Town and country planning – Planning policy – Core strategy – Section 33A of Planning and Compulsory Purchase Act 2004 – Respondent local planning authority presenting draft core strategy for public examination – Inspector suspending examination to allow respondent to propose modifications to address problems with draft – Statutory duty for local authorities to co-operate coming into force in the meantime – Inspector finding amended draft to be sound and respondents adopting it – Whether duty of co-operation applying at stage of amendments – Appeal dismissed
The appellant brewery was a major landowner in the area for which the respondents were the local planning authority. In 2011, the respondents presented their submission draft core strategy for public examination pursuant to section 20 of the Planning and Compulsory Purchase Act 2004. In the course of the public examination, before an independent planning inspector appointed by the secretary of state, it became apparent that the draft was unsound. The inspector suspended the examination for six months to enable the respondent to propose changes to address the problems which he had identified.
During the period of suspension, and while further work was being undertaken, section 33A of the 2004 Act came into force, imposing a duty on local authorities to co-operate with other relevant bodies in relation to the preparation of plans relating to strategic planning matters. The respondent subsequently presented their proposed changes to the inspector and the public examination reconvened in April 2012. The inspector ruled that the section 33A duty did not apply after the draft cores strategy had been submitted for examination and concluded that the strategy was sound if subjected to significant modifications, including those made by the respondent during the period of suspension. The respondents thereafter adopted the core strategy in its amended form.
The appellant brought proceedings to quash the adopted core strategy. Its primary ground was that the co-operation obligation in section 33A applied at the stage of the amendments to the draft core strategy and had not been complied with. Dismissing the claim, the judge held that the section 33A duty applied only at the stage of plan preparation, which ended with the submission of the plan for examination, however major or minor its shortcomings, and whatever further work was required, unless the plan was withdrawn: see [2014] EWHC 3441 (Admin); [2014] PLSCS 294. The appellant appealed.
Held: The appeal was dismissed.
Although there was no express statutory power to suspend, halt temporarily or adjourn the public examination, such a power was necessarily implicit in the exercise by the independent inspector of his functions in section 20 of the 2004 Act. While the work done by the respondent during the suspension would have qualified as “preparation” within the meaning of section 33A of the 2004 Act if carried out before the core strategy was submitted for examination, the judge had correctly held that the section 33A duty ceased to apply at the point of submission. That result flowed from the natural construction of the statutory provisions governing the preparation, examination and adoption of local development documents in sections 19, 20 and 23 of the 2004 Act.
The preparation of a local development document by the local planning authority, pursuant to section 19, and independent examination by an inspector, under section 20, were distinct and separate stages of the plan-making process. It would be alien to the statutory scheme to regard the two concepts as being in any sense concurrent and overlapping stages of the process. They were sequential. Preparation came to an end before examination began. The former was an activity undertaken by the local planning authority, the latter an activity undertaken by the inspector, albeit with scope for him to call for further work to be done by the authority with a view to making the plan sound. The duty to co-operate was framed as a duty of the local planning authority in preparing the plan, which the authority had to have performed at that stage to the satisfaction of the inspector who later carried out the examination. It was not a duty for the authority to perform, or perform again, after the examination stage had begun. Once the plan passed from the stage of preparation to the stage of examination, it left the hands of the local planning authority, save for the authority’s power of withdrawal under section 22, until they were able within the constraints of section 23 to adopt it.
At the examination stage, the decision as to what should happen to the plan lay with the inspector, who was in control of the examination process, including what should happen where the inspector identified problems with the plan document and the authority wished to ask him to recommend modifications to address those problems. The power of the authority to make such a request under section 20(7C) arose only where the inspector had formed certain views as set out in section 20(7B), including that the authority had already complied with section 33A in the preparation of the document. The provisions of section 20(7B) and (7C) were directed to putting right defects in the plan and there was no provision in section 20(7C), or elsewhere the statutory scheme, requiring the inspector to determine whether the authority had complied with any duty to co-operate in preparing and promoting the modifications. That was a clear indication that the duty to co-operate applied only to the plan preparation stage under section 19, prior to submission of the plan for examination. The duty did not subsist during the examination stage, nor did it revive if the examination was adjourned or suspended for modifications to be produced and presented to the inspector. The duty was not engaged when the respondent prepared their proposed modifications during the suspension of the examination. It followed that the respondent’s subsequent adoption of the core strategy was not vitiated by any error in the plan-making process and was lawful.
Peter Village QC and James Strachan QC (instructed by Pinsent Masons LLP) appeared for the appellant; Alan Evans and Freddie Humphreys (instructed by the legal department of Selby District Council) appeared for the respondents.
Sally Dobson, barrister
Read a transcript of Samuel Smith Old Brewery (Tadcaster) v Selby District Council here
