Stamford Chamber of Trade & Commerce, R (on the application of) v The Secretary of State for Communities and Local Government

A legitimate expectation of consultation requires a clear promise or an established practice. It will not ordinarily be implied from planning documents which describe a policy timetable or identify policies intended for replacement. The statutory procedure for saving local-plan policies under Schedule 8 to the Planning and Compulsory Purchase Act 2004 imposed no consultation duty on a local planning authority before deciding whether to request an extension. In reviewing the Secretary of State’s decision to accept that judgment, the court applied conventional rationality review. Planning authorities and the Secretary of State are entitled to substantial latitude in making planning judgments, and disagreement or the existence of contrary material does not establish irrationality.

The claimants challenged decisions concerning Policy T1 of the South Kesteven Local Plan, which safeguarded a corridor for a proposed Stamford road link. South Kesteven District Council decided not to request that the Secretary of State save the policy beyond the three-year transitional period under Schedule 8 to the Planning and Compulsory Purchase Act 2004. The Secretary of State subsequently directed that Policy T1 should not be saved.

The claimants alleged that the Council had created a legitimate expectation of public consultation and that the Secretary of State had unlawfully failed to take that expectation and relevant planning material into account. The central issues were whether consultation was required and whether the Secretary of State’s acceptance of the Council’s planning judgment was irrational.

1. Claim dismissed. The claimants had no legitimate expectation that South Kesteven District Council would consult publicly before deciding whether to request the saving of Policy T1.
2. The principle in R (Nadarajah and Abdi) v Secretary of State for the Home Department [2005] EWCA Civ 1363 applies to procedural as well as substantive expectations. A public authority’s promise or established practice may require honouring unless there is good reason to depart from it. However, the representation relied on must generally be clear, unambiguous and free from relevant qualification.
3. The Local Development Scheme and Annual Monitoring Report did not contain an express or sufficiently clear promise of public consultation. They indicated proposed policy arrangements and timetables, but did not promise that the Council would request saving of Policy T1 or consult before declining to do so. The power to save the policy belonged exclusively to the Secretary of State.
4. The statutory scheme contained no consultation requirement. The absence of an express duty or policy promise was significant because planning legislation commonly specifies consultees, timetables and publicity where consultation is intended. The claimants could make representations directly to the Secretary of State, who would obtain the local planning authority’s response before deciding whether to save a policy.
5. R (Roberts) v Secretary of State for Communities and Local Government [2009] JPL 81 did not establish a general duty requiring a local planning authority to consult before deciding whether to request the saving of a policy. Its observations on fairness had to be read in context, and the procedure in that case had allowed interested parties to make representations.
6. The Secretary of State’s decision was subject to conventional rationality review. She was generally entitled to accept the local planning authority’s planning judgment, particularly in a specialist and policy-laden field. The existence of documents suggesting that a road scheme remained under consideration, or the possibility that others would have reached a different judgment, did not make the decision irrational.
7. The alternative issue concerning whether the Secretary of State had failed to take a legitimate expectation into account did not arise. The court also declined to determine whether any practical remedy remained available after expiry of the statutory three-year period.