Town and country planning – Environmental assessment – Statutory instrument – Respondent secretary of state making statutory instruments introducing new categories of permitted development and new use class – Appellant campaigning organisation applying for judicial review – Divisional Court dismissing application – Appellant appealing – Whether “plans or programmes” setting framework for future development consents – Whether environmental assessment required – Appeal dismissed
The appellant was a non-governmental campaigning organisation in relation to climate change and other environmental issues. It applied for judicial review seeking an order quashing three statutory instruments made by the respondent secretary of state: The Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order 2020 (permitting development involving the construction of one or two additional storeys above a single dwelling house or above a detached or terraced commercial building); The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 (permitting the demolition of a block of flats or certain commercial buildings and rebuilding for residential use); and The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (amending the Town and Country Planning (Use Classes) Order 1987 by introducing a new commercial, business and service use class, with the effect that changes of use of buildings or land within that class were removed from development control).
The appellant contended, amongst other things, that each of the statutory instruments was a “plan or programme” setting the framework for future development consent of projects, under regulation 5(4) of the Environmental Assessment of Plans and Programmes Regulations 2004 (SEA Regulations) and article 3(4) of Directive 2001/42/EC (SEA Directive); and the respondent had unlawfully failed to carry out an environmental assessment. The Divisional Court dismissed the application: [2020] EWHC 3073 (Admin); [2021] EGLR 2.
The appellant appealed contending that the court erred in concluding that an environmental assessment was not required because the statutory instruments did not set the framework, or modify an existing framework, for future development consent of projects.
Held: The appeal was dismissed.
(1) The expression “sets the framework for future development consent of projects”, which defined the scope of the SEA Directive, was precise. There was no indication in the relevant decisions of the Court of Justice of the European Union, or of the domestic courts, that such statutory measures could properly be regarded as a plan or programme setting a framework for future development consent of projects, typically, a new development plan, or the amendment of an extant plan, which had itself been the subject of environmental assessment.
Acknowledging that statutory measures such as these did not come within article 3(4) was to recognise that the regime was not unbounded. The limits were drawn by the provisions of the SEA Directive and the SEA Regulations. The fact that measures of a different kind would fall within them, perhaps with less significant implications for the environment, did not mean that the legislation for strategic environmental assessment had to be read more liberally than its drafting allowed, even if the consequences for the planning system were extensive.
(2) A qualifying plan or programme had to be a measure whose effect was to establish a significant body of criteria and detailed rules for the grant and implementation of consents for the development of land, by setting out a significant body of criteria for determining how future development consents would be determined. A defining characteristic was that the measure in question established a coherent framework comprising such criteria or rules, which were then to be applied by decision-makers when considering individual development projects in a process for the granting or refusal of consent.
Such a plan or programme was a measure whose preparation and promulgation were separate from the granting of development consent itself, which was a distinct and different process.
(3) A statutory process by which development consent was actually granted for a project of development was not to be equated to a framework for future development consent of projects. The process of granting development consent was inherent in the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) which contained the planning permission for each of the permitted development rights it provided. It put in place the restrictions imposed on that planning permission by way of exceptions, limitations and conditions and set the procedure for applications for prior approval which delimited the discretionary powers exercisable by an authority in dealing with an application for prior approval made under the relevant condition. Prior approval was one element of the development consent for the project. The grant of planning permission and the prior approval together composed that development consent. Nothing else was needed in the future to complete it.
(4) The Divisional Court had not misdirected itself by applying too narrow a construction to the expression “future development consent of projects” in the context of strategic environmental assessment. It recognised the place of prior approval within that process, under a condition attached to the grant of planning permission, as a necessary component of the same development consent issued under the GPDO, rather than a separate and subsequent development consent. It knew that the developer’s ability to implement the planning permission remained latent until such approval was granted.
The Divisional Court had not viewed the scope of the SEA Directive and the SEA Regulations too narrowly. The court was aware that it had to read the relevant provisions broadly, giving effect to the underlying objective of providing for a high level of protection of the environment. But it was also aware of the need to avoid a reading of the legislation that would rob the words used in article 3 of their intended meaning. Its understanding of the relevant provisions was accurate.
The statutory instruments did not modify any existing plan or alter the policies in any plan, or remove any part of a plan, or bear upon any plan-making process. The redefinition of changes of use constituting “development” did not amount to a modification to any plan; nor did it promote, enable or allow any such modification. Neither did the grant of new “permitted development” rights in the GPDO, whether or not subject to prior approval.
Therefore, none of the statutory instruments, either in character or content, were a plan or programme within article 3(4) of the SEA Directive, and the respondent did not err in law in making them without undertaking an environmental assessment or carrying out a screening procedure.
Paul Brown QC and Alex Shattock (instructed by Leigh Day) appeared for the appellant; Rupert Warren QC and Anjoli Foster (instructed by the Treasury Solicitor) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government