Samuel Smith Old Brewery (Tadcaster) v Selby District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales |
| Judgment Date | 05 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1107 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 November 2015 |
| Docket Number | Case No: C1/2014/4099 |
[2015] EWCA Civ 1107
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION, PLANNING COURT
MR JUSTICE OUSELEY
CO/1724/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice Sales
and
Mr Justice Lindblom
Case No: C1/2014/4099
Mr Peter Village QC & Mr James Strachan QC (instructed by Pinsent Masons LLP) for the Appellant
Mr Alan Evans & Mr Freddie Humphreys (instructed by the Solicitor to the Council)
for the Respondent
Hearing date: 22 October 2015
This is the judgment of the court, to which all its members have contributed.
Introduction
This appeal concerns a challenge to the adoption of a development plan document under the relevant provisions of the Planning and Compulsory Purchase Act 2004, on the ground that the local planning authority's duty under section 33A(1) of the 2004 Act — the so-called "duty to co-operate" — was engaged but not complied with.
The subject of the challenge is the Selby District Core Strategy, which was adopted by the respondent, Selby District Council, in October 2013. The appellant, Samuel Smith Old Brewery (Tadcaster), is a long established company with a brewery in Tadcaster, in North Yorkshire. It also owns a large amount of land in and around that town. Over the years it has played an active part in the successive processes of plan-making undertaken by the council. It submitted objections to the core strategy with which these proceedings are concerned. Upon the adoption of the core strategy it applied to the court under section 113 of the 2004 Act for an order to quash the core strategy, on several grounds. In three of those grounds (grounds 1, 2 and 3) it contended that, in the course of the process leading to the adoption of the core strategy, section 33A of the 2004 Act having come into force during a period when the independent examination had been suspended to allow the council to prepare main modifications, the council ought to have complied with the duty to co-operate but had failed to do so. The other grounds are no longer active in this appeal, and there is no need to refer further to them.
In a judgment given on 27 October 2014 Ouseley J. rejected the challenge on all grounds. Permission to appeal against Ouseley J.'s order, solely on the ground of appeal relating to the duty to co-operate, was granted by Sullivan L.J. on 21 February 2015. When granting permission, Sullivan L.J. accepted that this ground was arguable, and also acknowledged that "if the implied power to suspend the examination of a plan is more widely exercised by Inspectors the question whether the section 33A duty applies to work done during the period of suspension which would have constituted plan preparation had it been undertaken before the submission of the plan for examination is an issue of more general importance which justifies the grant of permission to appeal".
The relevant statutory provisions
Part 2 of the 2004 Act, as amended by several subsequent Acts of Parliament including the Localism Act 2011, contains the statutory framework for the production of development plan documents. The amendments made by the Deregulation Act 2015 have no bearing on these proceedings and can be ignored.
Section 15 requires a local planning authority to prepare and maintain a local development scheme, specifying, among other things, the local development documents which are to be development plan documents. Section 17(3) provides that "[the] local planning authority's local development documents must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area".
Section 19 provides for the "Preparation of local development documents":
"(1) Development plan documents must be prepared in accordance with the local development plan scheme.
…
(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 …;
…
(f) the sustainable community strategy prepared by the authority;
(g) the sustainable community strategy for any other authority whose area comprises any part of the area of the local planning authority;
(h) any other local development document which has been adopted by the authority;
(i) the resources likely to be available for implementing the proposals in the document;
(j) such other matters as the Secretary of State prescribes.
(3) In preparing the local development documents (other than their statement of community involvement) the authority must also comply with their statement of community involvement.
…
(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.
…".
As amended by the Localism Act, section 20 provides for the "Independent examination" of the development plan document:
"(1) The local planning authority must submit every development plan document to the Secretary of State for independent examination.
(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.
…
(4) The examination must be carried out by a person appointed by the Secretary of State.
(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 17(7) and any regulations under section 36 relating to the preparation of development plan documents;
(b) whether it is sound; and
(c) whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation.
(6) Any person who makes representations seeking to change a development plan document must (if he so requests) be given the opportunity to appear before and be heard by the person carrying out the examination.
(7) Where the person appointed to carry out the examination —
(a) has carried it out, and
(b) considers that, in all the circumstances, 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 satisfies 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 —
(a) satisfies the requirements mentioned in subsection (5)(a), and
(b) is sound."
Subsection (5)(c) was inserted by section 110(3) of the Localism Act, with effect from 15 November 2011 (see section 240(5)(i) of the Localism Act). Subsections (7), (7A), (7B) and (7C) were substituted for the original subsection (7) by section 112(2) of the Localism Act, with effect from 15 January 2012 (see section 240(1)(h) of the Localism Act).
Section 22 of the 2004 Act ("Withdrawal of local development documents") provides that a local planning authority "may at any time before a local development document is adopted under section 23 withdraw the document".
Again as amended by the Localism Act, section 23 provides for the "Adoption of local development documents":
"…
(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."
Subsections (2), (2A) and (3) were substituted for the original subsections (2) and (3) by section 112(3) of the Localism Act, with effect from 15 January 2012 (see...
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...not expect an opportunity to submit further material during the examination.” 26 In Samuel Smith Old Brewery (Tadcaster) v Selby DC [2015] EWCA Civ 1107, Sales LJ, delivering the judgment of the court, described at para 28 the various stages of plan making: “The stages of the plan making pr......
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