High Court rules that Leeds plan's unlawful release of green belt land for 4,000 homes must be reconsidered by inspectors

A High Court judge has ruled that proposals in a Leeds City Council development plan for the deallocation of 37 green belt sites to allow the building of 4,070 new homes must be reconsidered by the Planning Inspectorate (PINS).

London's Royal Courts of Justice. Pic: Getty Images
London's Royal Courts of Justice. Pic: Getty Images

Mrs Justice Lieven ruled in June that the process leading up to adoption of the Leeds Site Allocations Plan (SAP) was infected by fundamental errors.

The decision threatened to undermined the city's five-year housing land supply and the council said the ruling would have a "highly prejudicial" impact, not just on local planning decisions, but on landowners and developers throughout the city's green belt.

However, in the June ruling, the judge said she would issue a further judgment outlining the remedy and next steps to be taken, which was finally published on Friday.

Following the June ruling, in an attempt to limit the damage, the council had argued that the errors could be put right by merely asking the two planning inspectors who examined the SAP prior to its adoption to give additional reasons for their decision.

But the judge has now ruled that that would not go far enough. She stopped short of quashing any part of the SAP, but sent it back for reconsideration by PINS.

The SAP states that 66,000 new homes need to be built in the Leeds area between 2012 and 2028. 

In order to meet housing needs, the submitted version of the plan allocated 12,481 of those homes to green belt sites, 972 of them in Aireborough across nine sites. The final version of the plan allocated 4,070 homes to green belt sites, 475 of them in Aireborough.

However, the Aireborough Neighbourhood Development Forum mounted a judicial review challenge and Mrs Justice Lieven ruled in June that a "proper justification" had yet to be put forward for releasing swathes of the green belt for development.

The Leeds Core Strategy (LCS), adopted in 2014, stated that, after development of windfall sites, 66,000 new homes would need to be built in its area over the 16-year period. That requirement could not be met without sanctioning Green Belt developments.

However, in a 2017 consultation document - entitled 'Planning for the right homes in the right places' - the government set out a standardised method for calculating housing need. The consultation figure in respect of Leeds was 42,000 homes over the 16 years, much less than the LCS's requirement for 66,000.

The forum argued that, although it had become increasingly clear that the figure of 66,000 was unsustainable, the council continued to rely upon it when arguing before the inspectors that there were exceptional circumstances justifying the release of green belt sites.

Upholding the forum's challenge in June, the judge ruled that, given the steep drop in the council's overall housing requirement, there was "no clear explanation" in the inspectors' report on the SAP for their decision that exceptional circumstances existed to justify the level of green belt releases.

The inspectors had made an "error of law in failing to give adequate reasons", she said, adding: "The end result is the loss of a significant quantum of green belt land which ... was not properly justified in terms of national policy."

After the judge's ruling, the council argued that the SAP should neither be quashed nor remitted to PINS for fresh examination. The errors identified, it claimed, could be remedied by directing the inspectors to give further reasons.

Alternative courses put forward by the council included that only the green belt allocations specific to Aireborough should be quashed or that only those allocations should be remitted to the Planning Inspectorate for re-examination.

The council argued, amongst other things, that quashing all the green belt allocations in the SAP would be highly prejudicial to the position of landowners and developers outside Aireborough who had no involvement in the case.

The council said a city-wide quashing order would "greatly prejudice future plan-led development in Leeds by undermining its five-year land supply." Remitting all the SAP green belt allocations for re-examination by PINS would "cause enormous administrative problems, expense and difficulties in the planning process." 

The judge ruled that the errors were "so fundamental to the inspectors' analysis" that simply asking them to illuminate their decision by giving further reasons would not be enough to remedy the situation.

She added, however: "It does seem to me to be appropriate to remit this matter to the Secretary of State, and through him the Inspectorate, rather than quash either the whole or parts of the SAP.

"It seems reasonable to start from the position that the process should be taken back to the stage where the error of law occurred rather than back to the beginning through quashing."

The judge acknowledged that her decision would pose an administrative challenge to the council, but added: "That would be equally true of quashing the SAP and starting again. In either case, the council will not have in place an adopted plan which they can use to show a five-year land supply."

She told the court: "I fully understand the concern about the serious disadvantage of planning through applications and appeals rather than being plan led.

"However, this has to be balanced against Green Belt releases which have not been adequately justified and which were made with a material error of fact."

Ruling that it would be inappropriate to limit the re-examination to the Aireborough area, the judge said the errors she had identified "went to the Green Belt allocations in their entirety rather than having an area specific or site specific rationale."

Third-party landowners and developers would be impacted by the Court's ruling, but she added: "It is very possible that most, if not all, of those who had an interest in the SAP allocations will have been fully aware of this challenge, either through the media or via trade organisations such as the House Builders Federation."

She added: "I do not think that the argument that it would be unfair to third parties for all GB allocations to be remitted stands up to scrutiny."

The judge concluded: "The remittal of all Green Belt allocations to the inspectors will, I accept, cause delay and will impact on the council's ability to show a five-year land supply.

"However, those are not grounds not to remit if that is the only way to remedy the illegality that I have found. The planning judgments that follow, in terms of conformity with the National Planning Policy Framework and whether the tests for Green Belt release are met, are matters for the council and the Secretary of State and not for the Court.

"For these reasons, I will remit the policies relating to Green Belt allocations of housing, including mixed use allocations, to the Secretary of State."

The judge said she did not "consider it essential" that the SAP should be re-examined by a fresh inspector or inspectors.

She said: "Although this would normally be the case, here the inspectors were faced with enormously confusing documentation and figures."

In a statement, Leeds City Council said: "Consequently, all formerly adopted site allocations for housing, as well as mixed-use allocations including housing, that were, immediately before the SAP’s adoption, in the green belt are now to be treated as not adopted. This relates to 37 sites. The remainder of the SAP remains adopted.

It said the council would "consider how the above policies will now be carried forward in the residual examination process" and "will make proposals in due course". 

Leeds City Council chief planning officer David Feeney said: “Having a full plan in place is of the utmost importance to the council in order to avoid unplanned development, it is unfortunate therefore that there will be some further delay to achieving that while these sites are re-examined.”

Aireborough Neighbourhood Development Forum v Leeds City Council. Case Number: CO/3279/2019

NOTE: this story was updated at 11am on Friday 14 August to clarify that the earlier version of the SAP allocated nine green belt sites in Aireborough, not four as previously stated. We also added more detail on the council's other arguments challenging the claim.

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