“Pyrrhic – adj. (of a victory) won at too great a cost to be of use to the victor”
As Pyrrhic victories go, Eric Pickles latest encounter with Cala Homes in the High Court is a pretty good exemplar. Indeed, so keen were the DCLG to highlight their ‘victory’, they rather missed the point of the decision in their press release, as did the Planning Portal (a usually very reliable source of unbiased news) when it stated “For a second time the courts have ruled in the Government's favour following an appeal by CALA Homes that the Government's intention to abolish the strategies could not lawfully be taken into account in any way in relation to planning applications and appeals, at least until such time as the Localism Bill becomes law.”
The key phrase in here is “in any way” – whilst the High Court has ruled that you can “never say never” – that is, it would not be right to say that the intention to abolish Regional Strategies could never be a material consideration, the judgement goes on to explain that the circumstances when it could be a material consideration are pretty limited indeed – hardly a ringing endorsement of the Government's approach. The basis for reaching this conclusion, is that to disregard RSS would pre-judge the decision of Parliament in passing the necessary legislation to abolish it (the Localism Bill), and pre-judge the outcome of the SEA process needed before each RSS can be abolished.
This led Lord Justice Sullivan to conclude;
“In view of the uncertainty created by the legal obstacles referred to above, any decision-maker who does think it appropriate to give some weight to the Government’s proposal when determining an application or an appeal would be well-advised to give very clear and cogent reasons for reaching that conclusion, but that does not mean that there could be no case whatsoever in which any decision-maker might be able to give such reasons.”
The judgement clarified a couple of other important points as well. Firstly, this application of ‘material consideration’, is only for Development Control decisions, it would be unlawful to apply such flexibility to development Plan’s because they have to be in conformity with the RSS. Secondly, this judgement pertains to the period before the Localism Bill is enacted. As the Bill proceeds and it becomes clearer what its contents are likely to be – then this might increase the ‘weight’ to be attached to the prospective abolition of RSS in development Control decisions.
Please click on the below link for a copy of the judgement: