Planning reforms in England survive judicial review

Out-Law News | 17 Nov 2020 | 4:45 pm | 2 min. read

A legal challenge against a series of planning law reforms that took effect in England earlier this year has been rejected by the High Court in London.

A climate action lobby group, Rights: Community: Action, had lodged judicial review proceedings against three statutory instruments, raising three grounds of objection to the new legislation.

In particular, the group claimed that the reforms, which concern permitted development rights for upwards extensions and for the demolition of certain types of buildings to be replaced by new homes, as well as changes to the classification scheme for different uses of property, should have been subject to environmental assessment prior to being introduced to parliament.

Rights: Community: Action also argued that the government had failed to comply with the public sector equality duty under the Equality Act in making the two new orders concerning permitted development rights.

The group further claimed that the government had acted unlawfully in a number of specific ways relating to the reforms, including around its activities in relation to consultation and in consideration of advice from its own experts.

However, Lord Justice Lewis and Mr Justice Holgate rejected each ground of complaint. A couple of grounds were initially considered to be arguable but ultimately failed to convince the judges, meaning they did not succeed.

"The court found that the government’s reasons for failing to re-consult on the introduction of permitted development rights for demolition of commercial or residential buildings and rebuilding for residential use, having previously promised to do so, were good and proportionate," said Emma Hargreaves of Pinsent Masons, the law firm behind Out-Law. "The judges specifically mentioned the current Covid-19 pandemic and the impact on the economy as a reason why the government was justified in not re-consulting. However, it ruled that the argument raised by Rights: Community: Action that the government had created ‘a legitimate expectation’ that further consultation would happen was arguable and so gave permission for them to proceed on this ground, but the ground did not then succeed."

"The court also found that the statutory instruments introducing the new changes were not 'plans or programmes setting the framework of future development consents' requiring an assessment of potential environmental impacts. However, it accepted that this ground of challenge was arguable, although ultimately this challenge was also rejected," she said.

Planning law expert Michael Pocock of Pinsent Masons said: "Those landowners seeking to rely on the new permitted development rights and changes to use classes will welcome this decision. The ruling will provide some optimism that, once the current challenges brought by Covid have passed, that this will present a way of reinvigorating the high street in particular."

However, he added: "The lack of clear guidance 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 will mean that this area will continue to be one where careful consideration is needed in each case where the changes apply".

Hargreaves said the decision follows other recent cases where the courts have been asked to intervene in the introduction of new policy and legislation by the government where it was claimed proper consultation and assessment of environmental effects of the changes had not been undertaken.

She said: "Interestingly, the court began its judgment by reminding the parties that the role of the court was not to be 'responsible for making political, social, or economic choices' but that it was 'only concerned with the legal issues raised by the claimant as to whether the defendant has acted unlawfully'. This was perhaps a clear warning to those that seek to use the court process to challenge matters which are publically controversial as opposed to being unlawful."

EDITOR'S NOTE 20/11/20: This story was updated after publication to reflect the correct position in regards to the grounds argued.