Challenge to New Permitted Development Rights Brought Before Courts

Published 24 September 2020

We recently reported on the Government’s changes to Permitted Development in England introduced on 31 August 2020 for upward extensions and demolition and rebuilding of vacant residential and commercial buildings as well as a new town centre use class. These new rights are being challenged on the grounds that the measures were introduced without the required environmental and equality impact assessments or proper parliamentary scrutiny or consultation. The hearing will be heard between 8-15 October 2020.

Campaign group, Rights: Community: Action, applied for a judicial review seeking a declaration that the Statutory Instruments used to bring in the changes to permitted development rights were unlawful. The campaign group was granted a ‘rolled up hearing’ to be heard by a divisional court for 1.5 days between 8 and 15 October. If permission to apply for judicial review is granted at that hearing, the court will proceed immediately to determine the substantive claim.

The grounds for the judicial review, as set out in their pre-action protocol letter, are that the Government:

1. Unlawfully failed to carry out an environmental assessment of the Statutory Instruments, pursuant to EU Directive 2001/42/EC and the Environmental Assessment of Plans and Programmes Regulations 2004.
2. Breached the public sector equality duty, in that the Statutory Instruments were introduced without an appropriate equality impact assessment, resulting in failure to comply with the public sector equality duty. The group believes in particular, that the Secretary of State “did not adequately consider the impact of these reforms on the disabled.”
3. Failed to take account of consultation responses and other material considerations. The group believes that “the Secretary of State failed to conscientiously consider the weight of the evidence against these radical reforms, including prior consultation responses and the advice of his own experts. Moreover, in closing his mind to these important considerations, he adopted an approach which was entirely inconsistent with his approach to comparable planning reform proposals”.

Comment

This immediately raises a number of questions relating to those who have already taken advantage of those rights, in particular in relation to the town centre use class – Class E. If the challenge is successful next month will those who have relied on these rights be subject to enforcement action from Councils or otherwise need/be invited to regularise their position by submitting a full planning application?

What will become of the rights of leaseholders secured since the changes were introduced? Will they be able to lawfully use their premises for all previous uses (i.e. A1, A2, A3, B1) foreseen under Class E – a use class that might not exist?

These are questions that will only be resolved over time and may need further determination in the courts if the court sides with action group’s arguments next month.

Editor’s note – The statutory instruments being challenged are:

The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020/755
The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020/756
The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020/757