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Campaign group vows to appeal after Divisional Court dismisses legal challenge over extensions to permitted development rights

The Divisional Court has rejected a legal challenge over Government changes to permitted development rights that came into force in August this year.

The claimant, Rights:Community:Action, immediately said it intended appeal the ruling, saying it believed it was “on the wrong side of the public interest”.

It added: “Using the pandemic crisis to push through a giveaway of public rights to private interests is not only outrageous of itself – it’s turning back time to the Victorian slums.”

In R (Rights: Community: Action) v Secretary of State for Housing, Communities And Local Government [2020] EWHC 3073 the claimant sought an order quashing three statutory instruments that came into force on 31 August 2020. These Sis were:

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  • The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 ("SI 2020 No. 755"). This permitted development involving the construction of one or two additional storeys above a single dwelling house or above a detached or terraced building used for commercial purposes.
  • The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 ("SI 2020 No. 756"). This permitted the demolition of a block of flats or certain commercial buildings and rebuilding for residential use.
  • The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 ("SI 2020 No. 757").  This introduced 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.

Lord Justice Lewis and Mr Justice Holgate said Rights:Community:Action’s claim raised three issues for the Divisional Court to determine:

  1. Whether each of the statutory instruments constituted a plan or programme which ought to have been the subject of an environmental assessment before being made, pursuant to the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No. 1633) ("the 2004 Regulations");
  2. Whether in making SI 2020 No. 755 and SI 2020 No. 756 the defendant failed to comply with the public sector equality duty ("PSED") contained in section 149 of the Equality Act 2010;
  3. Whether the defendant acted unlawfully as he (a) did not comply with requirements for lawful consultation by failing "conscientiously to consider" the responses submitted on the planning reforms proposed, (b) failed to take into account advice from the Government's own experts before making SI 2020 No. 755 and SI 2020 No. 756, (c) failed to act consistently by consulting on proposals relating to phone masts but not consulting on the statutory instruments at issue in the present case and (d) failed to undertake a further consultation exercise in relation to SI 2020 No 756.

The two judges found that:

  1. None of the statutory instruments challenged constituted a plan or programme setting the framework for future development consents within the meaning of article 3(4) of Directive 2001/42/EC. For that reason, there was no requirement for them to be subject to an environmental assessment.
  2. The consultation paper issued at the start of the process stated that the proposals had to be assessed by reference to the PSED contained in the 2010 Act. “It specifically asked whether those responding had any evidence and any views about the implications of the proposed changes on people with protected characteristics and whether there was anything that could be done to mitigate any impact that they identified.” Equality impact assessments were prepared for each of the proposed SIs, and the attention of the minister was specifically drawn to the PSED. “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 2010 Act.”
  3. Permission to apply on grounds 3a, 3b and 3c should be refused on the basis that those grounds were not arguable. “We recognise that the claim that the departure from the promise of further consultation raises arguable issues which needed examination by the court. Accordingly, we grant permission to apply on ground 3d but, for the reasons given, ground 3d fails.”

Lord Justice Lewis and Mr Justice Holgate said: “The three SIs did not set a framework for future development consents within the meaning of Article 3(4) of the Directive. The departure from the promise to consult on the proposals on PD rights to demolish office buildings and erect buildings for residential use was lawful. The claim for judicial review is therefore dismissed.”

Leigh Day solicitor Tom Short, who represents Rights:Community:Action, said: “Our client is disappointed that the Court has turned down its application for judicial review. Although the court recognised the very significant environment impact that these changes will have, it has reached a conclusion on the technical requirements of the Strategic Environmental Assessment Directive that puts these changes outside the scope of the kind of plans or programmes that require assessments. Our client is firmly of the view that the Directive does apply to these SIs and will seek permission to appeal that ground.”

On its plans to appeal, Rights:Community:Action said: “The judgment deems these new permanent set of laws justifiable given the current economic emergency caused by Covid-19. The court papers state that the Government did not need an environmental assessment because it wasn’t required to do so by European law. They say that the Government had considered the impact on the most disadvantaged, despite Shelter disagreeing and supporting our case. Regarding the promise to consult, it was decided that there was no need for the Government to keep that promise, because of the economic difficulties arising out of the pandemic and the need to ‘stimulate regeneration’.

“With this judgment, public interest planning is over in England. But the stakes are too high for people’s health and well-being in relation to living in poor housing – this is a case that must be appealed.”

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