TV Harrison CIC v Leeds City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eyre |
| Judgment Date | 06 July 2022 |
| Neutral Citation | [2022] EWHC 1675 (Admin) |
| Docket Number | Case No: CO/4135/2021 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 1675 (Admin)
Mr Justice Eyre
Case No: CO/4135/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Sitting in Leeds)
Leeds Combined Court Centre
1 Oxford Row
Leeds LS1 3BG
Jenny Wigley QC (instructed by Leigh Day) for the Claimant
Paul G Tucker QC and Kilian Garvey (instructed by Leeds City Council Legal Services) for the Defendant
The Interested Party did not attend and was not represented
Hearing dates: 20 th June 2022
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Eyre
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:00am on 6 th July 2022
Introduction .
The Claimant is a community interest company and in these proceedings it challenges the Defendant's decision of 25 th October 2021 (“the Decision”) whereby the Defendant granted itself outline planning permission in respect the erection of up to 61 affordable dwellings on land at Oldfield lane in Wortley (“the Site”).
In these proceedings, as in those before Lane J to which I will refer below, the Claimant has described the Site as a longstanding sports field which is valued by the local community. It is used for informal leisure and recreational activities and following restoration work by members of the local community it is being used informally as a sports field.
The Interested Party is the freehold proprietor of part of the Site with the Defendant owning the balance. The Interested Party holds a lease from the Defendant in respect of the Defendant's part of the Site but steps are in hand for the Defendant to acquire the entirety of the Site. The Interested Party has taken no part in the proceedings.
The Decision followed a meeting of the Defendant's South & West Plans Panel (“the Panel”) on 23 rd September 2021. The Panel resolved (on the casting vote of the chair) to defer the matter to allow notification to the Secretary of State (because the proposed permission related to the Defendant's own land) but subject to that to delegate the matter to the Chief Planning Officer for approval subject to conditions.
The Claimant challenges the Decision on four grounds:
i) Ground 1 alleged that in failing to take into account policy N6 of the Leeds Unitary Development Plan the Defendant had erred in law in that it had failed to have regard to the policies of the statutory development plan contrary to sections 70(2) of the Town & Country Planning Act 1990 and section 38(6) of the Planning & Compulsory Purchase Act 2004.
ii) Ground 2 alleged a failure to give adequate reasons for the Decision.
iii) By Ground 3 the Claimant alleged that the Defendant had failed to have regard to material considerations in respect of paragraph 99(a) of the National Planning Policy Framework and/or had irrationally failed to obtain relevant information in respect of the matters addressed there.
iv) Finally, by Ground 4 it was said that the report of the Chief Planning Officer to the Panel (“the Officers' Report”) had materially misled the Panel in respect of the adequacy of the measures intended to satisfy paragraph 99(b) of the NPPF and that as a consequence the Defendant had failed to have regard to a material consideration.
On 3 rd February 2022 HH Judge Klein granted permission on Grounds 1 and 3 but refused it on Grounds 2 and 4. The matter came before me for the substantive determination of Grounds 1 and 3 and for consideration of the Claimant's renewed application for permission in respect of Grounds 2 and 4 (to be followed if appropriate by determination of those grounds).
The Factual Background to the Decision .
The Site is described in the Officers' Report as an undeveloped greenfield site consisting mainly of grass with some trees along the western and northern boundaries. The Site is surrounded by residential properties interspersed with other local facilities such as shops, schools, public houses and the like. The Claimant sees that as a somewhat minimalist description of the Site which it says is greatly valued for its recreational use and, following the restoration work, as a sports field.
The Leeds Unitary Development Plan (Review 2006) (“the LUDP”) was adopted by the Defendant in July 2006. That plan included policy N6 which provided that:
“Development of playing pitches will not be permitted unless:
i. There is a demonstrable net gain to overall pitch quality and provision by part redevelopment of a site or suitable relocation within the same locality of the city, consistent with the site's functions; or
ii. There is no shortage of pitches in an area in relation to pitch demand locally…”
The following parts of the accompanying text are of note:
“5.2.22 Playing fields, pitches, courts and greens perform a special function for formal outdoor sport and recreation, allied to that of greenspace. Where the public has full access to a playing field (for example within a park), the playing field has been included within the protected greenspace designation (Policy N1) on the Proposals Map. Elsewhere, playing pitches without full public informal access, including private playing fields, have been identified with a separate notation as Protected Playing Fields on the Proposals Map. The discussion in this section covers both categories of playing field…
5.2.24 In some instances it may be appropriate to secure an overall improvement in pitch quality and provision through more effective layout or enhancement of existing pitches, or the relocation of facilities elsewhere. The relocation of playing fields and facilities from their present location will need to be clearly justified, and demonstrated to be not detrimental to pitch users. As a consequence relocated pitches will need to be accessible and well related to pitch demand. Any relocations will also need to take into account local deficiencies, against the overall aim to rectify any shortfalls in the surrounding areas, and against the background of the city-wide provision…”
The Site is marked as a protected playing pitch and part of the Urban Green Corridor on Map 21a which accompanied the LUDP.
There was debate before me as to the meaning of policy N6(i). The Claimant said that “quality” and “provision” were to be read together with the consequence that for development of a playing pitch to be permitted there had to be a demonstrable net gain of both quality and provision which could be achieved either by part redevelopment of a site or by suitable relocation. The Defendant said that the word “provision” related to the redevelopment or relocation and indicated the way in which the net gain in quality was to be achieved. The policy could have been more clearly expressed but I am satisfied that the Claimant's interpretation is correct. In favour of the Defendant's interpretation it can be said that it is a possible construction of at least the first part of the policy and that it will not often be the case that part redevelopment of a site could lead to a gain in provision but that it could more readily be seen as leading to a gain in quality. Nonetheless the Claimant's interpretation is preferable both as a matter of syntactical analysis and by reference to the rationale of the policy. The words “quality” and “provision” are more readily seen as both being matters which are described by “overall pitch” and in respect of which “gain” is required. That analysis is supported by the presence of “and” between them. Moreover, while “provision” could be read as relating to “redevelopment” it is more difficult to read it as relating to “suitable relocation” and in relation to the latter part of policy N6 it is hard to see of what there is to be provision. Not only is the Claimant's reading preferrable as a matter of syntax but one can readily understand why the policy required a gain both in quality and in provision if development of a playing pitch was to be permitted. Finally, although the accompanying text is not to be seen as determining the meaning of the policy it is of note that the reference at 5.2.25 to “an overall improvement in pitch quality and provision” is entirely consistent with the Claimant's reading of the policy but inconsistent with the Defendant's.
The LUDP has been replaced as the Defendant's development plan by the Core Strategy and the Site Allocations Plan (“the SAP”) both of 2019 together with the Aire Valley Area Action Plan and the Natural Resources & Waste Development Plan Document. However, a number of the policies in the LUDP were retained and remain part of the development plan and these include policy N6.
Policy HG2 of the SAP allocated the Site for housing identifying it as having a capacity of 61 units. At 3.11.9 the SAP provided that:
“The Site Allocations Plan housing allocations mean that should a planning application for housing on an allocated site be submitted to the Council, it is acceptable in principle by virtue of it being allocated for that use in the Local Plan. However, each planning application is judged on its individual merits and where there are specific requirements that will need to be applied, these are listed against each site below…”
The site requirements for the Site were:
“The development should provide new greenspace to extend the existing area of greenspace to the north and to create a green link across the site from this greenspace to Oldfield Lane, in accordance with West Leeds Gateway SPD. The existing sports facilities should be...
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