Councils that delay work on development plans in the wake of the latest ruling in the CALA Homes legal saga may be forced to accept new housing against their wishes, according to planning experts.
Last week, the Court of Appeal ruled that council development plans would be unlawful if they were based on the Government's stated intention to abolish regional spatial strategies (RSSs).
But Andrew Whitaker, planning director at industry body the Home Builders Federation, said councils would be unwise to wait for the RSSs to be abolished before submitting revised plans.
He said: "Councils that delay could be caught between a rock and a hard place because the emerging national planning policy framework says there will be a presumption in favour of development if a local authority does not have an up-to-date plan in place."
The Government has said that it wants to have the framework in place by the end of this year. This is around the time that the Localism Bill, which formally abolishes the RSSs, is due to be passed.
In the court case, CALA Homes argued that it is unlawful for planning authorities to take into account the Government's stated intention to revoke RSSs when making decisions on planning applications. Lord Justice Sullivan rejected the claim. He said there may be circumstances in which the intention to abolish the RSSs would be material to a development control decision.
But he ruled that plan-makers should not be influenced by the planned revocation. He said: "It would be unlawful for a local planning authority preparing, or a planning inspector examining, development plan documents to have regard to the proposal to abolish regional strategies."
Whitaker said: "I don't think there will be now be any justification for not sticking to the numbers outlined for each authority in the RSS."
Research by planning consultancy Tetlow King (see box) has identified plans for 221,000 homes set out in RSSs to be scrapped through development plan documents across England.
Planning's analysis of the figures shows that no councils have adopted plans that include housing figures revised in the light of the Government's intention to axe RSSs.
But 13 councils have submitted core strategies to the Planning Inspectorate with housing targets revised since the intention to abolish RSSs was announced. Four of these have been through a full public examination and are awaiting for inspectors to decide on soundness. Another four have public examinations due to begin before the end of July, with the rest having no set date.
Bristol City Council had been due to adopt its core strategy later this month after the Government concluded that it is sound.
Tetlow King senior planner Jamie Sullivan said there is uncertainty over whether councils in the South West and West Midlands would be affected by the ruling, because these regions have yet to formally adopt their RSSs.
David Henry, director of planning at consultancy Savills, said that councils that have revised plans but not submitted them to the Planning Inspectorate would need to reconsult the public before restoring RSS numbers to development plans.
Janice Morphet, visiting professor at University College London's Bartlett School of Planning, said that councils waiting for the Localism Bill to become law in order to legally adopt lower housing numbers face a further barrier.
She said: "Councils will still have a requirement to take into account their strategic housing market assessments, which provide evidence on housing need. Most of these have numbers that are actually higher than the RSS allocations." This could put councils that now have to reconsult on higher figures in a "difficult" political position, Morphet said.
"In the past, it has been convenient for local politicians to blame centralised policies for increased housing numbers, but they will not be able to hide behind that excuse any more," she said.
Meanwhile, Lord Justice Sullivan also accepted that the Government's intention may only be worthy of being given weight in "very few" of the cases in which the proposed abolition of RSSs will be relevant.
Clyde & Co head of planning Ian Ginbey, the solicitor who represented CALA Homes, said: "Decisions made by local authorities that cited the intention to revoke may now be challenged through the courts."