Policies to protect Leeds historic canal side declared unlawful
by Katie Scuoler, Dentons
In September 2013 the High Court declared that two Leeds City Council (“the Council”) policies that attempted to protect the city’s historic canal side from housing development were unlawful. The case highlights some key considerations for both local planning authorities (“LPAs”) and developers in the allocation of sites in development plan documents (“DPDs”).
The two policies in question were contained in the Natural Resources and Waste Local Plan (“the NRWLP”). The NRWLP, adopted in January 2013 following a public inquiry, covered a period of 15 years which ran to January 2028 and contained two policies which sought to protect two pieces of land owned by the first and second claimants. The first site had an existing rail line used for the import of aggregates from the Yorkshire Dales and was allocated as suitable for the provision of new rail sidings and potentially suitable for a new canal wharf. The second site had canal frontage and three existing historic wharves and had been safeguarded as historic wharfage.
The claimants commenced proceedings under Section 113 Planning and Compulsory Purchase Act 2004 against the adoption by the Council of the NRWLP and sought to quash the two policies insofar as they related to the two sites on the following grounds:
- The policies were in conflict with NPPF paragraph 22, which seeks to avoid the long term protection of sites where there is no reasonable prospect of them being used for protective purpose;
- The policies safeguard the sites despite there being an absence of evidence that they are deliverable for their protected purpose; and
- The environmental report prepared in connection with the policies was not in accordance with the Environmental Assessment of Plans and Programmes Regulations 2004 in that it did not consider the other reasonable alternative uses to which the sites may be put.
What did the judge decide?
The policies were declared to be in conflict with NPPF paragraph 22 in relation to both rail freight uses and canal freight uses, and the policy in relation to the canal wharf usage was unlawful in that it safeguarded the site without evidence to support that use being deliverable.
In his report the Inspector holding the inquiry had concluded that the safeguarding of wharves failed to meet the requirement for robust evidence in NPPF paragraph 41, and that the evidence in respect of the protection of canal side sites was not compliant with NPPF paragraph 22. The Inspector, however, considered that the introduction of the second policy removed this deficiency by introducing three criteria all of which must be satisfied before a site is released from its safeguarded use. In light of these changes the Inspector found the policies to be sound. However, Belcher J held that there was a conflict with national planning guidance. The judge held that the Inspector had failed to have regard to the material consideration that land would remain safeguarded under the policy even in the circumstances where it had been established to have no reasonable prospect of being used for the safeguarded purposes. It was the Inspector’s conclusion that it was as a result, in part of the change to second policy that the first policy become sound, consequently the flawed nature of the second policy meant that it necessarily followed that the policies were flawed as a whole.
In respect of the second ground, the claimants conceded that there was robust evidence in relation to the rail freight use and this ground of challenge was limited to canal freight use. The Inspector had himself recognised that there was little direct evidence that canal freight use was economically sound. In the absence of such evidence the introduction of a five-year review provision could not save the policy. The judge held that the policy was unlawful to the extent it related to canal wharves and canal usage.
On the third ground the claimants argued that the Sustainability Appraisal (“SA”) conducted for the NRWLP failed to appraise the use of the claimant’s land sites for any other purpose, in particular for housing or other commercial development. However, the judge held that no one reading the SA could fail to appreciate that it was limited to certain areas of policy (i.e. natural resources and waste) and sat alongside the other DPDs where were considering the broader issues such as housing and employment opportunities. In these circumstances, the judge held that a thematic plan, such as the NRWLP, does not have to consider alternatives such as housing provided that the thematic plan forms parts of a series of relevant documents, one or more of which consider the alternatives and the that the series of documents are considered together. The claim failed on his ground.
What does this mean in practice?
Before a site can be safeguarded for a particular use in a DPD there must be robust evidence to support that use. Where sites are safeguarded there must be proper policy mechanisms which allow for their release for alternative uses where it subsequently becomes apparent that there is no reasonable prospect of the site being used for its protected purposes. Whilst a LPA might have an aspiration for a site – the Council here argued that the Aire and Calder canal is one of the few canals able to carry large freight barges – it is crucial that the evidence shows that use is deliverable. Safeguarding a site in the hope that evidence of that use would come forward would amount to a failure to accord with the test of soundness under Section 20 of the Town and Country Planning Act 1990. The decision highlights the need for LPAs to exercise caution in relation to cross-referenced policies. As was the situation in this case, the two policies stood or fell together.
Lastly, whilst it is not necessary for a SA to cover alternative uses for a site, LPAs must ensure that as part of a series of document those alternative uses are considered and cumulatively are assessed. It will be welcome confirmation to LPAs that there is no need to duplicate SA material: the judge held that provided that the reasons for rejecting alternatives uses are fully and properly explained in a document which is identified in the SA for the DPD in question the fact that the information is contained in a different document and not set out again in the SA does not mean that the SA has failed to consider the alternative uses.
DB Schenker Rail (UK Limited) and Another v Leeds City Council  EWHC 2865 (Admin)