Councils that delay plans to cut housing numbers until the localism bill is enacted do so at their own peril

Last week’s appeal court decision on the latest challenge to government by Cala Homes has once again thrown the planning system into confusion. However, councils that think they can react by just delaying plans to ditch homes may lose control of planning in their areas, argues the lawyer representing Cala.

In August 2009, Caroline Spelman MP, the then Shadow Secretary of State for Communities and Local Government, wrote to Conservative councils urging them to delay major commercial and housing developments until a Tory administration gets into power and promptly “revokes [regional strategies]…in whole or in part”. 

On 27 May 2010, the Secretary of State wrote to local planning authorities informing them of the government’s intention to abolish Regional Strategies, and expecting them to have regard to this intention as a material consideration in any decisions they are taking. Due to the confusion caused by the effect of this announcement, the Secretary of State purported to revoke Regional Strategies on 6 July 2010. 

As has been well reported, on 10 November 2010 following a legal challenge by Cala Homes (South) Limited, the High Court found that this decision was unlawful, and so reinstated all Regional Strategies with immediate effect. On the same day the Secretary of State issued a written statement asserting that the ruling “changes very little” and wrote again to local planning authorities (LPAs) advising them that they should still have regard to the government’s intention to abolish Regional Strategies as a material consideration. This was taken by many LPAs as a permission to ignore (or attach very little weight to) Regional Strategies in development control and plan-making decisions, notwithstanding their reinstatement.

Last week, the Court of Appeal held (amongst other things) that it would be unlawful for LPAs to have regard to the government’s intention at all, when preparing their new development plan documents. The Secretary of State informed the court that his previous reference to “any decisions” was confined solely to development control.

That being so, any new development plan document must be in general conformity with the relevant Regional Strategies until such time as it has been formally revoked (which is, of itself, subject to satisfactory completion of a strategic environmental assessment). 

For those (many) authorities which had sought, and are seeking, to promote significantly less housing, in light of the government’s intention to remove the regional tier of planning, this presents a very real, practical difficulty. 

Some commentators have suggested that, rather than act in a flagrantly unlawful way by promoting development plan documents that do not generally conform with regional strategies, those LPAs who seek a “clean break” from regional planning and housing targets will now simply “sit on their hands” until regional strategies are finally disposed of. Whilst this may appear superficially tempting, it is far from a neat solution.

Firstly, such an approach sits ill with the statutory obligation which LPAs are under to prepare local development documents. This is particularly the case given the likely timescale for revocation of regional strategies. 

Even if Royal Assent for the Localism Bill is secured in relatively short order, any revocation of regional strategies cannot lawfully come into effect until the Strategic Environmental Assessment process has been satisfactorily completed. That process (which the Secretary of State had previously claimed to be impossible in practice) will take some time, with the necessary consultation exercise having not yet begun.

Secondly, and perhaps more practically, lengthy delays in (the already notoriously slow) plan-making process may lead to LPAs’ existing policies being branded “out-of-date” such that they would be overridden by the proposed “presumption in favour of sustainable development” contained in the Localism Bill. 

Any delay by LPAs would be at odds with the government’s call for “immediate action”

In this way, those LPAs now intending to “stall” progress on emerging policy could end up losing significant strategic control of planning decisions in due course.  This could open the door to unpopular development, in a manner far removed from that contemplated by many councillors, buoyed by the rhetoric of Government ministers.

Indeed, any delay by LPAs would be at odds with the government’s call for “immediate action”, as laid out in the “planning for growth” statement dated 23 March 2011 from the Minister for Decentralisation, Greg Clark, where he stresses: “[LPAs] should…press ahead without delay in preparing up-to-date development plans, and should use that opportunity to be proactive in driving and supporting the growth that this country needs.”

Deprived of the opportunity to lawfully develop an evidence base to support housing figures in emerging policy other than in general conformity with the relevant regional strategy, an LPA will not be able to ’hit the ground running’ in due course. As any evidence base will need to be robustly and transparently assessed, the impact of regional strategies could still be felt for some years.

As a final thought, it is worth remembering the recent recommendations of the (Conservative-dominated) Communities Department select committee (in its report entitled “Abolition of regional spatial strategies: a planning vacuum?”) that guidance as to the correct basis for decision making be issued to LPAs (and others) as soon as possible; and that formal transitional provisions be put in place. Given Cala’s second legal challenge, the need to implement these recommendations could not be more pressing.

Ian Ginbey is the head of planning at Clyde & Co LLP, which acts for Cala.