Use Classes and PD Rights update

R on the Application of Rights: Community: Action v Secretary of State for Housing, Communities and Local Government. Case Number: CO/3024/2020.

The High Court today dismissed an application by a pressure group to judicially review the Government claiming that it had not followed due process when it introduced new permitted development rights along with revisions to the Use Classes Order.

The case which was heard last month, concerns three statutory instruments (SIs) brought in this July which make changes to permitted development rights and to the Use Classes Order – without (campaign group, Rights: Community: Action (RCA) argued) proper Parliamentary scrutiny. 

The three SIs permit development involving the construction of one or two additional storeys above a dwelling house or above a building used for commercial purposes (SI 2020 No 755), the demolition of a block of flats or specific commercial buildings to rebuild for residential use (SI 2020 No 756) and introduce a new commercial, business and service use class (SI 2020 No 757). The SIs permit these types of development by amending the Town and County Planning (General Permitted Development) (England) Order 2015 and the Town and County Planning (Use Classes) Order 1987. You can read more about the new use class changes here.

In summary the claim by RCA raised the following issues for the Court to determine whether:

1. each of the statutory instruments constituted a plan or programme which ought to have been the subject of an environmental assessment before being made, pursuant to the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No. 1633) (the 2004 Regulations)
2. in making SI 2020 No. 755 and SI 2020 No. 756 the defendant failed to comply with the public sector equality duty (PSED) contained in section 149 of the Equality Act 2010
3. the defendant acted unlawfully as he (a) did not comply with requirements for lawful consultation by failing “conscientiously to consider” the responses submitted on the planning reforms proposed, (b) failed to take into account advice from the Government’s own experts before making SI 2020 No. 755 and SI 2020 No. 756, (c) failed to act consistently by consulting on proposals relating to phone masts but not consulting on the statutory instruments at issue in the present case and (d) failed to undertake a further consultation exercise in relation to SI 2020 No 756. 

In respect of ground 1, it was acknowledged that this ground of challenge is arguable and they granted permission for the judicial review to proceed, however, the Court held that none of the SIs constitute a plan or programme setting the framework for future development consents and as such there was no requirement for Strategic Environmental Assessments to be carried out before the SIs were made. 

In respect of ground 2, as the consultation paper issued at the start of the process had stated that the proposals had to be assessed by reference to the PSED contained in the Equality Act 2010. Equality Impact Assessments were prepared for each of the proposed SIs which concluded that there would be limited potential impact. In addition, the written submission which was sent to the minister seeking the approval of the Sis, referred to the duty and summarised the conclusions of the equality impact assessments. The Court therefore held that there was “no realistic prospect” of the claimant establishing that the Government had failed in its duties under the Equality Act 2010 and permission for judicial review on this ground was denied.

In respect of ground 3(a), the appellant submitted that the defendant failed conscientiously to consider the responses to the consultation paper. In May 2019, the Government published a document summarising the views that had been expressed, the concerns that had been raised and the Government’s response to those matters. Before making the SIs, the defendant was provided with draft copies of the explanatory memorandum for each SI. In those circumstances the Court held that it was not arguable that the defendant failed conscientiously to consider the consultation responses.

Likewise, in respect of ground 3(b) the Government had not failed to take into account the report of the Building Better, Building Beautiful Commission and the Clifford report, both of which they had commissioned to be produced and been commented on by the defendant. 

In respect of ground 3(c) the appellant had argued that there was a legal obligation to conduct a further consultation in respect of technical matters before making the SIs. The Government argued in response that they consider whether to consult or not on an individual basis and the circumstances in issue. The Court held that the Government had not been irrational. Permission for judicial review on this ground failed.

Finally, ground 3(d), both parties agreed that the Government had made representations that there would be a further round of consultation in respect of the proposal to grant permitted development rights to demolish certain buildings and rebuild for residential purposes and that representation gave a legitimate expectation that a further consultation would take place. As such, permission was granted for this ground to be judicially reviewed. The Court had to consider whether the Government had acted unlawfully by proceeding to make the SI without conducting the further consultation. The Court held that the Government had established good reasons for not conducting the second consultation, namely that the coronavirus pandemic had led to severe economic difficulties which had affected the rate of construction and planning applications being submitted and therefore the making of the SI came about as the Government sought to intervene to stimulate the economy by taking urgent action. The Court also held that the reasons were proportionate given the gravity of the economic situation, the claim was dismissed.

As at today’s date therefore, the three SI’s continue to remain legally in force and can be utilised. Bear in mind however that RCA are seeking to appeal the judgment. Once again caution should be taken by those seeking to rely on the new permitted development rights and use classes changes as there is still the potential that any development carried out under the SIs could become unlawful.