Use Class E: lawfulness upheld but uncertainty remains
The High Court has rejected the legal challenge to the 2020 Use Classes Order amendments as well as two sets of amendment to the General Permitted Development Order. On 17 November 2020 the High Court considered the substantive issues alongside the question of whether to grant permission to bring judicial review proceedings in respect of the three orders, and rejected all of the grounds. However, this does not end the uncertainty about these changes.
The High Court ruled that many of the grounds of challenge were unarguable which, in a case like this, means that there is no further opportunity to appeal the Court’s decision on that ground. However, for all three orders the court accepted that it was arguable that the Secretary of State unlawfully failed to carry out an environmental assessment pursuant to the Strategic Environmental Assessment Directive and the 2004 Regulations. Also, the Court accepted that it was arguable that the Secretary of State was required to re-consult before introducing Class ZA. There was a legitimate expectation of re-consultation on the proposal for a permitted development (PD) right allowing the demolition and rebuild of commercial properties and residential blocks. This arose from an express and unequivocal promise to re-consult made in the original consultation document. Despite this, on considering the merits of these arguments the Court still turned down the challenge.
The challenger, a group calling itself Rights Community Action, has said it intends to seek permission to appeal the decision, which it can do on the environmental assessment and re-consultation points. For the use classes order changes, this will simply be on the basis that the order did not undergo a strategic environmental assessment. If the appeal proceeds it is likely to be several months before the lawfulness of the new use class E ‘Commercial, business and services’ is finally determined.
Where does that leave developers and occupiers needing clarity on permitted uses that would fall in class E? They can steer round it in their own contractual arrangements by setting out clearly what uses will be allowed but that doesn’t help where changing use would require planning permission without class E. While the risks of class E being overturned are now lower the ongoing uncertainty is likely to cause those promoting projects which rely on the new rights to think twice – and developers should at least evaluate the potential consequences of what would be the situation if the new use class were overturned and they were then reliant on the local planning authority to give them approval.