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Regional Strategy Returns (or not?)

Regional Strategy ReturnsIn 'Wesham Inquiry Opens' we reported that Metacre had appealed for permission to build 264 dwellings north of Mowbreck Lane in Wesham. We said the appeal would turn on the matter of the abolition of the RSS, and its associated housing numbers.

Readers will remember that the Rt. Hon. Saint Eric Pickles abolished the Regional Strategy (which itself set ludicrously high housebuilding targets for places like Fylde) soon after the coalition government came to power (See 'Eric Pickles for King').

But then, developer 'Cala Homes' (owner of - amongst other land - 87 hectares in Winchester, where it wanted to build 2,000 houses) made a legal challenge to St Eric's decision, using a Judicial Review.

Broadly speaking, a Judicial Review provides a mechanism to review and if necessary, overturn, a decision made by an agency of government where that decision can be shown to be either illegal; unfair; or 'irrational and disproportionate'.

So Cala homes had to show that St Eric was under a legal duty to act or make a decision in a certain way and that he had unlawfully refused, or otherwise failed to do so. Or they had to show that his decision or action  was  'Ultra vires' (beyond the powers that were lawfully available to him).

Whilst the circumstances of the Cala case at Winchester are specific and idiosyncratic, their first challenge to St. Eric was on the broader principle that the he had frustrated the Act that created the Regional Strategies, and Cala argued he did not have the power to do this.

The implication here is that Parliament - not the government - had made the law, and thus only Parliament could change it.

So Cala claimed there should be a Regional Strategy in place for each region as a tier of regional planning policy guidance to which regard should be had by planning authorities in operating the planning system.

But barristers for the Government argued that since the St Eric has specific power (set out in the Act) to revoke any Regional Strategy, he must also have the power to revoke all Regional Strategies.

And since he has power to do that, he has power to revoke the entire Regional Strategy tier of planning policy guidance if he thinks it is not operating in the public interest.

Therefore, (they said) it followed that the system of Regional Strategy planning guidance could be brought to an end by the Secretary of State without having to wait for the Parliament to pass new legislation.

Tricky, innit?

Cala also argued that the process used by St Eric (a sort of 'ministerial decree') meant that the likely environmental effects of revoking regional strategies (don't even ask what this means, dear reader) wouldn't be assessed, and there would be no opportunity for public comment.

St Eric's people said 'How on earth can you undertake an Environmental Impact Assessment of a decision not to do something? This is simply not possible.

Mr Justice Scales sat in judgement. The planning anoraks amongst you can follow this link to see a full copy of his judgement, (courtesy of one of our readers)

But cutting to the chase, he sided with Cala Homes on both issues. He said that whilst St Eric might occasionally need to use his powers to revoke one specific Regional Strategy, Parliament had approved the system as a whole, and only they should repeal it. So the effect of his decision is to re-establish Regional Strategies as part of the development plan. (But don't get too excited yet, dear reader, this is all going to change shortly. Read on.)

He also said that because of his first judgement, he didn't need to determine the issue of the Environmental Impact study (because Cala had won their case already) but he went on to say that in his view, if you could do an environmental impact assessment to create a Regional Strategy, he saw no reason why you shouldn't have to do one to repeal it.

To us, what this shows is that the legal system hasn't yet caught up with real life.

These days (sadly) Parliament is virtually sidelined by presidential Prime Ministers and partisan government majority. So it is, in effect, Government, and not Parliament, that makes the decisions.

And those decisions are increasingly party politically based, not based on parliamentary consensus or what's best for the Country. So it's only natural that when a 'new lot' are swept into Government, they will undo much of what the 'previous lot' did, because they are ideologically opposed to it. But the Court seemed to think Parliament still ruled.

The second part of the judgement is, in our view, plain barmy. An Environmental Impact Assessment looks at what will happen when something might change, and at how to mitigate the adverse impacts of such change if it happens. If you undo that change, you revert to status quo, and it's plain daft to require an assessment to be done for that.

But it's not for the likes of counterbalance to hold courts in contempt, is it?

So what does Mr Justice Scales' judgement mean in practice?

Well, Government planning minister Bob Neill said: "This judgment changes very little. Later this month we will be introducing the Localism Bill to Parliament, which will sweep away the controversial regional strategies."

He added: "The Government remains firmly resolved to scrap this layer of confusing red tape. 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 manifestoes of both Coalition parties. We intend to deliver on it."

A spokesman for Cala Homes said "With regional strategies remaining in place we have a clear legal framework to operate within to ensure that much needed housing delivery is maintained until the new arrangements have had time to settle down and become effective. The housebuilding and construction industry has a major role to play in helping to grow the economy and it is essential that investment is encouraged and supported where it is most needed.

I can also confirm that the public inquiry regarding our proposed development at Winchester will commence on 8th February 2011 and is anticipated to last for 8 days. The Court's decision is of some assistance to CALA's case, although our view is that the housing need in Winchester is so significant that new development is required in any event...."

But Cala's victory is looking pyrrhic. And they've probably spoiled their chances for the future. St Eric himself issued a statement which included the following....

 "Whilst respecting the court's decision, this ruling changes very little. Later this month, the Coalition Government will be introducing the Localism Bill to Parliament, which will sweep away the last Government's controversial regional strategies.......

....On 27 May 2010, the Government wrote to local planning authorities and to the Planning Inspectorate informing them of the Coalition Government's intention to rapidly abolish regional strategies and setting out its expectation that the letter should be taken into account as a material planning consideration in any decisions they were currently taking.

That advice still stands.

Today, the Government's Chief Planner has written to all local planning authorities and the Planning Inspectorate confirming that they should have regard to this material consideration in any decisions they are currently taking.

Moreover, to illustrate the clear policy direction of the Coalition Government, the proposed clause of the Localism Bill that will enact our commitment to abolish regional strategies is being placed in the Library. The Bill is expected to begin its passage through Parliament before Christmas."

 Sure enough, Steve Quartermain, his Chief Planner wrote to Councils saying: "...the Secretary of State wrote to Local Planning Authorities and to the Planning Inspectorate on 27 May 2010 informing them of the Government's intention to abolish Regional Strategies in the Localism Bill and that he expected them to have regard to this as a material consideration in planning decisions."

In case this tale is all getting a bit confusing for readers (as it was for us),  we're grateful to one of our readers for the following incisive clarity in the matter (Note this is the same person who told us at the inquiry that Cala's challenge to St Eric wouldn't get anywhere even if they won)....

First, the starting point for the determination of the appeal is s38(6) of the Compulsory Purchase Act 2004 (which requires local planning authorities, when considering planning applications, to have regard to the provisions of the development plan).

Secondly, for now, the Cala decision means that Regional Strategies are part of the development plan.

It follows, that in determining this appeal, the Secretary of State must have regard to the Regional Strategy, (so far as is relevant to the issues).

Next, the Secretary of State says that the written Ministerial statement is a material planning consideration.

As a matter of law, this is right.

It follows, that the issue now is: in coming to his decision, what weight should the Secretary of State give to the Regional Strategy?

The answer must be that, provided he has regard to it (which is quite different from following it or applying it) little or no weight should be given to the Regional Strategy because a material planning consideration (the written Ministerial statement) indicates otherwise.

On the other hand, great weight should be given to the saved policies of the Fylde Local Plan which identify the appeal site as being in a Countryside area where a strong presumption against development of the sort proposed exists.

In the absence of factors which override the presumption against development, the Metacre appeal should be dismissed.

By 3rd March 2011, the necessary legislation will be on its way through Parliament.

So there we are. An interesting point of law has been made, but it hasn't really changed anything in practice. The Regional Strategies will soon be abolished, and until they are, the Government's current thinking will have more weight in planning arguments.

One final point.

The 10th November letter that Steve Quartermain, (St Eric's Chief Planner) sent to local authority Chief Planning Officers also contained the wording that Government will use in its soon-to-be-published Localism Bill to make the legislative change in Parliament.

This clause is uncompromisingly blunt, and says...

"Abolition of Regional Strategies
1) Part 5 of the Local Democracy, Economic Development and Construction Act 2009 (regional strategy) is repealed.

2) The regional strategies under Part 5 of that Act are revoked."

We wouldn't be surprised if, in the future, this became known as the 'Sod off Cala Homes' clause - in less erudite circles than those adopted by our readers of course.

But as usual, it ain't over until the fat lady sings, and shortly after writing this piece (which we thought was finished), news reached us that Cala Homes is considering going back to the High Court to challenge Saint Eric's position. Again!

We hear the are planning to argue that St Eric  does not have the authority to say his letter (of 27th May signalling his intention to abolish the Regional Strategies) should be taken into account as a material planning consideration in any planning decisions.

The plot thickens.

We'll keep readers informed as news reaches us.

Dated:  23 November 2010


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