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Cala Homes loses appeal over regional strategies

31 May 2011

Developer Cala Homes has failed in a second attempt to overturn a planning statement from communities secretary Eric Pickles, requiring councils to take into account the government’s commitment to abolish the regional planning strategies.

The statement was sent out after the developer’s victory in a previous judicial review in November, where Cala Homes successfully challenged the government’s attempt to scrap the strategies without primary legislation (see solicitorsjournal.com, 15 November 2010).

Following this defeat, Pickles told councils to have regard, as a “material consideration” under section 70(2) of the Town and Country Planning Act 1990, to the government’s intention to abolish the strategies under clause 1 of the localism bill.

Cala launched a judicial review, arguing that this statement and an accompanying letter from the government’s chief planner were a “transparent attempt to thwart the application of the law”. This was rejected at the High Court by Mr Justice Lindblom (see solicitorsjournal.com, 21 February 2011).

The developer had applied to build 2,000 homes on a site near Winchester, and the dispute arose over whether it was justified by the housing requirements of the South East regional strategy.

Delivering judgment in R (on the application of Cala Homes) v Communities Secretary [2011] EWCA Civ 639, Lord Justice Sullivan said there might be “finely balanced cases where the very slight prospect of a very substantial policy change might just tip the balance in favour of granting or refusing planning permission”.

Sullivan LJ said the point could apply to a new town or the extension of an existing settlement “to which there are very strong site-specific objections, and where the sole justification for granting planning permission is the need to meet the requirement for residential development over the next 20 years in the regional strategy”.

He went on: “In such a case it would not be irrational for the decision maker to give some weight to the prospect, however uncertain, that the regional policy justification for granting permission for such a long-term proposal may cease to exist within the short term.

“In such a case, to give even very little weight to the prospect of a change in policy might be to give that factor ‘significant’ weight, significant in the sense that it might tip the balance in favour of refusing permission.”

Sullivan LJ said the example may be an “extreme case”, but it did illustrate why it would not be safe for the court to assume that at this stage there were no circumstances in which any decision maker could rationally give some weight to the proposed abolition of regional strategies.

Lord Justice Sullivan said that, in view of the uncertainty, “any decision maker who does think it appropriate to give some weight to the government’s proposal when determining an application or an appeal would be well advised to give very clear and cogent reasons for reaching that conclusion, but that does not mean that there could be no case whatsoever in which any decision maker might be able to give such reasons”.

He dismissed the appeal. Lord Justices Rix and Rimer agreed.

Planning minister Bob Neill welcomed the ‘helpful guidance’ given in the judgment on the approach which planning inspectors and inspectors should take to the regional strategies.

“You don’t need bureaucratic regional strategies to build more homes and support growth,” he said.

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