Mon, 25 Jul 2022
Planning analysis: In a challenge to the decision of a local planning authority (LPA) to grant planning permission for housing on a longstanding sports field, the judge, Mr Justice Eyre, held that the LPA had erred in law by failing to have regard to a development plan policy which restricted the development of playing pitches, notwithstanding that the site was allocated for housing and that the LPA had considered paragraph 99 of the National Planning Policy Framework (NPPF). The judge said that the development plan policy was clearly of relevance and that there were relevant differences in substance between the policy and NPPF paragraph 99. He further declined to refuse relief under section 31(2A) of the Senior Courts Act 1981 (SCA 1981) as he was not satisfied that it was highly likely that the outcome would not have been substantially different if the LPA had considered the policy. Written by Howard Leithead, barrister at No5 Barristers’ Chambers.
TV Harrison CIC v Leeds City Council  EWHC 1675 (Admin)
What are the practical implications of this case?
First, the judgment emphasises the importance of the development plan and the need to comply with the statutory duties to have regard to it under section 70(2) of the Town and Country Planning Act 1990 (TCPA 1990) and section 38(6) of the Planning and Compulsory Purchase Act 2004 (PCPA 2004). Even where a site is allocated for housing, there is still a need to consider all the relevant development plan policies.
Secondly, the judgment confirms that reasons will not normally be required where members agree with the recommendation of an officers’ report. The judge decided that there was no requirement for the members of the relevant committee to provide further reasons in circumstances where: a) the members accepted the recommendation of the officers’ report (OR), but b) the OR provided alternative reasons for that recommendation. However, if members agreed with the recommendation of an OR, but became aware that its reasoning was materially deficient, it would be prudent for them to clarify their reasoning.
Thirdly, in the context of judicial review challenges of decisions to grant planning permission, the judgment shows that, when a court considers whether it is highly likely whether the outcome would have been substantially different in deciding whether to refuse relief under SCA 1981, s 31(2A), it is not simply a matter of considering whether it is highly likely that planning permission would have been granted were it not for the error. In this case, it was sufficient that a different condition, or conditions, might have been imposed as that could have been a difference of substance in the outcome.
What was the background?
The claimant, TV Harrison CIC (TV Harrison), was a community interest company. It challenged the decision of the defendant, Leeds City Council (the LPA), to grant itself outline planning permission for up to 61 affordable dwellings on land at Oldfield lane in Wortley (the site) by means of a judicial review claim. The site was a longstanding sports field that was used for informal leisure and recreational activities and, following recently completed restoration work, was used as a sports field. It was was partly owned by the Interested Party, Leeds Schools’ Sports Association.
There were four grounds of appeal. Permission had previously been granted on Grounds 1 and 3, which were before the court for substantive determination. The court was further required to consider TV Harrison’s renewed application for permission in respect of Grounds 2 and 4 and to determine those grounds if appropriate.
What did the court decide?
Ground 1: failure to have regard to Policy N6
TV Harrison alleged that in failing to take into account Policy N6 (Policy N6) of the Leeds Unitary Development Plan (the LUDP), which restricted the development of playing pitches, the LPA had erred in law in that it failed to have regard to the relevant policies of the statutory development plan contrary to its statutory duties under TCPA 1990, s 70(2) and PCPA 2004, s 38(6). The LPA argued that, while the OR should have mentioned Policy N6, the failure to do so did not render the decision unlawful as there was an overlap between Policy N6, NPPF paragraph 99, and the LPA’s Site Allocations Plan (the SAP), which was adopted after the LUDP and which allocated the site for housing.
The judge agreed with TV Harrison. He said that Policy N6 was clearly of relevance and that, moreover, the site had been identified as a ‘protected playing pitch’ on the map that accompanied the LUDP. He further said that, while NPPF paragraph 99 was similar to Policy N6, there were relevant differences in substance and that, while the NPPF was a material consideration, it did not have the same statutory status as a policy which formed part of the development plan.
Ground 3: failure to have regard to NPPF paragraph 99a, and/or to obtain further information
NPPF paragraph 99 provided:
Existing open space, sports and recreational buildings and land, including playing fields, should not be built on unless:
a) an assessment has been undertaken which has clearly shown the open space, buildings or land to be surplus to requirements; or
b) the loss resulting from the proposed development would be replaced by equivalent or better provision in terms of quantity and quality in a suitable location; or
c) the development is for alternative sports and recreational provision, the benefits of which clearly outweigh the loss of the current or former use.’
TV Harrison argued that it was not open to the LPA rationally to conclude that a recognised playing field was surplus to requirements such that the exception under NPPF paragraph 99(a) applied in the circumstances. However, the judge said that the errors in the OR that TV Harrison relied on were very far from being sufficiently material that a failure to refer to them meant that the planning committee was misled. He further concluded that it was rationally open to the LPA to conclude on the basis of a 2011 assessment that the site was surplus to requirements and that a further assessment was not required.
In any event, the judge said that even if he had decided that it was not open to the LPA to conclude that the paragraph 99(a) exception applied, this would not be a basis for quashing the decision as it was appropriate for the OR to set out a series of alternative or different reasons leading to the same conclusion, which included that the exception under NPPF paragraph 99(b) applied.
Ground 2: the reasons for the decision were inadequate
TV Harrison argued that fairness required that the LPA give reasons for the decisions beyond those set out in the OR in the circumstances, which were said to include that there was substantial opposition to the proposal, that there was arguably a failure to comply with the development plan, and that the LPA was granting planning permission to itself. It was argued that the reasons in the OR were inadequate as a number of alternatives were listed, some of them illegitimate, and that it was not possible to know whether the members of the planning committee had all reached the decision for the same, or for different, reasons and that some of the reasons might have been illegitimate.
The LPA argued that there was no duty to give reasons in the circumstances of the case and that, even if there were such a duty, the reasons in the OR were adequate.
In concluding, the judge said that, while the LPA was obliged to give reasons for the decision, that duty was capable of being discharged by the OR in the present circumstances. He further said that it was legitimate for the OR to set out alternative or different reasons for a single conclusion. The judge said that it would be artificial and unnecessary to assume that the adoption of the reasoning in the report was anything less than total in the absence of a particular indication to that effect.
Ground 4: the OR was materially misleading as to the satisfaction of NPPF paragraph 99(b)
TV Harrison argued that the OR was materially misleading in advising the members of the planning committee that a condition securing the requirements of the SAP would be sufficient to meet the requirements of NPPF paragraph 99(b) and that the planning committee therefore failed to have regard to a material consideration. However, the judge said that the adequacy of a condition was a matter of planning judgment and that, while there was scope for the differing views as to the type and rigour of condition required, the condition did operate to impose significant restrictions on the development of the site in the absence of alternative sports provision.
The judge concluded that the ground was not arguable and he refused permission to renew it. He further commented that, while he did so without reference to the LPA’s argument that the ground was academic as it had decided that planning permission ought to be granted, it had considerable force.
Finally, the judge considered whether relief should be refused under SCA 1981, s 31(2A). He concluded that it should not and said that he could not be satisfied that it was highly likely that the outcome would not have been substantially different if the LPA had, as it should have done, had regard to Policy N6. The judge explained that even if consideration of the policy had not lead to a refusal of permission, it could have led to the imposition of a different condition or conditions to ensure the provision of replacement playing pitches. Consequently, he said that the decision would be quashed.
- Court: Administrative Court (Leeds), Queen's Bench Division, High Court of Justice
- Judge: Mr Justice Eyre
- Date of judgment: 6 July 2022
Howard Leithead is a barrister at No5 Barristers’ Chambers.
This analysis was first published on LexisNexis® on 18 July 2022 and can be found here (subscription required)