Roberts & Ors, R (on the application of) v Secretary of State for Communities & Local Government & Ors

The Secretary of State’s power under paragraph 1(3) of Schedule 8 to the Planning and Compulsory Purchase Act 2004 involved a broad planning discretion. The court would not substitute its own planning judgment where the decision was rationally open to the Secretary of State.

In planning, a person cannot ordinarily have a legitimate expectation that a policy will remain unchanged. At most, the expectation is that any change will follow a prescribed or fair procedure. Emerging regional planning material may be given substantial weight where it provides better and more conforming information than an existing policy, even before completion of the statutory process. The application for judicial review was dismissed.

The claimants sought judicial review of the Secretary of State’s refusal to direct that policies H1, IM1 and IM2 of the Staffordshire and Stoke-on-Trent Structure Plan should remain in force beyond the transitional three-year period under Schedule 8 to the Planning and Compulsory Purchase Act 2004.

The challenge alleged legitimate expectation arising from a ministerial letter, inadequate reasons, and departure from published planning policies. The central issues were whether the claimants were entitled to expect continued use of the Structure Plan housing proportions, whether the Secretary of State had sufficiently explained her decision, and whether she could rely on emerging RSS options in preference to the Structure Plan.

1. Disposition. The application for judicial review was dismissed. The claimants were ordered to pay the defendant’s costs, subject to detailed assessment.
2. Statutory discretion. Paragraph 1(3) of Schedule 8 to the Planning and Compulsory Purchase Act 2004 conferred a very broad discretion. Whether policies should be saved was pre-eminently a matter of planning judgment. The Secretary of State was entitled to conclude that policy H1 was out of general conformity with the RSS and that policies IM1 and IM2 should therefore not be saved.
3. Legitimate expectation. The ministerial letter was practical planning guidance, not a statutory instrument. Completion of work on revised housing allocations did not necessarily require formal publication of an RSS revision under section 9(6). It could occur when the work was sufficiently complete to be used sensibly for planning purposes. In any event, the claimants could not legitimately expect a planning policy to remain unchanged until that point. Their legitimate expectation was limited to a fair process for any change, and that process had been provided.
4. Proportionality. Even if a substantive expectation existed, refusing to maintain the Structure Plan proportions was proportionate. The issue was of regional significance and concerned implementation of a substantial redistribution of housing provision. The relevant regional, county and district planning authorities opposed retention of policy H1.
5. Reasons and emerging policy. The reasons were to be read from the standpoint of an informed party familiar with the representations and issues. The Secretary of State was not required to answer every submission or provide reasons for her reasons. It was reasonably open to her to treat the RSS together with the emerging Phase 2 options as sufficient guidance, and to regard provisional figures conforming with the RSS as better information than settled figures inconsistent with it. She was also entitled, as a matter of planning judgment, to give the options substantial weight despite their early procedural stage.