In the first of a series of blogs on recent and proposed expansions to the Use Classes Order and Permitted Development Rights, Alice Culkin and Jamie McKie reflect on the controversial start to the new Class E.
The amalgamation of various commercial uses into a new Class E last year via the Use Classes Order (UCO) Amendment Regulations was a significant step for planning freedoms and Government freedoms in how it implements policy. The changes to permitted development rights which accompanied it were, in principle, very broad (allowing 1-2 additional storeys above some existing homes and commercial properties or demolition and rebuild to provide new homes).
The scope of the changes attracted a legal challenge in R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2020].
The claimants brought their challenge on a wide range of grounds, including absence of an environmental assessment, alleged breach of the Public Sector Equality Duty (PSED) and the failure to fulfil a legitimate expectation to re-consult on the proposals. The Government had trailed the changes in a 2018 consultation and then promised further consultation in the Planning For the Future White Paper. As Covid-19 struck, it decided to press on without consultation on the detail, having regard to the impact on affordable housing delivery and infrastructure funding by doing so.
The judgment accepted that lack of environmental assessment and absence of consultation were arguable flaws but rejected the Claim on the basis that:
- Environmental assessment was not required, since none of the statutory instruments in question constituted a plan or programme setting the framework for future development consents;
- the PSED had been discharged – the ups and downs were understood.
Despite the legitimate expectation of consultation on the facts – and the high threshold for departing from it – the coronavirus pandemic, and its resulting economic difficulties, was both a good reason for departing from the expectation and proportionate in the circumstances, as the projected increase in development would alleviate the economic effects of the pandemic.
The Claimants sought leave to appeal on the EIA ground but the Court of Appeal has yet to pronounce. As such, there remains an air of uncertainty hanging over the future of Class E. Given that the Judgment was handed down in combination with a Court of Appeal judge, Lord Justice Lewis, the prospects of it being overturned seem remote. It remains to be seen whether the measures will have generated a short term spur to development activity and new homes to adequately offset the impacts on delivery of wider social goods that were an accepted part of the approach.
Against this background, what does seem clear is that any subsequent decision to implement the more recently proposed Class E to residential PDR will be subject to intense scrutiny, particularly the consultation process and the Government’s ultimate response.
Our next blog looks at some of the issues it will need to grapple with to avoid inadvertently sterilising town centre regeneration.
With thanks to Alice Culkin for assistance with this blog.
