High Court dismisses challenge to “radical” planning reforms

The legal challenge came after the Government set out reforms to legislation which underpins the planning system in the UK:

• Town and Country Planning (Use Classes) Order 1987; and
• Town and Country Planning (General Permitted Development) (England) Order 2015.

Regulations bringing these changes into force were laid before Parliament on 21July 2020 and came into force on 1 September 2020. Changes included extending the types of development which would be permitted without planning permission to include additional storeys to houses. The amended Use Classes order seeks to merge multiple existing classes, as well as introducing new classes to encompass commercial, business and service.

Rights: Community: Action Limited (‘RCA’) brought a claim on a number of grounds and argued that the fact the regulations were laid before Parliament the day before the summer recess resulted in the legislators had no say on the “radical” changes. Paul Brown QC, for RCA, argued the Covid-19 pandemic was used as a “political and legal cover” for making far reaching reforms to the planning system, which will long outlive the pandemic.

The court found for the Secretary of State, with Lord Justice Lewis emphasising the role of the court to resolve questions of law, as opposed to making political, social and economic choices. He reiterated that these decisions were for ministers to determine, having weighed up countervailing factors.

The judge nevertheless commented on the grounds brought by the applicant, which were as follows:

1. The Secretary of State, Robert Jenrick, has failed to carry out an environmental assessment as required under EU Directive 2001/42/EC ("the SEA Directive") and the Environmental Assessment of Plans and Programmes Regulations 2004;

2. The Secretary of State did not have regard to the public sector equality duty (an appropriate equality impact assessment was not undertaken); and

3. The Secretary of State failed to consider the weight of the evidence against the reforms including consultation and advice of its own experts between October 2018 – January 2019.

In regards to (1), the judge found that none of the statutory instruments constituted “a plan or programme setting the framework for future development consents”, therefore no environmental assessment was required.

The judge found there to be ‘no real prospect’ of establishing that Jenrick had failed to have regard to the public sector equality duty, as enshrined by the Equality Act 2010, as put forward in (2) above.

Finally, the judge dismissed the ground in (3) and emphasised that any inconsistences with statements on planning reforms previously should be considered in light of the national emergency posed by the pandemic.

Despite the court’s dismissal of the challenge, RCA have been clear they intend to appeal the decision.

In the meantime, the 2020 regulations remain in force and should be referred to in all planning applications, unless and until they are formally quashed. Our advice is to refer to the specific uses for which the development is being built for in applications, as opposed to the use classes, to avoid any potential changes in legislation down the line (e.g ‘retail’, ‘gym’). The same advice applies to contracts, although where reference is made to the Use Classes Order, this should include reference to those in force at the time of contracting. In any event, it is important to be cautious when making any applications and seek advice from our expert planning team with any concerns.