Following the Cala Homes decision in the High Court most local council’s haven’t really known which way to jump in recent days. They have reacted quite understandably like rabbits caught in the glare of headlights.
The advice from the Planning Inspectorate then is not surprising but it is important. The advice is aimed at settling the minds of both developers and Council’s but when we take a closer look it is nothing more than a fudge to hold the line.
The new Localism Bill will in very simple terms state that the Regional Strategies are revoked and therein the housing targets derived of them are gone as well.
The Planning Guidance is careful to offer weight to both the Government’s view that it is intent on revoking the RSSs and the High Court decision that states until legislation is formally adopted the 2004 Act establishing RSSs applies, and any evidence or analysis using the policies of the RSS has relevance as a consequence.
There is no way that local councils can escape the conundrum this places them in – developers will now be able to cite the RSS policy framework as a material consideration that inspectors will have to give weight to.
In essence the judgements that will be made by inspectors will be a balance of fairness. If the application of RSS can be adjudged as unreasonable set against the prospect of the new legislation then an Inspector can give that perspective weight. The problem is that until the legislation is made law the existing statute is of greater importance than a Government’s announced intent.
Those sites that are subject to appeals that have fallen after Eric Pickles July announcement and the reinstatement of the RSSs under the Court ruling will have to be carefully assessed against the relevance and fairness test. Again, this is highly subjective and is likely to lead to some fairly complex legal wrangling.
The following approach has been developed by the Planning Inspectorate to assist in determining which cases may merit reopening, which may be dealt with by a reference back to parties for comment and which cases may not need any additional action:
(a) where RSS policy has no material relevance because the decision is of limited (local only) scale and impact and the decision-maker can rely on local statutory development plan policy alone as would have been the case before 6 July 2010, no further action is required;
(b) where it appears to an Inspector that RSS policy may be material as a consequence of the significant (greater than local) scale or impact of the proposal, but the cases put by the parties make no reference to RSS, the Inspector must refer to the parties, seeking a view as to the materiality and weight of RSS policies. Chart should be informed.
(c) where a decision relies on both local policy and RSS policy on the same issue, it is possible that the local statutory development plan policy can be relied upon if by applying less weight to the RSS policy the outcome does not change;
(d) where both local policy and RSS policy are relied upon on the same issue, but the RSS is relied on to a greater extent and if as a result of applying reduced weight to the RS the outcome is less certain or could change, then the parties’ views should be canvassed (Chart should then be advised); and
(e) where the parties’ cases rely primarily on the RSS, then the parties should be canvassed.
(f) If there is a reference to the parties or a re-opening, the Inspector should consider whether the case can be completed following consideration of issues raised by the parties or whether a postponement or adjournment is warranted.
None of this is straightforward and each developer with a case will have to test the water on a site by site basis, authority by authority. The position of those Councils who ripped up their Local Plans with great glee since July is of most note, they are vulnerable to appeals.
It appears as if the authorities are carefully acknowledging that they cannot ignore the court ruling, but that they are aware of the Localism Bill hitting the ground very shortly. Therein this debate becomes a matter of timing and process, how quickly can developers get their sites reconsidered using the RSSs before Pickles gets the Localism Bill adopted as an Act.
Dr Paul Harvey
Consultant, Curtin&Co
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