TV Harrison CIC v Leeds City Council
| Jurisdiction | England & Wales |
| Judge | Lane J |
| Judgment Date | 16 December 2021 |
| Neutral Citation | [2022] EWHC 130 (Admin) |
| Docket Number | Case No: CO/0511/2021 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
The Queen on the Application of:
and
[2022] EWHC 130 (Admin)
THE HONOURABLE Mr Justice Lane
Case No: CO/0511/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
IN AN APPLICATION FOR JUDICIAL REVIEW
For the claimant: Ms J. Wigley QC (instructed by Leigh Day)
For the defendant: Mr T. Straker QC and Ms V. Sedgley (instructed by Leeds City Council Legal Services)
The interested party did not appear and was not represented.
Hearing date: 16 December 2021
Approved Judgment
A. THE LAND
The claimant, which is a community interest company, challenges the decision of the defendant on 22 December 2020 to refuse to include in a list of land in its area that is of community value, the TV Harrison Sports Ground, Oldfield Lane, Wortley, Leeds 12 (“the land”). Part of the land is owned by the defendant and part by the interested party (“IP”). The latter currently has a 99 year lease of the part which is owned by the defendant. The list is required to be maintained under section 87(1) of the Localism Act 2011.
Permission to bring judicial review was granted on all grounds on 25 May 2021 by HHJ Belcher, sitting as a Judge of the High Court.
The decision under challenge follows the previous refusal by the defendant on 18 June 2020 to include the land in question in the list of assets of community value. That previous decision was quashed by consent by Lang J on 4 November 2020.
The land is described by the claimant as a longstanding sports field, said to be greatly valued by the local community who, in recent times, have expended time and effort restoring it to a useable condition. It is resorted to for informal leisure and recreational activities and, following the recent restoration works, is now being used again informally as a sports field, including football matches.
The land is allocated for housing in the Leeds Site Allocations Plan 2019 (“the SAP”). Although it is said that this allocation resulted from an error by the defendant, relating to a supposed sufficiency of outdoor sports green space in the ward in which the land is located, it is common ground that it is now too late to bring any direct challenge to the allocation.
On 7 April 2020, the claimant's predecessor, TV Harrison Community Action Group, submitted a nomination to the defendant to add the land to the defendant's list of assets of community value. The nomination was supported by a number of sports foundations and clubs, local ward councillors, the Imam of a local mosque and leaders of the Sikh community. The nomination described the following activities as having been taking place on the land:
morning runs;
half term sports activities for children;
community days;
regular football matches and rounders matches for children and adults;
continued and regular use by junior football teams for training;
a football derby match between Armley and Wortley;
fundraising events; and
other community sports and social activities.
Following the quashing of the original decision of the defendant not to include the land in the list, the nomination fell to be determined afresh. Before that re-determination took place, however, a number of events occurred.
In December 2020, the defendant entered into an Agreement for Sale (“the Agreement”) under which the defendant agreed to purchase part of the land owned by the IP, with the latter agreeing to surrender its lease to the defendant. The Agreement is conditional upon a number of conditions precedent, which at the date of the decision had not been met. These include the grant of “detailed” planning permission by the defendant (as local planning authority) to the defendant (as applicant) for development of the land by the construction of no fewer than 47 dwellings. The Agreement is also subject to a “disposal condition”, under which the defendant may terminate the Agreement in certain circumstances including if the land is listed as an Asset of Community Value (“ACV”).
Under clause 25.2 of the Agreement, the IP is required to use its reasonable endeavours to procure that any ACV nomination is dismissed, so as to be of no further effect or consideration, and so as to be not capable of impeding the disposal of the land as envisaged by the Agreement for residential development. Under clause 25.3, the defendant is required to provide the IP with such assistance as it reasonably requires in relation to procuring the dismissal of the ACV nomination.
On 16 December 2020, the defendant, in its capacity as local housing authority, made an application to itself as local planning authority for outline planning permission for residential development of the land.
B. THE DECISION
The defendant's re-determination of the claimant's nomination was made pursuant to an Officer's Report (“the OR”).
“Summary”
The OR said there was no information from the defendant's Parks & Countryside Service or from the IP “to confirm or not” the description given in the nomination about activities that had been taking place on the land. The summary noted that the land had been allocated for housing under the SAP; and that there were “firm and settled plans by” the defendant, in its capacity as local housing authority, to develop the land for housing, subject to the grant of planning permission; and that it was “therefore recommended that it is reasonable for the Council to conclude that it is not realistic to think that there can continue to be non-ancillary use of the site which will further (where or not in the same way) the social well-being or social interests of the local community, and therefore the site should not be included in the List of Assets of Community Value”.
“Recommendations”
The OR recommended that the Head of Asset Management should not include the site in the list, on the basis that the criterion in section 88(1)(b) of the 2011 Act had not been met.
“Main Issues”
In the body of the OR, it was stated at paragraph 3.1 that the report “has been based on an assessment of the nomination form and previous site visits by the Council's case officers, and on information provided by the Council in its capacity as local housing authority”.
At paragraph 3.5, it was reiterated that the site was said to have been “greatly improved by the local community and is being used for informal leisure and recreational activities, and is now being used again informally as a sports field”. The OR noted that this “has been confirmed by local Ward Members”.
At paragraph 3.6, the OR observed that although uses of the site may have taken place without the permission of the IP and may have been trespassory in nature, case law indicated that beneficial recreational activities, although technically unlawful in that they had not been permitted, should still be taken into account as actual uses of the nominated land. Paragraph 3.6 concluded by saying that it was “accepted that there are current, non-ancillary uses of the site which further the social interest or social well-being of the local community”.
At the beginning of paragraph 3.7, the OR turned to the question of future uses.
“3.7 As regards whether it is “realistic to think that there can continue to be” eligible, non-ancillary uses of the site, the site has been identified by the Council in its capacity as local housing authority, as potentially suitable for council housing. This use would be in accordance with the formal allocation of this site (housing) within the Site Allocations Plan (SAP). Consultation on the SAP commenced in 2013 and it was formally adopted in July 2019. During the SAP process there was extensive consultation with a range of stakeholders, including statutory bodies such as Sport England, Historic England, and the Environment Agency. In addition to this local communities were consulted, including hard to reach groups such as Travellers and Show people. Following this extensive consultation the SAP was approved and adopted by Full Council in July 2019. At the point of adoption, there was the opportunity to challenge the allocation for the site and no such challenge came forward relating to the allocation for this site.
3.8 In addition, it is to be noted that the Council, in its capacity as local housing authority has taken significant steps towards acquiring and then developing the site for Council housing. The table below indicates the key activities undertaken by the Council as local housing authority. In addition, it is apparent that the local housing authority has a clear timetable for the outstanding matters which need to be resolved before the development of the site for housing can start … .
3.9 An Outline Planning Application has now been submitted by the Council in its capacity as local housing authority, seeking approval for the principle of development and highways access into the site, whilst ensuring that the proposals are compliant with the specific Site Requirements of the SAP with regards to on-site greenspace, green link and any other matters. A consultation exercise has been carried out in the local area via both social media and postal consultation to seek feedback on the proposals, and the outcome of this has been incorporated in the Application.
3.10 …
3.11 Plainly, it is not certain at this point in time that the proposed housing development will proceed, as no planning permission for such a development has been granted. However, the proposed development is compatible with the formal allocation of the site in planning terms. The Council in its capacity as local housing authority, has demonstrated a clear and settled intention to proceed, having taken formal decisions to that effect, and having put considerable resource into extensive site investigations, local...
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TV Harrison CIC v Leeds City Council
...was refused on 22 nd December 2020 but that refusal was quashed by order of Lane J on 25 th January 2022 pursuant to his judgment at [2022] EWHC 130 (Admin) following a contested hearing on 16 th December 2021. It follows that at the time of the Decision the second refusal to include the S......