Cheshire East

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Court of Appeal dismisses challenge to introduction of changes to permitted development rights without strategic environmental assessment

The Court of Appeal has rejected a claim that it was unlawful for the Secretary of State for Housing, Communities and Local Government as was to reform the planning legislation in England by making statutory instruments to adjust "permitted development" rights and to remove certain changes of use from the scope of development control, without undertaking a strategic environmental assessment.

In Rights: Community: Action, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 1954 campaigning organisation Rights: Community: Action had sought permission to appeal against the order of the Divisional Court (Lewis LJ and Holgate J) in November 2020, dismissing its claim for judicial review of three statutory instruments made by the Secretary of State on 20 July 2020.

The statutory instruments were the Town and Country Planning (General Permitted Development) (England) (Amendment) (No.2) Order 2020 ("S.I. 2020/755"), the Town and Country Planning (General Permitted Development) (England) (Amendment) (No.3) Order 2020 ("S.I. 2020/756") and the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 ("S.I. 2020/757").

S.I. 2020/755 and S.I. 2020/756 came into force on 31 August 2020. They amended the Town and Country Planning (General Permitted Development) (England) Order 2015 ("the GPDO"): S.I. 2020/755 by permitting 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; S.I. 2020/756 by permitting the demolition of blocks of flats and certain commercial buildings, and rebuilding for residential use.

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S.I. 2020/757 came into force on 1 September 2020. It amended the Town and Country Planning (Use Classes) Order 1987by introducing a new commercial, business and service use class, with the effect that changes of use within that class were removed from development control.

Three grounds of challenge were advanced before the Divisional Court but rejected. Only the first was maintained in the Court of Appeal, namely that each of these statutory instruments should have been the subject of an environmental assessment or screened for such an assessment under the Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment ("the SEA Directive") and the Environmental Assessment of Plans and Programmes Regulations 2004 ("the SEA regulations"), which was not done.

The Court of Appeal granted permission for the appeal, but dismissed the appeal itself.

The Senior President of Tribunals, Sir Keith Lindblom, agreed with the Divisional Court's conclusion that none of the three statutory instruments was a plan or programme under the SEA Directive, and that the Secretary of State did not err in law in making them without undertaking an environmental assessment or carrying out a screening procedure.

Lord Justice Coulson and Lord Justice Birss agreed.

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