The Council made a mistake. This happens - sadly too often. And this one is a classic!
Let the City's great legal minds explain:
Further to your request for clarification regarding the council’s legal problems relating to housing sites, I have summarised the position as follows, which I hope that you find to be of use.
Under the old Revised Unitary Development Plan (RUDP), the council allocated development sites to meet future housing needs throughout the district. The council was then required to work with the Government Office for Yorkshire and the Humber, to transfer the allocated housing sites to become an integral element of the new Local Development Framework (LDF).
The council was required to identify which of the policies from the former RUDP it wished to “save” as part of the new LDF and which it would allow to expire.
Policies H1 related to allocated housing sites and H2 to unallocated housing sites, with H2 relating to about 90% of proposed housing development. Policy H4 protected sites for housing use. In 2008 when required to undertake the “saving” and thus transfer of policies, the council interpreted the requirements to mean that it should save policy H4 which protected the housing sites, but not H1 & H2, which the council deemed to be phasing policies and thus redundant. H1 & H2 were subsequently allowed to expire on 31 October 2008.
A resident, who happens to be a planning law solicitor, has now challenged the legal basis of the council saving of unimplemented housing sites, stating that it should have saved policies H1 and H2 and that by failing to do so, the council has allowed its housing allocations to expire.
Legal advice sought by the council concurs with the conclusion and the reasons set out in the letter from the local resident, ie that the lapsed allocations are no longer allocated as part of the council’s statutory development plan.
As they say...ooops!
So the Council is frantically trying to fix the problem (not having any allocated housing sites):
In order to rectify the situation, the council considered an urgent report into the matter at the meeting of its executive Committee on 21 November 2011 at which it resolved that; the “Executive reaffirms that it was council’s intention that the unimplemented Housing sites should be protected to meet the district’s housing needs”, “unimplemented housing sites previously allocated under policies H1 and H2 should be given significant weight when considering their use for residential development” and “any planning applications which related to an unimplemented Housing site and which have been considered but not had a decision notice issued be reconsidered by Regulatory and Appeals in the context of the new legal considerations”.
That should do? Maybe not!
At the meeting, the Chairman of the Menston Community Association stated that he had received legal advice questioning whether the Executive could add weight to expired policies.
Until such time as the matter is tested in court, or the time allowed for a Judicial Review expires, which interpretation is correct cannot be absolutely certain.
I think the phrase: "see you in court" applies here!