Decision by Justice Scales will throw government planning reform into chaos

The High Court ruled today that the communities secretary Eric Pickles acted unlawfully in scrapping the regional plans which set housing targets across councils in England.

Ruling on a challenge to Pickles’ May 27 letter by housebuilder Cala Homes, Mr Justice Scales said the government acted unlawfully in unilaterally revoking the system of Regional Strategies in England. 

Pickles’s decision has lead to hundreds of councils dropping plans for hundreds of thousands of homes, and is fundamental to the government’s localist approach to reforming the planning system. The judgment says Pickles acted outside his statutory powers in circumventing the need for Parliamentary scrutiny of such a fundamental change to the planning regime, and that under European law the environmental effects of removing the strategies have to be considered.

Cala Homes said the decision would restore “clarity and confidence to the planning system” while the government transfers to a new system. A spokesperson said: “CALA Homes fully endorses the Government’s desire to have greater local community involvement in planning but believes that the new approach will take some time to evolve into a successful process and transitional arrangements are essential to avoid a policy vacuum. With regional strategies remaining in place we have a clear legal framework to operate within to ensure that much needed housing delivery is maintained until the new arrangements have had time to settle down and become effective.”

Ian Ginbey, head of planning at law firm Macfarlanes, acting for CALA Homes, said: “[Pickles’] decision left a policy vacuum, caused confusion throughout the industry and directly resulted in proposals for tens of thousands of new homes being abandoned. Those housing proposals will now need to be revisited prior to the passage of any primary legislation. It is important that the house building and construction industry - which has a major role to play in delivering the economy from recession - does not suffer as a result of the Secretary of State’s actions”.

Cala asked for a judicial review of Pickles’ decision after plans by it for 2,000 homes at Barton Farm, near Winchester, were turned down by the local council in June. The housebuilder argued that it was unable to mount a planning appeal against this decision because of the vacuum in government policy. It successfully contended that the decision by Eric Pickles in June to scrap the regional planning tier, which set housing targets for local authorities, required primary legislation and therefore was beyond his powers.

Two other housebuilders, Colonnade Land and Catesby Group, subsequently challenged the government’s decision to scrap housing targets, and this is likely to boost their cases. However, neither has yet received a court date.

The government has immediately said that the ruling will not change its policy, as it still intends to legislate for planning reform later this month. It did not say if it will appeal the decision. Communities minister Bob Neill said: “This judgement changes very little. Later this month we will be introducing the Localism Bill to Parliament, which will sweep away the controversial regional strategies. The Government remains firmly resolved to scrap this layer of confusing red tape. Instead, we will work with local communities to build more homes. This was a commitment made in the Coalition Agreement and in the general election manifestoes of both coalition parties. We intend to deliver on it.”

However, the decision is likely to throw transitional arrangements toward the new system in to chaos, with councils not clear whether they are allowed to drop housing plans before the planned legislation is enacted.

The Home Builders’ Federation said the decision was “a wake up call for the Government to put in place clear transitional arrangements for the move from the old planning system towards its proposed localism based system,” and that the abolition had left a “massive hole” in the planning process. The HBF added that the ruling today effectively reinstates the regional plans.

Andrew Whitaker, Planning Director of the HBF said: “HBF and the industry remain keen to work with government to ensure that changes to the planning system are introduced in a clear and methodical way. Everyone involved in the delivery of housing, both private and public sectors, has been struggling with the policy vacuum caused by the revocation of Regional Strategies.

“Today’s judgment allows the Government to put in place a clear transition to get from the old system to the proposed localism based one. This will avoid throwing away the many years of planning for future housing delivery in which many people, including local communities, have invested their time and money.”  

Research by Tetlow King Planning suggests about half of all councils intend to review housing plans in their areas after the revocation of RSSs. Proposals for about 160,000 homes have already been ditched.