Aireborough Neighbourhood Development Forum v Leeds City Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven |
| Judgment Date | 08 June 2020 |
| Neutral Citation | [2020] EWHC 1461 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3279/2019 |
| Date | 08 June 2020 |
and
[2020] EWHC 1461 (Admin)
Mrs Justice Lieven
Case No: CO/3279/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jenny Wigley (instructed by Town Legal LLP) for the Claimant
Juan Lopez (instructed by Leeds City Council Legal Services) for the Defendant
The First Interested Party was not represented and did not attend
Charles Banner QC and Matthew Fraser (instructed by Walker Morris LLP) for the Second Interested Party
James Corbet Burcher (instructed by Shoosmiths LLP) for the Third Interested Party
Hearing dates: 4 and 5 February 2020
Approved Judgment
This is an application by the Aireborough Neighbourhood Development Forum (the Claimant) to challenge the decision of Leeds City Council (the Council) to adopt the Leeds Site Allocations Plan (the SAP). The challenge is made under s.113 of the Planning and Compulsory Purchase Act 2004.
The Claimant is an organisation that was set up in 2012 to support the regeneration and sustainable development of the Aireborough Neighbourhood as a non-parished area within the Leeds City Council area. In 2014 the Claimant was officially designated by Leeds City Council as a Neighbourhood Forum under the Localism Act 2011 for the purposes of preparing the Aireborough Neighbourhood Plan. The Claimant applied for the statutory 5 year renewal of that designation on 13 July 2019. On 30 January 2020 the Claimant received notification from the Council that the designation had been renewed, backdated to 23 January 2020.
The Second and Third Interested Parties are developers with interests in land that fall within the allocations in the SAP.
In a judgment dated 14 January 2020, I held that the Forum had capacity to bring this claim, and I ordered a rolled up hearing of the matter.
The Claimant was represented by Ms Wigley; the Defendant by Mr Lopez; the Second Interested Party was represented by both Mr Banner QC and Mr Fraser; and the Third Interested Party by Mr Corbet Burcher. The First Interested Party was not represented and did not attend.
Brief Overview
I will set out below the factual background to this matter and the somewhat tortuous history of Leeds housing land supply. However, at the heart of this case lies the difficulty that the Council has had in establishing a housing land requirement and showing it has a five year supply of deliverable housing land for the purposes of national planning policy. The Council has faced the problem that it adopted a figure for its housing requirement in the Leeds Core Strategy 2014 (the CS) which has had to be revised downwards to accord with revised national guidance. The Site Allocations Plan, the subject of this case, is the planning document that was to set out the Council's allocations in accordance with the requirement figure in the CS. However, the Council found itself in the situation of taking forward the SAP to meet the housing requirements in the adopted CS and, at virtually the same time, the Core Strategy Selective Review (CSSR) to revise the CS requirement figure. As this case shows, that has led to considerable difficulty in the production of the Site Allocations Plan (SAP) and decisions around Green Belt release within the SAP. These difficulties lie at the heart of this challenge.
Leeds is the second largest planning authority outside London with a population of 784,000 people. Outside the main urban area there is an extensive rural area with a large number of discrete settlements. Two thirds of the entire area of Leeds CC is designated as Green Belt. In the Leeds Core Strategy (the CS) and the SAP the entire Council area is divided into 11 housing market characteristic areas (HMCAs) covering both urban and rural areas.
The CS was adopted in 2014 and allocated, in accordance with then Government guidance, a housing requirement of 70,000 (net) new dwellings in the period 2012–2028. For reasons relating to the provision of windfalls (housing on unallocated sites) the requirement which leads to allocations is only 66,000 and that figure is frequently referred to below. Policy SP6 of the CS divided that requirement figure between the 11 HMCAs, but did not allocate specific sites. It was envisaged within the CS that in order to meet the requirement figure there would have to be a significant number of dwellings on what was Green Belt land. Policy SP10 made provision for a review of the Green Belt (GB) to be carried out in order to accommodate the scale of housing in SP6. The SAP is the planning document which produces the allocation of sites within the Council area and releases the relevant sites from the Green Belt policy constraints.
The submission draft SAP dated May 2017 sought to meet the 66,000 requirement by allocating the necessary sites. The allocations proposed included the allocation of sites for 12,481 dwellings in the Green Belt, and more specifically 972 dwellings within the Green Belt in Aireborough HMCA.
At the same time as the SAP was being progressed, following the production by the Department for Communities and Local Government of a new national methodology, it became increasingly clear to the Council that the figure of 66,000 was no longer sustainable and a materially smaller number of dwellings would now need to be delivered. The problem that the Council faced was how to deal with this changing housing requirement whilst still trying to ensure that there was a development plan in place ensuring that it could be shown to have a 5 year land supply.
The other part of the background to this matter, as is explained in the first witness statement of Martin Elliot, the Council's Planning Manager, is that Leeds housing delivery in recent years has been disappointingly low and the Council has struggled to show it has a five year land supply as is required by national policy. This had led to a number of planning appeals (s.78 Town and Country Planning Act 1990 appeals) where the Council had been found not to have a five year land supply and therefore has lost the appeals. This background provided part of the importance to the Council of having the SAP in place so that it could plan and manage the location of new housing rather than the decisions being made through s.78 appeals.
The Claimant advances the following grounds of challenge to the adoption of the SAP;
(a) A breach of the Strategic Environmental Assessment Directive (SEA Directive) and Regulations requiring the consideration of “reasonable alternatives” (Ground One);
(b) Inadequate consultation on the Sustainability Appraisals contrary to the SEA Directive and Regulations (Ground Two);
(c) Failure to provide adequate reasons as to the lack of need for Green Belt releases (Ground Three);
(d) Failure to give adequate reasons for the use of the HMCAs in the site selection process (Ground Four);
(e) Breach of s.39(2) of the 2004 Act and or irrationality in proceeding with the SAP (Ground Five);
(f) Error of fact and misleading consultation on the Main Modifications (Ground Six);
(g) Failure to take into account the actual surplus in delivery to 2023 and therefore the lack of justification for GB release, and/or failure to give reasons on this issue (Ground Seven).
The grounds were argued in a different order, and I deal with them below in a different order, but it is useful to retain the original numbering for clarity.
The detailed factual and policy history
The grounds are detailed, and in order to properly understand them it is necessary to set out in considerable detail the development of the relevant policies and the various arguments that were being put over a considerable period of time. It is also necessary to consider a number of the documents that were produced through the SAP process. These are sometimes exceedingly confusingly numbered and I will try to refer to them by date in order to differentiate the documents.
The Core Strategy (CS) (2014)
The Leeds Core Strategy was adopted in November 2014. Policy SP10 of the Core Strategy stated that a review of the Green Belt would be needed to accommodate the scale of housing identified in Policy SP6. The most relevant policies are as follows;
SPATIAL POLICY 1: LOCATION OF DEVELOPMENT
To deliver the spatial development strategy based on the Leeds settlement hierarchy and to concentrate the majority of new development within and adjacent to urban areas, taking advantage of existing services, high levels of accessibility, priorities for urban regeneration and an appropriate balance of brownfield and greenfield land, the distribution and scale of development will be in accordance with the following principles:
(i) The largest amount of development will be located in the Main Urban Area and Major Settlements. Smaller Settlements will contribute to development needs, with the scale of growth having regard to the settlement's size, function and sustainability,
(ii) In applying (i) above, the priority for identifying land for development will be as follows:
(a) Previously developed land and buildings within the Main Urban Area/relevant settlement,
(b) Other suitable infill sites within the Main Urban Area/relevant settlement,
(c) Key locations identified as sustainable extensions to the Main Urban Area/relevant settlement….
SPATIAL POLICY 6: THE HOUSING REQUIREMENT AND...
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