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

The Divisional Court dismissed the claimant's judicial review challenge to three statutory instruments: SI 2020 No. 755 and SI 2020 No. 756 (amendments to the GPDO 2015) and SI 2020 No. 757 (amendment to the UCO 1987). The court held that none of the instruments constituted a "plan or programme" which "sets the framework for future development consents" within the meaning of Article 3(4) of Directive 2001/42/EC as transposed by the Environmental Assessment of Plans and Programmes Regulations 2004, and therefore no strategic environmental assessment under those Regulations was required. The court also rejected the claimant's public sector equality duty challenge in respect of SI 2020 Nos. 755 and 756, finding that equality impact assessments had been carried out and the minister had due regard to them. Finally, the court held that the Secretary of State lawfully declined to re‑consult before making Class ZA (SI 2020 No. 756), the departure from an earlier promise to consult being supported by the urgent economic circumstances caused by the COVID‑19 pandemic and proportionate in the circumstances.

The claimant, a campaigning organisation, sought to quash three statutory instruments which introduced expanded permitted development rights for additional storeys and for demolition and rebuild of certain commercial or residential blocks (SI 2020 Nos. 755 and 756) and which reorganised use classes (SI 2020 No. 757). The claim was brought by way of judicial review and raised three principal issues:

• Whether each SI was a "plan or programme" requiring strategic environmental assessment under the Directive 2001/42/EC and the Environmental Assessment of Plans and Programmes Regulations 2004;
• Whether the Secretary of State failed to discharge the public sector equality duty in section 149 of the Equality Act 2010 when making SI 2020 Nos. 755 and 756; and
• Whether the Secretary of State unlawfully failed to take into account consultation responses and expert reports, acted inconsistently compared with other reform proposals, or breached a legitimate expectation to reconsult in relation to Class ZA (the demolition/rebuild right).

The court analysed the statutory framework governing permitted development rights, including the Town and Country Planning Act 1990, the GPDO 2015 and the prior approval mechanism, and the scope and purpose of the SEA Directive and the 2004 Regulations. It concluded that the GPDO and the challenged instruments themselves grant planning permission for defined classes of development rather than "setting the framework for future development consents" by establishing a significant body of criteria and rules for future consenting decisions. Consequently the instruments fell outside Article 3(4) of the Directive and regulation 5(4) of the 2004 Regulations, so no separate environmental assessment was required. On equality, the court found that equality impact assessments had been prepared, the minister was made aware of them and the decision‑making material showed that the public sector equality duty had been considered in substance. On consultation and legitimate expectation, the court held that the Government had conscientiously considered the earlier consultation responses and expert reports, and, while there was an express statement that further consultation would be undertaken in relation to the demolition/rebuild proposal, the Secretary of State demonstrated good and proportionate reasons (principally urgent economic considerations arising from the pandemic) for departing from that promise. The claim was therefore dismissed.

The claim is dismissed. The court held (i) the statutory instruments are not "plans or programmes" that set a framework for future development consents within the meaning of the SEA Directive/regulations 2004 and so no environmental assessment under those Regulations was required; (ii) the Secretary of State complied with the public sector equality duty in relation to SI 2020 Nos. 755 and 756; and (iii) the decision to proceed without a further consultation in relation to the demolition/rebuild PD right (Class ZA) was lawful and proportionate in the exceptional economic circumstances arising from the COVID‑19 pandemic.