Council loses in Court of Appeal over permission by neighbour for urban extension

Luton Borough Council has failed in a Court of Appeal challenge to a neighbouring authority’s decision to grant planning permission for an urban extension in the Green Belt.

Central Bedfordshire Council granted permission on 2 June 2014 to the Houghton Regis Development Consortium for the extension on 262 hectares of land on the Houghton Regis North Site 1.

Luton, which is unable to find land within its own administrative area to meet all of its housing needs, brought judicial review proceedings as it wanted to secure a higher minimum level of affordable housing.

It advanced ten separate grounds – including ones related to the Green Belt, the sequential test for town centre uses, the approach to the emerging development plan and alternative sites and strategies – but the High Court rejected the challenge in December 2014.

Permission to appeal to the Court of Appeal was granted on each of the grounds.

However, the Court of Appeal unanimously dismissed the appeal at a hearing on 6 May. The court will give its reasons later.

Saira Kabir Sheikh QC of Francis Taylor Building acted for Central Bedfordshire in the High Court and Court of Appeal.

Central Bedfordshire’s Planning Lawyer, Andrew Emerton, said: “I would echo the words of Councillor Nigel Young who said, ‘we received a very favourable decision on 6 May but we will comment further after we received the judgment.’

“However, the most notable aspect of this appeal hearing is that it was listed for two days but dismissed on the first without the Court of Appeal Judges wishing to hear representations from Central Bedfordshire Council’s barrister. This emphasised the robustness of Justice Holgate’s decision in the first instance, which Central Bedfordshire fully supported.”

A spokesperson for Luton said the council was very disappointed with the outcome of its Court of Appeal challenge.

“The fundamental issue at stake throughout this process has been to get Central Bedfordshire Council to fulfil its duty to cooperate in the preparation of a strategy to address Luton’s very significant unmet housing need over the next 15 to 20 years,” they said.

“As Luton is the key provider of jobs in the area, but does not have space to provide the housing it requires, we therefore need to work more closely across local authority boundaries to deliver Luton’s unmet housing need and employment opportunities for the benefit of the sub-regional economy.”

The spokesperson said the Court of Appeal’s decision was a landmark one with reference to the duty to co-operate which had national considerations.

“We already know that Government inspectors have found Central Bedfordshire’s Local Plan to be unsound,” they said.

Luton would need to consider what action it took next, the spokesperson added. In the meantime it will reiterate its request for Central Bedfordshire to agree to mediation around Luton’s unmet housing need.

“Luton and Central Bedfordshire have agreed in principle that Luton would get access to 50% of any affordable housing which is brought forward in the urban extensions to the north of the town,” the spokeperson said.

“However, given the changes to the details of the HRN1 urban extension over the last couple of years, what was expected to deliver around 25 to 30% of the houses as affordable will now only deliver about 10% affordable housing.

“This is a long-term issue, which will affect generations to come. We were challenging this change of approach because for approximately the cost of one house Luton potentially stood to have access to hundreds of much-needed affordable homes.”