Yesterday’s decision by Justice Lindeblom to throw out Cala Homes’ judicial review against the government will come as a blow to the firm, and a number of other developer’s attempting to piggy-back on its cause.
The issue is vitally important, as it addresses the validity of regional plans, along with the housing targets they hold, in councils making planning decisions, and therefore goes to heart of the government’s whole localism agenda. Without the plans, councils are much freer to refuse applications to build.
Last November, Cala won a landmark ruling, that communities secretary Eric Pickles had acted unlawfully in summarily abolishing regional plans. The challenge was a significant victory, and Cala was to be applauded in sticking its head above the parapet after, as I understand it, a number of housebuilders had refused to launch a case, for fear of upsetting the new government.
As a result, the dangerous hiatus in the planning system that has occurred since the election of the Coalition can be, if not halted, then at least challenged. And housebuilders, including Taylor Wimpey last week in Leeds, are already benefitting from Cala’s bravery by winning appeals against refusals.
However, it should probably have stopped there. The technicalities of Cala’s second judicial review are probably too detailed and almost certainly too tedious to recount, but are centred on the government’s response to its defeat in November. It said that the decision, which effectively re-instated regional plans, made little difference because the government still intended to revoke them in the Localism Bill, and therefore that this could be a material consideration in planning decisions.
This isn’t the same as saying the regional strategies doesn’t exist, merely that the fact of their future abolition can be weighed in making judgements. Therefore if Buntingdon District Council in Royal Wessexshire has made it clear it wants to reduce its annual housing target from 5,000 homes to 50, then someone making a decision on a new 5,000-home urban extension is allowed to consider that intention in their decision, even if technically the 5,000-home target is still in force.
Planning decisions are, after all, about weighing the merits of various factors. Given that reducing the housing target to 50, in this made up example, is presumably the will of the elected local council, and the intention to revoke regional strategies is the will of the elected UK government, it seems perverse to be forced to ignore this in making planning decisions.
And that is the case however wrong-headed, from a construction industry point of view, you think that desire to limit development is; and how unfair from the point of view of all those waiting to find cheap housing in Buntingdon it seems. And however damaging it is to the wider economy. Elected officials have power to change things – unfortunately we’re not going to always like it. It’s annoying, but unfortunately it’s democracy.
Justice Lindenblom’s decision was unequivocal – he says the government’s response to the first defeat was “entirely consistent with the principles which underpin the statutory framework,” and that Cala’s argument had failed to understand what his intention was.
That’s why it comes as such a surprise that Cala has already announced it is to appeal his ruling. It feels like the time has come for the development industry to accept that localism is here to stay, and try to work with the grain of it. While clauses in the bill may be tinkered with, there is absolutely no possibility regional plans will survive – housebuilders and developers have to get used to it.
None of this is to say the government should be allowed to act in an unconstitutional manner. In Cala’s first case, it was shown Pickles acted unlawfully and prematurely, causing a great deal of damage and confusion. The housebuilder was right to challenge.
But this latest case Cala would perhaps be advised to gracefully accept defeat. Localism is here, and it will probably limit development, at least in the short term. But firms will do better working out how to take advantage of it than crying about days gone by.