The planning reforms are here to stay – legal challenge dismissed

On the 17 November 2020 Lord Justice Lewis and Mr Justice Holgate handed down their judgment to the claim brought by the Rights Community Action Group (RCA) that questioned the legality of the new planning reforms introduced in September 2020.

Please see our first article dated 21 August which comments on this issue and sets out the new planning reforms introduced.

Summary of the hearing and the outcome

The RCA’s judicial review claim was based upon three grounds as outlined in our article dated 8 October and summarised below. The court had to essentially determine three questions.

All three grounds were dismissed by the court for the reasons set out below. However, the RCA intend to seek permission to appeal the decision on the basis of their first ground.

The three grounds

The court’s response where it was held

Ground 1

Whether the planning reforms constituted a plan or programme which ought to have been the subject of prior environmental assessment being made.

The reforms fall outside the scope of what is captured by the EU Directive and Regulations (SEA Directive (EU Directive 2001/42/EC) and the Environmental Assessment of Plans and Programmes Regulations 2004). The reforms grant planning permission for certain defined development but do not set a framework for future development consents of which the Directive and Regulations capture.

Ground 2

Whether the Secretary of State failed to comply with the public sector equality duty contained in Section 149 of the Equality Act 2010 in making the reforms.

The RCA had no realistic prospect in establishing that the Secretary of state failed to have due regard to the public sector equality duty. They found that the Secretary of State did have due regard to the public sector equality duty by producing equality impact assessments in relation to each SI (Statutory Instrument) that implemented the reforms.

Ground 3

Whether the Secretary of State failed to "conscientiously to consider" the responses submitted on the planning reforms proposed and failed to take into account advice from the government's own experts.

The Secretary of State had done enough in respect of the two reports published being the Clifford Report and the Building Better, Building Beautiful Commission Report such that he had not failed to “conscientiously consider” the previous responses submitted on the new planning reforms.

Comment

It is clear from the hearing that COVID-19 played a significant part in the speed and manner in which these reforms were introduced. That being said, the court found that all the due legal processes had been followed and the reforms had been implemented correctly. The question as to whether the reforms are good or bad was not for the court to decide, which the judges made clear from the outset.

Following this decision, there is now greater certainty for those wishing to rely on the new planning reforms but if the RCA do intend to appeal the decision made under Ground 1, then we may be waiting some time for this to be heard. The judicial review it seems is far from over for RCA.

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