Lack of regard for council planning policy on playing fields led to unlawful planning permission, High Court finds

A decision by Leeds City Council to grant itself outline planning permission to build 61 affordable dwellings on a longstanding sports field was unlawful, a High Court judge has ruled.

In TV Harrison CIC v Leeds City Council [2022] EWHC 1675, Mr Justice Eyre found the decision unlawful and quashed the planning permission after finding that a planning officer's report failed to mention a council policy that specifically protects playing fields.

Wortley Recreation Ground has been used for informal leisure and recreational activities and, following restoration work by local community members, is currently being used informally as a sports field.

The council first became the subject of proceedings in relation to Wortley Recreation Ground in 2020 after TV Harrison CIC, a community interest company, challenged its refusal to list the field as an asset of community value. In January 2022, the High Court found that the decision not to list the field was unlawful and quashed the decision.

In October 2021, the council granted outline planning permission for an affordable housing development on the field.

TV Harrison CIC then challenged the planning decision, advancing four grounds.

Ground 1 alleged that, in failing to take into account policy N6 of the Leeds Unitary Development Plan (LUDP), the council had erred in law in that it had failed to have regard to the policies of the statutory development plan contrary to sections 70(2) of the Town & Country Planning Act 1990 and section 38(6) of the Planning & Compulsory Purchase Act 2004.

Ground 2 alleged a failure to give adequate reasons for the decision.

Under Ground 3 the claimant alleged that the council had failed to have regard to material considerations in respect of paragraph 99(a) of the National Planning Policy Framework (NPPF) and/or had irrationally failed to obtain relevant information in respect of the matters addressed there.

Finally, by Ground 4 it was said that the report of the Chief Planning Officer to planning panel had materially misled the panel in respect of the adequacy of the measures intended to satisfy paragraph 99(b) of the NPPF and that as a consequence the council had failed to have regard to a material consideration.

Ground 1 was the only successful ground. The claimant made renewed applications for Grounds 2 and 4 to be heard, but both were refused. Ground 3 was granted permission to be heard but failed.

Ground 1 centred around Policy N6 of the council's Unitary Development Plan which protects playing fields. The policy provides that:

"Development of playing pitches will not be permitted unless:

i. There is a demonstrable net gain to overall pitch quality and provision by part redevelopment of a site or suitable relocation within the same locality of the city, consistent with the site's functions; or
ii. There is no shortage of pitches in an area in relation to pitch demand locally…"

The judge found that the claimant was correct “and by failing to address policy N6 the Defendant failed to have regard to the provisions of the development plan and erred in law”.

"The Officers' Report clearly had no regard to policy N6. Not only was no express mention made of that policy but, significantly, it is absent from the list of retained LUDP policies which are said to be relevant to the proposed development."

The judge added that it was "clearly of relevance to the proposed development".

He also noted that the policy was directly relevant to the proposed development in a way that other policies which the planning officer listed were not.

In concluding, he said: "In order to determine the application lawfully the Defendant had to have regard to policy N6. It had to consider that policy and make a judgement as to its interrelation with the [Core Strategy and the Site Allocations Plan] and the allocation there of the Site for housing subject to the site requirements. As Miss Wigley QC put it the Defendant had to grapple with the consequences of the policy N6. That was not done and as a consequence the decision was flawed as a matter of law."

In addition, the judge found that he could not be satisfied that it is highly likely that the outcome would not have been substantially different if the council had considered policy N6. He said: "Putting matters at the lowest it is at least possible that even if consideration of N6 did not lead to a refusal of permission it could have led to a different approach being taken to the condition or conditions imposed to ensure the provision of replacement playing pitches."

"It is possible that there would have been a different approach either in respect of the nature of the condition or in respect of the replacement provision which was required to satisfy any such condition," he noted.

"In the circumstances here that would have been a difference of substance in the outcome."

The judge quashed the council's decision to grant planning permission.

A copy of the judgment can be found here: TV Harrison CIC v Leeds City Council

Adam Carey