Gary Grant: The Divisional Court Rejects RCA Challenge To Radical New PD Rights

Gary A Grant of Kings Chambers summarises the judgment of Lord Justice Lewis and Mr Justice Holgate in R (Rights ; Community : Action) v SSHCLG [2020] EWHC 3073 (Admin) handed down on 17^th November 2020.

1. This claim raised 3 grounds:-

• Should the SI’s introducing the new PD rights have been the subject of environmental assessment pursuant to the Environmental Assessment of Plans and Programmes Regulations? ( “the 2004 regs”);
• Had the Defendant failed to discharge the public sector equality duty (“PSED”);
• Had the Defendant failed to conduct a lawful consultation exercise in (a) not conscientiously considering the responses of the reforms; (b) failure to take account advice of the government’s own experts; (c) failure to act in a manner consistent with the consultation on phone masts and (d) failure to undertake a consultation exercise on SI 2020 no. 756 having resiled from an early representation that there would be a further consultation on the proposal to grant PD rights to demolish certain commercial buildings or residential blocks and rebuild for residential use.

2. This judgment provides a very useful summary of the legal architecture which confers PD rights, examines the status of such rights and the relationship of the grant of permission under a development order with an express individual grant of planning permission upon application. Limitations on such rights are explored and explained as is the now well-established pattern for their creation and proper application. The relationship of PD rights with the use classes order is examined prior to providing a summary of the new rights introduced by the 3 statutory instruments (SI’s) under challenge. In this respect the first 15 pages of the judgment will help us all as a useful navigational aid to a patchwork of provisions.

3. In dealing with ground 1 the judgment sets the claim with a four-point test to show how Directive 2001/42/EC and the 2004 Regulations were required to be complied with. It was common ground that there had been no assessment under the 2004 regs. At §79 the threads of the statutory framework are distilled to 4 requirements all of which were required to be satisfied for the 2004 regulations to apply to the 3 SI. The judgment analyses why the SI’s have been clearly prepared and adopted by a national authority (criterion (1)) and were required in the sense of being regulated by the provisions of the TCPA 1990 and accordingly met criterion (2). Unlike the first two, the final criterion  was disputed, but the Court found little difficulty in arriving at the view that if the SI’s were plans or programmes then the potential environmental effects of those plans would need to be environmentally assessed at that plan level (as distinct from individual project level) and that making or publication of a screening decision would have been required from the Defendant. Thus, criterion (4) was met which required that the plan must be likely to have significant environmental effects.         

4. Ground 1 floundered and failed only on criterion 3. This required that “ The plan or programme must set the framework for future development consents or projects “. At §89 the judgment summarily dismissed the notion that categorising certain changes of use as constituting development can ever be described as setting a framework for the grant of future development consents. This meant that SI 2020 no.757 did not meet criterion 3.

5. The remainder of the judgment explores the point more carefully in relation to the remaining 2 SI’s. The crux of the judgment is at §95-96 and finds that the SI’s do not meet criterion 3 because the SI’s themselves grant permission for carrying out of development falling within the scope of PD rights as so defined by the order.

6. The most difficult point under this ground is the judgment’s rejection of an argument that the PD rights set out a significant body of criteria or rules for determining how the authority should exercise the powers of control given to it. It is put this way at §96:-

“ Whether the development consent is seen as the planning permission granted by the GPDO 2015, or a combination of that planning permission, and the prior approval of specified matters before the development may begin, the two statutory instruments do not set the framework for future development consents. “

7. In explaining why specifying that certain matters must be subject to prior approval does not meet criterion (3) the Court relies on a distinction between “delimiting the scope of powers which the planning authority may exercise at that stage” and “setting criteria or rules”. It is not entirely clear in my view why both cannot be achieved. However, the Court plainly did not see the specification of those matters as sufficient in that they “do not themselves set criteria or rules for determining, or constraining, how those discretionary powers are to be exercised”. This does beg the question of when does identifying issues to be addressed become a framework? The conclusion to be drawn from this judgment is that there is a need for more than identifying the scope of considerations by explanation of how those considerations should be addressed. Thus, the Court noted that the NPPF does pass this criterion [ §93].

8. The judgment rejected the challenge in respect of the Public Section Equality Duty (“PSED”) under ground 2. In this respect, the judgment is guided by the view that the “duty is a duty to have due regard to the specified matters, not a duty to achieve a specified result” [§113]. Under this ground various analytical routes are provided in the judgment to show that there was no  evidential basis for the allegation that the Defendant failed to have due regard to the specified matters in section 149 of the 2010 Act.

9. The third ground was an amalgamation of concerns which the court did not find convincing. Of the four sub-elements the judgment found that only the failure to honour the express promise that a further consultation exercise on the subject matter of SI 2020 no. 756 ( the grant of PD rights for the demolition of commercial buildings or purpose-built blocks of flats and rebuilding for residential purposes) to be arguable. The Court accepted that there was a procedural legitimate expectation and approached the case on the basis that it was “ for the defendant to establish good reason for a departure and for the court to determine if those reasons are proportionate , and assuming that there is some different and higher threshold for departure in cases involving procedural legitimate expectations, without deciding whether or not that is the correct approach”[§136].

10. The Court accepted that there were good reasons for departing from the promise arising from the need to respond to the economic emergency arising from the coronavirus pandemic (§137). This prompted a decision in favour of urgent action rather than further consultation. Moreover, it was accepted that resiling from the promise was also proportionate in such circumstances (§138).

11. Finally, the judgment is of interest for another reason. At a time when judicial review is under the spotlight §6 seems to send a message back from the courts. Judicial review is concerned with legality not the making of “political, social, or economic choices”.

G A Grant

Kings Chambers

Manchester-Birmingham-Leeds