Friday, 27 May 2011

Cala Homes lose again

In a judgment delivered by the Court of Appeal this morning, Cala Homes lost their appeal against the dismissal of their application for judicial review of the Secretary of State’s intention to treat the forthcoming abolition of Regional Strategies as a material consideration in the determination of current applications and appeals. [R (Cala Homes (South) Ltd) v. SSCLG [2011] EWCA Civ 639]

Giving judgment, Sullivan LJ said that it was common ground that sections 70(2) of the 1990 Act and 38(6) of the 2004 Act confer a discretion, and that the planning decision-maker (the Secretary of State, the Planning Inspectorate or the local planning authority) must exercise that discretion so as to promote, and not so as to thwart or run counter to, the policy and objects of the legislation conferring the discretion: see Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] AC 997, per Lord Reid at page 1030 B-D.

The gist of Cala Homes’ case was that the Government's intention to abolish the regional strategies is not, as a matter of law, capable of being a material consideration for the purposes of sections 70(2) and 38(6), because taking into account an intention to abolish regional strategies would subvert or thwart the legislative purpose set out in section 70(1) of the Local Democracy, Economic Development and Construction Act 2009 that "there is to be a regional strategy for each region….". It had been submitted on behalf of Cala Homes that Lindblom J (at first instance) had not addressed this issue and had not answered the question: "How does taking into account the Respondent's aspiration to abolish regional strategies promote the object and purpose of the legislation that there should be regional strategies?"

Sullivan LJ did not accept that the Secretary of State’s intention to treat the anticipated abolition of Regional Strategies as a material consideration offends the Padfield principle. The 2009 Act had to be applied in the context of the whole body of planning legislation, including Section 70 of the 1990 Act and Section 38(6) of the 2004 Act. Cala Homes had contended that if the proposed abolition of regional strategies was legally capable of being a material consideration, planning decision-makers would be free to give a regional strategy no weight at all, and thus to subvert the statutory scheme by effectively "sidelining" the development plan. In his lordship’s judgment, that concern was overstated. He was persuaded by the Secretary of State’s submissions that where the issue is one of weight rather than materiality, "never say never" is the appropriate response to a submission that, as a matter of law, any decision-maker in any case would be bound to give no significant weight to a potentially material factor.

In dismissing the appeal, the Court did, however, sound a note of caution. It would be wrong to assume at this stage that the passage of the Localism Bill must inevitably lead to the abolition of Regional Strategies, not least because such abolition is also subject to the Strategic Environmental Assessment which the government has undertaken to carry out. The fact remains that, for the present, the Regional Strategies (where they have been adopted) remain part of the Development Plan, and s.38(6) of the 2004 Act applies accordingly.

The prospective abolition of Regional Strategies is clearly capable of being a material consideration which might indicate that a particular matter should be determined otherwise than in accordance with the Development Plan, but the decision-maker will clearly have to be very careful about this. It seems to me that the safe course for any Inspector would be to treat the Regional Strategy as an integral part of the Development Plan, but then to decide whether (in the circumstances of the particular case, and having regard to the position at the time when the decision is taken) the prospective abolition of the Regional Strategy might in that particular case lead to the conclusion that the matter should be determined otherwise than in accordance with that part of the Development Plan. However, as I have observed before, the underlying housing need which gave rise to the housing targets in the Regional Strategies is still there, and this in itself must be a significant material consideration, whether or not the Regional Strategy is about to be abolished. In quite a few cases, it is this factor which may well persuade an Inspector that the case in hand should not be determined otherwise than in accordance with the Development Plan, including the Regional Strategy.


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