Monday, 7 February 2011

Cala Homes fall at the final fence


Cala Homes’ further challenge to the Secretary of State has been dismissed by Lindblom J in a judgment handed down today [7 Feb], after the substantive hearing of their second application for judicial review. Following the quashing of the revocation of Regional Strategies in the earlier proceedings, the current action concerned the Secretary of State’s response to the earlier judgment, which seemed to set at nought the effect of that judgment.

Cala Homes had claimed that the statement and letter issued by DCLG on 10 November 2010 (reiterating the contents of the notorious letter from the Chief Planner on 27 May 2010) were unlawful and so they could not lawfully be taken into account as material considerations in the determination of planning applications and appeals. They also complained that this was a “a transparent attempt” to thwart the judgment of the court in their previous claim for judicial review, and to subvert the policy and objects of the existing planning legislation. They claimed that the Secretary of State’s action was irrational and that he had failed to comply with the requirements relating to Strategic Environmental Assessment.

In their previous application for judicial review, Cala Homes had obtained judgment against the Secretary of State, and the May 27 letter had been quashed in a judgment handed down by Sales J on 10 November. He held that the purported revocation of Regional Strategies was an abuse of the legislative process. But, instead of appealing against that judgment, DCLG issued a statement (the subject of the current proceedings) which re-iterated the intention to revoke Regional Strategies by clauses to be included in the Localism Bill and repeated the view that this intention should be treated as a material consideration in the meantime.

On 25 November 2010 Lindblom J made an interim order granting a stay of the effect of the statement and letter of 10 November. However, on 7 December, when the Secretary of State undertook to publish on his web-site a further statement referring to the present claim for judicial review, that stay was set aside, and Lindblom J gave his reasons in a judgment handed down on 16 December (see this blog passim).

The essential question was whether the Government's declared intention, or policy, to secure by means of an Act of Parliament the removal of the regional component of the development plan, is incapable of being a material consideration for the purposes of a planning decision because that intention or policy "subverts" or "undermines" the policy and objects of the existing legislation. This question did not arise in the earlier proceedings. The focus of Sales J's decision was confined to a challenge to the Secretary of State's action in peremptorily revoking all Regional Strategies under section 79(6) of the 2009 Act. In effect what Cala Homes was now inviting the Court to do was to accept that until the moment when Regional Strategies are abolished upon the passing into law of the Localism Bill, the Government's intention to achieve abolition is legally irrelevant and therefore incapable of being given any weight in the making of any planning decision.

In a robust judgment, Lindblom J has comprehensively rejected this argument. The power of a minister to issue a statement articulating or confirming a policy commitment on the part of the government does not derive from statute, but the courts have traditionally upheld the materiality of such policy as a planning consideration. It was clear, in Lindblom J’s judgment, that the statement and letter of 10 November 2010 and the letter of 27 May 2010 manifested a political intent which is of relevance to planning throughout England. Whether it could properly be described as "policy" was of no consequence to its materiality, though the question might go to its weight. Because planning decision-making is a process informed by policy, prospective changes to the policy framework itself may logically be seen as relevant to a planning decision. This is entirely consistent with the latitude the Court has traditionally given to the ambit of what may be material in a planning decision. If changes to the matrix of national policy, as they emerge in draft circulars or draft Planning Policy Statements, and changes to local policy, as they come forward in draft development plan documents, can be material considerations (subject to their weight being contingent on the stage they have reached in their progress towards finality) there is no reason why this should not also apply to changes to the composition of the development plan promised by legislative proposals. His lordship saw no distinction in principle.

Lindblom J was therefore unable to accept that material planning considerations do not, and as a matter of law must not, embrace a government's intention to reform the composition of the development plan itself. He could not see why the principle that such a consideration is capable of being material in a planning decision should exclude the intention to take away, through legislation designed for the purpose, an element of the development plan which for the time being is properly to be regarded as "central". Whether in any particular case this factor is indeed material to the decision being made and, if it is, the weight to be given to it will always depend on the decision-maker's own judgment, which is ultimately subject to review by the court on public law grounds.

Neither the Secretary of State's statement of 10 November 2010 nor the Chief Planner's letter of the same date says anything one could sensibly read as misrepresenting or seeking to alter the priority to be given to the development plan, of which the Regional Strategy forms part. Both in substance and in the language they use the statement and letter are consistent with the established principles of development control in the plan-led system. The only reference they make to the statutory position of the Regional Strategies after Sales J.'s judgment is accurate. The Chief Planner's letter of 10 November explicitly acknowledged that the effect of Sales J's decision was to re-establish Regional Strategies as part of the development plan. But in the period preceding the revocation of Regional Strategies by that route, decision-makers were advised to have regard to the Government's commitment to their removal and its intention to secure their abolition by statute, as material considerations under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act. No attempt had been made to deny the "centrality" Parliament has given to Regional Strategies in the planning system, or their role as "a primary instrument of planning policy". Although the Secretary of State's statement indicates that the Government thinks Sales J's decision "changes very little", it respects that decision.

Furthermore, neither the statement and letter of 10 November 2010 nor the letter of 27 May 2010 specifies how much weight local planning authorities or Inspectors should give to relevant provisions of Regional Strategies pending their abolition, let alone suggests that no weight, or minimal weight, is given to them. Weight is left to the decision-maker. Authorities will no doubt differ in their views on this. They will know, however, that the Secretary of State has not sought to impose a view of his own.

In effect, too much should not be read into these statements by or on behalf of the Secretary of State. He simply wished decision-makers to be aware of the Government's determination to reform the planning system by removing regional strategic planning from it, and he wished them to take this into account as a material consideration when they make "planning decisions". In this context, "planning decisions" could clearly embrace both development control decisions taken in the preparation of development plans. Lindblom J did not accept that the intent or the effect of the statement and letter of 10 November 2010 was subversive of the policy and objects of the existing planning legislation.

Neither the Secretary of State's statement nor the Chief Planner's letter conflicted with the priority of the development plan in planning decision-making, and neither was inconsistent with the continuing "centrality" of the Regional Strategies in the planning system, the "strong practical effect" of those strategies or their role as "a primary instrument of planning policy". The Court did not consider that what the Secretary of State and the Chief Planner wrote required local planning authorities when carrying out their planning functions, or Inspectors when deciding or reporting on appeals, to behave in any way inconsistently with the statutory and policy principles governing the operation of plan-led system of development control. When dealing with a proposal for development to which policy in an adopted Regional Strategy relates, authorities and Inspectors must continue to heed the statutory priority due to the plan of which that strategy will still be a part. The Secretary of State has not sought to dissuade authorities and Inspectors from doing that.

On the other hand, the weight to be given to relevant provisions of Regional Strategies pending their revocation through the legislative process will be for decision-makers to gauge. Until the end of that process is reached Regional Strategies will remain in place as part of the development plan, commanding such weight for the purposes of particular decisions as authorities, Inspectors and the Secretary of State may reasonably judge to be right.

In Lindblom J’s judgment, the circumstances of the present case were not parallel to those of Padfield or to those of the first proceedings. One could not equate the actions of the Secretary of State in the present case to the kind of transgression committed by the minister in Padfield. The Government is entitled to adopt the intention, or policy, of seeking, through appropriate legislative measures, the abolition of Regional Strategies. For its part, the Government accepts that Parliament will in due course decide whether and in what form that intention or policy is translated into the law in the provisions of the Localism Act. In this essential respect the present case is to be distinguished from the first proceedings. Those proceedings required the court to consider an executive decision to remove at a stroke an element of the development plan. The case now before the court was very different. The Secretary of State announced in May 2010 the Government's commitment to changing the planning system in England by removing the regional strategic component, and affirmed in November the Government's intention to achieve this aim not by executive decision but by primary legislation. Advice reflecting that intention has been given to planning decision-makers to guide them in the making of their decisions. No executive action of the type impugned in Padfield has been taken by the Secretary of State in this case.

The Secretary of State was entitled to advise authorities that the proposed revocation of Regional Strategies was to be regarded as a material consideration in their planning decisions. For the Secretary of State to do this was not to subvert the policy and objects of Part 5 of the 2009 Act or, more generally, the policy and objects of the existing planning legislation as a whole. On the contrary, it was entirely consistent with the principles which underpin the statutory framework.

The claims based on irrationality and failure to produce a Strategic Environmental Statement were also dismissed. On the other hand, a counter-argument on behalf of the Secretary of State that Cala Homes were guilty of an abuse of process and delay was also ruled out.

It now appears that the quashing of the previous revocation of Regional Strategies may in effect have been a pyrrhic victory for Cala Homes. The fact that the government has embarked on a process to abolish regional strategies by means of provisions incorporated in the Localism Bill cannot be ignored, and is bound to be a material consideration in the determination of their pending appeal in Winchester. What weight should be given to the impending revocation of the Regional Strategy in this case is, of course, a matter for the Inspector (or for the Secretary of State if he were to recover jurisdiction over the appeal). There are, of course, other material considerations, including unmet housing need, which may well favour a grant of planning permission in this case, and many of the considerations which led to the adoption of the Regional Strategy must still apply, even after it is abolished. So in the forthcoming public inquiry there is all to play for, and the recent litigation may prove to have been a largely irrelevant digression from the real planning issues which the appeal will determine.

[Update: Slightly to my surprise, I understand that Cala Homes are seeking permission to appeal to the Court of Appeal. Even if they get permission to go ahead with an appeal, it looks as though it will be a race against time, as their planning appeal will have gone ahead in the meantime, and PINS and/or the Secretary of State might not be too happy about delaying a decision in that appeal. It is difficult to see how Cala Homes can get to the finishing post in this race. By the time they have worked their way through the legal process, including any High Court challenge to an appeal decision which gives little or no weight to the Regional Strategy in view of its impending revocation, the Localism Bill itself may well have reached the statute book, and then the Regional Strategy will definitely have gone, and any redetermination of the planning appeal will take place in light of the policy situation at that time. But you have to admire their tenacity.]

[Update: The Court of Appeal has granted permission to appeal against this judgment, and the appeal is expected to be heard before Easter. In the meantime, an Inspector determining another appeal in Winchester gave little weight to the prospective cancellation of the Regional Strategy, and allowed the appeal on the basis of the strategic requirement for housing laid down in the Regional Strategy. To use an old journalistic cliché, Winchester City Coucil remained 'tight-lipped' about this decision and its implications for Cala Homes' planning appeal.]

© MARTIN H GOODALL

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