Legal Report - Pickles loses court battle on regional strategy cull

Judgement was handed down by Mr Justice Sales last week in the case brought by CALA Homes (South) Ltd against communities secretary Eric Pickles challenging revocation of regional spatial strategies (RSSs).

The case was heard on 22 October and was a combined permission hearing and full trial. Permission was granted at the outset but the final judgement was reserved.

CALA challenged Pickles's decision of 6 July to abolish RSSs with immediate effect under section 79(6) of the Local Democracy, Economic Development and Construction Act 2009.

That decision followed a warning letter sent on 27 May to all local authorities (Planning, 4 June, p1) and from commitments in the coalition programme and from the Conservative Party in the run-up to the general election.

The judgement refers to an application for 2,000 residential properties on a site within the local development framework near Winchester which CALA Homes was pursuing and which Winchester City Council had refused on the back of the May letter.

CALA therefore had a clear interest in whether the formal revocation of the South East Plan in July was valid in removing regional housing targets.

Decision power claim accepted

CALA based its claim on two grounds of challenge - that the secretary of state's action went beyond the powers granted by the 2009 act and that the decision to revoke the South East Plan required a strategic environmental assessment. It won on the first ground but the judge considered that the second ground would also have succeeded if it had been necessary to decide.

The argument on the first point is over how the power should be interpreted. At the end of a lengthy clause about powers to revise an RSS, section 79 allows the secretary of state to revoke "all or any part of a regional strategy" if he considers it "necessary or expedient to do so".

The government sought to argue that a power to revoke one regional strategy included the power to revoke them all.

The judge found that this power has to be read in the overall context of the act, which clearly states at section 70: "There is to be a regional strategy for each region other than London."

He considered that in enacting the section parliament had envisaged a full set of RSSs being in place, subject to a reserve power to remove one or part of one if need be against a backdrop of a future replacement.

Instead, the government sought to abolish the whole regional tier of the development plan through the back door. Had parliament intended this, the judge mused, "it would in my opinion undoubtedly have used much clearer language to achieve that effect and would have given the provision far greater prominence".

The July decision went beyond the purpose for which the power was granted and should be quashed, he ruled. All the existing RSSs were subject to environmental assessment before adoption.

So it seems surprising that the secretary of state tried to argue that their revocation did not equally require consideration of whether a similarly detailed assessment was required.

Revocation impacts assessed

While revocation is not expressly mentioned in the regulations, the judge remarked that "revocation of any regional strategy may have as profound practical implications for planning decisions as its adoption in the first place". He dismissed the suggestion that revocation did not require assessment because local development plan documents remained in effect.

The judge also pointed to the immediate potential impact of revocation, citing CALA's own position as an example of the effects. Although he did not expressly say that a full assessment would have been needed, he felt that the decision would also have fallen simply on the failure to screen revocation of the RSS.

Importantly, the ruling quashes the whole of the July decision and is not expressly limited to the South East Plan. What it does not do is withdraw the May letter, and planning minister Bob Neill's statement following the judgement makes clear that the intention remains to remove RSSs in due course.

The materiality of the May letter to planning decisions thus remains unexamined for now, although the DCLG's chief planner has written to local authorities reminding them to have regard to it.

Daniel Farrand is head of planning and environment at Mishcon de Reya.

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