The Midas Touch of an Acceptable Planning Permission - Reynolds Report

“Is that a multi-storey residential dwelling where your barn used to be?” 

Every commercial property lawyer is fascinated by the alchemy performed by land promoters and planning specialists.  The Midas touch of an acceptable planning permission transforms even the muddiest agricultural field into a pile of gold for the owner – or so the legend goes….

In a more limited way permitted development rights (“PDRs”) under the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596) (“the GPDO 2015”) have for some time added useful flexibility to the otherwise strict constraints of planning regulation in England.

This month the Reynolds Report looks at the decision of the High Court in R (Rights: Community Action) v Secretary of State for Housing, Communities and Local Government 2020 WL 06731841 and asks whether it does indeed, as critics say, pave the way for the appearance of tower blocks in the countryside of the Thames Valley and beyond…..

GPDO 2015 provides for a list of changes of use of buildings and land and works on that land which come within the statutory definition of “development” to be permitted (hence ‘permitted development’ – “PD”) without the need for formal planning permission from the local planning authority (“LPA”).  The Claimant’s application for judicial review in this instance sought the quashing of certain statutory instruments, recently introduced, modifying and extending those permitted development rights.  The statutory instruments in question were:

  1. SI 2020/755: The Town and Country Planning (General Permitted Development) (England) (Amendment) (Number 2) Order 2020 – designating the construction of one or two additional storeys above a single dwelling house or above a detached or terraced building used for commercial purposes as permitted development;
  2. SI 2020/756:  The Town and Country Planning (General Permitted Development) (England) (Amendment) (Number 3) Order 2020 – providing that the demolition of a block of flats or certain commercial buildings and their re-building for residential use would be permitted development; and
  3. SI 2020/757: The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 – introducing a new commercial, business and service use class, class E (changes of use of buildings or land within a given use class are removed from LPA development control).

(together “the Orders”)

(For unknown reasons the Claimant’s application ignored SI 2020/632 – The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 – which had already created permitted development rights in relation to the construction of new dwelling houses on top of detached blocks of flats.)

All of the above were introduced under the “Negative Resolution Procedure” under which a statutory instrument becomes law on the date on which a Minister signs it and remains law unless a motion to repeal is passed.

The Orders were signed by the Secretary of State on 20 July 2020 and first put before Parliament on 21 July 2020 – coming into force on 31 August 2020.  (Incidentally on 30 September 2020, motions to repeal SI 2020/755 and SI 2020/756 were debated by Parliament and rejected.)

On 27 August 2020 the Claimant issued a claim for judicial review of the decision to make the Orders and for urgent interim relief which would stay their coming into force.  On 28 August the claim for urgent relief was refused and the issue of permission for judicial review was adjourned to hearing on 8 September 2020.

On 2 September 2020 an order was made for an expedited “rolled-up hearing” (i.e. a single hearing at which the issue of whether or not permission for judicial review is to be given and the outcome of the review is decided on the same date).  This hearing took place on 15 October 2020.

The Claimant challenged the Secretary of State’s decision to issue the Orders on the following grounds:

  1. The Secretary of State unlawfully failed to carry out a proper assessment of the environmental impact of the Orders as required by both UK and EU legislation (“Ground 1”);
  2. With respect to SI 2020/755 and SI 2020/756, the Secretary of State failed to have due regard to his Public Sector Equality Duty (“PSED”) under the Equality Act 2010 in terms of evaluating the effects of the Orders (“Ground 2”); and
  3. In relation to all of the Orders, the Secretary of State failed to consider the weight of evidence against the reforms proposed and acted with unlawful inconsistency and in breach of an express promise to re-consult (“Ground 3”).

(It needs to be remembered here that – as summarised by Lewis LJ and Holgate J in their judgment – the role of judicial review is not for the Court to make political, social or economic choices, to determine whether or not an administrative act is ‘right’ or ‘fair,’ but, rather, to ensure that public bodies act within the limits of their legal powers and in accordance with the procedures governing the exercise of their decision-making functions.)

The background to the Orders sits deep in the continuously rumbling process ongoing within the bowels of Westminster seeking to balance:

  1. The Government’s desire to deliver impressive numbers by way of fulfilment of housing targets; and
  2. The desire of various campaigning groups (and of the public more widely) to ensure that any new dwellings are built to an appropriate standard and with due regard to the rights and needs of the disadvantaged and the protection of the environment.

In this respect we have all been made aware of the lobbying power of big business (including large construction groups) but the counterbalancing power of various action groups should not, in this context, be underestimated.  The judgment when given (see below) runs through a lengthy series of judicial review cases on similar matters brought on the application of such groups.

The immediate stimulus for the making of the Orders however was the strong fall in construction activity levels during the initial phase of the Covid 19 crisis and the Government’s resultant concern that both delivery of new dwellings and economic activity in the construction sector would remain far below acceptable levels for some time.

In April 2020 it is estimated that activity levels in the home building sector fell by 40.2% compared to the previous month.  Levels were still down by 11% in July 2020 when compared to February 2020.

The judgment goes through the Claimant’s grounds for challenging the Secretary of State’s decision in order and, for each ground, considers each Order against that ground.

Reading the judgment one cannot help but be impressed by the sheer number of cases previously decided relating to similar issues and, even more so, by the subtlety of the mind of a High Court judge.  For example Lewis LJ and Holgate J decide, at one point, that the Orders do not set a framework for the grant of future development consents but are, rather, the measure by which planning permission for defined developments will now be granted.  (The less learned among us may find the distinction somewhat difficult to grasp.)

In any event the Judges reached a range of decisions on the various grounds:

  1. In relation to Ground 1: permission to apply for judicial review was granted but it was determined that the ground does not succeed;
  2. In relation to Ground 2: permission to even apply for judicial review was refused as the ground was found to be “unarguable”;
  3. Ground 3 was divided into four sub-grounds (a), (b), (c) and (d) and differing decisions were reached on the different elements:
  4. In relation to sub-grounds (a), (b) and (c), permission to apply for judicial review was refused as the ground was found to be not arguable;
  5. In relation to sub-ground (d), permission to apply was granted but the application was found to have failed.

In conclusion, then, none of the Claimant’s applications were found to succeed and the Orders were upheld as lawful.

Do we need then to be concerned about a building free-for-all with neighbours converting their dwellings into multi-storey apartment blocks?

This might be felt to be something of an exaggeration.

Article 3(1) of GPDO 2015 (which provides that planning permission is granted for the various classes of development as Permitted Development – see above) is subject to Regulations 75 and 78 of the Conservation of Habitats and Species Regulations 2017 (SI 2017/1012) so that if a development would be likely to have significant effect on a European Conservation Site it cannot be begun unless the Local Planning Authority concludes that it would not adversely affect the integrity of that site.  There are also further limitations in Article 3(1) and Article 3(2) making any permission granted by Article 3(1) subject to “any relevant exception, limitation or condition specified in Schedule Two.”

Article 4 GPDO 2015 allows the LPA to make a direction that a permitted development right shall not apply within a specified area or to a particular development.  There are also further restrictions relating to:

  1. areas designated as conservation areas;
  2. areas of outstanding natural beauty;
  3. areas specified by the Secretary of State for the enhancement and protection of the natural beauty and amenity of the countryside; etc.

On balance, then, it may be difficult to justify fears that the above decision will lead to a building free-for-all.  In any event it is understood that the Claimant is seeking permission to appeal the decision.

Further Reading:

The impacts of COVID19 on the property market

Self-Isolation Employment Rules

Thinking about buying your first home? Have you considered this?

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Our Property and Commercial Department is headed by Martin Reynolds an experienced commercial solicitor with a background in commercial dispute resolution and insolvency law. To contact Martin and his team; call 0118 958 9711 or email [email protected].

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