Latest CALA twist sees stay lifted from ministerial statement and Chief Planner letter

Communities Secretary Eric Pickles has succeeded in getting lifted the stay on the written ministerial statement he made and the Chief Planner's letter that was issued in response to the CALA judgement.

This came after the minister undertook to post a statement on the Department for Communities and Local Government and the Planning Inspectorate websites.

The statement – which was agreed with CALA Homes' lawyers – reads as follows: "Local planning authorities and planning inspectors should be aware that the Secretary of State has received a judicial review challenge to his statement of 10 November 2010, the letter of the Chief Planner of the same date and to the Secretary of State’s letter of 27 May 2010 on the ground that the Government’s intended revocation of Regional Strategies by the promotion of legislation for that purpose in the forthcoming Localism Bill is legally immaterial to the determination of planning applications and appeals prior to the revocation of Regional Strategies.

"The Secretary of State is defending the challenge and believes and is advised that it is ill founded. Nevertheless, pending determination of the challenge, decision makers in local planning authorities and at the Planning Inspectorate will in their determination of planning applications and appeals need to consider whether the existence of the challenge and the basis of it, affects the significance and weight which they judge may be given to the Secretary of State’s statements and to the letter of the Chief Planner.

"The Secretary of State will notify the determination of the Court once it has been made. This is currently expected to be by the end of January 2011."

The original High Court judgement – handed down by Mr Justice Sales on 10 November – found that Eric Pickles had acted outside his statutory powers when revoking regional strategies. The minister then issued a statement insisting that “whilst respecting the court’s decision, [the] ruling changes very little”. He added that the Localism Bill would “sweep away” the strategies.

In a letter sent on the same day, the Chief Planner Steve Quartermain wrote “confirming that [local planning authorities] should have regard to this material consideration (revocation of the strategies) in any decisions they are currently taking”. The stay has also been lifted on this communication.

The written ministerial statement and the Chief Planner's letter prompted CALA Homes to bring a second round of proceedings. Macfarlanes partner Ian Ginbey confirmed the move to Local Government Lawyer. He said: “We are seeking (amongst other things) a declaration from the court that the government’s stated intention to enact primary legislation in the future to abolish Regional Strategies is not a material consideration for determining planning applications etc.”

On 26 November Mr Justice Lindblom ordered that the claim be expedited, imposed the stay, and said the matter should be listed for a rolled up permission and substantive hearing on 20 December.

Commenting on the latest developments, Douglas Edwards QC, a barrister at Francis Taylor Building said: “All the stay was doing was saying that, until the substantive hearing of the second round of CALA Homes litigation, the Secretary of State’s statement and the Chief Planner’s letter should have no effect. It seemed to be saying that in the interim period until the substantive hearing, any planning decision-maker should not give any weight to the government’s intention to ask Parliament to abolish regional strategies.

“That’s a very unusual stay because effectively it’s staying a point in anticipation of a conclusion on a matter of law. But the practical effect of that stay being lifted is that until such time as the court pronounces otherwise, then in any planning decision a planning authority has to consider the extent to which reliance can be placed on a regional strategy in the light of the government’s intention to seek to revoke them.

“Notwithstanding the [Chief Planner’s] letter, in any decision that a planning authority is reaching where the question as to the weight to a regional strategy is very much at the heart of the decision, they would be well advised to reach their own independent assessment, having taken legal advice on what weight they can attach to that regional strategy and not just to accept that because the Secretary of State says it is a material consideration, that as a matter of law it is. It’s simply adding another layer to the confusion."