Ian Ginbey argues that Eric Pickles’ latest defeat may have repercussions across the planning system

The secretary of state has belatedly acknowledged that his approach in refusing consent for Cala Homes’ 2,000 home development at Barton Farm in Winchester (against the recommendation of his inspector) in September 2011 was unlawful, days before the matter was due to be heard by the High Court. As such, Cala’s appeal will now remit to him for redetermination.

Cala’s promotion of Barton Farm was the motivation for its well-reported, successful legal challenge to the secretary of state’s preemptory revocation of Regional Strategies in November 2010.

Developers maintained that the secretary of state’s approach was in direct conflict with guidance regarding prematurity, as well as the emerging National Planning Policy Framework

The secretary of state’s decision to refuse consent centered on his finding that do so would undermine the authority’s ‘Blueprint’ process, to which he attached decisive weight because it was considered to accord with the government’s ‘localism’ agenda. He did so even though this process only formed a preliminary stage in the council’s emerging core strategy. Notably, around the same time as the Barton Farm decision, he cited similar reasons for rejecting a 1,300-home extension to St Austell and a scheme for 280-homes in Sandbach, Cheshire, promoted by Fox Land and Property.

Similarly, those decisions were all subsequently the subject of legal challenge. Judgment is expected shortly in respect of the challenge in Sandbach whereas the challenge against his decision in St Austell is due to be heard shortly.

In each case, the developers maintained that the secretary of state’s approach was (among other things) in direct conflict with current guidance regarding prematurity, as well as the emerging National Planning Policy Framework, which (as drafted) states that applications should be approved when local plans are “absent, silent, indeterminate or when relevant policies are out of date”. We await with interest the outcome of those challenges he continues to defend.   

More generally, it remains to be seen whether the secretary of state continues to invoke ‘prematurity’ in the context of major housing schemes, with ‘prematurity’ recently being cited by an inspector in refusing a 59 unit scheme in Romsey, for example.

In light of the Secretary of State’s capitulation in respect of Cala’s challenge, it remains to be seen whether he continues to invoke ‘prematurity’ in the context of major housing schemes. Should he abandon this approach, the above spate of decisions will merely stand as a short-lived experiment on his part in seeking to (unsuccessfully) find an appropriate balance as between the government’s ‘localism’ and pro-growth agendas. Alternatively, the government would be wise to ‘plug the hole’ in this guidance, as a matter of urgency, if ministers are intent on maintaining this line.

While such a tack would go some way towards countering criticisms aired by certain stakeholders and members of the public in the context of the recent furore surrounding the draft NPPF, it would also run the risk of stymieing house-building at a time when the government is purporting to reinvigorate the sector. 

In any event, there remains considerable uncertainty, principally of the government’s making, at a time when it is elsewhere insisting on the paramount importance of getting the sector back on its feet.

Ian Ginbey is head of planning at Clyde & Co, which acts for Cala Homes