New permitted development rights and Class E use class found lawful

New permitted development rights and Class E use class found lawful

The High Court has dismissed a claim for judicial review challenging changes made in England to permitted development rights and the Use Classes Order 1987. The changes: 

  • from 31 August 2020, permit the construction of one or two additional storeys above certain single dwelling houses or above certain detached or terraced building used for commercial purposes, so that no planning permission is required
  • from 31 August 2020, permit the demolition of a block of flats or certain commercial buildings and their rebuilding for residential use, so that no planning permission is required
  • from 1 September 2020, introduce a new commercial, business and service use class (referred to as ‘Class E’), with the effect that changes of use of buildings or land within that use class do not require planning permission

Rights: Community: Action, a non-governmental campaigning organisation, challenged the government, arguing that in introducing the legislation making the changes, the government:

  • breached requirements to carry out strategic environmental assessment,
  • failed to comply with the public sector equality duty, and
  • failed to comply with requirements for lawful consultation. 

The court dismissed the claim. It found that:

  • The legislation introducing the changes itself grants planning permission for specified development or simply defines whether certain changes of use constitute development for the purposes of development control. This cannot be said to be ‘setting the framework for the grant of future development consents’ which legislation needs to do if it is to be subject to strategic environmental assessment.
  • Adequate equalities impact assessments had been carried out by the government in respect of the implications each of the changes, assessing how the changes would impact protected groups. The conclusions of each assessment were drawn to the attention of the government minister responsible for the legislation before the legislation was made, in satisfaction of the public sector equality duty.
  • Although the government did commit to further consultation before making the changes, it was lawful for the government to depart from this commitment and not carry out further consultation in the circumstances. The changes were brought forward to help tackle the economic crisis arising from the coronavirus (COVID-19) pandemic, in the hope that they would help stimulate regeneration at a time of great economic difficulty, and this was a good and proportionate reason to introduce them without further consultation in breach of the government’s commitment.

The effect of the judgment is that the changes are, at least for now, lawful. However, Rights: Community: Action has already indicated that it will seek permission to appeal the judgment. This means developers and landowners will experience further uncertainty over whether the new provisions can continue to be relied upon.

For a fuller summary of the judgment, see our analysis: Judicial review of PD and use class changes dismissed (Rights Community Action v SSHCLG)

 

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About the author:
Sarah worked in planning departments at several city firms, including SJ Berwin, Wragge Lawrence Graham and Norton Rose Fulbright, before joining LexisNexis UK in January 2017. She has experience of planning and compulsory purchase law and regularly advised landowners, investors and developers on all planning law aspects, with a particular focus on large-scale development, regeneration and infrastructure schemes. Sarah also has considerable experience conducting planning-related legal proceedings.