Threads of Steel: Padfield Revisited

June 1, 2011

It was a fine evaluation of the Padfield principles that gave the Government success on 27 May 2011 in the challenge brought by Cala homes on the Government’s proposal to abolish regional planning strategies, writes Nick Dobson.

One of the modern canons of public law affecting the decisions of all local and public authorities was established by the House of Lords in 1968 in Padfield and Others v. Minister of Agriculture, Fisheries and Food and Others [1968] 1 All ER 694. There (the late and eminent) Lord Reid had said that: 'Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act. . .’. However: ‘. . .the policy and objects of the Act must be determined by construing the Act as a whole, and construction is always a matter of law for the court’.

More recently, in R v. Braintree District Council ex parte Halls (2000) 32 HLR 770, Laws LJ had said the Padfield principle ‘. . .is not that the exercise of the power is only to be condemned if it is incapable of promoting the Act's policy. . .’. Rather, he said, ‘the question always is: what was the decision-maker's purpose in the instant case and was it calculated to promote the policy of the Act?’.

And it was a fine evaluation of the Padfield principles that gave the Government success on 27 May 2011 in the challenge brought by Cala homes on the Government’s proposal to abolish regional planning strategies (see R (Cala Homes (South) Ltd) v. Secretary of State for Communities and Local Government and another [2011] EWCA Civ 639 and the Local Government Lawyer report on the decision).

Background

On 6 July 2010, the Secretary of State for Communities and Local Government (CLG) had made a statement to Parliament in which he announced his intention of revoking the requirement under section 70(1) of the Local Democracy, Economic Development and Construction Act 2009 which provided that: ‘There is to be a regional strategy for each region other than London’. The revocation was to be effected under section 79(6) of the Local Democracy, Economic Development and Construction Act 2009 which enables the Secretary of State at any time, if he thinks it necessary or expedient to do so, to revoke all or any part of a regional strategy.

However, on 10 November 2010, Sales J decided (amongst other things) that the power of revocation could not lawfully be used to abolish the entire regional strategy tier of the development plan ([2010] EWHC 2866). Following this, CLG’s Chief Planner wrote to the chief planning officer of all local planning authorities and to the Planning Inspectorate noting that the effect of the decision of Sales J was to re-establish Regional Strategies as part of the development plan. However, the letter also referred to a letter sent on 27 May 2010 by the Secretary of State to planning authorities and the Planning Inspectorate ‘informing them of the Government's intention to abolish Regional Strategies in the Localism Bill’ and indicated ‘that he expected them to have regard to this as a material consideration in planning decisions’. A copy of the proposed revocation clause in the Localism Bill was attached to the letter.

Cala Homes (as Appellant in the Court of Appeal) contended that the Government’s intention to abolish regional strategies was not capable of being a material consideration for relevant statutory purposes since for it to be so would subvert or thwart the legislative purpose contained in section 70(1) of the 2009 Act, namely that ‘there is to be a regional strategy for each region’.

Decision of Court of Appeal

The lead judgment was given by Sullivan LJ (who is of course an old hand at local government and planning law). His colleagues (Rimer and Rix LJJ) expressed terse, one-line agreement. In the view of Sullivan LJ the issue between the parties was very narrow i.e. ‘what are the relevant legislative policy and objects?’.

The material statutory provisions are section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. By section 70(2) when determining planning applications, local planning authorities must ‘have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations’ (emphasis added). And under section 38(6): ‘If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise’ (emphasis added once again).

Sullivan LJ pointed out that under the statutory scheme the decision-maker ‘must consider not only the development plan, but also other material considerations’. And those considerations ‘may include the fact that the policies in the development plan have become outdated, or are no longer relevant because of a change of circumstances; and those considerations may indicate that the decision should not be in accord with the development plan’.

His Lordship had referred to the decision of the House of Lords in City of Edinburgh Council v. Secretary of State for Scotland [1997] 1 WLR 1447 where (amongst other things) Lord Hope had said that the provision analogous in Scotland to section 38(6) left ‘a valuable element of flexibility’ and if ‘there are material considerations indicating that . . .[the development plan]. . .should not be followed then a decision contrary to its provisions can properly be given’.

In the circumstances, the ‘prospect of a change in planning policy is capable of being a material consideration, and taking account of this particular prospective change would not be contrary to the Padfield principle because the policy and objects of the legislative scheme construed as a whole require those responsible for determining planning applications and appeals to look beyond the development plan, and to have regard to other material considerations’

Comment

Ensuring that public authority decisions are consistent with statutory policy and objects per Padfield is one of the invisible threads of steel which bind such decisions as part of the jurisprudence developed to prevent abuse of public power. Other well-charted principles of course include: the obligation of fairness, the fiduciary duty to the public purse, consistency with Convention Rights (per section 6 of the Human Rights Act 1998) and the lawful and reasonable exercise of statutory discretion (per Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680).

However, in the planning context, Sullivan LJ said that in ‘most cases the constraint of Wednesbury rationality will be a very light rein because the Courts normally give a very wide latitude to planners' judgments as to the weight to be given to planning considerations’. But whilst in this case the scales of justice tipped on the Government’s side, public law decisions do require considerable care. And since navigating these principles safely can often seem like sailing through storm-tossed and rocky waters, any political grandstanding by those responsible for taking such decisions does need to be undertaken with caution.

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for the Association of Council Secretaries and Solicitors.