Council goes to Court of Appeal over compliance with duty to cooperate

The Court of Appeal has granted Central Bedfordshire Council permission to appeal against a judge’s decision to refuse permission for judicial review after a planning inspector found that the authority had failed to comply with duty to cooperate when preparing its local plan.

Mrs Justice Patterson had refused Central Bedfordshire permission in the case of R (Central Bedfordshire Council) v Secretary of State for Communities and Local Government [2015] EWHC 2167.

According to barristers' chambers Francis Taylor Building, the appeal is being brought on two grounds.

The first is that in finding that Central Bedfordshire had failed to comply with the duty to cooperate when preparing its local plan, the inspector had wrongly conflated the test for the duty to cooperate with the test of soundness.

It will be argued that this resulted in setting the standard of cooperation higher than that envisaged by the Act.

The council will also submit that conflating the test for soundness with the duty to cooperate in circumstances where the inspector had held a preliminary hearing session to consider the duty to cooperate was procedurally unfair since evidence regarding the plan’s soundness had not yet been heard.

FTB said the second ground concerned the margin of appreciation to be given by inspectors when determining whether a local authority has complied with the duty to cooperate.

Central Bedfordshire will argue that in light of the decision of Sales J (as he then was) in Zurich Assurance Ltd. v Winchester CC [2014] EWHC 758 (Admin) the inspector failed to give local authorities the wide margin of appreciation required when determining whether they had complied with the duty.

Lord Justice Laws held that both grounds were arguable and that the duty to cooperate needed to be looked at by the Court of Appeal.

Saira Kabir Sheikh QC and Charles Streeten of FTB are acting for Central Bedfordshire Council, instructed by Sharpe Pritchard.