The appellant sought planning permission for a development of 2,000 residential properties on a site near Winchester. Permission was refused by the local planning authority (LPA) and the appellant appealed. In May 2009, while that appeal was pending, the respondent’s predecessor promulgated a regional spatial strategy (RSS), under Part 1 of the Planning and Compulsory Purchase Act 2004, that provided for the development of 5,500 new houses in an area that included the appellant’s site. In the light of the RSS provisions, the appellant submitted a second application to the LPA.
In May 2010, following the election of a new government, the respondent issued a letter to all LPAs informing them of the government’s intention to abolish RSSs and directing them to have regard to that letter as a material consideration when making planning decisions. In July 2010, the respondent made a statement of intention to revoke RSSs. In judicial review proceedings brought by the appellant, that statement was held to be unlawful since, under the existing planning legislation, including Part 5 of the Local Democracy, Economic Development and Construction Act 2009, the respondent could not revoke an RSS without replacing it: see [2010] EWHC 2866 (Admin); [2010] 46 EG 116 (CS). However, on 10 November 2010, the respondent issued a statement, forwarded in a letter to all LPAs, advising that the government intended to abolish RSSs by legislation and indicating that the advice in the May 2010 letter stood.
The appellant brought a further judicial review to challenge the November statement and letter as being an unlawful attempt to subvert the existing statutory framework for planning decisions and the effect of the earlier judgment. Dismissing the claim, the judge held that the government’s intention to abolish RSSs was capable of being a “material consideration” that planning authorities were entitled to take into account in planning decisions: see [2011] EWHC 97 (Admin); [2011] 07 EG 96 (CS). The appellant appealed.
Held: The appeal was dismissed.
A prospective change to planning policy was capable of being a material consideration for the purposes of section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the 2004 Act. The weight to be given to prospective changes would be a matter for the decision maker’s planning judgment in each case. In principle, the means by which a change in policy would be effected – whether by new legislation, amendment under existing legislation or administrative action, such as the publication of a new planning policy statement (PPS) – went to the weight not the materiality of the prospective change. A change in policy that was to be effected by legislation was not an immaterial consideration prior to obtaining royal assent. Again, the stage reached in the legislative process went to the weight not the materiality of the proposed change.
Taking account of the government’s intention to abolish RSSs would not thwart or subvert the purpose of the relevant legislation so as to preclude planning authorities from taking it into account as a material consideration when exercising the discretion conferred by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act: Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 considered. The purpose of the legislation went beyond the provision in section 70(1) of the 2009 Act that there “is to be a regional strategy for each region”. The policy and objects of the legislative scheme, construed as a whole, required those responsible for determining planning applications and appeals to look beyond the development plan, of which RSSs were a part, and to have regard to other material considerations. Those considerations could include the fact that the development plan policies had become outdated or were no longer relevant because of a change of circumstances, and they might indicate that the decision should not accord with the development plan. That provided LPAs with a degree of flexibility when determining planning applications: City of Edinburgh Council v Secretary of State for Scotland [1997] 3 PLR 71 applied. However, it would still be unlawful for an LPA when preparing, or a planning inspector when examining, development plan documents to have regard to the proposal to abolish regional strategies owing to the requirement in section 24(1) of the 2004 Act for development plan documents to be in general conformity with the relevant regional strategy.
The November statement and letter had not unlawfully advised LPAs to ignore the policies in the regional strategies, to treat them as no longer forming part of the development plan or to determine planning applications otherwise than in accordance with the RSSs; nor had it told decision makers what weight they should give to the government’s proposal. Although the advice that decisionmakers should continue to have regard to the letter of May 2010 in their decisions might have been misleading if it had been addressed to a less expert audience, it had not been unlawful. The May 2010 letter would be irrelevant in the majority of cases because regional policy would not be in issue or would be of marginal significance. However, LPAs in receipt of the letter would have been aware of that and would have sensibly interpreted it as referring only to those decisions in which, in their judgment, regional policy was a significant issue. Given the early stage that the proposal to abolish RSSs had reached in the legislative process, and the fact that revocation of individual RSSs would be subject to the strategic environmental assessment process, many would consider that LPAs should give little, if any, weight to the proposed abolition of regional strategies when making their decisions. However, it could not be said that it would always be irrational to give the proposal significant weight. For example, in finely balanced cases, the very slight prospect of a substantial policy change might tip the balance in favour of granting or refusing planning permission. The court could not assume that, at the present stage, there were no circumstances in which a decisionmaker could rationally give some weight to the proposed abolition of RSSs, and it would be inappropriate so to find.
Peter Village QC, James Strachan and Sarah Hannett (instructed by Clyde & Co LLP) appeared for the appellant; Timothy Mould QC and James Maurici (instructed by the Treasury Solicitor) appeared for the respondent.
Sally Dobson, barrister
