DCLG victorious in High Court challenge to Permitted Development Rights changes

Ref.  London Borough of Islington & Anor v Secretary of State for Communities & Local Government [2013] EWHC 4009

Back in August, we wrote a piece on a Judicial Review freshly brought against the Department for Communities and Local Government (DCLG) over an attempt to amend the Town and Country Planning (General Permitted Development Order) 1995. The amendments they brought changed, amongst other things, the rules governing a change of use from Offices B1(a) to residential dwelling houses Class C3 – removing the need for planning permission. 

Two London councils – Islington and Richmond – argued strongly against the changes and brought the Judicial Review challenge specifically over a refusal by DCLG to grant them exemption from the changes. They argued that the way DCLG had handled the applications for exemptions was unfair. 

Mr Justice Collins did not agree, though he commented that he was concerned at aspects of the scoring methodology of the consultants appointed by the DCLG to analyse requests for exemption submitted by councils. 

He also said he had no doubt that it would have been sensible for the DCLG to have worked out in advance how applications were to be assessed and to have given that information to the local planning authorities. 

Nevertheless, the judge said failure to do what was best was not to be equated to unfairness justifying a decision that what was done was unlawful. 

“While the detail of the way in which the assessment would be undertaken was not provided, the 24 January 2013 letter coupled with the defendant’s statement of 6 September 2012 gave sufficient information to enable all applicants to appreciate what had to be established to obtain an exemption and the need to provide clear and cogent evidence to justify the grant of an exemption.” 

The Judicial review therefore failed, but both councils retain significant misgivings about the changes. 

Cllr James Murray, Islington council’s executive member for housing and development, is reported to have said: 

“This government policy has created a reckless free-for-all in the planning system – we are very concerned about its impact and so we are disappointed by the outcome of this case. 

“The loss of all these offices is damaging our local economy and it’s not producing the sort of homes we need. There is no control over the quality or size of the new flats, and they don’t include any affordable housing at all – a fact the judge felt was worrying and that we know is very bad news for Islington.” 

Part of their complaints undoubtedly reflect the fact that changing back from C3 (residential dwellings) to B1(a) (offices) does require planning permission – resulting in unattractive expense, monitoring and complexity. Cllr Lib Peck, Lambeth council leader, reputedly added: 

“We are very disappointed at this decision. This policy threatens jobs in our town centres, and will potentially result in expensive and substandard housing. This policy is not the answer to sorting out London’s housing shortage. 

“We maintain that the Government’s decision making on exemptions to this policy are unfair and badly thought out and are glad the judge acknowledged this. We also note he also understood our concerns about the worrying lack of any requirement for affordable housing.” 

It remains to be seen whether the Government will amend its policy following the Judge’s comments, but with growth slowly creeping back into the economy – it seems likely that the Chancellor will wish to preserve any policy which may be assisting. 

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SRJ / LCB                                                                                                           10/01/14