“ABOLITION OF REGIONAL STRATEGIES I am writing to you today to highlight our commitment in the coalition agreements where we very clearly set out our intention to rapidly abolish Regional Strategies and return decision making powers on housing and planning to local councils. Consequently, decisions on housing supply (including the provision of travellers’ sites) will rest with Local Planning Authorities without the framework of regional numbers and plans. I will make a formal announcement on this matter soon. However, I expect Local Planning Authorities and the Planning Inspectorate to have regard to this letter as a material consideration in any decision they are currently taking.”
“Parliamentary Statement Revoking Regional Strategies Today I am making the first step to deliver our commitment in the coalition agreement to “rapidly abolish Regional Spatial Strategies and return decision-making powers on housing and planning to local councils”, by revoking Regional Strategies. … The revocation of Regional Strategies will make local spatial plans, drawn up in conformity with national policy, the basis for local planning decisions. The new planning system will be clear, efficient and will put greater power in the hands of local people, rather than regional bodies. … The abolition of Regional Strategies will require legislation in the “Localism Bill” which we are introducing this session. However, given the clear coalition commitment, it is important to avoid a period of uncertainty over planning policy, until the legislation is enacted. So I am revoking Regional Strategies today in order to give clarity to builders, developers and planners. Regional Strategies are being revoked unders79(6) of the Local Democracy Economic Development and Construction Act 2009 [“the 2009 Act”] and will thus no longer form part of the development plan for the purposes ofs38(6) of the Planning and Compulsory Purchase Act 2004 .Revoking, and then abolishing, Regional Strategies will mean that the planning system is simpler, more efficient and easier for people to understand. …”
“… The Claimant’s challenge is to the Secretary of State’s decision of6 July 2010 to revoke all Regional Strategies, including the South East Plan, rather than to the Secretary of State’s letter of27 May 2010 . As explained by Mr Village Q.C. for the Claimant, this is on the basis that if the Secretary of State has no power to revoke Regional Strategies in advance of securing legislation in Parliament to amend or repeal the provision for Regional Strategies in Part 5 of [the 2009 Act], then it is difficult to see how the Secretary of State’s letter could be given effect. No detailed argument was addressed to me about what might be the effect of the Secretary of State’s letter if the Claimant is successful in its challenge to the decision of6 July 2010 . At all events, it is clear that it is the Secretary of State’s decision of6 July 2010 which is now the operative decision which purports to deprive the South East Plan of significance for the planning decision to be taken on the Claimant’s applications and accordingly it is that decision which the Claimant seeks to challenge. …”
“The issue in the present case is whether the Secretary of State is entitled to use the discretionary power to revoke Regional Strategies contained in section 79(6) of the LDECDA 2009 to effect the practical abrogation of Regional Strategies as a complete tier of planning policy guidance by his decision of6 July 2010 . At the heart of that issue is a tension between section 70(1) of the 2009 Act, which states that “There is to be a regional strategy for each region …”, and section 79(6), which provides that the Secretary of State can revoke a Regional Strategy, the statute contemplates that, notwithstanding the terms of section 70(1), there may be occasions on which there is in fact no Regional Strategy in place for a particular region.”
“… [S]ince the Secretary of State has power under section 79(6) to revoke any Regional Strategy, he has power to revoke all Regional Strategies; since he has power to do that, it is said, he has power under section 79(6) to revoke the entire Regional Strategy tier of planning policy guidance if he considers (as he does) that it is not operating in the public interest; the system of Regional Strategy planning guidance may therefore be brought to an end by exercise by the Secretary of State of his powers under section 79(6) without having to wait for the promulgation by Parliament of new legislation to repeal Part 5 of the 2009 Act.”
“In my judgment, the Claimant’s submission is well-founded. My reasons for arriving at this conclusion are as follows: i) [The 2009 Act] maintains in place, with some modifications, the whole elaborate machinery set up by Parliament under the PCPA 2004 to create a new statutory tier of regional planning guidance in the form of Regional Spatial Strategies, now renamed as Regional Strategies. … [The] main and critical point is that there is no sufficient indication in section 79(6) of the 2009 Act that Parliament intended to reserve to the Secretary of State a power to set that whole elaborate structure at nought if, in his opinion, it was expedient or necessary to do so because it was not operating in the public interest. If Parliament had intended to create such a power for the Secretary of State – something akin to a Henry VIII clause, since the practical effect of it would be to denude primary legislation of any practical effect, without having to seek the approval of Parliament for such a course by passing further legislation – it would in my opinion undoubtedly have used much clearer language to achieve that effect and would have given the provision far greater prominence than section 79(6) has, tucked away as a final sub-section in a provision otherwise dealing with revision of Regional Strategies. … ii) Section 70(1) of the 2009 Act is in clear declaratory terms, stating that “There is to be a regional strategy for each region …”
“62. All the existing Regional Strategies were made the subject of environmental assessment before they were adopted, no doubt because of the practical impact that they would inevitably have by setting part of the framework for decision-making in planning cases. I can see no sound basis for the contention put forward by the Secretary of State that revocation of Regional Strategies does not equally require at least consideration under Regulation 9 whether similar detailed environmental assessment is required. The revocation of a Regional Strategy may have as profound practical implications for planning decisions as its adoption in the first place. Thus the purposive approach to the interpretation of the 2004 Regulations referred to above supports the same conclusion. 63. I would add that I also consider that there is force in the alternative analyses proposed by [Cala Homes], to the effect that a Regional Strategy is itself a relevant “plan” for the purposes of the 2004 Regulations, and that revocation of that “plan” either amounts to modification of such “plan” (applying a purposive interpretation of the Regulations, since it is difficult in the context of the object of the SEA Directive and Regulations to see why significant but lesser changes to a Regional Strategy should require there to be an environmental assessment, but that if the change takes the extreme form of revocation of the Regional Strategy that requirement should suddenly fall away) or to the adoption of a new relevant “plan”, namely the local development plan documents standing alone, to be read without reference to the Regional Strategy.” ”
“On6 July 2010 , the Coalition Government revoked all regional strategies under section 79(6) of [the 2009 Act]. This action was challenged in the High Court by developer Cala Homes, and the decision today concluded that Section 79 powers could not be used to revoke all Regional Strategies in their entirety. While respecting the court’s decision this ruling changes very little. Later this month, the Coalition Government will be introducing the Localism Bill to Parliament, which will sweep away the last Government’s controversial regional strategies. It is clear that top-down targets do not build homes – they have just led to the lowest peacetime house building rates since 1924, and have fuelled resentment in the planning process that has slowed everything down. On27 May 2010 , the Government wrote to local planning authorities and to the Planning Inspectorate informing them of the Coalition Government’s intention to rapidly abolish regional strategies and setting out its expectation that the letter should be taken into account as a material planning consideration in any decisions they were currently taking. That advice still stands. Today the Government’s Chief Planner has written to all local planning authorities and the Planning Inspectorate confirming that they should have regard to this material consideration in any decisions they are currently taking. Moreover, to illustrate the clear policy direction of the Coalition Government, the proposed clause of the Localism Bill that will enact our commitment to abolish regional strategies is being placed in the Library. The Bill is expected to begin its passage through Parliament before Christmas. We are determined to return decision-making powers in housing and planning to local authorities and the communities they serve, alongside powerful incentives so that people see the benefits of building. We will very shortly provide more details about one of the most important such incentives – the New Homes Bonus Scheme, which will come into effect from April. This means that new homes delivered now will be rewarded under the scheme. The Coalition Government remains firmly resolved to scrap the last Government’s imposition of confusing and bureaucratic red tape. This was a clear commitment made in the Coalition Agreement and in the general election manifestoes of both Coalition parties. We intend to deliver on it.”
“ABOLITION OF REGIONAL STRATEGIES I am writing to you today following the judgment in the case brought by Cala Homes in the High Court, which considered that the powers set out in section 79[6] of [the 2009 Act] could not be used to revoke all Regional Strategies in their entirety. The effect of this decision is to re-establish Regional Strategies as part of the development plan. However, the Secretary of State wrote to Local Planning Authorities and to the Planning Inspectorate on27 May 2010 informing them of the Government’s intention to abolish Regional Strategies in the Localism Bill and that he expected them to have regard to this as a material consideration in planning decisions. I am attaching the proposed clause of the Localism Bill that will enact that commitment. The Bill is expected to begin its passage through Parliament before Christmas, and will return decision-making powers in housing and planning to local authorities. Local Planning Authorities and the Planning Inspectorate should still have regard to the letter of the27 May 2010 in any decisions they are currently taking. …”
“1. Abolition of regional strategies (1) Part 5 of [the 2009 Act] (regional strategy) is repealed. (2) The regional strategies under Part 5 of [the 2009 Act] are revoked.”
“10. The Secretary of State’s letter of27 May 2010 generated significant correspondence highlighting uncertainty about how to operate where Regional Strategies had not yet been revoked but it was clear that they would be abolished by legislation in the near future. Frequently expressed were: • inconsistency in decision making by local planning authorities on individual planning applications resulting in planning by appeal; • PINs having to deal with a greater volume of appeals as a result; • The Secretary of State having to deal with more recovered and called in appeal cases; • increase in legal challenges; and • a slow down in the preparation of local plans as local planning authorities wait for the abolition of Regional Strategies before proceeding with their Core Strategies and other Development [Plans]. 11. It is likely that the reinstatement of Regional Strategies before they are abolished by the Localism Bill would raise similar questions and concerns. In particular it would lead to slowing down plan making with knock on effects on delivery of sustainable development. It would also create significant confusion and delay in the development management process. This confusion and delay will harm the credibility of the planning system and is exactly what the Secretary of State was seeking to avoid by making a clean break with Regional Strategies by revoking them on6 July 2010 .”
“ … 4. On10 November 2010 the Court gave judgment … quashing the [Secretary of State’s] decision on6 July 2010 to revoke Regional Strategies. 5. The [Secretary of State] took the view that he should write immediately to local planning authorities in England in relation to the effect of the Court’s decision and its impact on taking forward the Coalition Government’s stated policy of abolishing Regional Strategies and returning decision-making powers on housing and planning to local councils. Accordingly, following the handing down of the Court’s judgment, on10 November 2010 the [Secretary of State’s] Chief Planner wrote the letter to Chief Planning Officers of local planning authorities in England … 6. Since10 November 2010 the [Secretary of State] has received a low level of correspondence seeking clarification of the current position as regards the operation of Regional Strategies. … 7. … Following the handing down of the Court’s judgment on10 November 2010 , the [Secretary of State] thought it right to notify Parliament of the Court’s decision and of its impact on taking forward the Coalition Government’s stated policy… . Accordingly, on10 November 2010 the [Secretary of State] made a written statement in Parliament …. 8. In his written statement, the [Secretary of State] said that the Court’s ruling in the judgment handed down on10 November 2010 ‘changes very little’. As is clear from the [Secretary of State’s] statement, he was seeking to reassure the House that the Government remained committed to its stated policy of abolishing Regional Strategies and seeking legislative powers for that purpose. He informed the House that, in order to illustrate the Government’s clear policy direction, he was placing the relevant, proposed clause of the forthcoming Localism Bill in the House Library. I exhibit as ‘DM4’ a copy of the proposed clause which was placed in the House Library on10 November 2010 . …”
“… That assertion is incorrect. Both the Chief Planner’s letter and the [Secretary of State’s] statement respect and acknowledge the effect of the Court’s judgment. The [Secretary of State] has not sought to appeal from the decision of Sales J. Rather, the [Secretary of State] in his statement and the Chief Planner in his letter informed both Parliament, local planning authorities and the Planning Inspectorate that the [Secretary of State’s] guidance given in his letter of27 May 2010 still stands; and that the Government’s intended revocation of Regional Strategies through legislative powers to be sought in the forthcoming Localism Bill was material to planning decisions which local planning authorities and planning inspector[s] are currently taking. The Defendant is advised and believes that guidance to be lawful and respectfully invites the Court so to conclude in its determination of the present Claim.” …”
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
“Section 18A of the Act of 1972 … creates a presumption in favour of the development plan. That section has to be read together with section 26(1) of the Act of 1972 [the provision in the Scottish legislation equivalent to section 70(2) of the 1990 Act]. Under the previous law, prior to the introduction of section 18A into that Act, the presumption was in favour of development. … It is not in doubt that the purpose of the amendment introduced by section 18A was to enhance the status, in this exercise of judgment, of the development plan. It requires to be emphasised, however, that the matter is nevertheless still one of judgment, and that this judgment is to be exercised by the decision-taker. The development plan does not, even with the benefit of section 18A, have absolute authority. The planning authority is not obliged, to adopt Lord Guest’s words in Simpson v. Edinburgh Corporation 1960 S.C. 313, 318, “slavishly to adhere to” it. It is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what it has laid down. But some of its provisions may become outdated as national policies change, or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development, or which may provide more up-to-date guidance as to the tests which must be satisfied, will continue, as before, to be a matter for the planning authority. The presumption which section 18A lays down is a statutory requirement. It has the force of law behind it. But it is, in essence, a presumption of fact, and it is with regard to the facts that the judgment has to be exercised. The primary responsibility lies with the decision-taker. The function of the court is, as before, a limited one. All the court can do is to review the decision, as the only grounds on which it may be challenged in terms of the statute are those which section 233(1) of the Act lays down. I do not think that it is helpful in this context, therefore, to regard the presumption in favour of the development plan as a governing or paramount one. The only questions for the court are whether the decision-taker had regard to the presumption, whether the other considerations which he regarded as material were relevant considerations to which he was entitled to have regard and whether, looked at as a whole, his decision was irrational. It would be a mistake to think that the effect of section 18A was to increase the power of the court to intervene in decisions about planning control.”
“ Section 18A was introduced into the Act of 1972 bysection 58 of the Planning and Compensation Act 1991 . A corresponding provision was introduced into the English legislation bysection 26 of the Act of 1991, in the form of a new section 54A to theTown and Country Planning Act 1990 . The provisions of section 18A, and of the equivalent section 54A of the English Act, were: “ Status of development plans. Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.”
“This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”
“… If the planning authority ignores a material consideration because it has forgotten about it, or because it wrongly thinks that the law or departmental policy (as in Safeway Properties Ltd v Secretary of State for the Environment [1991] JPL 966) precludes it from taking it into account, then it has failed to have regard to a material consideration. But if the decision to give that consideration no weight is based on rational planning grounds, then the planning authority is entitled to ignore it.”
“(a) “plans and programmes” shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them; - which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and - which are required by legislative, regulatory or administrative provisions;” - which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and - which are required by legislative, regulatory or administrative provisions;”
“plans and programmes, … , as well as any modification to them, which – (a) are subject to preparation or adoption by an authority at national, regional or local level; or (b) are prepared by an authority for adoption, through a legislative procedure by Parliament or Government; and, in either case, (c) are required by legislative, regulatory or administrative provisions ...” (a) are subject to preparation or adoption by an authority at national, regional or local level; or (b) are prepared by an authority for adoption, through a legislative procedure by Parliament or Government; and, in either case, (c) are required by legislative, regulatory or administrative provisions ...”
“(4) Subject to paragraph (5) and regulation 7, where – (a) the first formal preparatory act of a plan or programme, other than a plan or programme of the description set out in paragraph (2) or (3), is on or after21st July 2004 ; (b) the plan or programme sets the framework for future development consent of projects; and (c) the plan or programme is the subject of a determination under regulation 9(1) or a direction under regulation 10(3) that it is likely to have significant environmental effects, the responsible authority shall carry out, or secure the carrying out of, an environmental assessment, in accordance with Part 3 of these Regulations, during the preparation of that plan or programme and before its adoption or submission to the legislative procedure. … (6) An environmental assessment need not be carried out – (a) for a plan or programme of the description set out in paragraph (2) or which determines the use of a small area at local level; or (b) for a minor modification to a plan or programme of the description set out in either of those paragraphs, Unless it has been determined under regulation 9(1) that the plan, programme or modification, as the case may be, is likely to have significant effects or is the subject of a direction under regulation 10(3).” (a) the first formal preparatory act of a plan or programme, other than a plan or programme of the description set out in paragraph (2) or (3), is on or after21st July 2004 ; (b) the plan or programme sets the framework for future development consent of projects; and (c) the plan or programme is the subject of a determination under regulation 9(1) or a direction under regulation 10(3) that it is likely to have significant environmental effects, the responsible authority shall carry out, or secure the carrying out of, an environmental assessment, in accordance with Part 3 of these Regulations, during the preparation of that plan or programme and before its adoption or submission to the legislative procedure. … (6) An environmental assessment need not be carried out – (a) for a plan or programme of the description set out in paragraph (2) or which determines the use of a small area at local level; or (b) for a minor modification to a plan or programme of the description set out in either of those paragraphs, Unless it has been determined under regulation 9(1) that the plan, programme or modification, as the case may be, is likely to have significant effects or is the subject of a direction under regulation 10(3).”
“c) The systemic context of the terms ‘plan’ and ‘programme’ within the SEA Directive … 36. The rules laid down in the SEA Directive confirm [the foregoing] interpretation of the terms ‘plan’ and ‘programme.’ 37. According to Article 2(a) of the SEA Directive, ‘plans and programmes’ for the purposes of the directive means plans and programmes, including those co-financed by the European Community, as well as any modifications to them, which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and which are required by legislative, regulatory or administrative provisions. 38. In that provision the pair of terms is not defined, but merely qualified: for the purposes of the directive ‘plans and programmes’ means plans or programmes which satisfy certain – additional – requirements. 39. However, the first of those requirements at least makes it clear that the legislative procedure by which the Region of Wallonia’s order was adopted does not preclude the application of the SEA Directive, since the first indent explicitly provides for the possibility of plans and programmes being prepared through a legislative procedure. This, moreover, supports the view that measures which, in substance, are of a legislative nature may also be plans or programmes. 40. In this context Inter-Environnement Wallonie rightly emphasises a difference from the EIA Directive: Article 1(5) of the EIA Directive explicitly excludes legislative measures form its scope. … The SEA Directive does not provide for that exception, although it is far more likely to affect legislative proposals than the EIA Directive. 41. The second requirement allays Belgium’s fear that every possible law should be the subject of an environmental assessment. A comprehensive obligation to assess the environmental impact of laws is precluded if only because the second indent of Article 2(a) of the SEA Directive extends only to plans and programmes which are required by legislative, regulatory or administrative provisions. Freely taken political decisions on legislative proposals are not therefore subject to the obligation to carry out assessments.”
“The Court finds first of all that action programmes are (i) subject to preparation by an authority at national, regional or local level or prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and (ii) required by legislative, regulatory or administrative provisions.”
“… A distinction must be drawn between (1) formal policy statements which are made expressly, or are by necessary implication, material to the resolution of the relevant questions, (2) other informal or draft policies which may contain relevant guidance, but have no special statutory or quasi-statutory status. Even though the planning Acts impose no specific requirement on local planning authorities to take account of Government policy guidance, it is well established that it should be treated, so far as relevant, as a material consideration (see Gransden v. Secretary of State, ex parte Richmond L.B.C. [1996] 1 W.L.R. 1460, 1472). Given the Secretary of State’s general regulatory and appellate jurisdiction under the Acts, his policies, and those of the Government of which he forms part, they can no doubt be regarded as “obviously material” within the Findlay tests. The same can be said of his policies in respect of the Environment Protection legislation …” 51. In Re Findlay [1985] A.C. 318, to which Carnwath J. referred there, Lord Scarman approved (at p. 333) as a “correct statement of principle” the following observations made by Cooke J. in Creed N.Z. Inc. v. Governor-General [1981] 1 N.Z.L.R. 172 (at p. 183): “… What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken unto account, or even that it is one which many people, including the Court itself, would have taken into account if they had to make a decision.” and “… There will be some matters so obviously material to a decision on a particular project that anything short of direct consideration by the ministers … would not be in accordance with the intention of the Act.”
“… In my view, for the reasons which follow, I have no doubt that the respondents’ approach is correct in principle, and I would summarise it in the following way. Financial constraints on the economic viability of a desirable planning development are unavoidable facts of life in an imperfect world. It would be unreal and contrary to common sense to insist that they must be excluded from the range of considerations which may properly be regarded as material in determining planning applications. Where they are shown to exist they may call for compromises or even sacrifices in what would otherwise be regarded as the optimum from the point of view of the public interest. Virtually all planning decisions involve some kind of balancing exercise. …. [Provided] that the ultimate determination is based on planning grounds and not on some ulterior motive, and that it is not irrational, there would be no basis for holding it to be invalid in law solely on the ground that it has taken account of, and adjusted itself to, the financial realities of the overall situation.”
“… that the Inspector was not obliged to have regard to section 54A before it came into force … . Her correct course, I consider, was to have regard to current statutory provisions and to the guidance to be derived from any circulars published prior to her decision, in particular [Circular] 14/91. One piece of guidance that circular gave was that current circulars already reflected the spirit of the new provision; another was that section 54A was to be brought into effect about two months after July 25 and that “In future it will mean that determination is to be in accordance with the plan unless etc …”
“… Evidence that informed the preparation of the revoked Regional Strategies may also be a material consideration, depending on the facts of the case.”
“… The executive cannot exercise the prerogative power in a way which would derogate from the due fulfilment of a statutory duty. To that extent, the exercise of the prerogative power is curtailed so long as the statutory duty continues to exist. Any exercise of the prerogative power is curtailed so long as the statutory duty continues to exist. Any exercise of the prerogative power in an inconsistent manner or for an inconsistent purpose, would be an abuse of power and subject to the remedies afforded by judicial review.”; and, secondly, the distillation of the rule in Padfield in the judgment of Laws L.J. in ex parte Halls (on p.779): “… The rule is not that the exercise of the power is only to be condemned if it is incapable of promoting the Act’s policy, rather the question always is: what was the decision-maker’s purpose in the instant case and was it calculated to promote the policy of the Act?”
“It is clear from Padfield that identification of the policy and objects of an Act of Parliament is an exercise in the interpretation of that Act. The question whether the exercise of some discretionary power conferred by a statute is impliedly limited in some respect by reference to the policy and objects of that statute will depend upon the construction of the relevant power in the context of the statute as a whole. The answer in any case will depend upon the specific terms and the particular and detailed scheme of the statute in question.”
“1.2 The Proposal … [is] restricted to the plan and programme level of decision-making. It does not apply to the more general policy level of decision making at the top of the decision-making hierarchy. Whilst it is important that general policy decisions take account of the environment, the procedural requirements of the present Proposal may not be a suitable way of achieving this goal. General policy decisions develop in a very flexible way and a different approach may be required to integrate environmental considerations into this process … 1.3 The Proposal is restricted to town and country planning plans and programmes and to plans and programmes which are adopted as part of the town and country planning decision-making process for the purpose of setting the framework for subsequent development consent decisions which will allow developers to proceed with projects. Such town and country planning plans and programmes define the use of land and contain provisions on nature, size, location or operating conditions of installations or activities in different sectors relevant to town and country planning …”
“3.4. In considering the concept of ‘project’ under the EIA Directive incase C-72/95 Kraaijeveld, the ECJ noted that the Directive had a wide scope and a broad purpose. In view of the language used in Directive 2001/EC/EC, the related purposes of that Directive and the EIA Directive, and the conceptual similarities between them, Member States are advised to adopt a similar approach in considering whether an act is to be considered a plan or a programme within the scope of Directive 2001/42/EC. The extent to which an act is likely to have significant environmental effects may be used as one yardstick. It may be that the terms should be taken to cover any formal statement which goes beyond aspiration and sets out an intended course of future action. 3.5. The kind of document which in some Member States is thought of as a plan is one which could include, for example, land use plans setting out how land is to be developed, or which sets out how it is proposed to carry out or implement a scheme or a policy. This laying down rules or guidance as to the kind of development which might be appropriate or permissible in particular areas, or giving criteria which should be taken into account in designing new development … 3.6. In some Member States, programme is usually thought of as the plan covering a set of projects in a given area, for example a scheme for regeneration of an urban area, comprising a number of separate construction projects, might be classed as programme. In this sense, ‘programme’ would be quite detailed and concrete. … But these distinctions are not clear cut and need to be considered case by case. Other Member States use the word ‘programme’ to mean ‘the way it is proposed to carry out a policy’ – the sense in which ‘plan’ was used in the previous paragraph. In town and country planning in Sweden, for instance, the programme is thought of as preceding a plan and as being an inquiry into the need for, and appropriateness and feasibility of, a plan. ... 3.15 Another important qualification for a plan or programme to be subject to the Directive is that it must be required by legislative, regulatory or administrative provisions. If these conditions are not met, the Directive does not apply. Such voluntary plans and programmes usually arise because legislation is expressed in permissive terms, or because an authority decides to prepare a plan on an activity which is unregulated. On the other hand, if an authority is not required to draw up a plan unless certain preconditions are met, it would probably be subject to the Directive once those preconditions had been met …. It is of course open to Member States, in respect of their own national systems, to go further than the minimum requirements of the Directive should they so desire.”
"... being unusual, if not indeed without any near precedent in the history of land use planning in this country. The repercussions for planning decision making, at least in the short term future, may well be considerable."
"Experience has shown, however, that ground B constitutes a valuable reserved power to permit certain appeals to proceed to the Court of Appeal even though it is not possible to say that there is a real prospect of success."
"In one case, for example, a major developer, which was well able to bear both sites costs, was permitted to pursue an appeal with slender prospects of success because the appeal was likely to result in the elucidation of an important point of planning law."