Green Action Group Loses It's Legal Challenge, but Pledges to Appeal

25 November 2020

The High Court has dismissed a challenge by Rights:Community:Action Ltd against the Government’s easing of planning regulations, designed to help town centres ‘bounce back’.

In rejecting the environmental group’s legal action, the High Court highlighted the severe impact of Covid-19 on the nation’s urban retail and commercial areas, and how ‘urgent action’ is required.

The news will be welcomed by property owners, but the fight may not be over with an appeal in the offing, says Commercial Property solicitor Ben Cox.

The Background:

Those who have followed this case with interest, will be aware of the Government’s desire to relax legislation governing the use of commercial spaces and premises. In doing so, as is well reported, it hopes to make it easier for property owners to explore alternative and viable uses, which in turn, will help to reinvigorate our urban areas and town centres.

It has achieved the above with its amendments to the 1987 Use Classes Order and permitted development rights, which were introduced on September 1, 2020.

There Were Two Areas of Major Amendment:

  • Allowing changes of use between shops, restaurants, cafés, retail, and offices without the need for planning permission. Such businesses are all within a single new ‘Use Class E’ within the 2020 The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (the New Regulations).
  • Relaxing previous rules governing the construction of extensions and the building of new dwellings above certain residential, commercial, and mixed-use buildings along with the demolition of some flats or commercial buildings, and their replacement with dwellings. (The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 and the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 (the 2020 GPD Orders).

For more details on the above, please see my past blog: https://www.wilkinchapman.co.uk/firmNews/new-planning-rules-designed-to-help-our-town-centres-bounce-back

The Challenge:

The changes were met with a challenge by the social enterprise company Rights:Community:Action Ltd with its members applying for a judicial review against the validity of the changes, on the basis that the government had failed to:

  1. Carry out an environmental assessment;
  2. Have regard to the public sector equality duty; and
  3. Consider the weight of evidence against the reforms, including an alleged failure conscientiously to consider responses to its consultation on these reforms when they were at the proposal stage, and a failure properly to debate the reforms in Parliament.

For more detail, see my earlier blog on the challenge: https://www.wilkinchapman.co.uk/blog/will-environmental-group-rightscommunityaction-win-its-legal-bid-to-reverse-the-governments-new-flexible-change-of-use-and-residential-development-rights

The court hearing took place on October 14 and 15, with the judgment handed down remotely by the High Court on November 17.

The Ruling:

The judicial review claim was dismissed and as a result the New Regulations and the 2020 GPD Orders remain in force – unless an appeal is successful.

The High Court held that neither the New Regulations nor the 2020 GPD Orders required an environmental assessment pursuant to European law, there was no realistic basis on which the Government had failed to have due regard to matters concerning the public sector equality duty, and the departure from the promise to consult on the proposals in respect of the 2020 GPD Orders was lawful.

In reaching its decision, the Court gave consideration to the severe effects of the Covid-19 pandemic and the need for urgent economic action to minimise those effects. As the pandemic generated an economic emergency, the Government sought to intervene. Part of its intervening action involved the grant of the 2020 GPD Orders to encourage developers to start developments, and so help alleviate the economic effects arising out of the pandemic. The Court said that was a proportionate course of action in the circumstances.

Rights:Community:Action Ltd intends to appeal the decision. I will provide a further update if the appeal is successful.

Is that it?

The Court’s decision will be gratefully welcomed by building owners and occupiers who have already changed the use of their commercial space or intend to do so imminently.

However, until Rights:Community:Action’s appeal is heard or their request for leave to appeal is rejected, there is still no certainty as to the ultimate outcome.

Advice

If you are unsure what the Court’s decision means for you, or you intend to develop your commercial or residential properties in accordance with the new planning regime, you should seek expert advice. Our Commercial Property team is always available to assist; you can contact Ben Cox on 01522 515985 / 07970 689848 or email ben.cox@wilkinchapman.co.uk, or Andrew Harbourne on 01522 515591 / 07967 7768966 or email andrew.harbourne@wilkinchapman.co.uk.


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