Court Of Appeal Issue Latest Judgment In The Cala Homes Litigation

The Court of Appeal issued the latest judgment in the Cala Homes series of litigation on 27 May 2011.

Cala Homes had appealed against the decision of the High Court dismissing their claim for judicial review. The case concerned whether local planning authorities were entitled to take into account the government's intention to abolish regional strategies, as set out in the Chief Planner's letter dated 10 November 2010.

Decision

The Court of Appeal upheld the High Court's decision, dismissing Cala Home's application for judicial review.

Although the Court of Appeal agreed with the decision of the High Court, it went much further in setting out when local authorities can attach any significant weight to the government's intention to revoke regional strategies.

The Court noted that revocation of regional strategies was subject to two obstacles:

• Parliamentary approval; and
• the outcome of the strategic environmental assessment (SEA) to be carried out to assess the environmental impacts revocation of each regional strategy will have.

Given these obstacles the Court held that it cannot be assumed that revocation of any regional strategy is bound to occur. At this stage of the Parliamentary and SEA process, the Court held that there would be very few cases where it would be appropriate to give any significant weight to the proposal to revoke regional strategies.

The Court of Appeal also said that any local planning authority wishing to give some weight to the proposed revocation of regional strategies should 'give clear and cogent reasons for reaching that conclusion'.

Comment

The Court noted that the Chief Planner's letter intended to cover the entire period until regional strategies are revoked. The judgment of the Court indicates that the limited weight to be given to the revocation of regional strategies will increase the closer we get to the end of that process. It should, however, be remembered that until the SEA process is completed it will not be lawful for local planning authorities to assume revocation is bound to occur.

This case does not provide as much clarity as developers might have liked. It does, however, give a better understanding of how much weight local planning authorities can give to the government's intention to revoke regional strategies. At this stage in the parliamentary and SEA process, that amounts to very little weight at all, unless the council, perhaps assisted by either developers or objectors (as the case may be) can give sound ('clear and cogent') reasons for discounting the regional strategy.

On the face of it, the Court of Appeal ruling is unhelpful. Given the government's commitment to the removal of regional strategies, it does seem perverse for councils to be expected to invest significant time and resources over the coming months in working up development plan documents which are likely to need revision before they are finalised. At a time of necessary financial stringency in local and central government, that will be an unnecessary and ultimately wasted cost. Similarly, there is likely still to be a reluctance in some quarters to make unpopular development control decisions on the basis of documents whose worth and credibility are declining by the month.

It will be interesting to see how authorities spend the coming months safely having slavish regard to policies (which many actively dislike) which they wish to repeal and which they know they can expect to be ineffective in the near future; and how many decide to formulate reasons to discount the regional strategies when making development control or development plan decisions.

For councils not wishing to be bound by regional plans (and those developers and other parties keen to help them move away from them) obvious steps include:

• an early start on preliminary work for the SEA on the effects of the revocation of the regional plan on their area, so that the elected members can have regard to whatever initial work has been carried out at the time they make the relevant decision;
• delay, to ensure that any decision they do not welcome is delayed as long as possible, to enable the Localism Bill to move further through Parliament and so diminish the weight to be given to the regional plan – in this connection, expect to see extensive consultation upon, and requests to amend, such applications; or simply non-determination, to add the wait for an inquiry date to the time period; and
• if forced to make a decision, giving articulate reasons for giving weight to the abolition of regional plans, safe in the knowledge that by the time any Judicial Review can be heard, the weight that can be given to those regional plans when the matter is remitted back to them should they lose will be diminished or non-existent.

In short, we face uncertain times until the Localism Bill becomes the Localism Act, and local councils make meaningful steps towards preparing post regional plan local development documents.

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