LexisPSL's Colleen Theron and Deirdre Lyons detail a case that confirms local authorities and developers must continue to consider regional strategies in planning applications
In July 2011, the High Court quashed an inspector’s decision refusing planning permission for a waste treatment facility in Derby. Resource Recovery Solutions (Derbyshire) had applied for planning permission to construct the facility, but the application was dismissed in January 2010.
At appeal, the inspector refused permission due to the potential increase in traffic congestion, possible adverse effect on the air quality and possible undesirable impacts on the living conditions of local residents.
At the time of submitting the planning application, the development plan for the area where the site is located was comprised of the East Midlands Regional Spatial Strategy (RSS), the City of Derby Local Plan Review 2006 and the Derby and Derbyshire Waste Local Plan.
The status of the RSS (as forming part of the development plan) was initially uncertain at the time of the inquiry. However, a decision by the court in R (Cala Homes (South)) v Secretary of State for Communities and Local Government [2011] EWHC 97 (Admin) during the inquiry period held that the revocation of an RSS was unlawful.
Although the inquiry proceeded on the basis that the RSS was not part of the development plan, the inspector’s decision was taken when the position had been clarified by the court – namely, when the RSS was part of the development plan.
Resource Recovery Solutions challenged the inspector’s decision – by way of judicial review – on the basis that it contained errors in law, including a failure to consider and take into account the RSS and/or failure to refer to the need to consider the RSS based on the Cala decision.
The court allowed the application for judicial review and quashed the inspector’s decision. It held that the RSS contained key information and relevant data relating to the application and that there was a real difference between the local waste policy and the spatial strategy of the region, which was evidence-based.
The inspector should have referred the matter back to the parties for the following reasons:
- the scale of the proposal was not only of local importance, but was relevant to the waste management needs of the entire subregion;
- the parties should have made reference to the RSS during the inquiry; and
- the inspector should have sought the parties’ views based on the materiality and weight to be given to the RSS.
The appeal was allowed. This decision, together with the ruling in the Cala case, revives the use of regional strategies as forming part of the development plan. Until the Localism Bill comes into force, local authorities, developers and their advisers will have to consider the evidence in regional strategies when considering any planning applications.
