Will an environmental group win its legal bid to reverse the Government’s new flexible change of use and residential development rights?

12 October 2020

An ongoing court hearing may have consequences for anyone who has or is planning to, change the use of their commercial premises or extend their house or build new dwellings on top of existing buildings on the back of Government regulation changes. Commercial property solicitor Ben Cox looks at the case in more detail and its potential ramifications

The background

Those within the sector will be aware that, on September 1, 2020 The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (the New Regulations) came into force. They brought additional flexibility to change the use of commercial premises. Understandably these changes were welcomed by many owners and occupiers. I examined them in more detail in a previous blog: https://www.wilkinchapman.co.uk/firmNews/new-planning-rules-designed-to-help-our-town-centres-bounce-back.

In summary, the ‘New Regulations’ permit changes of use to and from shops, restaurants, cafés, retail and offices without planning permission, because those uses now fall within a single new ‘Use Class E’.

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) were also introduced. These, in certain circumstances, allow extensions to existing dwellings, the construction of new dwellings on top of residential, commercial and mixed-use buildings and the demolition of some non-residential buildings and their replacement with dwellings.

The challenge:

These changes have been met with a legal challenge by the environmental campaign group Rights:Community:Action Ltd, which issued an application for judicial review challenging the validity of the changes. The court hearing started Thursday October 8 and is due to run until October 15.

The argument:

The campaign group argues that the Government did not carry out the correct procedures when introducing the New Regulations and the 2020 GPD Orders, including that it 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 to conscientiously consider the responses to the consultation on these planning reforms (which ran October 2018 to January 2019) and failed to properly debate the reforms (the proposed regulations were put before Parliament on the day before the summer recess, and came into force on the day that Parliament returned).

What happens after the court’s decision?

The court’s decision on the judicial review challenge will be of great importance to building owners and occupiers who have already changed the use of their commercial space or intend to do so shortly. It will also be of concern to those who have carried out or wish to undertake residential building work permitted by the 2020 GPD Orders.

If the court rejects the challenge then, subject to any rights of appeal, the flexibility afforded by the new planning rules will continue for the benefit of owners and occupiers. No breaches of planning control would have occurred by those owners and occupiers who have already changed the use of their premises pursuant to the new planning regime or taken advantage of the additional residential development rights granted by the 2020 GPD Orders.

If, on the other hand, the court quashes the new rules, a period of uncertainty begins.

Any changes of use within new Class E or building works permitted by the 2020 GPD Orders, which would have required planning permission under the old rules, may potentially be in breach of planning control. The risk is that, if the court declares the new rules void, then the effect would be as if they had never been brought into effect at all.

If the new planning rules are quashed, it is possible that the Secretary of State could seek to make the same changes again, after going through any procedural requirements that were not properly dealt with the first time around.

Keeping you updated:

I will be sure to provide an update once the court has made its decision. In the meantime, owners and occupiers wanting to change use reliant on the ‘New Regulations’ or carry out work relying on the 2020 GPD Orders, should take expert advice as to whether the court action could affect their proposals and whether to delay the change of use or the building work until things become clear. Those who have already relied on the ‘New Regulations’ and the 2020 GPD Orders should also watch out for the result of the court case and get advice.

If you require any further advice, just ask Ben Cox on 01522 515985, email ben.cox@wilkinchapman.co.uk or Andrew Harbourne on 01522 515591, email andrew.harbourne@wilkinchapman.co.uk

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