England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/10/2016

Mr Justice Kerr :

1. The unrelenting demand for new dwellings can be difficult to reconcile with preserving what remains of England's rural beauty. The law holds a balance between the two imperatives, where they are in conflict. This is another case arising from differing views about how precious land should be used. The site in question is at the Ridge, at Linton near Wetherby (the Ridge).
2. The claimant developer aspires one day to develop the Ridge. The defendant city council (the city council) earmarked the site in 2006 for possible housing development in the longer term. The interested party, the parish council for the area that includes the Ridge (the parish council), is opposed to its development and hopes it may be returned to the Green Belt.
3. The claimant challenges the city council's decision made on 4 November 2015 to allow the Linton Neighbourhood Plan (LNP) to proceed to a local referendum. That decision was made applying provisions added to the Town and Country Planning Act 1990 as amended (the 1990 Act) by the Localism Act 2011. The LNP was prepared by the parish council and, with modifications, accepted by the city council.
4. The claimant says the LNP is unlawful because it includes text that ought not to be there, in which, says the claimant, the parish council has effectively stated that the Ridge should not be developed. The claimant says the parish council cannot lawfully say that in the LNP, because the city council is the body that must decide that issue, and has already designated the land as suitable for housing development in the future.
5. The claimant submits that the result of a local referendum, in which the LNP was approved, cannot stand and must be quashed. The city council opposes the claim, but accepts that if it is well founded, it would follow that the decision challenged and the subsequent referendum result must be quashed. The parish council did not file an acknowledgment of service or attend the hearing.
6. Following abolition of the former regional strategies and structure plans, there are now, for development of the type in issue here, two types of development plan in England: "Local Plans" and "neighbourhood plans". This is the terminology used in the National Planning Policy Framework (NPPF), which states government policy. The NPPF is supplemented by a guidance document known as the Planning Policy Guidance (PPG).
7. The relevant development plans in this case are the LNP, a neighbourhood plan, and the Local Plan for the city council's area. The Local Plan for Leeds is not in a single document. It comprises an old style "Unitary Development Plan", entitled "Leeds Unitary Development Plan (Review 2006)" (the UDPR), supplemented by a November 2014 document called "Core Strategy" (the Core Strategy). Where it is not necessary to differentiate between these two documents, I shall refer to them generically as the Leeds Local Plan.
8. Development plans are important because local planning authorities must have regard to them in so far as they are material (section 70(2) of the 1990 Act), and must determine planning applications in accordance with them unless material considerations indicate otherwise (Planning and Compulsory Purchase Act 2004, as amended (the 2004 Act), section 38(6)). A development plan is there to be followed "unless there is good reason to depart from it" (Tesco Stores Ltd v. Dundee City Council [2012] UKSC 13, [2012] 2 P&CR 9, per Lord Hope at paragraph 18).
9. The NPPF, in similar vein, states at paragraph 198, in the second sentence:

Where a planning application conflicts with a neighbourhood plan that

has been brought into force, planning permission should not normally be

granted.

10. A "neighbourhood development plan" is (section 38A(2) of the 2004 Act):

a plan which sets out policies (however expressed) in relation to the development and use of land in the whole or any part of a particular neighbourhood area specified in the plan.

11. The LNP is such a plan. There is a statutory process for creating a neighbourhood plan and putting it to a local referendum, and for the local planning authority for the area (here, the city council) to adopt it. The process is elaborate. It is ordained (so far as relevant here) by section 38A(3) of the 2004 Act, Schedule 4B to the 1990 Act and provisions in the Neighbourhood Planning (General) Regulations 2012 (the 2012 Regulations).
12. Mr Young, for the claimant, aptly described the provisions as a "statutory thicket". The following is a summary of the procedural regime applicable to this case, so far as relevant:

(1) A parish council proposing to produce a neighbourhood plan must prepare a draft of the plan (Schedule 4B, paragraph 1(2)). The local planning authority (here, the city council) must give advice and assistance as it considers appropriate (paragraph 3(1)).

(2) If the local planning authority is satisfied that the draft plan meets certain statutory requirements (see paragraph 6 of Schedule 4B), it must submit the draft plan for independent examination by an examiner appointed by the authority for the purpose: paragraph 7(2).

(3) The examiner must consider whether the draft plan meets "the basic conditions": paragraph 8(1)(a). A draft plan meets the basic conditions if the requirements of paragraph 8(2) are met.

(4) Those include (among other things not relevant here), firstly, the requirement that it must be "appropriate to make the order" having regard to national policies and advice from the Secretary of State (i.e. as set out in the NPPF and the PPG): see paragraph 8(2)(a).

(5) They also include (see paragraph 8(2)(e)) the requirement that the making of the order is "in general conformity with the strategic policies contained in the development plan [i.e. here the Leeds Local Plan] for the area … (or any part of that area)".

(6) Interested parties may make representations about the draft plan, which must be published and made the subject of public consultation. Such representations are normally made in writing rather than orally (paragraph 9(1) of Schedule 4B to the 1990 Act, and regulations 14-17 of the 2012 Regulations).

(7) The examiner must make a report on the draft plan. The examiner is confined to making one of three types of recommendations – that the draft plan should be submitted to a referendum; or that it should be submitted to a referendum with specified modifications; or that it should be rejected (paragraph 10(1) and (2) of Schedule 4B).

(8) The only modifications that may be recommended are those found in paragraph 10(3). So far as relevant here, they are (see paragraph 10(3)(a)): "modifications that the examiner considers need to be made to secure that the draft [plan] meets the basic conditions mentioned in paragraph 8(2)".

(9) As already noted, those include the two requirements, first, that it is "appropriate to make the order" having regard to national policies, as set out in the NPPF and the PPG, (see paragraph 8(2)(a)); and second, that the making of the order is "in general conformity with the strategic policies contained in" the Leeds Local Plan (paragraph 8(2)(e)).

(10) The examiner must make a report on the draft plan, with reasons, containing recommendations in accordance with paragraph 10 of Schedule 4B, and no other recommendations.

(11) The examiner must not recommend that the draft plan (with or without modifications) is put to a referendum if he considers that the plan does not meet the "basic conditions" (paragraph 10(4)).

(12) The only modifications the examiner can recommend are (for present purposes) modifications he "considers need to be made to secure that the draft [plan] meets the basic conditions …" (paragraph 10(3)(a)).

(13) The local planning authority (here, the city council) must consider the examiner's recommendations and reasons and decide what action to take (paragraph 12(2)). The authority must publish its "decision statement", i.e. its decision and the reasons for it: regulation 18(1)(c) and 18(2)(a) of the 2012 Regulations.

(14) If satisfied that (among other things) the draft plan meets the "basic conditions", or would do so if modifications (whether or not recommended by the examiner) were made to it, the local planning authority must put the draft plan to a local referendum (paragraph 12(4)).

(15) The only modifications the local planning authority may make to the draft plan are (so far as relevant here) modifications it considers necessary to "secure that the draft [plan] meets the basic conditions mentioned in paragraph 8(2)" (paragraph 12(6)(a)) or "modifications for the purpose of correcting errors" (paragraph 12(6)(e)).

(16) If the local planning authority proposes to make a decision that differs from that recommended by the examiner and the reason for the difference is (wholly or partly) as a result of new evidence or a new fact or a different view taken as to a particular fact, the authority must notify "prescribed persons" of their decision and reasons, and invite representations, or refer the issue to independent examination (Schedule 4B, paragraph 13(1) and (2)).

(17) As it happens, persons were "prescribed" for that purpose only with effect from 1 October 2016, nearly a year after the decision challenged in this case (see the new regulation 17A of the 2012 Regulations). The prescribed persons now include a developer in the position of the claimant, but the prescription came too late for this case; and, in any case, the city council did not decide to proceed under paragraph 13.

13. The facts of the case are these. In 2001, the Leeds Local Plan included provision that various sites, including the Ridge, were designated as "Protected Area of Search" sites (PAS sites). I was not shown the relevant 2001 document, but the later UDPR, adopted in 2006, stated that the purpose of PAS sites was "[t]o ensure the necessary long-term endurance of the Green Belt"; "to provide land for longer-term development needs"; and "to provide some flexibility for the City's long term development".
14. The effect of designation as a PAS site was stated in policy N34: in the case of PAS sites, "development will be restricted to that which is necessary for the operation of existing uses together with such temporary uses as would not prejudice the possibility of long term development". Thus, the Leeds Local Plan envisages that the Ridge site may be developed in the future, and should not be put to any use inconsistent with such development.
15. In 2012, the city council approved the parish council's request to be designated as a neighbourhood area and as such a "qualifying body" empowered under the legislation outlined above to bring forward a draft neighbourhood plan. The parish council did so. Its initial draft of the LNP was published on 9 June 2014 and was the subject of public consultation.
16. The city council adopted the Core Strategy on 12 November 2014. It sits alongside the UDPR of 2006, which remains in place. Within the Core Strategy, the city council's spatial policy number 6 (SP6), forming part of its "Spatial Development Strategy", dealt with "the Housing Requirement and Allocation of Housing Land". The policy is that "[t]he provision of 70,000 (net) new dwellings will be accommodated between 2012 and 2028 with a target that at least 3,660 per year should be delivered from 2012/13 to the end of 2016/17".
17. Policy SP6 goes on to specify that in the case of 66,000 of those dwellings, decision making would be informed by considerations such as whether the locations were sustainable, a preference for brownfield sites, the least impact on Green Belt purposes, and so forth. Spatial policy SP7 deals with distribution of those 66,000 dwellings. Eight per cent of them, 5,000 dwellings, were to be in the city council's Outer North East area, which includes Linton and the Ridge.
18. The Core Strategy went on to refer to PAS sites, designated as such in the UDPR. Those sites "will provide one of the prime sources for housing allocations in the LDF [Local Development Framework]" (Core Strategy, paragraph 4.8.6). As explained at paragraph 1.3 of the Core Strategy:

The Council is preparing the Local Development Framework (LDF) for Leeds. The LDF is the name for a number of Development Plan Documents and Supplementary Planning Documents, which together make up the overall Development Plan (Local Plan).

The LDF is intended eventually to replace the UDPR of 2006 (Core Strategy, paragraph 1.6).

19. In March 2015, the parish council published a revised draft of the LNP. It was this draft that was subsequently sent to the examiner. The planning policies in it were in six categories. Category B was "New Housing Development". Policy B1 dealt with "Small Scale Development". Nine sites were identified from the city council's list of sites in its Strategic Housing Land Availability Assessment (SHLAA).
20. A section of the revised draft LNP containing "Feedback from the Community" stated (paragraph 107) that none of the sites was suitable for development. Eight of the nine were Green Belt sites; the ninth was the Ridge, a PAS site against which, in a table listing the sites, the column expressing the reason why the Ridge was regarded as unsuitable for development was denoted by the words "See section B2". Section B2 corresponded to Policy B2, which was specifically about the Ridge.
21. In the narrative, the Ridge's status as a PAS site was explained. Various reasons why it was not thought suitable for development were then set out: the impact on open countryside views; an unacceptable extension into the countryside; the opportunity to return the land to agricultural use and possibly also to the Green Belt; poor vehicular access; and a long distance to the nearest bus stop. The community feedback narrative spoke of an agreement to "investigate returning the whole of the site to the Green Belt".
22. The Policy relating to the Ridge, Policy B2, was that it should continue to be protected from development until its longer term allocation had been determined via the city council's sites allocation plan, following a Green Belt review. A project was then mooted "to help deliver our vision". That project was stated to be "[e]xamine returning all or part of The Ridge to Green Belt".
23. Towards the end of the revised draft LNP a "Projects Priorities List" was set out, divided into projects labelled as high, medium or low priority. Second on the list of high priority projects was: "[e]xamine returning all or part of The Ridge to Green Belt or agricultural use". There was a cross-reference for each project to a numbered policy elsewhere in the document. Naturally, the cross-reference in the case of the Ridge was to Policy B2.
24. Such was the draft LNP when it reached the examiner, Mr Nigel McGurk, whose task was to prepare the statutory report on it. After receiving representations from (among others) the claimant, he produced his report in August 2015. He praised the plan as "well presented", with a clear division between policies and supporting text.
25. He declared that he had "examined the [draft LNP] against all of the basic conditions…". Subject to changes he recommended, he declared at the end of his report that the LNP "meets the basic conditions". He recommended that, subject to the modifications proposed in his report, the draft LNP should proceed to a referendum. The changes he recommended, so far as material, were these.
26. He sought deletion of the whole of Policy B2, which was specific to the Ridge, because it "relates to matters under the consideration of [the city council]"; because a Green Belt review "is a strategic matter, rather than a neighbourhood planning matter"; because the Ridge was already subject to a city council policy, N34; and because "it is not the role of neighbourhood plans to simply repeat existing policy". His precise recommendation was: "[d]elete Policy B2 and all associated text".
27. He did not say which passages in the draft LNP he considered to be "associated text". It might have been better if he had, since the parties do not agree on the point. The city council points out that he cannot have regarded the reference to a "project" about the Ridge as "associated text", since he specifically endorsed retention of the text describing that project. Under a heading ("Other Matters") near the end of the report, the examiner commented on the section dealing with projects, noting that the lists of projects "simply set out the aspirations of [the parish council]" and "are not Policy matters".
28. He recommended deleting the cross-references in the tables to the relevant policy number linked to each project, therefore including the cross-reference to Policy B2 in the case of the Ridge project. He did not ask for deletion of any of the projects themselves, including the project to examine returning all or part of The Ridge to Green Belt or agricultural use; since the project lists "simply reflect actions that [the parish council] would like to progress".
29. Armed with the examiner's report, the city council considered it and announced in its written decision statement of 4 November 2015, challenged in these proceedings, its decision to submit the LNP to a referendum and the reasons for that decision. The city council accepted the majority of the examiner's proposed amendments. Among those it wholly or partly rejected was "[p]roposed modification M23" dealing with the Ridge-specific Policy B2.
30. The city council's decision on proposed modification M23 was set out as part of a table. The examiner's recommendation was identified as "[d]elete Policy [B2] and all associated text". The reasons for the examiner's recommendation (as set out above) were then stated. In the right hand column, the city council's decision and the reasons for it were set out thus (with italics in the original):

Modify the text as indicated to comply with examiner's recommendations and remove strategic matters dealt with by [the city council]. Delete "See section B2" in the table … to reflect the deletion of Section B2 and insert "PAS site. Elevated site on ridgeline with risk of visual impact; vehicular access is steep. Traffic issues same as SHLAA 1252. Distance to bus stop outside Core Strategy threshold" to correct a resulting error in cross-referencing.

31. The table into which that (italicised) text was inserted (the "first table") was, as in the draft considered by the examiner, a table listing nine sites beneath narrative under the heading "Feedback from the Community", forming part of the discussion relating to Policy B1, "Small Scale Development". The revised form of Policy B1, to which the claimant does not take objection, states:

Developments of less than ten dwellings will be allowed within the built-up part of Linton, outside the Green Belt, subject to respecting and where possible, enhancing local character and maintaining residential amenity.

32. The city council accepted the examiner's proposed modification M39 relating to the tabulated lists of high, medium and low priority projects, agreeing to delete the policy number column of each table. Thus, in the case of the project relating to the Ridge, the column entry cross-referring to "Policy B2" was deleted. The city council stated that the reason was "to clarify the status of the projects", i.e. that they were aspirations for the future and not planning policies.
33. The final version of the LNP, with those changes, was then submitted to a referendum in which the LNP was approved. The words italicised by the city council (as set out above) were placed within the first table, appearing beneath the heading "Feedback from the Community" after two paragraphs of narrative. The Ridge-specific Policy B2 was gone, together with all the narrative within it. Policy B3 was renumbered B2 accordingly, with consequential changes to other policy numbers.
34. The project list, however, remained and, within the high priority part of it, the Ridge project remained second in the list, minus its cross-reference to the old and now deleted Policy B2. All the other projects had also lost their cross-references to policy numbers, as the examiner had recommended and the city council had accepted.
35. The claimant was not happy with the final version of the LNP and, considering it and consequently the referendum to be unlawful, then brought this challenge. Initially, permission to proceed with it was refused on the papers by His Honour Judge Kaye QC. However, on 6 May 2016 Lindblom LJ granted permission to proceed on one only of the proposed grounds. He also made a costs capping order in accordance with the Aarhus Convention provisions in rule 45.41-43 of the Civil Procedure Rules.
36. Lindblom LJ said that what was arguable was "[w]hether the examiner's recommendations were lawfully followed by retaining the contentious passages of text, and whether the relevant requirements of paragraph 8(2) of Schedule 4B to the [1990 Act] were complied with". He described those questions as "fit for consideration at a hearing of the claim". His helpful formulation of the two questions expresses succinctly the first ground of challenge set out in the claimant's statement of facts and grounds (at paragraphs 55-60).
37. There can be no objection to the deletion from the first table of the words "See Policy B2". Policy B2, as renumbered, was no longer about the Ridge at all. It was the old Policy B3. The deletion was necessary to correct the resulting cross-referencing error and the power to correct such errors is conferred by paragraph 12(6)(e) of Schedule 4B to the 1990 Act. It was plainly "associated text", i.e. text associated with the offending Policy B2, which the examiner had condemned in his report.
38. The first issue, then, is whether it was wrong in law for the city council to replace those words with the inserted text in the first table within the discussion relating to Policy B1, comprising the words "PAS site. Elevated site on ridgeline with risk of visual impact; vehicular access is steep. Traffic issues same as SHLAA 1252. Distance to bus stop outside Core Strategy threshold". The claimant says the city council was wrong so to describe the Ridge, because the description stated why the Ridge should remain undeveloped, while the city council had provided to the contrary in the Leeds Local Plan.
39. The second and related issue is whether the city council acted unlawfully by including within the list of high priority projects, near the end of the LNP, the project: "[e]xamine returning all or part of The Ridge to Green Belt and agricultural use". The claimant submits that it was unlawful to retain that project within the lists of projects forming part of the LNP, as put to the referendum. The city council contends that, as the examiner noted, the project was no more than an aspiration, and that had been clarified by accepting the examiner's recommendation to delete the cross-reference to Policy B2 (along with the deletion of other cross-references between other projects and other policies).
40. In my judgment, these two issues should be considered together. The overarching question is whether the city council was bound to submit the LNP to a referendum, which turns on whether it was entitled to be "satisfied" that it was "appropriate" to adopt the LNP, having regard to the policies stated in the NPPF and the PPG, and that making of the LNP was in "general conformity with the strategic policies" in the Leeds Local Plan. That requires the court to assess whether the designation of the Ridge as a PAS site in the Leeds Local Plan precluded the city council from accepting the LNP in its final form.
41. The parties helpfully referred me to various cases and did not (as became clear at the hearing, though not in the skeleton arguments) disagree to any significant extent on any proposition of law. From the statutory provisions and the cases, I derive the following propositions that have to be applied to the facts here.
42. First, it is for the city council, not the court, to decide whether it is "satisfied" that the draft plan (with or without modifications recommended or not recommended by the examiner) meets the basic conditions. If the city council is so satisfied, it is bound, not merely entitled, to submit the plan to a referendum. So much is clear from the wording of paragraph 12(4) of Schedule 4B to the 1990 Act.
43. The meaning of "general conformity" is a question of construction for the court. I agree with Mr Evans, for the city council, that the construction of that phrase in earlier legislation dealing with the relationship between local plans and structure plans, holds good for the present context as well. The consideration of "general conformity" in the judgment of Laws LJ (Ward and Lloyd LJJ agreeing on this point) in Persimmon Homes (Thames Valley) Ltd. v. Stevenage BC [2005] EWCA Civ 1365, at paragraphs 24-29, is therefore relevant and helpful.
44. Laws LJ referred (at paragraph 28) to "a balanced approach" to construction of the phrase, noting that the requirement of general conformity between the two plans:

may allow considerable room for manoeuvre within the local plan in the measures taken to reflect structure plan policy, so as to meet the various and changing contingencies that can arise. … [M]easures may properly be introduced into a local plan to reflect the fact, where it arises, that some aspect of the structure plan is itself to be subject to review. This flexibility is not unlimited. Thus measures of this kind may not pre-judge the outcome of such a review. They must respect the structure plan policies as they are, while allowing the possibility that they may be changed.

45. Applying that construction, which is a matter for the court, the question whether one plan is in general conformity with another is a matter of planning judgment for the decision maker and, depending on the circumstances, "may admit of more than one reasonable answer"; and on a challenge the court's role is supervisory, applying the usual public law standard and not any enhanced standard: per Laws LJ, ibid. at paragraphs 29-30.
46. When considering the policies in a local plan, the focus should be on the policies themselves. The supporting text consists of descriptive and explanatory matter in respect of the policies and/or a reasoned justification of the policies, which is relevant to their interpretation but does not have the force of the policies themselves; see the judgment of Richards LJ in R (Cherkley Campaign Ltd) v. Mole Valley DC [2014] EWCA Civ 567, paragraphs 16 and 21.
47. The policies in a development plan are not akin to provisions in a statute or contract, and should not be interpreted as if they were. They must be sensibly construed, reading the plan as a whole, with a focus on its relevant objectives and the policies that give effect to those objectives: per Lindblom J (as he then was) in Crane v. Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin), at paragraph 40.
48. The basic condition in paragraph 8(2)(e) of Schedule 4B to the 1990 Act "only requires that the draft neighbourhood plan as a whole be in 'general conformity' with the strategic policies of the adopted development plan (in so far as it exists) as a whole. Thus, there is no need to consider whether there is a conflict or tension between one policy of a neighbourhood plan and one element of the local plan": R (Crownhall Estates Ltd) v. Chichester DC [2016] EWHC 73 (Admin) per Holgate J at paragraph 29 ii) (his italics).
49. A neighbourhood plan is not required to include policies on the use of land for housing, though it may do so. The qualifying body is not responsible for preparing strategic policies in its neighbourhood plan to meet objectively assessed development needs across a local plan area: ibid., per Holgate J at paragraph 29 v).
50. The requirement in paragraph 8(2)(a) that it must be appropriate to make the order, has been said to confer a discretion whether to allow a neighbourhood plan to proceed having regard to national policies and advice contained in guidance from the Secretary of State (per Supperstone J in R (BDW Trading Ltd) v. Cheshire West & Chester BC [2014] EWHC 1470 (Admin), at paragraph 84; and per Holgate J in R (Maynard) v. Chiltern DC [2015] EWHC 3817 (Admin), at paragraph 66. It may be more apt to describe the issue as one of planning judgment rather than pure discretion, in view of the obligation to submit the plan to a referendum if satisfied that the basic conditions are met.
51. The claimant's main submissions were as follows:

(1) Taking the LNP as a whole, including the supporting text and not merely the actual text of the policies, the LNP conflicts with the Leeds Local Plan in respect of the Ridge site. The latter proposed that the Ridge would be developed for housing; the former that this should not happen and that the Ridge should be returned to the Green Belt.

(2) This meant that the plans were in conflict and that a future planning application by the claimant would be prejudiced because of the effect of paragraph 198 of the NPPF, stating that planning permission should not normally be granted in such a case.

(3) Mr Young emphasised that the Leeds Local Plan had identified a housing requirement on the basis of objectively assessed need for 5,000 dwellings in the Outer North Eastern area of Leeds, in which the Ridge lies; and that PAS sites such as the Ridge had been identified as "one of the prime sources" of such dwellings.

(4) That was a strategic policy, in the sense of that term explained in the PPG (supplementing paragraphs 156 and 184 of the NPPF). The neighbourhood planning process, though undertaken with advice and assistance from the local planning authority, is a much less sophisticated process which did not involve the objective assessment of housing need.

(5) The LNP has the same legal status as the Leeds Local Plan (as explained in the PPG, supplementing paragraph 16 of the NPPF). Neighbourhood plans should support the strategic development needs set out in local plans, as stated in paragraph 16 of the NPPF. This meant that, at the most, the Ridge should have been described in neutral language, and not as a site unsuitable for housing development.

(6) The ambitions of the neighbourhood, as embodied in the LNP, should be "aligned with the strategic needs and priorities of the wider local area" and should "reflect these policies and neighbourhoods should plan positively to support them… [and] should not promote less development than set out in the Local Plan or undermine its strategic policies" (NPPF, para 184).

(7) As is well recognised, it would be wholly exceptional for land once removed from the Green Belt to be returned to it, and vice versa. The designation of the Ridge as a PAS site meant that it was in practice earmarked for development and its status as such ought to be respected in the LNP instead of undermined.

(8) The city council purported to accept the examiner's recommendation without qualification. The examiner had recommended removal of Policy B2 and "all associated text". The text inserted into the first table was "associated text", yet it was reinvented in the first table rather than being deleted as the examiner had recommended.

(9) The retention of the Ridge project within the lists of projects was also wrong, for similar reasons, even though its deletion was not required by the examiner: the project to consider the return of the Ridge to the Green Belt, which would require exceptional circumstances, was incompatible with its status as a PAS site.

(10) The city council was in effect disagreeing with the examiner, and ought to have reopened the process of receiving representations, invoking the procedure in paragraph 13 of Schedule 4B, before approving the plan in a form the examiner did not recommend.

(11) The explanation that the alterations were made to correct a cross-referencing error is inadequate and insufficient to comply with the duty to give reasons for the city council's decision (regulation 18(2) of the 2012 Regulations).

(12) In all those circumstances, it was not open to the city council lawfully to decide that the LNP, in its final form, met the basic conditions. The city council had acted in breach of paragraph 12(6) of Schedule 4B or, alternatively, in a manner that was Wednesbury unreasonable. Its decision that the basic conditions were met, was accordingly unlawful and should be quashed along with the referendum result.

52. The city council, through Mr Evans, made the following main points by way of riposte:

(1) There was no absence of general conformity as between the LNP as a whole and the strategic policies in the Leeds Local Plan as a whole. The identification of the Ridge as a PAS site carried with it only the possibility that the Ridge would be used for future housing development. The issue was left open. There was no necessary inconsistency between its status as a PAS site and the view of the parish council that it was not suitable for development.

(2) Specifically, the factors identified in the text inserted into the first table were inimical to development of the Ridge site for housing and would still be inimical to such development whether or not included in the parish council's narrative explanation of why it did not consider the site suitable for housing development.

(3) Those factors were: visual impact; steep vehicular access; traffic issues and the distance to the nearest bus stop. That narrative explanation was not a policy within the LNP. It was part of the explanatory material supporting Policy B1. It correctly identified the Ridge as a "PAS site", as distinct from the other eight sites included in the first table, which were all Green Belt sites.

(4) Policy B1 in its final form (to which the claimant has not objected), stated that developments of "less than ten dwellings" would be allowed "within the built-up part of Linton, outside the Green Belt", subject to respecting or enhancing local character. Without some explanation of why the Ridge was not considered suitable for development, there would have been an incongruous blank in the first table.

(5) The examiner had not required deletion of the reference to the Ridge in either of the two tables. Therefore, he must have envisaged some explanation of why, in the first table, the Ridge was considered unsuitable for development.

(6) It was therefore wrong to characterise the explanation inserted into the first table as text "associated" with the deleted Policy B2; and doubly wrong to regard the description of the Ridge project in the second table as "associated" text, since the examiner had expressly authorised its retention in the LNP.

(7) Both the retained passages of text about the Ridge accurately described its factual characteristics. The project to consider returning the Ridge to the Green Belt was, as the examiner had noted, not a statement of the parish council's policy but an innocuous statement of the parish council's aspiration, which might or might not be realised, and to which the examiner had correctly not objected.

(8) The decision of the city council that the basic conditions were met was not one that could be impugned applying the usual Wednesbury standard. It was open to the city council to decide that it was "satisfied" that they were met, subject to the modifications made, and it was therefore incumbent on the city council to submit the LNP to a referendum, the holding of which was lawful and the result of which should stand.

53. I come to my reasoning and conclusions. I remind myself that the challenge is to the city council's decision to adopt the LNP subject to modifications, not all of which were among those recommended by the examiner. The challenge is not to any decision of the examiner. Under paragraph 12(4), the obligation to submit a plan to a referendum arises if the local planning authority is satisfied that, with modifications, it meets the basic conditions, whether or not the modifications made are recommended by the examiner.
54. The city council was not obliged, when deciding upon modifications, to limit itself to those proposed by the examiner. Here, it did not so limit itself. Its reaction to the examiner's proposed modification M23 was that it partially rejected what the examiner proposed, and specifically said so in its decision statement. It accepted the deletion of the cross-reference to Policy B2, a suggestion that emanated from the examiner. But he did not propose the insertion into the first table of the text stating the parish council's reasons for regarding the Ridge as unsuitable for housing development.
55. The city council made that insertion of its own volition, consciously departing from the examiner's proposal. It is therefore not correct that the city council purported to follow the examiner's recommendation without qualification. In order to decide the case, it is therefore unnecessary to rule on exactly what the examiner must have meant (if he gave the matter much thought) by advocating the deletion of "all associated text", along with Policy B2. What matters is whether the modifications made by the city council resulted in an unlawful decision to approve the LNP.
56. The claimant has clearly demonstrated a degree of tension between the content of the LNP and the content of the Leeds Local Plan. The former includes text which suggests the Ridge should not have dwellings built on it, and indeed should be returned to the Green Belt; the latter leaves open a distinct possibility that it should have dwellings built on it and says nothing about it being returned to the Green Belt, which would be exceptional. But, as Holgate J explained in the Crownhall Estates case discussed above, that is not of itself sufficient to compel a finding of general discomformity between the two plans.
57. I bear in mind that the housing policy in the LNP, Policy B1, is expressed in permissive terms and deals with building of dwellings within the built up area of Linton, not outside it. Policy B1 itself says nothing about the Ridge site, nor is it required to do so. I bear in mind also that a description of some sort was necessary against the table entry mentioning the Ridge as among the sites which the parish council regarded as unsuitable for development. The parish council was not bound to keep silence on the subject of the Ridge merely because it is a PAS site.
58. The text inserted into the first table acknowledged the Ridge's status as a PAS site, and thereby implicitly acknowledged that it might be developed one day, albeit against the wish of the parish council. The tension between the LNP and the Leeds Local Plan was also attenuated by the omission, from what was inserted into the first table, of the references (formerly in the old Policy B2) to an unacceptable extension into the countryside and the opportunity to return the land to agricultural use and possibly also to the Green Belt.
59. The latter point was only included in the final LNP at the end, in the project section, thus clearly relegating a Green Belt return to the level of a mere aspiration. It was neither a policy nor part of the explanatory material accompanying a policy.
60. In the result, while the LNP in its final form included mention of the parish council's opposition to development of the Ridge for housing, that does not mean that planning permission for future housing development of the Ridge would necessarily have to be refused. Neither section 70(2) of the 1990 Act, nor section 38(6) of the 2004 Act would compel that result. A developer such as the claimant could argue that the material plan for the purposes of section 70(2) and section 38(6) is the Leeds Local Plan; and that even if the grant of planning permission would be out of tune with the LNP, planning permission should not be refused because "material considerations indicate otherwise".
61. The same reasoning applies if the issue is considered from the standpoint of the NPPF. A developer applying for planning permission to build dwellings on the Ridge could argue that the references in the LNP to the parish council's opposition to that course should be disregarded or given little weight because they are not statements of policy; that the LNP should not be allowed, in the words of paragraph 184 of the NPPF, to "promote less development than set out in the Local Plan or undermine its strategic policies"; and, for the same reason, that a planning application to build dwellings on the Ridge would not be one that "conflicts with a neighbourhood plan" (paragraph 198 of the NPPF).
62. It follows that, in general, I prefer the submissions of the city council to those advanced by the claimant. It was open to the city council to make the modifications which it made, and to profess itself satisfied that the basic conditions were met. Having reached that conclusion, it was bound to accept the LNP and submit it to a referendum.
63. I do accept that the reasons given by the city council for inserting the text it decided to insert into the first table, were less than complete and decidedly economical. The changes made went well beyond merely correcting a cross-referencing error, and that brief reason, as given, fell short of what was required under regulation 18(2) of the 2012 Regulations.
64. But that relatively minor deficiency in the city council's decision making process is nowhere enough in itself to condemn the LNP and the referendum result approving it, or to impugn the decision challenged in this application. The LNP and the referendum result should stand. The claim must fail and is dismissed.