Friday, 20 December 2013

Offices to homes – judgment in the High Court

Rather sooner than some of us had expected, Mr Justice Collins gave judgment this morning in the challenge brought by Islington and three other London boroughs against De-CLoG’s handling of the consultation process leading to changes to Part 3 of the General Permitted Development Order being made on 9 May, which came into effect on 30 May.

The result, however, was unsurprising. The claim was dismissed.

In a comparatively brief judgment, Collins J focused solely on the consultation process itself. He pointed out that the consultation letter informed its recipients that in order to achieve an exemption they must demonstrate clearly by reference to supporting evidence that an adverse economic impact would be likely to result from the new right to change the use of offices to residential use as permitted development. They must show clearly how that evidence supported their submissions. The level of adverse impact required was high. It must have been obvious that exemptions were not likely to be granted unless a very convincing case was submitted, supported by evidence shown to be reliable and seen to support the application.

It was made clear in the 24 January 2013 letter that it was for any council seeking exemption to establish its case and to decide on the material it should present and the manner in which it should be presented. That the threshold was to be set at a high level was equally made clear.

It followed that, having regard to the context, his lordship was not persuaded that there was unfairness in either of the ways argued by the claimants. He could understand the concerns which led to these claims and it may well be that in parts of the claimant boroughs the benefits which it is believed will accrue from the amendment to the GPDO will not be felt in those areas. His lordship agreed that the lack of any requirement for affordable housing is worrying. However, those were not matters which could lead to the grant of relief on the claimed basis of unfairness in the process for seeking exemptions.

Clearly, this was enough in itself to defeat the councils’ claim, and so the learned judge presumably felt it unnecessary to discuss any other issues. In my view, the availability of Article 4 directions to address the problems the councils had identified would in any event have militated against the court’s granting the relief the councils sought. Admittedly any Article 4 directions might be vulnerable to the Secretary of State’s power to cancel them, and would give rise to claims for compensation, but I would still see the power to make Article 4 directions as an effective ‘remedy’ as an alternative to the exemptions sought by these four councils.

As I noted on the day of the hearing, the scope of this challenge to the GPDO amendment was very limited (no doubt on legal advice), and did not seek to impugn the actual legislative amendment to the GPDO. So the battleground will now shift to the actual interpretation of the new rules, and in particular the considerations that councils are permitted in law to take into account in assessing the impacts of a proposed change of use from offices to residential. The battle lines have already been drawn, not least by a decision of Camden LBC to which I recently drew attention.


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