Rights Community Action RCA have today announced that their High Court challenge to the Government’s changes to the Permitted Development (PD) rights has been unsuccessful.
The case challenged the lawfulness of three Statutory Instruments (SI), brought in by the Government to shake up the planning system, namely:
(i) The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020/755 which allows for the enlargement of a dwellinghouse by the erection of up to two new storeys on top of the highest existing storey of the dwellinghouse or above a detached or terraced building used for commercial purposes;
(ii) The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020/756 which relates to the creation of Class ZA PD right whereby a single detached building can be demolished that was in use as an office, for research and development purposes, or for industrial processes or the demolition of a free-standing purpose built block of flats, and the subsequent replacement with an individual detached block of flats or a single detached dwellinghouse within the footprint of the previous structure. The right also enables works for the construction of a new building that can be up to two storeys higher than the original building, with an overall height limit set at 18 metres;
(iii) The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020/757 which replaces several use classes with the broader Class E (Commercial, Business and Service) meaning changes within this new class will now not be termed ‘development’ and no planning permission will be required.
The claimant had sought to quash the SIs on the grounds of inadequate environmental assessment, equality issues and lack of consultation.
The High Court Report, issued today, reinforces the notion that the Court’s role is to rule on the legality of procedural matters and not on political, economic and social decisions. The Court concluded that European law did not require corresponding environmental assessment and that the Government had indeed attributed due regard to the equality impacts. Further, the Court affirmed that in the context of the ongoing pandemic the reasons given for departing from the promise of further consultation were good and were proportionate. Changes to PD rights were held as essential in the effort to stimulate the economic recovery. Simon Gallagher, the Director of Planning for MHCLG, argued in his witness statement that the Government was forced to intervene in response to the pandemic, with the MHCLG conscious of unprecedent challenges faced by the construction industry. To this end, additional PD rights for the redevelopment of vacant buildings for residential use alongside the introduction of the comprehensive Class E use class concerning business, commercial and service uses was introduced. Indeed, explanatory Memorandums outlined how these measures would boost housing delivery whilst protecting the green belt and would spur on the economic recovery. In response, the High Court Report affirmed in paragraph 138 “that was a proportionate course of action in the circumstances”.
In response to today’s announcement RCA have reinforced their commitment to pursuing the cause, stating that the changes represent a reduction in public rights; the environmental lobbying group contend that using the pandemic as a guise to push through such radical reforms is not acceptable. Leigh Day, representatives for RCA, stated today that the Strategic Environmental Assessment Directive does apply to the SIs and they will seek permission to appeal on this ground. Thus, whilst the case has failed in the High Court, it looks likely that there will be a further challenge and the matter is not settled yet. In the meantime the new permitted development rights can be used, but watch this space.
· The full High Court Report, reference:  EWHC 3073 (Admin), can be accessed here: http://www.landmarkchambers.co.uk/wp-content/uploads/2020/11/Rights-Community-Action-v-SSHCLG-FINAL-15-11-2020.pdf
· RCA Press Release as of 17th November is available at: https://rightscommunityaction.co.uk/latest-news/judicial-review-lost-but-we-intend-to-appeal/
· The Press Release from Leigh Day, representatives for RCA, is available at: https://www.leighday.co.uk/News/Press-releases-2020/November-2020/Campaign-group-seek-to-appeal-judgment-on-changes
· RCA’s claim is available at: https://rightscommunityaction.co.uk/latest-news/planning-judicial-review-pre-action-protocol-letter-issued/
Additional recent amendments to the GPDO
Further changes to the GPDO have also been confirmed. The Government announced the requirement for National Space Standards to be applied to PD conversions to residential use, although this requirement will not come into force until 6th April 2021. The aim is to prevent unsuitable ‘rabbit hutch’ style development.
The temporary PD rights for change of use to a takeaway has been extended to 23rd March 2022, nevertheless restrictive conditions still apply.
An additional amendment, due to come into force on 3rd December 2020, will mean that concert halls, venues for live music performance and theatres are excluded from the PD right for demolition under Regulation 6 which concerns Part 11, Class B. Transitional procedure sets out that cases of prior approval granted on appeal, relating to a prior approval refusal prior to 3rdDecember, will not be affected.