Following the determination of the Cala Homes case in the Court of Appeal last Friday, councils, developers and professionals alike are reflecting on the implications.
As we reported in our Winter Bulletin, Cala Homes was granted permission to appeal the judgment of Lindblom J, given on 7 February, in the Court of Appeal. Cala had unsuccessfully challenged Secretary of State Eric Pickles' November 2010 letter inviting councils to take into account the Government's proposals, contained in the Localism Bill, to abolish the regional planning regime. This followed Cala's earlier success in persuading the High Court to quash the Government's attempt in July last year to revoke all regional strategies.
The Court of Appeal dismissed Cala's latest challenge, upholding Lindblom J's judgment. But whilst the decision was a victory for the Government, there will be little rejoicing in the corridors of Whitehall. The November letter to councils survived Cala's challenge, but the manner of the victory will do little to advance the Government's localism agenda, and the judgment raises some important questions for those interested in development control and plan-making.
The judgment was delivered by Sullivan LJ, one of the most experienced planning judges in the Court. At the heart of his reasoning was the well-established proposition that those determining planning applications must look beyond the development plan, and have regard to all material considerations. Those considerations can include prospective changes to policy, and there is no reason why a prospective change such as the Government's current proposal to abolish regional planning should not fall into that category. So the letter, insofar as it invited councils to have regard to the Localism Bill, was unobjectionable.
Just as interesting, however, were two other aspects of the judgment, both with important ramifications.
- First, Sullivan LJ made it clear that there will be very few current cases in which it would be appropriate to attach any more than little, if indeed any, weight to the proposal to abolish regional planning. Whilst, he said, there may be the odd finely balanced case where the prospect of the change might tip the balance (an urban extension to be delivered over many years where there are site-specific objections and which relies on regional strategy support was the example given) these will be very rare. The position will, however, change as the Localism Bill progresses through Parliament.
As a broad statement of approach, those comments are unremarkable. Indeed, it seems that the Government was expecting as much. In the recent King's Cliffe radioactive waste disposal appeal decision (in relation to which, see the tweet by our Planning Team on our dedicated account at twitter.com - http://twitter.com/#!/HLPlanning) Pickles conceded that it would be inappropriate to give "the Government's intention to revoke RSSs [any more than] limited weight at this stage of the parliamentary process."
However, it remains to be seen whether the "finely balanced" hypothetical case referred to by Sullivan LJ is as rare as he predicts. Experience suggests that there is no shortage of strategic housing proposals, dependant on regional strategy targets, in sensitive locations. In these controversial cases, it is not hard to envisage councils concluding that the "balance is tipped" by the Government's plans.
- Second, and by contrast to the position with development control, Sullivan LJ concluded that it would be unlawful for those involved in the preparation of core strategies and other development plan documents to have regard to the Localism Bill's proposals on regional strategies. The law not only requires councils to have regard to the relevant regional strategy, but also states that all local development documents "must be in general conformity with [...] the regional strategy...".
This is likely to impact upon many plan-making decisions. For example, the inspector's rejection on 6 May of the Stevenage Core Strategy noted that neighbouring North Hertfordshire had been entitled to take into account the Government's intention to abolish the regional strategy as a material consideration in plan-making. Presumably, following this case, such an approach will be unlawful. In addition, inspectors and councils will need to grapple with the situation, commonplace around the country, where the relevant regional strategy has not been finally adopted. A further possible consequence is a slow-down in the preparation of core strategies, as councils reluctant to include high housing targets consistent with RSS requirements see no alternative but to delay matters until the Localism Bill becomes law later this year or early in 2012.
Amidst the current confusion in plan-making is the recent recommendation, in the Practitioners Advisory Group's recently published draft NPPF, for a shift to single local plans. Undoubtedly, clarity on planning policy is needed urgently to avoid delays in the bringing forward of plans by councils, and the recommendation may well have merit. Nonetheless, at this crucial stage in both the evolution of the planning system and the economic recovery to which the smooth operation of the former is so essential, the Government would be well-advised to consider carefully and consult fully on the complex relationship between law and policy before making further ad hoc changes.