Summary
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 A clear promise of consultation may be lawfully withdrawn where there are good and proportionate reasons, including urgent economic circumstances.
Factual background
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.
Held
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.
- 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.
- 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.
- 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.
- 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 court’s approach to earlier authorities
Available to signed-in members.
Appellate history
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.
Appeal route
- This judgment [2020] EWHC 3073 (Admin) High Court (Administrative Court)
- Appealed to[2021] EWCA Civ 1954Outcomepermission to appeal granted; appeal dismissed unanimously
Key cases cited
25 authorities cited.
- The United Policyholders Group and others v The Attorney General of Trinidad and Tobago [2016] UKPC 17
- Hotak v Southwark London Borough Council [2015] UKSC 30
- Walton v The Scottish Ministers (Scotland) [2012] UKSC 44
- Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
- Powell v Dacorum Borough Council [2019] EWCA Civ 23
- Keenan v Woking Borough Council & Anor [2017] EWCA Civ 438
- Stuart Bracking & Ors v Secretary of State for Work and Pensions [2013] EWCA Civ 1345
- Baker & Ors, R (on the application of) v Secretary of State for Communities & Local Government & Ors [2008] EWCA Civ 141
- Friends of the Earth Ltd v Secretary of State for Housing, Communities And Local Government [2019] EWHC 518 (Admin)
- Cala Homes (South) Ltd v Secretary of State for Communities and Local Government & Anor [2010] EWHC 2866 (Admin)
- Compagnie d’Entreprises CFE SA v Region de Bruxelles-Capitale [2020] Env.LR 285
- Terre Wallone ASBL v Region Wallone Case C-321/18
- Associazione “Verdi Ambiente e Societa – APS Onlus (VAS)” v Presidente del Consiglio dei Ministri [2019] Env. L.R. 33
- Thybaut v Région Wallonne Case C-160/17
- Nomarchiaki Aftodioikisi Aitoloakarnanias and others v Ypourgos Perivallantos, Chorotaxias kai Ergon Dimosion and others [2013] Env. L.R. 21
- Inter-Environnement Bruxelles ASBL, Pétitions-Patrimoine ASBL and Atelier de Recherche et d'Action Urbaines ASBL v Région de Bruxelles-Capitale Case C-567/10
- Brussels Hoofstedwlijk Gewest v Vlaams Gewest (The Brussels Airport Co NV intervening) Case C-275/09
- Murrell v Secretary of State for Communities and Local Government [2011] 1 P & CR 6
- R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168
- Rochdale Metropolitan Borough Council v Simmonds (1980) 40 P & CR 432
- Garland v Minister of Housing and Local Government (1968) 20 P & CR 93
- Buckinghamshire County Council
- IEB 2
- Terre Wallone ASBL v Region Wallone Case C-105/09 and C-110/09
- D’Oultremont v Region Wallone Case C-290/15
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Cases citing this case
8 later cases · 6 positive · 2 neutral
Most senior citing decisions:
- Friends Of The Earth Limited v Secretary Of State For Levelling Up, Housing And Communities & Ors [2024] EWHC 2349 (Admin) followed
- Stephen Whiteside, R (on the application of) v London Borough of Croydon [2023] EWHC 3289 (Admin) mentioned
- Andrew Boswell, R (on the application of) v Secretary of State for Transport [2023] EWHC 1710 (Admin) applied
- Together Against Sizewell C Limited, R (on the application of) v Secretary of State for Energy Security and Net Zero [2023] EWHC 1526 (Admin)
- Council of the City of Newcastle upon Tyne v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 2752 (Admin)
- FRIENDS OF THE EARTH LIMITED (R on the application of) & Ors v SECRETARY OF STATE FOR BUSINESS, ENERGY AND INDUSTRIAL STRATEGY [2022] EWHC 1841 (Admin)
- ARTICLE 39 (R on the application of) v SECRETARY OF STATE FOR EDUCATION [2022] EWHC 589 (Admin)
- Finch, R. (on the application of) v Surrey County Council [2020] EWHC 3566 (Admin)
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