DCLG wins appeal over abolition of regional strategies

The government is claiming victory after the High Court ruled that its intention to abolish regional strategies can be taken into account by local planning authorities and planning inspectors as a material consideration when making planning decisions.

The abolition of regional strategies was announced by the Communities Secretary, Eric Pickles, on 6 July 2010, but they were re-established after a legal challenge by developer Cala Homes.

Mr Justice Lindblom in the High Court today ruled that the Secretary of State was entitled to advise authorities that the proposed revocation of regional strategies was to be regarded as a material consideration in their planning decisions.

“For the Secretary of State to do this was not to subvert the policy and objects of Part 5 of the Local Democracy Economic Development and Construction Act 2009 or, more generally, the policy and objects of the existing planning legislation as a whole. On the contrary, it was entirely consistent with the principles which underpin the statutory framework.”

But the judge also made clear that the law had always distinguished between materiality and weight.

“The distinction is clear and essential,” Mr Justice Lindblom added. “Materiality is a question of law for the court; weight is for the decision-maker in the exercise of its planning judgment.

“So long as it does not lapse into perversity, a local planning authority is entitled to give a material consideration whatever weight it considers to be appropriate…. Thus, in appropriate circumstances, a local planning authority in the reasonable exercise of its discretion may give no significant weight or even no weight at all to a consideration material to its decision, provided that it has regard to it.”

The judge pointed out that neither the Secretary of State’s statement nor the letter from the Chief Planner had specified how much weight local planning authorities or inspector should give to relevant provisions pending their abolition, “let alone suggests that no weight, or minimal weight, is given to them”.

He added: “Weight is left to the decision-maker. Authorities will no doubt differ in their views on this. They will know, however, that the Secretary of State has not sought to impose a view of his own.”

The judge rejected Cala Homes’ other grounds for its claim, namely that the Secretary of State had acted irrationally when issuing the statement and the Chief Planner’s letter, and that he had failed to comply with the requirements relating to the carrying out of strategic environmental assessment. However, he also threw out the Secretary of State’s contention that the litigation was an abuse of process.

The government is looking to abolish regional strategies through the Localism Bill, which received its Second Reading on 17 January 2011 in the House of Commons and is currently in committee stage.

Planning Minister Bob Neill said: "We are determined to return decision-making powers to communities and provide powerful incentives so people can see the benefits of building more homes, and the Bill will help achieve this. This judgment makes it clear that planners can take into account the government's intention to do away with regional strategies.

"The coalition government made a firm pledge to sweep away these controversial strategies that have proved that top-down targets do not build homes. All they have produced is the lowest peacetime house building rates since 1924 and fuelled resentment in the planning process that has slowed everything down."

Commenting on the ruling, David Merson, head of planning and environment at Steeles Law, said: “Notwithstanding the court’s confirmation that the intended abolition of regional strategies is a material consideration and that it should be taken into account when deciding applications, this does not in any way alter the public law position that the weight to be attached to a material consideration is, absent any perversity, a matter entirely for the decision maker.”

Whether the decision will have wider effect beyond the particular planning application remains to be seen, he added.

Philip Hoult

A fuller story will be appear on Local Government Lawyer later.