Planning strategy ping pong throws planners and developers into confusion

Posted 05/01/2011

The Government’s attempts to abolish regional housing strategies are causing confusion for developers and for local planning authorities alike.

In July, the Communities Secretary, Eric Pickles, tried to abolish the Regional Spatial Strategies and to replace them with a system of financial incentives to encourage local authorities to grant residential development applications.

The effect of this was that, for many developers, months or years of work on planning applications would be wasted, and a fresh application under any new rules for the same land might have less chance of success.

One developer, CALA Homes, challenged the Minister’s action in the High Court in November, saying that he had no power to abolish the existing rules in this way. The Judge agreed with CALA Homes, saying that the rules could not be changed by the Minister without the approval of Parliament.

There were, however, a good few more baffling twists and turns. The High Court also declared that local planning departments should not take into account the Government’s attempted abolition of regional strategies. The Communities Secretary responded to this by writing to every local planning department warning them that, when considering planning applications, they must treat the Government’s intention to scrap regional housing strategies as a significant consideration.

This action was in turn challenged in the courts, and the letter to planning departments was “stayed”. The Government challenged the stay and it was lifted on condition that the Government puts a warning on its website saying that the letter to the planners is subject to legal challenge and might have to be disregarded if the challenge is successful. The hearing of CALA’s latest challenge is likely to be later this month (January 2011).

Planning law expert, Bob McGeady of Ashtons Legal solicitors, says : “Developers and planners both stand to be baffled and bemused by this legal game of ping pong. If the planners ignore the minister’s letter they may be in trouble for disregarding government policy, but if they follow the government’s recommendation and refuse a planning application, they may lay themselves open to appeal and more costs at a time when money is in short supply.”

He added: “And for developers, it creates another headache at a time when the housing market is still in the doldrums.”

If the CALA action is successful developers will probably have a window of twelve months to get planning applications in under the current regime. By the end of that period the Government’s Localism Bill will have made its way through Parliament and the new regime will be in place.