Government succeeds against judicial review of permitted development and use class changes

The High Court has handed down judgment in a case brought by Rights Community Action group (RCA) against the recent changes to the Use Classes Order and General Permitted Development Order – the claim has been dismissed and the changes remain in force. 

RCA had sought an order quashing 3 statutory instruments (SIs) amending the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) and the Town and Country Planning (Use Classes) Order 1987 (UCO) made by the Government on 20 July 2020, laid before Parliament on 21 July 2020 and which came into force on 31 August 2020, or, in the case of the amendments to the UCO, on 1 September 2020. The changes to the GPDO included new permitted development rights involving the construction of one or two additional residential storeys above certain types of premises and permitting the demolition of a block of flats or certain commercial buildings and rebuilding for residential use. The amendments to the UCO introduced, amongst other changes, a new commercial, business and service Use Class, with the effect that changes of use of buildings or land within that Class are removed from development control.

In the rolled up hearing, RCA had argued that the SIs were approved too quickly and without proper consideration of the potential damage they could do, alleged that the changes had been pushed through without an adequate assessment of the environmental and equality consequences and raised concerns that the changes will lead to the creation of “slum housing” – as the Government’s own report into the use of permitted development rights has suggested.

However, Lord Justice Lewis and Mr Justice Holgate ruled that all three SIs had been made lawfully, emphasising that the role of the court in judicial review is concerned with resolving questions of law and not for making political, social, or economic choices. Those decisions are entrusted to ministers and other public bodies.

Recognising the significant environmental impacts the changes will have, the judges agreed that this ground was arguable however, dismissed the ground on this basis that none of the SIs constitute a “plan or programme setting the framework for future development consents” within the meaning of article 3(4) of EU Directive 2001/42/EC. There was therefore no requirement for the SIs to be subject to an environmental assessment. 

In considering the public sector equality duty, the Court held that there was “no realistic prospect” of RCA establishing that there had been any failure to have due regard to the Equality Act 2010 and this ground also failed.

In response to one of RCA’s final grounds, the judges found that good and proportionate reasons were established for not having a second round of consultation (despite an earlier promise by the Government to do so).  The Court sided with the Government taking “urgent action” in respect of the changes to permitted development rights “in order to stimulate regeneration at a time of great economic difficulty arising out of the pandemic” which had generated “an economic emergency and upheaval on a scale not previously known in peacetime”.  Again, the judges agreed that this point was arguable but having established good and proportionate reasons, this ground was also dismissed.

The outcome at this stage is that the SIs remain in place and the new permitted developments rights and use class changes may continue to be relied on. However, there are reports that the claimant is considering taking the matter to the Court of Appeal so the battle is not yet won.

This article was written by Dan Murphy. For more information, please contact Dan on +44 (0)20 7438 2213 or at dan.murphy@crsblaw.com.