Government fends off Regional Spatial Strategies appeal

The Court of Appeal has rejected a claim brought by CALA homes against its decision to abolish  Regional Spatial Strategies, allowing planning authorities to take the forthcoming abolition of the policy into consideration when deciding planning applications and appeals.

CALA had claimed that the Government's intention to abolish the strategies could not lawfully be taken into account in any way in relation to planning applications and appeals until such time the RSS is formally abolished when Localism Bill becomes law. CALA Homes lost an earlier challenge in the High Court.

The judgment means that the proposed abolition of the strategies can be regarded as a 'material consideration' by local planning authorities and inspectors when deciding planning applications and appeals.

The judges, Lord Justices Rix, Rimer and Sullivan, said:

“The weight to be given to any prospective change in planning policy will be a matter for the decision-maker's planning judgment in each particular case. In principle, the means by which it is proposed to effect a change in policy, by new legislation, by amendment under existing legislation, or by administrative action such as the publication of a new Planning Policy Statement (PPS), goes to the weight, not the materiality, of the prospective change.

“If the change is to be effected by legislation, will Parliamentary approval be obtained, and if so in what form and within what timescale? Subject to the Appellant's Padfield point, a change in policy that is proposed to be effected by legislation is not an immaterial consideration on the day before Royal Assent, and a material consideration on the day that Royal Assent is granted. The stage reached in the legislative process goes to the weight, not the materiality of the proposed change.”

Planning Minister Bob Neill said: "This judgment confirms that decision makers can take into account the Government's intention to sweep away Regional Strategies when deciding planning applications and appeals. I welcome the helpful guidance given in the judgment on the approach which local planning authorities and inspectors should follow in such decisions. Under the previous government's top-down targets we saw the lowest peacetime housebuilding rates since 1924.”

This judgment does not affect decisions already made on planning applications.

Regional Strategies were revoked on 6 July 2010 but were re-established on 10 November 2010 after a successful challenge by housing developer CALA Homes. A subsequent challenge by CALA Homes, to halt planners taking account the intended revocation of the strategies as a 'material consideration' when deciding planning applications and appeals, was unsuccessful by the developer.

Pending abolition Regional Strategies remain part of the statutory development plan. The weight given to any 'material consideration' depends on the individual circumstances and it is for the decision maker to decide on the appropriate weight.

The full judgment can be read at the following link: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2011/639.html&query=cala&method=boolean

See also:

Padfield Revisited
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.