Aireborough Neighbourhood Development Forum v Leeds City Council

Under section 113 of the Planning and Compulsory Purchase Act 2004, the court has flexible remedial powers after unlawfulness in the adoption of a local plan. The appropriate remedy depends on the nature of the legal error and the stage at which it occurred. Remittal is generally preferable to quashing where returning the document to the stage at which the error arose can cure the illegality and avoid unnecessary repetition of the process. The court must not determine matters of planning judgment or prescribe the substantive content of the plan. A direction requiring further reasons is insufficient where the unlawfulness includes a material error of fact or fundamental defects in the reasoning. Remittal may extend to all affected allocations where the errors are general rather than site-specific.

The claimant challenged the adoption of the Leeds Site Allocations Plan. In the substantive judgment, [2020] EWHC 1461 (Admin), the court found several errors of law, including a material error of fact and inadequate reasoning concerning housing allocations in the Green Belt.

The court was required to determine the appropriate relief under section 113(7) of the Planning and Compulsory Purchase Act 2004. The principal issues were whether the relevant parts of the Plan should be quashed or remitted, whether relief should be confined to Aireborough, and what directions could properly be given without entering into planning judgment.

1. The court rejected the suggestion that the errors could be cured merely by directing the Inspectors to provide further reasons. The unlawfulness included a material error of fact giving rise to an error of law, and the defects in reasoning were fundamental to the Inspectors’ analysis. Further reasons alone would not remedy the problem.

2. Section 113(7) to (7C) of the Planning and Compulsory Purchase Act 2004 confers flexible remedial powers. Following and applying the approach in University of Bristol v North Somerset Council [2013] EWHC 231 and JJ Gallagher v Cherwell DC [2016] EWCA Civ 1007, the starting point is to identify the legal error and return the process to the stage at which it occurred, where that can cure the illegality.

3. Remittal, rather than quashing, was appropriate. Quashing and restarting the process would also cause delay, expense and difficulties with the Council’s five-year land supply. Those consequences did not justify leaving Green Belt allocations affected by a material error of fact and inadequately reasoned decision-making.

4. The court could not direct the Council or Inspectors what planning judgment to reach, including whether exceptional circumstances justified Green Belt release. Those matters remained for the Council and the Secretary of State. Nor was it essential that different Inspectors conduct the further examination.

5. Relief was not confined to Aireborough. The errors identified in the substantive judgment applied to the Green Belt allocations generally and were not site-specific. The court therefore remitted all policies relating to Green Belt allocations of housing, including mixed-use allocations, to the Secretary of State. Any consequential effects on mixed-use allocations would be addressed through development control processes on a site-specific basis.

This was a first-instance decision on relief following the court’s substantive judgment in the same proceedings, reported at [2020] EWHC 1461 (Admin). The court remitted the relevant policies rather than quashing them.