Thornhill Estates Ltd v Secretary of State for Communities and Local Government Leeds City Council (Interested Party (1) Farsley Residents Action Group (Interested Party (2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 04 November 2015 |
| Neutral Citation | [2015] EWHC 3169 (Admin) |
| Docket Number | Case No: CO/1791/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 November 2015 |
[2015] EWHC 3169 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Leeds Administrative Court
The Court House, 1 Oxford Row, Leeds LS1 3BG
Mr Justice Stewart
Case No: CO/1791/2015
Martin Kingston QC & Jenny Wigley (instructed by Walker Morris) for the Claimant
Tim Buley (instructed by Government Legal Department) for the Defendant
Nathalie Lieven QC (instructed by Leeds City Council) for the Interested Party (1)
Hearing dates: 19 & 20 October 2015
Introduction
On 10 March 2015 the Defendant (referred to in this judgment as "D" or "SoS") refused outline planning permission for some 400 dwellings and associated works at Bagley Lane/Calverley Lane, Farsley, Leeds. The Claimant (C) challenges that decision under section 288 of the Town & Country Planning Act 1990.
A list of abbreviations used in this judgment (in addition to those set out in paragraph 1 above) is contained in Appendix I.
There are 6 Grounds of claim which fall into 2 broad categories:
(i) Failure to take into account material considerations relating to the application of development plan policy (Grounds A and B).
(ii) Material errors in the calculation of LCC's 5 year supply of housing land (Grounds C — F).
In Appendix 2 to this judgment are contained section 38(6) of the Planning and Compulsory Purchase Act 2004 and the material paragraphs of NPPF, NPPG, LUDPR and CS.
Outline Chronology
Key dates in the chronology are:
2006— Adoption of LUDPR (including Policy N34).
21 September 2012— C applied for outline planning permission.
13 March 2013— LCC's Executive Board adopted PAS Interim Policy.
25 June 2013— C lodged an appeal against the LPA's failure to determine the application.
04 July 2013— The appeal was recovered for the SoS's determination pursuant to section 79 and paragraph 3 of schedule 6 of the Town & Country Planning Act 1990.
01 August 2013— The LPA agreed an Officer's Report suggesting reasons for refusal should the LPA have had the opportunity to determine the application. In short the release of the site would be premature, being contrary to policy N34 UDPR and paragraph 85 NPPF and not meeting the criteria of the Interim Policy, together with the highway concerns and the requirement for a section 106 agreement.
November 2013— Inquiry by planning inspector.
27 January 2014— Inspector's 1 st Report recommending that the appeal be allowed and granted.
27 January 2014— Judgment handed down in R(Miller Homes Limited) v Leeds City Council [2014] EWHC 82 (Admin) ("the Miller Homes case"). PAS Interim Policy held to be lawful.
3 July 2014— SoS directs the planning inquiry to be re-opened on the basis that there were two issues upon which he was not sufficiently informed. The relevant issue was the five year supply of housing. The other matter (the impact on bats) subsequently became irrelevant.
5 September 2014— CS Inspector's Report.
26 September 2014— Planning permission granted for housing development of adjacent PAS site at Calverley Lane, Farsley.
11–14 November 2014— Planning Inquiry reconvened.
12 November 2014— LPA adopts the CS (including the up to date housing requirement and distribution plans as approved by the CS Inspector).
16 December 2014,
6 and 3 January 2015— Development Plan Panel meetings on draft Site Allocations Proposals — principle of current PAS land for Housing Allocation or to be retained as Safeguarded Land (PAS) considered at these meetings.
27 January 2015— Inspector's 2 nd Report.
5 February 2015— C wrote to D drawing attention to LCC's intended withdrawal of PAS Interim Policy.
11 February 2015— LCC's Executive Board withdrew its PAS Interim Policy with immediate effect and also agreed its Officer's proposals for site allocations to form the basis of a draft Site Applications Plan to be prepared and published later in 2015. On the same date LCC brought this decision to D's attention in correspondence. Also Executive Board meeting on draft Site Allocations Proposals — principle of current PAS land for Housing Allocations or to be retained as Safeguarded Land (PAS) established.
10 March 2015— D issued the decision subject to this claim.
March 2015— Appeal to Court of Appeal in Miller Homes case withdrawn (apparently because of withdrawal by LCC of Interim Policy).
17 April 2015— Proceedings issued.
15 July 2015— Executive Board decide to publish Site Allocations Draft Publication Plan for consultation.
22 September 2015— Draft Site Allocations Plan published for consultation.
The Inspector's 1st Report
Matters relevant to the present claim arising from the Inspector's 1 st Report are:
(i) The Development Plan relevant to the appeal at that time comprised the LUDPR. 1 The site was identified as PAS land under Policy N34 LUDPR, that policy being intended to ensure the endurance of green belt boundaries by designating land for longer term development needs. 2
(ii) The LUDPR was to be replaced by the emerging Leeds LDF, the publication draft of the Leeds CS being at the examination stage. 3 Draft Policy SP6 of the CS indicated that 70,000 (net) new dwellings would be accommodated between 2012 and 2028 with a "step up" whereby 3,660 dwellings per annum would be accommodated between 2012 – 2013 and 2016 – 2017 with 4,700 per annum between 2017 – 2018 to the end of the plan period. 4
(iii) An interim policy for PAS land had been introduced by LCC in March 2013, this interim policy incorporating criteria against which the release of PAS sites for housing would be considered. 5
(iv) It was appropriate to use the CS total housing requirement in that it reflected both objectively assessed need and current national and local housing growth strategies, the Appellants accepting that around 70,000 dwellings was a reasonable requirement for the CS plan period. 6
(v) As to the PAS interim policy, this was something to which the Inspector attached limited weight on the basis that it represented a pragmatic approach by LCC to ensuring an ongoing supply of housing land pending the publication of the Site Allocation Plan. 7 He held that the proposal met some but not all of the PAS interim policy criteria. 89
(vi) The development was "sustainable development" and there was no basis to resist the development on grounds of educational or health provision; further the impact on highways and drainage would be acceptable. 10
(vii) The proposal would result in an adverse impact on local character and identity and the loss of a site of intrinsic value. 11
(viii) The proposal was contrary to the provisions of policy N34 which was the starting point; there were adverse impacts on local character and identity and the development was not fully compliant with PAS interim policy. Balanced
against this were other material considerations one of which was that there was not a five year supply of housing land. 12
In the Overall Conclusions in the 1 st Report the Inspector said this:
"200. As a five year supply of deliverable housing sites has not been demonstrated relevant policies for the supply of housing should not be considered up-to-date. Policy N34 relates to areas of land safeguarded for long-term development, including housing and Policy H3 deals with the delivery of housing. Both should be considered as policies relevant to the supply of housing and are, therefore, out of date. Paragraph 14 of the Framework indicates that where relevant development plan policies are out-of-date planning permission should be granted, unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies of the Framework as a whole. There are no specific policies in the Framework that indicate that development should be restricted.
201. The conflict with Policy N34, taking into account its out-of-date status, and the adverse impacts on local character and identity do not, in themselves, significantly and demonstrably outweigh the benefits…The PAS Interim Policy has been subject to legal challenge…and is of limited weight. The inconclusive position of housing land development opportunities needs to be seen in the context of the lack of a five year supply in the Council area as a whole, the national policy test…."
The Inspector dealt with the five year housing land supply in paragraphs 170 – 179 of the first report before concluding that 13 the evidence indicated that a five year housing supply could not be demonstrated. His reasoning in summary was as follows:
(a) The emerging CS housing requirement was the most appropriate to be used in the period up to 2028 but there were three main issues between the parties in calculating the five year housing supply requirement.
(b) The first was the "step up approach" within the CS indicating a smaller number of dwellings per annum to be provided up to 2016/2017. The Inspector said that pending receipt of the Inspector's Report into the CS examination the CS average requirement of 4,375 units per annum rather than the "step up" was the approach to be followed. This led to a five year requirement of 21,875 dwellings. 14
(c) Secondly, there was an undisputed backlog i.e. shortfall in provision. That under supply should normally be dealt with in the following five years rather than over the whole plan period. 15
(d) Thirdly C was arguing for a buffer of 20%. The Inspector found that a buffer of 5% should be added to the five year...
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