Town and country planning – Development plan – Inspector – Defendant local authority proposing to adopt development plan – Claimants challenging designation of their sites under plan – Inspector proposing certain modifications – Plan being adopted subject to modifications – Claimants challenging validity of plan – Whether policies being irrational or perverse – Whether policies conflicting with National Planning Policy Framework (NPPF) – Claim allowed in part
The first claimant company had a long leasehold interest in a site in Leeds (Bridgewater Road) which had an existing rail line used for the importation of aggregates from the Yorkshire Dales. The defendant local authority proposed to allocate the Bridgewater Road site under its Natural Resources and Waste Local Plan (NRWLP) under policy M13 as suitable for new rail sidings and potentially suitable for a canal wharf. The second claimant company owned another site in Leeds (Haigh Park) which had canal frontage and three existing historic wharves. The defendants proposed to designate the Haigh Park site, under policy M13 of the NRWLP, as historic wharfage. Policy M13 was subsequently amended and a new policy (M14) added. The claimants objected to the proposed designation of their sites. The NRWLP was submitted to an inspector who issued a report containing proposed modifications. The defendants adopted the NRWLP subject to those modifications.
The claimants commenced proceedings under section 113 of the Planning and Compulsory Purchase Act 2004 seeking: (i) to challenge the adoption by the defendants of the NRWLP as being irrational or perverse; and (ii) to quash policies, M13 and M14, in the NRWLP in so far as they related to their sites. They contended that policies M13 and M14 were in conflict with paragraph 22 of the National Planning Policy Framework (NPPF) which sought to avoid the long-term protection of sites where there was no reasonable prospect of them being used for the protected purpose and the inspector had failed to provide any or any adequate reasons as to why M13 and M14 were sound given that the policies could result in sites being retained as safeguarded even where there was no reasonable prospect of them being used for the safeguarded purpose; (ii) M14 safeguarded the sites despite there being an absence of evidence that they were deliverable for their protected purpose of canal freight use; and (iii) the environmental report prepared in connection with the policies was in breach of the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633) because it did not consider other reasonable alternative uses to which the sites might be put.
Held: The claim was allowed in part.
(1) Policy M14 had been properly challenged on grounds of irrationality/perversity since the inspector had failed to have regard to the material consideration that land could remain safeguarded by M14 even in circumstances where it had been established to have no reasonable prospect of being used for the safeguarded purpose. Further, the inspector’s report contained no adequate reasoning addressing those issues. M14 was unlawful in relation to both rail freight uses and canal freight uses. The inspector had erred in reaching his conclusion as to “soundness” under M13 and had failed properly to take into account paragraph 22 of the NPPF. Accordingly, M13 had not been properly adopted by the defendants in so far as they related to safeguarded wharves and the possible wharf use on the Bridgewater Road site. The flawed nature of M14 was such that it necessarily followed that the inspector’s judgment on soundness for M13 was flawed as a whole: Gransden v Secretary of State [1986] JPL 519, Horsham District Council v Secretary of State [1991] EGCS 84; [1992] 1 PLR 81 and University of Bristol v North Somerset Council [2013] EWHC 231 (Admin) considered.
(2) M14 had safeguarded the sites despite there being an absence of evidence that they were deliverable for their protected purpose of canal freight use. The inspector himself had recognised that there was little direct evidence that the canal wharf usage was deliverable.
(3) No one reading the environmental report could have failed to appreciate that it was addressing limited areas of policy alongside the other development plan documents referred to which had been considering the broader issues. In those circumstances, a thematic plan such as the NRWLP did not have to consider alternatives such as housing, provided that the thematic plan formed part of a series of relevant documents, one or more of which were considered the alternatives such as housing, and provided that the series of documents were considered together: Heard v Broadland District Council [2012] EWHC 344 (Admin); [2012] PLSCS 51 considered.
Reuben Taylor (instructed by Walton & Co (Planning Lawyers) Ltd, of Leeds) appeared for the claimants; John Hobson QC (instructed by Leeds City Council) appeared for the defendants.
Eileen O’Grady, barrister
