In Rights: Community: Action v Secretary of State for Housing, Communities and Local Government [2020] EWHC 3073 (Admin); [2020] PLSCS 208, the High Court confirmed that three statutory instruments did not constitute a plan or programme which required an environmental assessment prior to being made.
On 20 July 2020, three statutory instruments were made which amended the Town and Country Planning (General Permitted Development) (England) Order 2015 and the Town and Country Planning (Use Classes) Order 1987.
The amendments to the GPDO introduced a permitted development right for the construction of one or two storeys above a single dwellinghouse or above a detached building used for commercial purposes, and permitted the demolition of a block of flats or certain commercial buildings and rebuilding for residential use.
The amendment to the Use Classes Order introduced a new commercial, business and service Use Class E, with the effect that changes of use within that class are removed from development control.
The claimant brought the claim on the grounds that the statutory instruments should have been made the subject of an environmental assessment pursuant to the Environmental Assessment of Plans and Programmes Regulations 2004; the defendant failed to comply with the public sector equality duty; and the defendant failed to take account of material considerations, inconsistency and departure from a promise to consult.
The EA Regulations state that an environmental assessment should be carried out during the preparation of certain plans and programmes where:
a) The plan is subject to preparation or adoption by an authority, or is prepared by an authority for adoption through a legislative procedure by parliament or government;
b) The plan is required by legislative, regulatory or administrative provisions;
c) The plan sets the framework for future development consents of projects; and
d) The plan is likely to have significant environmental effects.
The court held that the GPDO amendments do not set a framework for future development consents; they grant planning permission for certain development and provide for certain matters to be approved by the planning authority first.
The court confirmed that the Use Classes Order simply defines whether certain changes of use constitute development, and therefore the amendment cannot be described as setting a framework for the grant of future development consents.
The amendments therefore did not constitute a plan or programme where an environmental assessment should be carried out during its preparation. The claim for judicial review was dismissed as all three grounds of challenge were unsuccessful.
This case confirms that environmental assessments are only required to be carried out when all four criteria for the definition of “plans and programmes” are met. The case also confirmed that the court is not responsible for making political, social or economic choices, as these choices are entrusted by parliament to ministers and other public bodies, and are not matters for which the court should assess the underlying merits.
Megan Forbes is a solicitor in the planning team at Irwin Mitchell
