Luton Council have hit back back at claims by the law firm representing the Mall’s owners, Capital & Regional, that their decision to grant Luton Town planning permission for a mixed use scheme at Newlands Park was in any way ‘unlawful’.
In a recent letter to Mr Clive Inwards, Team Leader Strategic Applications at the Council, Eversheds Sutherland, who are representing C&R, confirmed they will apply to the High Court for a Judicial Review if the council didn't review the original outcome.
They labelled the decision-making process by the council as 'legally flawed' and believed the grant of planning permission for the Hatters was 'unlawful.'
However Luton Council have today issued a firm rebuttal of this, with senior solicitor Steven Sparshott addressing all three of the issues in his response to Eversheds Sutherland.
It read: "The Claimant's first proposed ground relates to the Council's consideration of certain issues.
"The Claimant suggests, in essence, that the Council did not properly consider it's duty in respect of the Grade/Listed mansion house at Luton Hoo,
"The Claimant's argument in this regard is based on a very narrow reading some (but not all) relevant passages of the OR (officers report) in isolation from their wider context.
"There is no support in law for such a reading.
"On the contrary, the Courts have repeatedly made clear that the totality of the documents before a planning committee must be taken into account.
"They have also stressed that documents such as ORs are addressed to knowledgeable audiences, who are aware of their legal duties and the wider factual and planning contexts in which their decisions fall to be taken.
"In those circumstances, it is beyond clear argument that the Council's approach to heritage issues was lawful,
"The Claimant's suggested case to the contrary disregards the manner in which Historic England expressed its concerns, and ignores critical parts of the OR.
"As the Court of Appeal made clear in Mordue, the onus is on the Claimant to show that there is at least a substantial doubt about the Council's compliance with its heritage duties,
"The PAP letter does not come close to meeting that threshold."
The letter then went on to address the second issue that was raised, as it continued: "The Claimant's second proposal ground is that there is a legal flaw in the sequential test undertaken by the Defendant.
"The Claimant suggests these passage contain an inconsistency and wrongly conclude that the Power Court site was unavailable for the development at the time of the grant of permission for the Proposal.
"Both of these arguments are flawed. They are based on exactly the kind of legalistic and exegetical approach to individual sentences of ORs which the courts have repeatedly deprecated.
"Read as a whole, the meaning of the report is clear: Members were advised that given (a) the resolution to grant permission for the Power Court site and (b) the planning obligation to be imposed in respect of the Proposal (the effect of which was to prevent the Proposal from being occupied until a considerable amount of time, money and commitment had been spent on the Power Court development), the Power Court site was not available as a sequentially preferable site.
"That is clear from the terms of the OR when they are read together.
"Such an approach is a legitimate exercise of planning judgement by the Council.
"It is also consistent with commercial reality: nothing in law or policy requires a planning authority to close its eyes to such reality.
"The Council's approach in this regard is a legally unimpeachable exercise of planning judgement."
Going into details on the final point, the letter said: "Finally the Claimant contests that members were seriously misled by an alleged statement in the OR that planning obligations in place for the Proposal and the Power Court site commit Power Court to be brought forward.
"The Claimant's case of based on an obvious misreading of the OR.
"Nothing in OR stays the planning obligations in question contain a commitment for Power Court to come forward.
"Rather it says that the stadium-led development at Power Court will become committed at the point at which is is developed to a level which will show commitment.
"That is an accurate description of reality
"It is plainly open to offers to advise and for the Council to conclude as a matter of planning judgement, that commitment to the development of Power Court would be demonstrated by undertaking development of the Podium level, given the expense and time involved in such work.
"It is also correct to observe that occupation of the Proposal is tied to achievement of Podium-level development at Power Court.
"The error which the Claimant alleges is not therefore supported by a proper reading of the relevant parts of the OR.
"The Council's approach to the planning obligations in question is a matter of planning judgement with which the court will be very slow to interfere."