Judicial review of the changes to the Use Classes Order and permitted development rights set for 14-15 October 2020

Date published

08/10/2020

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This article was co-authored by Tom Higgins, Trainee Solicitor, Manchester office.

Update (30 October 2020): Judgment of the RCA Judicial Review heard on 14 October is awaited and we will provide an update once judgment has been handed down.

The recent changes to the Use Classes Order 1987 and Permitted Development rights regime covered in our previous article, although now in force, have been met with a legal challenge by the Rights: Community: Action group (RCA).

Who are the RCA?

The RCA is a coalition of campaigners, lawyers, planners, facilitators, writers and scientists, united by a shared commitment to tackle the climate emergency. On 26 August 2020, RCA issued a crowd funded judicial review claim, requesting that the new statutory instruments be quashed and sought urgent interim relief to suspend the changes pending the outcome of the claim.

On 2 September 2020 Sir Justice Holgate issued a response to the legal challenge which ordered that the interim relief application be withdrawn and a rolled up hearing be heard, which is now scheduled on 14-15 October 2020. The hearing will consider if permission for judicial review is to be granted and if so, the court will then determine this straightaway.

What is judicial review?

A judicial review is an examination by the court, of public body decisions to ensure that they act lawfully and fairly. There are strict time limits to bring a claim, and in particular, the time limit for claims relating to planning acts is up to six weeks after the grounds to make the claim arose.

Nature of the RCA claim

RCA brought their claim on the following three grounds:

  • The government unlawfully failed to conduct a Strategic Environmental Assessment pursuant to the SEA Directive (EU Directive 2001/42/EC) and the Environmental Assessment of Plans and Programmes Regulations 2004.
  • An equality impact assessment was not carried out pursuant to s149 Equalities Act 2010.
  • There was a failure to take account of consultation responses and other material considerations, based on the following:
    a) a failure to meticulously consider consultee responses
    b) a failure to take into account the government’s own expert advice and
    c) the Secretary of State adopting an approach that was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed reforms.

The RCA have stated, in terms of the timing of the reforms, that:

The rules were laid before parliament on the last day of the parliamentary term, and they were due to come into effect the day before Parliament returns so there has been no proper scrutiny of them by our elected body. But nor have they been subject to the proper processes of assessment and public consultation that should accompany such radical legislation.

Comment

The new legislation remains in force. As such, care should be taken not to place reliance on the new measures until the court has handed down its judgement. With regard to new lettings, whether acting for a landlord or tenant, we would therefore advise that reference to the Use Classes be to the classes as they applied before 31 August 2020, namely before the introduction of the reforms.

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