Use Class and Permitted Development Rights legal challenge fails… for now

The High Court has dismissed a legal challenge against the introduction of three statutory instruments, which were made as part of the government’s drive to stimulate economic development and house building.

In R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 3073 (Admin), the Claimant (Rights : Community : Action) sought to overturn the introduction of significant new permitted development rights. These rights enable developers to create additional dwellings by extending buildings upwards and to demolish existing buildings to make way for new flats or houses.

RCA also challenged an amendment to the Use Classes Order which introduced new Use Class E, which makes it easier for premises to change their lawful use, for example, by converting an existing shop into a gymnasium.

The three Statutory Instruments which were challenged are:

• The Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order 2020 (SI 2020/755)
• The Town and Country Planning (General Permitted Development) (England) (Amendment) (No 3) Order 2020 (SI 2020/756)
• The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (SI 2020/757).

RCA argued that the government failed to carry out an environmental assessment of the new rules as required by EU Directive 2001/42/EC. It also argued that the government failed to have regard to duties under the Equality Act 2010 and that it had failed to consult properly on the changes.

The two High Court judges rejected each of these arguments and upheld the new rules. The court held that there was no requirement for the Statutory Instruments to be subject to an environmental assessment. It also held that there was no basis for claiming the government had failed to have due regard to public sector equality duty, and the government had good reasons to depart from the promise to consult on the new permitted development rights.

For the time being the new rules remain in place. However, this may not be the last word on the matter as RCA indicated that they may appeal the decision to the Supreme Court for a final ruling.