Judicial Review challenge to the recent permitted development right and use class changes dismissed by the High Court

On 17 November 2020, Lord Justice Lewis and Mr Justice Holgate dismissed the Judicial Review challenge to the government’s recent changes to permitted development rights and use classes on all grounds.

Background

The radical changes to permitted development rights and the Use Classes Order 1987 were first laid before Parliament on 21 July 2020 in the form of three statutory instruments. These came into force on 31 August 2020 (permitted development rights) and 1 September 2020 (use classes) respectively.

In summary, the main impacts of the statutory instruments are as follows:

• To provide for new permitted development rights for upwards extensions for dwellings, and to allow the replacement of some buildings with dwellings (Class ZA); and
• (in England) amendments to the Use Classes Order 1987 to amalgamate uses into three new use classes, including the amalgamation of all “commercial” uses (e.g. retail, café, office, restaurants, clinics and gyms) into a single Use Class E. Changes of use within these new use classes will not constitute development at all.

Full details regarding the changes are set out in our previous articles:

• Changes to the Use Classes Order in England
• Government Introduces New Permitted Development Rights

The Challenge

The crowd funded legal challenge was issued on 26 August 2020 by the Rights: Community: Action group, a coalition of campaigners, lawyers, planners, facilitators, writers and scientists, united by a shared commitment to tackle the climate emergency. Rights: Community: Action requested that the new statutory instruments be quashed and sought urgent interim relief to suspect the changes pending the outcome of the claim.

On 2 September 2020, the High Court ordered that the interim relief application be withdrawn, and a rolled up hearing held, both to consider whether permission for Judicial Review was to be granted and, if so, to consider the challenge itself.

The hearing was held on 14/15 October 2020, and judgment handed down on 17 November 2020.

The Grounds

The Judicial Review challenge was brought on the following three grounds:

1. In respect of all three statutory instruments, the Secretary of State unlawfully failed to carry out an environmental assessment pursuant to the SEA Directive (EU Directive 2001/42/EC) and the Environmental Assessment of Plans and Programmes Regulations 2004.
2. In relation to the changes to permitted development rights only, the Secretary of State failed to have due regard to the Public Sector Equality Duty in section 149 Equalities Act 2020.
3. In relation to all three statutory instruments, the Secretary of State failed to consider the weight of the evidence against the radical reforms, including prior consultation responses and the advice of his own experts. Moreover, he acted with unlawful inconsistency and in breach of an express promise to re-consult. This ground was further divided as follows:
   
   1. A failure to meticulously consider consultation responses;
   2. A failure to take into account the government’s own expert advice;
   3. The adoption of an approach which was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed permitted development reforms; and
   4. A failure to meet a legitimate expectation of reconsultation on the proposal for a permitted development right allowing the demolition and rebuild of commercial properties and residential blocks (Class ZA).

The Decision

The High Court held that Grounds 2, 3a, 3b and 3c of the challenge were unarguable and that there was no realistic prospect of the claimant establishing them. Permission to apply for Judicial Review on these grounds was therefore refused.

In respect of Ground 1 – the failure to carry out an environmental assessment – the High Court held that this requirement does not apply to every domestic measure involving a plan or programme which would be likely to have significant environmental effects. Indeed, the scope of the Directive is expressly limited only to those documents which “[set] the framework for future development consent of projects”. As none of the relevant statutory instruments containing the changes constitute a plan or programme setting the framework for future development consents, there was no requirement for them to be subject to an environmental assessment. The challenge on this ground was therefore refused.

In respect of Ground 3d – the failure to reconsult before introducing new Class ZA – Lord Justice Lewis and Mr Justice Holgate held that there were good reasons for departing from the promise in the circumstances, given the impact that the coronavirus pandemic was having on the economy and in particular the rate of construction and planning applications. The government decided to take urgent action and to grant the permitted development rights in order to stimulate regeneration and to minimise the very severe effects of the pandemic. The decision to deviate from the proposal to reconsult was therefore a proportionate course of action in the circumstances (despite the permitted development rights in question continuing after the end of the pandemic). The claimant therefore failed to establish any unlawfulness on the part of the government and this ground also failed.

What Next?

Rights: Community: Action have confirmed their intention to appeal, and state that – in their view – the judgment is “on the wrong side of the public interest”.

In the meantime, the new legislation remains in force. Whilst we await the outcome of an appeal, there is a residual risk that the statutory instruments may be quashed, and that any action taken in accordance with the instruments will not be legal. This risk must be factored in when making decisions on whether to proceed with any changes of use or works which rely on the provisions of the new statutory instruments. If you require further advice, please speak to the Planning team.

Laura Parrish is a Senior Associate in the Planning team.

Planning Reforms: True revolution or plus ça change…?

Podcast host, Miri Stickland, is joined by Head of Planning, Partner Victoria Du Croz, and senior associate, Laura Parrish, to discuss the impact of recent changes to the Use Classes Order and Permitted Development Rights as well as further planning reforms which are still to come.