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

In judicial review proceedings, the court may stay the effect of an administrative decision or policy pending determination of the challenge. The decision requires a balance between the apparent strength of the claim, procedural justice, the parties’ interests and the wider public interest. An expedited hearing and an undertaking to publicise the challenge may remove the need for a stay.

In planning law, Town and Country Planning Act 1990 section 70(2) and Planning and Compulsory Purchase Act 2004 section 38(6) require decisions to be made in accordance with the development plan unless material considerations indicate otherwise. Whether a matter is material is a question of law; the weight given to a material consideration is for the planning decision-maker.

Cala Homes sought judicial review of the Secretary of State’s statement of 10 November 2010 and the Chief Planner’s letter of the same date. They advised planning authorities and inspectors to have regard to the Government’s intention to abolish Regional Strategies through proposed legislation, following Sales J.’s decision that the earlier revocation of those strategies had been unlawful.

The Secretary of State sought variation of case-management directions and removal of a stay imposed on the effect of the statement and letter. Cala Homes opposed removal of the stay. The central issues were the jurisdiction and effect of a stay in judicial review proceedings, and whether the balance of convenience favoured maintaining it pending the expedited substantive hearing.

1. Both applications allowed. The stay imposed on the Secretary of State’s statement and the Chief Planner’s letter was set aside. The rolled-up permission and substantive hearing was ordered to take place by 21 January 2011.
2. The court had jurisdiction to stay an administrative decision-making process or the implementation of an administrative decision under CPR Part 54.10(2). A stay preserves the status quo and may be granted to ensure that a successful claimant receives the full benefit of the judicial review remedy. The jurisdiction extends to administrative decisions, including planning permissions and ministerial decisions: R. v. Secretary of State for Education and Science, ex parte Avon County Council and R. v. Ashworth Hospital, ex parte H.
3. The exercise of the jurisdiction required consideration of procedural justice and the balance of convenience. Relevant matters included the apparent strength of the claim, the particular interests of the parties, and the wider public interest in clarity, consistency and certainty in planning decision-making. The court was not required to determine the merits finally at the interim stage.
4. The expedited hearing removed the immediate justification for a stay in relation to Cala Homes’ planning inquiry. The Secretary of State’s undertaking to publicise the challenge and to notify decision-makers that they should consider whether the challenge affected the significance and weight of the relevant statements further reduced the risk of unlawful or unfair planning decisions.
5. Pending determination of the claim, planning authorities and inspectors remained responsible for deciding how to treat the statements and letters. Under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, planning decisions must accord with the development plan unless material considerations indicate otherwise. Section 38(6) gives priority to the development plan but does not impose a mechanical preference.
6. Materiality and weight are distinct. Materiality is a question of law for the court. Weight is a matter of planning judgment for the decision-maker, subject only to rationality. A decision-maker may give a material consideration little or no weight, provided it has had regard to it.