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

Where a public authority undertakes consultation, fairness is assessed in the circumstances and the decision-maker usually has a broad discretion as to its form. A recent, full consultation on the substance of a policy may justify a shorter follow-up consultation directed to practical implementation. In that context, consultation through representative bodies may be sufficient, even where individual public authorities have relevant practical experience. Direct consultation is not invariably required. The court should avoid deciding wider questions about a freestanding right to consultation or legitimate expectation where the claim can be resolved on fairness. The consultation will be unlawful only if it was so unfair in the circumstances as to invalidate the decision.

The claimants, three local authorities, sought judicial review of the Secretary of State’s decision to make the Town and Country Planning (General Permitted Development) (Amendment) (No 2) (England) Order 2010 and the Town and Country Planning (Compensation) (No 3) (England) Regulations 2010.

The instruments permitted changes of use between dwelling houses and small houses in multiple occupation and limited compensation liability where local planning authorities used Article 4 directions to remove that permitted development right. The claimants argued that the 2010 informal consultation was unlawful because local planning authorities were consulted indirectly through representative bodies rather than directly.

The issues were whether there was a right to consultation, whether the consultation was unfair, and what effect Parliament’s subsequent consideration of the instruments had. The court resolved the claim on the fairness issue.

1. The claim was dismissed. The failure to consult the claimant local planning authorities directly did not make the consultation unlawful.
2. A decision-maker usually has a broad discretion as to how consultation is conducted. Fairness depends on the circumstances. If consultation is undertaken, it must nevertheless be carried out properly, as recognised in R v North East Devon Health Authority ex parte Coughlan [2001] QB 213.
3. The 2009 exercise had been a recent, full, 12-week consultation. It had directly included local planning authorities and had canvassed the same broad policy option. The 2010 exercise was therefore properly understood as a short, informal opportunity to identify further matters relevant to implementation, rather than a second full consultation on the merits of the policy.
4. Given that limited purpose, consultation through representative bodies was a reasonable method. Direct consultation with local planning authorities would, as a matter of fairness, have required direct consultation with the other interested groups and risked turning the exercise into a repeat of the 2009 consultation. The court also took account of the overlap between the questions, the claimants’ actual submissions, and the evidence that their principal concerns had already been identified.
5. The court considered the analogous reasoning in R (Legal Remedy UK Limited) v Secretary of State for Health [2007] EWHC 1252 (Admin) and the broad discretion described in R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] Env LR 29. It was unnecessary to decide whether the claimants had an independent right to consultation or whether fairness arose only from a legitimate expectation. It was also unnecessary to consider Parliament’s subsequent negative-resolution procedure.
6. The defendant was ordered to pay £16,000 in costs. Permission to appeal was refused, but the time for appealing was extended to 28 days.

First-instance judicial review. Permission to appeal was refused by the High Court, with 28 days allowed for an appeal.