Miller Homes Ltd, R (on the application of) v Leeds City Council

A local planning authority may adopt a residual local development document without following the statutory procedures applicable to a development plan document or supplementary planning document, provided that the document does not fall within the descriptions in regulation 5 of the Town and Country Planning (Local Planning) (England) Regulations 2012. Whether it does so is a question of statutory construction for the court, not a planning judgment. A criterion-based interim policy is not necessarily a site allocation policy or development management policy. Section 23(1) of the Planning and Compulsory Purchase Act 2004 does not impose a general duty to consult before adopting every residual local development document. Consultation may affect the weight given to such a document. A duty to consult may nevertheless arise from legitimate expectation, but it requires an express representation or an established practice sufficient to create that expectation.

The claimant sought judicial review of Leeds City Council’s Interim Policy on Potential Release of Sites in the Protected Area of Search. The policy set criteria for supporting housing development on protected sites pending adoption of a Site Allocations Development Plan Document.

The claimant argued that the policy was a development plan document or supplementary planning document under regulation 5 of the Town and Country Planning (Local Planning) (England) Regulations 2012, requiring compliance with the statutory preparation and consultation procedures. Alternatively, it argued that, if the policy was a residual local development document, the Council had a statutory or legitimate-expectation duty to consult. The central issues were the policy’s proper classification and whether consultation was legally required.

1. Claim allowed in part as to legality, with the policy quashed. The Interim Policy was not a document falling within regulation 5 and was therefore a residual local development document. The court declined to refuse relief on the ground of an alternative planning appeal remedy.
2. Whether a document falls within regulation 5 is a matter of statutory construction for the court. It is not a planning judgment attracting deference. The word “regarding” denotes a relatively loose relationship between the document and the statutory subject matter.
3. The policy did not concern development which the Council wished to encourage during a specified period under regulation 5(1)(a)(i). Its purpose was to respond to the Council’s housing-supply difficulties and to provide interim criteria. Although “in advance of the Site Allocations DPD” sufficiently identified a specified period, the first statutory requirement was not met.
4. The policy was criterion-based. It did not allocate sites for a particular use and therefore was not a site allocation policy, nor did it contain statements regarding such a policy. Policy N34 was a safeguarding policy, not a site allocation policy.
5. The policy did not contain statements regarding development management policies. Such policies regulate the development or use of land generally. The safeguarding policy did not perform that function. The court did not decide whether the reference to development management and site allocation policies in regulation 5(1)(a)(iv) was conjunctive or disjunctive.
6. The policy was not a supplementary planning document under regulation 5(1)(a)(iii), because it did not concern objectives relevant to development which the Council wished to encourage. Regulation 8(3) would invalidate an otherwise qualifying supplementary planning document that conflicted with the adopted development plan; it would not convert that document into a residual local development document.
7. Section 23(1) of the Planning and Compulsory Purchase Act 2004 did not impose or presuppose consultation before adoption of every residual local development document. There was no general statutory duty to consult. Nor had the Council represented that it would consult, and its conduct did not establish a legitimate expectation of consultation.
8. A residual local development document may be given less weight because it was not consulted upon. That did not make its adoption unlawful. However, the policy’s legality was suitable for determination at this stage because it potentially affected several planning applications and could not itself be quashed by a planning inspector.