Aireborough Neighbourhood Development Forum v Leeds City Council

Hearing dates: 4 and 5 February 2020

Approved Judgment

This judgment deals with the relief to be granted after findings in the substantive case [2020] EWHC 1461 (Admin) in which I found a number of errors of law in the process leading to the adoption of the Leeds Site Allocations Plan (SAP). I have had written submissions from all the parties in respect of the relief that I should order. There are in effect two issues before me: firstly, whether the appropriate remedy should be a quashing order under section 113(7)(a) of the Planning and Compulsory Purchase Act 2004 (the 2004 Act) or an order for remittal of the SAP under s.113(7)(b); and secondly, the scope of that order.

Section 113(7)-(7C) of the 2004 Act provides:

—(7) The High Court may –

(a) quash the relevant document;

(b) remit the relevant document to a person or body with a function relating to its preparation, publication, adoption or approval.

(7A) If the High Court remits the relevant document under subsection (7)(b) it may give directions as to the action to be taken in relation to the document.

(7B) Directions under subsection (7A) may in particular –

(a) require the relevant document to be treated (generally or for specified purposes) as not having been approved or adopted;

(b) require specified steps in the process that has resulted in the approval or adoption of the relevant document to be treated (generally or for specified purposes) as having been taken or as not having been taken;

(c) require action to be taken by a person or body with a function relating to the preparation, publication, adoption or approval of the document (whether or not the person or body to which the document is remitted);

(d) require action to be taken by one person or body to depend on what action has been taken by another person or body.

(7C) The High Court's powers under subsections (7) and (7A) are exercisable in relation to the relevant document –

(a) wholly or in part;

(b) generally or as it affects the property of the applicant

The scope of the power to remit was considered by HHJ Robinson (sitting as Deputy Judge of the High Court) in University of Bristol v North Somerset Council[2013] EWHC 231. There are two judgments and the second deals with relief. At [6] the Judge refers to s.113 having been amended to “expand the court's powers by providing an alternative remedy”. At [7] the Judge said:

7. In my judgment the amendments to s.113 make it clear that, instead of quashing the plan (or part), the court may remit it to an earlier stage in the process with appropriate directions. If the plan were quashed, it would no longer be possible to remit it to an earlier stage because the plan would no longer exist. For example, it would not be possible to direct that the plan be treated as having been submitted for public examination because there would be no plan to examine. In this example, subsection (7B) makes clear that, if remitted, the court may direct that the plan be treated as not adopted and require the public examination to take place again. In effect, the court may direct that the plan be remitted to any earlier stage in the process prior to adoption with a direction that the statutory steps be retaken from that point.”

The claimant in that case had sought a quashing order and argued that remittal would give rise to practical problems as a result of the passage of time and the need for much further work. The judge said at [10]:

“The University did not pursue an argument that the Inspector's decision was irrational, therefore it would have been open to him in principle to accept the Council's housing figure of 14,000 dwellings. In those circumstances I consider the starting point is that the examination of the relevant policies should be reconsidered. It was only at this stage that any illegality occurred and the illegality could be remedied by going through the examination process again.”

The most important passage is at [12]:

“The passage of time may well require the Council to update its evidence and, potentially, to invite the Inspector to recommend modifications to policies. That may require an SEA and further consultation. However, this is a not an unusual procedure and although it will extend the process I consider that the delays and expense to objectors and the Council will be less than if the process has to go back to the start. Further, it is by no means a foregone conclusion that the Inspector would take the same view as that of the BANES Inspector or that the Council would agree that the Core Strategy should be withdrawn. In any event, decisions as to how best to progress the Core Strategy are for the Council. To quash the relevant policies would predetermine further decisions of the Council and an Inspector about the Core Strategy which are matters of planning judgment for them and not the court.”

In JJ Gallagher v Cherwell DC[2016] EWCA Civ 1007 the Court of Appeal considered the extent of the powers under s.113(7) and said at [29]:

“29. The court's powers to grant appropriate relief under section 113(7), (7A), (7B) and (7C) are widely drawn. They afford the court an ample range of remedies to overcome unlawfulness in the variouscircumstances in which it may occur in a plan-making process. As was recognized by the judge in University of Bristol, the provisions in subsection (7A), (7B) and (7C) were a deliberate expansion of the court's powers to grant relief where a local plan is successfully challenged under section 113. They introduce greater flexibility in the remedies the court may fashion to deal with unlawfulness, having regard to the stage of the process at which it has arisen, and avoiding – when it is possible to do so – uncertainty, expense and delay. They include a broad range of potential requirements in directions given under subsection (7A), all of which go to “the action to be taken in relation to the [relevant] document”. The four types of requirement specified in subsection (7B) are stated to be requirements which directions “may in particular” include. None of them, however, would warrant the substitution by the court of its own view as to the issues of substance in a plan-making process, or as to the substantive content of the plan – its policies and text. They do not allow the court to cross the firm boundary separating its proper function in adjudicating on statutory challenges and claims for judicial review in the planning field from the proper exercise of planning judgment by the decision-maker.”

The claimant argues that I should make a partial quashing order in the following terms:

“All those parts of the Leeds SAP which allocate sites for housing development within the Green Belt (and which thereby take those sites out of the Gren Belt) are quashed.”

The Claimant seeks to distinguish University of Bristol on the grounds that (a) there the only error found was in relation to the reasons, as opposed to the present case where I found a significant error of fact as well as a failure to give adequate reasons. (b) There would be no significant additional costs from quashing rather than remittal as there is planned to be a SAP review in any event. (c) That the GB housing allocations here are unlawful, whereas in the University of Bristol case the judge had said that the policies themselves were lawful.

The Claimant argues that the scope of the order should be across Leeds rather than being limited to Aireborough. The Claimant rightly points out that the substantive judgment found a significant error of fact amounting to an error of law underlying the case for all the GB allocations across the area. It also refers to the comment at J99 that the Council had engaged in “a good deal of ex post facto justification” in its efforts to uphold the SAP. It argues that the outcome proposed by the other parties, namely limited relief to Aireborough, would undermine the integrity of the planning process in...