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Stay Class-E

The Court of Appeal has ruled that the Secretary of State’s amendments to the General Permitted Development Order (GPDO) and the Use Classes Order (UCO) were not unlawful. Megan Forbes reports.

The controversial history to the GPDO and UCO amendments are explained in our previous blog from 16 February 2021. In summary, changes introduced on 20 July 2020 adjusted permitted development rights and removed certain changes of use from the scope of development control:

  1. The UCO was amended to introduce the new Use Class E, which is a broad new use class incorporating restaurants, cafes, shops, financial and professional services, offices, gyms, nurseries and health centres;
  2. The GPDO was amended to permit the construction of one or two additional storeys above a single dwelling-house, or above a detached or terraced building used for commercial purposes (subject to conditions and limitations); and
  3. The GPDO was amended to permit the demolition of blocks of flats and certain commercial buildings for replacement for residential use.   

The changes came into force on 31 August 2020 and 1 September 2020, and were immediately challenged by Rights: Community: Action (RCA), a campaigning group which seeks to influence the Government’s approach to climate change and environmental issues. The three grounds raised at the High Court were all unsuccessful; only one ground was progressed to the Court of Appeal.

Strategic Environmental Assessment

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The Court of Appeal considered whether it was lawful for the Secretary of State to make the three statutory instruments without undertaking a strategic environmental assessment under Directive 2001/42/EC, which requires an environmental assessment to be carried out for “certain plans and programmes which are likely to have significant effects on the environment.” UK regulations require an environmental assessment to be carried out where a plan or programme “sets the framework for future development consent of projects”.

In Rights: Community: Action, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 1954 (20 December 2021) the Court of Appeal agreed with the High Court’s judgment – neither of the following are properly setting a framework for the grant of future development consents:

  • changes to the UCO, which simply identify classes of use and dictate that certain changes of use do not require planning permission;
  • amendments to the GPDO, which expand the categories of permitted development but do not affect the established structure of the provisions by which the GPDO has itself granted planning permission.

Instead, they are (as previously held in the Court of Appeal), the measure by which planning permission for defined developments is granted. Rather than a ‘plan or programme’ type framework:

  • They provide for conditions requiring prior approval before the approved development can start
  • These provisions are not a ‘significant body of criteria or rules’ by which the application for prior approval of those matters is to be determined. They simply “delimit the scope of the powers which the planning authority may exercise at that stage”.
  • They do not apply to development that is required to be the subject of environmental impact assessment under the EIA Directive, which is expressly excluded by article 3(10) of the GPDO.

The fact that the two pieces of legislation make it unnecessary to apply to a local planning authority for planning permission, with the consequence that an authority which might otherwise have had to deal with that application, does not convert them into a framework for future development consents. 

Neither the limited scope of strategic environmental assessment legislation nor the fact that other planning measures with less significant implications for the environment do fall within it should justify reading the SEA requirements “more liberally than its drafting allows, even if the consequences for the planning system are extensive“. The Judgment offers the reminder that it is not for the Court to revisit any of the political, social or economic judgments that motivated the reforms, as their task was only to consider the legal question before them

It is worth bearing in mind that the Judgment reflects the fact that the prior approval provisions are simply an embedded part of the grant of permission and “do not themselves set criteria or rules for determining, or constraining, how those discretionary powers are to be exercised” within the delimited scope of powers. That also reflects how qualitative many of the prior approval criteria are.

The Future of Class E and the GPDO

The introduction of Class E at the same time as amendments to the GPDO was a significant change to the planning system. Whilst the GPDO amendments are fairly limited and still allow local planning authorities to exercise planning judgment, Use Class E is a wide-ranging use class which removes a lot of power from local planning authorities. With a global pandemic, a series of legal challenges, and just over a year of existence under its belt, Use Class E hasn’t had enough time yet to make the anticipated impact. But one thing is (almost) certain; Use Class E is here to stay, and time will tell whether it is the shake up the planning system needs.

Megan Forbes is a Planning Associate at Dentons. This article first appeared on the firm’s Planning Law Blog.

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