Localism’s duty to cooperate ends at Plan’s submission for examination

In the Planning Court case of Samuel Smith Old Brewery (Tadcaster) v Selby District Council [2014] Samuel Smith Old Brewery (Tadcaster) (“SSOBT”) sought to quash the adoption of a Submission Draft Core Strategy (“the SDCS”) which was part of Selby District Council’s Local Development Framework. Selby District Council had adopted the SDCS under s113 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”). SSOBT challenged the SDCS on several grounds. Mainly SSOBT said Selby District Council had failed to comply with the duty to co-operate under Section 33A of the 2004 Act. Selby District Council denied being bound by that duty in the circumstances.

Section 33A was introduced by the Coalition Government’s “localism” initiative.

The court agreed that there was an issue over the distribution of housing in part of Selby District Council’s area and in Tadcaster in particular but it was not an issue which required Selby District Council to cooperate with another local authority (i.e. Leeds or York) to resolve since there could be no issue of Selby District taking more of those authorities’ housing.

Whether Selby District Council’s housing need should be met in those neighbouring local authority areas was not at issue either. In any event that would have been an issue invoking those authorities’ statutory duty to cooperate with Selby rather than vice versa.

Not surprisingly no neighbouring local authority had complained of a want of co-operation by Selby District Council.

Whether Selby were in breach of the duty to co-operate was in fact irrelevant. It would not have changed the result.

SSOBT’s complaint related to the distribution of housing within Selby District Council’s own area which could not have been the subject of any duty to cooperate with another authority.

Furthermore SSOBT could not allege that the duty to co-operate in Section 33A of the 2004 Act applied after the conclusion of the plan preparation stage.

Where a plan was submitted for examination by a Planning Inspector the examination may be suspended to enable further work to it by the Council. The work in question may be of a type which would have been subject to the duty of cooperation had it been done during the period in which the Council were preparing the plan for submission to public examination.

The fact that that had happened here did not mean that any duty of cooperation that would have applied to the period of preparation had revived. Its being done after the plan’s submission for public examination meant no such duty of co-operation could apply to that further work.

The effect of the suspension here had not been to remove the plan from the scope of public examination. It was still in the examination phase, under the control of the Inspector as to timing, procedure and substance.

SSBOT failed also on its other 5 grounds of challenge.

In Samuel Smith Old Brewery (Tadcaster) v Selby District Council [2015] SSBOT appealed to the Court of Appeal but the Court of Appeal upheld the decision of the High Court.

There was no provision in the statutory scheme that required an inspector to determine whether, in preparing and promoting modifications during the examination of the submitted plan or in an adjournment or suspension of that examination, the planning authority had complied with any duty to co-operate.

Subsections (5)(a) and (7B)(b), called for the inspector to consider whether the authority complied with any duty to co-operate only “in relation to [the plan’s] preparation”. Had Parliament intended the section 33A duty to apply in relation to any additional work by the local planning authority to support a request for modification of the plan under subsection (7C), it would have made no sense to exclude compliance with such duty from scrutiny by the inspector under subsection (7C).

That was a clear indication that the duty to co-operate applies, and only applies, to the stage of the plan-making process that is properly to be regarded as plan preparation under section 19, that is to say, the stage prior to the plan being submitted for examination.

The duty to cooperate did not subsist during the examination stage, nor does it revive if the examination is adjourned or suspended for main modifications to be produced and presented to the inspector, so that the inspector can conclude whether the plan, so modified, meets the statutory requirements in section 20(5)(a) and is sound. The other relevant provisions of the statutory scheme were all to the same effect.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.