A little local difficulty

Cala Homes (South) is sitting on 87 hectares of farmland near historic Winchester. It wants to build 2,000 homes there. Since 2004, Cala has been trying to coax planning permission out of those who grant it. I bet it knows its planning law inside and out.

Then mr pickles dropped a clanger. he said he was using his powers as secretary of state not to wait for the localism act … Cala’s response? Oh, no you don’t

Now then, 2,000 homes is quite a handful of change for this very English market town. The place is a delight: it is a tourist attraction, has a cathedral, even has real shops. But this Hampshire neck of the woods is said to need not 2,000, more like 5,500 new homes. And while we’re at it, the South-east plan talks of a net addition of 654,000 dwellings by 2026. All this mega thinking comes from “regional spatial strategies”, supported by acts of parliament going back umpteen years. That’s why folk like Cala invest in land and then seek planning.

However, I bet you Cala in its long-term plan didn’t account for Mr Eric Pickles MP. On 6 May 2010, the old regime in parliament was ousted. In came a new government and a new secretary of state for communities and local government. Within days at his new desk Mr Pickles announced his intention to abolish regional spatial strategies. I suspect Cala cringed when the word “localism” was trotted out. When you are one of the UK’s top-flight building firms building new communities on the edge of town, “localism” is the last thing you want. Cala went to the lawyers.

Meanwhile, Mr Pickles explains that he is returning decision-making powers on housing and planning to local councils. Decisions on housing supply will rest with local planning authorities without the framework of regional numbers and plans. Then, on 6 July, he said: “Today I am revoking regional spatial strategies.” Seemingly those people engaging their intellectual skills in arm’s-length thinking about housing needs are an “unnecessary bureaucracy; a failure; expensive and time consuming”. The new planning system will be “clear, efficient and will put greater power in the hands of local people rather than regional bodies”. Can you hear Cala growl?

Goodness knows what Mr Pickles meant when he went on to say that “imposed central targets will be replaced with powerful incentives to local authorities so that people see the benefits of building”. Then added: “These incentives will encourage local authorities and communities to increase their aspirations for housing and economic growth, and deliver sustainable development in a way that allows them to control the way in which their villages and towns and cities grow.” Gosh, wow, the band is playing and the dancing girls are, well, dancing. “Legislation will give us the Localism Bill.” Then he dropped a clanger. He said he was using his powers as secretary of state not to wait for the Localism Act. He would use the Local Democracy, Economic Development & Construct Act (LDEDCA 2009) to repeal the previous laws about regional strategy.

Cala’s response? Oh, no you don’t. Allow me to explain a parliamentary device. It has become fashionable to embed in Acts of Parliament what we call “ministerial powers”.  The act itself will lay down governance in law. But then a minister is also empowered in the same act to “tinker” when circumstances arise that are thought to require improvements. The minister has unilateral power, though limited. Cala pointed out to Mr Pickles that his powers in the LDEDCA 2009 did not extend to his decision to abolish regional strategies. He rejected Cala’s point. 

When you are one of the UK’s top-flight building firms building new communities on the edge of town, ’localism’ is the last thing you want

The answer, then, is to seek “judicial review”. A trial is held and a High Court judge interprets the powers said to rest in the minister. And so it came to pass that Mr Justice Sales ruled that Mr Pickles had no power to abolish the regional strategy in an earlier act of parliament.

Cala smiled. Its endeavour to get planning permission will now travel the path it anticipated when it invested in Barton Farm and the planning risk. Mr Pickles will have to now get his Localism Bill through parliament into law. Meanwhile, those “locals” who will become responsible for the well-being of, and changes to, our villages, towns and cities,
can ask themselves if they are up to it. Mr Pickles no doubt says they are. Do you?

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple