R (on the application of Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government – Town and country planning – Environmental assessment – Statutory instrument – Defendant secretary of state making statutory instruments introducing new categories of permitted development and new use class – Claimant campaigning organisation applying for judicial review – Whether “plans or programmes” setting framework for future development consents – Whether environmental assessment required – Claim dismissed
The claimant was a non-governmental campaigning organisation which sought to persuade the government and other public bodies to pursue particular action in relation to climate change and other environmental issues.
The claimant applied for judicial review seeking an order quashing three statutory instruments made by the defendant secretary of state: The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 (SI 2020/755) (permitting development involving the construction of one or two additional storeys above a single dwelling house or above a detached or terraced building used for commercial purposes); The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 (SI 2020/756) (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 (SI 2020/757) (amending the Town and Country Planning (Use Classes) Order 1987 (UCO 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 claimant contended, amongst other things, that each of the statutory instruments in question 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 and article 3(4) of Directive 2001/42/EC; and the defendant had unlawfully failed to carry out an environmental assessment pursuant to the 2004 Regulations.
Held: The claim was dismissed.
(1) A plan or programme was only required to be the subject of an environmental assessment if the plan or programme: (i) was subject to preparation or adoption by an authority at national, regional, or local level, or prepared by an authority for adoption, through a legislative procedure by parliament or government; (ii) was required by legislative, regulatory or administrative provisions; (iii) set the framework for future development consents of projects; and (iv) was likely to have significant environmental effects. It was common ground that the three statutory instruments satisfied the first two criteria. The issues between the parties concerned criteria (iii) and (iv).
(2) A legal measure such as the UCO 1987, which simply defined whether certain changes of use constituted development for the purposes of development control, could not be described as setting a framework for the grant of future development consents. Accordingly, SI 2020/757, amending UCO 1987, was not a plan or programme setting the framework for future development consents within the meaning of article 3(4) of Directive 2001/42 and was not required to be subjected to an environmental assessment: Compagnie d’entreprises CFE SA v Région de Bruxelles-Capitale (Case C-43/18) [2020] Env LR 28 applied.
(3) As regards SI 2020/755 and 756, the essential issue concerned the meaning of the phrase “set the framework for future development consents of projects” having regard to the context and the underlying purpose of Directive 2001/42. Article 3(4) was dealing with the framework for “future development consents” and referred to any measure which established, by defining rules and procedures for scrutiny applicable to the relevant sector, a significant body of criteria and detailed rules for determining how such future development consents would be determined.
The statutory instruments themselves granted planning permission for the carrying out of development falling within the scope of permitted development rights as defined in the order itself. That followed from the wording of section 59(2) of the Town and Country Planning Act 1990 which provided that a development order might “itself grant planning permission for the development specified in the order” and article 3(1) of the Town and Country Planning (General Permitted Development) (England) Order 2015 which provided that “planning permission is granted for the classes of development described”: Keenan v Woking Borough Council [2017] PLSCS 134; [2018] PTSR 697 applied.
Accordingly, the provisions of the two statutory instruments did not set the framework for the grant of future development consents. They were the measure by which planning permission for defined developments was granted. It was a condition of certain planning permissions granted by the two statutory instruments that specified matters had to be the subject of prior approval before the development might be begun. But those provisions did not set out a significant body of criteria or rules by which the application for prior approval of those matters was to be determined. Rather, they delimited the scope of the powers which the planning authority might exercise at that stage. The provisions did not themselves set criteria or rules for determining, or constraining, how those discretionary powers were to be exercised within those limits. Nor did they have the effect of repealing or modifying a pre-existing plan or programme which had been the subject of an environmental assessment, such as a development plan: Inter-Environnement Bruxelles ASBL v Région de Bruxelles-Capitale (Case C-567/10) [2012] Env LR 30 and Thybaut v Région Wallonne (Case C-160/17) [2019] Env LR 8 distinguished.
(4) The grant of a permitted development right, whether or not subject to prior approval, did not fall within the scope of the Directive and the 2004 Regulations because it was said to involve a derogation from development plan polices. SI 2020/755 and 756 granted planning permissions as permitted development rights. The fact that they made it unnecessary to make an application to a local planning authority for a grant of planning permission, with the consequence that an authority which might otherwise have had to deal with that application did not consider the application of development plan policies, did not convert them into a framework for future development consents. Accordingly, none of the statutory instruments were plans or programmes within article 3(4) of the Directive and there was no requirement to subject them to an environmental assessment.
Paul Brown QC and Alex Shattock (instructed by Leigh Day) appeared for the claimant; Rupert Warren QC and Anjoli Foster (instructed by the Government Legal Department) appeared for the defendant.
Eileen O’Grady, barrister
