Town and country planning – Planning permission – Development plan – Claimant applying for judicial review of defendant local authority’s decision to grant itself outline planning permission for dwellings on site marked as protected playing pitch before being allocated for housing – Whether defendant erring in law in failing to take account of unitary development plan – Application granted
The claimant was a community interest company which applied for judicial review of the decision of the defendant local authority to grant itself outline planning permission for the erection of up to 61 affordable dwellings on land at Oldfield Lane in Wortley. The site was a longstanding sports field which was valued by the local community. It was used for informal leisure and recreational activities.
The interested party was the freehold proprietor of part of the site with the defendant owning the balance. The interested party held a lease from the defendant in respect of the defendant’s part of the site but steps were in hand for the defendant to acquire the whole site. The interested party took no part in the proceedings.
The site had been marked as a protected playing pitch, under the Leeds Unitary Development Plan 2006 (LUDP), before it had been allocated for housing under the defendant’s Core Strategy and Allocations Plan 2019 (SAP). Policy N6 of the LUDP prohibited the development of playing pitches if such development would result in no demonstrable net gain to the pitch quality and if there was a shortage of pitches in the area.
The claimant contended, amongst other things, that in failing to take into account policy N6 of the LUDP, the defendant had erred in law in that it failed to have regard to the policies of the statutory development plan contrary to section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004.
Held: The application was granted.
(1) The effect of section 70 of the 1990 Act and section 38 of the 2004 Act was that the local planning authority was to have regard to the development plan and the determination was to be made in accordance with that plan unless material considerations indicated otherwise. Any conflict between policies deriving from documents in the plan of different dates was to be resolved in favour of those deriving from the later document in time. A failure to have regard to the development plan would mean that a local planning authority erred in law but where account had been taken of the relevant provisions of the plan, the authority’s assessment of those provisions would only be challengeable if it was irrational. However, that was subject to the caveat that the proper meaning of a policy was a matter of law for the courts and that where a policy had been misconstrued caution was required before concluding that such misconstruction did not affect the conclusion reached. The assessment as to whether policies in the development plan were in conflict was similarly a matter for the planning judgment of the local planning authority and only susceptible to challenge on the ground of irrationality: R (RWE Npower Renewables Ltd) v Milton Keynes Borough Council [2013] EWHC 751 (Admin) considered.
(2) The question of whether a proposed development accorded with the development plan was a matter of planning judgment which was only subject to a challenge on the ground of irrationality. Moreover, the approach taken to determining that question could be a broad one and did not have to be mechanistic; and nor did it require the listing of every policy nor even of every potentially relevant policy in the development plan and the assessment of the proposal against those policies in turn. Nonetheless there had to be a decision as to whether or not there was compliance with the development plan and such a step was an essential part of the decision-making process: Safe Rottingdean Ltd v Brighton & Hove City Council [2019] EWHC 2632 (Admin) considered.
In the present case, by failing to address policy N6, the defendant had failed to have regard to the provisions of the development plan and erred in law. There was no dispute that policy N6 was part of the development plan. Further it was clearly of relevance to the proposed development. Policy N6 related to the development of playing fields and the proposal was for development of a playing field. It was, moreover, for development of a playing field which had been identified as a “protected playing pitch” on the map which accompanied the LUDP. The policy was directly relevant to the proposed development in a way which other policies which were listed were not.
In order to determine the application lawfully, the defendant had to have regard to policy N6. It had to consider that policy and make a judgment as to its interrelation with the SAP and the allocation there of the site for housing subject to the site requirements. The defendant had to grapple with the consequences of policy N6. That was not done and as a consequence the decision was flawed as a matter of law.
(3) The court could not be satisfied that it was highly likely that the outcome would not have been substantially different if the defendant had, as it should have done, had regard to policy N6. Putting matters at the lowest it was at least possible that, even if consideration of N6 did not lead to a refusal of permission, it could have led to a different approach being taken to the condition or conditions imposed to ensure the provision of replacement playing pitches. It was possible that there would have been a different approach either in respect of the nature of the condition or in respect of the replacement provision which was required to satisfy any such condition. In the circumstances, that would have been a difference of substance in the outcome. It followed that section 31(2A) of the Senior Courts Act 1981 did not operate to constrain the grant of relief. In the absence of such constraint the decision was based on an approach which was wrong in law and it would be quashed.
Jenny Wigley QC (instructed by Leigh Day) appeared for the claimant. Paul G Tucker QC and Killian Garvey (instructed by Leeds City Council Legal Services) appeared for the defendant. The interested party did not attend and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of TV Harrison CIC v Leeds City Council
