Changes to Use Classes Order upheld by Court of Appeal

14 Jan 2022

New permitted development rights and changes to the use class system remains good law after the Court of Appeal concluded in December 2021 to uphold a decision of the High Court to dismiss a claim for judicial review brought by the Rights: Community Action group.
 
The claim concerned two Statutory Instruments which came into force on 31 August 2020 amending the Town and Country Planning (Use Classes) Order 1987 and introducing controversial new permitted development rights.
 
The changes to the Use Classes Order were significant.  Most notably they removed a number of existing Use Classes and introduced a new Use Class E, amalgamating commercial, business and service use.  The effect is that changes of use within the same class are effectively removed from planning control  - no planning application or permitted development rights are required to move within the same use class and the only means of restriction would be an existing planning condition or s106 agreement.
 
The enhanced permitted development rights under attack include allowing, without the need to seek full planning permission, the construction of one or two additional storeys above a single dwelling-house, or above a detached or terraced building used for commercial purposes; and the demolition of blocks of flats and certain commercial buildings and their rebuild for residential use.
 
In the High Court, Rights: Community Action had unsuccessfully argued that the Secretary of State had:
  • failed to carry out an environmental assessment
  • failed to have due regard to the Public Sector Equality Duty
  • failed to consider the weight of the evidence against the amendments
Although the Court of Appeal allowed permission to appeal on the first of these grounds, it has ultimately upheld the High Court’s decision.
 
The Court of Appeal was careful to distance itself from any underlying motivations behind the regime change:
 
“As a court, it is not for us to visit any of the political, social or economic judgments that have motivated the reform of the planning system by these three statutory instruments. We must not be drawn into that territory. Our task is only to consider the legal questions before us.”  
 
The result is that the new Use Classes remain good law and the permitted development rights can still be relied upon. Developers can press on with this in mind.
 
Local planning authorities will be mindful of these aspects when granting new planning permissions and may seek to restrict both permitted uses and permitted development rights by condition.  Local planning authorities may also be considering progressing Article 4 Directions to restrict these permitted development rights, however changes to the National Planning Policy Framework seek to make this more difficult.

If you have any questions regarding permitted development rights, contact one of the experts in our planning team.
 

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