Friday, 17 December 2010

Cala Homes - a further update

On 3 December, I reported that the Secretary of State was making an interlocutory application to lift the temporary stay on the notorious DCLG letter which still sought to make his intention to scrap regional strategies a material consideration in the determination of current applications and appeals. What I did not appreciate (and what I have not seen reported until today) was that there was a hearing on that application before Lindblom J that very day. At the end of the hearing the stay on the letter was lifted (subject to an undertaking from the Secretary of State). In a written judgment handed down yesterday (16 December) Lindblom J set out the reasons for the Order he made on 7 December.

The mystery of the gnomic ‘clarification’ from DCLG (and PINS) on which I commented on 7 December is now made clear. This was the clarification which the Secretary of State had undertaken to the Court that he would publish. I described it at the time as ‘walking on eggshells’, but did not appreciate that it was issued in light of the undertaking given to the Court and the consequent lifting of the stay. As I observed, it leaves considerable uncertainty as to whether or not the Secretary of State’s intention to abolish Regional Strategies should or should not be taken into account in partcular cases as a material consideration which might indicate that applications and appeals should be determined otherwise than in accordance with the Development Plan (which in many cases includes the still currently extant Regional Strategy).

I shall not attempt to summarise Lindblom J’s judgment, other than to note that the Secretary of State’s undertaking was clearly a significant factor in persuading the judge that the stay could now be lifted. It was, as he explained in his judgment, a question of the balance of convenience as to whether the stay ought or ought not to be maintained. Strong submissions had been made on both sides on this issue.

It is worth bearing in mind the judge’s words (having noted the Secretary of State’s acknowledgement to this effect in the course of the proceedings) that “while the present proceedings are alive, it would be open to a local planning authority to give no weight to the Secretary of State's statement and the Chief Planner's letter of 10 November 2010 and the Secretary of State's letter of 27 May 2010, or to defer its decision altogether until after judgment has been delivered. That acknowledgment is helpful as far as it goes. But authorities and inspectors must understand that the very materiality of the statement and letter of 10 November 2010 and of the letter of 27 May 2010, and not merely the weight they should carry, is at issue between Cala Homes and the Secretary of State, and that the present claim may result in the court holding the Secretary of State's actions to have been unlawful. Keeping that in mind, planning decision-makers will in the meantime have to consider how they should deal with the matters that come before them. This will be for them to resolve in every relevant case.”

The order made by Lindblom J on 7 December 2010, in terms agreed by the parties, accordingly set aside the stay, the Secretary of State having undertaken "to cause to be publicised forthwith on the websites of the Department for Communities and Local Government and of the Planning Inspectorate a statement" in the terms with which we are now familiar (even if we are still confused as to what it actually means or is intended to mean!).

It is understood that the substantive hearing in this action will take place in the week beginning 17 January.

[Update: See 7 Feb posting for the judgment.]


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