Use Class E - still the future of the High Street?

Happy Tuesday (yes I know it's not Tuesday any longer) but it's here (and it landed on Tuesday morning) - the much awaited case of the last several weeks - R (Rights: Community Action) v SSHCLG [2020] EWHC 3073 (Admin) on the amendments to the Use Classes Order and the GPDO.  You may remember these amendments coming out in July, and into force at the end of August, and my querying then whether they would be the saving grace of the High Street.  It now falls to me to query whether they will also be the saving grace of judicial process.  

In Rights: Community: Action v Secretary of State for Housing, Communities and Local Government [2020] EWHC 3073 (Admin), the High Court confirmed that three statutory instruments did not constitute a plan or programme which required an environmental assessment prior to being made.

On 20 July 2020, three statutory instruments were made which amended the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”) and the Town and Country Planning (Use Classes) Order 1987 (“the Use Classes Order”). 

1. The amendments to the GPDO introduced a permitted development right for the construction of one or two storeys above a single dwellinghouse or above a detached building used for commercial purposes, and permitted the demolition of a block of flats or certain commercial buildings and rebuilding for residential use.
2. The amendment to the Use Classes Order introduced a new commercial, business and service Use Class E with the effect that changes of use within that Class are removed from development control.

This latter change has been viewed by many as one of the bigger changes to Planning in the last decade.  In light of decimation COVID has brought to our High Streets will it provided the flexibility to enable a quick recovery in 2021?  The Claimant brought the claim on the grounds that 

1. the statutory instruments should have been made the subject of an environmental assessment pursuant to the Environmental Assessment of Plans and Programmes Regulations 2004 (“the EA Regulations”), 
2. the defendant failed to comply with the public sector equality duty, and 
3. failed to take account of material considerations, inconsistency, and departure from a promise to consult.

The EA Regulations state that an environmental assessment should be carried out during the preparation of certain plans and programmes where;

• a) The plan is subject to preparation or adoption by an authority, or is prepared by an authority for adoption through a legislative procedure by Parliament or Government
• b) The plan is required by legislative, regulatory or administrative provisions
• c) The plan must set the framework for future development consents of projects; and
• d) The plan must be likely to have significant environmental effects.

The Court held that the GPDO amendments do not set a framework for future development consents; they grant planning permission for certain development and provide for certain matters to be approved by the planning authority first. The Court confirmed that the Use Classes Order simply defines whether certain changes of use constitute development, and therefore the amendment cannot be described as setting a framework for the grant of future development consents. The amendments therefore did not constitute a plan or programme where an environmental assessment should be carried out during its preparation. The claim for judicial review was dismissed as all three grounds of challenge were unsuccessful.

This case confirms that environmental assessments are only required to be carried out when all four criteria for the definition of ‘plans and programmes’ are met. 

What is JR?

Now this may seem a strange heading to bring in as a mini conclusion - but when opening this case up para 6 jumps out at the informed reader.

1. 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 case confirmed that the Court is not responsible for making political, social or economic choices, as these choices are entrusted by Parliament to ministers and other public bodies, and are not matters for which the Court should assess the underlying merits.  In my opinion this case is as important for the stoic reminder of the importance of, and role of, judicial review and the Courts; and the on-going need to keep the Courts free of political influence in light of the ongoing review of judicial review powers as it is for its confirmation that the changes to the GPDO and the Use Classes Order were made lawfully.  

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. ... it is not the role of the court to assess the underlying merits of the proposals. ”