A Right Pickle
Local planning policy is contained in what is known as the ‘development plan’, which, despite its name consists of more than one document. Regional Strategies (previously known as Regional Spatial Strategies) are part of the development plan. They cover the whole of a standard government region in England (for instance, the East of England) and set out the policy of the Secretary of State for Communities and Local Government (SSCLG) in relation to the development and use of land and economics within the region.
On 6th July 2010, Mr Pickles, the current SSCLG, announced that he was using his power under section 79(6) of the Local Democracy, Economic Development and Construction Act (LDEDCA) 2009 to revoke Regional Strategies in order ‘to put greater power in the hands of local people rather than regional bodies’.
Amongst many other things, it was intended that Regional Strategies would benchmark the work done by local authorities to assess the accommodation needs of Gypsies and Travellers in their areas and then specify the number of pitches that each individual local authority should identify in order to meet those needs within specified time periods. These targets were to be an integral part of the Government’s planning policy for the provision of sites for Gypsies and Travellers, and Circular 01/2006 (Planning for Gypsy and Traveller Caravan Sites) explained in more detail how the process would work.
We consider that the revocation of Regional Strategies is likely to have a detrimental impact upon the provision of pitches for Gypsies and Travellers. The SSCLG’s alternative policy will allow local authorities to decide for themselves how many pitches they are required to identify but that is a policy that failed miserably in the past and led to the severe shortage of sites that currently exists. It was for that reason that two Romani Gypsies challenged the decision of the SSCLG by way of judicial review.
However, their case may no longer need to proceed because another challenge to the decision brought by Cala Homes has been successful.
Cala Homes is a large housebuilder and had submitted a planning application to build 2000 residential properties on land they owned near Winchester. The South East Regional Strategy indicated that there was a need for 5,500 additional dwellings in the area that included the land owned by Cala Homes. However, Winchester City Council refused Cala Homes planning application having been clearly influenced by the fact that the SSCLG had expressed an intention to revoke Regional Strategies.
Cala Homes’ first ground of challenge was that the SSCLG’s use of section 79(6) LDEDCA 2009 to revoke all seven Regional Strategies in place at that date in England amounted to the use of legislation for an improper purpose, given that the LDEDCA 2009 made it clear that there should, ordinarily at least, be Regional Strategies in place for each region. Cala Homes relied on the case of Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, which also concerned the use by a Minister of a discretionary power. In that case, Lord Reid, at 1030 B-D, stated:
’Parliament must have conferred [a discretion in an Act of Parliament] with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court…if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court.’
Mr Justice Sales heard the case and gave judgment for Cala Homes. When upholding the first ground of challenge the Judge said:
’[T]here is no sufficient indication in section 79(6) of the 2009 Act that Parliament intended to reserve to the Secretary of State a power to set [the] 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’ (para 52(i));
and he added that the idea that the SSCLG might have such a power was
‘something akin to a Henry VIII clause, since the practical effect of it would be to grant the Secretary of State power to denude primary legislation of any practical effect, without having to seek the approval of Parliament for such a course by passing further legislation’ (para 52(i)).
The Judge continued by stating that:
‘Section 70(1) of the 2009 Act is in clear declaratory terms, stating that “There is to be a regional strategy for each region…’” (para 52(ii));
and he added that in this context, section 79(6) should be interpreted as creating a power of revocation
‘only with a view to setting in motion the procedures set out in the Act for putting in place a new Regional Strategy as soon as that is administratively practicable…’ (Para 52(ii)).
Cala Homes’ second ground of challenge was that the SSCLG’s decision to revoke the South East Regional Strategy was taken in breach of obligations placed on the SSCLG by the Environmental Assessment of Plans and Programmes Regulations 2004. It was argued that: the SSCLG should have reviewed whether his proposed change in the planning regime was likely to have significant environmental effects; and, if it was, that he should have conducted a strategic environmental assessment (SEA). It was common ground that the adoption of a plan, programme or modification which may have significant environmental effects should be the subject of such an assessment.
Mr Justice Sales would have also allowed this ground too (though strictly speaking he did not need to do so since he had already found the revocation of Regional Strategies to be unlawful on the first ground) since all Regional Strategies required SEAs when they were first introduced (and thus must also require them if they are revoked) and since the revocation of Regional Strategies amounted either to a modification of the overall development plan or to the adoption of a new plan (by leaving local development plan documents to stand alone).
Following the judgment the SSCLG announced that he was still intent on the abolition of Regional Strategies and that he would pursue his intention through the Localism Bill. That piece of proposed legislation may take up to 2 years to come into force and there can be no guarantee that Parliament will vote in favour of the abolition of Regional Strategies.
In the meantime there is a debate as to what weight should be given to Regional Strategies and the targets they set for the provision of housing and pitches for Gypsies and Travellers. We would argue that until the legislation is passed decision makers such as local authorities and planning inspectors ought to give the regional assessments of need in Regional Strategies full weight.
R(Cala Homes) v SSCLG and Winchester CC [2010] EWHC 2866 (Admin).
Chris Johnson, Travellers Advice Team (TAT) at Community Law Partnership (CLP), and Marc Willers, Garden Court Chambers.
TAT run a national telephone helpline for Gypsies and Travellers. The line is open Monday to Friday 9.00 am to 5.00 pm on 0845 120 2980. For an informal chat please phone CLP on 0121 685 8595.