Friday 4 September 2020
Legal challenge to GPDO and UCO changes moves forward
The High Court (Holgate J), has directed that this action (on which I reported on 27 August) will be heard in a “rolled-up” hearing in the first half of October. This means that the Court will deal with both the application for leave to proceed and with the substantive claim at the same time. This is a procedure that is sometimes adopted in cases of urgency.
I did wonder whether this case might be thought to be of sufficient importance to be heard by a Divisional Court, rather than by a single judge, and this is indeed what has been decided. One advantage of this (for both sides) is that if the case is decided by a strongly constituted Divisional Court, the losing side may possibly be able to appeal under the ‘leap-frog’ provision direct to the Supreme Court, without first having to pursue an appeal through the Court of Appeal.
The claimant also sought confirmation from the Court that this case would be governed by the Aarhus Convention (which limits the costs that can be awarded against a losing claimant in an environmental case), and the Court has confirmed that this case will be covered by the convention.
In view of the early substantive hearing of this case, the claimant has decided not to pursue its original application for interim relief, but at the hearing it will simply seek the final relief which has been claimed.
In the meantime, the offending SIs have been ‘prayed against’ in parliament (which is parliamentary language for having the matter debated). This will at least give opposition parties a chance to voice their concerns about this radical new subordinate legislation, although the government’s substantial majority will ensure that these political objections will be brushed aside.
The legal challenge to the legislation is far more serious, and the grounds on which this challenge is based raise important legal issues, especially in relation to the failure to carry out a Strategic Environmental Assessment. The alleged failure to take proper account of the responses to consultation, or to consider the government’s own specialist advice, also raises a serious Wednesbury issue.
I am sure that I am not the only lawyer who is salivating at the prospect of a juicy legal battle in October.
UPDATE: The case was heard by a two-judge Dvisonal Court last week, and (as is usual in such cases) judgment was reserved. I am not aware of any estimate as to how soon judgment may be exepected.
© MARTIN H GOODALL
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Hi Martin
ReplyDeleteSo a week ago MHCLG announce more PD changes forthcoming to require adherence to space standards.
https://www.gov.uk/government/news/permitted-development-homes-to-meet-space-standards
But a week later still no sign of draft legislation to enact this
And with the court case listed for October 15 (I believe)the claimant's appear unmoved:
https://www.housingtoday.co.uk/news/legal-challenge-of-pd-expansion-continues-despite-space-standards-u-turn/5108277.article
Despite the widespread concern that has been expressed over ‘rabbit hutches’ and the absence of any space standards (even when the issue of natural light was addressed by recent amendments to the GPDO, when we might reasonably have expected the living space / amenity issue to be addressed at the same time), the government appears belatedly to have realised that they must also address this important issue. As to when they might get around to this, your guess is as good as mine (but don’t hold your breath).
DeleteThere are past Statutory Instruments that might equally have been challenged in the same way. Some of the case might rely upon case law disallowing developers implementing PDR at the time of the new dwelling being built and not available until after occupation of first owner. Would you lease identify this particular case law.
ReplyDeleteOff-hand, I can’t recall any relevant judicial authority on this point, but it has long been my view (which I believe is shared by Planning Inspectors, as evidenced by appeal decisions) that the PD rights under Part 1 of the Second Schedule to the GPDO cannot arise until a “dwellinghouse” actually exists.
ReplyDeleteWhilst actual residential occupation may not be essential for this purpose, the dwelling would at least have to have been substantially completed (as per the House of Lords decision in Sage), or to put it another way, it would have to be capable of being described as a dwellinghouse (as per Gravesham).
The GPDO contains no express provision in this regard, but it is simply a question of interpreting the ordinary meaning of the word “dwellinghouse” in the context of this legislation.