R (Rights: Community: Action) v Secretary of State for Housing, Communities And Local Government

Statutory instruments granting permitted development rights do not necessarily constitute plans or programmes requiring strategic environmental assessment. The relevant question is whether they set a framework for future development consents by establishing a significant body of criteria or detailed rules governing those consents. Instruments which themselves grant planning permission, while reserving limited matters for prior approval, do not satisfy that test where the prior-approval provisions merely delimit the planning authority’s powers.

A public authority’s equality duty is substantive and fact-sensitive. It requires due regard to the statutory equality aims, but does not require a particular outcome. A clear promise of consultation may be lawfully withdrawn where there are good and proportionate reasons, including urgent economic circumstances.

The claimant sought judicial review of three statutory instruments introducing new permitted development rights and amending the Use Classes Order. The instruments permitted additional storeys, demolition and residential redevelopment of specified buildings, and broader commercial, business and service uses.

The claim alleged failure to undertake environmental assessment under the Environmental Assessment of Plans and Programmes Regulations 2004, breach of the public sector equality duty under the Equality Act 2010, failure to consider consultation responses and expert reports, unlawful inconsistency concerning consultation on 5G development, and breach of a promise to undertake further consultation before introducing the demolition and redevelopment right.

Claim dismissed. Permission was granted on the environmental-assessment ground and on the legitimate-expectation ground, but both failed on their merits. Permission was refused on the equality and consultation grounds which were unarguable.

1. Environmental assessment. Article 3(4) of the Directive 2001/42/EC and regulation 5(4) of the Environmental Assessment of Plans and Programmes Regulations 2004 require a plan or programme to set the framework for future development consents. That means establishing a significant body of criteria and detailed rules governing the grant and implementation of those consents. The interpretation must be broad enough to advance environmental protection, but cannot disregard the statutory wording which limits the Directive’s scope.
2. The Use Classes Order merely defines the boundaries of development control. It does not establish a framework for future development consents. The new permitted development rights likewise granted planning permission themselves under article 3(1) of the GPDO. Prior-approval provisions imposed conditions and delimited the planning authority’s powers, but did not establish criteria governing how those powers were to be exercised. The court distinguished the reasoning in Murrell v Secretary of State for Communities and Local Government [2011] 1 P & CR 6 and applied Keenan v Woking Borough Council [2018] PTSR 697.
3. Equality duty. The equality assessments considered the potential effects on protected groups, including the elderly and disabled, and the minister was expressly directed to the duty. The duty required due regard, not achievement of a particular result. There was no realistic basis for alleging non-compliance with section 149 of the Equality Act 2010.
4. Consultation and legitimate expectation. The consultation responses and expert reports had been summarised or supplied to the minister. Consulting on 5G proposals did not make consultation on these materially different proposals legally obligatory. Although the earlier consultation created a legitimate expectation of further consultation on the demolition and redevelopment proposal, the coronavirus pandemic, economic emergency and need to stimulate regeneration supplied good and proportionate reasons for departing from that promise.

The judgment records that the claim was issued with an urgent application for interim relief. The application for an urgent stay was refused, and the matter proceeded as an expedited rolled-up hearing. No earlier judgment or appeal is identified.