Town and country planning – Development – Consultation – Defendant council deciding to drop options for development of estate – Claimant seeking judicial review of decision – Whether defendants’ decision being in breach of section 105 of the Housing Act 1985 and common law requirements for lawful consultation – Whether outcome being different but for defendants’ unlawful conduct – Whether claimants making application with undue delay – Application granted
A report on the Lambeth Estate Regeneration Programme (LERP) was presented to the Cabinet of the defendant council and approved. The aim of the programme was to improve existing residents’ housing and provide new homes at council rent levels. The Cabinet resolved, among other things, to recommend that officers consult further on options for significant regeneration of the estate and that a viable proposal be brought back to the Cabinet with full supporting evidence; and that there was a commitment to work with residents to develop the regeneration proposals.
The defendants began a consultation process with tenants of the estate by setting up sub-groups to consider resident management options and a series of workshops to obtain the residents’ views on the future of the estate. The defendants proposed five options to be consulted on, options 1-3 concerned refurbishment and options 4 and 5 were part and full demolition. Before the sub-group’s reports had been fed back to the defendants, options 1- 3, the refurbishment options, had been removed by the defendants.
The claimant, who was a resident on the estate, applied for judicial review of the decision to drop options 1-3. She contended that the decision was unlawful because: (i) in breach of section 105 of the Housing Act 1985 and of the common law requirements for a lawful consultation, the Cabinet had not conscientiously taken into account the views of residents expressed in response to the information pack and other information provided at workshops and meetings; and (ii) in breach of the general requirements of lawful consultation, the defendants had decided not to proceed with options 1-3 because they were not affordable.
Held: The application was granted.
(1) Section 105 did not refer to “consultation”. But it was, in substance, an obligation to consult. The test was that, whether or not there was a statutory obligation to consult, consultation had to take place when proposals were still at a formative stage; it had to include sufficient reasons for the proposals to enable consultees to consider them, and respond to them intelligently; enough time had to be given for that; and the consultation responses had to be taken conscientiously into account when the decision was taken: R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 applied. R v Brent London Borough Council ex p Morris (1997) 30 HLR 324 and R (Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3947 considered.
(2) The section 105 arrangements in this case consisted of a detailed and sophisticated programme of consultation. The defendants’ decision to drop options 1-3 reneged on those arrangements. It meant that the defendants were unable, before making a decision on the regeneration of the estate, to consider the representations which would have been generated had the arrangements been followed. Although the court did not need to decide whether, as a matter of law, the defendants could have stopped the consultation if there had been a sufficiently important change of circumstances. It would assume, without deciding, that it could have done so. However, the court was not satisfied, on the evidence, that circumstances had changed enough to entitle the defendants to stop consulting on options 1-3, contrary to the terms of the section 105 arrangements it had published. Accordingly, by deciding to remove options 1-3 from the consultation, the defendants had acted unlawfully.
(3) The effect of section 31(2A) of the Senior Courts Act 1981 was to deprive a claimant of relief to which he or she might otherwise be entitled. It did not expressly impose a burden of proof on a defendant but, in accordance with general principle, if the defendants asserted that section 31(2A) applied, it had to satisfy the court that it did. The application of section 31(2A) to the present case was not straightforward. It seemed to be asking, albeit not clearly, whether, if the defendant’s unlawful conduct was taken out of the equation, that would make any difference to the outcome for the claimant. If the section 105 arrangements had not been breached, the financial position would have been much more fully before the defendants. If that had been the position, it did not seem to be highly likely that the decision would have been the same. Accordingly, the test in section 31(2A) was not met and the court was not required by section 31(2A)(a) to refuse relief.
(4) If that conclusion was wrong, although the factors were finely balanced, the court would have decided that it was not appropriate to grant relief on public interest grounds pursuant to section 31(2B) of the 1981 Act.
(5) The claim had been lodged on the last day of the three-month period provided for by CPR 54.5(i)(a). However, the claimant had acted promptly throughout. That the claim was not lodged sooner was, in part, because of the time it took for the lawyers to investigate and advise, and for legal aid to be granted. It was also partly because of the defendants’ equivocations in the pre-action letters about precisely what it had decided. These persisted in their summary grounds, in which they had complained that the application of judicial review was premature, Accordingly, there had been no undue delay: R (Lichfield) Securities v Lichfield District Council [2001] EWCA Civ 304; [2001] PLR 33 considered.
David Wolfe QC and Leon Glenister (instructed by Leigh Day) appeared for the claimant; Jon Holbrook (instructed by Lambeth Legal) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read the transcript of Bokrosova v Lambeth London Borough Council
