Judicial review of planning reforms fails as appeal looms

A challenge to new planning legislation that aims to make it easier for buildings to be replaced and repurposed for housing and other uses has failed after the High Court found the government acted lawfully in making the changes – although the claimants have been given permission to appeal on specific grounds.

   
Rights: Community: Action (RCA), a climate action lobby group, lodged judicial review proceedings in August against three statutory instruments passed in July.
 
The group raised three grounds of objection to the new legislation.
 
In particular, the group claimed that:
 

• Reforms concerning permitted development rights for upwards extensions of buildings 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 before being introduced to parliament;

 

• The government failed to comply with the public sector equality duty under the Equality Act in making the two new orders concerning permitted development rights; and

 

• The government acted unlawfully in a number of specific ways relating to the reforms, including in relation to consultation and consideration of advice from its own experts.

 
Lord Justice Lewis and Mr Justice Holgate however rejected each ground of complaint (although they did grant RCA permission to appeal on two specific grounds – see below).
 
The court 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.

 

• The government "[departed] from the promise of further consultation [on these reforms]" with "good cause" because of the "need to assist in the recovery from the economic difficulties created by the coronavirus pandemic" and that "its actions were proportionate in the circumstances".

 
However, the court also ruled that RCA's argument that the government had created a "legitimate expectation" that there would be further consultation on the reforms was arguable and gave leave to appeal on this ground.
 
The judges also accepted that the claimant's challenge that the reforms qualify for environmental assessment was arguable and may be appealed.
 
RCA has confirmed it intends to appeal.
 
Comment
 
The decision follows other recent cases where the courts have been asked to intervene when the introduction of new policy-based legislation by government has been challenged, on the grounds that proper consultation and assessment of environmental impacts has not been undertaken.
 
The judges were at pains to stress that the "court is not responsible for making political, social, or economic choices," which are instead "entrusted to ministers and other public bodies".
 
They added that the court "is only concerned with the legal issues raised by the claimant as to whether the defendant has acted unlawfully".
 
Landowners and developers seeking to rely on the new permitted development rights and changes to use classes will welcome this decision, subject to the outcome of the appeal.
 
If the appeal is successful, the flexibility of the planning reforms may be curtailed although broadly speaking the measures will still represent a significant relaxation of planning laws in England.
 
Developers and planning authorities still lack 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.
 
This article was authored by Dinah Patel, a director in the planning team at Fieldfisher Birmingham.