Comment
Harrogate Local Plan: The latest plan to fall foul of a legal challenge
The local plan process came under the microscope in 2020 with a string of Court Judgment decisions across the UK that found local plans to be ‘not legally compliant’, or their approach to a number of policies to have not been given sufficient consideration. We explore why Harrogate’s local plan is the latest to fall foul of this.
The Government has raised concerns over the length of time it is taking councils to adopt local plans. The Planning White Paper: Planning for the Future consultation, which took place during August / September 2020, indicated that only 50% of local authorities have an up-to-date adopted local plan. It proposes that the Government take control of local plan-making where councils have not adopted a local plan by 2022, or by 2023 if the local authority has adopted a plan in the previous three years.
It is very much a countrywide issue, with a number of Inspectors writing to councils such as Tonbridge & Malling and St Albans in 2020 to express “serious concerns” on a number of “legal issues” including the failure to cooperate.
Most recently, in November 2020 the High Court dismissed Sevenoaks District Council’s challenge to the Inspector's ruling, in March 2020, that the council had failed to meet its legal duty to cooperate under section 33A of the Planning and Compulsory Purchase Act 2004.
This has now been followed by a successful challenge to Harrogate Borough Council’s (HBC) Local Plan. The decision relates to Flaxby Park Limited’s (FPL) partially successful legal challenge against the allocation of the Green Hammerton and Cattal area as a “broad location for growth” for up to 3,000 homes in Policy DM4 of the Local Plan. The background to the challenge is that, during the Local Plan Examination, the Local Plan Inspector required HBC to carry out further sustainability appraisal work to consider possible alternatives to allocating Green Hammerton and Cattal as a broad location of growth. FPL’s challenge was made on the basis that HBC did not give full consideration to the findings of the additional sustainability appraisal work when it adopted the local plan.
The three grounds of challenge were:
- In adopting the plan, full council did not give sufficient regard to the Local Plan Sustainability Appraisal and consultation responses.
- It did not give equal consideration to FPL’s Former Flaxby Park Golf Course site as a reasonable alternative broad location than it gave to Green Hammerton and Cattal.
- It did not give full consideration to the viability and deliverability of a new settlement at Green Hammerton and Cattal.
FPL was only successful on the first ground, with Justice Holgate determining that “the full council did not take into account the final SEA material and consultation responses, or a summary and analysis therefof, when they resolved to adopt the local plan.”
Rather than quashing the local plan, Justice Holgate ordered the local plan be put back firstly before HBC’s cabinet, and then before its full council so that its adoption can be reconsidered with greater regard to the sustainability appraisal and consultation responses.
It is important to note that the Judgment does not mean that the findings of the sustainability appraisal were flawed, rather that HBC’s full council did not give sufficient consideration to the findings in deciding to adopt the local plan. The local plan was presented back to cabinet and full council on 9 December 2020, with a recommendation that the plan be adopted. The report presented to cabinet and full council [1] made detailed reference to the findings of the sustainability appraisal, stating that the designation of a broad area of growth at Hammerton and Cattal was assessed to be the most sustainable option when alternative locations were considered. The recommendation to adopt the local plan was unanimously supported by cabinet. At the full council meeting the recommendation was also supported, with only the councillor for the Bishop Monkton and Newby ward objecting to the adoption of the local plan with Policy DM4. The councillor considered that the Flaxby site would be a more sustainable location, making reference to its proximity to strategic transport links and the allocated Flaxby Green Park Strategic Employment Site.
The Harrogate local plan will now be adopted with no change from the version that was previously adopted in March 2020, before the legal challenge.
The list of local authorities seeing their local plans face legal challenges highlights the need to ensure that plans are legally compliant prior to submission to the Secretary of State, and that all evidence is fully considered before adoption, if they are to fend off legal challenges and minimise delays to adoption.
Our Northern Planning team regularly monitors emerging planning policy across Yorkshire, the north east and the north west. For more information or advice please contact Paul Forshaw, Sarah Cox or a member of our Manchester or Leeds Planning teams.
5 January 2021
[1] Adoption of the Harrogate District Local Plan: Re-consideration of the New Settlement Policies