The Government has announced the introduction of new permitted development (PD) rights in England to allow change of use from commercial, business and service uses (Class E) to a residential...
Legal challenge to Government’s permitted development rights and use classes order dismissed by High Court
On 17 November 2020, the High Court in the case of R (Rights: Community: Action) v Secretary of State for housing Communities and Local Government  EWHC 3037 dismissed the Judicial Review claim brought by campaign group Rights: Community: Action (RCA) against Government’s changes to use classes order and new permitted development rights that came into force in August of this year. As the claim has been dismissed, the changes will remain in force.
The RCA sought an order quashing three statutory instruments (SIs), two of which amended the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO 2015) and the other which radically changed the Town and Country Planning (Use Classes) Order 1987 (as amended) (the Use Classes Order).
The changes to the GPDO 2015 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 Use Classes Order introduced, amongst other changes, a new commercial, business and service Use Class E, with the effect that changes of use of buildings or land within that Class no longer required planning permission.
In the rolled-up hearing, RCA argued that the SIs were approved too quickly and without proper consideration of their potential damage. RCA also alleged that the changes had been pushed through without an adequate assessment of the environmental and equality consequences. The campaign group raised concerns that the changes would lead to the creation of “slum housing” – as the Government’s own report into the use of permitted development rights has suggested.
Lord Justice Lewis and Mr Justice Holgate emphasised that the role of the Court in Judicial Review is concerned with resolving questions of law, as opposed to making political, social, or economic choices, which Parliament has entrusted to ministers and other public bodies. They subsequently dismissed all three of RCA’s grounds of challenge.
Recognising the significant environmental impacts that the changes will have, the Judges agreed that this ground was arguable. It was held that that the Use Classes Order defines whether certain changes of use constitute development for the purposes of development control and, therefore, could not be described as setting a framework for future development consents of projects. It did not, therefore, satisfy one of four statutory criteria required for the carrying out of a Strategic Environmental Assessment. It was further held that the permitted development rights SIs grant planning permission for specific types of development and could not, as a result, be described as setting the framework for future development consents of projects.
It was held that, there was no failure to have due regard to the Public Sector Equality Duty (PSED) given that: (i) the consultation paper issued at the start of the process stated that the proposals had to be assessed by reference to the PSED; (ii) equality impact assessments were prepared for each of the proposed SIs; and (iii) the attention of the minister was specifically drawn to the PSED in approving the SIs. The High Court Judges held that “In those circumstances, there is no proper or realistic basis upon which it could be said that the defendant failed to have due regard to the specific matters set out in section 149 of the Equality Act 2010.”
Grounds 3a, 3b and 3c
Permission to apply on grounds 3a, 3b and 3c was refused on the basis that these grounds were not arguable, as there was enough evidence to show that the Government had considered both the consultation responses and the Government’s Building Better Report.
This ground was held to be arguable but it also failed because: (i) the Secretary of State had good reasons for departing from his promise to hold a second consultation, namely the need to stimulate regeneration as a result of the coronavirus pandemic; and (ii) the reasons for departing from the promise were proportionate in the circumstances.
The High Court dismissed all three grounds of RCA’s challenge against the Government’s recent changes to the GPDO 2015 and the Use Classes Order. Only two of the grounds put forward were determined to be arguable, although these also failed.
At this stage, the outcome is that the SIs remain in place and the new permitted developments rights and use class changes may continue to be relied on. However, RCA has indicated that they will be seeking permission to appeal and, therefore, an element of uncertainty will remain until we know for sure whether permission to appeal is allowed. In light of this, legal advice should be sought when seeking to rely on the new permitted development rights and the Use Classes Order.