Wednesday, 10 November 2010

Scrapping Regional Strategies was unlawful

Judgment has been given today in the Cala Homes case challenging Eric Pickles’ abolition of Regional Spatial Strategies. The High Court found that the way this was done was unlawful and so the Secretary of State’s action in abolishing RSS has been quashed.

The effect of today’s judgment is to reinstate the various Regional Spatial Strategies so far adopted, at least for the time being. The government is still hell-bent on abolition of this level of strategic planning, and its permanent abolition will form part of the ‘Decentralisation and Localism Bill’ due to be introduced in parliament later this month. However, the huge policy vacuum created by Pickles’ purported abolition of RSS will at least be filled in the immediate future, and it is to be hoped that some means of plugging that gap will be found in the course of the passage of the new Bill through parliament.

I have not yet seen the judgment itself, so I cannot give any further details at present. An appeal to the Court of Appeal is a possibility if the government feels sufficiently strongly about it, and is not prepared to wait another year or so for the new Bill to become law. Things should become clearer in the next day or two when all concerned, including DCLG ministers, have had the chance of digesting the High Court’s decision in more detail.

LATER: Since posting this comment this morning, I have now had a chance to read the judgment. The challenge succeeded primarily on the ground that the abolition of Regional Strategies defeated the statutory intention of the 2004 Act (as amended in 2009) that there should be such strategies in place. The Secretary of State had in effect abused the power granted by the Act to cancel Regional Strategies; there was a clear statutory intention that there should be a system of Regional Stategies, and so there was an implication that any Regional Strategy cancelled under this power would be replaced. The judgment follows the House of Lords decision in the case of Hadfield. The cancellation of Regional Strategies was also in breach of environmental assessment regulations, and so was unlawful on this ground.

Rather cheekily, it seems that the DCLG's Chief Planner is now writing another circular letter similar to his letter in late May, reiterating the government's firm intention to abolish Regional Strategies, and asking that LPAs and PINS should therefore treat this intention as a material consideration in all decisions reached in the meantime. As I commented at the time of the original letter, this is of dubious legality in itself and could lead to further legal challenges, not least by Cala Homes. The plain fact of the matter is that, until formally abolished in about a year's time by the 'Decentralisation Bill', when this is eventaully passed, Regional Strategies where they had been formally adopted (in, I believe, seven regions) will remain an integral part of the statutory Development Plan. Section 70(2) of the 1990 Act and Section 38(6) of the 2004 Act will apply accordingly, and it is for the independent judgment of decison-makers (including Planning Inspectors) whether or not to treat Quartermaine's letter as a material consideration at all and, if they do so, what weight to give it. Just because some pipsqueak in the DCLG says they want the intended abolition of Regional Strategies to be treated as a material consideration does not in fact make it a material consideration in law.

A FURTHER FOOTNOTE: It is interesting that in guidance subsequently issued to Inspectors in light of the Cala Homes decision, the suggestion that the intention to revoke Regional Strategies might be a material consideration is down-played, and stress is laid instead (quite correctly in my view) on the fact that RS is now once again part of the statutory Development Plan (at least in those regions where it had been formally approved) and attention is drawn to the requirement contained in Section 38(6) of the 2004 Act that appeals must be determined in accordance with the Development Plan unless material considerations indicate otherwise. This situation is likely to obtain for at least another 12 months, and so the abolition of RS after that date is unlikely to be a material consideration in the immediate future. It seems that the denizens of DCLG have had a rare outbreak of common sense.


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