An Analysis of the Political Dimension to the ‘Cala’ Decision
The High Court decision to wrap Eric Pickles across the knuckles for acting unlawfully when he unilaterally announced without primary legislation that the Regional Spatial Strategies and housing targets based on them were scrapped in July is a very serious political decision.
It is not just a case of political embarrassment that the High Court has judged the Secretary of State for Local Government and Communities to have acted unlawfully: The far more salient point is that councils across the country have been ripping up their Core Strategies and throwing out planning applications based on his decision.
If, for now, the Regional Strategies are alive and kicking and their targets are relevant and enforceable then developers will have a field day at appeal with sites that local authorities have thrown out, or sites that have been allocated in Core Strategies that authorities have since thrown out. Everybody who acted immediately on Pickles’ decision in July is now in a Pickle.
This decision could mean planning by appeal for the next year or more whilst the Localism Bill travels through the Parliamentary process. Developers may be submitting applications at some considerable pace based on the Regional Strategies policies and targets in order to beat the new legislation scrapping those same policies and targets. This is a recipe for confusion and for a lot of work for the Planning Inspectorate. It will also mean developers having to explain what will look like a very aggressive move to both councillors and communities who had assumed RSSs were gone for good.
You could not script the drama that this High Court decision is going to create. Watch out now for the Town Hall reaction which is likely to be as dramatic and angry – this is politics and the Judiciary are getting in the way of politicians doing what they want.
The Judgement:
The Judgement itself was very clear and stated that:
“The LDEDCA 2009 maintains in place, with some modifications, the whole elaborate machinery set up by Parliament under the PCPA 2004 to create a new statutory tier of regional planning guidance in the form of Regional Spatial Strategies, now re-named as Regional Strategies. I refer to some particular features of the regime set out in Part 5 of the 2009 Act below, but the main and critical point is that there is no sufficient indication in section 79(6) of the 2009 Act that Parliament intended to reserve to the Secretary of State a power to set that whole elaborate structure at nought if, in his opinion, it was expedient or necessary to do so because it was not operating in the public interest. If Parliament had intended to create such a power for the Secretary of State – something akin to a Henry VIII clause, since the practical effect of it would be to grant the Secretary of State power to denude primary legislation of any practical effect, without having to seek the approval of Parliament for such a course by passing further legislation – it would in my opinion undoubtedly have used much clearer language to achieve that effect and would have given the provision far greater prominence than section 79(6) has, tucked away as a final sub-section in a provision otherwise dealing with revision of Regional Strategies. A contrast may be drawn in that regard between the location of section 79(6) in Part 5 of the 2009 Act and the prominence given to section 70(1) as the leading provision in Part 5, which sets the scene for the provisions which follow in that Part and is the basis for the whole elaborate framework which that Part puts in place.
The provisions in Part 5 of the 2009 Act requiring Regional Strategies to be published, making provision for the public to have opportunities to make representations regarding their drafting (including, where appropriate, at examinations in public) and for community involvement in the preparation of such planning policy guidance (see section 75) are all strong indications as to the importance which Regional Strategies are intended to have in the operation of the planning system and for the guidance of the public. These are important means of ensuring public participation in the creation of planning policy and transparency in relation to such policy, and it is not plausible to suppose that Parliament intended that they should be capable of being simply by-passed by action taken by the Secretary of State under section 79(6), which carries with it no procedural protections or requirements at all;
The centrality which Parliament intended Regional Strategies to have in the planning system is underlined by the strong practical effect to be given to them as set out in section 36(3) and (6) of the PCPA 2004 (as amended by the 2009 Act), when applications for planning permission fall to be determined. Again, I do not consider that it is plausible to suppose that Parliament can have intended that the Secretary of State's power in section 79(6) should extend to abrogating the whole system to have in place and give effect to such a primary instrument of planning policy.”
Conclusion:
The central legal point is that the Judge declares that the legislation regarding Regional Strategies exists, that the Secretary of State does not have the delegated authority outside of Parliament to abrogate RSSs from the planning system and, crucially, that they remain in place and applicable to all planning considerations. It will take an Act of Parliament to remove them.
The Government is, at this stage, not proposing to appeal the decision and other developers are lining up to launch their own legal actions based on their own experiences around the country.
There are a few key points that need to be established:
1) How local authorities will react – they have neither the expertise nor finances to tackle legal challenges, and they will be wary of the High Court ruling. However, for those authorities that have already scrapped their LDFs or have taken decisions based on the scrapping of housing targets and RSS policies, they now find themselves in a no-man’s land. Developers will need to carefully explore the options with these authorities in light of the publication of the Localism Bill’s timetable.
2) The Localism Bill’s timetable is everything now: Just how much time have developers got to play with until the RSSs and Housing Targets are scrapped under primary legislation. There is no question that the Government is still committed to its new planning framework so it is a question of “when” rather than “if”.
3) The dialogue between councils and developers is now emphasised not just as a part of the Localism agenda, but also as a part of the process of planning between now and the adoption of the Localism Bill.
The three key points are watching for reaction, looking for time, and opening dialogue. This is a messy situation and everyone will be picking up the pieces and trying to feel their way over the coming weeks.
Dr Paul Harvey, Curtin&Co
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