Council sees off attack by neighbour on permission for major urban extension

Luton Borough Council has failed in a judicial review challenge to a neighbouring authority’s grant of planning permission for a substantial urban extension in the Green Belt.

In Luton Borough Council, R (on the application of) v Central Bedfordshire Council & Anor [2014] EWHC 4325 (Admin) Central Bedfordshire Council ("CBC") granted planning permission on 2 June 2014 to the Houghton Regis Development Consortium for the extension on 262 hectares of Green Belt land on the Houghton Regis North Site 1.

The following month Luton filed a claim for judicial review. Central Bedfordshire’s decision was described by Mr Justice Holgate as “of great importance” to Luton.

“The Luton/Dunstable/Houghton Regis ‘conurbation’ has been surrounded by a tight Green Belt boundary since 1980, which has constrained peripheral expansion,” the judge noted.

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“[Luton] is unable to find land within its own administrative area to meet all of its housing needs, a significant proportion of which is for affordable dwellings. [Luton] has therefore been co-operating with neighbouring authorities, including [Central Bedfordshire], in order that some of its needs is met within other areas. Approximately 80% of [Luton's] administrative boundary is shared with [Central Bedfordshire] on its northern, western and southern sides.”

The QC for Luton, Peter Village of 39 Essex Street, had indicated that the authority would not have challenged the permission if it had secured a higher minimum level of affordable housing acceptable to it.

Luton brought the challenge on ten different grounds. These were that Central Bedfordshire had:

  • Failed to take into account paragraph 83 of the National Planning Policy Framework;
  • Failed to assess alternative sites or strategies;
  • Erred in attributing ‘substantial weight’ to its emerging Development Strategy;
  • Produced an Officer's Report for the Committee that materially misstated the treatment of the site in previous planning policy documents;
  • Produced an Officer's Report that improperly treated the allocation of the site in the Development Strategy as, in effect, inevitable;
  • Failed to advise the Committee of a Ministerial Statement that stated that unmet housing need was unlikely to constitute very special circumstances;
  • Failed to disclose the Interested Party’s viability assessment;
  • Failed to consider whether the retail floorspace proposed was justified by very special circumstances;
  • Failed to lawfully apply the sequential test under paragraph 24 NPPF in relation to the retail element of the development; and
  • Failed to apply the sequential and retail impact tests in respect of proposed main town centre uses.

Mr Justice Holgate granted permission to apply for judicial review but rejected the claim. He also found that four of the grounds of challenge were unarguable.

The judge refused to grant permission to appeal, saying he did not consider that such an appeal would have a real prospect of success.

Mr Justice Holgate added that it was “most unfortunate that the project, which will deliver much needed development and nationally important infrastructure, has been delayed by a challenge lacking in legal merit”.

Saira Kabir Sheikh QC of Francis Taylor Building was counsel for Central Bedfordshire. Robin Purchas QC, also of FTB appeared for the Houghton Regis Development Consortium alongside Hugh Richards of No 5 Chambers.

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