The Planning Act 2008 is one of the most important pieces of legislation affecting major infrastructure projects for many years. The same new procedure will be available for new nuclear power stations, onshore and offshore windfarms, railways, motorways, electricity pylons, and many more high-profile projects.
This is entry number 185, first published on 10 November 2010, of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog. If you would like to be notified when the blog is updated, with links sent by email, click here.
Today's entry reports on today's judgement on whether it had been lawful to revoke regional strategies.
The keenly-awaited Localism Bill will put the coalition government's stamp on the regime for authorising nationally significant infrastructure projects established by the Planning Act 2008. Today, the government provided some more information on the contents of the Bill in response to losing a case in the High Court on regional spatial strategies.
Background to the Cala Homes case
On 27 May, the government wrote to local authorities to say that it intended to abolish regional strategies, and that the letter should be a material consideration in planning decisions. A copy of the letter can be found here (although it doesn't seem to appear on the page of official letters on the CLG website). Regional strategies contain planning policies covering each region of England that must be taken into account when deciding planning applications.
On 6 July, Eric Pickles MP, Secretary of State for Communities and Local Government, issued a written statement to say that regional strategies were being revoked. (Note that although everyone tends to call them by their old name of Regional Spatial Strategies, the word spatial was dropped following the addition to them of economic strategies in accordance with the Local Democracy Economic Development and Construction Act 2009). This was backed up with a letter by Steve Quartermain, the government's Chief Planner, to local authorities that day, which can be found here.
Since one of the main jobs of regional strategies was to set targets for the construction of new homes, the companies most aggrieved by this decision were housebuilders. Accordingly, Cala Homes (South) Ltd launched proceedings in the High Court to have the decision quashed. The case was heard last month and today judgement was given in Cala Homes' favour. The judgement can be found here.
Cala Homes won on both the points it argued. In essence, the judge decided that the ability to revoke individual regional strategies did not allow them all to be revoked at once, as that frustrated the intention of the legislation to have regional strategies generally in place. Secondly, the government should also at least have considered whether revoking the regional strategies needed 'strategic environmental assessment' (the equivalent of environmental impact assessment for policies rather than projects).
Reaction and analysis
The government's reaction is in the form of a further written statement, which can be found here. The statement bullishly says that 'the court's decision changes very little', for regional strategies will still be statutorily abolished by the Localism Bill that is due to be published later this month; the 27 May letter still stands, and the intention to abolish regional strategies should still be a material consideration in planning decisions.
Just in case there are any doubters, the government has published in advance the clause from the Localism Bill that will revoke the regional strategies, and has also sent a further letter to local authorities today pointing out that the 27 May letter remains a material consideration in deciding planning applications. The letter can be found here.
The Localism Bill clause is drafted as follows (it is numbered clause 1, on page 2, but I have been informed by the Bill author that it won't necessarily end up as clause 1):
(1) Part 5 of the Local Democracy, Economic Development and Construction Act 2009 (regional strategy) is repealed.
(2) The regional strategies under Part 5 of that Act are revoked.
The reaction leaves one or two gaps that need to be filled in by way of explanation. The judgement has quashed the 6 July decision to revoke the regional strategies, but the 27 May letter expressing the intention to revoke them still stands. The Localism Bill is not likely to be enacted until November 2011, and so until then, the regional strategies will remain alive, if not longer (since the provision to revoke them may not come into force immediately).
On the other hand, the 27 May letter was already having an effect on planning applications for new homes; indeed Cala Homes' application for houses in Winchester was refused on 14 June, before the regional strategies were revoked, citing the 27 May letter as the reason. For that reason, then, the government seems to be right to say that the judgement will have little effect. The 6 July statement should not have been made, but the 27 May letter was already having the desired effect. It remains to be seen whether today's further letter will itself be the subject of challenge.
What does this mean for infrastructure planning?
The Localism Bill is expected to make changes to the regime introduced by the Planning Act 2008 rather than making a wholesale substitution for it. The Infrastructure Planning Commission (IPC) will be replaced by a Major Infrastructure Planning Unit of the Planning Inspectorate, decisions on nationally significant infrastructure projects will continue to be made by the government even when national policy statements (NPSs) are in place, and NPSs will be confirmed by a vote in Parliament.
The decision to reinstate regional strategies temporarily will not have a significant effect on infrastructure planning, since NPSs expressing the need for infrastructure sit above regional strategies and have a higher status in the Planning Act. Nevertheless the government response to the judgement contains the useful information that (a) the Localism Bill is due to come out later this month and (b) it is expected to begin its passage through Parliament before Christmas, which I would interpret as meaning that the government will try to find time for it to have its second reading before the House rises on 21 December.
Previous entry 184: IPC project update - questions in the House, answers from the IPC
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