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

In reviewing a planning permission, the court reads the officers’ report fairly and as a whole, recognising that it is addressed to an informed planning committee. Judicial review does not permit the court to substitute its planning judgment for that of the local authority.

Green Belt policy requiring boundary changes through a local plan may be relevant to prematurity, but does not prevent a planning authority determining an application under the policy requiring very special circumstances. Alternative sites are ordinarily discretionary considerations unless legislation, policy or irrationality makes them necessarily material. A mixed-use Green Belt proposal may be assessed holistically. Failure of the sequential retail test does not automatically require refusal where other material considerations outweigh it. Commercially confidential viability material need not be disclosed absent a sufficiently certain promise and material procedural prejudice.

Central Bedfordshire Council granted outline planning permission for a substantial mixed-use urban extension on Green Belt land at Houghton Regis, including up to 5,150 dwellings, employment, retail, community uses and infrastructure. The permission was supported by a section 106 obligation, including a minimum of 10% affordable housing subject to an uplift mechanism.

Luton Borough Council, an adjoining planning authority with unmet housing needs, sought judicial review. It alleged errors concerning Green Belt policy, prematurity, emerging plans, alternative sites and strategies, very special circumstances, confidential viability material, and the sequential retail test. The claim was heard as a rolled-up hearing.

1. Disposition. Permission to apply for judicial review was granted on all grounds for procedural convenience, but the claim was dismissed. Grounds 6, 8, 9 and 10 were wholly unarguable. Permission to appeal was refused. A costs order of £7,000 was made in favour of the interested party for the relevant part of its acknowledgement of service.
2. Officers’ reports and planning judgment. The report had to be read fairly as a whole and in the context of an informed committee readership. The court should not subject it to statutory exegesis. The report was not significantly misleading. The weight given to the emerging Development Strategy, and the balance between Green Belt harm and the scheme’s benefits, were matters of planning judgment. The expression “substantial weight” had no fixed numerical meaning.
3. Green Belt and prematurity. Paragraph 83 of the National Planning Policy Framework concerned Green Belt boundary review through plan-making. It was not directly applicable to the development-management decision, which was governed by the very special circumstances policy. It could nevertheless be material to prematurity. In this case the reports sufficiently addressed prematurity and recognised the relevant plan-making context.
4. Alternative sites and strategies. Alternative sites were not ordinarily mandatory considerations. They became legally necessary only where required expressly or impliedly by legislation or policy, or where their omission was irrational because they were obviously material. No such obligation arose here. The authority was also not under a separate duty to consider whether to examine alternative sites. The proposed reduction in infrastructure funding had been addressed; the suggested retail substitution had not been raised as an alternative strategy and did not require separate assessment.
5. Very special circumstances. The authority was entitled to assess a mixed-use proposal in the round. The NPPF did not require the proposal to be divided into separate components, with the very special circumstances test applied independently to each use. The strategic road, economic growth and substantial housing provision, considered cumulatively, were capable of clearly outweighing Green Belt harm. Unmet housing need alone would not have sufficed.
6. Viability information. The agreement to involve Luton officers at “key points” in viability appraisal work did not create a sufficiently certain legitimate expectation that confidential financial material would be disclosed or that representations would be received on it. Procedural fairness had to protect the developer’s commercial confidentiality as well as other interests. No material prejudice was shown, particularly as Luton knew the substance of the viability position before the committee decision and did not object at the time.
7. Sequential test. Failure to satisfy the sequential test did not make refusal inevitable. The authority could attach greater weight to other material considerations. The officers’ reports directed the committee to balance the retail shortcomings against the wider benefits, and the decision notice’s statement that the proposal complied with the NPPF did not establish compliance with every individual policy.

This was a first-instance judicial review in the Administrative Court. Permission to apply was granted on all grounds at the rolled-up hearing, but the claim was dismissed. Permission to appeal to the Court of Appeal was refused.