long established brewery and major landowner in Tadcaster and elsewhere in the area of Selby District Council in North Yorkshire. Its head offices are in Tadcaster.
Selby District Council, the Defendant, presented its Submission Draft Core Strategy, the SDCS, a local development plan document, for public examination on 5 May 2011, under s20 of the Planning and Compulsory Purchase Act 2004. The independent Planning Inspector, appointed by the Secretary of State for Communities and Local Government, commenced the public examination on 20 September 2011. One of his statutory tasks was to determine whether the SDCS was sound. If he found it to be unsound, the District Council could not adopt it in that form. It became apparent to the Inspector early on in the process that, in at least two and potentially three respects, the SDCS was unsound. He suspended the public examination for six months to give the District Council time to propose changes to deal with the problems he identified.
On 15 November 2011, during the period of suspension and while the further work was being undertaken, s33A of the 2004 Act, as inserted by s110 of the Localism Act 2011, came into force. S33A imposes on local authorities a duty to co-operate in relation to strategic planning matters.
The Inspector ruled that the duty did not apply after the SDCS had been submitted for examination. He found the SDCS to be sound if subjected to significant modifications, including those proposed by the Council as a result of work it carried out during the period of suspension. The SDCS was adopted by the District Council on 22 October 2013.
SSOBT seeks to quash the adoption of the SDCS under s113 of the 2004 Act on the grounds that it fell out outside the powers of the District Council, and because of procedural failings, prejudicial to SSOBT. Its principal ground of challenge related to the Council's non-compliance with the duty to co-operate, by which SSOBT said it was bound, but which the Council denied.
SSOBT's other grounds included (1) an allegation that the core of the housing policies was tainted by apparent bias and therefore unlawful; (2) a sustainability appraisal of the quantification of windfall housing was unlawfully omitted; (3) two villages were wrongly designated as suitable for further development; (4) the Council had failed to "engage" with SSOBT as a major landowner over the deliverability of the Council's Strategy, particularly over housing land in Tadcaster; this was a breach of a policy based duty or legitimate expectation; (5) the Council ought also to have treated SSOBT's strategy or "Vision" for Tadcaster as a reasonable alternative, but in breach of the Strategic Environmental Assessment Directive and domestic Regulations had failed to do so.
The statutory framework
Section 19 of the Planning and Compulsory Purchase Act 2004 sets out certain requirements in connection with the preparation of local development documents of which the SDCS was one. It provides, so far as relevant:
"(2) In preparing a development plan document or any other local development document the local planning authority must have regard to—
(a) national policies and advice contained in guidance issued by the Secretary of State…;
(b) the regional strategy for the region in which the area of the authority is situated…;
(5) The local planning authority must also—
(a) carry out an appraisal of the sustainability of the proposals in each development plan document;
(b) prepare a report of the findings of the appraisal."
The development document is then submitted to the Secretary of State who appoints an Inspector to carry out an independent public examination. This is dealt with by s20, as amended by the Localism Act 2011:
"(2) But the authority must not submit such a document unless—
(a) they have complied with any relevant requirements contained in regulations under this Part, and
(b) they think the document is ready for independent examination.
(5) The purpose of an independent examination is to determine in respect of the development plan document—
(a) whether it satisfies the requirements of sections 19 and 24(1), regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents;
(b) whether it is sound;
(c) whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation
(7) Where the person appointed to carry out the examination –
(a) has carried it out, and
(b) considers that, in all the circumstance, it would be reasonable to conclude—
(i) that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, and
(ii) that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document's preparation,
the person must recommend that the document is adopted and give reasons for the recommendation.
(7A) Where the person appointed to carry out the examination—
(a) has carried it out, and
(b) is not required by subsection (7) to recommend that the document is adopted, the person must recommend non-adoption of the document and give reasons for the recommendation.
(7B) Subsection (7C) applies where the person appointed to carry out the examination –
(a) does not consider that, in all the circumstances, it would be reasonable to conclude that the document satisfied the requirements mentioned in subsection (5)(a) and is sound, but
(b) does consider that, in all the circumstances, it would be reasonable to conclude that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document's preparation.
(7C) If asked to do so by the local planning authority, the person appointed to carry out the examination must recommend modifications of the document that would make it one that –
satisfies the requirements mentioned in subsection (5)(a), and
is sound."
Mr Village QC, for SSOBT, contended that the preparation phase under s19 continued through to adoption, or at least revived during any period of suspension of the public examination to cover work carried out by the Council to produce policies to make the SDCS sound.
There is no provision in the 2004 Act or in the Town and Country Planning (Local Development) (England) Regulations 2004, SI 2004 No 2204, in force until 6 April 2012, or in the successor Town and Country Planning (Local Planning) (England) Regulations 2012, SI No 767, which provides for or covers the effect on the operation of ss20 and 23 of the suspension of the public examination. No party however contended that the Inspector lacked the power to suspend, halt temporarily or adjourn the public examination for good and sufficient reason, and I regard such a power as necessarily implicit in the exercise by the independent Inspector of his functions in s20.
Section 23, which was also amended by the Localism Act 2011, provides for the power of the Council in response to the Inspector's recommendations, and for the adoption of development plan documents as follows:
"(2) If the person appointed to carry out the independent examination of a development plan document recommends that it is adopted, the authority may adopt the document—
(a) as it is, or
(b) with modifications that (taken together) do not materially affect the policies set out in it.
(2A) Subsection (3) applies if the person appointed to carry out the independent examination of a development plan document—
(a) recommends non-adoption, and
(b) under section 20(7C) recommends modifications ("the main modifications").
(3) The authority may adopt the document—
(a) with the main modifications, or
(b) with the main modifications and additional modifications if the additional modifications (taken together) do not materially affect the policies that would be set out in the document if it was adopted with the main modifications but no other modifications."
The authority must not adopt a development plan document unless it does so in accordance with subsection ( 2) or (3).
The Localism Act 2011 brought into force a change reflecting the abolition of Regional Planning Boards and Regional Strategies: very broadly, the removal of the regional tier of planning strategies to which local plans generally had to conform, leading to greater scope for local decision-making, was qualified by a duty on local authorities to co-operate in strategic planning matters. The duty in s24 of the 2004 Act to ensure that development plan documents generally conformed to the Regional Strategy has not yet been abolished. But it was rendered ineffectual by the abolition of Regional Strategies themselves; in this case, the Yorkshire and Humber Regional Strategy was revoked with effect from 22 February 2013, shortly before the final session of the public examination.
S110 of the Localism Act introduced s33A to the 2004 Act, in force from 15...
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