Town and country planning – Practice and procedure – Site allocations plan – Court finding errors law in process leading to adoption of site allocations plan – Court asked to determine appropriate remedy – Whether court to make quashing order – Whether case to be remitted to secretary of state – Order accordingly
In a successful challenge to the adoption of the Leeds Site Allocations Plan (SAP), the court ruled that the large number of green belt allocations in the plan were legally flawed on the grounds that inadequate reasons had been given for the decision causing prejudice to the claimant and there had been an error of fact amounting to an error of law: [2020] EWHC 1461 (Admin).
Following the judgment, the parties made written submissions on the issue of the appropriate relief to be given. There were in effect two issues before the court: (i) whether the appropriate remedy should be a quashing order under section 113(7)(a) of the Planning and Compulsory Purchase Act 2004 or an order for remittal of the SAP under section 113(7)(b); and (ii) the scope of that order.
Held: An order was made accordingly.
(1) The purpose of the extended powers in section 113 was to give the court a greater flexibility in deciding the appropriate relief depending on the nature of the unlawfulness and the stage of the process and seeking to avoid expense and delay where possible. The court was also mindful of the distinction between its role in deciding legal issues and matters of planning judgment which were for either the secretary of state or the local authority. In deciding what was the appropriate remedy the starting point had to be the nature of the legal errors found and how those errors could be remedied: University of Bristol v North Somerset Council [2013] EWHC 231 and JJ Gallagher v Cherwell District Council [2016] EWCA Civ 1007 followed.
(2) The defendant appeared to be seeking to characterise the errors as being in the inspectors’ reasons and, as such, capable of being remedied by simply requiring the inspectors to provide further reasons. That was not correct. The errors of law included a material error of fact giving rise to an error of law. A direction simply to provide further reasoning would not remedy that error. Further, the errors in the reasoning were so fundamental to the inspectors’ analysis that the court would not have in any event considered that merely requiring further reasoning was sufficient.
However, it was appropriate to remit that matter to the first interested party secretary of state, and through him the inspectorate, rather than quash either the whole or parts of the SAP. It seemed reasonable to start from the position that the process should be taken back to the stage where the error of law occurred rather than back to the beginning through quashing. That allowed precisely the flexible response that the amendments to section 113 were designed to create.
(3) If the matter was remitted then the defendant would have to decide what, if any, modifications it intended to propose to the inspectors. That was a matter of planning judgment for the defendant and it was not for the court to adjudicate on what approach the defendant took to exceptional circumstances for green belt release once the matter was remitted.
Once the SAP was remitted it was for the first interested party to make the appropriate arrangements. However, the court did not consider it essential that the matter should be put before different inspectors. Although that would normally be the case, here the inspectors were faced with enormously confusing documentation and figures. Although there were highly important errors made, on the facts of this particular case, that did not necessarily disqualify the same inspectors from considering the matter again. However, that was a matter for the first interested party.
(4) It would not be appropriate to limit the remittal of the SAP to those allocations that related to Aireborough. It was clear from the claim form that the claimant was seeking quashing/remittal of all the green belt allocations in the SAP. The grounds that the court found made out were not in any way limited to Aireborough. They were all matters that went to the green belt allocations in their entirety rather than having any area specific or site-specific rationale.
Although third parties would be impacted by the remittal of all green belt allocations in the SAP, the entire case was argued on the basis of green belt allocations in the SAP generally. A developer or landowner in a different part of Leeds would not have been able to advance a different and site-specific issue that could have made any difference to the conclusions reached. If there had been a large number of developers or landowners saying their interests could be affected, the court would have undoubtedly required them to join forces so that there would be no more than two interested parties. The argument that it would be unfair to third parties for all green belt allocations to be remitted did not stand up to scrutiny. Accordingly, the policies relating to green belt allocations of housing (including mixed use allocations) would be remitted to the first interested party.
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