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Dispute over permitted development changes to be heard by Court of Appeal

The Court of Appeal has granted campaign group Rights: Community: Action (RCA) permission to appeal the High Court’s dismissal of its challenge to major changes to permitted development rights.

In R (Rights: Community: Action) v Secretary of State for Housing, Communities And Local Government [2020] EWHC 3073 the claimant sought an order quashing three statutory instruments that came into force on 31 August 2020. They were:

  • The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 ("SI 2020 No. 755"). This permitted development involving the construction of one or two additional storeys above a single dwelling house or above a detached or terraced building used for commercial purposes.
  • The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 ("SI 2020 No. 756"). This permitted the demolition of a block of flats or certain commercial buildings and rebuilding for residential use.
  • The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 ("SI 2020 No. 757").  This introduced a new commercial, business and service Use Class, with the effect that changes of use of buildings or land within that Class are removed from development control.

However, Lord Justice Lewis and Mr Justice Holgate refused the application for judicial review of the changes.

Lord Justice Stuart-Smith has now made an order granting a hearing at which RCA can make its case for the application for appeal.

In the order, the Court of Appeal judge said: “Despite the clarity of the Divisional Court’s ruling, I consider that this prospective appeal is potentially important.”

The hearing will be held over one day at a date to be set. RCA said that as the judge said the hearing should be moderately expedited, it expects it to be held without delay.

RCA is pursuing the appeal on the ground that the Divisional Court erred in concluding that the three statutory instruments were not required to be subject to Strategic Environmental Assessment because they did not set the framework for future development consent of projects, or modify an existing framework for future development consent of projects.

Naomi Luhde-Thompson for Rights: Community: Action, said: “The Government's changes on permitted development rights in England have attracted criticism across the board, and further changes will only increase the impacts on people, places and the environment. Silencing people's ability to protect the environment without considering the consequences or allowing for consultation undermines public trust.”

Leigh Day solicitor Tom Short said: “This case concerns sweeping reforms to core aspects of the planning regime that will have significant detrimental environment impacts. Our client firmly believes that the secondary legislation implementing these changes ought properly to be subject to Strategic Environmental Assessment and welcomes the Court of Appeal’s decision to hold a full hearing on this issue.”