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Site allocation plans and Green Belt release

A Planning Court judge recently allowed a legal challenge to the Leeds Site Allocations Plan. Jenny Wigley explains why.

In a successful challenge to the adoption of a development plan, Mrs Justice Lieven has ruled that the large number of Green Belt allocations in the adopted Leeds Site Allocations Plan (SAP) are legally flawed due to inadequate reasons causing prejudice to the claimant and an error of fact amounting to an error of law.

The council was also found to have breached the Strategic Environment Assessment Regulations by failing to consider and consult upon a ‘reasonable alternative’ to the strategy of continuing with the SAP in materially changed circumstances. However, in relation to that latter point, relief was not granted due to the Court finding that it was an error that would not have made any difference to the outcome.

Aireborough Neighbourhood Development Forum (ANDF) had made an application under s.113 of the Planning and Compulsory Purchase Act 2004 challenging the decision of Leeds City Council to adopt the Leeds Site Allocations Plan.  In a Judgment handed down this month the Claim has succeeded on three grounds, namely the lack of adequate reasons to explain the required exceptional circumstances for removing the land from the Green Belt (GB), the lack of adequate reasons for assessing GB releases within each Housing Market Character Area (HMCA), and an error of fact relating to the actual surplus of housing supply over the relevant period.

The draft SAP had been submitted for examination in 2017 and made allocations to meet the development needs identified in the 2014 Core Strategy (CS). The high level of housing need identified was considered to constitute exceptional circumstances to justify GB releases. However, during the course of the SAP examination it became clear that the housing needs identified in the CS were being significantly undermined by lower population projections, a much lower housing requirement calculated by reference to the Government’s new standard methodology and a much lower requirement being put forward in the emerging Core Strategy Selective Review (CSSR).

Being a ‘daughter’ document in the development plan process, it was not the SAP’s role to revisit the level of housing need that it was required to meet and conform to. But the claimant argued that the very much reduced level of likely actual housing need significantly undermined the case for exceptional circumstances for GB release and prompted the need for a fundamental rethink in that regard. That argument was accepted by the Court which found that the material change of circumstances had not been sufficiently considered, nor had its consequences been sufficiently explained. Whilst, during the course of the examination, the level of GB releases had been reduced to accommodate housing needs in the first five years of the plan only, it was still the case that inadequate reasons had been given to justify that approach.

A few headline points from the Judgment are of particular note:

  • The Court considered that, in the context of the policy requirement for exceptional circumstances for GB release, it would have been irrational to say that a fall of more than 25% in the housing requirement would not be a fundamental change requiring reconsideration;
  • The Court found that a reasonable alternative to continuing with the SAP (which should have been considered and consulted upon) would have been to suspend the examination pending the conclusion of the CSSR process. However, as this alternative was so obvious and had been anticipated and argued for by the claimant in its representations, the Court considered that the claimant had not been prejudiced in this respect. It was inevitable that the council would have pressed on with the SAP even if there had been a formal consultation on the issue;
  • Assessing and comparing sites for GB release within each HCMA, rather than across the plan area, had been fundamental to the decision as to which sites to continue to release. This was a principal controversial issue and the failure to give adequate reasons to explain this approach was a fatal omission which caused prejudice to the claimant;
  • The reasons put forward during the proceedings to justify the approaches taken amounted to ‘a good deal of ex post facto justification’. The arguments about fair distribution of housing and deliverability considerations between urban and rural areas are complex, with arguments to be put on both sides. Those arguments had not been put forward by the council or by the inspectors and had not been consulted upon;
  • In the context of exceptional circumstances, the factually complex issue of the calculation of housing supply, and how that had changed during the progress of the draft Plan, was important to get broadly right. By a detailed analysis of the figures, the claimant had demonstrated that the margin of error in what appeared to have been understood by the inspectors in their report was sufficiently significant to have materially diminished the need for GB release and to have amounted to an error of law.

Following the judgment, written submissions are being made on the issue of relief, with the claimant arguing for an Order that all the GB allocations in the SAP should be quashed.

The Judgment is here, with the earlier Judgment on the issue of capacity here.

Jenny Wigley is a barrister at Landmark Chambers. She represents the Claimant, ANDF.

Charles Banner QC and Matthew Fraser, also of Landmark Chambers, represent the Second Interested Party, Avant Homes (England) Limited.

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