Council leaders have called on the government to reconsider proposed eco town developments where there is strong local authority opposition.
The call was made after independent legal advice revealed the government's approach to building eco towns could be subject to judicial review. The Local Government Association asked John Steel QC to refresh opinion he gave in July 2008 on the eco town proposals, in which he concluded that 'the government is bypassing local democracy and planning processes to impose the schemes on the public'.
Further legal opinion was sought following updated information published by the government and the BARD campaign's failed attempt to seek a judicial review of the eco towns policy. John Steel QC concludes that the government's plans remain 'unfair, illogical and unreasonable,' susceptible to judicial review and with a strong likelihood of being declared unlawful.
Cllr Margaret Eaton, Chairman of the Local Government Association, said: "Eco towns can help the country tackle the twin challenges of the housing shortage and climate change. We need to build more homes that are environmentally sound, in areas with good transport links and alongside the public services which are needed to create places where people want to live.
"Councils such as East Hampshire and those in Norfolk have been at the forefront of plans to build eco towns, and want these schemes to deliver the housing, employment, transport and social facilities that are needed. The government should focus on backing the proposals that have local support with the necessary funding for infrastructure.
"It is not the concept of eco towns that other local authorities object to - it is the way the government is going about deciding where they will be built. Eco town schemes should be led locally and not imposed on people by central government. This expert legal advice supports our arguments that the approach ministers are adopting is wrong.
"Now leading lawyers have confirmed that the approach to eco towns is open to legal challenge, it is time for ministers to reconsider the developments where there is strong local authority opposition. Eco towns must be delivered without bypassing the normal planning processes which ensure new homes are built in the right places and to the right standards."
In his further legal opinion to the LGA, John Steel QC said: "In short, my advice has not changed in relation to the material parts of the Opinion dated 2nd July 2008. Indeed it has been strengthened by the draft PPS and other recent government statements and documents which put it beyond doubt that the clear intention of the government is to promote eco-towns giving them a clear and distinct procedural advantage over other forms of development which would meet housing need, such as town expansion, even if such housing would meet the criteria set for eco-towns to an equal or even greater degree.
"They would not have to be considered through the RSS and Development Plan making system, but could be by planning application, even if they would be wholly premature to the Development Plan and prejudice decisions made as to the location and amount of housing to be provided in the area. The government's policy is thinly disguised as a method seeking to avoid the statutory plan-making system due to its inherent requirements, including for public consultation and consequential delays.
The proposed policy contained in the draft PPS is unfair, illogical and unreasonable. It is susceptible to Judicial Review with a strong likelihood of being declared unlawful."
Giving opinion on the BARD campaign's failed attempt to seek a judicial review of the government's eco towns policy, John Steel QC said: "Except in passing and in the context of adequacy of consultation, the Court did not consider the alternative forms by which housing could be delivered and yet comply with the government's Eco Towns stated policy objectives. These matters were referred to in my earlier Opinion dated 26th January 2009.
"In particular, the Court did not consider such issues of principle or reach any conclusion on the apparent conflict between Eco-Towns claimed 'more challenging' exemplar sustainability policy (under EPPS) and expansion of existing towns by planned urban extensions of their urban areas (under PPS3), nor questions as to how Eco-Towns would count towards housing need and land supply. Other questions raised in my Opinion dated 27th January 2009 and my earlier Joint Opinion dated 2nd July 2008 remain too, subject to considerations.
"These significant and important matters of principal are yet to be determined by a Court. They remain material issues concerning Eco-Town policy as a result of publication of the draft PPS. In the event that no answer is given to such matters in the definitive PPS when published, there remains a strong case for judicial review."