In the midst of a news cycle the government will otherwise want to forget, the Court of Appeal handed down its long anticipated decision in the challenge to the changes to the Use Classes Order (“UCO”) and the Permitted Development Rights (“PDR”) regime. In short, the decision will be a relief for government and good news for a property industry navigating its way through tumultuous times. The changes to the UCO and the PDR regime were found to have been made lawfully, remain intact and, notably, Class E is here to stay.
Background
The background to this appeal is set out in our blogs of 3 September 2020 and 17 November 2020.
The changes made
The changes to the UCO represented a complete overhaul of the system, with the star of the show being the introduction of a broad new commercial, business and service use class (Class E). This new use class incorporates and consolidates the previous shops (A1), financial and professional services (A2), restaurants and cafes (A3) and offices (B1) classes, as well as bringing within it gyms, nurseries and health centres. In the absence of conditions or obligations to the contrary, the changes made it possible to change use within Class E without the need for planning permission.
The reforms to PDR introduced (in certain circumstances) the ability to extend buildings upwards and to demolish and rebuild vacant buildings for new homes. It’s not open season, though, as both new PDRs are subject to an extensive list of exclusions and limitations.
Almost as soon as they came into force, though, the changes became the subject of a legal challenge brought by a non-governmental campaign organisation concerned with tackling the climate emergency. The group’s challenge sought to quash the statutory instruments which introduced the changes.
The appeal
The original claim had three grounds, all of which the High Court rejected in late 2020. The action group bringing the claim lodged an appeal, which was heard on 5 October 2021. The sole ground of appeal – and the question the Court of Appeal had to consider – was whether it was lawful for the Secretary of State to reform planning legislation – by making statutory instruments to adjust permitted development rights and to remove certain changes of use from the scope of development control – without carrying out a strategic environmental assessment.
The Court of Appeal’s answer in its decision of 20 December 2021 was that the Secretary of State did not act unlawfully and that the appeal was dismissed – leaving the changes to the UCO and the PDR regime intact.
What next?
With the dust continuing to settle on the decision of the Court of Appeal, the group bringing the claim hasn’t yet given any indication as to whether it intends to appeal the decision to the Supreme Court. In that context, those dealing with use clauses in leases may wish to see whether any further appeal is lodged before they commit to referencing the new use classes. However, the Court of Appeal's decision is another important step towards having certainty on this critical point.
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