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R (Stevenage Borough Council) v. Secretary of State for Communities & Local Government and North Hertfordshire District Council [2011] EWHC 3136

DATE: 01 Dec 2011

This was a case concerning the extent to which the proposed abolition of Regional Strategies (contained in the then Localism Bill, now the Localism Act 2011) is relevant to the preparation and examination of development plan documents.

The draft Stevenage Core Strategy proposed an urban extension to Stevenage which would cover the administrative areas of both Stevenage Borough Council and North Hertfordshire District Council. The urban extension was required by the relevant Regional Strategy, the East of England Plan. Prior to the examination of the Core Strategy, NHDC decided that it would cease to continue joint working with SBC on the proposed urban extension until the fate of the Regional Strategies was known. In February 2011, NHDC published a Local Development Scheme setting out the timetable for the preparation, submission and adoption of its own Core Strategy. This timetable indicated that submission of NHDC’s draft Core Strategy for examination would take place in April 2013, by which time the revocation of Regional Strategies was anticipated to have taken effect.

Against this background, the Inspector appointed to examine the draft Stevenage Core Strategy held that it was not deliverable and therefore failed to meet the statutory requirement of ‘soundness’, owing to its critical dependence on the co-operation of NHDC and the uncertainty as to whether joint working with NHDC would resume given NHDC’s response to the proposed abolition of Regional Strategies.

Stevenage BC brought a claim for judicial review of the Inspector’s decision, contending that the proposed abolition of Regional Strategies can never be a relevant consideration in the plan-making process. In doing so, they relied on a comment of Sullivan LJ in R (Cala Homes (South) Ltd) v. SSCLG (No. 2) [2011] EWCA Civ 639 and the principle enunciated in Padfield v. MAFF [1968] A.C. 997 that a decision-making power must be exercised so as to promote, and not run counter to, the legislation conferring that power.

Delivering judgment, Ouseley J accepted the Secretary of State’s and NHDC’s submissions that:

1. The claim was in truth a collateral attack on NHDC’s LDS which had not been subject to any legal challenge and therefore had to be given all the effects in law of a valid LDS; and
2. In any event, NHDC was entitled to take into account the anticipated revocation of Regional Strategies in timetabling and undertaking preparatory work for its Core Strategy.
Of particular importance are paras. 32-35 of Ouseley J’s judgment, in which he held as follows:

“32. …Mr Straker submitted that the Inspector erred in paragraph 13 in saying that NHDC was entitled to take into account, in preparing its plans, the potential revocation of the EoEP.  This was contrary to the penultimate sentence of paragraph 24 of Sullivan LJ’s judgment in Cala Homes.  For ease, I repeat it and the final sentence:

“It would be unlawful for a local planning authority preparing, or a Planning Inspector examining, development plan documents to have regard to the proposal to abolish regional strategies.  For so long as the regional strategies continue to exist, any development plan documents must be in general conformity with the relevant regional strategy.”

33. I reject that submission.  The statutory obligation is quite clear.  The DPD must be in general conformity with the Regional Strategy at the stage when it is submitted for examination; S20(2)(b) requires the local authority to submit it when it is ready and when it thinks that the plan generally conforms to the Regional Strategy.  There is no earlier obligation in relation to general conformity.  S20(5) requires the DPD to be submitted for examination for such conformity, and for soundness.  S24 does not bite at any earlier stage in the preparation of the DPD.

34. Importantly, s19 by contrast does not contain a requirement for general conformity.  The statute requires the DPD to be prepared in accordance with the Local Development Scheme.  The statutory duty at that stage in relation to the Regional Strategy is “to have regard” to it.  This is the flexible language with which, in Cala Homes, Sullivan LJ contrasted the inflexible requirement under s24 that the DPD conform generally to the Regional Strategy.   In my judgment, and consistently with Cala Homes in the Court of Appeal, the local authority in developing its DPD is entitled to take a view on the ways in which a Regional Strategy may be evolving away from the immediately current version, and by the same reasoning is entitled to take a view on its prospective revocation, in deciding how to have regard to it.

35. The statutory scheme gives a flexibility at earlier stages in the plan-making process, which it removes at the stage of submission for examination.  I can see no justification for importing that lack of flexibility into the earlier stage, as a matter of statutory construction.  Indeed it would conflict with the clear contrast between the language of s38 (6) of the 2004 Act (with s70 (2) TCPA 1990), and that of s24, so important to the reasoning of the Court of Appeal in Cala Homes.”

Charles Banner appeared for the successful Defendant, the Secretary of State for Communities & Local Government, instructed by the Treasury Solicitor.