What happens when a development plan, or one or more of its policies, is found to be unlawful? There have been two instances of this in 2020: in relation to the Leeds Site Allocations Plan (in the Aireborough case, the subject of three rulings by Lieven J between January and August this year) and in relation to the Harrogate Local Plan (in the Flaxby case, the subject of a ruling by Holgate J last week).
My firm acted for the claimant in both cases (alongside Jenny Wigley in Aireborough and Christopher Katkowski QC and Richard Moules in Flaxby). Aside from the substantive issues arising, the cases are interesting examples of the flexibility that the court has when it finds against the plan making authority. By virtue of the changes made to section 113 of the Planning and Compulsory Purchase 2004 by the Planning Act 2008, the court no longer simply has to quash the plan, or relevant part of the plan (meaning that the authority would need to start again) but can “remit” the plan back to an earlier stage in its preparation so that decisions can be taken again, from the stage where the errors occurred.
I set out the relevant sub-sections of Section 113 as follows:
(7) The High Court may—
(a) quash the relevant document;
(b) remit the relevant document to a person or body with a function relating to its preparation, publication, adoption or approval.
(7A) If the High Court remits the relevant document under subsection (7)(b) it may give directions as to the action to be taken in relation to the document.
(7B) Directions under subsection (7A) may in particular—
(a) require the relevant document to be treated (generally or for specified purposes) as not having been approved or adopted;
(b) require specified steps in the process that has resulted in the approval or adoption of the relevant document to be treated (generally or for specified purposes) as having been taken or as not having been taken;
(c) require action to be taken by a person or body with a function relating to the preparation, publication, adoption or approval of the document (whether or not the person or body to which the document is remitted);
(d) require action to be taken by one person or body to depend on what action has been taken by another person or body.
(7C) The High Court’s powers under subsections (7) and (7A) are exercisable in relation to the relevant document—
(a) wholly or in part;
(b) generally or as it affects the property of the applicant.
There is a series of three judgments by Lieven J: Aireborough Neighbourhood Development Forum v Leeds City Council (Lieven J, 14 January 2020 – initial judgment on capacity of the claimant to bring the proceedings), Aireborough Neighbourhood Development Forum v Leeds City Council (Lieven J, 8 June 2020 – main ruling) and Aireborough Neighbourhood Development Forum v Leeds City Council (Lieven J, 7 August 2020 – remedies).
Judgment 1: Capacity of claimant
At an initial hearing Lieven J first considered arguments at by Leeds City Council and the two developer interested parties that as an unincorporated association the Aireborough Neighbourhood Development Forum did not have legal capacity to bring the claim. After a useful review of the caselaw on standing, the judge held that the Forum could indeed bring the claim: the “critical question in judicial review or statutory challenge is whether the claimant is a person aggrieved or has standing to challenge, which is not a test of legal capacity but rather one of sufficient interest in the decision not to be a mere busybody.”
Judgment 2: substantive issues
There was then the main hearing, which lasted two days.
The Site Allocations Plan (SAP) had initially been promoted on the basis of housing need evidence prepared in accordance with Leeds City Council’s 2014 core strategy. The significant level of housing need identified by the core strategy was used as the basis for exceptional circumstances justifying green belt releases. However, the housing need requirement was reduced during the course of the SAP examination based on changes to the government’s standard methodology for assessing housing need, and a much lower housing need requirement was therefore promoted the city council as part of a selective review of the core strategy (CSSR) being promoted at the same time as the SAP.
The city council proceeded with the adoption of the SAP, in accordance with the examining inspectors’ recommendation, notwithstanding the claimant’s submissions that the case for exceptional circumstances had been undermined given the lower housing need.
The claim was successful on three grounds. The judge found that the material change of circumstances had been insufficiently considered and its consequences insufficiently explained by the examining inspectors. This amounted to a failure to provide adequate reasons, which had been contended in two grounds of challenge. The inspectors also made an error of fact amounting to an error of law in calculating housing need figures.
The defendant was found also to have breached the Strategic Environment Assessment Regulations by failing to consider and consult upon a “reasonable alternative” to continuing with the SAP in materially changed circumstances. However, relief was not granted in respect of this ground of challenge because the failure was found not to have been likely to have resulted in a different outcome.
For a good perspective on the judgment, see Lichfields’ 16 June 2020 blog post Successful legal challenge to Leeds Site Allocations Plan – a consideration of potential implications.
Judgment 3: remedies
Following hand down of the main judgment Lieven J then needed to consider the parties’ written submissions as to the relief to be granted to give effect to her judgment: whether to quash all or part of the document or to remit it back to the city council or Secretary of State.
The dispute between the parties was as to the appropriate remedy under section 113 and the scope of any remedy, i.e. whether it should apply across the whole of Leeds rather than just the area for which the claimant was the neighbourhood development forum. Applying University of Bath v North Somerset Council (HHJ Alice Robinson, 7 March 2013), the judge determined that remittal was the appropriate remedy, as she held that it was appropriate to go back to the stage where the error of law occurred rather than back to the very beginning of the local plan process.
The judge also held that the scope of the remedy should be all Green Belt allocations in Leeds, rather than just those in Aireborough. Although the claim was focused on Aireborough, the claim was never limited to only those sites. The grounds of challenge went to the Green Belt allocations in their entirety. In the face of submissions from the Secretary of State, the allocations were remitted back to the inspectors and the judge indicated that it would be for the council to consider what modifications if any to make.
Flaxby Park Limited v Harrogate Borough Council (Holgate J, 25 November 2020) concerned the new settlements policy within the plan, which purported to identify a broad location for a new settlement within the borough, at Green Hammerton/Cattal. Flaxby Park Limited argued that that the council had not properly considered its alternative proposals.
The detailed chronology is set out at length in Holgate J’s judgment but in basic summary, the local plan inspector agreed with Flaxby that the council should carry out further sustainability appraisal to consider possible reasonable alternatives to the Green Hammerton/Cattal, including broad locations around Flaxby and other new settlement options.
The council carried out further work and consulted upon it, reported it and the consultation responses to the inspector who concluded that the plan was sound. The council then adopted the plan.
In summary, Flaxby’s complaints were partly as to the adequacy of the sustainability appraisal work and the extent to which it had been taken into account by the council, arguing that the council (1) had failed properly to consider the outcome of the assessment of alternative “broad locations” (and officers purported to carry out that consideration rather than the council itself) (2) had failed to compare the broad locations of Flaxby and Green Hammerton/Cattal on an equal basis because it did not include in the Additional sustainability appraisal work an additional 630 ha of land which had been identified by consultees and (3) had failed properly to examine viability and deliverability of the Green Hammerton/Cattal proposals.
The judge partly accepted the first complaint, in that, after an examination of the extent to which decisions in relation to the local plan process may lawfully be delegated, he found that “the full Council did not take into account the final SEA material and consultation responses, or a summary and analysis thereof, when they resolved to adopt the local plan”.
The judge has ordered that “the whole of Local Plan shall be remitted firstly, to the Defendant’s Cabinet to re-consider whether or not to accept the Inspector’s recommendations in so far as they related to the New Settlement Policies, and secondly, to the Defendant’s full Council to consider the Cabinet’s decision, whether or not to accept the Inspector’s recommendations in so far as they related to the New Settlement Policies, and whether or not to adopt the Local Plan with those policies.”
For completeness while we are talking about local plan challenges…
Earlier in the year, Holgate J rejected a challenge to the Wycombe local plan, in Keep Bourne End Green v Buckinghamshire Council (Holgate J, 23 July 2020).
This claim focused on the Local Plan’s Policy BE2 which, in operation with other parts of the plan, releases from the green belt a site of approximately 32 hectares of mainly agricultural land at Hollands Farm, south-east of High Wycombe, allocating the majority of the site for housing (some 467 dwellings).
The main grounds of challenge were first that Policy BE2 releasing the Site from the green belt was adopted on a basis of misunderstanding or misinterpretation of national policy (including the National Planning Policy Framework 2012 paragraphs 47 and 50) and guidance (including the 2014 Planning Practice Guidance) regarding published household projections, in part involving erroneous calculations of “objectively assessed housing need” (“OAHN”) for the local area. Second, that that Policy BE2 releasing the Site from the green belt was adopted on a basis of misapplication of national green belt policy requiring exceptional circumstances for release of land from green belt, in part as there were no exceptional circumstances.
Holgate J rejected all grounds of challenge. He stated that “it is important for the court to emphasise … that its role is not to consider the merits of the Council’s proposed policy or of the objections made to it. The court is only able to consider whether an error of law has been made in the decision or in the process leading up to it.”
On the first ground, Holgate J held that the local plan had been adopted following proper consideration of applicable published household projections, without errors of law, and with appropriate planning judgment being exercised by decision-makers. In doing so, he commented that “There have been many attempts in the last few years to entice the courts into making pronouncements on the methods used to assess OAHN. Repeatedly the response has been that this is a matter of planning judgment for the decision-maker and not for the courts.”
On the second ground, Holgate J held that, on the basis of there being no definition of the policy concept of “exceptional circumstances”, the expression “is deliberately broad and not susceptible to dictionary definition. The matter is left to the judgment of the decision-maker in all the circumstances of the case. Whether a factor is capable of being an exceptional circumstance may be a matter of law, as an issue of legal relevance. But whether it amounts to such a circumstance in any given case is a matter of planning judgment”. He held that the relevant decision-maker’s (an Inspector) reasons for finding “exceptional circumstances” do not “raise any substantial doubt as to whether a public law error was committed”; the “overall package of considerations upon which the Inspector relied was plainly capable of amounting to “exceptional circumstances” and could not be described as simply “commonplace”. It is impossible to say that the judgment which the Inspector reached was irrational. It did not fall outside the range of decisions which a reasonable Inspector could reach.”
The Court of Appeal this month refused the claimant permission to appeal.
Finally, there is my self-explanatory 6 December 2019 blog post Unsuccessful Attacks On Guildford & Waverley Local Plans.
Simon Ricketts, 28 November 2020
Personal views, et cetera
NB For parts of this post I drew upon my colleagues Town Library case summaries – free subscription to our weekly updating service here: https://www.townlegal.com/news-and-resources/#the-town-library .