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The Court of Appeal on amendments to permitted development rights

Philippa Jackson and Celina Colquhoun analyse the Court of Appeal’s judgment on the challenge to the latest amendments to permitted rights.

In The Queen (on the application of Rights: Community: Action) v The Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 1954 an environmental campaigning group named ‘Rights: Community: Action’ applied for judicial review of the introduction of three statutory instruments by the Secretary of State for Housing, Communities and Local Government. The statutory instruments are the Town and Country Planning (General Permitted Development) (England) (Amendment) (No.2) Order 2020 (“ S.I. 2020/755 “), the Town and Country Planning (General Permitted Development) (England) (Amendment) (No.3) Order 2020 (“ S.I. 2020/756 “) and the Town and Country Planning (Use Classes) (Amendment) (England)a Regulations 2020 (“ S.I. 2020/757 “).

S.I. 2020/755 and S.I. 2020/756 came into force on 31 August 2020. They amended the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”) by permitting development involving one or two additional stories above a dwelling-house/ a detached or terraced building used for commercial purposes, and permitting the demolition of blocks of flats and certain commercial buildings to rebuild for residential use respectively.

S.I. 2020/757 came into force on 1 September 2020, amending the Town and Country Planning (Use Classes) Order 1987 by introducing a new commercial, business and service use class.

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The Appellants challenged the lawfulness of these amendments without first undertaking a strategic environmental assessment under Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (“the SEA Directive”) and the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”). The SEA Directive remains retained EU law, being transposed into domestic law by the SEA Regulations.

Art.3(2) of the SEA Directive requires an environmental assessment to be carried out for all plans and programmes which were prepared for town and country planning or land use and which set the framework for future development consent of certain projects listed in the SEA Directive. Art.3(4), requires Member States to determine whether plans and programmes, other than those in Art.3(2), which set the framework for future development consent of projects, are likely to have significant environmental effects.

The case was an appeal from the High Court of Justice Queen’s Bench Division (Divisional Court) ([2020] EWHC 3073 (Admin)), before Lord Justice Lewis and Mr Justice Holgate. Only one ground of challenge remained on appeal, namely whether:

“[the] Divisional Court erred in concluding that the three statutory instruments were not required to be subject to Strategic Environmental Assessment because they did not set the framework for future development consent of projects, or modify an existing framework for future development consent of projects”, and therefore did not fall within article 3(4) of the SEA Directive.”

Judgment

The Court of Appeal dismissed the appeal holding that the Secretary of State had acted lawfully in making the three statutory instruments as they did not set the ‘framework for future development consent’ and therefore fell outside the requirements of Art.3(4) of the SEA Directive. Consequently, no SEA was required.

When considering whether a plan or programme would come within the SEA Directive, it was common ground that there are four requirements which must be satisfied:

  1. It must be subject to preparation or adoption by a public authority through a legislative process.
  2. It must be required by legislative, regulatory, or administrative provisions.
  3. It must set the “framework for future development consent of projects”.
  4. It must be likely to have significant environmental effects.

It was accepted that requirements 1, 2, and 4 were met, and so the case turned on the third requirement.

The Claimants argued for a broader construction of the concept of a “framework” for future development consents, submitting that it must embrace both the rules governing whether development consent ought to be granted, and the rules defining or affecting the matters for which such consent is required. Otherwise, the SEA regime could be frustrated by taking certain types of proposals outside the range of development for which a formal grant of planning permission by a local planning authority is required, which was precisely the effect of the statutory instruments under challenge. Further, that the Divisional Court had misunderstood the concept of “development consent” by holding it to be synonymous with a grant of planning permission, and that it should not be limited in this way.

They also argued, in the alternative, that even if the statutory instruments were not themselves plans or programmes within the scope of the SEA Directive, they still affected the operation of policies for existing plans, which are within that scope. The effect of the instruments is to lift a large portion of development control from local planning authorities, meaning that the “framework” that existed before has gone. Finally, the Claimants argued that the SEA Directive and Regulations had to be interpreted broadly because of their overarching purpose (to provide a high level of protection for the environment). These reforms would have significant environmental impacts which had not been the subject of environmental assessment. This was incompatible with the overarching purpose of the legislation.

Dismissing these arguments, the Court returned to the language of the legislation itself, emphasising that even a broad and purposive approach to interpreting EU legislation for the assessment of environmental affects must ‘respect the words that are used’ and should assume Art.3(4) was drafted with care. From that starting point, the Court held that there was no indication in relevant case law that statutory instruments of this kind could be regarded as setting a ‘framework for future development consent of projects,’ and that this was more typically understood as referring to a new development plan or the amendment of an extant plan, which has itself been the subject of environmental assessment.

The Court held that a narrower construction than that advanced by the Claimants would not undermine the SEA regime merely by recognising that the regime was not unbounded. The limits of the regime were drawn by the provisions of the SEA Directive and SEA Regime themselves, and the statutory instruments sat beyond them. The fact that measures of a different kind will  fall within them, perhaps with less significant implications for the environment, does not mean that the legislation must be read more liberally than its drafting allows, even if the consequences for the planning system are extensive.

Comment

This is a useful reminder of the Court’s approach to statutory interpretation, where it is argued that legislation must be interpreted so as to give effect to broad, overarching objectives such as the protection of the environment. As the Court makes clear, its task is only ‘to consider the legal questions before us’. It focussed squarely on the language of the SEA Directive itself and the drafting of Art.3(4) as the starting point. Crucially, any purposive interpretation must still respect the language used, even if a narrower interpretation may have consequences for the environment. As the Court emphasised, it was no part of its role ‘to visit any of the political or economic judgments’ that may have ‘motivated’ the introduction of the statutory instruments.

In addition, it may be noted that this case was referred to in a recent judgment of Mr Justice Holgate in Cab Housing Limited v The Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 208 which considered the proper interpretation of Sch.2 Pt 1 Class AA of the GPDO which deals with the new permitted rights to add up to two storeys or one storey above a single-storey building subject to prior approval. The case looked at the extent of matters covered by the need to have regard external appearance of the proposed developments and the impact upon other premises.

The conclusions in short were that the provisions should not be interpreted on a narrow basis; that ‘adjoining’ properties meant more than those that are contiguous; that the relevant impacts upon amenity to which decision makers may have regard under the prior approval process were not confined to ‘overlooking, privacy or loss of light’ and that the external appearance of the subject property was not limited to the public facing aspects.

This latter decision to some extent may provide comfort to local authorities which have expressed themselves uncomfortable about the loss of control over decision making in respect of quite a significant range of development as consequence of the amended GPDO.

Celina Colquhoun and Philippa Jackson are barristers at 39 Essex Chambers.

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