Cala Homes (South) Ltd v Secretary of State for Communities and Local Government & Anor

A statutory power to revoke a regional planning strategy cannot ordinarily be used to abolish the statutory regional-planning tier altogether. The power must be construed in the context of the statute as a whole and consistently with its declared purpose that each region should have a regional strategy. It may permit revocation to meet unforeseen circumstances, but only as part of a process directed to replacing the strategy as soon as administratively practicable. A proposed revocation which may materially alter the planning framework also requires, at least, screening under the Environmental Assessment of Plans and Programmes Regulations 2004.

The claimant owned land identified as a reserve site in the Winchester Local Plan and had outstanding planning applications and an appeal concerning substantial residential development. The South East Plan allocated housing provision relevant to the site. Following the formation of a new Government, the Secretary of State announced the revocation of all Regional Strategies under section 79(6) of the Local Democracy, Economic Development and Construction Act 2009, pending their proposed abolition by legislation.

The claimant sought judicial review, alleging that the revocation power had been used for an improper purpose and that the Secretary of State had failed to comply with the environmental-assessment regime. The court considered whether the decision lawfully removed the South East Plan from the development plan and whether revocation required prior screening.

1. Improper purpose. The claim succeeded. Applying the principle in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, statutory discretion must be construed by reference to the policy and objects of the statute as a whole. The answer depends on the detailed statutory scheme.
2. Part 5 of the Local Democracy, Economic Development and Construction Act 2009 established an elaborate statutory tier of regional planning guidance. Section 70(1), which declared that there was to be a regional strategy for each region, was the central indication of Parliament’s purpose. Section 79(6), read in its setting among provisions concerned with revision, could allow revocation in response to particular circumstances and with a view to putting a replacement strategy in place as soon as administratively practicable.
3. Section 79(6) did not authorise the Secretary of State to decide that all Regional Strategies should in principle be dispensed with. Such a power would have the practical effect of a Henry VIII power, and clearer language and greater prominence would have been expected. The statutory provisions for revision, public participation, transparency, implementation and the role of Regional Strategies in the development plan reinforced that conclusion.
4. Environmental assessment. Although the point was unnecessary to the result, the alternative ground was also well-founded. The Environmental Assessment of Plans and Programmes Regulations 2004 had to be read purposively and conformably with Directive 2001/42/EC. The development plan under section 38(3) of the Planning and Compulsory Purchase Act 2004 was a relevant plan setting the framework for future development consent. Revocation of a Regional Strategy was a significant modification capable of materially affecting planning decisions, so the Secretary of State had to make the regulation 9 screening determination before revocation.
5. The Secretary of State’s decision of 6 July 2010 was quashed on the first ground. Had it been necessary to decide the second ground, the court would also have found it established.

Not an appeal. The judgment records no prior appellate decision in this litigation.