Mr Justice Lindblom:
Introduction
- At the hearing which took place on 3 December 2010 there were two applications before the court, the first made by the Defendant, the Secretary of State for Communities and Local Government ("the Secretary of State"), the second by the Claimant, CALA Homes (South) Ltd. ("Cala Homes"). At the end of the hearing I allowed both applications. I now give my reasons for doing so.
- Both of these applications relate to a claim (CO/12056/2010) in which Cala Homes seeks judicial review of:
"(1) The statement of [the Secretary of State] on 10 November 2010 that local planning authorities [and] the Planning Inspectorate should have regard to the Government's stated intention to enact primary legislation in the future to abolish the Regional Strategies as a material consideration in making determinations under the Planning Acts and (2) a similar statement by the Government's Chief Planner by letter dated 10 November 2010 sent to all local planning authorities".
Cala Homes contends, first, that the statement and letter of 10 November 2010, which, it is said, effectively incorporate a letter the Secretary of State sent to all local planning authorities on 27 May 2010, are unlawful, being a transparent attempt to thwart the application of the law as it stands and the judgment of the court in a previous claim for judicial review; secondly, that, in the alternative, if the statement and letter represent lawful and material planning policy the decision to articulate such policy is unlawful as it subverts the policy and objects of the existing planning legislation, or is irrational, or both; and thirdly, that the Secretary of State has failed to take the steps he ought to have taken to comply with the regulations relating to Strategic Environmental Assessment.
- Both applications before me sought changes to the order which I made in these proceedings on 25 November 2010. In that order I directed, among other things, that the claim be expedited (paragraph 1 of the order); that the time for the service of the Secretary of State's Acknowledgment of Service and Summary Grounds of Defence, and for the filing and service of any written evidence upon which he wished to rely, was abridged to seven days from the date of the order (paragraph 2 of the order); that the effect of the statement made on 10 November 2010 and of the letter of that date to local planning authorities was to be stayed until further order (paragraph 3 of the order); and that there was to be a "rolled-up" hearing of the application for permission and of the substantive application if permission were granted, which was to be listed on 20 December 2010 or on the first available date thereafter (paragraph 5 of the order). I gave all parties liberty to apply, on 48 hours notice (paragraph 8 of the order).
- The first application was made on 30 November 2010 by the Secretary of State and was supported by the Interested Party, Winchester City Council ("the City Council"). It sought, first, a variation of my order to adjust those parts of it which directed an abridgment of the time for the filing and service by the Secretary of State of his Acknowledgment of Service, summary grounds and evidence; and, secondly, the lifting of the stay of the effect of the Secretary of State's statement and letter of 10 November 2010. The Secretary of State did not resist expedition nor did he dispute the appropriateness, in the circumstances, of the whole matter being dealt with at a "rolled-up" hearing; he did not oppose the requirement to file and serve his Acknowledgment of Service and summary grounds by 4 p.m. on 3 December 2010 but asked for a further seven days, that is to say until 4 p.m. on 10 December 2010, for the service of any written evidence; and he asserted that, in the light of the representations and submissions that have now been made by either side on the balance of convenience, the stay ought not to be maintained. Cala Homes resisted the Secretary of State's application only in so far as it requested that the stay now be lifted. That, therefore, is the contentious issue which I have had to address in dealing with the Secretary of State's application.
- The second application was made by Cala Homes on 1 December 2010. It at first sought a variation to paragraph 5 of the order that I made on 25 November 2010, so that it would stipulate not only that the matter be listed to be heard on 20 December 2010 or on the first available date thereafter, but that it should in any event be heard by no later than 23 December 2010. However, once it had become clear that time could be found in the list for the claim to be heard in the week beginning on 17 January 2011, the application was adjusted to seek a direction that the hearing be fixed to take place by no later than the last sitting day of that week, which is 21 January 2011. This was not opposed by the Secretary of State or by the City Council.
- Consistently with the observations made by Ouseley J. in R. (Save) v. Gateshead M.B.C. [2010] EWHC 2919 (Admin) these applications, relating as they do to interim relief sought and granted on an urgent basis, were listed without any delay, thus enabling full argument to be heard from all parties concerned before the court decided whether it would now be right to modify the interim relief given or otherwise to amend the order made.
Background
- The background to the main proceedings ought briefly to be described. It provides the context in which the present applications are to be considered.
- On any view, the circumstances that have arisen in the present case are unusual, if not indeed without any near precedent, in the history of land use planning in this country. The repercussions for planning decision-making, at least in the short-term future, may well be considerable.
- On 27 May 2010 the Secretary of State issued to all local planning authorities in England a letter in which he stated:
"ABOLITION OF REGIONAL STRATEGIES
I am writing to you today to highlight our commitment in the coalition agreements where we very clearly set out our intention to rapidly abolish Regional Strategies and return decision making powers on housing and planning to local councils. Consequently, decisions on housing supply (including the provision of travellers' sites) will rest with Local Planning Authorities without the framework of regional numbers and plans.
I will make a formal announcement on this matter soon. However, I expect Local Planning Authorities and the Planning Inspectorate to have regard to this letter as a material consideration in any decision they are currently taking."
- On 6 July 2010 the Secretary of State made a statement in Parliament, in which he said:
"Parliamentary Statement
Revoking Regional Strategies
Today I am making the first step to deliver our commitment in the coalition agreement to "rapidly abolish Regional Spatial Strategies and return decision-making powers on housing and planning to local councils", by revoking Regional Strategies.
The revocation of Regional Strategies will make local spatial plans, drawn up in conformity with national policy, the basis for local planning decisions. The new planning system will be clear, efficient and will put greater power in the hands of local people, rather than regional bodies.
The abolition of Regional Strategies will require legislation in the "Localism Bill" which we are introducing this session. However, given the clear coalition commitment, it is important to avoid a period of uncertainty over planning policy, until the legislation is enacted. So I am revoking Regional Strategies today in order to give clarity to builders, developers and planners.
Regional Strategies are being revoked under s79(6) of the Local Democracy Economic Development and Construction Act 2009 ["the 2009 Act"] and will thus no longer form part of the development plan for the purposes of s38(6) of the Planning and Compulsory Purchase Act 2004.
Revoking, and then abolishing, Regional Strategies will mean that the planning system is simpler, more efficient and easier for people to understand.
".
- On the same day the Department for Communities and Local Government issued written advice for local planning authorities about the impact of this purported revocation of all Regional Strategies, in these terms:
"Guidance for Local Planning Authorities following the revocation of Regional Strategies
The Secretary of State for Communities and Local Government confirmed today that Regional Strategies will be revoked
. In the longer term the legal basis for Regional Strategies will be abolished through the "Localism Bill" that we are introducing in the current Parliamentary session.
This guidance provides some clarification on the impact of the revocation; how local planning authorities can continue to bring forward their Local Development Frameworks
; and make planning decisions in the transitional period.
4. How will this affect planning applications?
In determining planning applications local planning authorities must continue to have regard to the development plan. This will now consist only of:
- Adopted [development plan documents];
- Any old style plans that have not lapsed.
Local planning authorities should also have regard to other material considerations, including national policy. Evidence that informed the preparation of the revoked Regional Strategies may also be a material consideration, depending on the facts of the case.
Where local planning authorities have not yet issued decisions on planning applications in the pipeline, they may wish to review those decisions in the light of the new freedoms following the revocation of Regional Strategies. The revocation of the Regional Strategy may also be a material consideration.
".
- Cala Homes has submitted proposals to the City Council seeking planning permission for a large residential development on land at Barton Farm, near Winchester. The scheme arguably finds support in the strategy for the planning of the relevant part of the South-East region in the South-East Plan. Cala Homes therefore made an application for permission to apply for judicial review of the Secretary of State's statement of 6 July 2010, contending that the Secretary of State had no power to revoke Regional Strategies in advance of securing legislation in Parliament to amend or repeal the provision for Regional Strategies in Part 5 of the 2009 Act. That application came before Sales J. at a "rolled-up" hearing on 22 October 2010. Sales J. immediately granted permission and proceeded to hear the substantive application.
- On 10 November 2010, in a handed-down judgment, Sales J. held that Cala Homes' challenge was well founded and that the action of the Secretary of State had been unlawful, for two reasons: first, because the Secretary of State's attempt to use his power under section 79(6) of the 2009 Act to revoke all Regional Strategies in force at that date involved the use of that power for an improper purpose, essentially because the power given by that provision had not been intended by Parliament to be used to effect the abrogation of the Regional Strategy tier of planning policy by executive action; and, secondly, because the Secretary of State's decision to revoke the Regional Strategy for the South-East had been taken without the necessary consideration of whether this change in the development plan was likely to have significant environmental effects, and was thus in breach of the SEA Directive and Regulations. In paragraph 15 of his judgment Sales J. said this:
"
The Claimant's challenge is to the Secretary of State's decision of 6 July 2010 to revoke all Regional Strategies, including the South East Plan, rather than to the Secretary of State's letter of 27 May 2010. As explained by Mr Village Q.C. for the Claimant, this is on the basis that if the Secretary of State has no power to revoke Regional Strategies in advance of securing legislation in Parliament to amend or repeal the provision for Regional Strategies in Part 5 of [the 2009 Act], then it is difficult to see how the Secretary of State's letter could be given effect. No detailed argument was addressed to me about what might be the effect of the Secretary of State's letter if the Claimant is successful in its challenge to the decision of 6 July 2010. At all events, it is clear that it is the Secretary of State's decision of 6 July 2010 which is now the operative decision which purports to deprive the South East Plan of significance for the planning decision to be taken on the Claimant's applications and accordingly it is that decision which the Claimant seeks to challenge.
"
In setting out his reasons for supporting that ground of the claim, Sales J. stated in paragraph 52 of his judgment:
"
i) [The 2009 Act] maintains in place, with some modifications, the whole elaborate machinery set up by Parliament under the PCPA 2004 to create a new statutory tier of regional planning guidance in the form of Regional Spatial Strategies, now renamed as Regional Strategies.
[The] main and critical point is that there is no sufficient indication in section 79(6) of the 2009 Act 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
"
ii)
[Section] 79(6) does not create a power for the Secretary of State to decide (as he has done here) that, in principle, all Regional Strategies should be dispensed with. Parliament has itself declared the relevant governing principle in section 70(1) (namely that each region should have a regional strategy) and has given no clear or sufficient indication that that principle may be set aside by virtue of a contrary policy judgment on that question of general principle being made by the executive;
vi) The centrality which Parliament intended Regional Strategies to have in the planning system is underlined by the strong practical effect to be given to them as set out in section 36(3) and (6) of the PCPA 2004
, when applications for planning permission fall to be determined. Again I do not consider that it is plausible to suppose that Parliament can have intended that the Secretary of State's power in section 79(6) should extend to abrogating the whole system to have in place and give effect to such a primary instrument of planning policy;
".
- Mr Timothy Mould QC, who appeared for the Secretary of State in the present applications (though not in the original proceedings) confirmed that the Secretary of State does not intend to pursue an appeal against the decision of Sales J.
- Sales J.'s judgment having been handed down, the Secretary of State promptly on the very same day issued the statement which is part of the subject-matter of the present proceedings. That statement reads as follows:
"On 6 July 2010, the Coalition Government revoked all regional strategies under section 79(6) of [the 2009 Act]. This action was challenged in the High Court by developer Cala Homes, and the decision today concluded that Section 79 powers could not be used to revoke all Regional Strategies in their entirety.
While respecting the court's decision this ruling changes very little. Later this month, the Coalition Government will be introducing the Localism Bill to Parliament, which will sweep away the last Government's controversial regional strategies. It is clear that top-down targets do not build homes they have just led to the lowest peacetime house building rates since 1924, and have fuelled resentment in the planning process that has slowed everything down.
On 27 May 2010, the Government wrote to local planning authorities and to the Planning Inspectorate informing them of the Coalition Government's intention to rapidly abolish regional strategies and setting out its expectation that the letter should be taken into account as a material planning consideration in any decisions they were currently taking. That advice still stands.
Today the Government's Chief Planner has written to all local planning authorities and the Planning Inspectorate confirming that they should have regard to this material consideration in any decisions they are currently taking.
Moreover, to illustrate the clear policy direction of the Coalition Government, the proposed clause of the Localism Bill that will enact our commitment to abolish regional strategies is being placed in the Library. The Bill is expected to begin its passage through Parliament before Christmas.
We are determined to return decision-making powers in housing and planning to local authorities and the communities they serve, alongside powerful incentives so that people see the benefits of building. We will very shortly provide more details about one of the most important such incentives the New Homes Bonus Scheme, which will come into effect from April. This means that new homes delivered now will be rewarded under the scheme.
The Coalition Government remains firmly resolved to scrap the last Government's imposition of confusing and bureaucratic red tape. This was a clear commitment made in the Coalition Agreement and in the general election manifestoes of both Coalition parties. We intend to deliver on it."
- Also on 10 November 2010, the Government's Chief Planner, Mr Steve Quartermain sent the letter to local planning authorities which is the other part of the subject-matter of the present proceedings. The letter states:
"ABOLITION OF REGIONAL STRATEGIES
I am writing to you today following the judgment in the case brought by Cala Homes in the High Court, which considered that the powers set out in section 79[6] of [the 2009 Act] could not be used to revoke all Regional Strategies in their entirety.
The effect of this decision is to re-establish Regional Strategies as part of the development plan. However, the Secretary of State wrote to Local Planning Authorities and to the Planning Inspectorate on 27 May 2010 informing them of the Government's intention to abolish Regional Strategies in the Localism Bill and that he expected them to have regard to this as a material consideration in planning decisions.
I am attaching the proposed clause of the Localism Bill that will enact that commitment. The Bill is expected to begin its passage through Parliament before Christmas, and will return decision-making powers in housing and planning to local authorities. Local Planning Authorities and the Planning Inspectorate should still have regard to the letter of the 27 May 2010 in any decisions they are currently taking.
".
Appended to Mr Quartermain's letter was proposed clause 1 of the Localism Bill, which provides:
"1. Abolition of regional strategies
(1) Part 5 of [the 2009 Act] (regional strategy) is repealed.
(2) The regional strategies under Part 5 of [the 2009 Act] are revoked."
- Two days later, on 12 November 2010, a pre-action protocol letter was sent to the Secretary of State on behalf of Cala Homes contending that the Secretary of State's letter of 10 November 2010 was unlawful, and requesting the Secretary of State to confirm that Mr Quartermain's letter of that date would be withdrawn immediately. The pre-action protocol letter also suggested that the appropriate way in which to resolve the issue it raised would be by using the same proceedings as had been before Sales J., the court's order not having yet been sealed. Responding to that letter, in a letter from the Treasury Solicitor to Cala Homes' solicitors dated 15 November 2010, the Secretary of State expressed the view that the intended proceedings were unmeritorious, and rejected the idea that the original proceedings could properly be used as a means of bringing this further challenge. The new proceedings, it was said, would be an attack on the Secretary of State's letter of 27 May 2010, and were thus both late and an abuse of process because the opportunity to launch such a challenge could and should have been taken in the original claim. Cala Homes accepts neither of those contentions, pointing out that the Secretary of State appears to have thought it necessary to issue his statement and Mr Quartermain's letter of 10 November 2010, rather than simply relying on the letter of 27 May 2010. That letter, it says, was effectively superseded by the Secretary of State's decision of 6 July 2010. This had been appreciated by Sales J., as is plain from what he said in paragraph 15 of his judgment.
- The claim was issued and served on 19 November 2010. It seeks a declaration that it is unlawful for the Secretary of State (and for local planning authorities and the Planning Inspectorate) to have regard to the Government's stated intention to enact primary legislation in future to abolish the Regional Strategies in England as a material consideration in making determinations under the Planning Acts; and an order to quash the Secretary of State's statement of 10 November 2010, Mr Quartermain's letter of that date and also the letter of 27 May 2010. The Claim Form indicated that the claim was thought to be exceptionally urgent. Directions were sought including expedition and a stay of the effect of the letter of 10 November 2010 and of Mr Quartermain's letter.
- On 22 November 2010 the claim bundle was served on the Secretary of State.
- On 1 December 2010 the City Council's Acknowledgment of Service and summary grounds were lodged with the court.
- On 2 December 2010 the Secretary of State's Acknowledgment of Service and Summary Grounds of Defence were lodged.
- Sometime in the week beginning on 29 November 2010 I do not know exactly when the Department for Communities and Local Government published on its web-site the following message:
"Status of letter to Chief Planning Officers
The Secretary of State has received a judicial review challenge in relation to his statement made on 10 November 2010 and the letter sent to Chief Planning Officers by the Chief Planner on the same date. On 25 November 2010 the Court granted the claimant a stay in relation to the Chief Planning Officer's letter. The Court Order states:
"The effect of the statement of the defendant dated 10 November 2010 and the letter dated 10 November 2010 as sent by the defendant's Chief Planner to all local planning authorities in England (which incorporates by reference a letter sent by the chief planner dated 27 May 2010) is stayed until further notice [sic]".
On 30 November 2010 the Secretary of State made an urgent application to the Court seeking to have the stay set aside. A hearing date for this application has been set for Friday 3 December 2010."
At or about the same time a message in almost identical terms was posted on the Planning Inspectorate's web-site. When the hearing of the these two applications took place on 3 December 2010 the Secretary of State had not done more than this to give effect to the stay, preferring, as I understood it, to await the outcome of that hearing before doing so.
Submissions
- Mr Mould submitted that the court should look at the situation as it now is. Expedition has been granted. A firm date for the hearing was in prospect. Preparations for the inquiry into Cala Homes' appeal, which is going to be opened by the Inspector on 8 February 2011, could proceed without undue difficulty on the basis of the status quo established by the Secretary of State's letter of 27 May 2010 and the statement and letter of 10 November 2010. Both parties would be, as Mr Mould put it (in paragraph 10 of his skeleton argument), "free to take into account and debate the materiality of the [Secretary of State's advice] and the significance and weight which it should be given in the circumstances of [Cala Homes'] planning appeal". A continuation of the stay was therefore unnecessary. Acknowledging the decision of the Court of Appeal in R v. Secretary of State for Education and Science, ex parte Avon County Council [1991] 1 Q.B. 558, Mr Mould did not question the jurisdiction of the court, in appropriate circumstances, to exercise its power under CPR Part 54.10(2) to direct a stay of administrative decisions impugned in proceedings for judicial review, a principle which was recognized by Glidewell L.J. in that case (at p. 563D). However, he drew upon the observations of Glidewell L.J. (at p. 560D) for the proposition that where a claimant's interests are sufficiently protected by the provision of an early hearing a stay may not be justified. Where a stay might operate to the detriment of third parties who are not before the court, the court should apply the principles ordinarily applicable to a claim for an interim injunction and consider whether, on the balance of convenience, the grant of a stay is justified (see R. v. Pollution Inspectorate, ex parte Greenpeace Ltd. [1994] 1 WLR 570, per Glidewell L.J. at p. 573D-F). In the present case the balance of convenience favoured the setting aside of the stay. If maintained, its effect would be to preclude the taking into account of the statement and letter of 10 November 2010 and the letter of 27 May 2010 as material considerations in the decisions of local planning authorities and Inspectors. The risk of that happening outbalanced the risk of there being, if the claim succeeds, a number of planning decisions which will have been influenced by an unlawful and therefore immaterial consideration. The undertaking the Secretary of State had now given to the court made a significant change in the balance.
- For the City Council Ms Emma Dring, supporting the position of the Secretary of State, relied on the letters which had been sent to the court on behalf of the City Council by its Head of Legal Services, Mr Howard Bone, dated 26 November 2010 and 1 December 2010. The gist of the representations made in those two letters, so far as they bear on the issue of appropriate interim relief at this stage, is as follows. Applying the principles to be discerned in the decision of the House of Lords in R v. Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603, one should note that the strength of Cala Homes' case has not yet been demonstrated. The court could not yet come to a fully informed view as to the merits (see per Lord Bridge in Factortame (No.2) at p. 660B-C). The public interest in allowing decisions of the executive to be applied until declared to be invalid should be a special factor in the exercise of the discretion (see per Lord Goff at pp. 672F-674D). "Obvious and immediate damage" (per Lord Goff at p.676C) or "very severe and irrecoverable damage" (per Lord Jauncey at p. 683C) to Cala Homes in the absence of a stay had not been demonstrated. The appeal inquiry process was capable of accommodating rival arguments as to the weight to be given to the statement and letter of 10 November 2010. Conversely, the stay could cause real prejudice to the City Council if Cala Homes' claim was ultimately unsuccessful. The City Council would have to revise its case and the evidence it was preparing for the inquiry. It would not be able to rely on the statement and letter of 10 November 2010. This would be an unjustified interference with its right to present at the inquiry the arguments it regards as appropriate.
- For Cala Homes, Mr Peter Village QC argued that expedition and the stay were both still necessary, not only in Cala Homes' interests but also in the wider public interest. In the first place, Mr Village submitted, Cala Homes' claim is demonstrably firmly based and strong. Secondly, if the stay were removed a transparently unlawful attempt by the Secretary of State to avoid the consequences of Sales J.'s decision would be persisted in, and would deliberately influence the making of decisions on planning applications and appeals. The particular concern of Cala Homes had been that evidence was now being prepared for the hearing of its appeal at inquiry, and it therefore needed to know as soon as possible whether the City Council was taking an unlawful approach to the role the Regional Strategy should play in the determination of its proposals. But throughout the planning system as a whole the stay would bring benefit. Far from constraining the exercise by local planning authorities of their statutory powers, it would confer immunity upon decisions made in the light of the decision of Sales J. effectively to restore Regional Strategies to their rightful place as the strategic component of the development plan and without regard to this latest attempt by the Secretary of State to modify their influence on decision-making. If the stay were lifted there would necessarily be a risk of planning decisions being taken in reliance on the statement and letter of 10 November 2010 only to be declared unlawful and quashed after the present claim had succeeded. Thirdly, to release the stay would be to countenance the kind of difficulties which had previously been caused by the Secretary of State's letter of 27 May 2010. In support of that submission Mr Village referred to what had been said by counsel for the Secretary of State in paragraph 43 of their skeleton argument for the hearing before Sales J.:
"[The] Secretary of State in the period following his 27 May 2010 letter received numerous requests from local planning authorities, developers and others to provide further clarity as regards the status of Regional Strategies prior to their being abolished by legislation. There was a general concern that there would be uncertainty/inconsistency in decision making in the planning system as a result of the fact that it was clear to all that Regional Strategies would be abolished, but they had not yet been revoked. The concerns raised focussed on: (i) how to take forward local development documents, in particular planning for housing numbers while the Regional Strategies remained as part of the development plan but were going to be abolished; and (ii) how to determine planning applications in those circumstances. The decision to revoke and the accompanying question and answer advice was aimed at removing such uncertainty pending the Decentralisation and Localism Bill becoming law."
Mr Village also drew my attention to comments made by Mr David Morris, the Deputy Director in the Planning Directorate of the Department for Communities and Local Government with responsibility for development plans, in his evidence on behalf of the Secretary of State in the first proceedings. In paragraphs 10 and 11 of his witness statement dated 21 October 2010, under the heading "Uncertainty arising from the reinstatement of Regional Strategies", Mr Morris said this:
"10. The Secretary of State's letter of 27 May 2010 generated significant correspondence highlighting uncertainty about how to operate where Regional Strategies had not yet been revoked but it was clear that they would be abolished by legislation in the near future. Frequently expressed were:
- inconsistency in decision making by local planning authorities on individual planning applications resulting in planning by appeal;
- PINs having to deal with a greater volume of appeals as a result;
- The Secretary of State having to deal with more recovered and called in appeal cases;
- increase in legal challenges; and
- a slow down in the preparation of local plans as local planning authorities wait for the abolition of Regional Strategies before proceeding with their Core Strategies and other Development [Plans].
11. It is likely that the reinstatement of Regional Strategies before they are abolished by the Localism Bill would raise similar questions and concerns. In particular it would lead to slowing down plan making with knock on effects on delivery of sustainable development. It would also create significant confusion and delay in the development management process. This confusion and delay will harm the credibility of the planning system and is exactly what the Secretary of State was seeking to avoid by making a clean break with Regional Strategies by revoking them on 6 July 2010."
Mr Morris had been right to predict such problems, said Mr Village. This could be seen, for example, in the contrasting approaches of four local planning authorities to the advice contained in the Secretary of State's letter of 27 May 2010, which had been referred to by Cala Homes' solicitor, Mr Ian Ginbey, in his witness statement of 22 November 2010. For all of those reasons, Mr Village submitted, the balance of convenience favoured the retention of the stay.
Discussion
- That the court has jurisdiction to grant a stay in the present circumstances is not in dispute. In R. v. Secretary of State for Education and Science, ex parte Avon County Council [1991] 1 QB 558 the Court of Appeal held that a "stay of proceedings" in the context of applications for judicial review embraced not only judicial or quasi-judicial proceedings but also extended to decisions of the Secretary of State and the process by which such decisions had been reached, including the decision itself. A distinction was to be made between civil litigation, where an injunction might be ordered at the suit of one party against the other, and judicial review, where the decision-maker is not in any true sense an opposing party and where the order that the decision should not take effect until the challenge had been determined is correctly described as a stay (see per Glidewell L.J. at pp.561F-562D and 563D-E). The court can stay an administrative decision-making process being undertaken by a public body, including a minister, or the implementation of such a decision by such a body if the decision has already been taken. In R. v. Ashworth Hospital, ex parte H. [2003] 1 WLR 127 Dyson L.J. stated that the purpose of a stay in judicial review is clear:
"
It is to suspend the "proceedings" that are under challenge pending the determination of the challenge. It preserves the status quo. This will aid the judicial review process and make it more effective. It will ensure so far as possible, that, if a party is ultimately successful in his challenge, he will not be denied the full benefit of his success. In Avon, Glidewell LJ said that the phrase "stay of proceedings" must be given a wide interpretation so as to apply to administrative decisions. In my view it should also be given a wide interpretation so as to enhance the effectiveness of the judicial review jurisdiction. A narrow interpretation, such as that which appealed to the Privy Council in [Minister of Foreign Affairs, Trade and Industry v. Vehicles and Supplies Ltd. [1991] 1 W.L.R. 550] would appear to deny jurisdiction in case A [i.e. where the tribunal ordered discharge, but the order had not yet taken effect because the tribunal directed that the discharge was to be deferred to a specific future date]. That would indeed be regrettable and, if correct, would expose a serious shortcoming in the armoury of powers available to the court when granting permission to apply for judicial review.
[It] is common ground that "proceedings" includes not only the process leading up to the making of the decision itself. The Administrative Court routinely grants a stay to prevent the implementation of a decision that has been made but not yet carried into effect, or fully carried into effect. A good example is where a planning authority grants planning permission and an objector seeks permission to apply for judicial review. It is not, I believe, controversial that, if the court grants permission, it may order a stay of the carrying into effect of the planning permission."
In ex parte Avon County Council, the availability of an expedited hearing of the application for judicial review made it unnecessary to order a stay. On this point Glidewell L.J. stated (at p.560A-B):
"
We decided that the court has such jurisdiction. However, when it became clear to us that an early hearing of the substantive application could be arranged, we considered that a stay was unnecessary, and declined to grant a stay.
"
- As with any application of this kind, the court must do its best to establish the procedural justice of the matter, having regard to the balance of convenience. In striking the balance of convenience the court will consider the substance and apparent strength of the claim, without predetermining its merits. Here, in my judgment, the court has to go about this task with a sense of the wider importance of the issues raised as well as the particular circumstances of Cala Homes as claimant. On behalf of the Secretary of State it has been conceded, though only for the purposes of the present application, that the court should adopt a benevolent attitude to the merits, and assume that the claim is arguable. I have done so. Without attempting to prejudge the claim, but conscious of the history lying behind it in the original proceedings, I consider that it must be regarded as having some prospect of success. Equally clear, however, from the summary grounds presented to the court by the Secretary of State and from those of the City Council, is that this new challenge, like the last, is going to be vigorously opposed. It is said on behalf of the Secretary of State that the concept of the statement and letter of 10 November 2010 being, as Mr Village put it (in paragraph 16(3) of his skeleton argument), "fundamentally subversive" of the existing legislation leaves no place for the role of section 38(6) of the Planning and Compulsory Purchase Act 2004 in the way in which that role was acknowledged by the decision of the House of Lords in the City of Edinburgh case. Determining this issue is not the business of the court at the stage of interim relief. That will be for another day. But, in any event, the existence of what may turn out to be a compelling argument for the Secretary of State on so fundamental a question in the claim is, of itself, a factor which goes to the balance of convenience.
- It is also plain that in the present case the balance necessarily involves not merely the interests of the parties but also the public interest. A reasonable summary of the public interest considerations engaged here would be clarity, consistency and certainty in the day-to-day business, throughout England, of local planning authorities, Inspectors and, indeed, the Secretary of State himself in the making of development control and other planning decisions. The issues raised in the claim are unusually important because they go to the heart of the so-called "plan-led" system, in which primacy in planning decision-making is given by statute (in section 38(6) of the Planning and Compulsory Purchase Act 2004) to the development plan, and unusually acute because, until the decision of the court is pronounced, the exercise by local planning authorities of their planning functions will continue to be affected. The claim impugns executive action purporting to modify the approach that all planning decision-makers must take to the strategic element of the development plan provided by Regional Strategies where they are in place. Closely related matters have already been litigated in the original proceedings, and these have been determined by Sales J. in a judgment that has not been appealed. How much, if at all, Sales J.'s decision affects the status of the Secretary of State's letter of 27 May 2010 is itself contentious between the parties. The Secretary of State says that the advice given in the letter is unaffected and valid and a proper basis for his statement and Mr Quartermain's letter of 10 November 2010. Cala Homes' position is diametrically different. But, in any event, the connection between this claim and the last in the issues they raise is obvious.
- Two possible scenarios emerge. The first, which was contended for by Mr Village, is that, if the stay were not kept in place and the claim were ultimately successful, there would be decisions taken in the period between 10 November 2010 and the time when that result is reached which would be unlawful because they will have been infected with an immaterial consideration, just as legally bad decisions will have been made in the period between 6 July 2010 and 10 November 2010 while the Regional Strategies remained unlawfully revoked. The alternative scenario, contended for by Mr Mould, is that, if the stay is maintained, decisions will be made which are unlawful because local planning authorities, Inspectors and the Secretary of State will not have been able to take into account as material considerations the statement and letter of 10 November 2010, which must be presumed lawful unless and until declared to be unlawful and/or quashed by the court. Put simply, the question is therefore whether the effect of the stay while it endures would be to prevent the statement and letter of 10 November 2010 being, as a matter of law, material considerations or merely to prevent a decision-maker taking them into account even though they were.
- I am not persuaded that Mr Mould was right to submit, as in effect he did, that the latter proposition reflects the observations made by Glidewell L.J. in ex parte Avon County Council (at p.560E-F):
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Today, many applications for judicial review are for orders of certiorari to quash decisions of decision-making bodies other than courts, including government ministers, local authorities and other bodies whose decisions are susceptible to judicial review. Thus the phrase "a stay of the proceedings" in relation to such bodies must mean a "stay of the process by which the decision challenged has been reached, including the decision itself.".
In my judgment, there is force in Mr Village's submission that the stay would serve to suspend the effect of the statement and letter of 10 November 2010. Thus, if one were to assume that the claim for judicial review will in the end fail, the stay would nevertheless have precluded future challenges to decisions on the grounds of a failure to have regard to what is said in the statement and letter. Conversely, if one assumes that the claim will ultimately succeed and if the stay were now removed, there would be no such protection for decisions made in reliance on the contents of the statement and letter. This would replicate the situation that obtained in the interregnum between Regional Strategies being revoked on 6 July and the court's decision being given on 10 November 2010. I prefer this understanding of the effect of the stay to that contended for by Mr Mould. It seems better to accord with the concept of preventing the implementation of a decision not yet carried into effect, or fully carried into effect, referred to by Dyson L.J. in R.(H). If, however, Mr Mould's submission is correct, the only other option left for the court to contemplate would seem to be a stay in the form of a moratorium on the decision-making of all local planning authorities in England until the outcome of the present claim is known. Unsurprisingly, that is not an option advocated by Mr Village. Mr Mould described it as unacceptable. I agree.
- In the event I do not find it necessary to decide whether it was Mr Village's or Mr Mould's submission as to the effect of the stay which is right. This is because, even assuming Mr Village's submission is correct, I am satisfied that the balance of convenience now falls decisively in favour of removing the stay. The reasons are simple. Apart from the additional documentary material now before the court and the oral and written submissions that have been made for each of the three parties to the claim, there have been two significant changes of circumstances since I made my order on 25 November 2010. Both of them militate strongly against the stay being maintained.
- The first of these changes is that it is now clear when the "rolled-up" hearing will take place. It is to be fixed in the week commencing on 17 January 2011. This will enable both Cala Homes and the City Council to prepare for the inquiry beginning on 8 February 2011 knowing that by the time the inquiry is opened the court's decision on the claim for judicial review is likely to have been made. If judgment has been given by then it will be possible for advocates in their submissions and witnesses in their evidence to refer to it and to comment on its implications for the issues in the appeal. I have no doubt that the Inspector hearing the appeal will want to make sure that, through his management of the case, arrangements are made to avoid any unfairness or unnecessary inconvenience. If any adjournment of the inquiry is necessary it can be applied for, and, if granted, is not likely to disrupt the inquiry process unduly or to delay the decision on the appeal. So, in my judgment, the justification for the stay in the context of Cala Homes' appeal has now been removed.
- The second new factor, which in the context of the wider public interest I consider to be crucial, is that the Secretary of State has given the court the undertaking to which I have referred. Acting on my suggestion that he might wish to do so, the Secretary of State has committed himself to informing local planning authorities and the Planning Inspectorate of Cala Homes' claim for judicial review and advising them that it will be for them to consider whether the challenge and the basis for it affect the weight to be given in their decisions to the statement and letter of 10 November 2010 and the letter of 27 May 2010. That commitment is reflected in the order I have made. This approach was described by Mr Mould as combining principle with pragmatism. I agree that it has the benefit of reducing the possibility of subsequent challenges to potentially unlawful decisions made during the period while the lawfulness of the Secretary of State's actions remains in question. That some uncertainty will persist until the present claim has run its course is inevitable. But the court can ensure that the spectre of confusion described in the skeleton argument of counsel for the Secretary of State for the hearing before Sales J. and by Mr Morris in his witness statement does not become more of a reality than it must in the absence of a stay.
- How then should local planning authorities and other decision-makers proceed until the present claim has run its course?
- Well established and familiar as they are, the relevant legal principles which govern planning decision-making may usefully be stated again.
- A local planning authority is required when determining an application for planning permission, to have regard to two types of consideration, namely the development plan so far as is relevant, and other considerations that are "material" (section 70(2) of the Town and Country Planning Act 1990). This duty applies also, in the case of a call-in or an appeal, to the Secretary of State or his inspector as the maker of the decision (sections 77 and 78 of the 1990 Act). In England (as elsewhere in the United Kingdom) the planning system is still "plan-led". In statutory as opposed to policy terms, the priority to be given to the development plan in development control decision-making is encapsulated in section 38(6) of the 2004 Act. That section must be read together with section 70(2) of the 1990 Act. The effect of those two provisions, when they are read together, is that the determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise. Section 38(3) of the 2004 Act, as amended by the 2009 Act, provides that for the purposes of any area other than Greater London the development plan is "the regional strategy for the region in which the area is situated" and "the development plan documents (taken as a whole) which have been adopted or approved in relation to that area". The effect of the provision equivalent to section 38(6) in the Scottish legislation was examined and explained by the House of Lords in City of Edinburgh Council v. The Secretary of State for Scotland [1997] 1 WLR 1447. In his speech (at p.1458E) Lord Clyde said that, by virtue of that provision:
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if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance. Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations then a decision contrary to its provisions can properly be given."
Though it requires a local planning authority to recognize the priority to be given to the development plan, section 38(6) leaves the assessment of the facts and the weighing of all material considerations with the authority. It is for the authority to assess the relative weight to be given to all material considerations, including the policies of the development plan (see per Lord Clyde at pp. 1458C-1459A, and per Lord Hope at p.1450B-H). The law has always distinguished between materiality and weight. The distinction is clear and essential. Materiality is a question of law for the court; weight is for the decision-maker in the exercise of its planning judgment. Thus, as Lord Hoffmann stated in a well known passage of his speech in Tesco Stores Limited v. Secretary of State for the Environment [1995] 1 WLR 759:
"This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."
(at p.657G-H). So long as it does not lapse into perversity, a local planning authority is entitled to give a material consideration whatever weight it considers to be appropriate. Under the heading "Little weight or no weight?" Lord Hoffmann observed (at p.661B-C):
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If the planning authority ignores a material consideration because it has forgotten about it, or because it wrongly thinks that the law or departmental policy (as in Safeway Properties Ltd v Secretary of State for the Environment [1991] JPL 966) precludes it from taking it into account, then it has failed to have regard to a material consideration. But if the decision to give that consideration no weight is based on rational planning grounds, then the planning authority is entitled to ignore it."
Thus, in appropriate circumstances, a local planning authority in the reasonable exercise of its discretion may give no significant weight or even no weight at all to a consideration material to its decision, provided that it has had regard to it.
- Mr Mould accepted in argument that, while the present proceedings are alive, it would be open to a local planning authority to give no weight to the Secretary of State's statement and the Chief Planner's letter of 10 November 2010 and the Secretary of State's letter of 27 May 2010, or to defer its decision altogether until after judgment has been delivered. That acknowledgment is helpful as far as it goes. But authorities and inspectors must understand that the very materiality of the statement and letter of 10 November 2010 and of the letter of 27 May 2010, and not merely the weight they should carry, is at issue between Cala Homes and the Secretary of State, and that the present claim may result in the court holding the Secretary of State's actions to have been unlawful. Keeping that in mind, planning decision-makers will in the meantime have to consider how they should deal with the matters that come before them. This will be for them to resolve in every relevant case.
- I turn to the practical arrangements which are now to be put in place. The order I made on 7 December 2010, in terms agreed by the parties, varies paragraph 2 of my order of 25 November 2010, requiring the Secretary of State to file and serve any written evidence on which he intends to rely by 4 p.m. on 10 December 2010 (paragraph 3 of the order). It amends paragraph 5 of my order of 25 November 2010, to require the application for permission and, if permission is granted, the substantive claim to be listed for a rolled-up hearing on or prior to 21 January 2011 (paragraph 5 of the order). It also sets aside the stay, the Secretary of State having undertaken "to cause to be publicised forthwith on the websites of the Department for Communities and Local Government and of the Planning Inspectorate a statement" in the following terms:
"Local planning authorities and planning inspectors should be aware that the Secretary of State has received a judicial review challenge to his statement of 10 November 2010, the letter of the Chief Planner of the same date and to the Secretary of State's letter of 27 May 2010 on the ground that the Government's intended revocation of Regional Strategies by the promotion of legislation for that purpose in the forthcoming Localism Bill is legally immaterial to the determination of planning applications and appeals prior to the revocation of Regional Strategies.
The Secretary of State is defending the challenge and believes and is advised that it is ill founded. Nevertheless, pending determination of the challenge, decision makers in local planning authorities and at the Planning Inspectorate will in their determination of planning applications and appeals need to consider whether the existence of the challenge, and the basis of it, affects the significance and weight which they judge may be given to the Secretary of State's statements and to the letter of the Chief Planner.
The Secretary of State will notify the determination of the Court once it has been made. This is currently expected to be by the end of January 2011."
- Having been asked by Mr Village to do so, I think it is also appropriate to mention, first, that the Secretary of State may be able to tag the statement set out in the Annex to my order of 7 December 2010 (which I have just recited) to any statement or letter of his own, or of any other minister, or of the Government's Chief Planner, which is published on his department's website or the Planning Inspectorate's website indicating that the Government's intention to abolish Regional Strategies is a material consideration in the determination of planning applications or appeals and in the preparation of development plans; secondly, that the Secretary of State may think it sensible to notify the chief officers of all local planning authorities of the statement annexed to my order; and thirdly, that the grounds of Cala Homes' claim for judicial review can be viewed on Mr Village's chambers' website (at www.4-5.co.uk) and that the Secretary of State's Summary Grounds of Defence will be available to be viewed on Mr Mould's chambers' website (at www.landmarkchambers.co.uk).
- I should add, finally, that the parties may wish to consider whether any publicity beyond the normal reporting of it should be given to this judgment.
Conclusion
- For the reasons I have given both applications before me succeed.
