The Queen (on the application of Rights: Community: Action) v The Secretary of State for Housing, Communities and Local Government

A measure sets a framework for future development consent under the strategic environmental assessment regime only where it establishes a coherent and significant body of criteria or rules for later decisions granting or refusing consent. A measure that itself grants development consent does not set such a framework.

Accordingly, statutory provisions granting permitted development rights remain outside the regime even where prior approval is required. Prior approval is an element of the existing development consent, not a free-standing future consent. Legislation redefining which changes of use constitute development is likewise outside the regime.

Nor does legislation modify an existing plan merely because fewer proposals will require planning permission or engage development-plan policies.

The applicant challenged three statutory instruments that expanded permitted development rights and reorganised planning use classes in England. It alleged that the Secretary of State had unlawfully failed to conduct, or screen for, a strategic environmental assessment under Directive 2001/42/EC and the domestic implementing regulations.

The Divisional Court, in [2020] EWHC 3073 (Admin), dismissed the judicial review claim. It held that the instruments did not set, or modify, a framework for future development consent because two instruments themselves granted planning permission and the third determined which changes of use constituted development.

The Court of Appeal granted permission to appeal. The central issue was whether the instruments set, or modified, a framework for future development consent within article 3(4) of the Directive.

1. Permission to appeal granted; appeal dismissed. The three statutory instruments were not plans or programmes setting a framework for future development consent. The Secretary of State therefore acted lawfully in making them without an environmental assessment or screening procedure.

2. A qualifying plan or programme must establish, through rules and procedures for scrutiny, a coherent and significant body of criteria or detailed rules to be applied in later decisions granting or refusing consent for individual projects. Its preparation and promulgation are separate from the future consent process. A plan or programme is not itself the consent for an individual project.

3. The amended Town and Country Planning (Use Classes) Order 1987 merely identified classes of use and thereby determined that certain changes of use were not development and required no planning permission. It created no framework of criteria for deciding whether future consent should be granted.

4. The amended Town and Country Planning (General Permitted Development) (England) Order 2015 itself granted planning permission for the defined classes of development. Its exceptions, limitations, conditions and prior-approval procedures were components of those grants. Prior approval was not a free-standing development consent. The planning permission and any required prior approval together composed the development consent.

5. Even if the prior-approval provisions and their reference to the National Planning Policy Framework could be described as criteria or rules, they were integral to an existing planning permission. They did not guide a separate process for granting future development consent. Thybaut was materially different because the measure there facilitated a future development plan capable of authorising derogations from existing planning rules.

6. The instruments did not modify existing development plans. They neither altered plan policies nor removed any part of a plan or affected plan-making. The fact that fewer proposals would require planning permission, and consequently fewer decisions would engage development-plan policies, did not transform the instruments into modifications of plans or programmes.

7. The Directive's environmental purpose required a broad and purposive interpretation, but that interpretation had to respect the language delimiting its scope. The potentially extensive environmental consequences of the reforms could not justify extending article 3(4) beyond its wording.

Coulson and Birss L.JJ. agreed with the judgment of the Senior President of Tribunals.

1. Court of Appeal (Civil Division): Permission to appeal was granted, but the appeal was dismissed. The court upheld the conclusion that no strategic environmental assessment or screening procedure was required: [2021] EWCA Civ 1954.

2. High Court, Divisional Court: Lewis L.J. and Holgate J. dismissed the claim for judicial review of the three statutory instruments: [2020] EWHC 3073 (Admin).