Cala Homes (South) Limited -v- Secretary of State for Communities & Local Government and Winchester City Council

Cala’s high-profile litigation against the Government’s handling of the abolition of the Regional Strategies was the subject of yet another High Court decision this week. This time victory was handed to the Government, resulting in local authorities having a wide scope to decide how much weight to attach to the Regional Strategies going forward.

Case Summary: This time, Cala was seeking to challenge the Government’s response to its previous defeat. That response consisted of a written statement to Parliament by Eric Pickles and a letter to local planning authorities from the Government’s Chief Planner. Both the statement and the letter recognised that the Regional Strategies again formed part of the statutory Development Plan but advised local planning authorities that the Government considered that its previously stated intention to revoke them through the Localism Bill was a material consideration that they should take into account.

Former top planning QC and newly appointed High Court Judge, Keith Lindblom, dismissed Cala’s challenge, holding (amongst other things) that the Government’s intention to revoke Regional Strategies was a material consideration.

Comment: The law has long distinguished between the issue of whether something is capable of being a material consideration and the weight to be attached to a material consideration in any given situation. The former is a legal issue that the courts are happy to express a view on but latter is a matter of judgement for the decision-maker that the courts are extremely reluctant to interfere with unless the decision is irrational.

This latest decision makes it clear that the Government’s stated policy intention to abolish the Regional Strategies is something that ought to be taken into account when formulating planning policy and deciding planning applications. Decision-makers now have a very wide discretion as to the weight to place on it when deciding whether to grant a planning permission.

This undermines what Cala achieved in the earlier litigation because, whilst the content of the Regional Strategies benefits from the statutory presumption set out in s38(6) of the Planning and Compulsory Purchase Act 2004, a decision-maker is able to place weight on the intention to abolish them as a material consideration that might justify departing from its terms in any particular case.

If the decision-maker is a local planning authority, then an applicant can try to persuade an Inspector to make a different assessment of weight on appeal. If the decision-maker is the Inspector or (as in the Cala’s own case) Mr Pickles himself, however, aggrieved applicants will have nowhere to turn unless they can persuade the courts that the very high test of irrationality has been met.