Planning – Houses in multiple occupation — Permitted development — Respondent consulting representative bodies concerning proposed changes to permitted development rights — Respondent subsequently approving two new statutory instruments — Whether failure to consult appellant local authorities directly rendering decision unlawful — Appeal dismissed
In 2009, the respondent secretary of state carried out a formal consultation in respect of houses in multiple occupation (HMOs). The consultation proposed revising the existing regulations to make it easier for landlords to change dwelling houses into HMOs, which included amending the Town and Country Planning (Use Classes) Order 1987 (SI 1987/764) by the introduction of a new HMO use and to the Town and Country Planning (General Permitted Development) Order 1995 (SI 1995/418), so that a change from a dwelling house to an HMO would constitute permitted development (option 3).
The respondent took in representations from landlords and a number of local authorities but not the applicants. The then government decided not to introduce the proposed changes, but the coalition revisited the matter and the defendant carried out a second informal consultation on option 3 requesting comments from representative bodies. Although they had not been approached directly, the appellant local authority, on becoming aware of the consultation, submitted responses asserting that option 3 would make it difficult to prevent the conversion of houses to HMOs and would lead to increased traffic, crime and anti–social behaviour.
In September 2010, the respondent approved the Town and Country Planning (General Permitted Development) (Amendment)(No 2)(England) Order 2010 (SI 2010/2134) and the Town and Country Planning (Compensation)(No 3)(England) Regulations 2010 (SI 2010/2135), which implemented option 3.
The appellants applied for judicial review of the decision to make the statutory instruments contending that the consultation process had been unfair since the respondent had failed to consult the appellants directly. The High Court dismissed that application, holding that the respondent’s failure to consult the appellants had not been so unfair as to render the consultation unlawful: [2011] PLSC 104. The appellants appealed.
Held: The appeal was dismissed.
A decision-maker could not routinely pick and choose whom he would consult. A fair consultation required fairness in deciding whom to consult as well as in deciding the subject matter of the consultation and its timing: Buckinghamshire County Council v Royal Borough of Kingston upon Thames [2011] EWCA Civ 457 distinguished.
In the present case, the fairness of the 2010 consultation had to be considered in the context of a very full consultation having been conducted in 2009. In that consultation, over a longer period, all local planning authorities had been given an opportunity to make representations upon a series of options, which included option 3 subsequently adopted by the respondent in September 2010. Option 3 had been placed before them in 2009 and detailed submissions as to its adverse impact, and as to specific problems likely to arise, could have been, and probably were, made. Upon a change of Government policy, it was not necessary to repeat the entire process. In 2010, the Government had been entitled to conduct a more limited consultation, both as to the identity of consultees and the content and duration of the consultation.
The council became aware of the 2010 consultation. Having worked on the issue during the previous year, it could be expected to have relevant information available and to react promptly. The council did make representations, though directed primarily to the fundamental question whether the political decision was a sound one.
The consultation was not rendered unfair by the failure to consult the appellants directly. The central issue to be decided by the respondent was whether to permit a change of use from a dwelling house to a HMO without the need for planning permission. That required a macro-political decision. The respondent had been minded to make the orders challenged notwithstanding the strong, articulated objections to them by local planning authorities, of which he was aware. The decision to make them was a political decision which the respondent was entitled to make. In the circumstances, he was entitled, first, to make the consultation a limited one and, secondly, to decide that there was no evidence of significant new issues arising, which required fuller consultation.
Timothy Mold QC and Richard Moules (instructed by Milton Keynes Council) appeared for the appellants; Tim Morshead QC (instructed by the Treasury Solicitor) appeared for the respondent.
Eileen O’Grady, barrister