Use Classes and Permitted Development Rights: Judicial Review uncertainty

On 21 July 2020 the Secretary of State for Housing Communities and Local Government laid three statutory instruments (SIs)¹ before Parliament. These three pieces of legislation were referred to as part of Boris Johnson’s “Build Build Build” speech on 30 June 2020 and made radical changes to planning law by making sweeping changes to the Use Classes Order and Permitted Development (PD) rights. Much commentary has been written about the impacts of the changes, but as a (very brief) overview the main impacts of the changes were to:

• (in England) change use classes to group together most “commercial uses” such as retail, café, office, clinics and gyms as a single use class, meaning changes between them would not require permission. It also moved a number of uses, such as cinemas and pubs, out of use classes meaning changes to and from these uses is now more restricted;
• provide for new permitted development rights for upwards extensions for enlargement of dwellings, and to allow replacement of some buildings with dwellings.

All of these changes came into effect on 1 September 2020 (use classes) and 31 August 2020 (PD rights). Their validity is, however, currently subject to legal challenge.

Rights: Community: Action Ltd (styled as a non-governmental campaign organisation made up of campaigners, lawyers, planners, facilitators, writers and scientists, united by a shared commitment to tackle the Climate Emergency) issued an application for judicial review on 27 August 2020. The matter has been listed for a “rolled up” hearing (i.e. the court will both consider whether to grant permission for judicial review and conduct the full judicial review hearing) at the High Court between 8 and 15 October 2020. The application calls for the three SIs to be quashed.

According to the Claimant’s detailed statement of facts and grounds², the challenge is made on the following grounds:

1. failure to carry out an environmental assessment;


2. failure to have regard to the Public Sector Equality Duty; and


3. failure to consider the weight of evidence against the reforms. This latter point includes the following issues:
   
   
   • the failure to conscientiously consider the responses to the consultation on proposed planning reforms (the consultation ran from October 2018 to January 2019). Reference under this ground is also made to the fact that the SIs were laid before Parliament on the day before the parliamentary summer recess and came into force on the day Parliament returned, therefore limiting opportunity to debate the measures;
   • in respect of the two SIs which expand PD rights, the failure to take into account the advice of the government’s own experts (in particular the findings of Building Better, Building Beautiful Commission’s Living with Beauty Report³. Also the Clifford Report⁴, which examined housing built under existing permitted development rights such as changes of use from office to residential and concluded that it resulted in smaller dwellings in more industrial areas with less outside space than conversions undertaken with express planning permission);
   • in respect of the two SIs that expand PD rights; unfair, inconsistent and/or irrational approach was taken in comparison to the approach taken to similar PD reforms, such as those relating to 5G telecommunications equipment roll-out where further consultation was undertaken;
   • failure to undertake a re-consultation before introducing Class ZA (where an express promise to re-consult was made in the original consultation document).

What is happening?

The original claim included an application for an urgent interim order to stop the SIs coming into effect. However, with the early listing in October for a full hearing the interim application has been withdrawn and the SIs currently remain in force.

Subject to a couple of limited exceptions, the Courts do not have the power to strike down primary legislation which has been through the full legislative process of Parliament. In contrast, SIs can be subject to judicial review. In this case, the SIs were made under a negative resolution procedure. An SIs introduced through this procedure automatically becomes law on the day signed unless a motion to reject it is agreed by either House of Parliament within 40 sitting days. A rejected SI would be annulled and have no legal effect.

It is understood that, as of 3 September 2020, a “prayer” (a motion by which members of either house of parliament can object to an SI) has been made against the regulations but as yet there is no confirmation that there will be a debate on them, although convention is that time is made for debate. Realistically with the Government majority it is unlikely the SIs will be annulled. This negative resolution procedure means they didn’t undergo as great a level of scrutiny as if they had been subject to the affirmative procedure where they would have had to be actively approved by Parliament. This in itself does not mean that the SIs have been wrongly introduced, but the court would be more reluctant to intervene in an actively approved SI than these which were subject to a negative resolution.

If the challenge is successful the three SIs (or the relevant one(s)) would be quashed. It is possible that the Secretary of State could seek to make the SI(s) again, having corrected any of the issues which were they were found to have failed to properly undertake the first time around.

What happens if the SIs are quashed?

If the three SIs are quashed, potentially any action taken in accordance with the changes made by them will be not be legal. For example, if a building had an office use (old B1) this would be reclassified under the amended Order as Class E use. Pursuant to the SI it could change its use to a chiropractor’s clinic (old D1, also within new Class E). Since this change is only possible because of the amendments to the Use Class Order, if the SI was quashed this would potentially be a breach of planning control. Another example: any upwards house extension built pursuant to the changes made by the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 would also potentially be a breach of planning control. It may be arguable that when the changes happened they were lawful and therefore such a breach of planning control could not be enforced against, or alternatively certificates of lawfulness or planning permissions may be needed to formalise any such works undertaken.

For now the planning world is coming to terms with the radical changes introduced this summer and the opportunities and challenges they bring. However, uncertainty around this will remain until the JR has been decided at the earliest, and longer if the challenge is successful. Either way, the question-mark is likely to continue to hang over this issue: if quashed we would have to wait to see what the Secretary of State does in response. The approach to dealing with breaches of planning which will arise through quashing will no doubt depend on the attitude of the parties to appealing any judgment or the remaking of any SIs, as appropriate.

¹ Town and Country Planning (General Permitted Development) (England) (Amendment) (No.2) Order 2020/755; Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020/756; Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020/757
² Found on their website
³ Living with beauty: report of the Building Better, Building Beautiful Commission
⁴ Research into the quality standard of homes delivered through change of use permitted development rights