After much anticipation, the High Court has published its ruling on the most recent judicial review by Cala Homes (Cala Homes No.2) against the Government's recent Guidance that the intention to revoke regional strategies should be a material consideration for decision makers prior to actual revocation.
The High Court has ruled that the Government’s intention to abolish Regional Strategies (RS) (and the regional housing targets) is a material consideration for decision makers when determining planning applications and appeals.
Cala immediately said it would appeal the decision and it was reported on 24 February that it has now been granted permission to do so. A date for the appeal is awaited.
Background
The first claim for judicial review
Cala Homes (South) Ltd originally applied for judicial review against the Secretary of State's (SoS) revocation of RS in August 2010. On 10 November 2010, the High Court ruled that the SoS's revocation of RS was unlawful, resulting in any adopted RS continuing again to form part of the development plan.
On the same day, the Department of Communities and Local Government (CLG) issued a statement saying that the High Court Judgment “changed very little”. The Government's chief planning officer also wrote to all local planning authorities and the Planning Inspectorate advising them that in any decision the authorities were currently taking they should have regard to the SoS's letter dated 27 May 2010 (stating the intention to revoke RS) as a material consideration.
For further comment on the first judicial review please see our article “Pickles hit by Court’s judgment on Regional Strategies”, 10 November 2010.
Following CLG’s statements and the chief planner’s letter, Cala Homes issued a further application for judicial review on the basis that the Government's stated intention to revoke RS should not be a material consideration for the purposes of making planning determinations. On 25 November 2010, Mr Justice Lindblom, in a preliminary ruling, granted a stay on the effect of that Government statement. On 3 December 2010, the SoS for CLG gave a legally binding undertaking to the Court to publicise the second Cala Homes judicial review challenge on its website and, as a result, the court lifted the earlier interim stay.
The second claim for judicial review
The second judicial review hearing was heard at the High Court on 17 January 2011. The decision was published on 7 February 2011.
The issues
There were three main issues in the second claim:
- unlawful and immaterial consideration: whether in determining an application for planning permission during the period prior to the effective revocation of RS, a planning decision-maker is obliged to disregard the Government’s stated intention to abolish the regional tier of development plan policy and to promote legislation for that purpose, as being incapable in law of constituting a material consideration
- irrationality: whether the issuing of the statement and letter was in any event irrational
- Strategic Environmental Assessment: whether the SoS has failed to comply with requirements relating to the carrying out of SEA.
The decision
Material consideration
Mr Justice Lindblom in his judgement concluded that this ground of claim must fail. He stated that Cala’s challenge was "based on an incorrect understanding of what the Secretary of State has actually done". In his view the SoS had not required local planning authorities to assume that RS have already been revoked, or to ignore their provisions in so far as they bear on the particular decision in hand. In Lindblom J’s view what the SoS had done was to advise authorities, when making decisions to which such regional policy is relevant, to take into account the fact that the Government intends to promote, through legislation, a reform of the existing planning system in England, the effect of which would be to remove RS.
Irrationality
As Lindblom J stated the court had to consider whether the action taken by the SoS was “inappropriate to the point of being perverse.”
In the court’s view the SoS could be acquitted of having acted irrationally and that it was at least desirable, if not obviously necessary for the Government’s position to be made known once Sales J.’s decision in Cala Homes No.1 came into the public domain.
Strategic Environmental Assessment
The court held that national planning policy does not constitute a “plan or programme” for the purpose of the SEA Directive and the SEA Regulations, unless it is specifically required by “legislative, regulatory or administrative provisions”. It was held that advice given by or on behalf of the SoS that an intention or policy of the Government is a material consideration in a planning decision is not a “plan or programme” or a “modification” of a plan or programme – it is merely advice. As a result it was not necessary for the letter of 27 May 2010 nor the statement and letter of 10 November 2010 to be subject to SEA.
Comment
While the court decided that the SoS had merely issued advice and not purported to modify any RS or any development plan, the court did not decide the question which Sales J. (in Cala Homes No.1, paragraph 54 - 67), considered whether the revocation of a RS is to be regarded on a purposive construction of the SEA Directive and the SEA Regulations as a “modification” of a “plan”. It is possible therefore that this question will be one to be considered as part of the forthcoming appeal.
As a result of the High Court determination the Planning Minister, Bob Neill, stated that the latest judgment "makes it clear that planners can take into account the Government's intention to do away with regional strategies". He also stated "the coalition Government made a firm pledge to sweep away these controversial strategies that had proved that top down targets do not build homes. All they had produced is the lowest peace time house building rates since 1924 and fuelled resentment in the planning process that has slowed everything down".
This ruling makes it clear that planners can take into account the Government’s intention to abolish the RS, however what weight they accord it is a matter for the planning judgement of the decision-maker.
This is not however the end of the sage as Cala immediately said it would appeal the decision to the Court of Appeal and has now been granted permission to do so. Expedition has been granted and a hearing is expected in early May.
In the meantime the Localism Bill continues its progress through parliament. It has had its first and second readings in the House of Commons. A version of the Bill as amended in Public Bill Committee has been published and it is largely unamended from the original Bill.
No date for the next stage in the Bill, the Report Stage. The Report Stage gives all MPs an opportunity, on the floor of the House, to consider further amendments to the Bill which has been examined in Committee. There is no set time period between the end of Committee Stage and the start of the Report Stage. While no date for the Report Stage of the Localism Bill has been announced yet, it is likely that it will be spread over a number of days given the complexity and length of the Bill.