Samuel Smith Old Brewery (Tadcaster) v Selby District Council

The statutory duty to co-operate applies during preparation of a local plan, ending when the plan is submitted for examination. A suspension of the examination does not revive preparation or extend the duty to later work undertaken to support proposed modifications.

In assessing apparent bias, the court must consider whether apparent bias travelled from an advisory body to the decision-maker, taking account of the bodies’ composition, functions, participation, safeguards and subsequent independent scrutiny. Sustainability appraisal need not assess a speculative or inherently unpredictable level of windfall development where the policy and its environmental controls have already been appraised. Challenges concerning the sequencing or merits of planning policies generally disclose planning judgment rather than an error of law.

The claimant challenged the defendant council’s adoption of its Submission Draft Core Strategy under section 113 of the Planning and Compulsory Purchase Act 2004. The principal issue was whether the statutory duty to co-operate applied to work undertaken during a suspension of the independent examination after the plan had been submitted.

Further grounds concerned alleged apparent bias in the formulation of a housing policy, the sustainability appraisal of windfall housing, the designation of two villages, failure to engage with the claimant over Tadcaster, and failure to assess the claimant’s proposed Tadcaster strategy as a reasonable alternative under the environmental assessment regulations.

1. Duty to co-operate. The claim was dismissed on the first three grounds. Preparation of a development plan ends when the plan is submitted for independent examination, unless it is withdrawn. The duty in section 33A of the Planning and Compulsory Purchase Act 2004 therefore did not apply to work undertaken during a suspension of the examination. That work supported possible modifications and was not renewed plan preparation.
2. The statutory structure distinguishes preparation, examination and adoption. After submission, the council cannot itself change the plan, save within the constrained powers in section 23. It may ask the Inspector to recommend main modifications, but work on those modifications is not plan preparation. The duty did not arise merely because section 33A came into force during the suspension.
3. Apparent bias. The challenge to the housing policy failed. Applying the approach in Gardner v Harrogate Borough Council [2008] EWHC 2942 (Admin) and R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472, apparent bias in an advisory group did not necessarily infect the deciding body. The advisory group made recommendations; the deciding committee was not a rubber stamp, amended the policy when the interested councillor was absent, and considered it again after his declaration of interest and departure. The review process and independent examination were relevant safeguards.
4. Sustainability appraisal and planning judgment. The windfall policy had been appraised. The later quantification supplied greater precision but did not materially alter the policy or overall spatial strategy. Because windfall sites were unallocated and inherently unpredictable, a more detailed appraisal would have been speculative. The Inspector was entitled to conclude that regulation 12(2) of the Environmental Assessment of Plans and Programmes Regulations 2004 was satisfied.
5. The remaining grounds also failed. The classification of Appleton Roebuck and Escrick was a matter of planning judgment. The town-centre proposals were not strategic alternatives requiring assessment at Core Strategy level. The Inspector was not required to determine whether the council had engaged with the claimant in the abstract; the relevant statutory question concerned whether the plan satisfied section 19. The application was dismissed.

First-instance judicial review application under section 113 of the Planning and Compulsory Purchase Act 2004. The application was dismissed.