Case Summary: R (oao Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 1954

The Claimant, Rights: Community: Action, is a campaigning organisation which sought to quash three statutory instruments (“the SIs”) made by the Secretary of State for Housing, Communities and Local Government in July 2020. The SIs adjusted “permitted development” rights and removed certain changes of use from the scope of development control. 

The question for the Court of Appeal to determine was essentially this: whether the SIs were plans or programmes which set the framework for the future development consent of projects, such that they should have been subject to strategic environmental assessment (“SEA”). 

The Statutory Instruments under Challenge

Two of the SIs amended the Town and Country Planning (General Permitted Development) Order 2015 (“the GPDO”). In summary, the effects of the SIs were as follows: 

(a)    The first SI (SI 2020 No. 755) added five classes into Schedule 2 of the GPDO which allowed for the construction of additional storeys to dwelling houses. 
(b)    The second SI (SI 2020 No. 756) inserted a new class into Schedule 2 enabling the demolition of certain types of building and the construction of new dwelling houses in their place. 

The SIs required prior approval to be obtained from the relevant local planning authority (“LPA”) before development could commence for the new forms of permitted development. 

The third SI under challenge (SI 2020 No. 757) amended the Town and Country Planning (Use Classes) Order 1987 (“the UCO”). It added a new Schedule 2 to the UCO, updating and amending the classes previously contained in the Schedule to the Order (renamed “Schedule 1”). The effect of these changes was to bring a far greater number of uses within the same class, thereby excluding such changes from the scope of development control pursuant to section 55(2)(f) of the Town and Country Planning Act 1990. This SI also brought certain uses previously contained in Classes A and D of the Schedule within the list of sui generis uses. 

Strategic Environmental Assessment 

SEA was introduced by Directive 2001/42/EC (“the SEA Directive”), which was transposed into domestic legislation by the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”). The objective of the SEA Directive as set out in Article 1 is to provide for a high level of protection of the environment, by ensuring that SEA is carried out in respect of certain plans and programmes which are likely to have significant effects on the environment. 

SEA operates during the preparatory stage of plans or programmes for the development consent of individual projects. It complements and operates upstream of the regime for the environmental impact assessment (“EIA”). 

SEA will be required for a plan or programme if the following four criteria are met: 

1. It is subject to preparation or adoption by an authority at national, regional or local level, or be prepared by an authority for adoption through a legislative procedure by Parliament or Government (Article 2(a) of the SEA Directive/Regulation 2(1) of the SEA Regulations). 
2. It is required by legislative, regulatory or administrative provisions (Art 2(a)/Reg 2(1)). 
3. It sets the framework for the future development consent of projects (Art 3(2)(a)/Reg 5(4)(b)).
4. It is likely to have significant environmental effects (Art 3(1)/Reg 5(4)(c)). 

The central dispute in the present case was whether or not the SIs met the third criterion. 

The meaning of “setting the framework for the future development consent of projects” has been considered domestically and by the CJEU. The case law indicates that, to meet the third criterion, the plan or programme needs to set criteria or prescribe detailed rules by which projects will be consented. It must do more than influence consents: it must be determinative, and constrain the decision-maker in some way (see e.g. R (oao Buckinghamshire County Council) v Secretary of State for Transport [2014] UKSC 3). 

A measure which amends the framework for development consent laid down by a plan or programme which itself qualified for SEA will also require SEA: Case C-160/17 Thybaut and Others v Région Wallonne. 

“Development consent” is not defined in the SEA Directive or the SEA Regulations. T

The Nature of Permitted Development Rights

Article 3(1) of the GPDO grants planning permission for the classes of development described in Schedule 2 to the Order. Some (but not all) of those classes require the relevant LPA to decide whether prior approval of certain specified matters will be required before permitted development can commence. 

For these types of permitted development, the courts have described the planning permission granted by Article 3(1) as “crystallising” only when the LPA has decided whether or not prior approval will be required, and if so whether or not such approval is granted (see e.g. Keenan v Woking BC [2017] EWCA Civ 438). 

The Claimant’s Challenge in the Divisional Court

Before the Divisional Court, the Claimant relied on three grounds of challenge, the first of which alleged a failure to carry out SEA for the SIs. The Claimant argued that the SIs either themselves set the framework for development consent, or alternatively modified existing plans or programmes which qualified for SEA. It relied on three main arguments:

1. All three SIs  were modifications of measures which had required SEA, and therefore should also be subject to SEA. 
2. The SIs effectively disapply relevant provisions of the development plan, a measure subject to SEA, by granting planning permission for development and reduce the range of planning considerations which can be taken into account at the prior approval stage.  
3. The SIs set the framework for future development consent by defining the matters to be taken into account by an LPA at prior approval stage. 

The Divisional Court dismissed the claim, holding that no SEA was required. In summary, it held that: 

• The UCO cannot be described as setting a framework for the grant of future development consent. 
• The GPDO itself (and thereby the SIs) grants planning permission: it does not therefore set a framework for the grant of planning permission. The provisions governing prior approval do not set out a significant body of criteria or rules by which the application for prior approval will be determined. 
• In this regard, whether development consent is seen as the permission granted by Article 3(1) GPDO itself, or a combination of that planning permission and prior approval, the two statutory instruments do not set the framework for future development consents. 
• The SIs had not repealed, modified or derogated from development plans by bringing permitted development (and the prior approval process) outside their scope. The content of such plans remained unaffected by the GPDO. 

Appeal to the Court of Appeal 

The Claimant sought permission to appeal the decision of the Divisional Court on the SEA ground alone. The application for permission to appeal was adjourned to be heard by a three-judge constitution, with the appeal itself to follow immediately if permission was granted.

The Claimant argued that the Divisional Court’s understanding of a “framework” for future development consent was too narrow. A framework could include not only the rules governing whether development consent should be granted, but also rules defining the matters for which such consent is required. Otherwise, the SEA regime could be subverted by taking certain types of development outside the regime of development consent without environmental assessment, while lesser changes refining how the development consent process works would be subject to the SEA regime. 

The Claimant further argued that the Divisional Court had misunderstood the concept of “development consent”, which is not coterminous with “grant of planning permission”. For the two SIs modifying the GPDO, it is not limited to the principle of development being authorised by Article 3(1), but also includes the LPA’s prior approval decision, at which point permission crystallises.

Third, the Claimant submitted that the Divisional Court was wrong to find that the SIs did not modify the application of development plans. Even if the SIs were not themselves plans or programmes within the scope of the SEA Directive, they effectively disapplied the relevance and operation of development plan policies for residential and business development.

Finally, the Claimant submitted that the Divisional Court had failed to interpret the SEA Directive/Regulations in light of their overarching purpose to provide a high level of protection of the environment. The reform of the planning system by the SIs would have significant environmental impacts which had not been subject to SEA. The development permitted by the SIs would not be subject to EIA. If this were lawful, it would mean that far-reaching changes to the development control process would be possible without any assessment of their likely environmental effects. 

Decision of the Court of Appeal

The Court of Appeal granted the Claimant permission to appeal the decision of the Divisional Court, but dismissed the appeal itself. 

Sir Keith Lindblom observed that the SEA regime is not unbounded. The wording of the SEA Directive and Regulations gives no indication that statutory measures such as the SIs may constitute plans or programmes requiring SEA. Limits are drawn by that wording, and the SIs sit beyond those limits. The fact that a different type of measure with lower potential for environmental impact will fall within the scope of the legislation, while the SIs will not, does not mean that the statutory regime must be read more liberally than its drafting allows. 

The domestic and EU case law explains that a measure, in order to set the framework for development consent, must lay down a significant body of criteria and detailed rules for the grant and implementation of those consents. None of the SIs do this. SI 2020 No. 757 defines which changes of use amount to development and which do not: it does not set criteria or rules for future development consents. Similarly, SI 2020 Nos. 755-6 define and expand the categories of development which are permitted by the GPDO. A statutory process by which development consent is granted for a project is not a framework for the future development consent of projects.  

While the GPDO and the SIs contain a procedure for prior approval, that approval relates to development consent which has already been permitted by the GPDO. Prior approval is not itself a freestanding “development consent”. The prior approval process does not articulate criteria or rules governing the grant and implementation of future development consents: it is inextricably part of, and embedded by condition within, consents that have already been granted. 

As to the Claimant’s third submission, the Court considered that the notion that the SIs modify existing development plans was mistaken. They do not modify or alter the policies in any plan, remove part of a plan, or bear upon any plan-making process. 

Finally, the Court rejected the suggestion that the Divisional Court had failed to read the relevant provisions of the SEA Directive/Regulations broadly to give effect to their underlying objective. The Divisional Court was simply aware of the need to avoid reading the legislation in a way that would rob the words used in Article 3 of their intended meaning. 

Conclusion

The decision is another example of the domestic courts underlining that, notwithstanding the high level of environmental protection to which the SEA Directive/Regulations aim, their provisions are not unbounded. There are circumstances in which measures likely to have significant effects on the environment will not be subject to environmental assessment. 

Much of the decision related to the specific nature of planning permission under the GPDO, and how this translated into the concept of “development consent” under the SEA Directive/Regulations. Perhaps more broadly applicable are the Court’s comments to the effect that statutory measures such as the SIs were not intended to fall within the scope of the SEA Directive. This is somewhat at odds with the statement made by the CJEU in Case C-105/09 Terre Wallonne and Inter-Environnement Wallonie, that measures adopted by legislative means are not necessarily excluded from the scope of the SEA Directive provided they meet the characteristics set out in Articles 2 and 3. 

Ultimately, though, the Court was correct to recognise that there must be a limit somewhere. Despite its overarching objective, the SEA Directive was not designed to encompass any measure likely to have significant environmental effects. The requirements of SEA are stringent, involving detailed environmental reporting and consultation. Requiring this to be carried out for the SIs would have hampered the flexibility and adaptability of the permitted development regime, which has recently been used to respond quickly to the need for specific types of development during the Covid-19 pandemic. 

Flora Curtis is a barrister at Francis Taylor Building specialising in environmental, planning and public law.