Town and country planning – Site allocations plan – Claimant challenging adoption of development plan by defendant local authority – Whether defendant failing to consider and consult upon reasonable alternative to continuing with plan in changed circumstances – Whether inadequate reasons being given for decision causing prejudice to claimant – Whether error of fact amounting to error of law – Claim allowed in part
The claimant was an organisation set up in 2012 to support the regeneration and sustainable development of the Aireborough Neighbourhood as a non-parished area within the defendant local authority’s area. In 2014 the claimant was officially designated by the defendant as a neighbourhood forum under the Localism Act 2011 for the purposes of preparing the neighbourhood plan. The claimant subsequently obtained the statutory five-year renewal of that designation.
The defendant had adopted a figure for its housing requirement in the Leeds Core Strategy 2014 which had to be revised downwards to accord with revised national guidance. A draft site allocation plan (SAP) had been submitted for examination in 2017 and made allocations to meet the development needs identified in the 2014 core strategy. Two thirds of the defendant’s area was designated as green belt. In the core strategy and the SAP the entire area was divided into 11 housing market characteristic areas (HMCAs) covering both urban and rural areas.
The high level of housing need identified was considered to constitute exceptional circumstances to justify releases of green belt land. However, In the course of the SAP examination it became clear that the housing needs identified in the core strategy were being significantly undermined by lower population projections, a lower housing requirement calculated by reference to the government’s new standard methodology and a lower requirement being put forward in the emerging core strategy selective review (CSSR).
The claimant applied under section 113 of the Planning and Compulsory Purchase Act 2004 to challenge the decision to adopt the SAP. The claimant argued, amongst other things, that the reduced level of likely actual housing need significantly undermined the case for exceptional circumstances for green belt release and prompted the need for a fundamental rethink as to the need for, scale of, and distribution of green belt release in the light of the emerging CSSR figures.
Held: The claim was allowed in part.
(1) The significant fall in housing requirement numbers was a fundamental change that necessitated the consideration of reasonable alternatives within the SAP process. It was a drop of around 25% for each remaining year of the SAP including, critically, the five years up to 2023. In circumstances where national policy required exceptional circumstances to be shown to justify any green belt release, it would be irrational to say that a fall of 25% requirement with the potential green belt consequences would not be a fundamental change. It was clear from the defendant’s own approach that it thought the change in the requirement figures needed an assessment of different possible strategies going forward. A reasonable alternative to continuing with the SAP would have been to suspend the examination pending the conclusion of the CSSR process which should have been clearly and transparently consulted upon. However, the claimant had not been prejudiced in that respect. It was inevitable that the defendant would have pressed on with the SAP even if there had been a formal consultation on the issue: Walton v Scottish Ministers [2013] PTSR 51 and R (on the application of Champion) v North Norfolk District Council [2015] EGLR 59 followed.
(2) The claimant strongly submitted that green belt land should not be released because, in the light of the emerging CSSR, there was no longer a need for green belt release and thus no longer exceptional circumstances. That was a principal important controversial issue in the SAP process. In those circumstances, there was a duty on the SAP inspectors to explain clearly their reasons on the issue. There was no clear explanation as to why, in the light of the drop in the requirement figure, they still decided there were exceptional circumstances justifying the level of green belt release in the SAP. The claimant was prejudiced by that failure, both by the simple fact that it was unclear what the inspectors considered to be the exceptional circumstances, but also by the fact that the end result was the loss of a significant quantum of green belt land which on one analysis was not properly justified in terms of national policy. That amounted to an error of law: and CPRE Surrey v Waverley Borough Council [2019] EWCA Civ 1826; [2019] PLSCS 208 considered.
(3) The inspectors were faced with a situation where the level of housing requirement had fallen considerably. They needed to explain clearly how green belt release was justified in those circumstances. Although they did not have to do that in respect of each individual site, they did need to do so in respect of the approach they were taking to release. It might well have been reasonable to say that they thought the allocations of sites should continue on the basis of the same pro rata level as in the core strategy to provide an equitable distribution. But the inspectors needed to explain why they were assessing green belt sites within each HMCA as that was fundamental to the decision as to which sites to continue to release. The inspectors’ report did not give clear and adequate reasons for the approach that they took and that amounted to an error of law.
(4) A detailed analysis of the figures by the claimant had established that, in determining whether there were exceptional circumstances justifying green belt release, the SAP inspectors had made an error which was sufficiently significant to have materially diminished the need for green belt release. That was a material error of fact that amounted to an error of law in the SAP. It could not be said that the error was such that the outcome, particularly in relation to the critical issue of green belt release, would have been inevitably or highly likely to have been the same in any event.
Jenny Wigley (instructed by Town Legal LLP) appeared for the claimant; Juan Lopez (instructed by Leeds City Council Legal Services) appeared for the defendant; The first interested party did not appear and was not represented; Charles Banner QC and Matthew Fraser (instructed by Walker Morris LLP) appeared for the second interested party; James Corbet Burcher (instructed by Shoosmiths LLP) appeared for the third interested party.
Eileen O’Grady, barrister
Click here to read a transcript of Aireborough Neighbourhood Development Forum v Leeds City Council