The claimant’s challenge in R (on the application of Silus Investments SA) v London Borough of Hounslow (see PP 2015/43) was successful on the principal grounds that the local planning authority (“LPA”) had breached its legitimate expectation of consultation, and had acted in a procedurally unfair way.
(Legitimate expectation is a principle of public law that is capable of applying in the context of town and country planning. For a claim based upon legitimate expectation to be successfully advanced, a public authority must have represented (either by way of an express promise or implicitly by way of past practice) that it will conduct itself in a particular way. It may then be argued that the representation gives rise to a legitimate expectation on the part of the person to whom it was made that the public authority will so act. Should the argument succeed, the public authority may have to give effect to that expectation.)
While there is no statutory duty on a LPA to consult before making a conservation area designation, in this case the LPA posted details of the proposal and gave notice of a consultation on its website. However, no documents explaining or justifying the proposal were attached, and a seven day deadline was stated for responses. Land owners and occupiers were not consulted individually.
The court held that the LPA had indeed acted in a procedurally unfair way. It was settled law that where a public body decides to embark on a consultation – when it is not obliged to do so – it must nonetheless comply with the minimum standards of a lawful consultation procedure. Those minimum standards had not been met by the LPA. The consultation notice had not been accompanied by sufficient reasons to enable an “intelligent consideration and an intelligent response”. The seven day period was too short, and the decision was, in fact, taken before its expiry.
Furthermore, unlike the situation in Trillium (Prime) Property GP Ltd v Tower Hamlets London Borough Council [2011] EWHC 146 (Admin), this was not an instance where the LPA had been entitled to conclude that consultation with the claimant, or others, would have put the proposed designation at risk of harm. The LPA did not have reasonable grounds for believing that pre-emptive demolition was a risk of such degree as to warrant its route to designation.
The court quashed the LPA’s decision to designate, subject to the claimant undertaking with the LPA not to commence any demolition works at its public house, nor apply for prior approval of the method of demolition, for six months from the date of the order.
John Martin is a planning law consultant
