Government’s planning reforms withstand legal challenge

On 21 July 2020, the Government laid before Parliament a number of regulations (“the Regulations”) designed to reform current planning laws. The Regulations, which came in to force on 1 September and (amongst other things) altered existing permitted development rights, amended the Town and Country Planning (Use Classes) Order 1987 and Town and Country Planning (General Permitted Development)(England) Order 2015.

Legal Challenge

The legal challenge came from Rights: Community: Action Limited (“RCA”), a group of climate change activists. RCA argued that Parliament had been unable to properly scrutinise the environmental and social impact of the Regulations as they were only laid before Parliament the day prior to the summer recess. This was particularly problematic, RCA argued, because the Regulations were designed to bring about ‘radical reform’. It was also argued that the Government had used the coronavirus pandemic as cover for introducing the reforms – reforms that would have ramifications far beyond the current health crisis.

RCA relied on three specific grounds for challenging the Regulations.

1. The Government failed to undertake the necessary environmental assessment under EU Directive 2001/42/EC and the Environmental Assessment of Plans and Programmes Regulations 2004.
2. The Government failed to undertake an appropriate “equality impact” assessment, breaching its public sector equality duty under section 149of the Equality Act
3. The Government did not properly consider the evidence against the Regulations, which included advice by the Government’s own experts.

The Decision

The High Court found in the Government’s favour and stressed the court’s judicial – as opposed to political – role. It was not for judges to interfere because of perceived economic or social wrongs brought about by a particular government’s planning policy. Judges could only quash regulations that were unlawful.

Commenting directly on RCA’s specific grounds, the High Court judged that:

1. The Government was not required to undertake an environmental assessment because the Regulations did not set a ‘framework for future development consents’.
2. The RCA had ‘no real prospect’ of proving that the Government had failed to give due consideration to its section 149 public sector equality duty.
3. Any purported failure to consider evidence against the Regulations should be understood in the context of the Government’s pandemic response.

Conclusion

With the Government successfully defending RCA’s legal challenge, the Regulations will continue to govern all planning applications. RCA stated an intention to appeal shortly after the High Court’s decision was announced, but for now the planning reforms will remain in force. Nonetheless, it remains important to seek expert legal advice before embarking on any future planning application.