Cala Homes (South) Ltd v Secretary of State for Communities & Local Government (Rev 1)

A government’s declared intention to reform the planning system by primary legislation may be a material consideration in determining planning applications before the legislation is enacted. Its materiality concerns relevance to the use and development of land; the weight given to it remains for the planning decision-maker.

Such an intention does not unlawfully undermine the plan-led system, provided the existing development plan retains its statutory priority and the decision-maker continues to apply the statutory framework. A political commitment or advice to take that commitment into account is not, without more, a plan or programme requiring Strategic Environmental Assessment.

The claimant sought judicial review of the Secretary of State’s statement and the Chief Planner’s letter of 10 November 2010. They advised planning decision-makers to have regard to the Government’s intention to abolish Regional Strategies by legislation as a material consideration.

The challenge followed an earlier judgment which had held unlawful the executive revocation of Regional Strategies. The claimant alleged that the new advice was an immaterial and irrational attempt to circumvent that judgment and had been issued without Strategic Environmental Assessment. The Secretary of State also argued abuse of process and delay.

1. Permission and disposition. Permission was granted at the rolled-up hearing, but the claim was dismissed. The Secretary of State was awarded his costs, including the interlocutory hearing, subject to detailed assessment. An interim payment of £15,000 was ordered and stayed pending any application to the Court of Appeal or further order.
2. Material consideration. The Government’s intention to abolish Regional Strategies through primary legislation related to the use and development of land and served a planning purpose. It was therefore capable in law of being a material consideration under Town and Country Planning Act 1990 section 70(2), read with Planning and Compulsory Purchase Act 2004 section 38(6). The decision-maker remained responsible for deciding whether it was material in the particular case and what weight it should receive.
3. The advice did not direct decision-makers to treat Regional Strategies as revoked, ignore them, or give them no weight. Regional Strategies remained part of the development plan and retained their statutory priority until lawfully removed. The advice was therefore consistent with the plan-led system and did not frustrate the policy or objects of the planning legislation. The same applied to plan-making duties under sections 19(2)(b) and 24(1) of the 2004 Act.
4. Irrationality. The Secretary of State had a rational basis for informing Parliament and planning authorities of the Government’s position after the earlier judgment. The risk of uncertainty did not make the statement or letter perverse.
5. Strategic Environmental Assessment. The statement and letter were political policy and advice. They neither revoked nor modified a Regional Strategy or the development plan, and were not a “plan or programme” required by legislative, regulatory or administrative provisions. They therefore did not require screening or assessment under the Strategic Environmental Assessment Directive or the Environmental Assessment of Plans and Programmes Regulations 2004.
6. Abuse and delay. The May 2010 advice had been superseded by the July 2010 revocation decision, which was the proper target of the first claim. It was reinstated only after that decision was quashed. The present claim, issued within two weeks of the November action, was neither abusive nor out of time.

This was a first-instance judicial review. The judgment records an earlier decision by Sales J. concerning the Secretary of State’s attempted revocation of Regional Strategies, but that decision was part of the same litigation and is not an appellate stage of this judgment.