QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
KEBBELL DEVELOPMENTS LIMITED
|- and -
|LEEDS CITY COUNCIL
COLLINGHAM WITH LINTON PARISH COUNCIL
Alan Evans (instructed by Karen Blackmore, Leeds City Council) for the Defendant
Hearing date: 6th October 2016
Crown Copyright ©
Mr Justice Kerr :
Where a planning application conflicts with a neighbourhood plan that
has been brought into force, planning permission should not normally be
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.
(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.
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).
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.
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.
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.
(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.
(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.