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Government hit by legal challenge over new permitted development rules

A campaign group has launched a judicial review challenge to the Government’s new rules on permitted development, which the Prime Minister’s Office at the time of their launch described as “the most radical reforms to our planning system since the Second World War".

On 21 August Rights : Community : Action (RCA) issued a pre-action letter to the Secretary of State for Housing, Communities and Local Government.

It challenges the lawfulness of the following statutory instruments:

(i) The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020/755 which brings the enlargement of a dwellinghouse by the construction of new storeys on top of the highest existing storey of the dwellinghouse within permitted development for the purposes of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”);

(ii) The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020/756 which inserts into Part 20 of Schedule 2 to the GPDO a new permitted development right. Class ZA allows for the demolition of a single detached building in existence on 12 March 2020 that was used for office, research and development or industrial processes, or a free-standing purpose-built block of flats, and its replacement by an individual detached block of flats or a single detached dwellinghouse within the footprint of the old building. The right provides permission for works for the construction of a new building that can be up to two storeys higher than the old building, with a maximum overall height of 18 metres.;

(iii) The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020/757 which amend the Town and Country Planning (Use Classes) Order 1987 (“the Use Classes Order”) by revoking a number of previous use classes and replacing them with much broader use classes. Class E subsumes previous use classes which were specified in the Schedule to the Use Classes Order as Class A1(Shops), Class A2 (Financial and professional services), Class A3 (Restaurants and cafes) and Class B1(Business). Class F.1 and F.2 subsume a number of the previoususe classes which were specified in the Schedule to the Use Classes Order as Class D1 (Non-residential institutions) and Class D2 (Assembly and leisure). The result of these changes is that what would previously be a change of use under the subsumed use classes is no longer considered development under the Planning Acts, and accordingly is no longer subject to planning control.

RCA claimed that the new rules had been brought in without proper consultation and without parliamentary debate.

Its grounds of challenge are that the government:

  1. unlawfully failed to carry out an environmental assessment of the SIs, pursuant to EU Directive 2001/42/EC ("the SEA Directive") and the Environmental Assessment of Plans and Programmes Regulations 2004 ("the SEA Regulation.
  2. breached the public sector equality duty, in that the Sis were introduced without an appropriate equality impact assessment, resulting in failure to comply with the PSED. “In particular, the Secretary of State did not adequately consider the impact of these reforms on the disabled.”
  3. failed to take account of consultation responses and other material consideration: “the Secretary of State failed to conscientiously consider the weight of the evidence against these radical reforms, including prior consultation responses and the advice of his own experts. Moreover, in closing his mind to these important considerations, he adopted an approach which was entirely inconsistent with his approach to comparable planning reform proposals”.

RCA has instructed law firm Leigh Day and Paul Brown QC and Alex Shattock of Landmark Chambers.

The pre-action letter called for a government response by no later than tomorrow (26 August).

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