Luton Borough Council, R (on the application of) v Central Bedfordshire Council & Ors

Factual and Procedural Background

This appeal concerns a judgment by Judge Holgate in which an application by the Appellant for judicial review of a grant of planning permission by Company B was refused. The planning permission was granted on 2 June 2014 following a decision by Company B's planning committee on 4 September 2013. The permission related to outline planning permission for a major development on 262 hectares of open fields known as Site 1, designated as Green Belt land in Company B's local development plan.

The development was primarily residential with some employment and retail uses, conditional on a section 106 agreement requiring financial contributions to infrastructure and a degree of affordable housing. The Appellant challenged the amount of affordable housing as too low, leading to judicial review proceedings.

The case was initially heard by Judge Holgate on a "rolled up" basis considering both permission to apply for judicial review and substantive merits. Out of ten grounds advanced, four were deemed unarguable and the rest not made out on merits, resulting in dismissal of the claim. The Appellant appealed, focusing on five grounds and the costs order made in favour of interested parties. Permission to appeal was granted, but the appeal was ultimately dismissed.

Legal Issues Presented

1. Whether the planning authority failed properly to take into account paragraph 83 of the National Planning Policy Framework (NPPF) regarding alteration of Green Belt boundaries.
2. Whether the planning authority misapplied paragraph 216 of the NPPF in giving weight to the emerging Development Strategy despite unresolved objections.
3. Whether the planning committee was misdirected by the officer's report implying inevitability of the Development Strategy’s adoption.
4. Whether the planning authority failed to consider alternative sites or alternative development strategies adequately.
5. Whether the planning authority failed to apply sequential impact tests for proposed main town centre uses.
6. Whether the costs order against the Appellant was properly made in favour of interested parties.

Arguments of the Parties

Appellant's Arguments

• The planning authority failed to give proper weight to paragraph 83 of the NPPF, which requires Green Belt boundaries to be altered only in exceptional circumstances through local plan processes, making the grant of planning permission premature.
• The officer's report misled the planning committee by overstating the weight to be given to the emerging Development Strategy despite unresolved objections, contrary to paragraph 216 of the NPPF.
• The officer's report wrongly suggested the adoption of the Development Strategy was inevitable, improperly influencing the committee's decision.
• The planning authority failed to consider alternative sites or alternative development strategies, such as reducing retail to increase affordable housing, contrary to legal principles governing consideration of alternatives.
• The planning authority failed to apply required sequential impact tests for certain proposed town centre uses, undermining the planning assessment.
• The costs order awarding interested parties costs of preparing their acknowledgement of service was unjustified.

Respondent's Arguments

• The planning authority lawfully applied paragraph 83 of the NPPF by requiring "very special circumstances" to justify development on Green Belt land, which were properly found to exist.
• The planning committee was properly informed about the weight to be given to the emerging Development Strategy, including the significance of unresolved objections, in line with paragraph 216 of the NPPF.
• The officer's report did not misdirect the planning committee; the adoption of the Development Strategy was presented as likely but not inevitable, allowing proper planning judgment.
• No viable alternative sites were identified or presented that were obviously material or better suited for development than Site 1; the planning authority's assessment was rational and lawful.
• The sequential impact tests for certain town centre uses were not raised prior to the grant of permission and were not of sufficient significance to require detailed consideration beyond that given.
• The costs order was properly made under the Aarhus Convention claims regime, with the interested parties entitled to costs despite the agreement between the Appellant and Company B.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the application of relevant national planning policies, statutory duties, and planning principles to the facts. It distinguished between the requirement for altering Green Belt boundaries via local plan processes under paragraph 83 of the NPPF and the separate "very special circumstances" test under paragraphs 87-88 allowing development within Green Belt land without boundary changes.

The court held that paragraph 83 does not preclude granting planning permission on Green Belt land before local plan boundary changes, provided "very special circumstances" exist, which was properly assessed and found in this case.

The court found that the planning committee was properly informed about the weight to be given to the emerging Development Strategy, including acknowledging unresolved objections in line with paragraph 216 of the NPPF. The officer reports adequately addressed prematurity concerns and the planning committee was entitled to give substantial weight to the Development Strategy based on its stage and policy consistency.

The court rejected the argument that the officer's report misdirected the committee by implying inevitability of the Development Strategy's adoption, finding the report invited proper planning judgment weighing benefits of timely development against waiting for plan adoption.

Regarding alternative sites and strategies, the court applied established legal principles distinguishing when consideration of alternatives is mandatory. It found no viable alternative sites were identified or presented that were obviously material or better than Site 1, and the planning authority's assessment was rational and lawful. Similarly, the alternative strategy of reducing retail floorspace to increase affordable housing was not sufficiently raised or obviously material to require consideration.

On the alleged failure to apply sequential impact tests for certain town centre uses, the court found the matter was not raised before permission was granted, was minor in scale relative to the overall development, and adequately addressed within the overall planning balance, rendering the challenge unarguable.

Finally, the court upheld the costs order against the Appellant, reasoning that the interested parties were entitled to costs for their acknowledgement of service preparation under the Aarhus Convention claims regime, and the Appellant's agreement with Company B did not bind the interested parties.

Holding and Implications

The court DISMISSED the appeal in its entirety, upholding the judgment below that refused the application for judicial review of the grant of planning permission.

The direct effect of this decision is to confirm the lawfulness of the planning permission granted by Company B for development on Site 1, including the level of affordable housing agreed under the section 106 agreement. The costs order in favour of the interested parties is also affirmed.

No new legal precedent was established; the court applied established principles of planning law and judicial review to the facts of this case.