ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE LINDBLOM
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE SULLIVAN
| THE QUEEN ON THE APPLICATION OF CALA HOMES (SOUTH) LIMITED
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT & ANR
Tim Mould QC and James Maurici (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 5th and 6th May 2011
Crown Copyright ©
Lord Justice Sullivan :
The statutory framework
The development plan
"(a) the regional strategy for the region in which the area is situated, and
(b) the development plan documents (taken as a whole) which have been adopted or approved in relation to that area."
"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."
"Plan led" development control
"It requires to be emphasised, however, that the matter is nevertheless still one of judgment, and that this judgment is to be exercised by the decision-taker. The development plan does not, even with the benefit of section [38(6)] have absolute authority. The planning authority is not obliged, to adopt Lord Guest's words in Simpson v Edinburgh Corporation, 1960 S.C. 313, 318, "slavishly to adhere to" it. It is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what it has laid down. But some of its provisions may become outdated as national policies change, or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development, or which may provide more up-to-date guidance as to the tests which must be satisfied will continue, as before, to be a matter for the planning authority."
(Lord Hope at p. 1450 B-D)
"By virtue of section [38(6)] if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance. Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given."
(Lord Clyde at p. 1458 E-F)
Local development documents preparation
"ABOLITION OF REGIONAL STRATEGIES
I am writing to you today to highlight our commitment in the coalition agreements where we very clearly set out our intention to rapidly abolish Regional Strategies and return decision making powers on housing and planning to local councils. Consequently, decisions on housing supply (including the provision of travellers' sites) will rest with Local Planning Authorities without the framework of regional numbers and plans.
I will make a formal announcement on this matter soon. However, I expect Local Planning Authorities and the Planning Inspectorate to have regard to this letter as a material planning consideration in any decisions they are currently taking."
(i) that the power of revocation under Section 79(6) could not lawfully be used to abolish the entire regional strategy tier of the development plan; and
(ii) that there had been no consideration as to whether this change in the development plan was likely to have significant environmental effects, in breach of Directive 2001/42/EC ("the SEA Directive"), as transposed into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004 ("the SEA Regulations").
"ABOLITION OF REGIONAL STRATEGIES
I am writing to you today following the judgment in the case brought by Cala Homes in the High Court, which considered that the powers set out in section 79(6) of the Local Democracy, Economic Development and Construction Act 2009 could not be used to revoke all Regional Strategies in their entirety."
The effect of this decision is to re-establish Regional Strategies as part of the development plan. However the Secretary of State wrote to Local Planning Authorities and to the Planning Inspectorate on 27 May 2010 informing them of the Government's intention to abolish Regional Strategies in the Localism Bill and that he expected them to have regard to this as a material consideration in planning decisions.
I am attaching the proposed clause of the Localism Bill that will enact that commitment. The Bill is expected to begin its passage through Parliament before Christmas, and will return decision-making powers in housing and planning to local authorities. Local Planning Authorities and the Planning Inspectorate should still have regard to the letter of the 27th May 2010 in any decisions they are currently taking………….."
At that stage there was no Bill. The proposed clause in the draft Bill attached to the Chief Planner's letter was as follows:
"1 Abolition of regional strategies
(1) Part 5 of the Local Democracy, Economic Development and Construction Act 2009 (regional strategy) is repealed.
(2) The regional strategies under Part 5 of the Act are revoked."
(i) that the Government's intention to abolish regional strategies was incapable in law of being a material consideration within the meaning of section 70(2) of the 1990 Act;
(ii) that the issuing of the statement and letter on 10th November 2010 was irrational; and
(iii) that there had been a failure to comply with the requirements relating to Strategic Environmental Assessment in the SEA Directive and the SEA Regulations.
Lindblom J rejected all three grounds. There is no appeal against his decision to reject grounds (ii) and (iii).
"We intend to compile an environmental report for each region and to consult on it in line with the process laid down in the Environmental Assessment of Plans and Programmes Regulations 2004. Local authorities and others should find this helpful in identifying issues relevant to their areas and policies or initiatives in the Regional Strategies which are no longer in effect, and it should also help them decide how to proceed with preparing or reviewing their own plans.
This process of environmental assessment will be carried out during the passage of the Bill through Parliament. Subject to Royal Assent, the revocation of each individual Regional Strategy will be commenced after the assessment process has been completed."
"Abolition of regional strategies
(1) The following provisions are repealed –
(a) sections 82(1) and 83 of the Local Democracy, Economic Development and Construction Act 2009 (effect of regional strategies), and
(b) the remaining provisions of Part 5 of that Act (regional strategy).
(2) Subsection (1)(b) does not apply to –
(a) section 85(1) (consequential provision) of that Act,
(b) Schedule 5 to that Act (regional strategy: amendments) (but see Part 14 of Schedule 24 to this Act), or
(c) Part 4 of Schedule 7 to that Act (regional strategy: repeals).
(3) The regional strategies under Part 5 of that Act are revoked."
Schedule 8 contains a large number of consequential amendments. The provisions of section 89 are to come into force on such day as the Secretary of State may by order appoint: Clause 206(2).
"The rule is not that the exercise of the power is only to be condemned if it is incapable of promoting the Act's policy, rather 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?"
(a) the Respondent's purpose was to abolish regional strategies; and
(b) that purpose was not calculated to promote (indeed it was directly contrary to) the policy of the 2009 Act that regional strategies should exist as part of the development plan.
(a) the regional strategy is to be the upper-tier of the development plan;
(b) the decision-maker must have regard not only to the development plan but also to other material considerations when determining planning applications or appeals; and
(c) the decision-maker may grant or refuse planning permission contrary to the development plan if material considerations indicate that it should not be followed.
(a) the purpose of the Chief Planning Officer's letter dated 10th November 2010 was to draw local planning authorities' attention to the proposed abolition as, potentially, a material consideration; and
(b) that purpose was calculated to promote the policy and objects of the legislation, that local planning authorities should have regard not merely to the development plan, but also to other material considerations.
(a) Parliamentary approval; and
(b) the SEA process.
(a) Parliament's acceptance of the proposal; and
(b) the outcome of the SEA process.
It would be inappropriate for any decision-maker to consider in any detail what Parliament's response to the Government's proposal might be, because to do so might involve them in questioning the proceedings of Parliament: see the Office of Government Commerce case (para 29 above). Moreover, even if clause 89 is enacted in its present form, it could not lawfully be assumed that revocation of any individual regional strategy is bound to occur regardless of the outcome of the process of environmental assessment, because to make such an assumption would be contrary to the requirement of the SEA Directive and the SEA Regulations: that a decision to revoke may not be made until the process has been completed.
34. I would dismiss this appeal.