A legal challenge to changes made to the Use Classes Order and new permitted development rights was dismissed by the High Court on 17 November 2020.
In July, the government rushed through sweeping changes to the Use Classes Order, which amongst other things created a new single Class E (commercial, business and service).
It also created new permitted development rights to enable, without planning permission, the demolition of offices or industrial buildings and their replacement with flats within the same footprint, but up to two storeys higher up to a maximum of 18 metres; and the addition of new storeys to an existing dwelling house.
A judicial review of the new law was brought by a group called “Rights: Community: Action”, a coalition of campaigners, lawyers, planners, facilitators, writers and scientists seeking action on climate change.
The group raised three grounds of objection:
· The reforms of the permitted development rights and changes to the Use Classes Order should have been subject to a Strategic Environmental Assessment before being introduced to parliament.
· The government failed to comply with the public sector equality duty under the Equality Act in making two new orders concerning permitted development rights.
· The government acted unlawfully in a number of specific ways relating to the reforms, including in the consultation and consideration of advice from its own experts.
In dismissing the action, Lewis LJ said that the role of the court in judicial review is concerned with resolving questions of law and that it's not responsible for making political, social or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies.
It is not the role of the court to assess the underlying merits of those proposals, but only to assess whether the government has acted lawfully.
The court ruled that there is no requirement for a Strategic Environmental Assessment as the statutory instruments introducing the changes were not “plans or programmes setting the framework of future development consents”.
The court was also persuaded that the pandemic excused ministers from strict compliance with a promised consultation process and that the government’s actions were “proportionate in the circumstances”.
Leave to appeal was however granted on the argument that the government had created a legitimate expectation there would be consultation and on the issue of whether a Strategic Environmental Assessment should have been undertaken.
The Rights: Community: Action Group has said it will now seek permission to appeal the decision, but solely on the ground that a Strategic Environmental Assessment should have been required.
Luhde-Thompson for Rights: Community: Action, said:
“The PM wants to tear down the existing planning system, and these reforms have been rushed through with scant regard for consultation and in a period which excluded the input of MPs, using the pandemic as an excuse. We believe these changes will have a phenomenally negative impact on the people and environment of towns and cities across England. That is why we are seeking permission to appeal.”
Leigh Day solicitor Tom Short , who represents the group, 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.”
Until a Court says otherwise, the changes to the Use Classes Order and new permitted development rights will continue to apply.
Nevertheless, there remains a lack of clarity as to how the use class changes affect buildings which are not in use and how movement within the new Class E is intended to operate.