Legal challenge against recent changes to Use Classes Order and General Permitted Development Order dismissed by High Court

R (Rights: Community: Action) v Secretary Of State For Housing, Communities And Local Government [2020] EWHC 307

On 17 November 2020, the Divisional Court dismissed the judicial review claim brought by action group Rights: Community Action (RCA) against three Government statutory instruments (SIs), two of which amended the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO 2015”) and one of which radically changed the Town and Country Planning (Use Classes) Order 1987 (as amended) (“the Use Classes Order”).

Background

The permitted development rights SIs came into force on 31 August 2020. The SI which amends the Use Classes Order came into force on 1 September 2020. (A summary of the changes to the Use Classes Order can be found here.)

RCA issued its claim for judicial review with an application for urgent interim relief to seek to prevent the SIs coming into force on 27 August 2020. The application for interim relief was refused by Holgate J on 28 August 2020. The claim was heard at a rolled-up hearing on 14-15 October 2020.

Grounds of Challenge

RCA argued that the Secretary of State failed to:

1. Carry out a Strategic Environmental Assessment (SEA) pursuant to the SEA Directive and the Environmental Assessment of Plans and Programmes Regulations 2004.
2. Have regard to his public sector equality duty (PSED) pursuant to s149 Equalities Act 2010 and carry out an equality impact assessment.
3. Consider the weight of evidence against the reforms, as follows:

• Ground 3a: a failure to conscientiously consider consultation responses;
• Ground 3b: in respect of the permitted development rights SIs, a failure to take account of the advice of the government's own experts, notably the findings of the Building Better, Building Beautiful Commission’s Living with Beauty Report;
• Ground 3c: in respect of the permitted development rights SIs,  the Secretary of State adopted an approach which was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed permitted development reforms; and
• Ground 3d: in respect of one of the permitted development rights SIs, a failure to re-consult before introducing Class ZA given that an express promise to re-consult was made in the original consultation document.

The Judgment

The judges emphasised that the role of the court in judicial review is concerned with resolving questions of law as opposed to making political, social, or economic choices, which Parliament has entrusted to ministers and other public bodies.

In handing down judgment, LJ Lewin and Holgate J dismissed all three of RCA's grounds of challenge.

Though Ground 1 was held to be arguable, it did not succeed. It was held that that the Use Classes Order defines whether certain changes of use constitute development for the purposes of development control and, therefore, could not be described as setting a framework for future development consents of projects. Accordingly, it did not satisfy one of four statutory criteria required for the carrying out of an SEA. It was also held that the permitted development rights SIs grant planning permission for specific types of development and could not, therefore, be described as setting the framework for future development consents of projects.

Ground 2 was held to be unarguable and there was no realistic prospect that RCA could establish that there had been any failure to have due regard to the PSED given that: (i) the consultation paper issued at the start of the process stated that the proposals had to be assessed by reference to the PSED; (ii) equality impact assessments were prepared for each of the proposed SIs; and (iii) the attention of the minister was specifically drawn to the PSED in approving the SIs.

Grounds 3a and 3b were also dismissed as unarguable because there was sufficient evidence to show that the Government had considered both the consultation responses and the Government's Building Better Report.

Ground 3c was also dismissed because there is no authority suggesting that any principle of consistency could generate a legally enforceable obligation to consult.

Ground 3d was held to be arguable but it also failed because: (i) the Secretary of State had good reasons for departing from his promise to hold a second consultation – namely the need to stimulate regeneration as a result of the coronavirus pandemic; and (ii) the reasons for departing from the promise were proportionate in the circumstances.

Commentary

The judgment comprehensively dismisses RCA's challenge against the Government's recent radical changes to the GPDO 2015 and the Use Classes Order with only two of the grounds put forward being determined to be arguable, though these ultimately failed. It is noteworthy that the coronavirus pandemic was held to be a proportionate justification for the minister departing from his promise to hold a second consultation. This could be relevant to future litigation which might arise as a result of what is argued to be inadequate consultation due to the pandemic.

RCA has indicated that it intends to appeal but it is not clear whether the Court of Appeal will grant leave to appeal. For now, the SIs remain in force and the industry will be relieved that the judgment resolves what was a period of uncertainty following the changes introduced by the Government.