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Campaign group seek to appeal judgment on changes to planning law

Campaign group will seek permission to appeal a High Court decision handed down today which turned down the group's application for judicial review of the sweeping changes to planning laws introduced by the Government

Posted on 17 November 2020

Today two judges dismissed RCA’s legal challenge to the Statutory Instruments (SIs) used to bring in the changes. It means that the changes introduced by the Secretary of State for Housing, Robert Jenrick, will go forward, despite the detrimental environmental impact that RCA says they will have:

  • A detached building, used for offices or industry, can be demolished and replaced with flats within the same footprint, but up to two storeys higher, up to a maximum height of 18 metres
  • New storeys above an existing dwelling-house will be able to be added without planning permission (permitted development)
  • Change of use for several kinds of building will no longer require planning permission.

RCA argued in the High Court that the way the radical changes to planning law in England were made was unlawful. RCA’s case included that:

  • The failure to carry out an environmental assessment of the SIs, is a breach of Article 3 of the EU Strategic Environmental Assessment Directive, because the SIs amount to plans or programmes for the purposes of the Directive (Ground 1)

On this, the court held that that the SIs grant planning permission for certain defined development but do not set a framework for future development consents.

  • The SIs were introduced without an appropriate equality impact assessment, which is a failure to comply with a Public Sector Equality Duty under Section 149 of the Equality Act 2010 (Ground 2).

This ground was refused permission on the basis that the Secretary of State had due regard to the public sector equality duty by, among other things, producing equality impact assessments in relation to each SI.

  • Mr Jenrick has failed to take account of previous consultation responses and the advice of his own experts, which according to established principles, must be “conscientiously taken into account” and had breached a legitimate expectation that he would reconsult on the reforms (Ground 3).

On this, the court held that the Secretary of State had done enough in respect of the Clifford Report and the Building Better, Building Beautiful Commission Report such that he had not failed to “conscientiously consider” those reports.
Naomi Luhde-Thompson for Rights: Community: Action, said:
“The PM wants to tear down the existing planning system, and these reforms have been rushed through with scant regard for consultation and in a period which excluded the input of MPs, using the pandemic as an excuse.
“We believe these changes will have a phenomenally negative impact on the people and environment of towns and cities across England. That is why we are seeking permission to appeal.”
Leigh Day solicitor Tom Short, who represents the group, said:
“Our client is disappointed that the Court has turned down its application for judicial review. Although the court recognised the very significant environment impact that these changes will have, it has reached a conclusion on the technical requirements of the Strategic Environmental Assessment Directive that puts these changes outside the scope of the kind of plans or programmes that require assessments. Our client is firmly of the view that the Directive does apply to these SIs and will seek permission to appeal that ground.”

Tom Short
Climate change Corporate accountability Environment Human rights Judicial review Planning Wildlife

Tom Short

Tom Short is a senior associate solicitor in the human rights department.

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