On Tuesday, 17th November, the judicial review of the Government’s changes to the use classes order and new permitted development rights was dismissed.
The High Court ruled that the changes had been legally enacted, a judgment which Rights: Community: Action are seeking permission to appeal. Although in our view, this appeal is unlikely to be successful, until any appeal is resolved there remains uncertainty around the ability to rely on these new permitted development rights and use classes.
In July, the Government introduced two new development rights. The first allowed the demolition of a block of flats or certain commercial buildings and rebuilding for residential use, and the second allowed the construction of one or two additional storeys above a house or commercial building. The Government also introduced changes to use classes, by introducing an ‘umbrella’ commercial, business and service use class ‘E’, meaning that buildings in those uses would be able to change to other uses within use class E without the need for planning permission. Further information on the changes can be found here in our previous Law-Now.
Rights: Community: Action sought to block these changes through judicial review, claiming that there ought to have been an environmental assessment, that the Government’s equality impact assessment were inadequate, and that (as promised by Government) there should have been another public consultation on the changes.
The judicial review was dismissed, however the pressure group announced that it intends to appeal the High Court’s decision on the basis that it considers that the EU’s Strategic Environmental Assessment Directive applies to these statutory instruments. On this point, the High Court found that no environmental assessment was required as the changes are not “a plan or programme setting the framework for future development consents”. The judgement in this regard is clear, and in our view an appeal is unlikely to be successful. However, until the appeal has been concluded, developers should be wary about placing full reliance on the new permitted development rights and use class E, and should seek legal advice when doing so.
If a Certificate of Lawfulness (relying on the changes to the use classes order) is granted before the outcome of the appeal is known, developers should be aware that there could be doubt as to the lawfulness of the use going forward. This is because section 192 of the Town and Country Planning Act 1990 (which deals with certificates of lawfulness of proposed use) provides that “the lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness”. If the appeal is successful, then this could be held to be a “material change”.
We should see a decision on the permission to appeal before Christmas. If permission to appeal is granted, then we would expect the appeal to be expedited given that the outcome will be of national significance, and further clarity early in the new year. It is unclear at this stage whether any appeal would progress via the Court of Appeal, or go directly to the Supreme Court.
There are helpful clarifications and suggestions of arising trends in planning reform to take away from this case.
The judgement confirms previous case law that planning permission for a permitted development right comes from the General Permitted Development Order, and not from the prior approval to the permitted development right. This is a point worth bearing in mind when relying on permitted development rights.
In this case, it was held that the Government were justified on going back on their promise that there would be another consultation on the proposed reforms due to the severe economic difficulties caused by the coronavirus pandemic. The difficulties faced by the construction sector, shown in the 40.2% decline in construction output in April 2020, and the need to stimulate regeneration justified the Government’s departure from its promise. We could expect to see more legal changes approved due to the economic emergency caused by the pandemic.
The consultation period for the Planning White Paper ended last month and we await the outcome of the Government’s analysis of the consultation responses. The Government is likely to be mindful, following this recent judicial review challenge, that there is a body of resistance to the emerging planning reforms and that its decision-making process may come under increased scrutiny.
We will provide a further update when the outcome of the RCA’s application for permission to appeal is known.