Thursday 27 August 2020
GPDO and UCO amendments under challenge
I am grateful to a correspondent for drawing to my attention an application for Judicial Review in respect of the recent amendments to both the General Permitted Development Order and the Use Classes Order. Solicitors acting for “Rights: Community: Action Ltd” [Keystone Law are not acting in this case] sent a letter before action to the Secretary of State on 21 August notifying him of the legal grounds of a proposed challenge to this subordinate legislation. If these Statutory Instruments are not withdrawn or suspended, the Claimant will challenge their lawfulness and will seek a declaration that the SIs are unlawful, and an order quashing them.
As someone who is strongly pro-European, I was pleased to see that one of the principal grounds of challenge is the government’s failure to comply with “the Strategic Environmental Assessment Directive” and the Environmental Assessment of Plans and Programmes Regulations 2004. The second ground of challenge is the government’s failure to comply with section 149 of the Equality Act 2010, which created “the public sector equality duty”. The potential claim is based, thirdly, on the government’s failure to take account of consultation responses and other material considerations, both by failing conscientiously to consider consultee responses and by failing to take into account the government’s own expert advice. Thus, it is alleged, in closing his mind to the issues raised regarding these proposed reforms, the Secretary of State adopted an approach which was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed reforms.
In their letter before action, the claimant’s solicitors require the Secretary of State to suspend the coming into effect of the SIs, pending the required SEA, impact assessments and Parliamentary debate. If he does not, the Claimant proposes to seek an urgent interim order suspending the operation of the SIs until the legal challenge is resolved.
I am led to understand that an application for leave, settled by leading and junior counsel in Landmark Chambers, has now been lodged in the High Court. At this stage, I am making no prediction as to whether permission to proceed will be granted by the High Court; and I certainly would not attempt to forecast the ultimate outcome of this litigation in the event that the claimant obtains the leave of the Court. I shall nevertheless follow the progress of the action with great interest.
© MARTIN H GOODALL
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I have been wondering about S.149 in particular and look forward to seeing how this pans out. Thank you for reporting.
ReplyDeleteUnder section 149 of the 2010 Act, a public authority must, in the exercise of its functions, have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act, advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it and foster good relations between persons who share a relevant protected characteristic and persons who do not share it. The relevant protected characteristics are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
DeleteThis point may not be the strongest ground of the challenge, and I would suggest that the need for strategic environmental assessment is a more important issue. The third ground also seems to raise an eminently arguable point, namely the apparent failure to take account of consultation responses and other material considerations, and to take into account the government’s own expert advice. This last ground of challenge raises a classic issue of Wednesbury unreasonableness.
The SEA point seems particularly strong in relation to e.g. the 'not unlikely' impact of the UCO changes which effectively negate 30 years of spatial planning for town centres and town centre uses in one fell swoop. One would have hoped lessons would have been learned from the quashing of the WMS on AH in 2015 (West Berkshire District Council and Reading Borough Council v SS) and the quashing of the fracking para from the revised NPPF in 2019 (Stephenson v SS)...
ReplyDeleteInterestingly, I think CLG did undertake EqIA for the AH WMS in 2014/15 so there could be a consistency issue as well in regards to this.
It will be interesting to see how this pans out. What happens in the meantime if a well meaning member of the public undertakes work that falls to be permitted development under the Statutory Instruments, but which are then found to be unlawful after the building works have taken place? Would the works be lawful or not in the long run?
ReplyDeleteDevelopment lawfully carried out under PD rights that are later repealed remain lawful. I would suggest that the same would apply to development carried out in reliance on PD rights granted by these SIs; i.e. it would remain lawful, if carried out before the quashing of those SIs. An SI that is subsequently found to have been unlawfully made is voidable (and so is liable to be quashed), but is not void ab initio.
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