R (Rights Community Action) v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate,Lord Justice Lewis |
| Judgment Date | 17 November 2020 |
| Neutral Citation | [2020] EWHC 3073 (Admin) |
| Date | 17 November 2020 |
| Docket Number | Case No: CO/3024/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 3073 (Admin)
Lord Justice Lewis
Mr Justice Holgate
Case No: CO/3024/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Brown QC and Alex Shattock (instructed by Leigh Day) for the Claimant
Rupert Warren QC and Ms. Anjoli Foster (instructed by Government Legal Department) for the Defendant
Hearing dates: 14 th to 15th October 2020
Approved Judgment
Lord Justice Lewis and
This is the judgment of the Court to which we have both contributed.
The claimant seeks an order quashing the following statutory instruments:-
— The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 (“SI 2020 No. 755”)
— The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 (“ SI 2020 No. 756”)
— The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (“ SI 2020 No. 757”).
The orders were made by the defendant on 20 July 2020. They were laid before Parliament on 21 July 2020 and came into force on 31 August 2020, or, in the case of SI 2020 No.757, on 1 September 2020. In brief summary, SI 2020 No 755 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. SI 2020 No 756 permitted the demolition of a block of flats or certain commercial buildings and rebuilding for residential use. These SIs did this by amending the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015 No. 596) (“the GPDO 2015”). SI 2020 No. 757 amended the Town and Country Planning (Use Classes) Order 1987 (SI 1987 No. 764 (“the UCO 1987”) by introducing 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. The statutory instruments were the subject of the negative resolution procedure in Parliament. Motions to annul SI 2020 No. 755 and SI 2020 No. 756 were debated and rejected in Parliament on 30 September 2020.
On Thursday 27 August 2020, over 5 weeks after the statutory instruments had been laid before Parliament, and 1 to 2 working days before they were due to come into force, the claimant issued its claim for judicial review together with an application for urgent interim relief in the form of a stay on the statutory instruments coming into effect. On the following day the application for urgent relief was refused by Holgate J and the applications for an interim stay and for permission were adjourned to an oral hearing on 8 September 2020. The parties were invited to consider whether the matter should instead proceed as an expedited rolled-up hearing. They agreed that that would be preferable and so on 2 September the Court ordered a rolled-up hearing to take place by 15 October 2020. The claimant withdrew its application for interim relief.
In summary this claim raises the following issues for the Court to determine:-
(i) Whether each of the statutory instruments constituted a plan or programme which ought to have been the subject of an environmental assessment before being made, pursuant to the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No. 1633) (“the 2004 Regulations”);
(ii) Whether in making SI 2020 No. 755 and SI 2020 No. 756 the defendant failed to comply with the public sector equality duty (“PSED”) contained in section 149 of the Equality Act 2010;
(iii) Whether the defendant acted unlawfully as he (a) did not comply with requirements for lawful consultation by failing “conscientiously to consider” the responses submitted on the planning reforms proposed, (b) failed to take into account advice from the Government's own experts before making SI 2020 No. 755 and SI 2020 No. 756, (c) failed to act consistently by consulting on proposals relating to phone masts but not consulting on the statutory instruments at issue in the present case and (d) failed to undertake a further consultation exercise in relation to SI 2020 No 756.
It is important to emphasise at the outset what this case is and is not about. Judicial review is the means of ensuring that public bodies act within the limits of their legal powers and in accordance with the relevant procedures and legal principles governing the exercise of their decision-making functions. The role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. The choices may be matters of legitimate public debate, but they are not matters for the court to determine. The Court is only concerned with the legal issues raised by the claimant as to whether the defendant has acted unlawfully. The claimant contends that the changes made by the SIs are radical and have been the subject of controversy. But it is not the role of the court to assess the underlying merits of the proposals. Similarly, criticism has been made of the way in which, or the speed with which, these changes were made. Again, these are not matters for the court to determine save and in so far as they involve questions concerning whether or not the appropriate legal procedures for making the changes were followed.
The Background
The Claimant
The claimant is a non-governmental campaigning organisation incorporated as a limited company in January 2019. It is comprised of campaigners, lawyers, planners, scientists and others who seek to persuade the Government and other public bodies to pursue particular action in relation to climate change and other environmental issues.
Permitted Development Rights
The GPDO 2015 grants planning permission for defined Classes of development. These are referred to as permitted development rights (“PD rights”). Where a development is granted planning permission by reason of a PD right, there is no necessity for a developer to apply for a separate grant of planning permission from a local planning authority (“ LPA”).
In 2013 the predecessor order to the GPDO 2015 was amended so as to permit the use of an office building to be changed to a use as dwelling houses. This right is now found in the GPDO 2015 as Class O in Part 3 of Schedule 2. It is accompanied by other PD rights which allow buildings used for storage or distribution, light industry, or agriculture to be used as dwelling houses (Classes P, PA and Q respectively). These rights are subject to a condition that before development may be begun a developer must apply to the planning authority for a determination as to whether a “prior approval” is required on a defined and limited range of planning considerations. One of the Government's objectives in introducing these PD rights was to increase the supply of housing.
In May 2018 the Royal Institution of Chartered Surveyors published a report on the effects of the PD right allowing the use of office buildings to change to dwelling houses. It criticised the quality of the accommodation being provided under Class O, the sustainability of some of the locations and the inability of local authorities to secure a contribution to the provision of affordable housing. It suggested that the legislation should require planning permission to be obtained for this type of change of use.
On 30 January 2020 the Building Better, Building Beautiful Commission (“the Commission”), a body established to advise the Government on tackling poor quality design, published its final report “Living with Beauty” which made similar criticisms. The defendant received a copy of the report on 9 January and spoke at its launch on 30 January.
On 21 July 2020 the Ministry of Housing Communities and Local Government (“MHCLG”) published a research paper into the quality of houses delivered through “change of use” PD rights (referred to as “the Clifford report”). That identified a number of concerns, including space standards, adequacy of natural light for occupiers, access to amenity space, the effects of surrounding land uses, and the mix of housing provided. Although the report was not published until July 2020, the defendant had received a summary of the scope of the report, key issues and findings on 10 January 2020 and a final version of the report on 21 April 2020 for him to consider.
The Process Leading to the SIs
In October 2018 MHCLG published a consultation paper entitled “Planning Reform: Supporting the high street and increasing the delivery of new homes.” The consultation period ran between 29 October 2018 and 14 January 2019. The document proposed new PD rights covering such matters as permitting changes of use from retail to residential use, permitting the extension of buildings upwards to create additional homes and the demolition of certain commercial buildings for residential redevelopment. The paper stated that that last proposal would be the subject of a further consultation exercise.
On 1 May 2019 the defendant published the Government's response to the consultation. The document summarised the responses made to each question in the consultation paper and explained how the Government intended to proceed. Question 1.30 of the consultation paper had...
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