On Monday this week Lindblom J (formerly a QC specialising in planning matters) gave his judgment on the second judicial review challenge against the Secretary of State for Communities and Local Government (the S/S) brought by Cala Homes.
You will recall the outcome of the first challenge where Sales J held on 10 November 2010 that the S/S attempt to revoke the regional tier of planning policy using s79 (6) of the Local Democracy Economic Development and Construction Act 2009 was unlawful with the effect that Regional Strategies continue to remain part of the development plan until they are revoked through new primary legislation. This means local authorities must still determine applications for planning permission in accordance with the Regional Strategy and local plan unless material considerations indicate otherwise.
Following the decision of Sales J, on 10 November the S/S immediately issued a Statement to Parliament, and his Chief Planner wrote to all local planning authorities confirming that whilst the Government respected the decision of the Court, it remained committed to revoking regional strategies and would now do so through the Localism Bill. The S/S emphasised that local planning authorities should continue to have regard to the letter of 27 May 2010 in which local authorities were advised of the Government's intention to do away with regional strategies which should be regarded as a material consideration in the determination of planning applications.
The second Cala challenge concerned the statement and letter of 10 November. Cala's primary issue in the claim was that the Government's intention to revoke the regional tier of planning could not, in law, be considered to be a material planning consideration because it undermined the policy and objects of current legislation. In effect the Judge was asked to consider whether decision makers should take no account of the prospect that regional policies might cease to have effect during the lifetime of the relevant regional strategy when considering a development proposal.
The Judge disagreed with Cala's argument.
In his judgment he:
- concluded the Statement and the letter of 10 November which propose changes to the composition of the development plan by way of new legislation could amount to a material consideration for the purposes of S70(2) TCPA 1990 - just as prospective changes to the relevant policy framework might be regarded as material (e.g. draft Circulars, draft PPSs or draft development plan documents)
- emphasised the Statement and letter of 10 November do not encourage local planning authorities to behave in any way that is inconsistent with the plan led system and the requirement to determine an application in accordance with the development plan unless material considerations indicate otherwise
- stated that local authorities are not encouraged to assume that regional strategies are already revoked, rather that when making decisions local authorities must take into account the fact that they are intended to be revoked
Effect of the decision
Whilst the Judge refused Cala leave to appeal against his decision Cala has the right to ask the Court of Appeal directly for permission to appeal. We understand that Cala intends to fight on.
In the interim the decision means that when determining an application for planning permission outside London (the London Plan is unaffected) a local authority must take into account the Government's intention to revoke regional strategies through the Localism Bill as a material consideration.
The authority must still determine the application in accordance with the development plan (the regional strategy and local plan policies) but it must still have regard to other material considerations including the decision to revoke the regional strategies. What weight local authorities choose to give to this as a material consideration in decision making is a matter for them. They may consider that it carries little weight or great weight. Until the regional strategies are finally withdrawn (likely to be some time in 2012) there will continue to be a difference of approach between authorities in respect of regional policies. For those authorities keen to do away with regional policies there will be an uphill battle.
However the judgment does make clear that evidence informing the regional strategy (for example on housing need) may continue to be material even after the regional strategies have gone. The Government will need to think very carefully how it addresses the issue of housing need in particular as it progresses its National Policy Framework.
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