High Court challenge to GPDO & UCO fails

The legal challenge by ‘Rights: Community: Action’ to the amendments made to the GPDO and the Use Classes Order was dismissed in a judgment of the Divisional Court this morning.

I haven’t managed to get hold of the judgment itself yet, but I understand that the Court dismissed every ground on which the claimants sought to impugn the Secretary of State’s action in making the Statutory Instruments which were under challenge.

Lewis LJ is quoted as having pointed out in his judgment that the role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. It is not the role of the court to assess the underlying merits of the proposals.

Holgate J is reported to have added that none of the Statutory Instruments in question constituted a plan or programme setting the framework for future development consents, so there was no requirement for strategic environmental assessment.

The Court also held that the claimants had no realistic prospect of establishing that the Secretary of State had failed to take account of the public sector equality duty set out in the Equality Act 2010.

The Court seems to have been persuaded that the current coronavirus crisis does excuse ministers from strict compliance with a promised consultation process. The Court also seems to have accepted that the government’s decision to enlarge PD rights in this way was prompted by a legitimate desire to promote development in the difficult economic circumstances that had been caused by the pandemic.

For all these reasons, the claim for judicial review was therefore dismissed.

The claimants’ solicitors expressed disappointment on behalf of their clients, noting that whilst the judges had recognised the very significant environmental impact that the changes arising from these two Statutory Instruments will have, the Court had reached a conclusion on the technical requirements of the Strategic Environmental Assessment Directive that puts these changes outside the scope of the kind of plans or programmes that require assessments. Their clients were nevertheless firmly of the view that the Directive does apply to these SIs and so they would be seeking permission to appeal that ground.

© MARTIN H GOODALL