Samuel Smith Old Brewery (Tadcaster) v Selby District Council

Town and country planning – Planning policy – Draft core strategy – Defendant local planning authority presenting draft core strategy for public examination – Inspector suspending examination – Statutory duty for local authorities to co-operate coming into force – Defendants deciding to adopt modified draft – Claimant applying to quash decision – Whether defendants having duty to co-operate – Whether core housing policies being tainted by apparent bias – Whether defendants failing to engage with claimant over deliverability of strategy – Application dismissed The defendant local planning authority presented its submission draft core strategy (SDCS) for public examination, under section 20 of the Planning and Compulsory Purchase Act 2004. The independent planning inspector appointed by the secretary of state commenced a public examination and it became apparent that the draft was unsound. He suspended the examination for six months to give the defendants time to propose changes to deal with the problems he 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 in relation to strategic planning matters. The inspector ruled that that 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 defendants as a result of work it had carried out during the period of suspension. The SDCS was adopted by the defendants. The claimant brewery was a major landowner in the defendants’ area. It applied to quash the decision to adopt the SDCS under section 113 of the 2004 Act. Its principal ground of challenge related to the defendants’ non-compliance with the duty to co-operate, by which the claimant said it was bound but which the defendants’ denied. The claimant also contended, among other things, that the core of the housing policies was tainted by apparent bias and therefore unlawful; and that the defendants had failed to engage with the claimant, as a major landowner, over the deliverability of its strategy, which was a breach of a policy based on duty or legitimate expectation. Held: The application was dismissed. (1) The stage of plan preparation was the only stage to which the duty to co-operate applied. That stage 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. Otherwise, all further work either supported the plan as it stood or supported possible modifications proposed to the inspector for him to recommend to the local authority. In the present case, since the duty to co-operate in section 33A of the 2004 Act did not apply after the conclusion of the preparation stage, the fact that it had come into force while work had been done during the period of suspension was legally irrelevant. No such duty of co-operation had applied to the further work, even though, if done at the earlier stage of the plan preparation, it would clearly have been plan preparation to which the duty of co-operation, if in force, would have applied. The effect of the suspension was not to remove the plan from the scope of public examination. It remained in that phase under the control of the inspector as to timing, procedure and substance: University of Bristol v North Somerset Council [2013] EWHC 231 (Admin) applied. (2) The question of whether any real possibility of bias travelled from the task and finish group (TFG), set up by the defendants to consider and advise on their housing policies, to the decision-making body was to be tested by asking whether the fair-minded observer, in possession of all relevant facts, would conclude that there was a real possibility that the decision to adopt the SDCS was also tainted. The TFG in effect had a recommending role rather than a decision-making role. Where a decision was taken on advice tainted by bias, the question was whether the observer “knowing the composition and remit of both the advisory body and the deciding body, would perceive a real possibility both of bias in the advice and of its infecting the decision”. In the present case, the assertion of a continued apparent bias affecting the lawfulness of the adoption of the plan could not survive the inspector’s conclusions, following his detailed consideration of the policy: R (on the application of Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 applied. (3) As regards the defendants’ failure to engage with the claimant, the statutory issue for the inspector was whether it was reasonable to conclude that the plan satisfied the requirements of section 19 of the 2004 Act. The inspector had to consider whether the defendants had complied with any section 33A duty, but not with any section 19 duty. It was the plan which the inspector had reasonably to conclude satisfied section 19. The inspector did not have to ask whether the defendants had engaged with the claimant; if he had to inquire whether the defendants had fulfilled a section 19 duty, he only had to consider whether they had regard to that duty. Evidence, if any, of a failure to engage could not, certainly in these circumstances, show a failure to have regard to the duty. The primary purpose of section 19(2) was to focus the inspector’s attention on the way in which the policies in the plan had been considered against the substantive national policies, and whether any procedural omissions affected the soundness of the plan. That had been clearly considered and ruled on, that primary purpose was the probable sole but important purpose of the distinction in the statutory language.   Peter Village QC and James Strachan QC (instructed by Pinsent Masons) appeared for the claimant; Alan Evans (instructed by Selby District Council) appeared for the defendants.   Eileen O’Grady, barrister   Click here to read transcript: Samuel Smith Old Brewery (Tadcaster) v Selby District Council