Tuesday, 8 June 2010

RSS challenge, anyone?

Eric Pickles’ letter of the 27th May (in which he told LPAs and PINS that he wants his intended abolition of RSS to be treated as a material consideration in current development control decisions) has been greeted with such a loud chorus of dismay, dissent and disbelief – all of it entirely justified – that I would not be surprised if someone decides to have a crack at it by way of an application for judicial review.

The claimant would have to have the necessary standing and interest in the subject-matter of the letter, for example a developer or group of developers with major proposals currently awaiting decision, and they would only go ahead with a challenge if they felt they had a sufficient commercial interest at stake to make it worthwhile to incur the risk as to costs which is inevitably involved in such an exercise. But you never know – there may be someone out there willing to have a go.

The argument would be that in asking for his future intention to abolish RSS to be taken into account as a material consideration right now, the S of S has left out of account a number of important material considerations, including the continuing statutory status of RSS while it remains in being, not to mention the status of other elements of the Development Plan which have been designed to comply with actual or emerging RSS. Bearing in mind the provisions of Section 38(6) of the 2004 Act, it seems daft to expect decision-makers to act as though RSS had already been abolished. One might even argue that it is something that no reasonable Secretary of State properly informed of the facts would do, and is perverse and therefore Wednesbury unreasonable.

One wonders why, if he is so anxious to be rid of RSS, the S of S did not use his powers under Section 10 of the 2004 Act to do it straight away by way of a simple order. That would still have left all sorts of anomalies and problems behind (as I suggested in a post a couple of weeks ago), but it might have been somewhat more judge-proof.

In the event, developers may not choose to challenge Pickles’ 27th May letter itself, but may prefer to await the actual outcome of their own applications and appeals. There will still be plenty of scope at that stage for legal challenges to adverse decisions taken by LPAs, by PINS or by the S of S himself in reliance on his 27th May letter. Members of the planning bar must be drooling at the prospect.


1 comment:

  1. Interesting comments.

    What about the fact that the recently published PPS3 still retains all references to RSSs. What are your thoughts on whether this overrides the SOS's letter dated 27 May 2010?

    In addition, I am sure your readers would be interested in your thoughts on the ad hoc changes to PPS3 (with no consultation).

    This all seems to be turning out to be an ill-thought out mess. There must be hundreds of appeals that are going to be re-opened, from small single house developments to urban extensions.

    This is considering the PINS advice to Inspectors recently issued. If there wasn't enough delay already!