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Wed September 23 2020

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Campaigners challenge extension to permitted development rights

28 Aug A new environmental campaign group has launched a legal challenge to the government’s extension of permitted development rights.

An image from the Living With Beauty report that was captioned "Not a positive living environment"
An image from the Living With Beauty report that was captioned "Not a positive living environment"

Rights:Community:Action, set up just this month to save the planet, has engaged campaigning law firm Leigh Day to apply for a judicial review of the use of statutory instruments to bring in the changes to planning laws.

An extension to permitted development rights – building work that can be undertaken without local authority planning approval – comes into force on 31st August 2020. From then, a detached building, used for offices or industry, can be demolished and replaced with flats within the same footprint, but up to two storeys higher, up to a maximum height of 18 metres. New storeys above an existing dwelling-house will be able to be added without planning permission. And change of use for several kinds of building will no longer require planning permission.

Naomi Luhde-Thompson, co-ordinator of Rights: Community: Action, said: “The PM [prime minister] admits that these are the biggest planning reforms since the second world war, yet they’re being rushed through with scant regard for previous consultation and in a period which excludes the input of MPs.

“The reforms were laid before parliament the day before the summer recess [21st July 2020] and come into force on 31st August; that’s the day before parliament reconvenes.  Our aim is to halt them to allow for a proper, reasonable and measured consultation.

“We believe these changes will have a phenomenally negative impact on the people and environment of towns and cities across England. That’s why we feel compelled to act so urgently.”

Represented by Leigh Day, the group has applied for judicial review seeking a declaration that the statutory instruments (SIs) used to bring in the changes are unlawful.

The claim follows a pre-action protocol letter, sent to housing secretary Robert Jenrick.  The letter calls for the suspension of the SIs until a strategic environmental assessment, impact assessments and parliamentary debate can take place.

Rights:Community:Action argues that the failure to carry out an environmental assessment of the SIs is a breach of article 3 of the EU Strategic Environmental Assessment Directive, because the SIs amount to plans or programmes for the purposes of the directive.

It says that the SIs were introduced without an appropriate equality impact assessment, which is a breach of section 149 of the Equality Act 2010.

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The campaigners  accuse Mr Jenrick of taking a blinkered approach to the issue in favour of developers. They claim that he failed to take account of previous consultation responses and the advice of his own experts, which according to established principles, must be ‘conscientiously taken into account’.

 The group’s pre-action protocol letter said: “The highly negative response of consultees was not given the conscientious consideration required. Although the secretary of state may have been aware of the views submitted in response to the consultation, he dismissed them without truly weighing up their merits. In other words, he approached the consultation with a closed mind.”

 It added: “The report of the government’s Building Better, Building Beautiful Commission remarked in its final report that the existing permitted development policy has ‘inadvertently permissioned future slums’.”

Leigh Day solicitor Tom Short, who represents the group, said: “Our client believes that in closing his mind to the issues raised regarding these proposed reforms, the secretary of state adopted an approach which was unfair, inconsistent and irrational.

“Rights:Community:Action believes that there has been a significant breach of the EU Strategic Environmental Assessment Directive, a failure to comply with Public Sector Equality Duty and a disregard for matters raised by previous consultation and for matters that might have been raised by proper parliamentary debate.”

The government’s own Building Better, Building Beautiful Commission’s report, Living With Beauty, said on this issue (pp70-71):

“There is a role for permitted development rights. Not all building work or changes of use necessarily require permission from the local government. However, there is a problem at present with how permitted development rights work in practice and the circumstances in which they are being used. It derives from a general planning permission granted by parliament, rather than from permission granted by the local planning authority. This means that only building regulations apply. And there are reduced ‘betterment payments.’ No contributions towards local social or physical infrastructure via negotiable Section 106 agreements apply. However, community infrastructure levy is not increased to compensate for this and developments may well create costs for local authorities. We have thrown the baby out with the bathwater.

“Do we want to be encouraging people to live within former offices on business parks miles from public transport? Do we think it is going to be politically tenable in two-storey metroland England for individual home-owners to extend their homes upwards by two storeys with no practical way for the impact on their neighbours to be considered? It seems hard to answer ‘yes’ to these questions.”

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