Three weeks ago in the Week in Parliament, we discussed the debate around the Town and Country Planning (General Permitted Development) (England) (Amendment) (No.2) Order 2020 (and a variety of related orders). In short, a motion of regret had been brought by Lord German to object to the procedure by which the regulations were being brought. The objections revolved both around  the content of the regulations (which he argued should have been brought by means of amendments to the primary legislation, given their significance), and also the process by which they had been arrived at, including the lack of consultation on the detail. In the article, we highlighted the risk the Government might need to be more cautious to avoid judicial review.

It was, therefore, no surprise then when this week we had a judgment handed down in the case of R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 3073, a challenge to three of the planning Statutory Instruments, which introduced new permitted development rights – broadly speaking to allow grants of PDR for the limited addition of storeys to either blocks of flats, retail buildings, and certain other housing and to permit the demolition of certain buildings under specific conditions.

The case was brought on three grounds, firstly that the Secretary of State (SoS)  had failed to conduct an environmental assessment required by regulations implementing a European directive; secondly that he did not have due regard to the Public Sector Equality Duty; and thirdly that he had not considered the weight of evidence against the reforms.

The first two grounds are interesting mostly because they provide a clear exploration of their respective issues, including discussions of how programmes should be assessed as to the impact they will have on future development consents and the likely environmental effects. On the Public Sector Equality Duty point, it was determined that the relevant criteria had been amply fulfilled, and the Government had safely discharged its equality duties.

However, the most interesting ground for us was the information ground which itself comprised four consultation-related arguments:

1. That the SoS failed to ‘conscientiously consider’ responses to the ‘Planning Reform: Supporting the high street and increasing the delivery of new homes’ consultation. They acknowledged that he might have known about the responses, but alleged he approached it with no intention of changing his mind about the reforms (the ‘Gunning 4’ ground)
2. That the SoS failed to take into account, the advice of their own experts (the ‘Expert advice’ ground)
3. That the SoS took an approach that was ‘unfair, inconsistent and/or irrational’ in the context of the approach taken to similar permitted development reforms (the ‘inconsistency’ ground)
4. That the SoS was obliged to re-consult before introducing one of the new classes of PDR, based on a legitimate expectation arising from a promise in the consultation to re-consult (the ‘legitimate expectation’ ground)

On the Gunning 4 ground, the judge determined that the Consultation responses had been summarised appropriately in the explanatory memoranda to the SIs which had been provided to the SoS for his consideration. The memoranda also noted that though there had originally been an intention to have another consultation, to support economic regeneration it had been decided to introduce them directly, leaving further matters to individual planning authorities for approval. In light of this, the Court concluded that the SoS had given conscientious consideration of the responses and that they had the right to determine how to proceed, what provisions to include in light of the consultation responses and other matters were questions for the defendant and not matters of law. A similar decision applied to the Expert Advice ground; the Court ruled that the Government had clearly been aware of and taken into account the reports the SoS had commissioned.

On the inconsistency ground, the Claimant’s evidence attempted to rely on the fact that the defendant had decided to undertake an additional technical consultation on the erection of 5G mobile network towers, and it followed that a technical consultation should also have been held on the other proposals as a matter of consistency. Discussing this, the Court noted the difficulty in holding that a decision to consult on one proposal could lead to a new obligation to consult on a different proposal, especially when the two proposals were significantly different in their natures. A decision to consult on a highly technical area such as 5G mobile phone networks, was inherently different from adding floors or demolishing buildings. There was, therefore, no link, and ‘consistency’ could not be argued as a reason to vitiate the decision.

Although ultimately a fairly straightforward decision by the judge, the ‘legitimate expectation’ ground was nevertheless interesting. Both parties accepted that there had been a representation that there would be a further consultation on the SI regarding the demolition and rebuilding of commercial properties, so the question was when the decision-maker decided to proceed without consulting further, was it legitimate to do so? The Court considered the test established in the Privy Council case of United Policyholders Group v The Attorney General of Trinidad and Tobago where it was established that a public authority could legitimately depart from a previous promise if it was able to show good, proportionate reasons for doing so. The defendants argued that they did have good reasons for departing from their promise, as due to the cumulative effects of the pandemic on the economy, there was a need to act swiftly to minimise its effects. This was explained in both a witness statement and the explanatory memorandum for the SI.

The second question that arises from the United Policyholders Group test was whether these reasons were proportionate. In the view of the Court, they were. The economic situation was sufficiently grave in the assessment of the Court that the reasons given to depart from the promise were both good and proportionate. The Court identified that the initial granting of the permitted development rights under these regulations would encourage developers to start the development process and would therefore assist in countering the negative effects brought about by the pandemic. Although these rights would continue to apply after the end of the pandemic, the Court stated that this in and of itself did not render them disproportionate. Accordingly, the Court found in favour of the Government.

The case is another in the line of the initial Article 39 and Shaw cases we saw earlier this year, where the Courts have given leeway they might not otherwise have done to consultors, give the context of the pandemic. So far, this has been to the advantage of the Government. Although the preceding case was not mentioned in Rights: Community: Action, it seems to be a reassertion of the statement of Lieven J in Article 39: “A legitimate expectation that arose in normal circumstances would not give a right to consultation in the circumstances of dealing with the pandemic”.

From our perspective, this case is a very interesting one. We’ve not often discussed here at the Institute when it is possible to resile from a promise that has led to a legitimate expectation, possibly because to do so can be incredibly risky and invites the assessment of the Court in determining whether it was lawful. Here we see a clear application of the United Policyholders Group test to a procedural legitimate expectation, rather than a substantive one. There are however, some questions that remain after this judgment. Chief among them is whether the judge was right to assess that the reasons given for not consulting again were both good and proportionate. Although the salvation of the economy is no doubt a good and worthy cause, the discussion of how this would help here is short and relies largely on the explanatory note of the decision under question. It might be open for the claimants to question whether the judge was right to accept this contention so easily.

There is, however another difference between the regulations challenged in Article 39 and Shaw when compared to the ones challenged here, and it is a potentially important one. In Article 39 and Shaw, the regulations under challenge came with a sunset clause, a date after which (without review) they would cease to have effect. The regulations challenged by Rights: Community: Action did not, and as acknowledged by the judges they would create a set of ongoing rights even after the pandemic has ended unless they were specifically altered or repealed. The assessment of Lewis LJ and Holgate J here was that even in light of this, it did not render the decision to go back on the promise disproportionate.

But would this decision to go back on a promise of consultation be disproportionate were we not in a pandemic? We suggest that it would. In a case such as Article 39, where the regulations under challenge had a sunset clause, it may not matter, because they will ultimately lapse at a given point in the future. Here, however that will not happen. We might therefore end up in a situation where a new set of rights has been created without promised consultation, and  where breaching that promise (due to current special circumstances) was not disproportionate, but where, at any other time such a breach might have made those rights unlawful. Is there not a risk here that as JR has a time-limit, we might have created a scenario where, once that three-month limit is passed, no further challenge can be brought, and there has been no legitimate consultation on something that might have a significant impact on the lives of thousands of people who have no opportunity to comment? Although the Courts can only operate in the moment and have to deal with the case before them, in the context it comes before them, it might perhaps be good to see further clarification on resolving this apparent discrepancy.