Home > Cases > Class J permitted development rights challenge

Last year the Government controversially decided to introduce a new Class J permitted development right authorizing “development consisting of a change of use of a building and any land within its curtilage to a use falling within Class C3 (dwelling house) of the Schedule to the Use Classes Order from a use falling within Class B1(a)(offices) of that Schedule”. Before making the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013, local planning authorities were given an opportunity to apply for exemptions in respect of certain areas of their boroughs. Many local planning authorities made exemption applications and a high proportion were refused.

In Islington LBC v Secretary of State for Communities and Local Government [2013] EWHC 4009 (Admin), Collins J considered a challenge to the fairness of the process for considering applications for exemptions.

The claimants argued that the exemption application process was unfair and unlawful because:  (i) they were not given sufficient information as to the criteria or policy to be applied when assessing exemption requests to enable them to have a fair opportunity of satisfying the very high threshold set by DCLG after the exemption process had closed; and (ii) they were not given sufficient time to make their applications. They contended that DCLG ought to have told applicants how it would approach the assessment of the applications. In particular, they contended that DCLG should have told them that robustness of evidence would be marked separately from the strength of the case with the effect that a meritorious application could be marked down if the evidence was not adequately cross-referenced.

The claim had been listed as a ‘rolled-up’ hearing for judicial review by Foskett J. Collins J granted the claimants permission for judicial review, but went on to dismiss the claim. He expressed concern (at [27]) that separate consideration and marks were given to the evidence as well as the strength of the case. In his view, if a likely adverse economic impact of the new right was established on part of a borough, it was difficult to see that any deficiencies in the evidence produced to demonstrate that adverse impact should justify the application being marked down.

Collins J held that it had not been unfair to deduct marks for failing to refer to relevant planning policies or cross-reference policies. A letter from the Chief Planner had provided applicants with sufficient information to enable all applicants to appreciate what had to be established to obtain an exemption and to appreciate the need to provide clear and cogent evidence to justify the grant of an exemption. Collins J considered (at [29]) that “it would have been sensible for the defendant to have worked out in advance how applications were to be assessed and to have given that information to the LPAs”. Nevertheless, he concluded that “failure to do what is best is not to be equated to unfairness justifying a decision that what was done was unlawful”.

Finally, Collins J stated (at [30]) that “I can well understand the concerns which led to these claims and it may well be that in parts of the claimant boroughs the benefits which it is believed will accrue from the amendment to the GPDO will not result. The lack of affordable housing is worrying”.

Neil Cameron QC and Richard Moules acted for the London Boroughs of Islington, Richmond-upon-Thames, and Camden.

Matthew Reed acted for Lambeth LBC.

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