Factual and Procedural Background
This appeal concerns a challenge by Milton Keynes Council, Oxford City Council, and Newcastle City Council ("the councils") to a decision of the Secretary of State for Communities & Local Government ("the Secretary of State") made on 1 September 2010. The Secretary of State enacted two statutory instruments: the Town & Country Planning (General Permitted Development) (Amendment) (No.2) (England) Order 2010 ("the GPDAO") and the Town & Country Planning (Compensation) (No.3) (England) Regulations 2010 ("the compensation regulations"). These instruments introduced changes relating to houses in multiple occupation ("HMOs"), specifically granting permitted development rights for changes of use from dwelling houses to HMOs without planning permission, and limiting compensation liabilities for local planning authorities ("LPAs") when making Article 4 directions to withdraw such permitted development rights.
The councils sought to quash certain provisions of these statutory instruments, arguing that the Secretary of State erred in law by failing to sufficiently consult LPAs before making the orders. The Deputy High Court Judge refused the application, holding that the failure to consult the councils directly was not so unfair as to render the consultation unlawful. The councils appealed this decision to the Court of Appeal.
Prior to these statutory instruments coming into force on 1 October 2010, planning permission was required for changes of use from dwelling houses to HMOs, allowing LPAs to control potential amenity and environmental issues. The statutory instruments altered this regime, limiting LPAs' control except through Article 4 directions, which expose LPAs to possible compensation liabilities under specified conditions.
The councils had made two Article 4 directions following the coming into force of the statutory instruments: one borough-wide with a delayed effective date, and another affecting part of the borough with immediate effect.
Concerns by the councils arose from the negative impacts of HMOs on communities, including social cohesion, parking, noise, and litter, with many unauthorised HMOs operating without planning permission. The Government had conducted a comprehensive consultation in 2009 presenting three options for managing HMOs. The majority preference was for Option 2, which maintained the requirement for planning permission for changes of use to HMOs. However, following a change in government in 2010, a new policy favoring Option 3 was adopted, allowing permitted development rights for such changes of use, subject to limited consultation with key stakeholders rather than a full public consultation.
Legal Issues Presented
- Whether the Secretary of State was under a legal duty to consult local planning authorities directly before making the statutory instruments relating to HMOs.
- Whether the consultation conducted by the Secretary of State in 2010 was lawful and fair, given the limited scope and the identity of consultees.
- Whether the Secretary of State's failure to conduct a fuller consultation with local planning authorities rendered the statutory instruments unlawful.
- The extent to which the political nature of the decision and Parliamentary scrutiny affect the duty or requirement to consult.
Arguments of the Parties
Appellants' Arguments
- The Secretary of State erred in law by failing to consult local planning authorities directly and sufficiently before making the statutory instruments.
- The limited consultation in 2010 was unfair because it excluded the councils, who were best placed to respond to specific questions posed.
- Further consultation was necessary to consider intermediate measures and practical effects of the proposals, which local planning authorities could have informed.
- The 2010 consultation was too narrow, short, and did not provide adequate opportunity for local authorities to express their views.
- The councils relied on established legal principles requiring proper consultation if consultation is undertaken, citing R v North and East Devon Health Authority ex parte Coughlan and R v Brent LBC ex parte Gunning.
Respondent's Arguments
- The Secretary of State was not under a statutory duty to consult local planning authorities directly, and could decide whom to consult.
- The decision was a macro-political one, subject to Parliamentary scrutiny, and accordingly the court's supervisory role should be limited.
- The councils had a full opportunity to express their views in the 2009 consultation, which was comprehensive and lengthy.
- The 2010 consultation was a limited, targeted exercise aimed at key stakeholders, and was appropriate given the prior consultation and political context.
- The failed attempt to annul the statutory instruments in Parliament supports deference to the Parliamentary decision and reduces the need for judicial intervention.
- Reliance was placed on authorities such as R v Secretary of State for Education and Employment ex parte Begbie, Re Westminster City Council, and Buckinghamshire County Council v Royal Borough of Kingston-upon-Thames to support the limited duty to consult and deference to political decisions.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 |
Proper consultation requires consultation at a formative stage, sufficient reasons for proposals, adequate time, and conscientious consideration of responses. |
The court affirmed that if consultation is undertaken, it must be proper, applying these principles to assess the adequacy of consultation. |
| R v Brent LBC ex parte Gunning (1985) 84 LGR 168 |
Sets out criteria for lawful consultation including timing, information, and consideration of responses. |
Referenced to support the standard for proper consultation. |
| R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 |
Fairness requires context-dependent opportunity to make representations before or after decisions affecting interests. |
Applied to consider fairness in consultation and opportunity for affected parties to respond. |
| R v Secretary of State for Education and Employment ex parte Begbie [2000] 1 WLR 1115 |
Political decisions attract less intrusive judicial review; courts should be cautious in interfering with political decisions. |
Supported the view that the Secretary of State’s decision was a macro-political one, warranting limited judicial interference. |
| Re Westminster City Council [1986] AC 668 |
Doctrine of legitimate expectation and consultation must be balanced against efficient public administration; open-ended consultation duties are undesirable. |
Used to caution against extending consultation duties excessively in political contexts. |
| Greenpeace Ltd v Secretary of State for Trade & Industry [2007] Env. L.R. 623 |
Decision-makers have broad discretion in how consultation exercises are conducted. |
Supported the Secretary of State’s discretion in limiting the scope and manner of consultation. |
| Buckinghamshire County Council v Royal Borough of Kingston-upon-Thames [2011] EWCA Civ 457 |
No general duty to consult third parties who may bear indirect consequences of decisions made for others. |
Distinguished as contextually different but cited to argue that no duty to consult councils existed here. |
Court's Reasoning and Analysis
The court acknowledged that while a decision-maker cannot arbitrarily select whom to consult without regard to fairness, the context is critical. The 2009 consultation was comprehensive, involving all local planning authorities over a lengthy period, addressing various options including the one adopted in 2010 (Option 3). The court held that it was not necessary to repeat the entire consultation process upon the change in government policy.
The 2010 consultation, though more limited in scope and duration, was appropriate given the prior consultation and the political nature of the decision. The Secretary of State was entitled to conduct a consultation mainly with key stakeholders and to impose a strict timetable. The court found no evidence of significant new issues arising from the 2010 consultation that would have required further or fuller consultation.
The court further considered the political character of the decision, emphasizing that it was a macro-political decision subject to Parliamentary scrutiny by the negative resolution procedure. This context justified a less intrusive judicial approach and supported the Secretary of State's discretion in consultation matters.
The appellants' strongest argument—that LPAs were best placed to answer the consultation questions—was acknowledged but did not render the consultation unfair. The court concluded that the limited consultation did not breach principles of fairness or lawful consultation.
Given these findings, the court did not find it necessary to consider the impact of Parliamentary scrutiny on the duty to consult.
Holding and Implications
The Court of Appeal DISMISSED the appeal, affirming the decision of the Deputy High Court Judge.
The court held that the Secretary of State did not err in law by failing to consult local planning authorities directly in 2010, as the limited consultation was fair and lawful in the context of the prior comprehensive consultation and the political nature of the decision. The statutory instruments remain valid and enforceable.
This decision confirms the principle that in political and policy-driven decisions subject to Parliamentary oversight, the duty to consult may be limited and context-dependent. No new precedent was established beyond affirming existing principles regarding consultation and judicial deference in macro-political decisions.