Leeds Combined Court
The Court House, 1 Oxford Row Leeds, LS1 3BG
Before :
MR JUSTICE STEWART
Between :
The Queen on the application of Miller Homes Limited | Claimant |
- and - | |
Leeds City Council | Defendant |
Mr Gordon Nardell QC and James Burton (instructed by Eversheds LLP) for the Claimant
Ms Nathalie Lieven QC (instructed by Leeds City Council) for the Defendant
Hearing dates: 16 & 17 January 2014
Judgment
Mr Justice Stewart:
Introduction
The Claimant seeks an order quashing the Defendant’s Interim Policy on Potential Release of Sites in the Protected Area of Search (“the Interim Policy”) adopted by the Defendant Council by Executive Board resolution on 13 March 2013.
In this judgment I will use the following abbreviations:
LPA – Local Planning Authority
The 1990 Act – Town and Country Planning Act 1990.
The 2004 Act – Planning and Compulsory Purchase Act 2004
LDD – Local Development Document
DPD – Development Plan Document
SPD – Supplementary Planning Document
Residual LDD – an LDD which is neither a DPD nor an SPD.
NPPF - the National Planning Policy Framework
UDPR – the Defendant’s Unitary Development Plan Review, adopted 2006
PAS – Protected Area of Search identified in the UDPR
EB – the Defendant’s Executive Board
CPP – the Defendant’s City Plans Panel
The grounds of challenge are that the Interim Policy is unlawful because:
The policies it contains fall within regulation 5 of the Town and Country Planning (Local Planning) (England) Regulation 2012 (“the Regulations”) and therefore could only be adopted (if at all) as a DPD or SPD. However the Defendant failed to follow the prescribed procedure for either a DPD or an SPD.
The Defendant contends that the Interim Policy is neither a DPD nor an SPD, but rather a residual LDD. Even if this is correct then the Defendant failed to consult adequately or at all before adopting the Interim Policy.
Appendix 1 to this judgment sets out the relevant provisions of the 1990 Act, the 2004 Act and the Regulations.
Appendix 2 to this judgment contains relevant paragraphs of the NPPF.
Section 70 of the 1990 Act requires an LPA in dealing with a planning application to have regard to the development plan and any other material considerations.
Section 38(6) of the 2004 Act requires a planning determination to be made in accordance with the development plan unless material considerations indicate otherwise.
Government policy is a material consideration; the NPPF is therefore a material consideration.
Other material considerations include SPDs and Residual LDDs.
Section 17 of the 2004 Act requires the LPA’s LDD’s to set out the LPA’s policies relating to development and use of land. It also provides for regulations to prescribe, amongst other things, the descriptions of LDDs and their form and content.
Section 19 of the 2004 Act lists requirements for the preparation of DPDs and LDDs including, for either, that the LPA must have regard to national policies.
The 2004 Act introduces the concept of examination of public DPDs (only). This examination process, which is introduced by section 20, still involves an inspector, but was intended to be less legalistic than previously. Amongst other requirements the examination has as its purpose to determine whether a DPD satisfies the Regulations and whether it is “sound”. [Para 182 NPPF defines “sound”.]
Section 23 of the 2004 Act deals with the process of the LPA adopting LDDs.
Pursuant to section 17(7) of the 2004 Act, LDDs were made subject to regulations. The most recent regulations are the 2012 regulations. If an LPA wishes to adopt an LDD which falls within regulation 5 or regulation 6, then it must adopt them as a DPD or SPD and follow the process prescribed in the 2004 Act and in the regulations.
The 2004 Act also introduced the concept of “saved policies”. UDPR is a saved policy. That means it has been saved by the Secretary of State as an old policy which predated the 2004 Act but which is still effective. [see also NPPF Annex 2: Glossary under “Local Plan”].
It is common ground that where an LPA is in the process of preparing/adopting a DPD, it can give some weight to it as Emerging Policy; this is a “material consideration”. The further along its journey of preparation/adoption, the more weight can be given to such a document. However, if it has been objected to and the inspector’s decision is still awaited, then relatively little weight can be given to the document as Emerging Policy. It was to plug this gap that the Defendant created and brought into effect the Interim Policy in the present case.
Factual Background as at the Date of the Claim
The Claimant intended to make an application to the Defendant for planning permission for housing development on a site at Grove Road, Boston Spa, close to the town centre. The Claimant has an option to purchase the site and wishes to develop it in order to construct just over 100 new dwellings. The site is within a PAS designated by policy N34 of the 2006 UDPR. This is the Defendant’s statutory development plan.
The aim of policy N34 was to complement the green belt by safeguarding some non green belt land for “longer-term development”. Sites in the PAS were protected by the following words:
“N34. Within those areas shown on the proposals map under this policy, 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.”
In 2006 it was considered unlikely that the PAS would need to be developed until the UDPR came to an end in 2016. This assumption proved to be incorrect, as it is accepted that the Defendant needs to strengthen its five year supply of housing land as required by the NPPF. Thus the Defendant needs to release some sites within the PAS for the development of houses. NPPF paragraph 49 explains that if the five year supply cannot be demonstrated:
“The housing application should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the sustainable supply of housing should not be considered up to date if the local planning authority cannot demonstrate a five year supply of deliverable housing sites.”
NPPF introduced a presumption in favour of sustainable development (paragraphs 11 – 14). It also introduced the requirement to boost significantly the supply of housing, including identifying and updating annually a supply of specific deliverable sites sufficient to provide a five year supply. In addition to allocated sites i.e. sites identified in the development plan in force as allocated for housing, LPAs are permitted to make an allowance for windfall sites in certain circumstances. “Windfall sites” are sites which have not been specifically identified as available in the local plan process and normally comprise previously developed sites that have unexpectedly become available (see paragraph 47 – 49 NPPF; for the definition of windfall sites see Annex 2: Glossary NPPF).
In the Interim Policy are criteria against which the Defendant will consider granting planning permission for housing development in the PAS and therefore as a departure from policy N34. The Claimant seeks to quash the Interim Policy which requires locations to be “well related to the Main Urban Area or Major Settlements” defined in a settlement hierarchy proposed in the Defendant’s emerging Core Strategy. As at the date of claim the Core Strategy had been objected to and a public examination of it was pending. The Claimant says that this requirement of the Interim Policy conflicts with UDPR S2 and H4 (windfall sites). Boston Spa is not a Main Urban Area. It is however listed under retail policy S2 as a town centre, the vitality and viability of which will be maintained and enhanced. The supporting text to H4 (para 7.2.15) states:
“It is likely that proposals will be acceptable in S2 service centres not within the MUA/SUA’s …”
In short, absent policy N34, H4/S2 UDPR may be seen to favour a housing development in Boston Spa. The Interim Policy criteria are, however, unfavourable to release of the site for housing development.
Update
The preceding paragraphs set out the position as of the date of claim, namely June 2013. Since then the Claimant has submitted outline and full applications for planning permission for the site. The Defendant did not determine the outline application within the statutory period and the Claimant has appealed. The full application remains to be considered and is to be reported to the CPP on 16 January 2014 (the first day of the hearing). In the report of the Chief Planning Officer to the CPP, the Interim Policy is said to be a “material consideration”. The Core Strategy was submitted to the Secretary of State for examination on 26 April 2013. It is due to resume in May 2014, the inspector apparently having raised a number of concerns. Thereafter, the Site Allocations DPD will move forward.
In the meantime the Defendant has applied the Interim Policy to proposals for housing development of PAS sites. The Defendant states that it intends to produce a pre-submission draft of the Site Allocations DPD in autumn 2014. The Core Strategy will thus set out the strategic policies for housing land including total housing target. The Site Allocations DPD will set out the individual sites where the Defendant supports the grant of planning permission in order to meet the overall numbers of new dwellings in the Core Strategy Policy. The Defendant’s intention is that once the draft Site Allocations DPD is published the purpose of the Interim Policy will be finished, since the Defendant will have clarified which specific sites (including PAS sites) it supports/does not support for development.
The Interim Policy
At the EB meeting on 13 March 2013 the Defendant received an officer’s report proposing the Interim Policy. This followed the annual monitoring report (“AMR”) for 2011/2012 which accepted the need to increase the five year supply of land for housing development. The AMR noted that the Defendant had been criticised in a number of recent appeals for failing to provide sufficient green field land to supplement its brown field target and to ensure choice and competition for land.
The Interim Policy reads as follows:
“In advance of the Site Allocations DPD, development for housing on Protected Area of Search (PAS) land will only be supported if the following criteria are met:
i) Locations must be well related to the Main Urban Area or Major Settlements in the Settlement Hierarchy as defined in the Core Strategy Publication Draft;
ii) Sites must not exceed 10ha in size (“sites” in this context meaning the areas of land defined in the Unitary Development Plan), and there should be no subdivision of larger sites to bring them below to the 10ha threshold; and
iii) The land is not needed, or potentially needed, for alternative uses.
iv) It is in an area where housing land development opportunity is demonstrably lacking; and
v) The development proposed includes or facilitates significant planning benefits such as, but not limited to:
a) A clear and binding linkage to the redevelopment of a significant brown field site in a regeneration area;
b) Proposals to address a significant infrastructure deficit in the locality of the site.
In all cases development proposals should satisfactorily address all other planning policies, including those in the Core Strategy.”
The Parties’ Dispute as to the Construction of 2012 Regulations
The following is common ground:
Adopted local planning policy is part of the statutory development plan. The UDPR is the adopted development plan.
The interpretation of policy is a matter for the court (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13). By analogy with the Tesco case it is for the court to decide “whether a document satisfies or does not satisfy all the conditions identified in a statutory document.” In R (Wakil) v The Hammersmith and Fulham LBC [2012] EWHC 1411 (Admin) the court dealt with regulations which preceded the 2012 regulations. Wilkie J. held that a document which the LPA purported to adopt as an SPD was in fact a DPD requiring public examination under section 20 of the 2004 Act. However, if a question involves a planning judgment, that is something for the LPA to determine, subject to rationality review by the court.
A residual LDD may contain policies but an LPA may not use a residual LDD as a “cover for policies excluded from the plan”. Such residual documents may not be used to avoid legitimate public scrutiny of local planning policies in accordance with statutory procedures, it being irrelevant whether that was the LPA’s actual intention. See Westminster City Council v Great Portland Estates Plc [1985] 1 AC 661 at 674 B-G; R (J.A. Pye (Oxford) Ltd) v Oxford City Council [2002] EWCA Civ 116 paragraphs 18 and 24.
Any document which falls within regulation 5(1)(a)(i), (ii) or (iv) or 5(2)(a) or (b) is prescribed as a DPD (regulation 2(1)). The same regulation, and regulation 6, define any such document as a “local plan”.
An SPD must be “of a description referred to in regulation 5” of the 2012 regulations but cannot be a local plan. (Regulation 2(1)). It therefore follows that the only document that can be an SPD is a document of a description referred to in either regulation 5(1)(a)(iii) or regulation 5(1)(b) – see RWE NPower Renewables Limited v Milton Keynes Borough Council [2013] EWHC 751 (Admin) paragraph 28 (“the RWE case”).
An LPA may make a document an LDD by adopting it as such. There is no requirement that it can only be a document that is also prescribed by the Secretary of State as being such a document. Therefore if an LPA prepares any document as an LDD and it does not fall within the descriptions of documents referred to in regulation 5 of the 2012 Regulations (such as it is a DPD or an SPD) then it is a residual LDD. See the RWE case at paragraphs 54 – 60.
Hence the critical question is whether the interim policy is, on its proper construction, a DPD or an SPD within regulation 5 of the 2012 regulations. The Claimant contends that it is; the Defendant contends that it is not and that it is in fact a residual LDD.
The Importance of the Issue
The Defendant points out that this is not a unique situation. LPAs may often need a policy in place pending a new DPD, or at least pending a proposed new DPD having proper status as an Emerging Policy. If the development plan is out of date the process of adopting a new DPD can take 18 months or more.
Further, it is not difficult for a development plan to become out of date if there is for example a change of national policy which conflicts with it. Other factors may also make it out of date, for example environmental change based on advice that there is a flood risk in a new area. The LPA will, as Leeds have done here, seek to bridge the time interval with an Interim Policy if at all possible. That Interim Policy will by definition be inconsistent with the development plan since it is the change in circumstances which require the Interim Policy.
Therefore, the Defendant submits, the court should be slow to adopt a broad construction of regulations 5/6 of the 2012 Regulations since the LPA will then be hamstrung in the intervening period and this is not beneficial to good planning. A broad construction of the 2012 Regulations will leave extremely limited scope for residual LDDs to deal with interim changes.
There is no risk of an LPA abusing residual LDDs to change policy without going through the statutory regulation necessary, as this would fall foul of the principles in the Westminster City Council case and J A Pye (Oxford) case referred to in paragraph 16(iii) above. In any event it would be contrary to the interests of an LPA to try to take that course because a residual LDD will have substantially less weight than a DPD/SPD.
Therefore the Defendant submits, absent a valid Interim Policy as a residual LDD, there will be a “free for all” and appeals which the Defendant may well lose. The Defendant needs to release more land, which is the reason why it is undergoing a process of a Core Strategy and Site Allocation DPD. They need a policy in the interim to guide them and to inform the public and proposed developers. Absent this the options are (i) to allow applications only if they comply with N34. This is bound to lead to appeals and is very undesirable and expensive. It should not be the way to achieve some consistency of approach in the interim period; or (b) allow all applications; this is also unsatisfactory and defeats the purpose of any sensible criteria. Thus, the Defendant submits, the Interim Policy will also reduce appeals but will not stop an applicant arguing the individual merits of an application and also as to the weight to be given to the Interim Policy.
I can see some force in these submissions as a matter of practicality. However I must be cautious in allowing them to influence my construction of the 2012 Regulations.
Analysis
The Claimant submits that the Interim Policy is a DPD because it falls within sub paragraphs (i) and/or (ii) and/or (iv) of regulation 5(1)(a); further, or alternatively, it submits that the Interim Policy falls within regulation 5(2)(b) and is therefore a DPD. Finally the Claimant submits that even if the Interim Policy falls within none of the foregoing, it is an SPD under regulation 5(1)(a)(iii).
The opening words of sub paragraph 5(1)(a) are fulfilled by the Interim Policy to the extent that it is a “document prepared by a local planning authority”. The question in each case under regulation 5(1)(a) is whether it “contains statements regarding” one or more of (i) – (iv). “Regarding” is an ordinary English word which, I accept, signifies a relatively loose relationship between the “document” and the matters contained within (i) – (iv).
Regulation 5(1)(a)(i)
The question here is whether the Interim Policy “contains statements regarding …the development and use of land which the local planning authority wish to encourage during any specified period.” There is no dispute that the Interim Policy contains statements regarding “the development and use of land” The questions are:
Whether the LPA “wish to encourage” the development and use of land in the Interim Policy.
If so, whether they wish to encourage it “during any specified period”.
The Defendant submits that I should approach the construction of 5(1)(a)(i) as involving a question of planning judgment; the more it involves an issue of planning judgment, the more cautious the court should be to interfere with the planning judgment of the LPA. I do not accept this submission. It appears to me that whether or not the Interim Policy falls within this subparagraph of the 2012 Regulations is a matter for the court to decide by analogy with the Tesco case. In any event, in the present case there is no evidence that the Defendant made any judgment at all as to whether or not the Interim Policy came within this part of the 2012 Regulations.
As to question (a) I do not find that the Defendant, by the Interim Policy, wish to encourage the development and use of land. I appreciate the Claimant’s argument that the Interim Policy indicates how planning permission may be looked on favourably despite Policy N34 and that the 13 March 2013 report of the Director of City Development to the EB contains statements showing how the Interim Policy will assist the Defendant (see for example paras 1.1, 3.1 – 3.3). Clearly the Defendant’s motive in publishing the Interim Policy is to conform with NPPF pending the forthcoming DPD. The Defendant would rather do this than lose appeals. However I do not regard it as sufficient that the Defendant finds itself in circumstances where it is failing to comply with the NPPF and therefore perceives the need to set out in the Interim Policy circumstances in which planning permission would be looked on favourably. It is noteworthy that this particular part of the regulation is the only one which incorporates a reference to the LPA’s wishes. The court must look at the substance as to whether the LPA wishes to encourage the development and use of land; the court must also have regard to the subjective element in the verb “wish”. There will be situations where an LPA wishes to encourage the development and use of land, for example to regenerate an area. The Interim Policy is very different. It sets out criteria which are an attempt by the LPA to comply with NPPF. These criteria encourage and discourage development, albeit that the overall net effect is to release further land. Nor does the fact that there is reference in subparagraph v)a) of the Interim Policy to regeneration change the character of the document as a whole.
The Learned Deputy Judge in the RWE case, at paragraph 65, said “Prima facia at least, the “Emerging Policy” in the wind SPD is a document containing statements falling within subparagraph (i) of Article 5(1)(a)…it contains a statement that “planning permission will be granted for proposals to develop wind turbine renewal energy sources” unless certain conditions are met.” I do not regard this as binding upon me, since it is not clear to what extent the point was fully argued on this issue before the judge and, in any event, the ratio is that the “Emerging Policy” in the wind SPD did not come within this subparagraph. Therefore the statement in paragraph 65 is strictly obiter dicta.
As to question (b), the Defendant says that the period of operation of the Interim Policy is not specified because it does not have fixed dates. The Defendant said that this was a period contingent upon some other event ie. the pre-submission Site Allocation DPD being published. I do not accept that a specified period has to have fixed dates. The relevant wording of the Interim Policy is “in advance of the Site Allocations DPD …”. That in my judgment is sufficient to amount to a specified period.
Nevertheless because of the ruling that the LPA did not wish to encourage the development and use of land in the Interim Policy, I find for the Defendant in relation to Regulation 5(1)(a)(i).
Regulation 5(1)(a)(ii), 5(1)(a)(iv), 5(2)(b): Site Allocation Policy (“SAP”)
Except as to one point concerning Regulation 5(1)(a)(iv), these regulations can be considered together in relation to SAPs. The Claimant’s case is that the Interim Policy is a document which includes an SAP – Regulation 5(2)(b). Failing that, the Claimant submits that it contains statements regarding the allocation of sites for a particular type of development or use (5(1)(a)(ii)) or regarding SAPs which are intended to guide the determination of applications for planning permission (5(i)(a)(iv)).
It is noteworthy that 5(2)(b) and 5(1)(a)(iv) refer specifically to “Site Allocation Policy”/“Site Allocation Policies”, whereas 5(1)(a)(ii) refers to “the allocation of sites”. However by Regulation 2(1) a Site Allocation Policy “means a policy which allocates a site for a particular use or development.” I assume this is the same as “for a particular type of development or use” in 5(1)(a)(ii).
The central question therefore is whether the Interim Policy includes an SAP or contains statements regarding an SAP.
The Claimant relies upon the following:
It says that the Interim Policy includes an SAP because it begins with the N34 Policy and reallocates some of the PAS sites for development pending the Site Allocation DPD. They point to a document which was tab 12 (page 75) in the bundle. Clarification was sought of this document. According to the Defendant it is an internal document not intended to be produced outside the LPA. It was drawn up in early 2013, in anticipation of the Interim Policy, as an internal indication as to which sites would or would not meet the Interim Policy. It has a column as to “policy effect” and this broadly indicates which sites would be “allowed” or “not allowed”.
It submits that N34 itself is an SAP since it allocates sites. Therefore because the Interim Policy derogates from the N34, the Interim Policy itself is an SAP. It bridges the gap between N34 and the new SAP DPD. Even if not an SAP itself, the Claimant says that the Interim Policy contains statements regarding an SAP, the SAP being N34.
I reject the Claimant’s submission and I do not find that the Interim Policy includes an SAP or contains statements regarding an SAP. I say this for the following reasons:
The Interim Policy does not allocate a site or sites for a particular use or development. It sets out criteria. It is therefore a criterion based policy against which applications for planning permission for development housing on PAS land will be measured. The forthcoming DPD will be an SAP, but this does not assist in determining whether the Interim Policy is itself one.
Policy N34 is not an SAP. Therefore the Interim Policy does not contain statements regarding an SAP. N34 is a safeguarding policy. It does not allocate a site or sites for particular use or development. It restricts development within certain areas. In paragraph 5.4.9 of the UDP Strategy Document [which is the text preceding N34] the following is said “…it is not currently envisaged that there will be a need to use any such safeguarded land during the review period …meanwhile, it is intended that no development should be permitted on this land that would prejudice the possibility of longer term development …” Although the NPPF post dates N34, it contains in paragraph 85 requirements upon LPAs to identify areas of “safeguarded land” and to make it clear “that the safeguarded land is not allocated for development at the present time.”
Regulation 5(1)(a)(iv): “Development Management”
The Claimant submits that if the Interim Policy does not contain statements regarding Site Allocation Policies, then it contains statements regarding “Development Management…policies”.
In the RWE case the judge said:
“75. In my judgment the difference between (a) documents containing statements regarding matters referred to in subparagraphs (i) to (iii) of Regulation 5(1)(a) of the 2012 Regulations and (b) a document containing statements regarding a Development Management Policy which is intended to guide the determination of applications for planning permission, is that the former are all connected with particular developments or uses of land which a local planning authority is promoting whereas the latter is concerned with regulating the development or use of land generally.”
The Claimant’s argument is that the Interim Policy contains statements regarding a Development Management Policy, namely policy N34. The Claimant says that N34 is not restricted to a particular land use (this is common ground). The Claimant points to the wording of the Interim Policy that “development for housing on protected area of search (PAS) land will only be supported if the following criteria are met.” One of those criteria is “(iii) The land is not needed, or potentially needed, for alternative uses”. Therefore, according to the Claimant, the Interim Policy is not exclusively in relation to housing but strikes a balance between housing and non-housing use. This demonstrates that it contains statements regarding a Development Management Policy.
I do not consider the Interim Policy to contain statements regarding a Development Management Policy. A Development Management Policy, as Mr Howell QC said in the RWE case, “is concerned with regulating the development or use of land generally.” The material word is “regulating”. Regulating land may include a number of features for example density of housing, mix of housing etc. I do not accept the Claimant’s argument that paragraph 154 of NPPF indicates that Development Management is much wider than this. Policy N34 does not regulate the development or use of land. It is a safeguarding policy.
A substantial amount of argument was addressed as to whether under Regulation 5(1)(a)(iv) “Development Management and Site Allocation Policies” should be read conjunctively or disjunctively. In view of my ruling that, even if read disjunctively the Interim Policy does not come within either limb, I do not decide this specific point.
Regulation 5(1)(a)(iii)
The Defendant submits, as it did in relation to Regulation 5(1)(a)(i) that this paragraph involves a question of planning judgment and that this should affect my construction of it. I disagree for the same reasons as set out in paragraph 25 above.
In the RWE case the “Emerging Policy” in the wind SPD was not within 5(1)(a)(i) because it did not contain statements regarding “the development and use of land”. The Learned Deputy Judge construed this as meaning new statements regarding the development of land which the LPA wished to encourage (see paragraph 69). He then found that the Emerging Policy in the wind SPD was itself an SPD because it fell within Regulation 5(1)(a)(iii). (See paragraphs 78-82). In doing so he said (81):
“An objective that is relevant to the attainment of the development of land that a planning authority wishes to encourage may be one that the authority wants to be satisfied if it is to encourage that development.”
My finding on Regulation 5(1)(a)(i) is that the Interim Policy does not contain statements regarding the development and use of land which the LPA wish to encourage. Nor does it contain any statement regarding any environmental, social, design and economic objectives relevant to the attainment of the development and use of land mentioned in paragraph (i). Therefore the Claimant’s case under this subparagraph fails.
The Defendant also argues that the Interim Policy did not come within this subparagraph because Regulation 8(3) states that “any policies contained in a supplementary planning document must not conflict with the adopted development plan.” However if otherwise the Interim Policy was an SPD, it seems to me that all that Regulation 8(3) does is to make it an invalid SPD. It cannot facilitate an LPA adopting an LDD which would otherwise be an SPD, and avoiding the consequences of this because Regulation 8(3) would then take it outwith the SPD category and into the Residual LDD category.
Summary on Ground 1
For the above reasons the Claimant’s arguments under Ground 1 fail.
Ground 2
This is an alternative ground. The Claimant’s case is if the Interim Policy is a residual LDD the Defendant had a duty to consult. The Claimant’s case is based firstly on section 23(1) of the 2004 Act. This provides:
“23 Adoption of Local Development Documents
(1) The Local Planning Authority may adopt a local development document (other than a development plan document) either as originally prepared or as modified to take account of –
(a) any representations made in relation to the document;
(b) any other matter they think is relevant.”
The Claimant’s argument is that section 23(1)(a) presupposes that people may make representations on the proposals. Here there was no consultation at all and therefore, whatever the level of valid consultation on this type of policy the Defendant fell short of it. Reference is made to the general principles of minimum requirements for lawful consultation set out in R v N E Devon Health Authority exparte Coughlan [2001] QB 213 at paragraph 108.
I reject this claim for these reasons:
Section 23(1)(a) does not impose nor presuppose a duty on an LPA to consult prior to the adoption of every LDD. In my judgment section 23 is nothing to do with the duty to consult. Section 23(1) applies to SPDs and residual LDDs. It merely states that if there has been consultation (which is compulsory under the 2012 Regulations for SPDs) then the LPA may then either adopt the LDD (a) as originally prepared or (b) as modified to take account of any representations made etc.
DPDs are exempted from section 23(1) because they are dealt with under section 23(2)-(4). Because DPDs require an independent examination of the document, there is then a prescribed requirement to adopt the DPD in accordance with the recommendations of the independent examination.
This hierarchical structure is compatible with the fact that:
DPDs once adopted form part of the statutory development plan and are given force in LPA decision making pursuant to section 38(6) of the 2004 Act.
SPDs, by statute, are “material considerations”.
Residual LDDs are also “material considerations” but carry less weight than an SPD. There is nothing unlawful about an LPA adopting an LDD with no representations. The weight it may be given may well depend on whether there has been consultation. If there has not been consultation it may be given less weight.
The Claimant said in reply that it could understand this hierarchy if the Interim Policy was just on points of detail. The Claimant submitted that the Interim Policy deals with very important points of principle. This, in my judgment, does not change matters because:
the Interim Policy is limited in time if not in scope. Were it otherwise it would not be an Interim Policy and may fall foul of the prohibition against circumvention of the 2012 Regulations (see paragraph 16(iii) above).
The weight to be given to such a residual LDD, albeit that it deals for a limited period with matters of principle, will be much less than a DPD or even an SPD.
Thus there is no express duty of consultation imposed by Parliament.
In the RWE case at paragraph 204 the judge stated:
“These other “local development documents” that a local planning authority may adopt do not have to comply with the requirements under the 2012 regulations, such as the requirement that any policy they contain must not be in conflict with the adopted local plan (my underlining) and for public participation in its preparation.” (my underlining).
The Claimant secondly argues that in the circumstances of this case it had a legitimate expectation that it would be consulted. In Council of Civil Service Unions v Minister for the Civil Service [1985] A.C.374 Lord Fraser said (401B) “Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.”; see also Lord Diplock at 408F-409B.
The only authority cited to me in support of the principle of legitimate expectation was paragraphs 12-014-12-020 of De Smith’s Judicial Review 7th Edition, in which the citation from Lord Fraser is set out at paragraph 12-015. The Claimant cannot rely upon an express representation by the Defendant that it would be consulted. Therefore any representation has to be implied by the Defendant’s conduct. De Smith at 12-019 states:
“Implied representation – the promise or representation on which the expectation is based may be implied, eg from past conduct or a practice which the claimant may reasonably expect to be continued…not all past practice however may justify a legitimate expectation that the practice will continue.”
Mr Nardell QC relied on a bullet point in paragraph 12-014 of De Smith’s which states “An applicant submitting a tender for council land enjoyed a legitimate expectation that he would be given a further opportunity to tender following the failure of the favoured bid, since he had been “left with that impression””.
The footnote reference for this is R v Barnett LBC ex parte Pardes House School [1989] C.O.D. 512. I have found that this case was considered in R v Bolsover DC [2000] WL142 1263, a decision of Mr Justice Keene. He said this at paragraph 22:
“…Farquharson J held, and I quote from the summary of his judgment in the Crown Office Digest Report at page 514 “…(a) the applicant did enjoy a legitimate expectation that it would be given a further opportunity to tender following the failure of the favoured bid since, following the correspondence up to March 1988, the applicant had plainly been left with that impression.””
I now turn to the facts of the present case against that background as to the criteria for the source of a legitimate expectation.
Prior to the adoption of the Interim Policy in March 2013 the following occurred:
On 22 October 2012 the Claimant was invited by the Defendant to a “house-builders’ forum”. The invitation was to join in in discussions about working together “to promote housing growth in Leeds”. One of the subjects of the input which was welcomed included “PAS sites to be considered in the round as part of Site Allocations process….”
A forum meeting took place on 23 November 2012. The Claimant was present at this and on the agenda was a schedule of PAS sites and “principles for release”. According to Mr Crabtree of the Defendant (Chief Planning Officer) “this meeting was attended by representatives of the volume house-builders including Miller Homes. There was an explanation of the Council’s potential approach to the release of PAS sites and specific discussion of the possibility of a criteria based approach.” Mr Williams (representative of the Claimant) describes that meeting saying “neither the Interim Policy nor anything approaching it was tabled for discussion by the Council. Nor did officers give any indication of which of these principles they would wish to include in any Interim Policy, or in what terms.”
On 6 December 2012 the Claimant advised the Defendant of its PAS site interests (including the site at Boston Spa).
On 18 January 2013 another house-builders’ forum meeting took place. According to Mr Crabtree, it was made clear at that meeting that the Defendant “was intending to bring forward an Interim Policy to deal with the release of PAS Sites.” He says that the Defendant indicated that it was likely to be in March and that such a policy would have to be approved by the EB. Mr Williams says that there was no draft policy, or anything else indicating what any policy might contain.
On 8 February 2013 the Claimant and the Defendant had a meeting. The Defendant was informed that the Claimant was already preparing applications on all of the PAS sites in which it had an interest. According to Mr Williams, the Defendant’s officers indicated that they were working on a report to the committee on the subject of the PAS sites.
This brief summary of what took place between November 2012 and March 2013 is expanded in the witness statements of Mr Crabtree and Mr Williams. There is nothing in the summary or in the detail of their statements which, in my judgment, could be said to amount to a representation that the Defendant would consult the Claimant (or anybody) in relation to the Interim Policy. In paragraph 13 of his statement Mr Williams says that, as of February 2013, he and his colleagues believed that the Defendant would first table any draft criteria for discussion, either at the forum or with individual developers like the Claimant who had notified PAS interest. That may have been his belief, but the evidence falls well short of a representation to that effect.
Nor do I find on the facts, to cite the words of Farquharson J in the Barnett case that Mr Williams “had plainly been left with that impression.”
In his reply Mr Nardell QC put his case on legitimate expectation somewhat differently. He said that the starting point of the general law is to ensure that people who are affected by decisions are treated fairly. Therefore the question was whether the legislation excluded this general duty to act fairly. He said that nothing in the 2004 did so. Further he said that Regulation 12 of the 2012 Regulations does not impose a duty to consult in relation to SPDs; rather does it presuppose it at the preparation stage of the statement (Regulation 12 (a)). He accepted that at the post-preparation stage of an SPD a duty was imposed by regulation 13 (see also regulation 12(b)). I do not find these regulations of assistance in deciding whether there is a general duty to consult in relation to residual LDDs.
No authority was cited to me in support of the principle that there is a general legal duty to act fairly and therefore to consult unless the legislation excludes that duty. In my judgment that submission states the matter too broadly. Absent legitimate expectation, or a statutory requirement to consult, the presumption of procedural fairness appears to apply (a) whenever the exercise of a power adversely affects an individual’s rights protected by common law or created by statute (b) to more general interests such as the interest in pursuing a livelihood and in personal reputation [see De Smith para 7-001; Chapter 7 Section 4]. As I have stated, no authority was cited to me to support.
In those circumstances I reject the Claimant’s claim on Ground 2 based on any legitimate expectation of consultation.
Delay
The Defendant no longer pursues this argument.
Alternative Remedy
Permission to bring judicial review has already been granted in this case. The question is whether, in my discretion, I should refuse a remedy because of an adequate alternative remedy which the Claimant should have used rather than bringing a claim for judicial review. The Defendant says that the Claimant can present its application for planning permission. If it is turned down it can appeal to the Inspector. The Defendant acknowledges that because the Interim Policy has not been the subject of consultation, it can carry limited weight only. The Defendant says that that is a matter for a planning determination and not for the High Court. The clear alternative remedy is through the process of planning application and, if necessary, appeal. In the appeal, according to the Defendant, the Claimant can submit that no weight should be given to the Interim Policy and can also say that other material considerations should be put into the balance. The Defendant accepts that an inspector cannot quash the policy, but submits that that is often the case in public law; e.g. a complaints procedure cannot quash an internal policy, but a person affected by disciplinary proceedings should go through the appeal process first.
I do not accept the Defendant’s submission. I have heard the argument about the legality of the Interim Policy over a period of two days, following permission having been granted. The Claimant also has other sites which may be affected. It is also possible (though I understand that none has been indicated so far) that another developer may be adversely affected by the Interim Policy. If the Interim Policy was illegal then I would have quashed it. This would, as the Defendant stated, only take out of any planning application (or appeal) consideration as to whether or not the Interim Policy should be given any weight at all. Nevertheless, in the circumstances of an Interim Policy affecting potentially a number of applications, it would not have been appropriate on the facts of this case to decline a remedy at this stage.
APPENDIX 1 STATUTORY MATERIAL
Town and Country Planning Act 1990 c. 8
Part III CONTROL OVER DEVELOPMENT
Determination of applications
70.— Determination of applications: general considerations.
Where an application is made to a local planning authority for planning permission—
subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or
they may refuse planning permission.
In dealing with such an application the authority shall have regard [to—]
the provisions of the development plan, so far as material to the application,
……………………….
any other material considerations.
Planning and Compulsory Purchase Act 2004 c. 5
Part 2 LOCAL DEVELOPMENT
Documents
17 Local development documents
[The local planning authority's local development documents] must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area.
……………………………
Regulations under this section may prescribe–
(za) which descriptions of documents are, or if prepared are, to be prepared as local development documents;
which descriptions of local development documents are development plan documents;
the form and content of the local development documents;
the time at which any step in the preparation of any such document must be taken.
19 Preparation of local development documents
[Development plan documents] must be prepared in accordance with the local development scheme.
……………………
In preparing a [development plan document or any other] local development document the local planning authority must have regard to–
national policies and advice contained in guidance issued by the Secretary of State;
………………………………..
…………………………
In preparing the [local development documents (other than their statement of community involvement)] the authority must also comply with their statement of community involvement.
But subsection (3) does not apply at any time before the authority have adopted their statement of community involvement.
The local planning authority must also–
carry out an appraisal of the sustainability of the proposals in each [development plan document];
prepare a report of the findings of the appraisal.
………………………
20 Independent examination
The local planning authority must submit every development plan document to the Secretary of State for independent examination.
examination must be carried out by a person appointed by the Secretary of State.
The purpose of an independent examination is to determine in respect of the development plan document–
whether it satisfies the requirements of sections 19 and 24(1), regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents;
whether it is sound [; and]
whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation.
Any person who makes representations seeking to change a development plan document must (if he so requests) be given the opportunity to appear before and be heard by the person carrying out the examination.
…………………….
23 Adoption of local development documents
The local planning authority may adopt a local development document (other than a development plan document) either as originally prepared or as modified to take account of–
any representations made in relation to the document;
any other matter they think is relevant.
[(2) If the person appointed to carry out the independent examination of a development plan document recommends that it is adopted, the authority may adopt the document—
as it is, or
with modifications that (taken together) do not materially affect the policies set out in it.
(2A) Subsection (3) applies if the person appointed to carry out the independent examination of a development plan document—
recommends non-adoption, and
under section 20(7C) recommends modifications (“the main modifications”).
The authority may adopt the document—
with the main modifications, or
with the main modifications and additional modifications if the additional modifications (taken together) do not materially affect the policies that would be set out in the document if it was adopted with the main modifications but no other modifications.
The authority must not adopt a development plan document unless they do so in accordance with subsection (2) or (3).
…………………
Part 3 DEVELOPMENT
Development plan
38 Development plan
A reference to the development plan in any enactment mentioned in subsection (7) must be construed in accordance with subsections (2) to (5).
…………………….
For the purposes of any other area in England the development plan is–
………………
the development plan documents (taken as a whole) which have been adopted or approved in relation to that area [, and]
the neighbourhood development plans which have been made in relation to that area.
……………………….
If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.
Town and Country Planning (Local Planning) (England) Regulations 2012/767
Part 1 General
2.— Interpretation
In these Regulations—
“the Act” means the Planning and Compulsory Purchase Act 2004;
…………..
“local plan” means any document of the description referred to in regulation 5(1)(a)(i), (ii) or (iv) or 5(2)(a) or (b), and for the purposes of section 17(7)(a) of the Act these documents are prescribed as development plan documents;
…………….
“site allocation policy” means a policy which allocates a site for a particular use or development;
……………
“supplementary planning document” means any document of a description referred to in regulation 5 (except an adopted policies map or a statement of community involvement) which is not a local plan;
…………..
These Regulations have effect in relation to the revision of a local plan or a supplementary planning document as they apply to the preparation of a local plan or a supplementary planning document.
…………….
Part 3 Local development documents and directions by the Mayor of London
5.— Local development documents
For the purposes of section 17(7)(za) of the Act the documents which are to be prepared as local development documents are—
any document prepared by a local planning authority individually or in cooperation with one or more other local planning authorities, which contains statements regarding one or more of the following—
the development and use of land which the local planning authority wish to encourage during any specified period;
the allocation of sites for a particular type of development or use;
any environmental, social, design and economic objectives which are relevant to the attainment of the development and use of land mentioned in paragraph (i);
and
development management and site allocation policies, which are intended to guide the determination of applications for planning permission;
where a document mentioned in sub-paragraph (a) contains policies applying to sites or areas by reference to an Ordnance Survey map, any map which accompanies that document and which shows how the adopted policies map would be amended by the document, if it were adopted.
For the purposes of section 17(7)(za) of the Act the documents which, if prepared, are to be prepared as local development documents are—
any document which—
relates only to part of the area of the local planning authority;
identifies that area as an area of significant change or special conservation; and
contains the local planning authority's policies in relation to the area; and
any other document which includes a site allocation policy.
Local plans
Any document of the description referred to in regulation 5(1)(a)(i), (ii) or (iv) or 5(2)(a) or (b) is a local plan.
…………..
Part 4 Form and content of documents and regard to be had to certain matters
8.— Form and content of local plans and supplementary planning documents: general
……………..
Any policies contained in a supplementary planning document must not conflict with the adopted development plan.
…………….
Part 5 Supplementary planning documents
Public participation
Before a local planning authority adopt a supplementary planning document it must—
prepare a statement setting out—
the persons the local planning authority consulted when preparing the supplementary planning document;
a summary of the main issues raised by those persons; and
how those issues have been addressed in the supplementary planning document; and
for the purpose of seeking representations under regulation 13, make copies of that statement and the supplementary planning document available in accordance with regulation 35 together with details of—
the date by which representations must be made (being not less than 4 weeks from the date the local planning authority complies with this paragraph), and
the address to which they must be sent.
13.— Representations on supplementary planning documents
Any person may make representations about a supplementary planning document.
Any such representations must be received by the local planning authority by the date specified pursuant to regulation 12(b).
APPENDIX 2
National Planning Policy Framework
…………..
The presumption in favour of sustainable development
Planning law requires that applications for planning permission must be
determined in accordance with the development plan unless material
considerations indicate otherwise.
This National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making. Proposed development that accords with an up-to-date Local Plan should be approved, and proposed development that conflicts should be refused unless other material considerations indicate otherwise. It is highly desirable that local planning authorities should have an up-to-date plan in place.
The National Planning Policy Framework constitutes guidance for local
planning authorities and decision-takers both in drawing up plans and as
a material consideration in determining applications.
At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden
thread running through both plan-making and decision-taking.
…………….
For decision-taking this means:
…………………
● where the development plan is absent, silent or relevant policies are
out‑of‑date, granting permission unless:
–– any adverse impacts of doing so would significantly and demonstrably
outweigh the benefits, when assessed against the policies in this
Framework taken as a whole; or
–– specific policies in this Framework indicate development should be
restricted.
……………………..
Delivering a wide choice of high quality homes
To boost significantly the supply of housing, local planning authorities should:
…………
● identify and update annually a supply of specific deliverable sites
sufficient to provide five years worth of housing against their housing
requirements with an additional buffer of 5% (moved forward from later
in the plan period) to ensure choice and competition in the market for
land. Where there has been a record of persistent under delivery of
housing, local planning authorities should increase the buffer to 20%
(moved forward from later in the plan period) to provide a realistic
prospect of achieving the planned supply and to ensure choice and
competition in the market for land;
………….
Local planning authorities may make an allowance for windfall sites in the
five-year supply if they have compelling evidence that such sites have
consistently become available in the local area and will continue to provide a
reliable source of supply. Any allowance should be realistic having regard to
the Strategic Housing Land Availability Assessment, historic windfall delivery
rates and expected future trends, and should not include residential gardens.
Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.
…………………….
Protecting Green Belt land
……………..
When defining boundaries, local planning authorities should:
………
● where necessary, identify in their plans areas of ‘safeguarded land’
between the urban area and the Green Belt, in order to meet longer-term
development needs stretching well beyond the plan period;
● make clear that the safeguarded land is not allocated for development at
the present time. Planning permission for the permanent development of
safeguarded land should only be granted following a Local Plan review
which proposes the development;
………..
Plan-making
Local Plans
……..
Local Plans should be aspirational but realistic. They should address the
spatial implications of economic, social and environmental change. Local
Plans should set out the opportunities for development and clear policies on
what will or will not be permitted and where. Only policies that provide a
clear indication of how a decision maker should react to a development
proposal should be included in the plan.
……………..
Examining Local Plans
The Local Plan will be examined by an independent inspector whose role is to
assess whether the plan has been prepared in accordance with the Duty to
Cooperate, legal and procedural requirements, and whether it is sound. A
local planning authority should submit a plan for examination which it
considers is “sound” – namely that it is:
● Positively prepared – the plan should be prepared based on a strategy
which seeks to meet objectively assessed development and infrastructure
requirements, including unmet requirements from neighbouring
authorities where it is reasonable to do so and consistent with achieving
sustainable development;
● Justified – the plan should be the most appropriate strategy, when
considered against the reasonable alternatives, based on proportionate
evidence;
● Effective – the plan should be deliverable over its period and based on
effective joint working on cross-boundary strategic priorities; and
● Consistent with national policy – the plan should enable the delivery of
sustainable development in accordance with the policies in the
Framework.
Determining applications
The planning system is plan-led. Planning law requires that applications
for planning permission must be determined in accordance with the
development plan, unless material considerations indicate otherwise.
This Framework is a material consideration in planning decisions.
…………….
Annex 1: Implementation
The policies in this Framework apply from the day of publication.
…………
However, the policies contained in this Framework are material considerations which local planning authorities should take into account from the day of its publication. The Framework must also be taken into account in the preparation of plans.
Plans may, therefore, need to be revised to take into account the policies in this Framework. This should be progressed as quickly as possible, either
through a partial review or by preparing a new plan.
For 12 months from the day of publication, decision-takers may continue to give full weight to relevant policies adopted since 2004 even if there is a
limited degree of conflict with this Framework.
In other cases and following this 12-month period, due weight should be
given to relevant policies in existing plans according to their degree of
consistency with this framework (the closer the policies in the plan to the
policies in the Framework, the greater the weight that may be given).
Annex 2: Glossary
……….
Local Plan: The plan for the future development of the local area, drawn up by the local planning authority in consultation with the community. In law this is described as the development plan documents adopted under the Planning and Compulsory Purchase Act 2004. Current core strategies or other planning policies, which under the regulations would be considered to be development plan documents, form part of the Local Plan. The term includes old policies which have been saved under the 2004 Act.
………..
Supplementary planning documents: Documents which add further detail to the policies in the Local Plan. They can be used to provide further guidance for development on specific sites, or on particular issues, such as design.
Supplementary planning documents are capable of being a material consideration in planning decisions but are not part of the development plan.
……………….
Windfall sites: Sites which have not been specifically identified as available in the Local Plan process. They normally comprise previously-developed sites that have unexpectedly become available.