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Legal challenge to the government’s “radical” planning reforms

On 27 August 2020, campaign group, Rights: Community: Action Limited issued an application for judicial review to challenge the Government’s reforms to the:

  • Town and Country Planning (Use Classes) Order 1987; and
  • Town and Country Planning (General Permitted Development) (England) Order 2015.

Regulations bringing these changes into force were laid before parliament on 21 July 2020 and came into force on 1 September 2020.

These changes (combined with those other proposals in the recently released planning white paper), have been described as “the most radical reforms to our planning system since the Second World War.”

The current legal challenge has been brought by a consortium of objectors described in the court papers as “campaigners, lawyers, planners, facilitators, writers and scientists, united by a shared commitment to tackle the Climate Emergency.”

The challenge is proceeding on three grounds and states in making these changes the Secretary of State for MHCLG (SoS);

  1. has failed to carry out an environmental assessment as required under EU Directive 2001/42/EC and the Environmental Assessment of Plans and Programmes Regulations 2004;
  2. did not have regard to the public sector equality duty (an appropriate equality impact assessment was not undertaken); and
  3. failed to consider the weight of the evidence against the reforms including consultation and advice of its own experts.

Ground 3 comprises additional sub-grounds:

  1. failure of the SoS to consider the responses to the consultation on proposed planning reforms from 29 October 2018 to January 2019;
  2. failure to take into consideration the advice of experts reports such as the findings of the Building Better, Building Beautiful Commission’s “Living with Beauty” Report and the findings of the SoS’s own commissioned expert report “Research into the quality standard of homes delivered through change of use Permitted Development rights”;
  3. an “unfair, inconsistent and/or irrational approach…” has been taken by the SoS in the context of the approach taken to similar proposed permitted development reforms: namely those relating to the deployment of 5G wireless masts;
  4. there was a legitimate expectation that re-consultation would take place on the proposal for a permitted development right allowing the demolition and rebuilding of commercial properties.

The hearing of the judicial review application has been set for 8 October 2020 and is likely to last several days.

If successful, this may potentially cause major delays to the government’s planning reform programme. In addition, as the new regulations are already in place, any successful challenge will have implications for those developers and landowners that have already relied upon the changes made. We will provide a further briefing note once the outcome of the challenge is known.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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