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Court of Appeal finds for council in key ruling on duty to cooperate

The Court of Appeal has rejected a challenge to Selby District Council’s adoption of its Core Strategy Local Plan, in a key ruling on the duty to cooperate.

The case of Samuel Smith Old Brewery (Tadcaster) v Selby District Council [2015] EWCA Civ 1107 (05 November 2015) concerned a challenge to the adoption of a development plan document under the relevant provisions of the Planning and Compulsory Purchase Act 2004.

This was 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 district council had adopted the Selby District Core Strategy (known as PLAN Selby) in October 2013.

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The appellant company owns a well-known brewery in Tadcaster in North Yorkshire but also owns a large amount of land in and around the town. It submitted objections to the core strategy.

When the district council adopted PLAN Selby, Samuel Smith 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.

Samuel Smith claimed that Selby should have co-operated with the neighbouring local planning authorities in Leeds and York and asked them to provide additional houses in their areas instead of providing them in Tadcaster.

In October 2014 Mr Justice Ouseley rejected the challenge on all grounds.

When granting permission to appeal in February this year, Lord Justice Sullivan accepted that the ground relating to the duty to co-operate was arguable.

He 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".

Giving the judgment of the Court of Appeal yesterday (5 November), Lord Justice Sales concluded that a literal and purposive interpretation of the relevant statutory provisions – in particular sections 19, 20 and 23 of the 2004 Act – yielded the understanding that informed both the inspector’s ruling in 2013 that the plan was compliant and Mr Justice Ouseley’s analysis in the High Court in 2014 rejecting grounds 1-3 in Samuel Smith’s application to the court.

“The duty to co-operate in section 33A of the 2004 Act which came into effect after the council's core strategy had been prepared and submitted for examination, was not engaged when the council prepared its proposed main modifications during the suspension of the examination, and there was no failure on the part of the council to comply with that duty,” the Court of Appeal judge said.

“It follows that the council's subsequent adoption of the core strategy was not vitiated by any such error in the plan-making process, and was lawful.”

Welcoming the ruling, Selby District Council said it could now move forward with the next stage of PLAN Selby, which will involve looking at allocating specific sites for growth of jobs, homes and services, alongside detailed planning policies.

Cllr Mark Crane, Selby’s Leader, said: “PLAN Selby is such an important part of our ambitious agenda to make the district a great place to do business and a great place to enjoy life. That’s why we welcome today’s judgement.

“It took a tremendous amount of work over a number of years to get the document prepared and adopted and I must thank the team who have delivered this. We had a very solid evidence base and were confident in our approach; after it was found sound by the independent Inspector it was disappointing to face the High Court challenge, let alone the subsequent appeal.”

Cllr Crane added: "The Government is bringing forward powers in the Housing and Planning Bill to ensure that councils put local plans in place without delay. The uncertainty and potential delay created by an appeal that was heard two years to the day that we adopted the plan shows that a streamlined process is much needed.

“We want to move on now with supporting new business growth and jobs, as well as giving people access to the housing they need, not only for the residents of Tadcaster but for the rest of the Selby district.”

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