Thursday, 30 June 2011

Development plan conundrum

Development plan conundrum

As I have observed on a number of occasions in the past, the full implications of some judgments do not always become clear on a hurried first reading. When looking at the Court of Appeal’s decision in Cala Homes [27 May], I did not initially spot the Court’s warning that “it would be unlawful for a local planning authority preparing, or a planning inspector examining, development plan documents to have regard to the proposal to abolish regional strategies. For so long as the regional strategies continue to exit, any development plan documents must be in general conformity with the relevant regional strategy.”

As other commentators have pointed out, the Court’s judgment could have significant implications for the plan-making process in those areas where regional strategies are in force. I have already pointed out in a previous post that abolition of regional strategies will not immediately occur upon the Localism Bill receiving Royal Assent, because the government has first to complete its strategic environmental assessment. Ministers pretended that they were doing this on a purely voluntary basis, but they would have been in breach of European law if they had failed to take this step, as ‘Sir Humphrey’ no doubt pointed out to them.

The requirement for local development plan documents to be in general conformity with the regional strategy in those regions where they are in place may therefore continue for some time after the Act is passed. The temptation may be for LPAs to delay progress on their LDFs, although other government initiatives to free up the planning process could lead to planning by appeal where continuing delay means that there is no up-to-date development plan in place.

It would appear, on the other hand, that LPAs are free to down-size their housing targets in those regions where the RSS did not get beyond the draft stage before the Secretary of State decided to scrap regional strategies. There would appear to be no reason for authorities in those regions to delay work on their core strategies and other local development documents. The soundness of these core strategies, however, may well be called in question if planned housing provision is inadequate to meet identified need. The absence of a regional strategy does not negate the research which underpinned the housing targets which were written into the draft strategies. Those figures will continue to be a material consideration, notwithstanding abandonment of the draft regional strategy. Where real problems may arise in the development plan process is in those regions where there is a regional strategy in place, even though it will sooner or later be cancelled by the government.

One last point: I read in another commentary the suggestion that in light of the Court of Appeal’s decision in Cala Homes, a number of developers might seek to challenge adverse appeal decisions made in the past few months (even if now out of time under s.288). However, unless someone can draw to my attention relevant statutory or judicial authority to tell me I’m wrong, I have always been and remain firmly of the view that the 6-week time limit laid down by s.288 is absolute, and that the Court has no jurisdiction to extend that time (in contrast to the discretion they have in enforcement cases under s.289). If a decision letter was issued in a s.78 appeal more than six weeks ago, it is too late now to challenge that decision in the High Court.


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