At the end of last week Rochford wrote to their core strategy examination inspector asking for suspension of the examination.
The Council have been considering its position in relation to the Core Strategy in light of the current situation; namely the attempts by Government to change national planning policy, the statements issued, and the subsequent decision that such actions were unlawful. This has, as you will be only too aware, caused considerable delays to the Core Strategy process and placed the Council in a difficult position in relation to its planning framework for the District. …there are ..key issues facing the Council in this respect, as clarified within your recent correspondence and in light of recent Court Rulings, namely:..
The Secretary of State’s revocation of Regional Spatial Strategies – which led to the Council making amendments to its Core Strategy – has been ruled unlawful by the Courts. In particular, we note the recent Court of Appeal decision on 27 May 2011 [CALA II] in which it was found that the Secretary of State’s intention to revoke Regional Spatial Strategies could not be a material consideration in the plan-making process. As such, we recognise that at this current time you are not in a position to be able to support the proposed amendments to the Rochford District’s Core Strategy that resulted from the attempt by Government to revoke Regional Spatial Strategies….
One option was to amend the Core Strategy such that it unequivocally conforms to the East of England Plan (2008), i.e. amend the current policy of providing 190 dwellings per annum to 250… we note that the Localism Bill is expected to achieve Royal Assent in November 2011, and that one of the key elements of the Bill is the abolition of Regional Spatial Strategies. As such, the requirement to conform to the East of England Plan (2008) – and to pursue the outdated housing provision figure for Rochford District set within it – is likely to be short-lived, particularly in the context of plan period stretching beyond 15 years. [Note Royal Assent will not see revokation – that requires SEA first – Rochford seem to have got this wrong]
If the inspector acceded to this request it would the fourth core strategy examination halted mid flow in recent months:
–South Wiltshire -suspended August 2010 – to allow Wiltshire to consult on lower housing number post RSS ‘revocation’
–Surrey Heath – Suspended March 2011 – suspended because of concerns about whether the plan could deliver SE Plan targets.
-Luton South Beds – we covered this earlier – first case likley to be effected by CALA II
A correspondent from the Rochford Independent Website writes
“Essentially, if the Inspector agrees to the suspension, she could be viewed as being in direct contravention of the principle established in the Cala II Appeal [para 24] as she would, in effect, be encouraging the authority to have regard to the proposal to abolish the Regional Strategy.”
It is not that simple, in CALA II one of the key issues was to do with the law on whether or not administrative degree could overcome the will of parliament. After Royal Assent the will of parliament will be clearer. But none the less as the junior minister Bob Neill has consent to there will be no revokation until the SEA process has been completed, consulted on and responded to. Until then the RSS remains the development plan and the legal requirement for general conformity remains. A material consideration can never trump a legal requirement, this is not a matter for weighing and balancing. Suspension now of the examination could be challengable as it would be prejudging the outcome of the SEA consultation, indeed imprudent remarks from Ministers have made a challenge on grounds of the Seaport case (a NI SEA case in the European Courts) inevitable, which will take at least two years to conclude. What is more statements by government payroll members (such as the local MP who is a whip) that after the royal assent the RSS should be disregarded (see letter) could be regarded as prejudicial to the SEA process, the MP needs to keep a judicial silence as his action is likely to be quoted in court as evidence of government prejudice – he could have led to the RSS being given life until conclusion of judicial process. If the inspector suspended the EIP it would be prejudging, the outcome of an SEA process and consultation that hasnt even begun. He or she should carry on and determine the plan of the basis of what is and not what might be in six months or two years – indeed they have a legal duty to. The situation of EiP examinations lasting over a year – when they used to last only a few days or weeks prior to May 2010 – has become a joke which discredits the whole process. If Rochford was not happy with this they could always withdraw and resubmit later. Of course on re-submission if they propose building much less than SHMA assessed need and without ‘duty to cooperate arrangements to cope with the housing they would displace beyond the green belt they would not just have a potentially unsound plan they would (after royal assent) have a potentially unlawful one.