Eco-town PPS 'unlawful'

Michael Donnelly, PlanningResource, 23 July 2008

In a Joint Opinion, commissioned by the Local Government Association (LGA), John Steel QC and James Strachan say that there are "sound grounds" for seeking judicial review of the government's approach to delivering eco-towns.

They say: "We are of the opinion that the government's proposed promotion of eco-towns through a new Planning Policy Statement (PPS) is contrary to the basic principle - expressed through the planning legislation - of the plan-led system of development control."

"This conflict is all the more acute because the concept of an eco-town does not appear to be materially different from the concept of providing housing in new settlements in an environmentally sustainable way, something which is already recognised in PPS3 on Housing.

They add that the government's intention to rely on new PPS policy, to be published later this year after consultation, "appears to be designed to circumvent the normal plan-led process" and therefore is "clearly contrary to the legislative intention of development control through a plan-led system."

They say there is nothing about an eco-town that makes it exceptional or unusual as compared with the requirements now imposed on housing development generally, adding: "In fact there are already strict requirements being imposed on new housing to ensure that it is sustainable."

They also say: "Given the description and intent of the proposed PPS, the government's aspiration to identify and promote specific eco-towns may well amount to a plan or programme within the meaning of [European] Directive 2001/42/EC and the relevant implementing Regulations.

"If this is the case, the government has a legal duty to carry out a proper Strategic Environmental Assessment (SEA).  There is nothing to indicate that the government has complied with that duty to date.  Nor is it clear how it will be able to deal properly with that duty retrospectively, and in particular the obligation to consider alternatives as a necessary part of any SEA."

They conclude: "We are not able to discern any reasonable or logical basis for the proposed departure from the plan-led process. It is not clear how eco-towns can properly be distinguished from housing proposals or new town development.

"We consider that the proposed eco-town PPS is likely to be unlawful, as on all the information before us we conclude that it will be promoting a policy and process which would be inherently flawed."

Sir Simon Milton, chairman of the LGA, said: "This expert legal advice supports our arguments that the approach the government is adopting is deeply flawed.  While we are in favour of tackling the housing crisis by building thousands of extra homes, some of them in developments with the highest environmental standards, we don't think this is the right way to do it."