R Luton Borough Council v Central Bedfordshire Council Houghton Regis Development Consortium (Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Holgate
Judgment Date19 December 2014
Neutral Citation[2014] EWHC 4325 (Admin)
Docket NumberCase No: CO/3184/2014
CourtQueen's Bench Division (Administrative Court)
Date19 December 2014

[2014] EWHC 4325 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Holgate

Case No: CO/3184/2014

Between:
The Queen on the application of Luton Borough Council
Claimant
and
Central Bedfordshire Council
Defendant

and

Houghton Regis Development Consortium
Interested Party

Peter Village QC and Andrew Tabachnik (instructed by Winckworth Sherwood LLP) for the Claimant

Saira Kabir Sheikh QC (instructed by Central Bedfordshire Council) for the Defendant

Robin Purchas QC and Hugh Richards (instructed by King and Wood Mallesons LLP) for the Interested Party

Hearing dates: 2, 3 and 4 December 2014

Mr Justice Holgate
1

On 2 June 2014 Central Bedfordshire Council ("CBC") granted planning permission to the Houghton Regis Development Consortium, the First Interested Party for a substantial urban extension on 262 hectares of Green Belt land on the Houghton Regis North Site 1 ("HRN1"). The second to fifth interested parties are members of the consortium. In this judgment I will refer to the interested parties collectively as the "IP".

2

The permission was granted in outline, with details of access, appearance, landscape, layout and scale reserved for subsequent approval. The outline consent authorises a large scale development which includes up to 5,150 dwellings and up to 202,500 sq m gross of development in the classes A1 to A3 (retail), A4 (public house), A5 (take away), B1, B2, B8 (offices, industrial and storage and distribution), C1 (Hotel), C2 (care home), D1 and D2 (community and leisure) and other uses. According to the schedule of development parameters, the scheme includes (in addition to 25,000 sq m of B2 and 125,000 sq m of B8) up to:—

— 5000 sq m of B1 offices

— 10,000 sq m for a main food store, 2,500 sq m of food retail, 12,500 sq m of comparison retail and 5,000 sq m of A2 to A5 uses

— A hotel of 3,000 sq m

— 40,000 sq m of D1 (non-residential institutions)

— 5,000 sq m of D2 space (including a cinema of up to 3,000 sq m)

3

The planning permission was accompanied by a section 106 obligation also dated 2 June 2014. Clause 5 and the fourth and ninth schedules imposed an obligation on those interested in the development site to provide a minimum of 10% of the total number of dwellings as "affordable housing dwellings". But it is common ground that the obligation may require up to 30% of the total number of dwellings to be provided as affordable units, pursuant to a review mechanism based upon the sales figures actually achieved.

4

On 10 July 2014 Luton Borough Council ("LBC"), an adjoining local planning authority, filed a claim for judicial review. Singh J ordered that the application for permission be adjourned to an oral hearing. On 9 September 2014 Supperstone J gave directions for the application to be dealt with at a rolled up hearing, which took place before me on 2 to 4 December 2014.

5

CBC's decision is of great importance to LBC. The Luton/Dunstable/Houghton Regis "conurbation" has been surrounded by a tight Green Belt boundary since 1980, which has constrained peripheral expansion. LBC 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. LBC has therefore been co-operating with neighbouring authorities, including CBC, in order that some of its needs is met within other areas. Approximately 80% of LBC's administrative boundary is shared with CBC on its northern, western and southern sides.

6

Although the grounds of challenge ranged over a number of subjects, Mr Peter Village QC, who appeared on behalf of LBC, confirmed that his client would not have challenged the permission, if it had secured a higher minimum level of affordable housing acceptable to that authority. In this context I also note that any earlier objections to LBC's standing were not pursued at the hearing.

Protective Costs Order

7

In the Claim Form LBC sought to rely upon the Aarhus Convention, the protective costs regime in Section VII of CPR 45 and the related costs limits in the Practice Direction. In its Acknowledgement of Service CBC disputed that the Convention applied to this claim. This issue was to have been dealt with in the hearing before me. Shortly beforehand, the decision of the Court of Appeal in Secretary of State for Communities and Local Government ("SCLG") and Venn [2014] EWCA Civ 1539 was handed down. As a result, Ms. Saira Kabir Sheikh QC, who appeared on behalf of CBC, accepted that most of the grounds raised by LBC fell within the scope of environmental matters. But there remained an issue as to whether the Convention or CPR 45.44 provides protection to planning authorities in the position of LBC.

8

However, on the second day of the hearing the LBC and CBC resolved this difference by agreeing that an order should be made imposing a cap of £0 on their respective costs. I will reflect that agreement in the formal order of the Court.

9

It is essential to consider the grounds of challenge in context and so I will first summarise matters under the following headings before going on to deal with the 10 grounds broadly in the sequence in which they were argued The cross-references are to the relevant sections of this judgment:-

— Evolution of planning policy (paras. 10–35)

— The 2012 planning application for HRN1 (para. 36)

— The A5/M1 link road and the Woodside link road (paras. 37–40)

— Overview of the 10 grounds of challenge (para. 41)

— LBC's representations to CBC on Houghton Regis North (paras. 42–64)

— The Officers' Reports on the planning application (paras. 66–89)

— Legal principles for reviewing decisions taken by a local planning authority (paras. 90–98)

— Ground 1 (paras. 100–111)

— Ground 4 (paras. 112–119)

— Ground 3 (paras. 120–136)

— Ground 5 (paras. 137–140)

— Ground 2 (paras. 141–161)

— Ground 6 (paras. 162–163)

— Ground 8 (paras. 164–169)

— Ground 7 (paras. 170–196)

— Ground 9 (paras. 197–207)

— Ground 10 (paras. 208–210)

Evolution of planning policy

10

In 1980 the HRN1 site was included in the Green Belt upon the approval by the Secretary of State of the Bedfordshire County Structure Plan.

11

The Bedfordshire and Luton Strategic Housing Market Assessment ("SHMA") published in March 2010 assessed housing market needs for the period 2001–2021. It assessed the position in both Luton Borough and the southern part of Central Bedfordshire together and indicated that 7,700 social rented housing and 3,200 intermediate affordable housing units would be required out of a total of 21,600 dwellings.

12

The 2010 SHMA was updated in a document issued in June 2014 so as to cover the period 2011–2031. This was prepared in the context of the duty on both authorities to cooperate, imposed by S33A of the Planning and Compulsory Purchase Act 2004 (which had been inserted by the Localism Act 2011 – "the duty to cooperate"). Paragraph 32 explained that the authorities would focus the overall assessment of housing need upon the whole of their respective administrative areas. In summary, Luton Borough was assessed as having an overall housing requirement over the period 2011–2031 of 17,800 units, of which about 28.4% would need to be affordable dwellings. For Central Bedfordshire the SHMA stated that 25,600 dwellings should be provided over the period, of which 34.8% should be affordable dwellings. In addition, the Claimant states that the capacity assessments it has carried out for its own area show that only about 6000 new homes can be provided within Luton in the period to 2031, therefore leaving a very substantial proportion to be accommodated outside LBC's area.

Regional Planning Guidance for the South East (RPG 9) — 2001

13

In tracing the evolution of planning policies, it is necessary to go back to March 2001 when the Regional Planning Guidance for the South East ("RPG9") was issued. As paragraph 8 of the Claimant's skeleton states, at that stage HRN1 lay within a broader area described as a Priority Area for Economic Regeneration ("PAER"). Paragraphs 4.15 to 4.17 of the document explained why the PAERs were needed. The criteria for designation included above average unemployment rates, high levels of social deprivation, low skill levels, dependence on declining industries and derelict urban fabric. Dedicated regeneration strategies were said to be needed in order to tackle the problems of each PAER and to maximise the contribution of each area to the social and economic wellbeing of the region. In the list of PAERs there was included Luton Dunstable and Houghton Regis.

14

As regards Green Belts, paragraph 6.5 stated the Government's then view that there was not a general case for reviewing existing Green Belt boundaries, but added that where settlements are tightly constrained by the Green Belt, then local circumstances might indicate the need for a review after carrying out urban capacity studies.

15

Paragraphs 12.35 to 12.41 of RPG9 dealt specifically with Luton, Dunstable and Houghton Regis. Even at that stage it was recognised that although the area had good north south strategic routes, " east-west communications are poor and would benefit from enhancement" and "there is also severe congestion on the local road network". Paragraph 12.38 pointed out the problems caused by the area's dependence on its former manufacturing base and the need for major economic restructuring and regeneration in order to diversify the employment base. Paragraph 12.40 pointed out that the towns are amongst the most densely populated outside Greater London and are tightly constrained...

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