Planning regulations for controversial ‘PD rights and use Class E’, survive judicial review challenge

Introduction

A judicial review claim challenging the validity of controversial planning regulations (“Regulations”) has been dismissed by the High Court. The Regulations introduced significant changes to permitted development rights and the Use Classes Order as detailed below.

Significantly, the court held that the Regulations did not set a framework for future development consents and so did not require a strategic environmental assessment. The claimant has indicated an intention to seek permission to appeal to the Court of Appeal on this ground and so this matter has not gone away entirely.

The Regulations

Regulation 1 (The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020) and Regulation 2 (The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020), which came into force in England on 31 August 2020, amended the Town and Country Planning (General Permitted Development) (England) Order 2015 (‘GPDO’) to permit:

• the construction of one or two additional storeys above a single dwelling house or above a detached or terraced building used for commercial purposes; and
• demolition of a block of flats or certain commercial buildings and rebuilding for residential use.

Regulation 3 (The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020) came into effect on 1 September 2020 and significantly altered the planning use classes (as set out in the Town and Country Planning (Use Classes) Order 1987 (‘UCO’)) by:

• introducing 3 new use classes (Class E, Class F.1 and Class F.2); and
• changing the class of a number of uses, such as cinemas and pubs.

Use Class E has been particularly controversial due to the breadth of changes of use of land now permitted within that use class pursuant to the Regulations.

The judgment of the High Court

The Divisional Court handed down judgment on 17 November 2020 further to the hearing which took place between 8 and 15 October 2020. Had the challenge been successful, the Regulations would have been quashed, with potentially far-reaching consequences for the property industry.

We understand that the claimant intends to seek permission to appeal the decision on ground 1 in respect of each of the three Regulations, alleging a failure to carry out a strategic environmental assessment pursuant to Directive 2001/42/EC and the Environmental Assessment of Plans and Programmes Regulations 2004).

The court held, at paragraph 108 of the judgment, that the Regulations do not ‘constitute a plan or programme setting the framework for future development consents within the meaning of article 3(4) of the Directive’ and ‘for that reason, there was no requirement for them to be subject to an environmental assessment’. However, the court accepted that this ground was ‘arguable’ and granted the claimant permission to apply for judicial review on this ground.

Whilst all grounds raised in the claim were dismissed by the court, the court granted permission to apply for judicial review on ground 3(d) (alleging a failure to undertake a further consultation exercise in relation to Regulation 2).

Grounds 2 (alleging a failure to comply with the public sector equality duty contained in section 149 of the Equality Act 2010) and the remaining issues at ground 3 (alleging a failure to comply with requirements for lawful consultation, take into account advice from the Government’s own experts before making Regulation 1 and Regulation 2, and act consistently) were described as ‘unarguable’ and accordingly permission to apply for judicial review on these grounds was refused.

Comment

The dismissal of the claim will be welcome news to large parts of the property industry due to the uncertainty the claim has created for transactions and developments reliant on the Regulations. 

In particular, landlords and tenants who have relied on the wider use class E to change use of premises, and those who have undertaken works pursuant to new PD rights will be particularly relieved.  

The Regulations have faced criticism from many, including local planning authorities and objector groups, due to the breadth of development permitted without the need for full planning permission. As it appears the Regulations are here to stay, we would expect many local authorities to take what steps they can to minimise planning harm arising. This is likely to include the imposition of restrictive conditions relating to use in respect of planning applications which seek planning permission for a use falling within Use Class E.

The uncertainty created by the claim hasn’t entirely gone away though, due to the indication that the claimant will be seeking permission to appeal to the Court of Appeal.