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

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”.

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:-

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.

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.

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.

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.

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.

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.

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:-

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.

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.

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.

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.

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.

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 by the Green Belt. Paragraph 12.41 required joint working to (inter alia) develop complimentary strategies through development plans which, in particular, would encourage development proposals and land uses contributing to economic restructuring and sustainable urban regeneration.

On the 27^th January 2004 CBC adopted the South Bedfordshire Local Plan Review (2004). Policies GB1 and GB2 applied traditional Green Belt restraint policies to the designated Green Belt, including HRN1.

The approach set out in RPG9 was taken further in Milton Keynes and South Midlands Sub-Regional Strategy published in March 2005 (“the Sub-Regional Strategy”). This strategy was based upon a prior study which had assessed four options for distributing growth across the area. The study preferred an option which included the focussing growth on the Luton-Dunstable-Houghton Regis area. The sub-regional strategy’s objectives included a major increase in the number of new homes in the sub-region, meeting the need for affordable housing and a range of types and sizes of market housing, together with a commensurate level of economic growth and developing skills in the work force (paragraph 14).

For Luton, Dunstable and Houghton Regis the emphasis was to be on building the principal growth towns into vibrant communities with a major improvement in the local economy and skills base and capacity to meet housing need (paragraph 15). This was to be achieved through economic regeneration across the urban area. In addition the area or town known as Leighton Linslade was identified in order to provide a proportion of the growth attributable to this part of the conurbation in a complimentary manner.

Paragraph 79 et seq dealt with issues specific to Luton, Dunstable and Houghton Regis, pointing out that this area had coalesced into a single conurbation forming the largest urban area in Bedfordshire. Paragraph 81 referred to the substantial problems in the area regarding unemployment and the skills base with the consequent need to concentrate efforts on the continued regeneration of the economy, to achieve (inter alia) “urban renaissance”. Paragraph 82 made the important statement that “while some of these aims can be met within the present confines of the urban area, others cannot. The Green Belt forms a tight boundary all around the towns so that, in recent years, it has become increasingly difficult to meet locally-generated needs, especially for the housing of the relatively young population. Development has been diverting north of the Green Belt to other parts of Bedfordshire and beyond, sometimes to locations less inherently sustainable than Luton/Dunstable/Houghton Regis.” The Sub-Regional Strategy stated that although it would be essential to release development capacity within the towns, nonetheless that would be substantially less than was necessary even to meet local needs, quite apart from securing additional regeneration and investment. Consequently, paragraph 83 stated that “these exceptional circumstances require a review of the Green Belt around Luton/Dunstable/Houghton Regis to provide headroom for potential development needs to 2031 and specifically to accommodate sustainable mixed-use urban extensions which support the continued regeneration of the existing urban area.”

Policy 2(a) stated “the LDD should review Green Belt boundaries around the Luton/Dunstable/Houghton Regis conurbation and Leighton Linslade so that in combination sufficient land is made available the land use needs of the Sub-Regional Strategy to 2021. Subject to testing through LDDs, sufficient areas of safeguarded reserved land should also be excluded from the Green Belt to meet needs to 2031. In the case of Luton, Dunstable and Houghton Regis, the review should focus on two areas of search which would exclude the Chilterns AONB: from west of Dunstable to the A6 in the north…” (emphasis added). It is common ground that the HRN1 site, although not specifically identified or allocated in the Sub-Regional Strategy (which was not of course a site-specific document), nonetheless falls within that area of search.

In May 2008 the East of England Plan was published. In all material respects it incorporated and retained the relevant provisions of the Sub-Regional Strategy to which I have just referred.

On 3 January 2013 the East of England Plan and the Sub-Regional Strategy were revoked by the Secretary of State, as part of the revocation of regional plans generally, pursuant to powers conferred by the Localism Act 2011.

In March 2011 the draft Luton and Southern Central Bedfordshire Joint Core Strategy (“Joint Core Strategy”) was submitted by LBC and CBC acting jointly to the Secretary of State for independent examination by an Inspector. The extracts from that document contained in the Core Bundle are from the pre-Submission version of the plan, but I am told that there were no material differences for the purposes of this case between that version of the plan and the subsequent Submission edition.

Paragraph 3.13 stated that in addition to new development opportunities within the urban areas, four urban extensions would be delivered in order to meet the quantity and rate of new housing, employment and infrastructure required. Two of those urban extensions were to be located to the north of the main conurbation, namely North of Houghton Regis and secondly North of Luton (para. 3.14). Two other extensions were proposed, including one to the east of Leighton Linslade. I am told that the whole of each of these extensions was located with the Green Belt and the area of CBC. They were said to have the potential to deliver 13,500 new homes (para. 3.29) distributed as follows: 2,500 homes at east of Leighton Linslade, 4,000 at North of Luton and 7,000 at North of Houghton Regis. Paragraph 3.30 explained that that would provide a potential oversupply of about 4,050 homes in relation to a plan period ending in 2026, but might nonetheless be released by then under a contingency plan.

Chapter 10 of the Joint Core Strategy dealt with the strategic site specific allocations. Paragraph 10.19 explained that for the 15 years covered by the plan period 2011-2026, North of Houghton Regis had been identified as a suitable site for the provision of 5,150 new homes, 30 hectares of new employment opportunities and associated infrastructure, plus a contingency of 1,850 additional homes and a further 10 hectares of employment land if required by future needs.

North Houghton Regis was proposed to be allocated as a Strategic Site Specific Allocation (“SSSA”), lying between the M1 and the A5. It was to be delivered as two sites (para. 10.20). Site 1 (in effect HRN1), the eastern part of the allocation, extended from the M1 on its eastern boundary to the A5120 on its western flank. Site 2, intended to be developed at a later stage, was bounded by the A5120 to the east and the A5 to the west. “The proposed A5-M1 link road provides the northern boundary for both sites and the Green Belt boundary will be revised to align with this.” Paragraph 10.21 made it plain that the existing urban area lying to the south of the allocation would form its southern boundary and that the Green Belt would be altered in this area so as to remove land lying within the allocated area. It added “the contingency there has been included within the area will remove the need for a further review should more development be required within or beyond the period to 2026.” The two sites would be “fully integrated with each other as well as with the urban area of Houghton Regis so as to provide truly sustainable development” (paragraph 10.22).

Policy CS 14 dealt specifically with the HRN1 site. It identified the area of the site and the proposal to revise the Green Belt boundaries so as to exclude from the Green Belt land up to the alignment of the A5-M1 link road. The Policy required a master plan to be prepared providing (inter alia) a mix of uses necessary to achieve a sustainable community including housing, employment land and supporting social, community and green infrastructure.

The Joint Core Strategy got as far as the examination stage in front of an independent inspector. But in September 2011 LBC withdrew its support from the plan and it was subsequently abandoned. However, it is important to note from paragraph 3.10(2) of the Officer’s Report to CBC’s Development Management Committee meeting held on 28 August 2013 in relation to the HRN1 planning application that “the abandoned Joint Core Strategy was not abandoned due to any disagreement between the joint councils regarding this site. Its intended removal from the Green Belt and its allocation for residential and commercial development was supported by both councils at the Joint Planning Committee” (emphasis added). Mr Village QC confirmed that LBC accepts the accuracy of that statement.

In January 2013 the pre-submission Central Bedfordshire Development Strategy (“DS”) was published. Policy 2 states that the DS plans for the delivery of a total of 28,700 new homes and 27,000 new jobs between 2011-2031. The policy envisages that some of that development will be located at North of Houghton Regis. Policy 3 proposes revisions to the Green Belt boundary so as to exclude urban extensions such as HRN. Chapter 13 of the plan deals with site specific policies.

Paragraphs 13.1 to 13.31 relate to the Houghton Regis North Strategic Allocation. Paragraph 13.2 indicates that a total of around 7,000 new homes can be accommodated in total: 5,500 homes on site 1 and 1,500 on site 2. About 40 hectares of employment land is provided for: 32 hectares on site 1and 8 hectares on site 2. Much of the text in paragraph 13.3 and elsewhere is similar to the draft Joint Core Strategy referred to above.

Policy 60 of the draft DS deals specifically with the Houghton Regis North Strategic Allocation. The court was told that the area covered by that allocation corresponds to the area of the proposed allocation in the former Joint Core Strategy.

I will refer only to that part of policy 60 which concerns site 1. That site again is located between the A5120 and the M1. The Policy provides for a mix of uses necessary to achieve a sustainable community, including about 5,500 private and affordable homes, 32 hectares of new employment land, commercial facilities including local centres, retail units, a food store and a public house and other related facilities. The Policy also states that Site 1 will provide opportunities to assist in “the regeneration of Houghton Regis through the timely delivery of supporting infrastructure…”. Policy 60 ends by stating that the Green Belt boundary will follow the alignment of the A5-M1 link road. The Infrastructure Schedule, referred to in paragraph 13.13, identified the new Junction 11A on the M1, the A5-M1 link and the Woodside Link as “critical”

The DS was accompanied by a Sustainability Appraisal (“SA”). Chapter 4 of the SA explains the strategic site assessment process. The SA set out the criteria which had been employed and the range of alternative sites considered. A total of 42 sites were taken forward for more detailed examination (para. 4.6). The last paragraph 4.17 on page 90 stated that a “further factor” was the relationship between development and infrastructure, including situations “where development can be used to bring about new, or improvements to existing, infrastructure. A number of the mixed use strategic sites are all of a size and in a location that can enable infrastructure improvements to be brought about that will benefit existing residents as well as the new development. This is particularly the case for the land North of Houghton Regis proposal, which is facilitating the development of the A5/M1 link road and the Woodside connection. These pieces of new strategic infrastructure are critical to the future success of Dunstable and Houghton Regis and the fact that the development site will help their delivery weighs significantly in favour of the proposal” (emphasis added).

Paragraph 20 of the Claimant’s skeleton refers to the inclusion of HRN1 in Table 6 of the SA as Site 18. It is submitted that two other sites are of particular note for the purposes of these proceedings, namely Site 8 - West of Luton and Site 27 - Marston Vale. However during the hearing, Mr Village QC confirmed that Site 27 is located to the east of Milton Keynes and, taking into account the SA's assessment of its relationship to the housing needs covered by the plan, was of no real relevance to addressing LBC’s housing requirements. As for Site 8, Table 6 noted that this site scored badly (and indeed worse than site 18) as regards Green Belt and coalescence issues. Not surprisingly, that aspect was not taken any further during the hearing.

Paragraph 21 of the Claimant’s skeleton went on to complain that CBC had failed to comply with its duty to cooperate with LBC, under Section 33A of the 2004 Act, in relation to cross-boundary housing matters. However, Mr Village QC confirmed on behalf of LBC that the Court is not being asked to decide in these proceedings whether the duty to cooperate has been complied with. He stated that that would be a matter for future consideration by the Inspector conducting the independent examination into the draft DS. The highest that Mr Village put this aspect was that LBC’s allegations concerning non-compliance with the duty should have been taken into account by CBC when assessing the weight to be given to the emerging draft DS.

On 24 December 2012 the HRN1 Planning Application was submitted to CBC. It was accompanied by an Environmental Statement (“ES”). The Non-Technical Summary of that ES expressly stated that the Applicant had made no assessment of any alternatives to development at HRN1 (para. 4.1). The Application was also accompanied by a Retail Assessment (“RA”). CBC commissioned an independent review of that Assessment by a specialist firm of consultants, Turley Associates (“Turleys”). The Applicant also provided a viability assessment, with a view to justifying the amount of affordable housing which could be contributed by the scheme, having regard to development and infrastructure costs. That viability appraisal was subjected to an independent review by the consultants EC Harris, instructed on behalf of CBC. Ground 7 complains about CBC’s failure to make that material available to the Claimant so as to enable it to make representations thereon.

As long ago as 2001 the poor east-west communications from which the conurbation suffers had already been recognised (see para. 12.36 of RPG9). The point was taken up again in 2005 in paragraph 86 of the Sub-Regional Strategy which stated that positive action across the conurbation by Local Authorities and others is required on a number of short and medium term priorities. It made clear that the initial focus would be on such matters as ensuring the early delivery of sustainable urban extensions to complement and support the continued regeneration of existing urban areas, mainly but not exclusively, after completion of the M1 widening and the northern bypasses.

One of the functions of the A5-M1 link road is to serve as a northern bypass of the conurbation. The road also serves nationally and regionally important functions. Its total cost is of the order of £172 million. The Government is willing to contribute £127 million of the total cost of the scheme. However, as recorded on page 11 of the August 2013 OR, the Secretary of State for Transport had indicated his intention to approve the road should planning permission be granted for HRN1 on the basis that that site would contribute £45 million. According to the assessment by CBC, the link road would serve no purpose at all and in particular could not facilitate the HRN1 development unless constructed in its entirety; the link road cannot be delivered without funding from the HRN1 development; and the HRN1 scheme cannot be fully developed unless the link road is in place (see for example the Officer’s report to CBC’s Committee meeting on 4 September 2013 – the September 2013 OR). The developers’ contribution of £45 million has been secured by an agreement with the Secretary of State under Section 278 of the Highways Act 1980 dated 16 September 2011 (see paragraph 6.4 of the third witness statement of Mr Moriarty). Mr Village made it clear on behalf of the Claimant that no legal challenge is made to the legal propriety of HRN1 having been required to make a contribution to the costs of the link road on that scale.

The Woodside link road is intended to provide a new route between the improved Junction 11a on the M1 forming part of the A5-M1 link road scheme and the Woodside industrial estate. The object of this second link is to provide traffic from the estate with an attractive alternative route in order to gain access to the national motorway network and avoid congestion, for example, in the centre of Dunstable. The cost of the Woodside link is something of the order of £42 million. The IP will provide necessary land at no cost, but make no direct financial contribution (see para. 7.1 of Mr Moriarty’s third witness statement).

All parties have thought it appropriate to refer to the decision of the Secretary of State for Transport dated 30September 2014 (and therefore postdating the decision the subject of the present challenge) in which the Minister made a Development Consent Order to enable the Woodside link road to be carried out. In paragraph 34 of his decision the Secretary of State accepted that there is a compelling case in the public interest for authorising the construction of the road. In part that was based upon his conclusions in paragraph 24, where he accepted (a) that the link would make economic sense by providing a greatly improved connection between the industrial estate and the motorway network, (b) the Woodside link is critical to the successful delivery of the HRN1 development and (c) in turn that development would make a significant financial contribution to the cost of the A5-M1 link road. Paragraph 11 of the decision records that LBC supported the Woodside link road on the basis that its social and economic benefits outweighed any negative environmental impacts.

Mr Village QC helpfully grouped the 10 Grounds of Challenge under five headings. He described the first heading as misdirections which comprised:

I have already recorded the common ground in these proceedings that when the draft Joint Core Strategy was abandoned owing to disagreement between the two Local Authorities, LBC did not withdraw from the process because of any disagreement over the proposed allocation of the HRN1 Site.

About a year after the withdrawal from the Joint Core Strategy, CBC published on 20 June 2012 their draft development strategy for Central Bedfordshire for consultation. On 10 September 2012 the Head of Planning and Transportation at LBC produced a report for its Executive setting out that Council’s Consultation Response to that draft. It stated that Luton is “likely to face an unmet need of between 5,000 to 12,000 dwellings over the next 20 years (given its estimated overall capacity within Luton of approximately 6,000 during that period)” (Summary of Comments III). LBC, recognising that the draft strategy proposed the same three urban extensions as had been previously advanced in the withdrawn Joint Core Strategy, stated that it “supports the proposed scale of urban extensions but seeks clarification of the proposed housing mix, size and tenure, and how this will address housing needs across the housing market areas…” (Summary of Comments IV).

LBC then added that it “urges consideration be given to looking at all possibilities for extra growth near to Luton, including to the west, in order to help address Luton’s housing need” (Summary of Comments V – emphasis added). I cannot accept LBC’s submission that this paragraph raised the possibility of an alternative location for growth as opposed to an additional location for growth, additional to the urban extensions proposed in the draft strategy (as CBC submitted). There can be no doubt about the matter, given the unequivocal statement in paragraph 15 that “in addition to the proposed urban extensions contained within the Development Strategy, Luton Borough Council urges that consideration be given to looking at all possibilities for extra growth near to Luton, including to the west, in order to help address Luton’s housing need.”

Moreover in a concluding paragraph 26, LBC stated “there is much in the proposed draft strategy to be welcomed…of critical importance will be the phasing and delivery of planned urban extensions with supporting strategic infrastructure (A5-M1 link; Junction 11a; Woodside link;…)”. Paragraph 8 plainly stated that “these urban extensions are to be delivered by broadly the same strategic infrastructure investment envisaged by the withdrawn Core Strategy”, i.e. the road links to which I have already referred.

On 7 December 2012 LBC sent a further letter to CBC enclosing the same consultation response of September that year. LBC alleged that CBC had failed to address specific issues raised by LBC, leading to a suggestion for the first time that CBC might no longer be able to demonstrate the exceptional circumstances required to justify removing land from the Green Belt.

Following the submission of the HRN1 planning application to CBC on 24 December 2012, meetings took place between officers of LBC and CBC in February and March 2013 at which that application was discussed. In his witness statement Mr Trevor Holden, the Chief Executive of LBC, states that he was present at meetings that took place on 6 February and 20 March 2013. He says that LBC’s concerns regarding cross-border housing provision and the HRN1 application were discussed at those meetings. LBC stated that it would require affordable housing to be delivered on the HRN1 site. CBC responded that there were viability issues within that proposal which would lead to a reduction in the amount of affordable housing that could be provided. Mr Holden states that “I recall at both meetings that I and LBC officers asked that LBC be provided with the viability evidence to support any reduced affordable housing provision on the HRN1 applications site.” He does not suggest that CBC agreed to that request in those terms. Mr Christopher Pagdin, Head of Planning and Transportation at LBC, was also present at those two meetings. He states that LBC asked to “be involved in the viability appraisal work.”

On 12 February 2013 Mr Pagdin sent a letter to CBC stating that a “key issue raised at the Leaders/Chief Executives meeting on 6 February was whether Luton residents would have equal access to any affordable housing brought forward as part of any development in close proximity to Luton, including the Houghton Regis and the North of Luton Urban Extensions.” There was no suggestion in that letter that LBC had requested sight of a detailed viability appraisal or had been promised access to such material.

Following the meeting, on 28 March 2013 CBC sent a letter to Mr Pagdin which referred expressly to the meeting which had taken place on 20 March. Attached to the letter was the “Areas of Agreement” between the two authorities. The second topic was headed “Access to Affordable Rent Housing”. Under point 1 it was agreed that CBC would provide the opportunity for Luton residents to access up to 50% of affordable rent housing provided on the two strategic allocations planned for HRN and land North of Luton.

The only agreement in relation to viability material upon which LBC relies is point 5 under the same heading, which stated:

“CBC officers will arrange for LBC officers to be involved at key points in the viability appraisal work and subsequently to meet with the developers of the north of Houghton Regis strategic allocation, to discuss key issues including the opportunities to improve delivery of affordable housing on that site.”

On 15 April 2013 a report was prepared by officers of LBC for the Council’s Executive to provide its formal response to CBC’s pre-submission DS and also to the planning application on HRN1. Paragraph iii of the Summary of Comments set out Luton’s main concern. The Council wanted to ensure that the significant amount of development to be located close to the conurbation should be sustainable. That was said to be necessary for several reasons. “Firstly it needs to address the social needs for affordable housing within the conurbation as a whole as set out in the jointly commissioned Strategic Housing Market Assessment. Secondly it is needed in order to demonstrate under the duty to cooperate how this development will help to address the principle element of unmet need within Luton i.e. that of affordable housing. Thirdly unless these developments address the wider needs of the conurbation including affordable housing it is considered that it will not meet the criteria for removal from the Green Belt.”

To help put the matter into context, paragraph 11 of the Report recorded that over the planned period 2011-2031 it was likely that Luton would have a potential unmet housing need of around 4800 dwellings, and so a large proportion of that need should be met within CBC’s area. LBC were also seeking contributions from other neighbouring planning authorities.

Paragraph v of the Summary expressed LBC’s concerns as to the quantum of both convenience and comparison floor space proposed within the HRN1 application and suggested that it was significantly larger than would be appropriate for a development of this scale. The concern related to the potential for adverse economic impact upon nearby town centres.

In paragraph iv of the Summary LBC repeated the suggestion made in September and December 2012 that CBC consider accommodating additional growth to the west of Luton, but there is nothing in the text to indicate that LBC was now suggesting that this should be in substitution for HRN.

Paragraph viii of the Summary set out LBC’s stance. It objected to the HRN1 application unless three requirements were satisfactorily met, the second of which is no longer relevant in these proceedings. The other requirements were (a) “ongoing negotiations over access to up to 50% of affordable housing delivered in the urban extensions of Houghton Regis and North of Luton are successful and delivering a significant quantum of affordable housing for Luton’s residents” and (c) “the quantum of retail floor space to be catered within the Houghton Regis urban extension is significantly reduced.”

On 10 June 2013 LBC wrote to CBC stating:-

“I think we have made considerable progress in relation to a range of issues covering for instance affordable housing and transport issues and I understand we are waiting further viability work in relation to Houghton Regis (HR1) application before the discussions around affordable housing will continue.”

As CBC and IP pointed out, no concern was expressed by LBC at that stage about any failure by CBC to comply with any alleged promise to provide a viability appraisal.

On 15 August 2013 CBC wrote to Councillor Timoney, the Portfolio Holder for Regeneration and the Deputy Leader of LBC. The author referred to a meeting earlier that week on 11 August and sought to confirm the issues that had been discussed and how the two authorities might continue to move forward. The summary of the main issues discussed between the parties included the following:

“We provided you with an update of the scheme [i.e. the HRN1 proposal], an understanding of viability issues you must consider as part of the development and the main points being raised by officers in the report to development management committee on 28 August”.

The letter went on to make it plain that the planning application would be considered by the committee on 28 August and that papers for the meeting (i.e. the Officers’ Report) would be available on CBC’s website as from 14 August. In response to LBC’s suggestion that it might make further representations, the letter confirmed that although any such comments would arrive too late to be dealt with in the officers’ report, they would be presented to the committee if they arrived with CBC before the meeting. The letter explicitly set out the position on development viability in very clear terms (see ground 7 below).

In addition a further meeting had taken place on 5 August to discuss retail matters raised by LBC. The minutes of that meeting reveal that there was discussion of the retail assessment carried out by Barton Willmore, the developer’s consultant. Paragraph 6 of the minutes also made it clear that there was an opportunity to discuss the independent report commissioned by CBC from Turleys on the developer’s material.

Accordingly, from about the middle of August 2013 it was possible for LBC to consider the detailed report from officers which had been prepared for the committee meeting programmed for 28 August. There was ample opportunity for LBC to raise with CBC any matters about which it was concerned, including any lack of information or failure to take into account significant planning considerations.

A letter was indeed sent on behalf of LBC on 27 August, the day before CBC’s committee meeting. It is noteworthy that the letter was drafted with the benefit of Counsel’s advice. In summary, the letter referred back to the points put to CBC in LBC’s April 2013 representations and then went on to set out LBC’s “current position”. It is reasonable to suppose that this letter would have set out all of those matters which LBC considered to be particularly significant at that stage. In that context I note that at the foot of the second page the author acknowledged that CBC had undertaken “extensive viability assessments and negotiations which had resulted in the HRN1 applicants offering that 10% of the houses can be delivered as affordable within the scheme, along with a potential uplift mechanism in future years should the viability of the scheme improve.”

Despite the fact that Luton say that the current proceedings have been brought because they consider the amount of affordable housing provided by HRN1 for LBC’s area to be inadequate, it is significant that no complaint was raised at all in the letter of 27 August 2013 that CBC had failed to provide LBC with viability information or to comply with the promises it had made in that respect. No explanation has been given for that omission.

Under the heading “Current Position” the letter of the 27 August 2013 did make other points. First, the letter stated that the amount of affordable housing which would be made available to LBC by the development was inadequate, secondly the letter argued that the development would be making a disproportionately large contribution towards the costs of the A5-M1 link and went on to suggest that if a lower sum were to be paid then more money would be available for increasing the amount of affordable housing. The letter went on to raise for the first time a prematurity objection. It argued that the proposed development would be of such a scale that the soundness of the proposed allocation in CBC’s draft DS should be determined through the examination in public of that plan so as to avoid prejudicing scrutiny of HRN1 as part of CBC’s wider strategy and the outcome of that process. Not surprisingly, when the committee met on the 28 August they resolved to defer consideration of the application so that they could be advised in more detail about the merits of the objections recently made by LBC. That resulted in the production of September 2013 OR which was considered by the Committee when they reconvened on 4 September 2013.

It is of course axiomatic that a report of this kind should be read as a whole. The main report was a carefully structured analysis of the issues relevant to the planning application as the officers saw them. It is important to bear in mind when looking at any particular paragraph challenged that it is frequently interrelated with material which either precedes or follows it.

In this part of the judgment I will set out some of the key paragraphs in the August 2013 OR. In the General Introduction (page 7) it was stated that:-

“The proposal, and those that will inevitably follow it, will change the physical, social and economic environment for the residents of the conurbation and beyond by providing or being associated with major new road infrastructure, significant amounts of new housing, new employment floorspace, open spaces, community facilities, shopping floorspace and public transportation.

For that reason, it is important that Members consider carefully the process by which it reaches a decision. This report is structured to assist the Committee in reaching a clear and lawful decision, taking into account all of the matters that it must.”

There then followed an Executive Summary.

“(ii)

There has been a long history of promoting growth of the conurbation at Houghton Regis which originates with the principle of seeking growth points as sought by Government’s Sustainable Communities Plan in 2003, then specifically through the old Regional Spatial Strategy for the east of England, and the Milton Keynes South Midlands Sub Regional Strategy. This latter document of 2005 included the early recognition that there would be a need to consider the removal of the Green Belt to the north of Houghton Regis and Dunstable for this purpose. This included also the need for a strategic road to link the A5 to the M1 via a new Junction 11a. All subsequent local actions for delivering a local plan, including the publication of local planning documents and associated public consultation have been predicated on this history and has occurred after the publication of the current Development Plan for the area.

…

(iv)

…It is worthy of notice that there have been very few objections to the principle of development.

…

(viii)

There are a number of issues arising from the proposals that are key to a commercially viable development as proposed but are also of significant concern to the statutory consultees, Luton Borough Council or Council advisors. These issues are:

•

The amount of affordable housing that can be afforded by the development.

…

•

The relationship between the development, the A5 – M1 link road and the Woodside link.”

There then followed a section entitled “planning context and history” which included the following extracts.

“The application site has been identified as a site with the potential to accommodate sustainable mixed use development for a number of years. Regional Planning Guidance note 9 (2001) identified an area north of Luton/Dunstable/Houghton Regis, including the application site, as an area in which a mixed use urban extension should be brought forward as the most sustainable way of accommodating the bulk of housing development required in this area.”

Similarly the officer’s report referred to the sub regional strategy of 2005 “which proposed the area as a location for growth …” (emphasis added).

“The effect of the new RSS and the Milton South Midlands Sub Regional Strategy was to allocate the Houghton Regis Strategic Urban Extension (within which the application is located) for residential, employment and supporting community uses, in an area where the Green Belt was to be rolled back, albeit with the Local Development Strategy being asked to set the exact boundaries.

Towards that end, a Joint Planning Committee from Luton Borough Council, the former South Bedfordshire District Council and the former Bedfordshire County Council was formally created to deliver ‘The Luton and South Bedfordshire Joint Core Strategy’. This document reached Examination Stage in 2011 and included land to the north of Houghton Regis as an urban extension. Following the withdrawal of that document and the dissolving of the Joint Committee for unrelated reasons, the proposal is now included within the Development Strategy for Central Bedfordshire which will be submitted to the Secretary of State in the near future. That Development Strategy includes a specific policy for the allocation of the Houghton Regis SUE and for the removal of Green Belt to accommodate it.”

The next section of the report summarised in considerable detail representations made by consultees and others on the planning application. CBC’s Strategic Planning and Housing Team Leader made a number of pertinent points, including the following:

“The Joint Core Strategy for Luton and Southern Central Bedfordshire was endorsed for development management purposes by Central Bedfordshire Council’s Executive in August 2011 and still remains a material consideration. However, given the time that has elapsed since the endorsement and the progress now made on the Development Strategy, more weight should be given to the Development Strategy.”

“The circumstances that have led to this planning application being drawn up in advance of the plan-making process are understood. However, determining a planning application of this scale in advance of the plan-making process being completed should not be done lightly, if the integrity of the plan-led system is to remain. There would need to be significant benefits to the public interest to justify such a decision.

It is noticeable that there is no groundswell of public opinion against the proposal evident through the consultations on the Development Strategy and, indeed, this has been the case going back 7 or 8 years to previous Joint Committee consultations. Even objections to this proposal from the development industry have been relatively limited, with new sites being proposed in addition to, rather than instead of, Houghton Regis North.

The particular circumstances of this site mean it appears highly suitable for development, as set out in the Sustainability Appraisal report for the Development Strategy. Of particular note are the size of the site, its location adjacent to an area of high housing demand, its ability to deliver key road infrastructure to the benefits of the wider area and the relative lack of constraints. In my view, it is difficult to envisage a strategy to meet housing needs that does not include, in some form, development of this site. This should be considered in relation to the question of prematurity” (emphasis added).

The report then set out a list of “determining issues”, each of which was treated as a heading under which more detailed advice was given by officers to the Committee. The first subject was “compliance with the adopted development plan for the area”. Paragraph 1.3 set out gave advice which went to the very heart of the issues which the members had to determine:

“1.3

In respect of the Green Belt, policy GB2 confirms that the site lies within the Green Belt where no exception for major development is made. Significant weight should be given to this policy. Therefore the Committee will need to consider whether there are any very special circumstances for development of the site.

[The key issue of principle when considering the planning application is that as the proposed Houghton Regis North SUE allocation has not yet been formally confirmed in an adopted Development Plan, the application site has not yet been removed from the Green Belt. Therefore a key consideration in determining this application is whether the application is premature when read against policy GB2 in advance of the formal adoption of the replacement Development Plan. Then having considered that, whether there are very special circumstances that would support planning permission in advance of the adoption of the Development Strategy. It is a fact that the site lies in the Green Belt and so the planning application represents inappropriate development in the Green Belt. Therefore it should only be permitted if very special circumstances (VSCs) apply. This argument is presented in detail within Section 3 below.]”

The second subject was “Compliance with the National Planning Policy Framework”. After referring to the research carried out in the past in order to plan for the economic growth of the area (para.2.3), the report continued:

“2.4

The applicant has highlighted the economic advantages of the proposal within their Planning Statement submitted with the application. They point to the proposal providing 32 hectares of employment land, up to 130,500 sq m of commercial floorspace and additional jobs from retail, schools, leisure and recreation facilities and services. They expect in the region of 2,500 permanent jobs and a further 2,500 temporary construction jobs over the lifetime of the development.

2.5

Central Bedfordshire Council is proactively planning for the development needs for business by ensuring that sufficient land is allocated in the forthcoming Development Strategy for new employment use. This is being allocated on several new employment sites, but includes the express requirement that significant new employment provision is included within the Houghton Regis North proposed Urban Extension. This is balanced by the allocation of sufficient housing to not only reflect the anticipated growth in the area but also to offer new business and employment opportunities. The planning application provides for 32ha of new employment land as part of its proposals and therefore can be considered to comply with emerging Development Plan policy and the NPPF in this respect.

2.6

The significance of the investment that both local government, national government and from the applicants for this planning application are making to the delivery of the A5 to M1 Link Road and Junction 11a is substantial. This infrastructure is crucial to open up opportunities for business investment; not least within Dunstable where it will help to ameliorate the congestion in the town centre. The Woodside Link Road in turn will offer an alternative route for business traffic that is currently hampered by poor connections to the motorway network. Together, the A5-M1 Link Road and the Woodside Link Road, present the opportunity to encourage significant new business investment in the area.”

Paragraph 2.9 referred expressly to the advice which CBC had received from the independent retail consultant, Turleys, on the application of retail policy in NPPF. The attention of the members was specifically drawn to the following:

“3.

There is concern about the robustness of the applicant’s sequential approach where the applicant has not justified why there is no assessment of the ability of alternative sites to cater for retail provision.”

“4.

The council should balance the negative impacts of a retail development that diverts investment against the beneficial impacts of the overall development. Such benefits are a material consideration.”

Pages 59-61 of the officer’s report contained a careful assessment of the potential economic impact of the proposed retail floor space within the development. I record that no legal challenge is made to that part of the report.

Paragraph 2.18 of the report gave important advice to members. It reminded them that Green Belt policy is a fundamental policy within the NPPF. It pointed out that the proposal was for “inappropriate development” which is by definition harmful to the Green Belt and should not be approved except in very special circumstances. The policy from the NPPF was quoted:-

“When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. “Very special circumstances” will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.”

The report then directed members that this was the “primary decision” that the Council would need to reach before considering other material considerations and for that reason the issue was dealt with separately in the following section 3 of the report. Paragraph 3.1 of the report stated:

“3.1

The site subject of this planning application lies wholly within the approved Green Belt for the area. The proposed policy of the emerging Development Strategy suggests that the Green Belt in the area to the north of Houghton Regis and south of the proposed new A5-M1 link road is removed to make way for the proposed urban expansion. There is a substantial body of evidence developed through that process which has concluded that it is appropriate to remove the Green Belt designation to allow for the urban expansion within which the application is set. However, this policy is not yet in place. Therefore it falls to the Council to determine whether “very special circumstances” exist for this development to proceed.”

Paragraphs 3.2 – 3.7 then analysed the extent to which the proposals would cause specific harm to any of the five purposes of Green Belt designation. In summary, it was concluded that the proposal would not cause harm as regards prevention of coalescence, preservation of special character or the regeneration of urban land. As to checking the unrestricted sprawl of large built up areas, the members were advised that plainly the proposal was of a substantial size, involving the development of 262 hectares. On the other hand “it is not unrestricted in the sense that there is a substantial physical boundary within which it will be clearly contained: i.e. the approved line of the A5-M1 strategic link road. Whilst the Green Belt is harmed by the proposal in this sense, it is recognised that this new road will form a strong physical boundary against further sprawl to the north of Houghton Regis by its nature.” The key element of harm to Green Belt purpose was identified in paragraph 3.5 of the report in the following terms, “the area affected is of a pleasant open rural and rural fringe character though the landscape analysis of the site concludes that the area does differ in quality across the site. However, the proposal by reason of its scale will encroach upon the countryside and will be harmful as a result.” Paragraph 3.8 then stated:

“3.8

On the basis that there will be harm to the Green Belt by reason of the proposal’s impact through extending an urban area into the countryside, then it is necessary to determine what “very special circumstances” may exist that clearly outweighs that harm.”

Paragraph 3.9 advised the members on the sort of factors which could be considered to amount to very special circumstances. No criticism is directed to that paragraph. It is relevant to note the following advice which it contained, “the important point to bear in mind is that the substantial benefits must arise from the unique circumstances of the proposal or otherwise it could be repeated too often, to the long term, cumulative harm of the Green Belt.” Paragraph 3.10-3.20 set out in detail the officer’s analysis to whether very special circumstances existed in this case. In particular, paragraph 3.10 stated:

“3.10

The following are considered very special circumstances in favour of the application proposal:

(1)

There is a clear urgent need for development of land in the Green Belt in order to meet immediate housing and economic need for the area identified now and over the next 20 years;

(2)

Successive emerging Development Plans since 2001 have identified the application site as being suitable for removal from the Green Belt and allocation as a residential-led mixed use development. The abandoned Joint Core Strategy was not abandoned due to any disagreement between the joint Councils regarding this site. Its intended removal from the Green Belt and its allocation for residential and commercial development was supported by both councils at the Joint Planning Committee.

(3)

The emerging Central Bedfordshire Development Strategy re-affirms the Houghton Regis North allocation for removal from the Green Belt and development for an urban extension of Houghton Regis to meet urgent need.

(4)

CBC has shown its continued commitment to the development of Houghton Regis through the production of the Houghton Regis North Framework Plan 2012, adopted for Development Control purposes in advance of the adoption of the emerging Development Strategy.

(5)

The planning application will directly fund a £45m contribution towards the costs of the M1-A5 link road, which is identified in the Chancellor’s Autumn Statement 2012 as a key infrastructure project for the nation.The funding contribution enabled by this development and delivery of the A5-M1 Link will generate a substantial amount of economic benefit to the wider area.

(6)

No formal Local Plan has been adopted since 2004, despite the clear continuing identification of the site in replacement planning policy documents. If subsequent Development Plan documents had reached adoption stage, then the application site would have been allocated for residential development and removed formally from the Green Belt. Delaying a decision or refusing the planning application on Green Belt grounds until the adoption of the Development Strategy and the formal confirmation of the planning allocation in the Development Plan will serve no good purpose, other than to delay much needed housing and employment opportunities for the area, and set back the delivery of the M1-A5 link Road and Junction 11a works to the M1 that is concerned a nationally important infrastructure project” (emphasis added).

In paragraph 3.11 members were reminded that in October 2012 the Secretary of State for Transport had published an interim decision letter confirming that he was minded to approve proposed A5-M1 link road. The Secretary of State had made it clear, however, that the final decision would be issued as and when a planning permission for the proposed development at HRN1 was issued so as to secure the remainder of the funding required to deliver the link road. Paragraph 3.12 adopted the reasoning of the Inspector at the link road inquiry as to why there were very special circumstances to justify that scheme. The officer then advised on the implications of the link road for the merits of the HRN1 application:

“3.13

This strategic link road adjoining the development is a unique feature. The benefits of the new strategic road have been recognised through a separate process of formal application, Public Inquiry and decision making at a national level. The achievement of those benefits is directly linked to the delivery of this application. It is considered that this is a very special circumstance which outweighs the identified harm to the Green Belt.”

Paragraphs 3.14 - 3.16 explained why the scheme’s promotion of economic growth should also be treated as forming part of very special circumstances:

“3.14

The scale of the development proposal offers an opportunity for economic growth on a variety of fronts. Economic growth is a national objective, a priority of the Government and is an important material consideration set out in the National Planning Policy Framework. The proposal includes the provision of a substantial amount of new employment land and in particular the opportunity for firms to take advantage of the infrastructure assets unique to its location: new and fast access to the motorway network, new bus links via the Guided Busway project which is to be completed in September 2013, fast links to an international airport and on a scale that offers new opportunities to boost the local economy through the substantial new growth in spending as new families and businesses locate in the area.

3.15

This anticipated economic growth on this scale of development proposed is not unique in a national context, but neither are such large scale development proposals common. The proposal will certainly have a regional significance boosting construction, new opportunities for business expansion and creation, new national distribution opportunities and creating new consumer demand. In respect of the local economy, there will be more opportunities for employment in an area in which there is a particular need.

3.16

It is considered that the potential for this development to assist in providing economic growth opportunities on a large scale is itself a very special circumstance. It is further considered that the scale of the proposal offers sufficient benefits to substantially outweigh the harm caused to the Green Belt in this location.”

Paragraphs 3.17-3.18 of the report explained why the proposal’s contribution to meeting housing needs in the area, including needs arising within Luton Borough, also contributed to very special circumstances:

“3.17

The evidence underlying the proposed Central Bedfordshire Development Strategy (and the planning history beforehand) underlines the clear need for a substantial growth in housing in this area and is referred to elsewhere in this report. That need is identified as 28,700 homes over a plan period up to 2031. It is a need of a scale that has resulted in proposals for three major urban extensions totalling some 13,500 dwellings in addition to that sought from other sources. This development proposal forms a significant part (5150 dwellings) of that proposed provision.

3.18

In the face of this substantial need, which arises not only from within the Central Bedfordshire area but also from its neighbour, Luton Borough, it is appropriate for the Committee to decide that the ability of the application to deliver a substantial portion of the required housing and its accompanying requirement for infrastructure is a very special circumstance. Bearing in mind that the evidence underlying the Council’s proposed Development Strategy concludes that a release of Green Belt land is appropriate then it is also appropriate to take the view that the ability to address an identified need by means of the application proposals substantially outweighs the harm caused to the Green Belt.”

Paragraph 3.19 then dealt with other proposed uses within the development including community buildings, public open space, and leisure facilities. It was clearly stated that those elements should not be considered as providing benefits sufficiently substantial as to amount to a very special circumstance.

The overall conclusion to section 3 of the report read:

“3.20

In conclusion, whilst it is acknowledged that the proposals could be considered to be harmful to the Green Belt by encroaching upon the countryside, it is also considered that the historic strategic planning policy context, the delivery of the A5-M1 strategic road, the significant economic growth potential for the area and the well evidenced and substantial housing need are all sufficient, “very special circumstances” to outweigh any harm caused.”

Section 4 of the officer’s report dealt with the Luton and South-Central Bedfordshire Joint Core Strategy. The report recognised the circumstances in which this plan had been withdrawn in 2011 and advised that although that strategy together with the regional planning policies had fallen by the wayside, the underlying evidence base continued to support a growth agenda for Luton, Dunstable and the Houghton Regis area. Thus, on 23 August 2011 CBC endorsed the former Joint Core Strategy for development/management purposes and had incorporated the majority of the work already undertaken on within the emerging Central Bedfordshire DS. Paragraph 4.4 of the report is of some importance when considering criticisms made by the Claimant:

“4.4

The Committee could reasonably give some weight to the fact that the current proposal complies with the policies contained in the L&SCB JCS document in that it proposed the allocation of land at Houghton Regis North for Urban Extension and is based upon a history of policy development to that end. It is within that area that this planning application lies” (emphasis added).

Section 5 of the officer’s report advised members on how they should approach the pre-submission version of CBC’s DS. Paragraph 5.1 reads:

“5.1

The Central Bedfordshire Development Strategy document is at a stage of production where it is ready to be submitted for Examination. At this stage, the weight given to the document is significant and greater than the L&SCB Joint Core Strategy. Once submitted, it would supersede that document. However, until it is formally adopted, the National Planning Policy Framework should carry greater weight.”

Paragraph 5.32 summarised the application of policy 60 of the DS to the planning application. It stated that the application had been designed to align closely to the details of the policy so that it was “broadly compliant with it”. Paragraph 5.33 then advised that greater weight should be given to the policies of the draft DS than the adopted South Bedfordshire Local Plan Review 2004. A major reason for that conclusion was that, self-evidently, the 2004 plan substantially pre-dated the NPPF, whereas the DS had been prepared so as to accord with the NPPF.

“5.34

The planning application conforms closely to the policy direction that the Council wishes to go and explicitly delivers a major part of the urban extensions at Houghton Regis that the Council considers to be a key part of its Development Strategy.

5.35

Taking all of the above policy analysis in previous sections into account, the Committee is advised to give substantial weight to the pre-Submission Development Strategy for Central Bedfordshire with the exception of retail policy 12 and parking policy 27 (which will need correcting). The reason is that the Development Strategy has been written to be in accordance with national planning policy set out in the National Planning Policy Framework 2012.

5.36

The Committee will recognise that this “weighting” appears not to give the Development Plan primacy when making a decision on a planning application. However, this is because in the Case Officer’s opinion, the current adopted Development Plan is not up-to-date sufficiently to deal with the planning application as submitted or to comply with the NPPF.”

Section 8 of the officer’s report addressed issues arising from the Environmental Impact Assessment. Paragraphs 8.14-8.23 dealt with the subject of Affordable Housing. Paragraph 8.17 of the report stated that from the outset that the developer had been clear that because of challenging economic conditions and exceptional costs applicable to the development, its viability had been affected “to the extent that the full expectations for affordable housing cannot be delivered.” The accuracy of paragraphs 8.19 and 8.20 has not been challenged in these proceedings:

“8.19

However, as part of the original Luton and South Bedfordshire Joint Committee, both LBC and CBC will have been aware that the delivery of the substantial growth sought by both Councils was dependent on the delivery of a substantial amount of costly infrastructure. Both will also have been aware of the “Infrastructure Delivery Plan and Funding Study commissioned by both Councils and undertaken by AECOM which was completed on October 2010. The study determined that given the overall scale and spatial allocation of infrastructure required across Luton and southern Central Bedfordshire that there was going to be a significant infrastructure deficit and an understanding that his was likely to cause viability issues for whichever large scale urban extension was being considered around the Luton/Dunstable/Houghton Regis conurbation.

8.20

CBC, through its individual efforts and with the co-operation of the developer and the Department of Transport, has sought to secure one of the most significant and necessarily expensive infrastructure projects, the A5-M1 link. This adds to the understanding that there will be an impact on the likely amount of affordable housing that can be obtained from this particular development.”

The assessment of the amount of affordable housing that could be provided both as a minimum and as part of the uplift mechanism was dependent upon the viability appraisal work undertaken by the developer and reviewed by the CBC’s independent consultants, E C Harris. The planning application submitted on the 24 December 2012 had been accompanied by a Viability Statement (para. 9.9). The financial information underpinning the conclusions of the viability appraisal work was commercially confidential, for the reasons explained in a letter dated 5March 2013 sent to CBC by the Applicant’s legal advisor. The officer’s report made it plain that that letter had been publically available on the Defendant’s planning application file (para. 9.8). I return to this part of the report when considering Ground 7 of the challenge.

The conclusions of the report were set out in section 11:

“11.1

The application proposal is for the larger part of the Houghton Regis Urban Extension which is in turn part of the larger strategy for providing significant urban extensions to accommodate much needed additional housing and employment growth in the area. Much of that growth is being planned for in urban extensions not just here, but also at Leighton – Linslade and to the North of Luton. The application proposal is therefore a critical part of a larger strategy to provide not only significant growth within Central Bedfordshire but to accommodate the needs of a growing conurbation including Luton, Dunstable and Houghton Regis.

11.2

The balance to be struck in considering this application, involves the competing demands of commercial viability, loss of Green Belt, need for housing, the clear national priority for economic growth, landscape and ecological protection, urban regeneration, providing community facilities for a healthy population and meeting the Council’s stated priority of delivering a major new strategic road of national significance. All in a context of reducing public services and public financial support.

11.3

It is considered that the scheme is insufficiently financially viable at present to afford the full requirements for affordable housing and the full package of mitigation. However, the mitigation package suggested above is still extremely significant and has been shaped by reference to identified local priorities. The work undertaken with the applicant’s representatives has been conducted in an informed and conscious way to achieve the mitigation package and review/uplift mechanism which both parties believe best reflects local priorities. For example, the approach to the provision of green infrastructure, the forward funding (£45m) of the A5-M1 link road and new M1 junction before significant development is achieved all reflects local priorities. The application has been the subject of extensive consultation with a significant majority or responses not objecting in principle or positively supporting the proposals.

11.4

The Committee will wish to take into account that the planning application has been submitted in advance of the adoption of the Development Plan, in which the site is an allocated strategic development site proposed for removal from the Green Belt. However, it should also be recognised that the now revoked Regional Spatial Strategy for the East of England and the withdrawn Joint Core Strategy both identified the site as being suitable for removal from the Green Belt in order to help meet housing and employment need. The evidence base shows there is nowhere else more suitable for the growth to go. In considering the very special circumstances in relation to development in the Green Belt, it is concluded that the tests have been met. It assists in delivering the A5-M1 link road. It is recognised that the planning application is critical locally, regionally and nationally in helping to boost much needed housing, infrastructure provision and economic investment.”

A great many of LBC’s grounds involve criticisms of the officers’ reports to CBC’s committee. Accordingly, it is necessary to refer to the legal principles which govern challenges of this kind. I gratefully adopt the summary given by Mr Justice Hickinbottom in the case of The Queen (Zurich Assurance Ltd trading as Threadneedle Property Investments) -v- North Lincolnshire Council [2012] EWHC 3708 (Admin) at paragraphs 15-16.

“15.

Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. With regard to such reports:

(i)

In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.

(ii)

When challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently:

"[A]n application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken" (Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ as he then was).

(iii)

In construing reports, it has to be borne in mind that they are addressed to a "knowledgeable readership", including council members "who, by virtue of that membership, may be expected to have a substantial local and background knowledge" (R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500, per Sullivan J as he then was). That background knowledge includes "a working knowledge of the statutory test" for determination of a planning application (Oxton Farms, per Pill LJ).

16.

The principles relevant to the proper approach to national and local planning policy are equally uncontroversial:

(i)

The interpretation of policy is a matter of law, not of planning judgment (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13).

(ii)

National planning policy, and any relevant local plan or strategy, are material considerations; but local authorities need not follow such guidance or plan, if other material considerations outweigh them.

(iii)

Whereas what amounts to a material consideration is a matter of law, the weight to be given to such considerations is a question of planning judgment: the part any particular material consideration should play in the decision-making process, if any, is a matter entirely for the planning committee (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780 per Lord Hoffman).”

I would also draw together some further citations:

“[The purpose of an officer’s report] is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large but to council members, who, by virtue of that membership, may be expected to have substantial local and background knowledge. There would be no point in a planning officer’s report setting out in great detail background material, for example in respect of local topography, development plan policies or matters of planning history if the members were only too familiar with that material. Part of a planning officer’s expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail.” (per Sullivan J in R v Mendip DC ex p Fabre (2000) 80 P&CR 500 at 509).

In R (Siraj) v Kirkless MBC [2010] EWCA Civ 1286 Sullivan LJ stated at para. 19:

“It has been repeatedly emphasised that officers' reports such as this should not be construed as though they were enactments. They should be read as a whole and in a common sense manner, bearing in mind the fact that they are addressed to an informed readership, in this case the respondent's planning subcommittee”

In R (Maxwell) -v- Wiltshire Council [2011] EWHC 1840 (Admin) at paragraph 43 Sales J (as he then was) stated:

“The Court should focus on the substance of a report of officers given in the present sort of context, to see whether it has sufficiently drawn councillors’ attention to the proper approach required by the law and material considerations, rather than to insist upon an elaborate citation of underlying background materials. Otherwise, there will be a danger that officers will draft reports with excessive defensiveness, lengthening them and over-burdening them with quotations of material, which may have a tendency to undermine the willingness and ability of busy council members to read and digest them effectively.”

In Morge v Hants CC [2011] UKSC 2; [2011] PTSR 337 at [36] Baroness Hale of Richmond said:

“ … in this country planning decisions are taken by democratically elected councillors, responsible to, and sensitive to the concerns of, their local communities. As Lord Hoffmann put it in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 , para 69: “In a democratic country, decisions about what the general interest requires are made by democratically elected bodies or persons accountable to them.” Democratically elected bodies go about their decision-making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job, and not the court's, to weigh the competing public and private interests involved.”

In R (Bishops Stortford Federation) v East Herts DC [2014] PTSR 1035 Cranston J held at paragraph 40:

“The courts have cautioned against undue judicial intervention in policy judgments by expert tribunals within their areas of special competence (see AH (Sudan) v Secretary of State for the Home Department (United Nations High Comr for Refugees intervening) [2008] AC 678 , para 30, per Baroness Hale of Richmond), and this reticence has been applied to considering the decisions of planning inspectors on issues of planning judgment: see Wychavon District Council v Secretary of State for Committees and Local Government [2009] PTSR 19 , para 43, per Carnwath LJ. Arguably, the same applies to experienced planning committees with their training and codes of conduct.”

A number of the issues raised by LBC in these proceedings were not mentioned in its representations to CBC (e.g. the application of the sequential test). However, LBC correctly makes the point that that does not alter LBC’s standing or entitlement to bring a claim for judicial review to quash the planning permission relying on such matters (see Kides v South Cambridgeshire D.C. [2003] 1 P & CR 19 at para 132-134). LBC has a genuine interest in obtaining the relief sought.

However, the principle in Kides does not detract from the principle laid down in Fabre, Oxton and related authorities as to the approach to be taken to a judicial review of a local authority’s decision to grant planning permission on the basis of an officer’s report to committee. It is primarily the function of the officers to judge which issues to address in the report and which to omit, as well as the depth to which any issue included in the report is explored and the amount of information supplied. Quite apart from the Kides issue of standing, there is a separate and crucial question for the Court to determine, namely whether the officer’s report can be said to have been defective because it was significantly misleading, applying the tests in Oxton and Fabre. On that aspect a failure by parties to raise an issue in their representations to the local planning authority may be highly material, if not determinative, unless that issue was one which the legislation required the authority to take into account in any event (e.g. the statutory development plan - see section 70(2) of the Town and County Planning Act 1990 and R (St James’s Homes Ltd) v Secretary of State [2001] EWHC Admin 30; [2001] PLCR 27)).

I should also refer to the decision of the Court of Appeal in R v Secretary of State for the Environment ex parte Powis [1989] IWLR 584 in which the Court of Appeal held that in general judicial review is to be conducted by reference to the material which was before the decision-maker at the time of his or her decision and without regard to fresh evidence. That principle is subject to exceptions, including evidence on whether or not a procedural error has been committed, such as a breach of a legitimate expectation.

Mr Village QC grouped these four grounds under one heading as misdirections by CBC.

In summary, LBC submits that CBC failed to take into account paragraph 83 of the NPPF, or to apply that paragraph when dealing with the issue of whether the grant of planning permission would be premature prior to the completion of the examination of the draft DS (the “prematurity” issue). In effect the officers’ report acknowledged that a permission for HRN1 would result in the site being removed from the Green Belt in any future review of Green Belt boundaries (paras 3.1 and 11.4) LBC also relies upon paragraph 12 of the Secretary of State’s decision letter dated 30 September 2014, adopting paragraph 4.111 of the Examining Authority’s report.

In so far as is material paragraph 83 of the NPPF provides:-

“…Once established Green Belt boundaries should only be altered in exceptional circumstances through the preparation or review of a local plan.”

LBC submits that paragraph 83 requires the removal of a site from the Green Belt to be dealt with solely through the local plan process so that the relevant issues can be examined by an independent Inspector. It is however important to note that Mr Village very fairly accepted that he was relying upon a policy principle, rather than a legal rule. He nevertheless submitted that paragraph 83 contains an “injunction” to local planning authorities to deal with the matter through the preparation and adoption of a local plan and criticised the officer’s report, in particular paragraph 3.10(6), for failing to draw the attention of members to that “injunction” (or more accurately policy requirement). He added that the effect of CBC’s decision had been improperly to circumvent its duty to co-operate with LBC under section 33A of the 2004 Act in relation to strategic development proposals. He said that the report had therefore “significantly misled” the Committee, applying the Oxton test.

CBC and the IP submit that there was before the local planning authority a planning application which it was statutorily obliged to determine. Paragraph 83 of the NPPF could not override that duty. It relates to the authority’s plan-making function, rather than to its development management role. In the latter situation, paragraphs 87 and 88 of the NPPF are apposite: “inappropriate development” should not be permitted in the Green Belt unless “very special circumstances” are demonstrated which clearly outweigh any harm. The IP submits that those paragraphs are not disapplied simply because a proposal involves large scale development. The duty to co-operate applied to CBC’s plan-making function and does not require development management decisions to be put on hold whilst the plan-making process is completed.

In my judgment there can be no doubt that CBC was under a duty to determine the HRN1 application according to paragraphs 87 to 88 of the NPPF. Paragraph 83 is directed to the review of Green Belt boundaries through the local plan process and therefore was not directly in play.

However, it does not follow that paragraph 83 is incapable of being relevant in the determination of a planning application. It may be material where the decision-maker is considering whether the proposal should be refused on the grounds of prematurity. All parties agreed that at the time of the decision the relevant material policy on prematurity was contained in the Planning Practice Guidance (“PPG”) (which is broadly to the same effect as earlier guidance). The PPG suggests that prematurity is unlikely to constitute a reason for refusal of planning permission unless (inter alia):-

“the development proposed is so substantial, or its cumulative effect would be so significant, that to grant permission would undermine the plan-making process by predetermining decisions about the scale, location or planning of new development that are central to an emerging Local Plan.”

In applying that guidance, paragraph 83 of the NPPF may be a material consideration. In the circumstances of a particular case, a planning authority might judge that the release of a site from the Green Belt by the grant of planning permission would be premature because it would pre-empt decisions which ought to be taken through a review of Green Belt boundaries, in order to prevent the plan-making process from being undermined.

In the present case the real issue is, applying Oxton and Fabre, to what extent was it necessary as a matter of law for the officers’ reports to refer to the policy principle in paragraph 83 of the NPPF. For that purpose it is very relevant to consider the way in which the issues were presented to CBC by LBC and others. Even in its last minute representations of 27 August 2013, LBC made no reference to the principle in paragraph 83, even though at that stage it raised a prematurity objection for the first time (and the letter was “endorsed” by Counsel). The “paragraph 83” point was not raised by LBC until after LBC had decided to grant planning permission, namely in its letter dated 7 October 2013 requesting the Secretary of State to call in the application for his own determination. Even then, prematurity was only raised in a generalised manner, without any real attempt to explain specifically why a release of the site should only be dealt with through the plan-making process (see also the Secretary of State’s reply dated 30 January 2014 refusing to call in the decision). The suggestion in the Claimant’s Skeleton that the application of paragraph 83 of the NPPF was linked to compliance with CBC’s duty to co-operate under section 33A was not raised at that stage.

LBC has not suggested that “paragraph 83” arguments were raised by other parties to any substantial extent, or even at all.

When seen in this context, I am satisfied that the officer’s report (and consequently CBC’s decision) cannot be faulted as a matter of law under ground 1. First, the reports did address the prematurity issue in sufficient depth. The importance of the issue was explained in the comments of the Strategic Planning and Housing Team Leader at page 49 and in para. 1.3 of the August 2013 OR. The September 2013 OR for the adjourned Committee meeting on 4 September 2013 specifically addressed the prematurity points raised in LBC’s letter of 27 August 2013. The contrary is not suggested. The officer referred to the “pressing need” for the proposed housing and infrastructure and the previous support of LBC for development in this location. The members were advised on the policy guidance relied upon by LBC and they concluded that the grant of permission would not unacceptably prejudice the emerging development plan and that it would be inappropriate to delay approval to the scheme. Those were properly matters of judgment for CBC.

Second, paragraphs 3.1, 3.10(6), and 11.4 show that, in any event, CBC had well in mind the policy principle that ordinarily a Green Belt boundary is only reviewed through the local plan process. Given the context I have already summarised, as well as the principles laid down in Oxton and Fabre, there was no requirement for CBC to go further into the application of paragraph 83 of the NPPF. There was nothing misleading about the reports to Committee in this respect. Accordingly, I reject ground 1.

I think it would be helpful to consider ground 4 next.