Adam Jackson & Christopher Darley
10 Dec 2020
In June 2020, the Aireborough Neighbourhood Development Forum successfully challenged Leeds City Council’s Site Allocations Plan (“SAP”) in the High Court under s.113 of the Planning and Compulsory Purchase Act 2004. All allocations for residential development in the SAP on what were formally Green Belt locations were found to be legally flawed under the ruling.
Our original blog discussed the grounds of this legal challenge and commented on some of the potential implications which could have arisen if Mrs Justice Lieven had concluded that the remedy to this challenge was to quash all Green Belt allocations in the SAP. This potential remedy became a reality when the Order for Relief was handed down from the High Court on the 7th August 2020.
This blog provides some further thoughts on what the Order for Relief means for the future housing land supply in Leeds.
As we expected and mused upon in our previous blog, the Court has ordered that the Council send back 37 Green Belt sites (including one mixed use allocation) to the Secretary of State and the Planning Inspectorate for further examination against up to date evidence and policy. Mrs Justice Lieven stated the following in her Order for Relief:
“It does however 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.”
Paragraph 31 of the relief judgement concludes:
“The remittal of all GB allocations to the Inspectors will, I accept, cause delay and will impact upon the Council’s ability to show a 5YLS. However, those are not grounds not to remit if that is the only way to remedy the illegality that I have found. The planning judgements that follow, in terms of conformity with the NPPF and whether the tests for GB release are met, are matters for the Council and the Secretary of State and not for the court.”
Leeds City Council is proposing to return each of the 37 Green Belt sites to the Green Belt through a Main Modification to the SAP. This will be subject to a 6 week consultation commencing in early January 2021.
Five Year Housing Land Supply
The Council has produced an updated Five Year Housing Land Supply Statement which shows that, following the deletion of the 37 Green Belt sites, it has a 6.8 year housing land supply. 23% of the supply (equivalent to 1.5 years) is expected to come forward from sites with outline permission or allocated sites without planning permission.
The Council claims that it has produced evidence as part of the SHLAA process to demonstrate that these sites meet the definition of ‘deliverable’ set out in Annex 2 of the NPPF. We have not undertaken a review of this evidence at this stage, however it is possible that sufficient evidence may not exist to show that each of these sites has a realistic prospect that housing will be delivered on the site within five years. In this case, the five year supply would diminish further.
Un-balancing the Housing Land Supply
The Council’s Sustainability Appraisal Addendum sets out how mis-aligned the distribution of new homes now is across Leeds in comparison to the targets set by Core Strategy Policy SP7 (see table 1 below).
Table 1: Housing Distribution compared to Policy SP7 targets
Source: LCC Sustainability Appraisal Addendum 2020
Although the Council’s evidence on housing land supply compared to the most up to date housing requirement shows an overall surplus of 11,268 homes, this surplus is almost exclusively arising from additional supply in the City Centre and Inner Area. There is actually an undersupply of 3,065 homes in the suburbs and outer parts of the City and it does therefore beg the question as to whether the housing needs of residents across all of the City will be met.
Progress on Existing SAP Allocations
In addition to the unbalancing of housing distribution across the City, the deletion of the former Green Belt sites will also have implications for affordable housing need (with the City Centre and Inner Area also having the lowest affordable housing requirements). The Council claims that there will be opportunities for Neighbourhood Plans to address this, although the reality of Neighbourhood Plans seeking to identify land to provide the 904 affordable unit shortfall seems unlikely.
Unsurprisingly, development proposals have been progressed at a number of the sites which are now proposed to be returned to the Green Belt. These include:
HG2-174 Wood Lane, Rothwell Garden Centre – Outline application for up to 82 dwellings;
HG2-183 Swithens Lane, Rothwell – Full application for 66 dwellings (recently withdrawn);
HG2-43 Horsforth Campus – 152 affordable dwellings considered by City Plans Panel on 1 October 2020 (deferred on design grounds);
HG2-26 Scarcroft Lodge, Scarcroft – 172 unit care community recommended for approval in August 2019. Legal agreement set to be signed in December 2020.
The return of sites to the Green Belt could therefore lead to the risk of further challenge from developers who have invested significantly in sites which may no longer have a realistic prospect of being developed in the short or medium term.
Rather than undertake a review of the SAP before the end of 2021, the Council is now stating that the remittal evidence it has gathered demonstrates that there is sufficient land allocated for housing and identified for safeguarded land to comply with Core Strategy Housing target (as amended by the CSSR) to 2028. On this basis, it is proposing to delay the SAP review until the Local Plan update is formulated and the outcome of the Planning White Paper proposals have been confirmed.
Whilst it is acknowledged that the Council needs to take swift action in response to the legal judgement, we maintain that a wider review of the SAP should still be undertaken to ensure that it will meet the full range of housing needs for the District, including affordable and family housing in all parts of the City.
The Council is proposing to run a 6 week consultation on the deletion of the 37 allocations and the return of the land to Green Belt from early January (week commencing 4th Jan) to mid-February 2021. This will be accompanied by the further evidence including the SA Addendum, an addendum to the Habitats Regulations Assessment and a Background Paper which reviews the alternative options and reasoning behind the Council’s approach to delete the allocations. The Council anticipates that Full Council approval will be given in March to submit the modified SAP to the Secretary of State, with the SAP to then be subject to further Examination in Public.
Please contact the Lichfields Leeds office if you would like to discuss the implications of Leeds City Council’s proposed modifications to the SAP in further detail, or if you would like Lichfields to make representations to the ‘SAP Remittal: Proposed Main Modifications’ consultation on your behalf.
 Leeds City Council - SHLAA 2020 - Five Year Housing Land Supply Statement Leeds City Council - SAP Remittal - Sustainability Appraisal Addendum
Adam Jackson & Christopher Darley
16 Jun 2020
The Aireborough Neighbourhood Development Forum has successfully challenged Leeds City Council’s Site Allocations Plan (“SAP”) in the High Court under s.113 of the Planning and Compulsory Purchase Act 2004. All allocations for residential development in the SAP on what were formally Green Belt locations have now been found to been legally flawed under the ruling. This blog provides a summary of the challenge and discusses some of the potential implications of this significant ruling.
The Leeds SAP was adopted on 10th July 2019 following six years of preparation and consultation. It was initially prepared in the context of the Core Strategy adopted in 2014, however the preparation and examination of the SAP was complicated by a selective review of the Core Strategy, including a revision of the housing requirement. This review (which has subsequently been adopted) includes for a lower annual housing requirement than that in the original Core Strategy.
The examination of the SAP was delayed in 2017 so that substantial revisions could be made, including the deletion of some Green Belt sites through a reduction in the plan period of the SAP from 2028 to 2023 (at which point it was anticipated that a review of the Plan would be undertaken to bring it into line with the housing requirement within the Core Strategy Selective Review). However, 37 Green Belt releases were retained within the SAP to meet identified needs through to 2023 and to also maintain a five-year supply of deliverable housing land. Four of the retained sites were within the Aireborough part of the City. A full list of these sites across all parts of the City are listed at the end of this blog.
In August 2019, the Aireborough Neighbourhood Development Forum (“the Forum”) submitted a claim for a Judicial Review of the SAP. The hearing of the Forum’s statutory challenge took place in February 2020.
The Forum challenged the plan on seven grounds and were successful on three: failure to provide adequate reasons as to the lack of need for Green Belt releases; failure to give adequate reasons for the use of the HMCAs in the site selection process; and a failure to take into account the actual surplus in delivery to 2023 and therefore the lack of justification for GB release (see Table 1).
Table one: Successful Grounds of Challenge
Remedy and Potential Implications
Mrs Justice Lieven also found that there had been a breach of the Strategic Environmental Assessment Directive and Regulations requiring the consideration of "reasonable alternatives" to the strategy of continuing with the SAP in materially changed circumstances. However, she declined to grant any relief in respect of this ground as it was an error that would not have made any difference to the outcome.
At the time of handing down her judgement (and at the time of writing this blog) Mrs Justice Lieven has not indicated what remedy should be applied to rectify the errors in law that have been identified and we understand that the Court has invited further submissions from the parties.
A potential outcome could be that all Green Belt allocations in the SAP are quashed and instead remain as part of the Green Belt. Were this potential outcome to transpire, not only would it have obvious implications for those sites (indeed, we are aware that there are live applications on some), it could have significant implications for the current level of housing supply in Leeds and would also result in a dramatic shift in the mix and distribution of future housing delivery. We therefore go on to consider the potential implications of such a remedy on housing supply and future plan making.
5 year Supply
The issue of 5 year housing land supply has been a longstanding controversial issue for Leeds, with many appeal decisions in recent years confirming an absence of such supply. This issue had, however, seemed to be settled with the adoption of the SAP and the subsequent confirmation of a 7.2 year supply. This supply is, however, dependent on a considerable contribution from the Green Belt allocations. Indeed, the SAP identifies that this source of supply is expected to deliver 3,778 new homes by 2023. When considered against an annual housing requirement of 3,247 homes per annum this amounts to well over a years’ supply. Whilst in the context of a claimed 7.2 year supply this may not tip the balance in Leeds being unable once again to demonstrate a 5 year supply, it nonetheless makes the situation more marginal, and the situation could become increasingly perilous if over the next year or so sites identified in the supply do not deliver (or deliver at the rate anticipated). This would also be compounded by the limited scope for replenishment from allocations from later in the plan period.
A balanced housing land supply?
In the absence of the former Green Belt allocations, the identified supply would undoubtedly become more reliant on the urban sites largely in the City Centre and the separately defined ‘inner’ housing market areas of the City. It would result in such locations contributing over 40% of the housing supply across the City during the period of the SAP.
Whilst no-one could credibly question the vital role such sites play in maximising the re-use of previously developed land and in revitalising the City Centre and beyond, the majority of such sites and developments are apartment-led, or only suited to smaller higher density units. As such the removal of the former Green Belt supply, which by its very nature is located in the outer parts of the City, compromises the ability to deliver larger and family-type housing which makes up a key component of the City’s needs, as defined by the Council’s Strategic Housing Market Assessment.
The clear longer term remedy to the issues arising from this judgement lies with a review of the SAP. In order to be found sound at examination, Policy HRG1 was introduced into the adopted SAP which requires a review to have been submitted for examination by no later than the end of 2021. We would suggest that, in light of the potential issues that we have identified, this now becomes even more pressing. Indeed, on the basis of providing a supply of housing over an extended plan period (as opposed to 2028 in the adopted SAP), it is clear that the review will need to look again at the issue of Green Belt and revisit whether exceptional circumstances exist to amend its boundaries. In doing so it will be interesting to see how the approach to individual housing market characteristic areas is dealt with in the context of the views reached by Mrs Justice Lieven.
In conclusion, whilst we thought that the adoption of the SAP would bring an end to a long period of uncertainty on planning for housing in Leeds, it looks like this judgement and the potential implications that result from it will continue to keep life interesting for a while yet!
Table two: Former Green Belt land allocated for housing in Leeds SAP
*Partial Green Belt sites
Source: Leeds Site Allocations Plan (2019)
 http://www.bailii.org/ew/cases/EWHC/Admin/2020/1461.pdf https://www.leeds.gov.uk/docs/SHLAA%202019%20-%20Five%20Year%20Housing%20Land%20Supply%20Statement.pdf Table 1 – Leeds Site Allocations Plan – July 2019 Spatial Policy 6 – Leeds Core Strategy Selective Review – September 2019