On 17 November 2020, the High Court dismissed the judicial review claim against the Government regarding the introduction of permitted development rights and changes to the Town and Country (Use Classes) Order 1987.
The claim for judicial review was brought by environmental activist group Rights: Community: Action ('RCA') which claimed that three statutory instruments should have been subject to an Environmental Impact Assessment (EIA) before being made.
In addition, they claimed that there was a failure by the Secretary of State for Housing, Communities and Local Government ('SoS') to comply with the public sector equality duty contained in section 149 of the Equality Act 2010 for two of the statutory instruments; and
RCA also claimed that the SoS acted unlawfully by:
- Not complying with requirements for lawful consultation by failing “conscientiously to consider” the responses submitted on the planning reforms proposed;
- Failing to take into account advice from the Government’s own experts before making two of the statutory instruments;
- Failing to act consistently by consulting on proposals relating to phone masts but not consulting on the statutory instruments; and
- Failing to undertake a further consultation exercise in relation to one of the statutory instruments.
The Judgement
Lord Justice Lewis and Mr Justice Holgate dealt with each ground of claim in detail. While they did find that some elements of the grounds were arguable, overall they held that the claim should not proceed beyond the permission stage to the judicial review hearing stage.
Interestingly, the Court noted that their role was not one of 'making political, social or economic choices', but rather only to be concerned with the legal issues raised by the RCA as to whether the SoS had acted unlawfully. This disclaimer of political function may well be a product of the contentious attitude towards the judiciary expounded by tabloids and politicians in the wake of the Supreme Court's decisions on matters such as Brexit and parliamentary sovereignty.
Analysis
It will not come as a surprise that this claim for judicial review failed. Many of the arguments made by the RCA were revealed by the Court to be unarguable, with the SoS succeeding in proving that they had correctly interpreted and followed the requirements of the Equality Act 2010 and Directive 2001/42/EC.
This is positive news for Developers as it means that they can continue to look forward to a deregulated planning framework. This is viewed as creating the flexibility required to effectively respond to a combination of economic stagnation, changing consumer habits and innovations in construction.
This however may not be the end of the matter as the RCA has already signalled its intention to seek permission to appeal the decision.
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