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Two councils in ring on housing need

Luton and Central Bedfordshire Council have been locked in conflict over how best to meet cross-boundary housing need. Martin Hilditch investigates how the government’s duty to cooperate is panning out in practice

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For use in Inside Housing, 24 June 2016

HRN1 might sound like the virus that caused swine flu, but in fact it is a development site in rural Bedfordshire that is symptomatic of an entirely different malaise.

The site - Houghton Regis North to give its full title - is full of activity today. Diggers and dumper trucks and workers in fluorescent uniforms bustle about as the development that will deliver 5,000 new homes slowly takes shape. A new junction that will eventually link the development to the M1 is currently under construction.

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A view of the Houghton Regis North site overlooking the A5-M1 link road

It is the pride and joy of Central Bedfordshire Council. But it has also been the cause of a tremendous legal tussle with neighbouring Luton Council - one that has crawled through the High Court for months on end. And it is just one part of a larger legal and procedural saga that has already dragged on for years. This is an epic tale that is significant in its own right, because it has already held up Central Bedfordshire’s Local Plan and Luton’s could yet face a similar fate - delaying strategic planning for tens of thousands of new homes. But it is also a dispute that sheds much light on wider problems with the current English planning system.

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Today’s trip to HRN1 on a sleepy summer’s day, with Andrew Davie, development infrastructure group manager for Central Beds, takes us to the physical centre of the dispute. Despite the nearby town of Dunstable and, over the boundary, Luton, this is a largely rural area - but this is not a battle about building in fields. At its heart, this has been a fight about affordable housing: how much should be built and, more to the point, who should deliver it.

In effect, the disagreement kicked off in full on 2 June 2014, when Central Bedfordshire Council granted planning permission to the Houghton Regis Development Consortium for a development on 262 hectares of land on the green belt between Central Bedfordshire and Luton. The HRN1 development would include up to 5,150 homes, along with office and leisure space.

Affordability

The Section 106 agreement that accompanied the planning permission required the consortium to deliver a “minimum” of 10% affordable housing - rising to 30% depending on sales figures.

“I am sure that Luton has got a really different view of the duty to cooperate at the moment.”

Jason Longhurst, director of regeneration and business, Central Bedfordshire

Weeks later, on 10 July 2014, Luton Council applied for a judicial review of the decision. It wanted the ruling overturned on numerous grounds, but the central reason was clear. The council’s QC, Peter Village, told the High Court that “his client would not have challenged the permission, if it had secured a higher minimum level of affordable housing acceptable to that authority”.

The reason why Luton cares so deeply about a planning decision of a neighbouring authority is simple: the council is unable to meet its need for new homes within its own boundaries. It has assessed its housing need as being 17,800 homes up to 2031 but judges that it has capacity to fit in just 6,700 itself - leaving a huge shortfall of 11,100. This leaves it reliant on its neighbours to deliver the homes it needs, particularly Central Bedfordshire Council, which it is largely bordered by. Since regional planning was abolished by the coalition government, councils have to work with each other under a “duty to cooperate” to try to meet need where housing markets overlap official boundaries.

But because HRN1 is such a substantial scheme, and the minimum affordable housing requirement of 10% falls below Luton’s requirement of 20%, Luton felt that Central Bedfordshire was not doing its bit to help. The High Court did not agree, stating that the procedures Central Bedfordshire followed were not unfair to Luton, and threw out Luton’s legal challenge. A challenge in the Court of Appeal was also rejected in May 2015.

While HRN1 could now proceed apace - and the current activity would not have been possible if Luton had won - this was only the beginning of the argy-bargy. Indeed, as the HRN1 case was progressing through the courts, Luton scored a notable victory, when a planning inspector, Brian Cook, judged that Central Bedfordshire had failed to meet its legal duty to cooperate with Luton when it was drawing up its development strategy. The original development strategy included plans for 31,000 new homes through to 2031 - 25,600 to meet Central Bedfordshire’s need and 5,400 to answer part of Luton’s unmet need.

“The areas in the north, because they don’t enjoy green belt protection, are coming under attack from what is generally described as ‘hostile applications’.”

Andrew Davie, development infrastructure group manager, Central Bedfordshire

Mr Cook argued that Central Beds had not demonstrated enough evidence that it had “taken the necessary steps through the duty process to secure the delivery of homes and jobs needed by authorities such as Luton that are constrained in their ability to meet their own needs”. Central Bedfordshire initially pursued a legal challenge against this decision, but after calling it off in November 2015 the council had to start the process of drawing up a development strategy all over again. And now the council has to juggle with updated government population projections that recalculated its own housing need as 29,500 homes - before any provision for Luton is taken into account. A year on, as it restarts the process, planning applications are being granted on appeal outside “the optimum locations for the benefit of the area as a whole”, according to a report to the council’s executive.

Hostile applications

This is certainly a concern of Mr Davie, as we drive over to take a look at HRN1.

“The areas in the north, because they don’t enjoy green belt protection, are coming under attack from what is generally described as ‘hostile applications’,” Mr Davie states. “They are the ones causing the most angst.” In other words, homes are now being approved in areas where it could cause congestion, use up

precious green space, or in parts that will simply not maximise the economic or social potential of Central Bedfordshire.

The government’s planning regime contains a ‘presumption’ that ‘sustainable development’ will be granted in the absence of an up-to-date plan.

Think the wrangling is over? Think again. Luton is now looking to move forward with its Local Plan. Cue a letter from Central Bedfordshire’s director of regeneration and business, Jason Longhurst, to Luton Council in December 2015 saying it feels that Luton “has not fulfilled its duty to cooperate” and that “we are disappointed to see that Luton Council appears to be taking the same course as Central Bedfordshire Council in this respect”.

“I am sure that Luton has got a really different view of the duty to cooperate at the moment,” Central Beds’ Mr Longhurst says with the hint of a smile when we meet in his office after my tour of the HRN1 site.

However, while the temptation for Central Beds must be to take revenge for its setback, Mr Longhurst is clear that his council would like Luton’s plan to move forward.

“I’m seeking clarity [about the duty to cooperate process],” he says when I ask about his letter to Luton. “What I have not said, and this authority has not said, is that this authority is objecting to their plan.”

Mr Longhurst says he thinks Luton may fall down on the duty to cooperate for much of the same reasons that his own council did. However, he adds that he wants to “avoid a direct conflict position”.

“We are quite uncomfortable [with Luton’s plan] but we haven’t objected,” he adds. “We are reviewing our position and we have got pro-active discussions with Luton.”

Indeed, given the difficulties progressing with either plan so far, he said the council “would welcome one partner having a plan in place that we can all swing off the back of”. Central Bedfordshire Council does not just border with Luton, for example, and has several other authorities it must engage with when drawing up its plans. Similarly, authorities such as North Hertfordshire Council and Aylesbury Vale will also be picking up some of Luton’s numbers. In such a complicated melting pot, it is helpful to have some clarity somewhere.

The danger of objecting strongly would be that when Central Beds submits its next development plan this year Luton’s planners “think ‘payback’”, and the lengthy rigmarole continues, Mr Longhurst suggests. This is clearly not desirable as Central Beds is moving “really fast” to resubmit its updated plan “and at best it is going [to take] a minimum of two years”, Mr Longhurst adds.

It is clear he thinks the current system brings big problems for councils - although acknowledges there is more local control than previously. “Duty to cooperate normally ends by taking you out of the planning system,” he adds, suggesting that it is leading councils to settle planning decisions via the courts.

A spokesperson for Luton Council says that the two councils had cooperated on their plan-making for a number of years but “unfortunately until recently, both councils did not succeed in fully matching their respective aspirations”.

“Luton recognises that the duty to cooperate is a necessary provision, but that it raises expectations concerning cross-boundary planning that are not necessarily supported by the provision of investment funding in order to deliver key infrastructure,” he adds.

“It is also the case that following the revocation of regional planning and when local economic partnerships have not performed - or been allowed to perform - an effective strategic planning role, the duty to cooperate has left Luton and its neighbours without a genuine ‘fit for purpose’ form of sub-regional governance within which tricky cross-boundary matters can be effectively raised, discussed and resolved.”

Other disputes

These concerns about cross-boundary cooperation are certainly not unique to Luton and Central Bedfordshire under the new localised planning system.

As Inside Housing reported in April, a planning inspector signed off Birmingham’s Local Plan despite a 38,000-home shortfall between its recognised need of 89,000 homes by 2031 and the number it thinks it can deliver within its own boundaries. This is still playing through the system, although surrounding authorities have previously pointed out in submissions that “a duty to cooperate is not a duty to agree”. Last year, a planning inspector told Warwick Council that unmet need in Coventry and Warwickshire would need to be addressed before its plan could proceed. In a letter sent to communities secretary Greg Clark at the time, Andrew Mobbs, the leader of Warwick Council, said the decision meant “we should go back to the drawing board and spend the next two years resolving Coventry’s housing problems and its impact on the wider sub-region”.

Sam Stafford, strategic land director with Barratt Developments, says under the previous planning regime the regional spatial strategy was a mechanism for addressing “cross-boundary issues like this in the past”.

“It’s a reminder of a gap in the planning system at the regional or strategic level and is, perhaps, a reason why the legal system might need to change again in the future.”

For now, both Luton and Central Bedfordshire are proceeding with their plans. But the tussle between them, which lasted several years, has resulted in costly legal action - reportedly a six-figure sum - and delayed at least one plan by two years.

As for Central Bedfordshire’s Mr Longhurst, his advice to others grappling with the duty to cooperate is to evidence all contact with other authorities thoroughly, but that ultimately: “It is as much about partnerships and relationship building as the [official] mechanisms.”

Nonetheless, the current localised planning system is too often turning cooperation into conflict - leaving the most vital question of how and where need is actually met rumbling on into the distance.

The duty to cooperate explained

The duty to cooperate sprang from the Localism Act 2011. It places a legal duty on councils to engage constructively and actively in preparing Local Plans that raise strategic cross-boundary issues.

As many councils have since realised, the duty to cooperate is not a duty to agree.

But councils were told they “should make every effort to secure the necessary cooperation” before they submit Local Plans for examination.

 

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