Planning & Environment

Abolition of the regional spatial strategies is part of the Coalition Government’s localism agenda, to return decision-making powers on housing and planning to local councils. That strategy has had a set back – the English High Court has quashed the decision by Communities Secretary Eric Pickles to revoke RSSs, following a legal challenge brought by Cala Homes.

The Scottish planning system was extensively reformed last year. Localism was not a specific objective, but in some aspects local authorities were given more powers/ responsibilities (see my previous article).

Scotland has always had its own system of development plans, which was updated as part of the planning reforms last year. Outside of the city regions, there is localism in action – there is only one development plan for each local authority area, so each of those authorities has full responsibility for preparing that plan (local development plan – LDP); within the city regions (centred on Glasgow, Aberdeen, Dundee and Edinburgh), there is a regional style element – the local authorities within those areas have to take into account the strategic development plan (SDP) when preparing their local development plan.

The Scottish Ministers are in their own legal pickle over the National Planning Framework (NPF), which is the national dimension to the Scottish development plan system. The Court of Session has been hearing a legal challenge to the decision by the Ministers to include the Hunterston power station development in NPF2.

Cala’s legal challenge to the Pickles’ decision focused on the phrase in the statutory provisions: “the Secretary of State may at any time revoke all or any part of a regional strategy”. That may seem a slam dunk for Pickles, but the High Court referred to the long standing principle that Parliament must have conferred this sort of discretionary power with the intention that it should be used to promote the policy and objects of the Act. The phrase therefore has to be read in the context of the whole Act.

The High Court noted that the point of the Act is to create a new statutory tier of regional planning guidance. If Parliament had intended that the Secretary of State should have power to set aside that whole elaborate structure, the court considered that Parliament would have used much clearer language to achieve that effect and would have given the provision much greater prominence. The court’s view was that the power of revocation given to the Secretary of State was intended to be used to put in place a replacement regional strategy, not to abolish regional strategies entirely.

The main message in this case is equally applicable in Scotland – even where legislation appears to confer very, very broad discretion on government ministers, the courts will intervene to regulate how those powers are exercised. So – “don’t believe everything you read”, even if it’s in an Act of Parliament.

The High Court also held that Pickles acted unlawfully by purporting to revoke RSSs without first at least conducting a screening assessment to identify whether strategic environmental assessment was required.

The court’s decision will not stop Pickles from abolishing RSSs, but means he will need to use an Act of Parliament, which will take longer. In the meantime, the parties appear to be gearing up for Round 2, with reports of legal action against a letter from the Government’s Chief Planner indicating that the Government’s continued intention to abolish RSSs is a material consideration. This is the kind of confused/ confusing situation where every planner needs a lawyer on speed dial…

Neil Collar

Partner at Brodies LLP
Neil is a partner at Brodies LLP and consistently rated as one of Scotland’s leading planning lawyers. He is well known for both his planning inquiry advocacy and his advisory work. Neil has a particular interest in renewable energy developments.
Neil Collar