Moore & Ors v Secretary of State for Communities and Local Government & Anor

A decision-maker who gives reasons must give legally adequate and internally coherent reasons. Where the reasons leave genuine doubt whether a lawful conclusion was reached, the decision is unlawful. In an application-based statutory decision, the application date does not crystallise the relevant considerations. An applicant must disclose material actual or potential changes known to it before the decision, particularly where the change could reasonably affect the outcome and has progressed substantially through its approval process. A statutory consent decision may be final rather than continuing, depending on the statutory scheme. A later challenge cannot require the decision-maker to reconsider a concluded consent where the statute provides no power of revocation.

Three allotment holders challenged the Secretary of State’s consent under section 8 of the Allotments Act 1925 to Watford Borough Council’s appropriation of allotment land for the Watford Health Campus regeneration project.

The challenge alleged that the Secretary of State had been misinformed about the project’s viability, the hospital trust’s requirements and changes to the developing masterplan. The claim also relied on legitimate expectation and Articles 1 of Protocol No. 1 and 8 of the ECHR. The claimants additionally sought to challenge the Secretary of State’s refusal to reconsider the consent.

1. Consent decision quashed. The Secretary of State’s decision letter contained an apparent inconsistency. Paragraph 18 recorded only a significant possibility that the scheme would not be economically viable without the allotments, whereas paragraph 22 stated more firmly that it would not be economically viable and that the wider public benefits would not be realised. The court concluded that paragraph 22 contained an omission and that paragraph 18 reflected the intended reasoning. The decision was therefore not unlawful on that ground.
2. However, the Secretary of State had not been told that the proposed number of homes had increased from approximately 600–650 to about 750 and that the proposal was sufficiently advanced for approval to be imminent. A potential change is material if it could reasonably have affected the decision and was a matter which a reasonable decision-maker ought to have ascertained before deciding. The fact that formal approval occurred after the decision did not make the change immaterial.
3. The application process entitled the Secretary of State to assume that the applicant had supplied relevant and up-to-date information. Silence about a material change known exclusively to the applicant could amount to reliance on an incorrect material consideration. The housing increase could have affected both the public-benefit case and the asserted need for the allotment land. The flood alleviation discussions had not attained sufficient certainty, and the proposed football-club car park lacked evidence of material impact.
4. The court rejected the challenges concerning the viability figures and the hospital trust. Viability involved risk and prospects, not a binary question of whether the scheme was certain to proceed. The evidence adequately conveyed that exclusion of the allotments increased financial risk and could produce a less satisfactory scheme. The hospital trust’s precise plans were uncertain, but its need for development and the allotment land’s optimal location had been adequately conveyed.
5. The Secretary of State was functus officio after granting consent. The decision was final and was not a continuing decision up to the date of appropriation. The refusal to reconsider was therefore lawful, and permission to amend the claim was refused.
6. The Article 1 Protocol No. 1 issue did not arise because the decision was quashed. The court nevertheless considered that the interference would have been justified and proportionate, and that a comparative viability assessment of alternative schemes was not legally required.