CALA Homes Successfully Challenges Abolition of Regional Strategies

Cala Homes has succeeded in challenging Eric Pickles' rapid abolition of regional Strategies in England. The High Court ruled that the powers to revoke a Regional Strategy in the 2009 Act could not be used to dismantle a whole tier of the development plan system.

Regional Strategies are therefore re-instated as part of the development plan with immediate effect.

The challenge was made on two counts:

• First, that the power for the Secretary of State to revoke Regional Strategies given by - section 79[6] was not intended by Parliament to be used to effect the abrogation of the Regional Strategy tier of planning guidance by executive action.
• Secondly, that any revocation would require a Strategic Environmental Assessment - (SEA ).

The judge held for Cala on the first point which meant that the SEA point did not need to be decided but he also gave his decision that an SEA would have been required for a revocation of a Regional Strategy.

GOVERNMENT RESPONSE

The Coalition Government responded quickly with Mr Pickles playing down the significance of the judgement and issuing a letter on 10 November to all Chief Planning Officers in England that set out the proposed clause of the Localism Bill that will enact the commitment to abolish Regional Strategies. It also reiterated the advice in the CLG letter of 27 May 2010. It is expected that planning authorities and the Planning Inspectorate will have regard to the intention to abolish Regional Strategies as a material consideration in any planning decisions.

The Planning Inspectorate has also issued new guidance to case workers and inspectors on how to proceed with appeals and inquiries, which does suggest that some regard will need to be had to Regional Strategies.

COMMENT

Ministers are keen to regard the Cala judgement as a 'pyrrhic victory' and to reiterate that Regional Strategies will be revoked eventually.

However, the judgement is important in both re-instating Regional Strategies now and in requiring a SEA to be undertaken prior to abolition. This is bound to delay progress of the legislation to legally abolish the Regional Strategies.

We also believe that the CLG's letters of 27 May and 10 November may carry little weight as they are simply statements of the executive's intentions, which require parliamentary approval. Explicit reliance of such intentions in any decision could therefore lead to further challenges.

The Regional Strategies therefore remain part of the development plan until the Localism Bill is enacted. The timetable for this has been suggested as November 2011 but the need to undertake SEA of the legislation is likely to prolong this timetable.

This provides a window of opportunity for a year, may be two, to take advantage of Regional Strategies remaining part of the development plan.

It remains to be seen what weight decision makers will give to the Government's intention to revoke Regional Strategies and what challenges may emerge.

For now, we highlight the importance of carefully examining the likelihood of successfully promoting schemes rapidly.

We believe that this will be especially the case in those LPAs where this interim position forces a poor five year housing land supply for the next 10-12 months.

This is enough time for those poised with applications or appeals to test the position at appeal if they so wish - in the knowledge that after this it could be some time before another opportunity arises.

Appeals determined by an Inspector in this interim period may get a more 'balanced' decision than those being determined by the Secretary of State himself where he is more likely to give greater weight to his emerging intentions or simply sit on them until the legislation is enacted. Ouch.