D B Schenker Rail (UK) Ltd and Another v Leeds City Council
| Jurisdiction | England & Wales |
| Judge | Her Honour Judge Belcher |
| Judgment Date | 24 September 2013 |
| Neutral Citation | [2013] EWHC 2865 (Admin) |
| Docket Number | Case No: CO/2198/2013 |
| Date | 24 September 2013 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 2865 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Combined Court Centre
Oxford Row, Leeds
Her Honour Judge Belcher
Case No: CO/2198/2013
Mr Reuben Taylor (instructed by Walton & Co) for the Claimants
Mr John Hobson QC (instructed by Leeds City Council) for the Defendant
This is a claim pursuant to Section 113 Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). The Claimants seek, by Ground 3, to challenge the adoption of the Natural Resources and Waste Local Plan (" the NRWLP") adopted by the Defendant, Leeds City Council ("LCC"), on 16 January 2013. By Grounds 1 and 2 the Claimants seek to quash two policies in the adopted NRWLP "in so far as they relate to two sites" which are owned by the Claimants. The NRWLP is a development plan document and forms part of the local development plan. It covers a period of 15 years from the date it was adopted, namely from 16 January 2013 to 15 January 2028.
In this Judgment, references to the trial bundles will be by bundle number, tab number and page number, for example, B1, Tab 12, page 136. The relevant policies in the adopted plan which the Claimants seek to quash are MINERALS 13 and MINERALS 14. In earlier versions of the documents these policies were numbered MINERALS 14 and 15 respectively, and are so numbered in most of the documentation before me. In this Judgment I shall refer to the policies at all times by their final numbers. This includes when quoting from the documents in the bundles where I shall substitute the final policy numbers where appropriate. Plainly, the final version will require no substitution. To indicate a substitution the number will be quoted in italics and placed in square brackets. Thus a document (other than the final version) which refers to MINERALS 14 will, if quoted, refer to "MINERALS [ 13]". Similarly, I shall refer to paragraph 3.36 and 3.37 under MINERALS 13 by their final numbers and will substitute 3. 36 or 3.37 as appropriate for earlier numbered versions using the same method of square brackets and italics to indicate substitution.
The First Claimant, DB Schenker Rail (UK) Ltd ("Schenker") has a long leasehold interest in a site at Bridgewater Road South, Leeds ("the Bridgewater Road Site"). The freeholder is Network Rail. The site has an existing rail line which is, and was at the time of adoption of the NRWLP, in use for the importation of aggregates from the Yorkshire Dales with a siding used by Tarmac. On the site there is also an asphalt plant operated by Heidelberg Cement. This site is allocated in the NRWLP under MINERALS 13 as "suitable for the provision of new rail sidings and may be suitable for a canal wharf". This site is referred to in the planning documents as Site 21.
The Second Claimant, Towngate Estates limited ("Towngate") owns a site at Stourton Point, Haigh Park Road, Leeds ("the Haigh Park Road site"). This site has canal frontage and 3 existing historic wharves. The site is leased to ASD Metal Services who used the wharves for a successful trial period in 2008. The canal side is reinforced with steel and rock to enable barges to come close alongside for loading. This site is safeguarded under MINERALS 13 as historic wharfage. There are photographs showing the wharves at B1, Tab 9, pages 98–101. This site is referred to in the planning documents as Site 14.
The Legal Framework
Section 113(3) of the 2004 Act provides that a person aggrieved by a relevant document may make an application to the High Court on the ground that the document is not within the appropriate power and/or a procedural requirement has not been complied with. There is no dispute that the NRWLP is a relevant document for the purposes of Section 113. Section 113 "…brings into play the normal principles of administrative law" (Per Keene LJ in Blyth Valley Borough Council v Persimmon Homes (North East) Limited [2008] EWCA Civ 861 at paragraph 8). Section 113(7) of the 2004 Act gives the High Court power to quash the document in whole or part and by Section 113 (7C) the powers are exercisable generally or in relation to property of the Applicant. This case focussed on the two sites of the respective Claimants. Mr Hobson drew to my attention that the owners of other similarly affected sites have not sought to challenge either the adoption of the NRWLP or the two policies. Whilst that may be relevant to issues of any relief to be granted, it does not, in my judgment, assist me in any way on the substantive issues in this case.
By Section 70(2) Town and Country Planning Act 1990 ("the 1990 Act"), a local planning authority dealing with an application for planning permission must "… have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations." By Section 38(6) of the 2004 Act any determination of a planning application must be made in accordance with the development plan unless material considerations indicate otherwise. The effect of these sections, taken together, is that there is a presumption that any application for planning submission which accords with the development plan will get permission unless material considerations indicate otherwise. Conversely, any application which does not accord with the development plan will be refused unless material considerations indicate otherwise. As already stated the NRWLP is a 15 year plan and will affect development on the sites in question until at least January 2028.
Section 19 of the 2004 Act sets out certain requirements in connection with the preparation of local development documents. By Section 19(2) the local planning authority must have regard to various matters including "(a) national policies and advice contained in guidance issued by the Secretary of State" and "(i) the resources likely to be available for implementing the proposals in the document". By Section 19(5) of the 2004 Act, the local planning authority must also "… carry out an appraisal of the sustainability of the proposals in each development plan document…" and prepare a report on the appraisal's findings.
Under Section 20 of the 2004 Act, when a development plan document is thought to be ready, the planning authority must submit it to the Secretary of State who appoints a planning inspector to carry out an independent examination of the document. So far as relevant for the purposes of this case, Section 20(5) provides that the purpose of the independent examination is to determine whether it satisfies the provisions of Section 19 and whether it is "sound". By Sections 20(7B) and (7C), if the Inspector does not consider it would be reasonable to conclude that the document does satisfy the requirements of Section 19 and is sound, if asked to do so by the local planning authority, he must recommend modifications to render the document compliant with Section 19 and sound. These are known as main modifications. Where the Inspector recommends main modifications, the local planning authority may only adopt a development plan document with those main modifications (Section 23(2A) and (3) of the 2004 Act).
There is no statutory definition of the word "sound" but it has been the subject of guidance issued by the Secretary of State at paragraph 182 of the National Planning Policy Framework ("the NPPF") which provides as follows:
"The Local plan will be examined by an independent inspector whose role is to assess whether the plan has been prepared in accordance with the Duty to Cooperate, legal and procedural requirements, and whether it is sound. A local planning authority should submit a plan for examination which it considers is "sound" — namely that it is:
• Positively prepared— the plan should be prepared based on a strategy which seeks to meet objectively assessed development and infrastructure requirements, including unmet requirements from neighbouring authorities where it is reasonable to do so and consistent with achieving sustainable development;
• Justified— the plan should be the most appropriate strategy, when considered against the reasonable alternatives, based on proportionate evidence;
• Effective— the plan should be deliverable over its period and based on effective joint working on cross-boundary strategic priorities; and
• Consistent with national policy— the plan should enable the delivery of sustainable development in accordance with the policies in the Framework." (B2, Tab 4, page 531)
When considering Ground 3 of the Claim it will be necessary to consider the Environmental Assessment of Plans and Programmes Regulations 2004 ("the 2004 Regulations"). Ground 3 is a distinct Ground and I consider it more convenient to set out the relevant 2004 Regulations when I come to consider that Ground in detail below.
Nation Planning Policies
The relevant national Planning policies are found in the NPPF. For ease of reference, in this Judgment I shall refer to Paragraphs of the NPPF simply by NPPF followed by the relevant paragraph number, for example NPPF 22. The parties agree that the following are the relevant policies for the purposes of these proceedings:
i) Planning policies should avoid the long term protection of sites allocated for employment use where there is no reasonable prospect of a site being used for that purpose. Land allocations should be regularly reviewed. Where there is no reasonable prospect of a site being used for the allocated employment use, applications for alternative uses of land or...
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