So Much for Luton’ Terror Tactics – Key DTC Test Case

Planning resource

A Home Counties council has launched a legal challenge against a neighbouring authority’s decision to approve a 5,000-home urban extension, arguing that it failed to meet the Duty to Cooperate and unlawfully re-drew green belt boundaries.

Luton Borough Council has applied for a judicial review to overturn the decision by Central Bedfordshire Council to give the green light to the extension, to the north of the town of Houghton Regis.

Central Bedfordshire Council approved the outline application, which proposes up to 5,150 homes and more than 200,000 square metres of retail and industrial space across 260 hectares of mostly farming land, on 2 June.

Luton Council claims that Central Bedfordshire did not comply with the Duty to Cooperate, a legal requirement under the Localism Act which means authorities have to continuously engage with neighbours on cross-border strategic issues such as housing.

It also argues that Central Bedfordshire has unlawfully re-drawn green belt boundaries in approving the application, a process that should be carried out in the local plan process.

A further ground of challenge is that Central Bedfordshire failed “to assess lawfully or at all the sequential test for the [scheme’s] retail proposals”.

In a statement, Luton Council confirmed that “on 8 July it started proceedings for a judicial review of Central Bedfordshire Council’s decision to grant planning permission for a major urban extension to the north of Houghton Regis comprising approximately 5,000 homes and employment uses including considerable volumes of retail and retail distribution floorspace”.

It added: “Luton contends that the application has not been determined correctly, specifically:

• That in accordance with national guidance, the alteration of greenbelt boundaries should have been brought forward through Central Bedfordshire’s plan-making process rather than through the determination of a planning application
• That the application has undermined Central Bedfordshire’s Local Plan by predetermining a number of significant issues
• And that in determining the application, Central Bedfordshire Council has failed in its duty to cooperate with its neighbouring authority, especially given Luton’s very significant need for new housing and especially affordable homes which it cannot deliver within its own boundaries.”

Jason Longhurst, director of regeneration and business at Central Bedfordshire Council, said: “Luton Borough Council have lodged papers with the High Court, challenging Central Bedfordshire Council’s decision to approve the planning application for development to the north of Houghton Regis.

“The first stage requires a formal response to the grounds cited by Luton as forming the basis of their ‘challenge’ and the council’s legal representatives are working on our response at the moment.

“It would be inappropriate for us to comment further or speculate ahead of any decision.”

Luton has long complained about the fact that it cannot meet its own housing need but neighbouring authorities are unwilling to take the extra homes.

In January, communities secretary Eric Pickles accused Luton of “terror tactics” and “trying to bully North Hertfordshire council” to take its extra homes.

Pickles’ comments were prompted by a question from Gavin Shuker, the Labour/Co-op MP for Luton South, asking how the borough should respond to the fact that, up to 2030, it needs about 30,000 new homes but can only build about 6,000 within its own boundaries.

In response to Pickles’ comments, Luton Council said: “The idea that Luton is not actively engaging with its neighbours to address its unmet housing need is completely incorrect”.

Of course the background here is that Luton wants west of Luton and Central Beds does not.  None the less the challenge is curious as under the now defunct joint plan North of Houghton Regis was down for major expansion, and has an approved development brief for 7,000 dwellings, and th eneed for Wet of Luton arose because of even from this an underestimation of OAN which led to West of Luton.  Curious they are not mutually exclusive.   At first sight it appears to breach the ‘very special circumstnaces’ test.  However noone is putting forward an laternarive relaistic plan which does not involve north fo Houghton Regis, so in those circumstances an advanced draft allocation is material and surely can be ‘very special’ circumstances as well as ‘exceptional’circumstances. The application was approved on 4th Sept 2013 by Central Beds and referred to the SoS who has declined to intervene.  The challenge stands no real chance of success mixing up plan making tests with DM ones.