Friday, 21 May 2010

That’s the way to do it! (Or is it?)

In a recent post I speculated on the need for primary legislation to abolish Regional Spatial Strategies (RSS) and to abolish the IPC and replace it with an alternative regime for the approval of major infrastructure projects.

The latter will almost certainly require primary legislation so as to partially repeal and replace the 2008 Act, but it has been pointed out to me that the S of S already has the necessary statutory power under Section 10(5) of the Planning & Compulsory Purchase Act 2004 to revoke RSS. What the subsection says is that “If the Secretary of State thinks it necessary or expedient to do so he may at any time revoke (a) an RSS, or (b) such parts of an RSS as he thinks appropriate.” As the commentary in the Planning Encyclopedia points out, this is entirely reasonable, bearing in mind that the RSS is a statement of his own policies.

However, the ghostly wraith of RSS may still haunt the planning system for some time after it has been summarily dispatched by the S of S. Those core strategies and other Local Development Documents which have so far been adopted or which are close to adoption have no doubt been prepared in compliance with RSS. Plans which have yet to be adopted could perhaps be amended to reflect the freedom which the LPA would have to revise its housing figures and other policies following the abolition of RSS, but that might call in question the ‘soundness’ of the local core strategy under current legislation.

There may have to be some fancy footwork in DCLG to work round this problem. If planning legislation is going to be needed to deal with infrastructure planning, the opportunity might be taken to legislate on development plans in general (going beyond the abolition of RSS and making consequential amendments to the provisions relating to the preparation and adoption of local plan documents). In the meantime, if RSS is abolished by ministerial order (under s.10 of the 2004 Act) there is scope for confusion pending clarification of its impact on plan preparation at the local level.

It has also been suggested that some LPAs might be tempted to refuse planning applications which are in accordance with the Development Plan but which are locally opposed because they are thought to be compliant only due to the imposition of housing targets in the RSS with which the LPA disagrees. This would present the LPA with a slight problem because, in accordance with s.38(6) of the 2004 Act, the LPA would have to demonstrate that material considerations indicate that the application should be determined otherwise than in accordance with the Development Plan, in order to be able to justify a refusal.

On reflection, waiting until comprehensive legislation can be introduced to deal with development plans generally might be the safest course for the government. But if impatience gets the better of them, ministerial cancellation of RSS under existing powers might cause more trouble than it’s worth.


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