Luton ‘Family-Sized Home Condition’ Removed at Appeal

We are the first to succeed in removing Luton Council’s onerous and unnecessary ‘family-sized home condition’ they currently attach to all planning permissions concerning 3+ bedroom houses across the borough.

Luton, like many councils, is subject to a housing shortage, particularly relating to ‘family-sized homes’ comprising 3 bedrooms or more. In an effort to protect the supply of homes of this size, some years ago Luton began attaching a condition to all planning approvals on such houses requiring them to stay in Use Class C3(b) (single-family dwellinghouses). Among other things, this prevents these sites from utilising permitted development rights to change to homes in multiple occupation (HMOs, Use Class C4), small care homes (C3(a)) or homes shared by a small number of unrelated individuals, such as homes shared by students (C3(c)). These are flexibilities usually enjoyed by all single homes, and which Luton has sought to progressively remove without any formal adoption of policy, public consultation, or confirmation by the planning inspectorate.

What is particularly oppressive about this condition is that it is attached to all planning permissions concerning family homes regardless of whether an application is made to increase the number of rooms or not. There are several applications in the records where homeowners apply to make small extensions, install new windows, or similar such small works, and they are faced with unnecessary and restrictive planning conditions which remain in perpetuity on the property, where before there had been none.

Luton attached this condition to an approval on one of our projects where we had specifically asked for it not to be used, and where the number of bedrooms was neither increased nor decreased in the application. The client objected to its use, and we were successful in removing this condition by appealing to the planning inspectorate. This is the first time that the condition has successfully been removed in Luton, and the evidence submitted and appeal decision casts doubt on the legality of Luton’s current use of the condition across the borough.

Our Approach

We began by reviewing all appeals made over the past two years where this condition had been applied, or where similar reasoning had been used under Local Plan Policy LLP15, identifying where inspectors had agreed or disagreed with the council’s reasoning on different points. Through this we identified some key pieces of evidence which Luton had used to justify their need to protect ‘family-sized homes’. These included the SHMA 2018 (Strategic Housing Market Assessment) and SHLAA 2019 (Strategy Housing Land Availability Assessment). The SHMA identified a particular need for family-sized homes, while the SHLAA identified a scarcity of sites for such homes.

Following 2019, Luton had assessed the delivery of 3+ bedroom homes annually through its AMRs (Authority Monitoring Reports). These documents combined together showed a significant shortfall in the delivery of such homes against the target set out in the SHMA. This is the reasoning used by Luton to prioritise the protection of family-sized homes, either through the ‘C3 condition’ or otherwise. Inspectors, generally, agreed with this approach, although cast doubt on the accuracy of the evidence given its age.

Our approach was therefore to interrogate the evidence to understand whether a genuine shortfall in the supply of family-sized homes actually existed in the borough. A detailed review of planning policy, the AMRs, latest census data, neighbouring council statistics, and the inspector’s report on the Luton Local Plan 2017 all pointed towards Luton’s evidence being substantially inaccurate, underestimating both supply and overestimating the need for family-sized homes across the borough.

Housing Market Areas

Most importantly, Luton ‘shares’ its housing targets with neighbouring boroughs in a ‘Housing Market Area’, with these councils required to deliver about half of Luton’s housing need. This is because Luton is an unusually small borough, covering only the urban area of the city, while many individuals working in Luton live outside its boundaries, most often in Central Bedfordshire. Luton’s adopted local plan had made provision for roughly half of its housing targets being met in Central Bedfordshire alone, rather than specifically within Luton.

However, Luton had not actually monitored or made any report on the delivery of homes in Central Bedfordshire since the adoption of its local plan in 2017. In stating a shortfall in the supply of family-sized homes in particular, it had not made any assessment whatsoever as to how many family-sized homes had been built, or were planned to be built in Central Bedfordshire. This alone cast significant doubt on Luton’s position. However, we went further and collected evidence as to how many of these homes had actual been built in Central Beds., particularly immediately surrounding the city of Luton. Unsurprisingly, the vast majority of these homes were family-sized, with 3 bedrooms or more. Many of these homes were built in estates bordering Luton, allocated specifically to meet Luton’s housing need.

Luton had used the SHMA as its core documentary evidence to justify a particular need for 3+ bedroom homes within its boundaries. However, a close reading of the SHMA did not, in fact, state any particular need for these homes specifically within Luton. Rather, it stated a figure to be achieved across the whole Housing Market Area (mainly Luton and Central Bedfordshire), rather than solely within Luton. The council had effectively misrepresented, or at least misinterpreted the evidence in its application of the C3 condition and general prioritisation of 3+ bedroom homes.

We presented these points to the inspectorate, and they generally agreed with our findings.

Age of the Evidence

The previous points examine the delivery of family-sized homes, showing the delivery to be much higher than Luton had accounted for. But in addition to this, the accuracy of Luton’s stated need for family-sized homes was highly doubtful. It almost exclusively relied on the SHMA 2018 to quantify this need, a document now 8 years old and predating COVID-19 and the subsequent economic shocks and shifts in working patterns.

We first identified that Luton was in fact using the wrong SHMA in its evidence to the inspectorate. The SHMA 2018 was published after the Luton Local Plan in 2017, and had never been assessed by or even submitted to the inspectorate. The correct and approved document was the earlier SHMA 2015. This is the document which was referenced in the local plan, rather than the later 2018 revision. This made only a minor difference to the statistics, but further undermined the reliability of the data through its age.

Furthermore, the inspector’s report on the 2017 local plan identified several significant issues with the SHMA 2015, and Luton’s approach to meeting the housing need set out in that document. As a result, the inspector had required Luton to resubmit the local plan for a fresh examination with updated data by mid 2021. In the event, this was never actually done, with the 2017 local plan still in force at the time of writing without any updates. Not only was the SHMA out of date, but even in 2017 there were significant doubts about its accuracy.

Inaccurate Monitoring

Luton had relied upon its annual Authority Monitoring Reports to calculate its shortfall in the delivery of family-sized homes. Notwithstanding the previous points, this was also a fundamentally flawed approach. The AMRs only monitor and assess planning applications made to the council each year, and do not take stock of any alterations made to existing homes through permitted development or otherwise. The majority of existing family homes across the borough benefit from permitted development rights, which could see homes increase in size by 1 or 2 bedrooms or more without any application made to the council.

To estimate the uplift in home sizes through permitted development we reviewed the 2021 census data for Luton. This showed an uplift in 3+ bedroom homes almost double what Luton had assessed in its AMRs, despite the data now being 5 years old.

Conclusions

Our submitted evidence combined to cast significant doubt on Luton’s stated need for ‘family-sized homes’, and in each case, the available evidence pointed to Luton’s stated need to be significantly overestimated. In addition to this, the data Luton was using to estimate its need was severely outdated, and the way in which Luton was interpreting this data was also incorrect.

Our detailed report to the inspectorate on these matters was generally accepted by the inspector, and the condition was removed on the grounds of its being unnecessary, unreasonable, and insufficiently related to the work that had been proposed. This is this first time that an applicant has been successful in removing the ‘C3 condition’ in Luton.

Key to our approach was compiling, robustly analysing, and clearly presenting the available evidence to the inspectorate. In the event, Luton did not submit any defence of its position, an unusual turn of events as in each previous case the council had submitted somewhat lengthy statements in support of its position.

This can be seen as a ‘win’ for ‘proper’ and transparent planning. Where councils wish to remove permitted development rights, the proper and legislated approach is to impose an Article 4 direction, which goes to public consultation and is assessed by the inspectorate. Luton had opted to sidestep this procedure and try to remove permitted development rights ‘by stealth’. In almost every case they had been successful, permanently impinging on the rights of applicants without any proper justification or oversight.

Our appeal to the inspectorate was the first to both explicitly challenge this approach and to have it wholly overturned. While those homeowners who have already had this condition imposed remain indefinitely bound by it, it is now far simpler for these individuals to remove their condition by referencing our appeal decision and paperwork. These are linked below for reference, and we would be happy to advise anyone who wishes to have this condition removed from their home.