London Borough of Islington & Anor v Secretary of State for Communities & Local Government

Fairness in an administrative decision is context-dependent. It does not generally require disclosure of every detail of the decision-maker’s assessment method. It usually requires an affected person to know the gist of the case to be answered and to have a meaningful opportunity to make representations. Where an exemption application must establish a high-threshold adverse economic impact, applicants must provide clear and cogent evidence explaining why the impact will occur and why the proposed area is necessary. A failure to adopt the best or most transparent assessment method is not, without more, procedural unfairness. A further consultation is unnecessary where the substantive consultation has ended and the later criteria flow from the responses and the policy decision.

Three local planning authorities challenged refusals by the Secretary of State to exempt areas within their boroughs from new permitted development rights allowing certain offices to change to residential use. The claims concerned the exemption assessment process, including the scoring methodology, disclosure of assessment criteria, the time allowed for applications and, in one claim, alleged further consultation duties. The claims were heard together in a rolled-up hearing. Permission was granted and the substantive judicial review claims were determined.

1. Claims dismissed. The Secretary of State’s decisions refusing the claimed exemptions were not quashed.
2. Fairness is context-dependent. Applying the approach in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, fairness may require an affected person to know the gist of the case to be answered, but the content of the duty depends on the circumstances.
3. The 24 January 2013 letter and the earlier ministerial statement gave sufficient information. Applicants knew that exemptions were exceptional, that the threshold was high, and that they had to demonstrate clearly, with reliable supporting evidence, the anticipated adverse economic impact and the need for the particular area. The Department was not required to disclose in advance the precise scoring method agreed with Ove Arup.
4. The four-week period for applications was not unlawful. The authorities had been alerted to the proposed rights and the exemption opportunity, and other local planning authorities submitted applications within the period.
5. The separate scoring of the strength of the case and the robustness of the evidence was a concern, but did not render the process unlawful. The court observed that an established adverse effect should not ordinarily be marked down merely because of deficiencies in the evidence demonstrating it. That point did not affect the outcome on the facts, since no application reached the required threshold.
6. There was no further consultation duty. The relevant consultation had ended when the decision to amend the Town and Country Planning (General Permitted Development) Order 1995 was made. The exemption criteria followed from the consultation responses and were set out in the January letter.

First-instance judicial review claims. The three claims were ordered to be heard together by Foskett J on 25 September 2013. Permission was granted at the rolled-up hearing and the claims were dismissed on their merits.