Tuesday, 7 December 2010

More ‘guidance’ in light of the Cala Homes decision


PINS has issued further guidance in light of the High Court order staying the effect of DCLG’s letter reaffirming their intention to scrap Regional Strategies. (Interesting that this comes from PINS rather than CLG. Too much egg –on-face for ministers to issue their own statement?)

Referring to the High Court’s interim order that the Government’s intended revocation of Regional Strategies is not necessarily to be regarded as a material consideration in the determination of planning applications and appeals prior to actual revocation of those strategies, PINS reminds us that (pending the further hearing in the High Court, expected by the end of January) decision makers in LPAs and PINS will “need to consider whether the existence of the challenge and the basis of it, affects the significance and weight which they judge may be given to the Secretary of State’s statements and to the letter of the Chief Planner” in determining applications and appeals.

This is the civil service equivalent of walking on eggshells. They don’t want to upset ministers by asserting outright that the Secretary of State’s intentions are wholly immaterial, but they cannot ignore the High Court’s order staying the effect of the Chief Planner’s letter (which did assert that the intention to scrap RS ought to be treated as a material consideration).

This latest ‘clarification’ from PINS is in fact less clear than their earlier advice. It fails to remind everyone that adopted Regional Strategies remain part of the Development Plan and that decisions must therefore be made in accordance with that Regional Strategy (and other elements of the Development Plan), as required by s.38(6) of the 2004 Act, “unless material considerations indicate otherwise”. The materiality of the Secretary of State’s intention to scrap RS is a matter to be pondered by the decision-maker, and the weight (if any) they give to it is also a matter for them. That really is all the interim High Court order amounts to. It prevents the government from asserting that the Secretary of State’s intention must or should be treated as a material consideration, but leaves open the possibility that it still may be a material consideration, although the decision-maker may reasonably decide not to treat it as such or to give it very little weight in determining a particular application or appeal.

© MARTIN H GOODALL

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