Bokrosova v London Borough of Lambeth

Under the Housing Act 1985, section 105, a local authority which publishes detailed consultation arrangements must follow them and consider representations before deciding. The authority’s choice of arrangements is primarily for it, but compliance with those arrangements is separately justiciable. An authority may arguably depart from its arrangements after a sufficiently significant change of circumstances, but the evidence must establish that justification. The Council unlawfully stopped consulting on three options before completing the published process. Section 105 reflects the basic requirements of lawful consultation, including a formative stage, sufficient reasons, adequate time and conscientious consideration of responses. Relief was not barred by the substantial-difference test or delay.

Bokrosova v London Borough of Lambeth was a first-instance judicial review concerning the future of the Cressingham Gardens Estate. The Council had announced a detailed programme of consultation about five regeneration and refurbishment options, but resolved to stop consulting on options 1 to 3 because they were said to be unaffordable.

The claimant alleged breaches of section 105 of the Housing Act 1985 and the common-law requirements of lawful consultation. Permission to apply for judicial review was granted by Holman J. The central issues were whether the Council could lawfully abandon the published consultation process before completion, whether relief was barred by the statutory substantial-difference and public-interest provisions, and whether the claim was brought too late.

Decision

The claim succeeded. The Council’s decision of 9 March 2015 was unlawful. A declaration and a quashing order were granted; the whole March 2015 decision was quashed.

1. Section 105 of the Housing Act 1985 imposed a statutory consultation obligation. The Council had to inform affected secure tenants of its proposals, enable them to make their views known within a specified period, and consider representations before deciding. The authority’s choice of arrangements was primarily for it, with intervention on appropriateness only where its view was Wednesbury unreasonable. The treatment of R v Brent London Borough Council ex p Morris (1997) 30 HLR 324 was therefore explanatory rather than a restriction on the separate duty to comply with arrangements already made.
2. Section 105 was, in substance, an obligation to consult. The court applied the principles in R (Moseley) v Haringey London Borough Council [2014] UKSC 56 and [2014] 1 WLR 3947, and the basic requirements identified in R v North and East Devon Health Authority ex p Coughlan [2001] QB 213. The Council had published detailed arrangements and could not abandon them before completion unless, assuming that departure was legally possible, a sufficiently significant change of circumstances justified it. The evidence did not establish such a change.
3. Under section 31(2A) of the Senior Courts Act 1981, the Council bore the burden of showing that, absent the unlawful conduct, it was highly likely that the outcome would not have been substantially different. It failed to do so.
4. The court distinguished R (Lichfield) Securities v Lichfield District Council [2001] EWCA Civ 304 and [2001] PLR 33. Permission to apply did not prevent reconsideration of delay where the issue had not been fully argued at the leave stage. On the evidence, however, the claimant had acted promptly and there was no undue delay.
5. Obiter, the court stated that exceptional public-interest considerations under section 31(2B) of the Senior Courts Act 1981 would, if necessary, have justified withholding relief after balancing the Council’s financial and housing responsibilities against the importance of holding it to its published promises.

The Council was left to decide how to reconsider the matters covered by the quashed decision in light of the judgment.

First-instance judicial review. Permission to apply was granted by Holman J. No appellate decision is described in the judgment.