Wednesday, 12 September 2012

Regional strategies – not dead yet


In case you were under the impression that Regional Strategies had been abolished, the fact is that they haven’t, at least not yet. It is now more than two years since Eric (‘I’m still here’) Pickles announced his absolute determination to sweep away this hated tier of Nu-Labour policy-making but, unfortunately for Uncle Eric, m’learned friends put a bit of a spanner in the works.

What with the Cala Homes litigation and the ticklish business of tip-toeing through the minefield of strategic environmental assessment, the government still isn’t in a position to deliver the final coup de grace to regional strategies. For the time being, they remain a part of the development plan, and so effect must be given to them in accordance with section 38(6) of the 2004 Act unless material considerations indicate otherwise. The Secretary of State’s intention to abolish the regional strategies is clearly capable of being such a material consideration, and he would like LPAs and planning inspectors to act as though it had already happened, but ultimately this is out of his control, and decision makers can decide for themselves how much weight they give to this material consideration.

The legal pitfalls of abolition have been complicated by a ruling the European Court of Justice (Inter- Environnement Bruxelles ASBL v Region de Bruxelles-Capitale), which residents in Brussels won in March against the Belgian government, relating to the interpretation and application of the European strategic environmental assessment directive. This has prompted De-CLoG (no doubt on their lawyers’ advice) to re-consult on the environmental effects of abolishing regional strategies, adding at least another 12 weeks to the timetable. This won’t be completed until late October, following which the results of the consultation will then need to be carefully considered if further legal challenges are to be avoided. The government originally insisted that their strategic environmental assessment of the impact of abolishing regional strategies was entirely ‘voluntary’, but their lawyers clearly didn’t agree. There are several parties that seem ready to launch High Court proceedings on this issue if the government is thought to have got it wrong again.

In fact, the potential legal problems associated with the cancellation of regional strategies seem to be multiplying. The possibility of the government's intentions being legally challenged and ultimately being found not to be compliant with European environmental directives should not be ruled out. It may be premature to start rehearsing the funeral oration over the corpse of the regional strategies just yet. The government could conceivably be forced into some kind of U-turn which would involve regional strategies being retained in some form after all, although this would require an amendment to the Localism Act. This could all take another year or two to unravel.

Irrespective of the statutory framework, there is a clear need for some sort of strategic overview at some higher level than that of the LPA. The duty to co-operate introduced in the Localism Act is no substitute for this, although the robust approach that PINS seems to be taking on this score in examining the soundness of core strategies may force councils to take this duty more seriously. Whether by formal or informal means there needs to be some mechanism for a wider view to be taken, at the County level at the very least and preferably at a regional level. The government will no doubt be reluctant to be seen to legislate to reverse their previous policy of abolishing 'prescriptive' regional strategies, but I can foresee a possible revival of regional planning as an element in the plan-making process, despite the government’s fervent wish to see the back of it.

Meanwhile, access to national (and regional) data is essential for proper plan making, even at the local level, and government co-operation in facilitating this may be a way forward, leading perhaps to greater regional co-ordination than was originally envisaged.

© MARTIN H GOODALL

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