Samuel Smith Old Brewery (Tadcaster) v Selby District Council

The statutory duty to co-operate in preparing development plan documents applies at the plan-preparation stage under the Planning and Compulsory Purchase Act 2004. That stage ends when the document is submitted for independent examination. The duty does not revive, or arise for the first time, when an examination is adjourned or suspended so that the local planning authority can develop proposed main modifications. Later co-operative engagement may remain relevant to whether the plan, as modified, is sound. Work undertaken after submission is not converted into plan preparation merely because it would have been preparation if undertaken earlier.

Selby District Council adopted its Core Strategy in October 2013 after an independent examination of the submitted document had been suspended to allow further work on housing delivery, Green Belt boundaries and proposed main modifications. The duty to co-operate in section 33A of the Planning and Compulsory Purchase Act 2004 came into force during that suspension.

Samuel Smith challenged adoption under section 113, arguing that the duty applied to the further work, or alternatively that the work was preparatory to, or supportive of, plan preparation. Ouseley J. rejected the challenge. The central issue on appeal was whether submission for examination ended plan preparation for the purposes of section 33A, despite subsequent work undertaken during a suspension.

1. The appeal was dismissed. The adoption of the Core Strategy was lawful and was not vitiated by any failure to comply with the duty to co-operate.
2. Sections 19, 20 and 23 of the Planning and Compulsory Purchase Act 2004 establish sequential stages. Plan preparation is undertaken by the local planning authority and ends before submission for independent examination. Examination is a distinct stage controlled by the inspector.
3. Section 33A reinforces that division. Its references to preparing development plan documents, preparing the way for that activity and supporting it concern activity within, or associated with, the preparation stage before submission. The duty is not a continuing duty to be performed again during examination.
4. Section 20(5)(c), and the linked provisions of section 20(7) to (7C), require the inspector to determine whether the authority complied with the duty in relation to the document’s preparation. Proposed modifications address defects in statutory compliance and soundness. They do not reopen compliance with section 33A, and a failure to comply with that duty cannot be remedied at examination stage.
5. The same conclusion applies whether the examination continues, is adjourned or is suspended. Treating suspension as a reversion to plan preparation would create an arbitrary distinction and would imply a need to repeat the statutory requirements applicable to preparation, including consultation.
6. Later co-operative engagement remains relevant to the inspector’s fact-sensitive assessment of soundness, including under the National Planning Policy Framework and the general public law duty to make reasonable enquiries identified in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014.
7. The alternative argument under section 33A(3)(d) and (e) failed. Work done after submission cannot be regarded as preparing the way for, or supporting, the preparation of the plan.

• Court of Appeal (Civil Division) — The court dismissed the appeal and upheld Ouseley J.’s rejection of the challenge to the adoption of the Core Strategy.
• High Court of Justice, Queen’s Bench Division, Planning Court — Ouseley J. rejected Samuel Smith’s section 113 challenge on all grounds in a judgment dated 27 October 2014. The appeal proceeded only on the duty to co-operate ground.