Out-Law News 3 min. read
06 Jan 2015, 5:33 pm
CBC granted outline permission in June 2014 for Houghton Regis Development Consortium's proposals to build up to 5,150 homes and 202,500 square metres of space for commercial, retail and other uses on 262 hectares of farmland to the north of Houghton Regis. LBC applied for a judicial review of the decision to grant permission for the scheme, challenging the decision on 10 grounds.
In a decision dated 19 December, High Court judge Mr Justice Holgate rejected all 10 grounds of challenge, four of which he found to be "unarguable", and refused permission for LBC to appeal his decision to the Court of Appeal.
LBC had argued that an officer's report to CBC on the planning application had overstated the "planning pedigree" of the development site. Mr Justice Holgate disagreed, noting that the officer's report had made clear that strategic plans from 2005 and 2008 had only identified the area within which the site lay as being potentially suitable for an urban extension.
The judge found that the report was justified in giving "some weight" to a withdrawn joint core strategy prepared by LBC and CBC in 2011, which had allocated the site as being suitable for the delivery of 5,150 homes. The judge said that "a plan which has been withdrawn may form part of the relevant planning history ... depending on the circumstances". He noted that both councils had promoted the site for development in the draft joint core strategy and that it "was not abandoned because of any disagreement by LBC regarding the [development] site".
Mr Justice Holgate rejected LBC's allegation that giving "substantial weight" to the site's allocation in the emerging Central Bedfordshire development strategy (CBDS) was irrational. The judge noted that the decision "properly took into account a range of factors", including the stage of preparation reached by the CBDS and the relatively limited objections to its policies.
The judge disagreed that, in taking a decision that would result in the site having to be removed from the green belt in any future review of green belt boundaries, CBC failed to take account of a national planning policy requirement that "green belt boundaries should only be altered in exceptional circumstances and through the preparation or review of a local plan. Mr Justice Holgate said that CBC had been under a duty to determine the application and that it had legitimately decided that releasing the site from the green belt would not undermine the emerging CBDS.
LBC also argued that CBC's decision to grant planning permission was unlawful due to a failure to consider alternative sites to the chosen site or alternative strategies for the development of the chosen site. Mr Justice Holgate decided that "alternative sites were not 'obviously material' [to the decision] and that CBC did not act irrationally by failing to assess alternative sites.
The judge said there was no suggestion that the issue of alternative sites had been raised as an issue before CBC made its decision. He noted that the requirement for "substantial releases of land" from the green belt in order to meet housing needs was not disputed by LBC and that, having consulted evidence relating to earlier plans CBC's officers had found that there was "nowhere else more suitable for the growth to go".
Mr Justice Holgate said that there was no legal duty on a local authority to consider whether to examine alternative sites. In response to claims that CBC failed to consider alternative strategies, the judge found that CBC had in fact considered and rejected LBC's recommendation to reduce the contribution made to a relief road under the scheme and had "no legal obligation" to consider a reduction in retail development at the site, there being no evidence that this strategy was put before CBC.
The judge dismissed LBC's submissions that CBC ought to have disclosed an affordable housing viability report and an appraisal of that report to LBC. Mr Justice Holgate found that neither the dependence of Luton's housing needs on the provision of housing in central Bedfordshire nor a statement of agreement between the two councils created a legitimate expectation that confidential information ought to be shared with LBC.
The judge noted that LBC had raised no complaints about the information disclosed to it until nearly a year after the decision had been made. "I do not consider that it can be said that the procedure followed by CBC was unfair to LBC", concluded Mr Justice Holgate. "Moreover, I do not think that LBC can legitimately claim to have suffered unfairness causing them material prejudice."
The judge said that an allegation that the officer's report considered the future allocation of the development site to be 'inevitable' was based on a failure to consider a particular paragraph of the report in its full context.
The four grounds Mr Justice Holgate found unarguable included two grounds alleging that CBC had made legal errors in the identification of "very special circumstances" overriding green belt protection and two grounds alleging a failure to apply the correct sequential test when allocating land for town centre uses.
