Strategies under siege

Legal challenges to the adequacy of appraisal work on regional strategies have ushered in a period of uncertainty for policy teams, control staff and applicants, Mark Wilding reports.

Regional planning is in turmoil. Six months ago the government's vision of 20-year strategies across England looked well on track. But after announcements last week seemed to concede that the correct procedure has not always been followed, the programme looks in serious danger of being derailed.

It was all going so well. In less than a year, four regional spatial strategies (RSSs) in the Midlands and north were adopted without significant problems. But when the East of England Plan was published, two councils announced that they would be launching a legal challenge. The events that followed have raised questions about regional plans' legitimacy and jeopardised prospects for those still to be finalised.

Hertfordshire County and St Albans City and District Councils' successful case hinged on the government's compliance with EU rules on strategic environmental assessment (SEA). This spring, a High Court judge ruled that the government had failed to consider alternatives to building thousands of homes in the Hertfordshire green belt (Planning, 29 May, p1).

David Elvin QC of Landmark Chambers represented the Hertfordshire councils. At the time, he suggested that the government could face problems in other areas on the same grounds. His predictions have come true over the following three months as six organisations launched separate challenges to the South East Plan (Planning, 21 August, p1).

Two government moves last week appear to acknowledge that the flaw in the East of England plan-making process is not an isolated incident. The DCLG decided not to contest challenges in the South East over its failure to carry out an SEA (Planning, 2 October, p1). Meanwhile, councils in the South West were told that their RSS would be held up to allow a review of the SEA exercise.

A Government Office for the South West (GOSW) spokeswoman maintains that the delay is not an admission of procedural errors. "After the East of England case there needs to be a belt-and-braces approach. It is not felt that there is anything wrong with the plan," she insisted

However, the claim cuts no ice with planning lawyers. "If the government is convinced that there is nothing wrong, it would not be carrying out a review. It obviously has concerns and wants to put them right," responds Mills & Reeve partner David Brock.

The fallout extends beyond delays to the plans' publication. Planning has learnt of advice to local authorities from GOSW that they should give "considerable weight" to the secretary of state's proposed changes to the draft RSS when producing policy and deciding applications. The legality of this approach has been called into question.

Francis Taylor Building barrister Gregory Jones has worked on a successful challenge to area plans in Northern Ireland on SEA grounds and is representing the University of Oxford in its challenge to the South East Plan. In his view, GOSW's advice is open to challenge by local authorities and any decisions relying on policy in the draft RSS may also be susceptible.

"The proposals are the subject of objection. There is a question over whether they should be given any weight at all," Jones reasons. "The advice is even more suspect given the decision by the government that it is conceding to challenges on the South East Plan."

He adds: "If planning permission has been granted on the back of policy that is later quashed, it is unlawful. Anyone considering challenging permissions that have been granted in the South West should review the extent to which there has been a reliance on the regional strategy. Equally, anyone refused consent because they have not complied with the plan should review their position."

Regional plans may set out strategic aims for 20 years, but delays and legal wrangles will have more immediate ramifications for applicants, appellants and local development framework teams. Consultants are concerned that the uncertainty will lead to foot-dragging by local authorities. Barton Willmore partner Simon Prescott urges councils to continue with their decision-making and use the draft RSS to proceed with work on core strategies.

"It is disappointing that after so much time and investment by the public and private sector, we still do not have the RSS in place," declares Prescott. "I am concerned that this delay will be used by officers or members to avoid making decisions. That cannot be good for the development industry as we start to come out of a recession."

Rather than pressing ahead on local policy, Brock suggests that councils are likely to have to review work already carried out. "If you have a core strategy going through the process at the moment drawing on the draft RSS, it will be vulnerable to legal challenges. If a strategy is still going through the system, is it sound? If it is based on an RSS that has not had a proper SEA it probably is not."

The South West strategy was originally due to be published in June. With the review not now expected to be completed until the new year, it looks unlikely to be finalised before the general election. The Conservatives have made clear that should they come to power they intend to scrap the regional planning structure. Almost 18 months since the first RSS was published, it seems increasingly likely that the full quota will never be realised.

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