Planning lawyers reserved over impact of regional housing target ruling

Planning lawyers have dampened the initial enthusiasm that followed the ruling in the case brought by developer Cala Homes against local government minister Eric Pickles over the scrapping of regional housing targets, saying it may only have a limited effect on applications currently in the pipeline.

The High Court found in Cala Homes v SS for Communities and Local Government and Winchester CC [2010] EWHC 2866 (Admin) that the secretary had acted unlawfully, but within hours of the ruling the government confirmed its intention to bring about new laws in the forthcoming localism bill that would abrogate the so-called 'regional strategies'.

The same day, the government's chief planner wrote to all local planning authorities and to the Planning Inspectorate confirming they should continue to have regard to Pickles' letter as 'a material consideration' in any decisions they were taking.

'Realistically much will depend on the attitude of the local planning authorities,' said Julian Boswall, partner at Burges Salmon. 'If they are broadly supportive of an application '“ and if it can realistically decided in the next six months '“ then the Cala Homes decision could help.'

South West-based developer Cala Homes owns 87 hectares of farmland near Winchester where it hopes to build 2,000 new homes. Its third application was rejected by Winchester City Council earlier this summer after the planners said Pickles' decision required the project to be considered by reference to local housing needs only, which were not such as to justify the development of the type proposed by Cala.

Last week the company won its judicial review of the secretary's revocation of regional strategies, having argued it required primary legislation and could not be disposed off by ministerial order.

Mr Justice Sales said the Planning and Compulsory Purchase Act 2004, as amended in 2009, set up an 'elaborate machinery' and that there was 'no sufficient indication that parliament intended to reserve to the secretary of state a power to set that whole elaborate structure at nought if, in his opinion, it was expedient or necessary to do so because it was not operating in the public interest'.

The judge added that if it had been the intention, parliament 'would undoubtedly have used much clearer language' and that the secretary's reserved powers under the Act did not include 'a wholly distinct and fundamental power to abrogate' the provisions on regional planning strategies.

Cala Homes had already made significant progress towards planning permission despite technical setbacks. Its Barton Farm site had been listed as a reserve site, making it theoretically possible to build the projected 2,000 homes if there was 'a compelling justification for additional housing'.

But, relying on the secretary of state's announcement, the council's planning appeal committee decided that there was no 'compelling justification' to grant permission.

In addition to the intrinsic attitude of local planners to a particular development, the outcome of current applications also depends on whether a regional strategy has been adopted.

'In the short term, where regional strategies are in place, they now form part of the statutory development plan again, but the department has since made it clear that it still considers Eric Pickles' letter of 27 May to also be a material consideration,' said Craig Whelton, solicitor at Burges Salmon, before adding that in practice little would change for these regions.

For Cala Homes, there is now a greater chance to convince the planners to consider its application on the basis the court's ruling and examine it in the broader context of regional housing needs. But they might still prefer to rely on the secretary's latest, conflicting instruction to disregard regional strategies.