R. (on the application of Rights: Community: Action) v Secretary of State for Housing and Local Government

The Court of Appeal held that the three statutory instruments made on 20 July 2020 (S.I. 2020/755, S.I. 2020/756 and S.I. 2020/757) did not require a strategic environmental assessment under Directive 2001/42/EC (the SEA Directive) and the Environmental Assessment of Plans and Programmes Regulations 2004 because they did not "set the framework for future development consent of projects" within article 3(4) of the SEA Directive. The court emphasised that those instruments operate as grants of planning permission (under the GPDO and the Use Classes Order) and that where a prior approval procedure exists it forms part of that grant rather than creating a separate framework of criteria governing future consents.

The court applied established domestic and CJEU authorities (including Thybaut, Compagnie d’entreprises CFE SA and Buckinghamshire County Council) to construe the phrase "sets the framework for future development consent" narrowly in accordance with the statute: a qualifying plan or programme establishes a coherent body of criteria and rules to guide future decision‑making, which the challenged instruments did not do. The Divisional Court’s dismissal of the judicial review claim was therefore upheld.

Background and parties. Rights: Community: Action, a campaigning organisation concerned with environmental and climate issues, sought judicial review of three statutory instruments made on 20 July 2020: S.I. 2020/755 and S.I. 2020/756 (amending the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO)) and S.I. 2020/757 (amending the Town and Country Planning (Use Classes) Order 1987). The applicant alleged that each instrument should have been screened for, or subjected to, a strategic environmental assessment under the SEA Directive and the SEA regulations.

Nature of the claim and relief sought. The claimant sought permission to challenge the making of the statutory instruments on the ground that the Secretary of State acted unlawfully by not carrying out a screening decision and, where required, an environmental assessment under the SEA regime.

Procedural history. The claim was dismissed by the Divisional Court (Lewis L.J. and Holgate J.) ([2020] EWHC 3073 (Admin)). Permission to appeal to a three-judge Court of Appeal was granted; the Court of Appeal heard the appeal and (while granting permission) dismissed it.

Issues framed. The sole issue on appeal was whether the Divisional Court erred in concluding that the statutory instruments did not "set the framework for future development consent of projects" within article 3(4) of the SEA Directive and therefore did not fall within the Directive’s scope.

Court’s reasoning. The court analysed the SEA Directive and its domestic transposition, noting established principles from CJEU and domestic case law that the concept of "plans and programmes which set the framework for future development consent" concerns measures that establish, by defining rules and procedures, a significant body of criteria and detailed rules governing the grant and implementation of future consents. Applying that approach, the court concluded that the challenged instruments functioned as statutory grants of planning permission under the GPDO and as definitional changes under the Use Classes Order. Prior approval procedures contained in the GPDO operate as conditions within those grants rather than as a separate framework of criteria applicable to future consents. The court contrasted the instruments with measures that modify development plans or create a framework for future consents (for example, Thybaut) and held they did not modify existing plans or set a new framework that would trigger the SEA regime.

Subsidiary findings and context. The court rejected arguments that the instruments effectively amended the planning framework by removing the need to apply for permission in many cases or by shifting decision-making away from local planning authorities; such consequences did not amount to the type of plan or modification to a plan that article 3(4) targets. The court reiterated that the SEA regime must be interpreted purposively but within the clear wording of its scope.

Appeal dismissed. The Court of Appeal agreed with the Divisional Court that the statutory instruments were not "plans or programmes" within article 3(4) of the SEA Directive because they operate as statutory grants of planning permission (with prior approval procedures forming part of those grants) rather than establishing a framework of criteria and rules for future development consents; accordingly no SEA or screening under the SEA regulations was required before making them.

Divisional Court (Lewis L.J. and Holgate J.) dismissed the claimant's judicial review challenge to S.I. 2020/755, S.I. 2020/756 and S.I. 2020/757 ([2020] EWHC 3073 (Admin)). Permission to appeal to the Court of Appeal was granted and the appeal was heard and dismissed by the Court of Appeal ([2021] EWCA Civ 1954).