Government in court setback over regional planning policy

The local government secretary's decision to do away with regional housing targets before any legislation to this effect has been adopted was unlawful, the High Court has ruled in a decision set to unblock planning applications stalled since the coalition has come to power.

The Planning and Compulsory Purchase Act 2004, as amended in 2009, had created a new regional planning strategy tier which the government was not at liberty to remove by ministerial order, the court found.

Ruling in Cala Homes v SS for Communities and Local Government and Winchester CC [2010] EWHC 2866 (Admin), Mr Justice Sales said the 2004 Act set up an 'elaborate machinery' and that there was 'no sufficient indication that parliament intended to reserve to the secretary of state a power to set that whole elaborate structure at nought if, in his opinion, it was expedient or necessary to do so because it was not operating in the public interest'.

The judge added that if it had been the intention, parliament 'would undoubtedly have used much clearer language' and that the secretary's reserved powers under the Act did not include 'a wholly distinct and fundamental power to abrogate' the provisions on regional planning strategies.

The reform of planning law featured prominently in the Conservative party's manifesto, with a particular objective to reinvigorate the housing market and ensure that Britain could meet pressing housing needs by empowering councils '“ rather than regions '“ to set local housing targets.

Shortly after the election, Eric Pickles announced in a letter to local planning authorities that 'regional strategies' would soon be abolished and that planners would be expected to 'have regard to this letter as material planning consideration in any decision they are currently taking'.

In July, despite acknowledging the need for primary legislation, he revoked regional strategies 'to give clarity to builders, developers and planners'.

The intention was to speed up the planning process, giving hope to developers that projects would come on stream more quickly.

One such developer, Cala Homes, had been applying since 2004 for planning permission to build 2,000 new homes on 87 hectares of farmland near Winchester.

One application in 2006 was not given the go ahead even though Winchester Council listed the site as a reserve site for the construction of 2,000 homes. Reserve site status would have made it possible to build the homes as per Cala's plans if there was 'a compelling justification for additional housing'.

In May 2009, a regional plan identified a need for 654,000 new dwellings in the area, increasing Cala's prospects to secure planning permission. It submitted a further application in November that year.

But relying on the secretary's injunction to have regard to his intention to abrogate the regional tier, the council's planning appeal committee decided that there was no 'compelling justification' to grant permission.