R Miller Homes Ltd v Leeds City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart: |
| Judgment Date | 27 January 2014 |
| Neutral Citation | [2014] EWHC 82 (Admin) |
| Docket Number | Case No: CO/6890/2013 |
| Date | 27 January 2014 |
| Court | Queen's Bench Division (Administrative Court) |
[2014] EWHC 82 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds Combined Court
The Court House, 1 Oxford Row Leeds, LS1 3BG
Mr Justice Stewart
Case No: CO/6890/2013
Mr Gordon Nardell QC and James Burton (instructed by Eversheds LLP) for the Claimant
Ms Nathalie Lieven QC (instructed by Leeds City Council) for the Defendant
Introduction
The Claimant seeks an order quashing the Defendant's Interim Policy on Potential Release of Sites in the Protected Area of Search ("the Interim Policy") adopted by the Defendant Council by Executive Board resolution on 13 March 2013.
In this judgment I will use the following abbreviations:
LPA — Local Planning Authority
The 1990 Act — Town and Country Planning Act 1990.
The 2004 Act — Planning and Compulsory Purchase Act 2004
LDD — Local Development Document
DPD — Development Plan Document
SPD — Supplementary Planning Document
Residual LDD — an LDD which is neither a DPD nor an SPD.
NPPF — the National Planning Policy Framework
UDPR — the Defendant's Unitary Development Plan Review, adopted 2006
PAS — Protected Area of Search identified in the UDPR
EB — the Defendant's Executive Board
CPP — the Defendant's City Plans Panel
The grounds of challenge are that the Interim Policy is unlawful because:
(i) The policies it contains fall within regulation 5 of the Town and Country Planning (Local Planning) (England) Regulation 2012 ("the Regulations") and therefore could only be adopted (if at all) as a DPD or SPD. However the Defendant failed to follow the prescribed procedure for either a DPD or an SPD.
(ii) The Defendant contends that the Interim Policy is neither a DPD nor an SPD, but rather a residual LDD. Even if this is correct then the Defendant failed to consult adequately or at all before adopting the Interim Policy.
Appendix 1 to this judgment sets out the relevant provisions of the 1990 Act, the 2004 Act and the Regulations.
Appendix 2 to this judgment contains relevant paragraphs of the NPPF.
5.1 Section 70 of the 1990 Act requires an LPA in dealing with a planning application to have regard to the development plan and any other material considerations.
5.2 Section 38(6) of the 2004 Act requires a planning determination to be made in accordance with the development plan unless material considerations indicate otherwise.
5.3 Government policy is a material consideration; the NPPF is therefore a material consideration.
5.4 Other material considerations include SPDs and Residual LDDs.
5.5. Section 17 of the 2004 Act requires the LPA's LDD's to set out the LPA's policies relating to development and use of land. It also provides for regulations to prescribe, amongst other things, the descriptions of LDDs and their form and content.
5.6 Section 19 of the 2004 Act lists requirements for the preparation of DPDs and LDDs including, for either, that the LPA must have regard to national policies.
5.7 The 2004 Act introduces the concept of examination of public DPDs (only). This examination process, which is introduced by section 20, still involves an inspector, but was intended to be less legalistic than previously. Amongst other requirements the examination has as its purpose to determine whether a DPD satisfies the Regulations and whether it is "sound". [Para 182 NPPF defines "sound".]
5.8 Section 23 of the 2004 Act deals with the process of the LPA adopting LDDs.
5.9 Pursuant to section 17(7) of the 2004 Act, LDDs were made subject to regulations. The most recent regulations are the 2012 regulations. If an LPA wishes to adopt an LDD which falls within regulation 5 or regulation 6, then it must adopt them as a DPD or SPD and follow the process prescribed in the 2004 Act and in the regulations.
5.10 The 2004 Act also introduced the concept of "saved policies". UDPR is a saved policy. That means it has been saved by the Secretary of State as an old policy which predated the 2004 Act but which is still effective. [see also NPPF Annex 2: Glossary under "Local Plan"].
It is common ground that where an LPA is in the process of preparing/adopting a DPD, it can give some weight to it as Emerging Policy; this is a "material consideration". The further along its journey of preparation/adoption, the more weight can be given to such a document. However, if it has been objected to and the inspector's decision is still awaited, then relatively little weight can be given to the document as Emerging Policy. It was to plug this gap that the Defendant created and brought into effect the Interim Policy in the present case.
Factual Background as at the Date of the Claim
The Claimant intended to make an application to the Defendant for planning permission for housing development on a site at Grove Road, Boston Spa, close to the town centre. The Claimant has an option to purchase the site and wishes to develop it in order to construct just over 100 new dwellings. The site is within a PAS designated by policy N34 of the 2006 UDPR. This is the Defendant's statutory development plan.
The aim of policy N34 was to complement the green belt by safeguarding some non green belt land for "longer-term development". Sites in the PAS were protected by the following words:
"N34. Within those areas shown on the proposals map under this policy, development will be restricted to that which is necessary for the operation of existing uses together with such temporary uses as would not prejudice the possibility of long term development."
In 2006 it was considered unlikely that the PAS would need to be developed until the UDPR came to an end in 2016. This assumption proved to be incorrect, as it is accepted that the Defendant needs to strengthen its five year supply of housing land as required by the NPPF. Thus the Defendant needs to release some sites within the PAS for the development of houses. NPPF paragraph 49 explains that if the five year supply cannot be demonstrated:
"The housing application should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the sustainable supply of housing should not be considered up to date if the local planning authority cannot demonstrate a five year supply of deliverable housing sites."
NPPF introduced a presumption in favour of sustainable development (paragraphs 11 – 14). It also introduced the requirement to boost significantly the supply of housing, including identifying and updating annually a supply of specific deliverable sites sufficient to provide a five year supply. In addition to allocated sites i.e. sites identified in the development plan in force as allocated for housing, LPAs are permitted to make an allowance for windfall sites in certain circumstances. "Windfall sites" are sites which have not been specifically identified as available in the local plan process and normally comprise previously developed sites that have unexpectedly become available (see paragraph 47 – 49 NPPF; for the definition of windfall sites see Annex 2: Glossary NPPF).
In the Interim Policy are criteria against which the Defendant will consider granting planning permission for housing development in the PAS and therefore as a departure from policy N34. The Claimant seeks to quash the Interim Policy which requires locations to be "well related to the Main Urban Area or Major Settlements" defined in a settlement hierarchy proposed in the Defendant's emerging Core Strategy. As at the date of claim the Core Strategy had been objected to and a public examination of it was pending. The Claimant says that this requirement of the Interim Policy conflicts with UDPR S2 and H4 (windfall sites). Boston Spa is not a Main Urban Area. It is however listed under retail policy S2 as a town centre, the vitality and viability of which will be maintained and enhanced. The supporting text to H4 (para 7.2.15) states:
"It is likely that proposals will be acceptable in S2 service centres not within the MUA/SUA's …"
In short, absent policy N34, H4/S2 UDPR may be seen to favour a housing development in Boston Spa. The Interim Policy criteria are, however, unfavourable to release of the site for housing development.
Update
The preceding paragraphs set out the position as of the date of claim, namely June 2013. Since then the Claimant has submitted outline and full applications for planning permission for the site. The Defendant did not determine the outline application within the statutory period and the Claimant has appealed. The full application remains to be considered and is to be reported to the CPP on 16 January 2014 (the first day of the hearing). In the report of the Chief Planning Officer to the CPP, the Interim Policy is said to be a "material consideration". The Core Strategy was submitted to the Secretary of State for examination on 26 April 2013. It is due to resume in May 2014, the inspector apparently having raised a number of concerns. Thereafter, the Site Allocations DPD will move forward.
In the meantime the Defendant has applied the Interim Policy to proposals for housing development of PAS sites. The Defendant states that it intends to produce a pre-submission draft of the Site Allocations DPD in autumn 2014. The Core Strategy will thus set out the strategic policies for housing land including total housing target. The Site Allocations DPD will set out the individual sites where the Defendant supports the grant of planning permission in order to meet the overall numbers of new dwellings in the Core Strategy...
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