The Aireborough Neighbourhood Forum’s Green Belt challenge in February 2020 has been successful. The Judge, Mrs Justice Lieven, has found that the substantial amount of Green Belt deleted in the Leeds Site Allocating Plan (SAP) has not been adequately justified by exceptional circumstances and that the factual errors made in determining Green Belt release amount to an Error of Law.
We know this result has been received with great joy by residents all over Aireborough, and beyond, and that there has been whoops of joy and dancing around kitchens. This has been enhanced by the recent ‘lockdown’ which has proved beyond doubt the value of our green spaces for wellbeing: of which the Aireborough Green Belt is a key part. By design, our Green Belt is a tight boundary around the urban area, stopping sprawling townships merging into one another and keeping the countryside open for people and wildlife. If anything it needs enhancing, which we aim to do in the Neighbourhood Plan.
The outcome of our successful challenge, or relief as it is legally called, is still to be determined by a court order. However, as it now appears that exceptional circumstances have not been justified our lawyers view is that the Leeds SAP 2019 is not legally sound – to make it sound, Green Belt allocations need to be removed.
The City can then proceed with its necessary housing allocations up to 2023 in order to fulfil housing need and continue with its SAP Review based on its new housing target, adopted in September 2019. (See Background below.)
Our challenge succeeded on three major grounds .
1. The lack of adequate reasons to explain the required ‘exceptional circumstances’ for changes to the Green Belt (GB). The 2014 Leeds Core Strategy (CS) housing need target which the Council used to justify GB release was fatally undermined by new housing need calculations based on reduced population projections. The Judge found that the consequences of this material change of circumstances regarding the CS housing target had not been sufficiently considered.
2. The lack of adequate reasons given for assessing which GB sites to released within each of the Housing Market Character Area (HMCA), of which Aireborough is one, rather than looking across the City at deliverable non-GB sites. This meant Aireborough had to release GB as there were no alternative sites in our HMCA after so very many brownfield sites have been built on over the last decade, plus the High Royds site. Our HMCA target in the SAP is 3% of the Leeds housing target*; Aireborough has delivered double that, at 6% of the Leeds housing target since 2010.
*based on land availability irrespective of Green Belt status. The 3% target is not based on local housing need.
3. An error of fact relating to the actual surplus of housing planning permissions over the relevant SAP period. The Council provided updated figures to the Inspectors for housing delivery and planning permissions up to 1 April 2018 during the hearing. However, when the SAP was modified by LCC in January 2019 these updates were not included; the SAP only had figures up to 1 April 2016. The difference was around 4,000 units, wiping out the need for GB up to 2023. The Forum had pointed this out for the Aireborough HMCA to both the Council and the Inspectors in the February 2019 consultation.
In very simple terms, the figure for housing need which the Council used to justify GB release was too high and out of date; conversely the figure for housing supply was too low and calculated to 2016 rather than 2018. This means that the exceptional circumstances necessary for GB release do not exist. The Inspectors had a duty to explain why they accepted the housing need and supply information put forward by LCC constituted exceptional circumstances, particularly as we and a lot of other organizations had challenged it; it was a hugely controversial issue. They also should have explained why they accepted LCC’s use of HMCA’s in determining GB site release up to 2023. They failed to do any of this adequately.
At the hearing, we also challenged the lack of consultation on whether the SAP should continue when the Leeds Housing need was reduced. On this ground, the Judge found the Council had acted unlawfully, but did not grant the Forum relief as both we and others had given our views on the way forward in other consultations and thus a specific consultation would probably not have made a difference to the outcome.
Two minor grounds on other errors in the process were disallowed.
The Judge also said that
- The reasons put forward by the defendant during the court proceedings to justify the approaches taken in the SAP process amounted to ‘a good deal of ex post facto justification’. The arguments about fair distribution of housing and deliverability considerations between urban and rural areas are complex, with arguments to be put on both sides. Those arguments had not been put forward by the Council or by the inspectors and had not been consulted upon;
- In the context of exceptional circumstances, the factually complex issue of the calculation of housing supply, and how that had changed during the progress of the draft Plan, was important to get broadly right. Through a detailed analysis of the figures, the Forum had demonstrated that the margin of error in what appeared to have been understood by the inspectors in their report was sufficiently significant to have materially diminished the need for GB release and to have amounted to an error of law.
The draft SAP had been submitted for examination to the Planning Inspectorate in May 2017 and made site allocations to meet the housing and employment needs identified in the Leeds 2014 Core Strategy. The high housing target identified in the CS was acknowledged by the Council and CS Inspector in 2014 to be aspirational, but was considered by LCC to constitute the exceptional circumstances to justify GB releases.
Between 2013 and 2017 there was a downward trend in population projections whilst the delivery of the CS housing target fell behind schedule and caused issues with 5 year land supply. Thus, in November 2016 LCC started a review of the CS housing target (CSSR) based on their emerging Strategic Housing Market Assessment (SHMA 2017).
Just as the SAP examination was about to start in late summer 2018 the Government introduced a methodology for calculating Local Authority housing need. Using this and the SHMA analysis it became clear that the 2014 CS housing target was now significantly undermined and would be unlikely to justify exceptional circumstances for GB release. The Council had to take a decision on how to take the SAP forward.
They decided to press on with the SAP whilst carrying on with the new Core Strategy process with its revised housing target. LCC felt it was imperative the City had a site allocation plan as soon as possible to counter planning by developer appeal. The need for GB was halved by restricting GB released allocation to meet need to 2023, however exceptional circumstances still had to be proved for the plan to be legal. The Council planned to have a SAP Review after the CSSR with its new housing target was adopted to bring the two plans into alignment.
The SAP was adopted in July 2019 the CSSR with new target in September 2019. The SAP Review process started in October 2019
Solicitors – Town Legal LLP, London
Barrister – Jenny Wigley, Landmark Chambers, London
We would like to thank them and also the many hundreds of people who helped with the challenge through donations, leaflet delivery, fund raising and support.