September 04, 2020

"Most radical reform to our planning system since the Second World War" stalled in the High Court


Much has been written about the sweeping changes the Government is introducing to extend permitted development rights and limit the need to obtain planning permission for changes of use.

But on 2 September 2020 Mr Justice Holgate ordered that an application for leave for judicial review challenging these new laws would be heard on 8 October 2020.

The application has been brought by a group called "Rights : Community Acts" whose stated aim is to tackle the climate emergency.

1.  What is being challenged?

The challenge is made to the lawfulness of three Statutory Instruments (SI's) which make major changes to permitted development rights and changes of use:-

  1. The Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order which brings the enlargement of a dwelling house by the construction of two additional storeys within permitted development rights;
  2. The Town and Country Planning (General Permitted Development) (England) (Amendment) (No 3) Order which introduces a new Class ZA to allow for the demolition of a single detached building previously used for offices, research and development or industrial processes or a freestanding block of flats and its replacement by a detached block of flats or a single dwelling house within the footprint of the old building (and an additional two storeys); and
  3. The Town and Country Planning (Uses Classes) (Amendment) (England) Regulations 2020 which abolishes a number of previous use Classes and replaces them with much broader use Classes, thus allowing changes within the (new) broader use Class without the need for planning permission. For example, new Class E absorbs previous use Classes A1 (shops), A2 (professional services) and A3 (restaurants). Whereas, previously, permission would have been needed for a change between A3 and B1, that is no longer required. New Classes F1 and F2 also absorb other use Classes and have the same effect.

2. On what basis are these reforms being challenged?

The claimant is challenging the confirmation of these SI's on three main grounds:

  1. the Government failed to carry out an environmental assessment of the SI's pursuant to the requirements of EU law and UK implementing Regulations;
  2. the Government failed to carry out an appropriate equality impact assessment of the SI's contrary to its duty under the Equality Act 2010 to inform itself about what "protected groups" would be impacted by the proposed changes. Essentially the claimant is arguing that by failing to carry out an equality impact assessment, the Government failed adequately to consider the impact of the reforms on the disabled: the concern is that permitted development rights enable developers to build accommodation which fails to meet the needs of the disabled.
  3. The Government failed to take account of consultation responses and other material considerations. The claimant here is arguing the Government failed to take into account its own expert advice, the negative consultation responses from stakeholders and the public and that the Secretary of State closed his mind to the issues being raised.

    The claimants had originally sought an order to suspend the effect of the SIs, but this was withdrawn. The matter will be heard between 8 and 15 October 2020. 

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