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

A planning authority may permit development within the Green Belt while a parallel local-plan process proposes altering the Green Belt boundary. Paragraph 83 of the National Planning Policy Framework does not require the boundary to be changed first. Permission may be granted if the more stringent test in paragraphs 87–88 is satisfied: harm to the Green Belt must be clearly outweighed by other considerations amounting to very special circumstances.

The weight given to an emerging plan is a matter of planning judgment, informed by its stage of preparation, unresolved objections and consistency with national policy. Alternative sites or strategies must be considered where legislation or policy requires it, where they are obviously material, or where disregarding them would be irrational.

Central Bedfordshire Council granted outline planning permission for a major mixed development on land within the Green Belt. The permission was supported by a section 106 agreement providing infrastructure contributions and affordable housing. Luton Borough Council challenged the permission because it considered the affordable-housing provision inadequate and contended that the decision was premature.

Holgate J dismissed the judicial review claim in [2014] EWHC 4325 (Admin). On appeal, Luton Borough Council argued that the authority had misapplied national Green Belt and emerging-plan policy, given excessive weight to its draft Development Strategy, failed to consider alternative sites and development strategies, and inadequately addressed sequential testing for town-centre uses. It also challenged the costs awarded to the interested parties.

1. Appeal dismissed. Paragraph 83 of the National Planning Policy Framework governs alteration of Green Belt boundaries through the local-plan process. It does not require a boundary to be altered before planning permission can be granted for development within the Green Belt. Paragraphs 87–88 separately permit such development where very special circumstances exist. That test is stricter than the exceptional-circumstances test applicable to alteration of boundaries. The planning committee had been properly advised about the stricter test and was lawfully entitled to find it satisfied.
2. The possible interaction between the application and the emerging local plan raised a prematurity issue, but the officers’ reports addressed it adequately. They directed the committee to the relevant guidance and enabled it rationally to conclude that granting permission would not unacceptably prejudice the plan-making process.
3. Paragraph 216 of the National Planning Policy Framework did not prescribe the weight to be given to the emerging Development Strategy. The reports addressed its stage of preparation, unresolved objections and consistency with national policy. The committee could give the strategy substantial weight as a matter of planning judgment, having regard to the supporting work, continuity with earlier policy and limited objection to the principle of developing the site.
4. There was no legal duty to conduct a further assessment of alternative sites or an alternative development mix. Planning legislation did not expressly require consideration of alternatives. No viable substitute had been identified, the authority’s sustainability work had found no better site, and no party had proposed reducing retail development to increase affordable housing. Those alternatives were therefore not obviously material, and disregarding them was not irrational.
5. Officers’ reports are written for an informed planning committee and must be read fairly and as a whole. Members could be taken to know the significant local sustainability appraisal. The comparatively small office, hotel and cinema elements did not require distinct discussion of sequential testing where nobody had raised the issue and the principal retail impact had been assessed in the overall planning balance.
6. The costs appeal was dismissed. The agreement between the claimant and planning authority for no inter partes costs did not bind the interested parties. The award for preparing their acknowledgement of service was permissible under the Aarhus costs regime in Part 45.43 of the Civil Procedure Rules 1998 and was below the applicable maximum.

Sales LJ gave the judgment. Tomlinson and Longmore LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed on every substantive ground and on costs: [2015] EWCA Civ 537 .
2. Administrative Court: Holgate J refused permission on four grounds, rejected the remaining grounds on their merits and dismissed the judicial review claim: [2014] EWHC 4325 (Admin) .