Homes back in business

Last week's successful challenge to abolition of regional strategies signals fresh uncertainty for developers and planning authorities.

High Court: house builders case centred on refusal of Winchester site
High Court: house builders case centred on refusal of Winchester site

The judgement, when it came in Court 62, was remarkably brief but it sent reporters scurrying for the exits.

Shortly after the appointed start at 10am last Wednesday in the High Court, Mr Justice Sales quietly confirmed that CALA Homes had been successful in its legal challenge to overturn the revocation of regional spatial strategies (RSSs).

As some members of the audience scrambled to file copy, the rest dashed towards the court's front desk to grab the 20-page legal ruling.

No more analysis was given in court, save for some tussling between the claimant and the judge over costs. So it was left to us to peruse the documents as the public proceedings drew to a close.

CALA lawyer Peter Village QC of 4-5 Gray's Inn Square, a calm and confident presence throughout, still had time to provoke a few chuckles from onlookers with a couple of sporting metaphors.

He said the government had "in football parlance, committed a professional foul" when it submitted late accompanying additions to its case, but that its defence had been "clean bowled".

Back on 22 October we had a day's worth of legal rumination. Village, frequently rocking on his heels while delivering his argument, spoke for the best part of three hours.

In contrast, the DCLG's response was notably brief, barely half an hour long. But the saga began long before that, with a ministerial letter on 27 May whose like has rarely caused such consternation in planning circles.

In a three-paragraph missive to planning authorities, communities secretary Eric Pickles announced his intention to revoke RSSs with immediate effect. The move caused widespread confusion in the development industry and planning authorities.

As a result of this uncertainty, Pickles purported to unilaterally revoke all regional strategies with immediate effect on 6 July.

The decision prompted National Housing Federation claims that 85,000 homes would drop out of the planning system, a figure since revised upwards to at least 182,000. In August, CALA Homes applied for judicial review of the revocation. Its case centred on a proposal for 2,000 homes in Winchester which had been refused in June. The site had previously been identified in the South East Plan and by the local authority as preferred for housing.

CALA advanced two grounds for the challenge. Under the first, it argued that Pickles acted outside his statutory powers in circumventing the need for parliamentary scrutiny of a fundamental change to the planning regime. Under the second, it insisted that the environmental impact of removing RSSs should be considered in line with European law.

Macfarlanes LLP head of planning Ian Ginbey, who acted for CALA Homes, maintains that unilateral revocation was "unlawful and premature". He adds: "Unfortunately, the decision left a policy vacuum, caused confusion throughout the industry and directly resulted in proposals for tens of thousands of new homes being abandoned. Those housing proposals will now need to be revisited prior to the passage of any primary legislation."

The court ruling prompted jubilation among developers. The Home Builders Federation (HBF) described it as a wake-up call for the government to put in place clear transitional arrangements for the move towards a localist replacement. It claimed that the judgement effectively reinstates RSSs and their housing targets - with councils needing to revert to the previous requirements.

"Everyone involved in the delivery of housing has been struggling with the policy vacuum caused by the revocation of RSSs," says HBF planning director Andrew Whitaker. Yet the DCLG quickly claimed that the ruling changes "very little". Planning minister Bob Neill points to its ambitions to sweep away regional strategies in the localism bill, due to be introduced in parliament by the end of the month.

"Top-down targets don't build homes. They have led to the lowest peacetime house-building rates since 1924," Neill insists. "Instead, we will work with local communities to build more homes. This was a commitment made in the coalition agreement and in the general election manifestos of both coalition parties. We intend to deliver on it."

SJ Berwin partner Simon Ricketts conceded that the government has a point. "However, under section 38 of the Planning and Compulsory Purchase Act 1990, it is for authorities to make determinations in accordance with the development plan, which once again now includes the relevant RSS, unless material considerations indicate otherwise. Decisions will be challengeable if they are not taken in accordance with section 38," he argues.

"Applications and appeals will again need to refer to relevant regional policies, authorities will have to take them into account in their decision-making and the weight to be attached to other material considerations is of course purely a matter for the authority.

"The courts will generally not interfere. Perhaps more widely, this is a salutary warning to the government of the relevance of the adage 'more haste less speed'."

While the DCLG insists that its courtroom defeat is only a temporary setback, the fact remains that the localism bill will not be in force until next July even on the government's own timetable. Until then, we can expect a planning free-for-all as developers clamber on to the opportunities now available.

PlanningBlog: CALA ruling: where does it leave planning?

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