Cala Homes (South) Ltd, R (on the application of) v Secretary of State for Communities and Local Government & Anor

A prospective change in planning policy may be a material consideration when determining a planning application or appeal, even where legislation is required to implement it. The method of implementation and the proposal’s progress towards finality affect its weight, rather than its materiality.

The development plan retains a statutory presumption in its favour, but it has no absolute authority. A decision-maker may consider emerging policy and depart from the plan where material considerations indicate otherwise. The weight assigned remains a matter of planning judgment, subject to rationality.

This flexibility does not extend to preparing or examining development plan documents. While regional strategies remain in force, those documents must conform generally with the relevant regional strategy.

The appellant developer challenged government communications advising planning authorities and the Planning Inspectorate to regard the proposed legislative abolition of regional strategies as a potential material consideration. The regional strategies had been restored to the development plan following an earlier successful judicial review, [2010] EWHC 2866 (Admin).

Lindblom J dismissed the present judicial review claim in [2011] EWHC 97 (Admin). The appellant appealed only his rejection of the contention that the proposed abolition was legally incapable of being a material consideration under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004.

The central issue was whether considering the proposal before Royal Assent would thwart the statutory requirement for regional strategies and the plan-led system of development control.

1. Appeal dismissed. A prospective change in planning policy is capable of being a material consideration under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. Where legislation is proposed, the prospects of Parliamentary approval, its likely form and timing, and the stage reached in the legislative process concern weight rather than legal materiality: per Sullivan LJ, Rimer and Rix LJJ agreeing.

2. The relevant statutory policy had to be identified from the legislative scheme as a whole. Section 70(1) of the Local Democracy, Economic Development and Construction Act 2009 required a regional strategy, but sections 70(2) and 38(6) also required development-control decision-makers to consider other material considerations. The development plan enjoyed a presumption, not absolute authority. Considering the prospect that a long-term regional policy might become outdated or cease to exist therefore promoted, rather than thwarted, the scheme’s objects. City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] AC 997 and R v Braintree District Council ex p Halls (2000) 32 HLR 770 applied.

3. The flexibility applicable to development control did not govern the preparation or examination of development plan documents. While regional strategies remained in force, local development documents had to be in general conformity with them. It would be unlawful for an authority preparing such documents, or an inspector examining them, to take account of the proposed abolition.

4. The Chief Planner’s letter was lawful when read as professional guidance concerning development-control decisions. It acknowledged that regional strategies remained part of the development plan, identified abolition only as a potential material consideration, and prescribed no weight. Advice to ignore regional policies, treat them as already abolished, depart from them merely because abolition was proposed, or assign a prescribed weight would have been unlawful.

5. The weight assigned to the proposal was a matter of planning judgment, subject to Wednesbury rationality. Parliamentary approval and completion of strategic environmental assessment were substantial uncertainties. Consequently, significant weight would rarely be appropriate at that stage. Nevertheless, the court could not rule out every case in which some weight might rationally affect a finely balanced, long-term development decision. A decision-maker doing so should give clear and cogent reasons.

6. The ministerial statement added nothing material to the Chief Planner’s letter. Detailed judicial examination risked impermissibly questioning Parliamentary proceedings, and a quashing order directed to the statement would have been inappropriate.

• Court of Appeal (Civil Division): The court unanimously dismissed the appeal in [2011] EWCA Civ 639 and upheld Lindblom J’s decision on the sole ground pursued.
• High Court, Administrative Court: Lindblom J dismissed the judicial review claim on all three grounds in [2011] EWHC 97 (Admin). Only the material-consideration ground was appealed.
• Earlier High Court proceedings: Sales J held in [2010] EWHC 2866 (Admin) that the attempted revocation of all regional strategies was unlawful. The Secretary of State did not appeal, and regional strategies were thereby restored as part of the development plan.