In July, the government announced that it was pressing ahead with extending the use of PD rights to allow the upward expansions of existing homes and the demolition and rebuild of vacant residential and commercial buildings. The new regulations will come into force at the end of this month.
Last week, campaign group Rights : Community : Action (RCA), which describes itself as a "coalition of campaigners, lawyers, planners, facilitators, writers and scientists, united by a shared commitment to tackle the Climate Emergency", issued a pre-action letter to the housing secretary advising him of the group's intention to challenge the proposed changes via the courts.
The letter said that statutory instruments (SIs) to introduce the measures "were laid before Parliament by the Secretary of State for Housing, Communities and Local Government ... on 21 July 2020: the day before Parliament's summer recess began. The SIs come into force at 10.00 a.m. on 31 August 2020: the day before Parliament reconvenes.
"Parliament has therefore had no opportunity to debate [what the Prime Minister described as] 'the most radical reforms to our planning system since the Second World War' before they come into effect, with potentially enormous consequences for the environment."
Grounds for the challenge include that the secretary of state "failed to conscientiously consider the weight of the evidence against these radical reforms, including prior consultation responses and the advice of his own experts".
The letter said: "The secretary of state failed to take into account material considerations before laying the SIs concerned with permitted development rights, namely the advice of his own independent experts on numerous issues affecting office-to-residential conversions under previous reforms to permitted development."
This advice included the recently-published government-commissioned review into the quality of new homes delivered through PD rights, the letter said. The review was led by Dr Ben Clifford of University College London's Bartlett School of Planning.
It added that the review report "noted severe negative impacts of the existing permitted development scheme", with the report's author "stating publicly that his findings were 'ignored' by the secretary of state".
The letter also claimed that the minister failed to take into account the report of the government's Building Better, Building Beautiful Commission, "which remarked in its final report that the existing permitted development policy has 'inadvertently permissioned future slums'".
The letter said: "These reports were clearly material to any decision to further expand permitted development rights. They were entirely ignored: indeed, the secretary of state announced the new planning reforms on the same day the first report was published".
Other grounds in the challenge include:
- That in "closing his mind" to the issues raised regarding the proposed reforms, the minister "adopted an approach which was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed reforms". It said that proposals to support the deployment of 5G telecoms infrastructure had been subject to a more thorough consultation process. The letter said: "Given that there are likely to be very similar environmental and landscape concerns regarding the erection of tall structures without planning permission, it would be unfair, and/or irrational, to allow consultees on permitted development rights related to 5G masts a second technical consultation on the details, but to deny that same right to consultees in respect of the SIs that this advice is concerned with".
- That government "unlawfully failed to carry out an environmental assessment" of the SIs, as required by the EU Strategic Environmental Assessment (SEA) Directive.
- That the SIs were introduced "without an appropriate equality impact assessment", resulting in a failure to comply with the public sector equality duty. Under section 149 of the Equality Act 2010, all public bodies are required in exercising their functions to eliminate discrimination, advance equality of opportunity and foster good relations.
The letter gives the minister until midday on Wednesday 26 August to "suspend the coming into effect of the SIs, pending the required SEA, impact assessments and Parliamentary debate".
If he does not, the letter said, the campaign group "will seek an urgent interim order suspending the operation of the SIs until the legal challenge is resolved".
The Ministry of Housing, Communities and Local Government was approached for comment but had yet to respond at the time of publication.