England and Wales High Court (Administrative Court) Decisions

University of Leeds v Leeds City Council [2002] EWHC 738 (Admin) (24th April, 2002)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 April 2002

Mr Justice Richards:

1. By this claim, made pursuant to s.287 of the Town and Country Planning Act 1990, the University of Leeds challenges Policy N11 of the Leeds Unitary Development Plan ("the UDP") in so far as the policy notation affects part of a site at Bodington Hall adjoining the outer ring road in the Weetwood area of Leeds.
2. Policy N11 provides:

“On the following tracts of land, only open uses will be permitted. Building will only be allowed if it can be shown that it is necessary for the operation of farming or recreational uses and if it would not adversely affect the open character of the area:

...

4. Outer ring road, Weetwood ….”

3. The relevant part of the site at Bodington Hall falls within item 4 of the policy. It was included within the scope of the policy by virtue of a modification to the UDP following a public inquiry and an Inspector's report. The University's case in brief is that the Council's decision to include the land within the scope of the policy was based on a misconstruction of the Inspector's report and/or that the Council erred in adopting the UDP without holding a further public inquiry into the proposed modification.

The facts

4. The revised draft UDP was placed on deposit in June 1993. At that time there were major proposals for the comprehensive development of the site. That was reflected in a number of policies (including Policies E4(17), E18(6), T17(2) and S6A(iii)) allocating the site for employment, retailing and a park and ride facility linked with a Supertram proposal. The total area of the proposed allocation was 19.3 hectares, including an area of 8 hectares for retailing and an area of 3 hectares for employment. The University had entered into an agreement with the John Lewis Partnership for the promotion of the retail proposals, involving a huge shopping complex with a decked car park providing a minimum of 1,000 spaces.
5. At that stage none of the site was allocated under Policy N11. It was, however, subject to Policy N8 which provided:

“A strategic network of urban green corridors is identified on the proposals map. These corridors provide or have the potential to provide opportunities for informal recreation, nature conservation and improvement of visual amenity, by linking urban greenspace together and to the open countryside. Within these corridors:-

(i) Development will not normally be permitted which would be detrimental to the corridor function ….”

6. Adjacent to the eastern boundary of the site and extending to the north east was further land owned by the University which was subject to Policy N11, as well as to Policy N8 and Policy N6 (protected playing pitches). A parallel area of land on the other side of the outer ring road was also subject to Policy N11. The allocation of both areas of land under Policy N11 reproduced a materially similar allocation under Policy EN1 of the North Leeds Local Plan which had been adopted in September 1988.
7. The text accompanying Policy EN1 of the Local Plan explained:

“The principal east-west route through the Plan area is the A6120 Ring Road. Although this road is bounded by existing, largely residential, development for some of its length within the Plan area, the predominant characteristic is one of a route passing through a largely open landscape interspersed with heavily wooded areas. It is considered that this character is worth retaining both as a setting for a major route and as an amenity for local residents ….”

8. The introductory text to Policy N11 of the revised draft UDP explained how that policy was intended to carry forward the Policy EN1 protection:

“In addition to green corridors and greenspaces, there are a number of large tracts of open land in the urban areas each of which represents a major visual amenity, and which are consequently protected from development (mostly by existing Local Plans), with only open uses being permitted. The Area and Site Statement Appendices in Volume II identify the relevant Local Plan policies, and the UDP carries forward this protection ….”

9. Prior to the public inquiry into the revised draft UDP, it was proposed that a link road be built across the Bodington Hall site (between the A660 and the A6120) in order to service the new development and prevent congestion of adjoining roads. The total area of the allocation was proposed to be changed from 19.3 to 24.3 hectares, including an increase in the size of the employment allocation park from 3 to 5 hectares. As shown on an illustrative drawing, it was envisaged that the employment allocation, in the form of a business park, would be to the north of the link road and the retail allocation to the south of the link road.
10. At the same time an extension to the Policy N11 allocation was proposed, encompassing a corridor of land on either side of the link road. It was referred to in this way:

“An area designated as N11 lies within the boundary of the allocation. In addition to this area, the broad landscaped corridor containing the proposed road link will fulfil an N11 function.”

11. At the public inquiry, held between October 1994 and July 1996, the University and the Council presented a joint case. The proposals at the site were dealt with under Topic 580, commencing on 28 February 1996.
12. The Inspector reported to the Council in February 1999. He concluded inter alia that the retail allocation on the site should be deleted and he recommended that separate allocations be made on the site for the park and ride, the employment development and the link road. The following passages from his report are particularly relevant:

“BACKGROUND

Open space and visual matters

562.7 The whole of the site allocated in the UDP as well as that in the proposed extension to it is subject to Policy N8 (Green Corridors). The playing fields on the area of the proposed extension are protected in the UDP by Policy N6 which LCC1C/118 would remove. Most of that area, other than the south eastern corner, would continue to be subject to Policy N11, which would also be applied to the Link Road and to the land on either side of it. None of the site is or has previously been included in the Green Belt.

562.8 Many of the objections relate to the harm to the appearance and openness of the site, particularly in relation to longer range views from the Ring Road, and to losses of playing fields and trees. Some objections comment on the harm that would be done to the ecology of the area ….

CONCLUSIONS

Open space and visual considerations

562.29 One of the most attractive features of the Ring Road as it passes around North Leeds is the extent of open views from it, giving a much more rural impression of that part of Leeds than is really the case. These important public views are rightly protected by Policy N11, which I deal with in general terms under Topic 043. Any general urbanisation of the visual character of these open areas would amount to serious harm and should be resisted.

562.30 The illustrative plans produced by the Council show how the scheme could be arranged so as to minimise harm to the appearance of the area. They incorporate a main retail building recessed by up to 7m, built development kept at least 15m from the site boundary, and decked car parking making use of excavated ground. The comparison store would be on three levels in accordance with JLP’s preference and would be less dominating than the 1987 proposal. Built development would only constitute about 8% of the site as a whole.

562.31 All of these devices, and the others put forward by the Council, show that the visual impact of the proposed major development on the site could be minimised. I am concerned that there would nonetheless still be likely to be some significant degree of harm to the openness of views from the Ring Road, and that as a whole the site will no longer have an open or rural character. I have visited the High Wycombe store of JLP, mentioned by the Council as demonstrating the breaking up of the parking area by planting. Although undoubtedly impressive in doing this, the final result there is suburban rather than open or rural in character.

562.32 The new offices north of the Link Road would be intended to be ‘high profile’, with the extensive landscaping in front and around them intended to add sensitively to their visual quality rather than to hide them. Thus although LCC1C/118 would extend the amount of land subject to Policy N11 to include that along the proposed Link Road this would not necessarily be the kind of open area which it is the intention of Policy N11 to protect. I note the curve provided in the Link Road to improve its appearance, but I believe that it is likely that this would still prove to be essentially urban, the area dominated by the road, street furniture, signs and the ‘high profile’ development rather than by planting and a sense of openness.

562.33 I am not convinced that it would be possible to provide the amount and type of development proposed on this site without serious harm to the objectives of Policy N11, whatever the design and layout and however the scheme were to be landscaped.

….

562.37 Under Topic 040 I recommend modification of Policy N8, which concerns the protection of [formerly 'urban'] green corridors …. [I] recommend that the Policy should make it clear that development proposals should retain, enhance or replace any existing corridor function of the land.

562.38 Although the illustrative scheme produced by the Council is ingenious in its efforts to minimise harm to the openness of the site and to preserve its corridor functions, I am not convinced that it would be possible to achieve the latter to any significant degree. The site would simply become an extension to the adjoining built-up areas, probably well landscaped and sensitively designed, but not acting as a corridor. I regard this as being a further objection to the scheme ….

Other matters

562.48 … If the area concerned [i.e. the employment allocation] were to be restricted to that north of the Link Road I do not consider that development here would have the significant harmful effects that development south of the Link Road would have …

Overall conclusions

562.54 I can see no objection to the proposal under Policy N6 so far as the loss of playing fields is concerned. There would however be material harm to the aims of Policies N11 and N8 ….

562.56 … [The proposal] would harm the character and appearance of a prominent rural area ….

RECOMMENDATION

562.59 I recommend that the UDP be modified as follows:

(i) by the deletion of Policies E4.17, E18.6, T17.2 and S6A.iii

(ii) by their replacement with separate allocations for the proposed Link Road, Park and Ride site and for employment development north of the Link Road.”

13. On receipt of the Inspector’s report, the Council sought to clarify certain matters in it. In relation to Topic 580 it asked the Inspector:

“Q1. Does the Inspector recommend that the link road, employment allocation and park and ride site be in the locations shown on the LCC illustrative framework … or is there scope for variation?

Q2. It is unclear what area should be designated under N11 (para. 562.33). Is this the Local Plan designation or a larger area?”

14. In what was described as an addendum, the Inspector replied:

“154. The main thrust of my conclusions concerns the proposed retail allocation. I make clear in para 562.55 that there is no objection in principle to the employment proposals and that the Link Road would ensure that no material harm was caused to the local highway network. The provision of ST and the P&R site are to be welcomed. As the Proposals Map aggregates these various proposals into a single site it is necessary for me to recommend the deletion of this package of proposals, but as I recommend in para 562.59 it should be replaced by separate allocations for the acceptable parts of the scheme. To be acceptable their general locations would need to follow the Council’s illustrative framework, but there is some scope for variation to take into account the omission of the retail proposals together with detailed topographical and physical considerations. The area to be designated under Policy N11 should be related to the chosen allocations rather than necessarily following strictly the local plan designation”

15. On 14 August 2000 the Council published its response to the Inspector’s report, together with proposed modifications. In relation to Topic 580 and the Bodington Hall site, the response stated:

“The Council accepts the majority of the Inspector’s conclusions in paras. 562.12-562.58 of the Report as clarified by the Inspector’s comments in para. 154-155 of his Addendum, and consequently accepts the Inspector’s recommendation to modify the Plan. However, in view of the significantly reduced scale of the overall development now proposed following the deletion of the retailing elements, the Council considers there is no longer any justification for the construction of the Link Road between Otley Road and the Ring Road. The highways department has confirmed that the existing highways network can cope with the development now proposed and that both the park and ride and employment sites can be accommodated off Otley Road. The Inspector’s recommendation that a separate allocation for the proposed Link Road be shown on the Proposals Map is therefore not accepted."

16. There followed Proposed Modification 18/006, which included the following general modification in respect of the site:

"Under Policy E4(17), E18(6) and E19, 6.5 ha of land at Bodington Hall Playing Fields, Lawnswood is proposed for a key business park reserved for B1 offices, and promoting for prestige offices, with 5 ha of land for a park and ride facility in association with Supertram under policy T17.2. Major landscaping is also proposed to protect the strategic network of urban green corridors under policy N8 and the open character under policy N11. Development is subject to: … (iii) major landscaping to complement the strategic urban green corridor …."

17. Proposed Modification 18/006 also included the deletion of the existing notation in the proposals map and its replacement with employment, park and ride and "open land" notations. One of the notations shown on the modified proposals map (Plan No. M/18/004) was an "Add N11 notation" in respect of that part of the Bodington Hall site which had previously been shown as allocated to retail use and which the Inspector had recommended be deleted. It is by reason of that specific "Add N11 notation" that the site became subject to Policy N11. Accordingly that notation is the ultimate target of the present challenge.
18. The Inspector had also recommended changes to the terms of Policy N11 itself, so that it would provide: “On the following open tracts of land development will only be allowed if it would substantially retain the open character and public amenity value of the land.” In his addendum he stated that relatively minor changes were necessary for the policy to achieve its intentions. He also said: "It is against the aims and wording of this modified Policy that I consider the desirability of including or excluding specific areas or sites.” The Council, however, rejected this recommendation. Its proposed modification in respect of Policy N11 was effectively a restatement of the policy as set out in the revised draft UDP.
19. On 22 September 2000 the University objected to proposed modification 18/006 on the following grounds:

“Proposed Modifications - General Objection

2.1 The Proposed Modification 18/006 represents a very significant material alteration to the proposals in the RDUDP, which were debated at the public Inquiry. The objectors therefore object to the Proposed Modifications for the reasons set out below and if they are not accepted by the Council seek a further public Inquiry into the Proposed Modifications.

2.2 Annex A of PPG12 (February 1992) Paragraph 69 states that:-

'The Secretary of State advises planning authorities to hold an inquiry (or re-open the EIP) where objections raise matters which were not at issue at all at the earlier stage. This may arise, for example, if it is proposed to substitute an entirely different proposal for one which was in the plan as considered earlier so that the objections made to the proposed modification include new evidence.'.

2.3 The Objectors contend that the Proposed Modification represents a fundamentally different proposal than that which was considered at the Inquiry.

….

Open Land Designation - Policy N11

5.1 The Inspector concluded in his Addendum Report that 'the area to be designated under Policy N11 should be related to the chosen allocation rather than necessarily following strictly the Local Plan designation.'

5.2 The Council has accepted this recommendation and has designated the remainder of the site not allocated for employment or park and ride as open land as shown on Plan No. M/18/004 ….

5.3 Objection is raised to this Proposed Modification. Such an allocation was not debated at the Inquiry. It represents an entirely new proposal. The objectors contend that this additional area of land does not warrant inclusion in Policy N11 ….

5.4 The objectors will wish to produce further evidence as to the extent to which this land can be categorised as open and of public amenity value in the context of Policy N11.”

20. On 10 January 2001 the Council's officers reported to the Executive Board with their conclusions and recommendations on objections to the proposed modifications. It is not necessary to set out the report's examination of general principles, including the approach to be followed in deciding whether to reopen the public inquiry, since no criticism is made of those passages. In relation to specifically to the University's objections, the report stated:

“Open land designation

The application of Policies N8 and N11 were both considered in the Inspector’s report. In para. 562.29 of his report he states that: 'one of the most attractive features of the Ring Road as it passes around North Leeds is the extent of open views from it … these important views are rightly protected by Policy N11 … any general urbanisation of these open areas would amount to serious harm and should be resisted.'

The Inspector accepted that the visual impact of the development could be minimised but in para 562.33 he states that 'I am not convinced that it would be possible to provide the amount and type of development proposed on this site without serious harm to the objectives of Policy N11, whatever the design and layout and however the scheme were to be landscaped.'

These comments clearly demonstrate that the Inspector gave very close attention to the application of Policy N11 in this area following his consideration of the evidence presented to him at the Inquiry. His recommendation (contained in his Addendum – para. 154) that the N11 designation be extended to relate to the chosen allocations may therefore be traced to his appraisal of landscape quality in the context of the wider debate on the future of the Bodington site.

A number of objections at the UDP Inquiry related to the harm to the appearance and openness of the site. Matters relating to visual amenity were therefore clearly addressed at the Inquiry and the Inspector considered it wholly appropriate that, following his rejection of the retailing element, Policy N11 should be applied to the land concerned ….

Conclusion

The issues raised in this objection have already been addressed at the UDP Inquiry … and are not considered to warrant a further modification or a second Inquiry.”

21. The Council accepted the recommendations in the officers' report. It decided to make no further change to the relevant proposed modifications and not to reopen the public inquiry. It adopted the UDP on 20 August 2001. The University's challenge to the relevant part of the UDP followed promptly.

First issue: misconstruction of Inspector's report

22. The first submission by Mr Lockhart-Mummery QC on behalf of the University (ground 3 of the claim form) is that the Council misconstrued the terms of the Inspector's report, and thereby took into account an immaterial consideration, in proceeding on the basis that the Inspector thought it appropriate for Policy N11 to be applied to that part of the site previously allocated to retail use.
23. A convenient explanation for the Council's approach is to be found in a witness statement of Paul Gough, a team leader in the Council's planning department. He refers to the Inspector's response to the Council's questions about his report and states:

“In the Council's view this Addendum, which forms part of the Inspector's overall report, contemplates that the N11 allocation should be extended through the Bodington site to form a boundary with the Park & Ride and the B1 Office Park allocations (the 'chosen allocations' referred to in his answer). Having recommended the deletion of the retailing element, it would have been unusual for the Inspector not to have suggested replacing it with something else. This was a common feature in his treatment of the Plan. In this particular context, the Council considered that he chose to replace the retailing element with a policy that would ensure the retention of the open character which he clearly regarded as important.”

24. It is submitted that that passage reflects the Council's error, displaying a mistaken and unreasonable understanding of the Inspector's report.
25. In my judgment the challenge on this ground is well founded. I would express my reasons in this way:

i) It is clear that the question whether Policy N11 should be extended to include the retail area of the site did not arise in the public inquiry. What is said in the Inspector's report and addendum must be read against that background.

ii) The Inspector's report did not consider the possibility of extending the area covered by Policy N11. Subject to a recommended minor modification to the terms of the policy, considered below, his conclusion that the proposed development would harm the objectives of Policy N11 was clearly based on the existing terms of the policy, including in particular its existing geographical scope. The concerns about the effect of the development on open views from the ring road, at paras 562.29 et seq., make good sense on the basis of Policy N11 in the form that was before him. There is not a hint that in order to safeguard the objectives of that policy it was also necessary to increase the geographical area covered by that policy.

iii) On the contrary, although the Inspector did recommend a modification to the terms of Policy N11, and it was against the aims and wording of that modified policy that he considered the desirability of including or excluding specific areas, he said nothing at any point about including the retail area within the scope of the policy. (I do not think that the recommended modification to Policy N11 has the degree of significance attached to in Mr Lockhart-Mummery's submissions, but to the extent indicated I regard it as helpful to the University's case.)

iv) There was no consideration in the Inspector's report of the substantive issues relevant to an extension of the geographical scope of Policy N11 to include the retail area. There was no examination of the specific landscape qualities of the site without the retail development or of whether or why it might be necessary to include it within the scope of Policy N11 in order to safeguard the objectives of the policy. What was under consideration was whether the particular, very large proposed development would harm the objectives of Policy N11. The question whether any development would harm those objectives, or whether nothing but open use should be permitted on the retail area, was not under consideration.

v) The Inspector's recommendation in the addendum that the area to be designated under Policy N11 "should be related to the chosen allocations rather than necessarily following strictly the local plan designation" does not read like a recommendation that the deleted retail allocation should be included within the scope of the policy. It makes sense, however, in relation to the proposal for the link road. That proposal included the proposed extension of the N11 allocation. Although the Inspector did not think that this would necessarily be the kind of open area which it was the intention of Policy N11 to protect (para 562.32), he found in favour of the link road, recommending a separate allocation for it; and his acceptance of an allocation for the link road encompassed an acceptance of the accompanying proposed extension of Policy N11. If the link road allocation were chosen, then it followed that the area designated under Policy N11 should extend beyond the local plan designation (as carried over into the revised draft UDP version of Policy N11) so as to include the area proposed as part of the link road development. In my view that was the point that the Inspector must have had in mind in saying what he did in the addendum.

vi) Had the Inspector had in mind such a substantial departure from the existing Policy N11 (and from the local plan designation) as the inclusion of the whole of the retail area within the scope of the policy, then in my view he would have expressed himself very differently. It would have been simple to say, if that is what he meant, that the retail area should not only be deleted from the allocation for retail use but should also be allocated under Policy N11 because it performed a Policy N11 function.

vii) It follows that I reject the submission made by Mr Corner QC for the Council that the Inspector must have intended the area designated under Policy N11 to be delimited by reference to the allocations for employment, park and ride and the link road, i.e. to cover those parts of the site not allocated to other uses.

viii) It is said in Mr Gough's witness statement that it would have been unusual for the Inspector on recommending the deletion of the retail allocation not to have suggested replacing it with something else. As to that, however, I accept the submission for the University that the area was already subject to Policy N8 and there was therefore no need to recommend anything in place of the retail allocation. There was no policy gap.

ix) The point is also made on behalf of the Council that the University originally accepted the Council's interpretation of the Inspector's report when it stated in para 5.2 of its objections that "the Council has accepted this recommendation and has designated the remainder of the site not allocated for employment or park and ride as open land …". I do not read that passage as an acceptance of the correctness of the Council's interpretation of the Inspector's recommendation; and even if it were to be so read, it would not be decisive of the legal question whether the interpretation was wrong or unreasonable.

26. Mr Corner further submitted, by reference to R v. Derbyshire County Council, ex p. Woods [1997] JPL 958 and R v. City and County of Swansea, ex p. Granada Hospitality Ltd [1999] PLCR 273 that the court should not simply adopt its own interpretation of the Inspector's report and addendum and measure the Council's decision against that interpretation, but should ask itself whether the Council's interpretation was an unreasonable one. Mr Lockhart-Mummery, on the other hand, contended that that line of authority applies to the interpretation of policy, which requires planning expertise; whereas one is looking here at a document of record within a statutory process and the court is as well placed as the Council to determine its meaning. In the event it is unnecessary for me to resolve that issue, since I am satisfied, for the reasons given, that the Council's interpretation was not only wrong but also unreasonable.

Second issue: failure to reopen the public inquiry

27. The second main issue (grounds 1 and 2 of the claim form) is whether the Council acted unlawfully in failing to reopen the public inquiry in relation to the proposed modification to Policy N11. In the circumstances I can deal with the issue very briefly.
28. The relevant principles are stated in Warren v. Uttlesford District Council [1997] JPL 1130 and Drexfine Holdings Ltd v. Cherwell District Council [1998] JPL 361. I have already mentioned that no criticism is made of the exposition of principles as set out in a report by the Council's officers to the Executive Board.
29. One of the points made in that report was that, in determining whether to hold a further inquiry, "the key issue seems to be not whether the proposal is new but whether the objections give rise to new issues". It was later stated that "in many cases the issues raised by the objections have already been subject to independent scrutiny by the Inspector at the previous inquiry, and the key planning issues have been thoroughly examined and tested". I have previously set out the specific conclusion in relation to the matter here in issue: the view taken was that the Inspector had given very close attention to the application of Policy N11 in this area, that his "recommendation … that the N11 designation be extended to relate to the chosen allocations" might be traced to his appraisal of landscape quality and that "matters relating to visual amenity were therefore clearly addressed at the Inquiry".
30. In my judgment the University's case that the Council's decision not to reopen the public inquiry was based on a misdirection is again well founded. I have already held that the Council adopted a mistaken and unreasonable interpretation of the Inspector's report and addendum in relation to the geographical scope of Policy N11. Since it is clear that the decision not to reopen the public inquiry was based in part upon that misdirection, it is sufficient to vitiate the decision.
31. In any event the inclusion of the retail area within the scope of Policy N11 was plainly a new issue. Although there had been extensive discussion of landscape matters at the inquiry, it had not been in the context of this issue and in my judgment it did not amount to a sufficient exploration of the underlying questions. True it is that the inquiry addressed the visual impact of the proposed development, including its effect on the open views that Policy N11 sought to protect. But that was materially different from addressing the question whether the area of the retail allocation itself was of such a character that it should be directly subject to Policy N11 and thereby protected against any development other than open uses. Accordingly, in proceeding on the basis that the relevant matters had been addressed at the inquiry, the Council acted on a further material misdirection.

Conclusion

32. For the reasons given, the claim succeeds in relation to both main issues.
33. The question of relief was addressed at the hearing. It was common ground, if I understood the position correctly, that the appropriate relief in these circumstances would be to quash the "Add N11 Notation" in the adopted UDP, thereby leaving the text of Policy N11 unaffected but excluding the relevant area from the scope of the policy. I propose to adopt that course.
34. I also understood Mr Corner to indicate that if the University won, the Council would not oppose an order for costs. I cannot see on what grounds such an order could be resisted. I therefore propose to make an order that the Council pays the University's costs, to be subject to detailed assessment if not agreed.
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MR JUSTICE RICHARDS: I am handing down judgment in this case. It is very much dependent on its own facts. It relates to a small part of the adopted Leeds Unitary Development Plan.

For the reasons given in the judgment, I am quashing the relevant part of the plan. The parties received a draft of the judgment and agreed a form of order. I therefore dispense with their attendance. The order which gives effect to my judgment is that the Policy N11 notation, as shown on the Leeds Unitary Development Plan proposals map as adopted, be quashed insofar as it relates to the Bodington Hall site, more particularly shown on Plan M/18/004 from the Leeds Unitary Development Plan Modifications dated 31st May 2000; and that the defendant pay the costs of the claimant, to be subject to detailed assessment if not agreed.