Milton Keynes Council & Ors, R (on the application of) v Secretary of State for Communities & Local Government

A public authority which chooses to consult must act fairly when selecting consultees, as well as in determining the consultation’s subject matter, timing and duration. The authority cannot routinely treat the choice of consultees as exclusively its own.

Fairness remains context-dependent. A recent, comprehensive consultation covering the policy subsequently adopted may justify a more limited further exercise after a change of policy. The authority need not repeat the entire process, particularly where the ultimate decision is macro-political and consultees have already articulated the relevant objections. The consultation remains lawful if adequate opportunity exists to identify significant new issues and none is shown.

Three local planning authorities sought judicial review of the Secretary of State’s decision to make statutory instruments permitting changes of use from dwelling houses to small houses in multiple occupation without planning permission, subject to local authorities’ power to make article 4 directions. They alleged that the informal consultation preceding the instruments was unlawful because local planning authorities were not consulted directly and the exercise was too narrow and brief.

Sir Michael Harrison, sitting as a Deputy High Court Judge, dismissed the claim in [2011] EWHC 1060 (Admin). The councils appealed. The central issue was whether the limited 2010 consultation was unfair, taking account of the comprehensive consultation undertaken in 2009 on an option encompassing the policy later adopted.

1. Appeal dismissed unanimously. A decision-maker who undertakes consultation cannot routinely pick and choose whom to consult. Fair consultation requires fairness in selecting consultees, as well as in determining the subject matter, timing and duration of the exercise. The decision in Buckinghamshire County Council v Royal Borough of Kingston-upon-Thames was confined to its different statutory context and established no general principle that selection rests with the decision-maker alone.

2. Fairness is context-dependent. The 2010 exercise had to be assessed against the recent and comprehensive 2009 consultation. That earlier exercise gave the council and all other local planning authorities an opportunity to address several options, including the option ultimately implemented. They could then have explained its likely adverse effects and practical difficulties. A change in government policy did not require the whole consultation process to be repeated.

3. The Government was therefore entitled to limit the later consultation’s consultees, content and duration. Although local planning authorities were especially well placed to answer the questions posed, the failure to approach them directly did not make the exercise unfair. The council learned of the consultation, made representations and had relevant information available from its recent work on the subject.

4. The central policy choice—whether changes from dwelling houses to houses in multiple occupation should require planning permission—was macro-political. The consultation could lawfully be limited to determining whether significant new problems required fuller consideration. The Secretary of State already knew the local authorities’ strongly expressed objections from the 2009 exercise. No significant new issue was identified which rendered the limited process inadequate.

5. The court did not determine the respondent’s alternative contention that Parliamentary scrutiny under the negative resolution procedure required judicial deference on the consultation issue.

1. Court of Appeal (Civil Division): The councils’ appeal was dismissed unanimously. The limited consultation was lawful: [2011] EWCA Civ 1575 .
2. High Court, Administrative Court: Sir Michael Harrison, sitting as a Deputy High Court Judge, refused the application to quash the relevant provisions, holding that consultation through representative bodies rather than directly with the councils was not so unfair as to be unlawful: [2011] EWHC 1060 (Admin) .