High Court rules against Use Class and Permitted Development challenge

The High Court has handed its ruling in the recent legal challenge against the changes to the Use Class Order and General Permitted Development Order. Emma Thompson, Principal Planner, explains the key reasons for the ruling and what it means for the Government's regulation changes.

Over the summer, the Government announced and implemented fundamental legislative reforms to the General Permitted Development Order and Use Classes Order. The statutory instruments (SIs) were brought forward 'at pace in order to stimulate regeneration of towns and cities and deliver additional homes more easily as part of the Government's response to the Covid-19 pandemic'.

The key changes introduced 

• Class E (Commercial, Business and Service), which combined (A1/A2/A3/part D1 and part D2 and B1 uses)
• Class F.1 (Learning and Non-Residential) and F.2 (Local Community)
• Class ZA (permitting any existing detached building, currently in use as a purpose-built block of flats or commercial premises within the B1 use class, to be demolished and replaced with a purpose-built detached block of flats or a detached dwelling)
• A4/A4 and D2 defined as Sui Generis

On 17 November 2020, the High Court dismissed the judicial review claim brought by campaign group Rights: Community: Action (RCA) against the Government's statutory instruments (SIs), regarding the amended Town and Country Planning (General Permitted Development) (England) Order 2015 and the Town and Country Planning (Use Classes) Order 1987 (as amended).

Their concerns raised were:

• That these changes 'will have a phenomenally negative impact on the people and environment of towns and cities across England.'  This will lead to poor quality housing and a damaging effect on health and well-being.
• That the Secretary of State acted unlawfully in failing to carry out a Strategic Environmental Assessment (SEA) pursuant to the SEA Directive and the Environmental Assessment of Plans and Programmes Regulations 2004. 
• There was a lack of regard to carry out an Equality Impact Assessment pursuant to the s149 Equalities Act 2010.

Paul Brown QC, the barrister acting for RCA told two senior judges that "Covid-19 had been used as a political and legal cover to push through fundamental reforms of the planning system which will long outlive the pandemic".

The High Court's key points for its decision were:

• That “SIs did not constitute a plan or programme setting the framework for future development consents and did not satisfy one of the four statutory criteria required for the carrying out of an SEA.”
• That there was sufficient evidence to show that the Government had considered both the consultation responses and the Government’s Building Better Report.
• The Secretary of State had good reasons for departing from his promise to hold a second consultation on the changes and reforms due to the significant economic emergency facing the country cause by the pandemic.

Bidwells' View

The decision from the High Court to dismiss the attempt at overturning the Government’s laws will, no doubt, be a welcomed one for developers, investors and landlords.

The RCA have confirmed their intention to appeal and state that whilst they respect the decision, in their view the judgement is “on the wrong side of public interest" . One of the grounds they are likely to appeal on is the response to a temporary economic crisis resulting in permanent change to legislation.

It remains to be seen what the long-term economic impact of the pandemic will be on our towns and cities. However, what’s clear, is that the role and function of towns and cities will continue to evolve. The fundamental purpose of town and cities is to meet the needs of their catchment communities. In order to do this, they must be ‘vital’ (full of reasons for people to visit) and ‘viable’ (attractive to both visitors and investors in the longer term). The changes and reforms implemented by the Government allow the necessary flexibility to stimulate regeneration and kick start economic recovery.

The key word is flexibility. The changes to the Use Class Order and Permitted Development encourage and support the high street by diversifying opportunities to redevelop and repurpose buildings that have now become redundant, such as employment uses, which would otherwise be restricted by local development plan policies. Housing that is delivered via Permitted Development will also see further changes in April 2021 when it will need to comply with Nationally Described Space Standards to ensure that it is provided with adequate light.

For landowners, developers, investors and landlords, this means they can now progress with more confidence and take advantage of the opportunities presented with the new Permitted Development changes.