West Berkshire District Council v Secretary of State for Communities and Local Government

The Court of Appeal allowed the Secretary of State’s appeal against Holgate J’s decision that the Written Ministerial Statement of 28 November 2014 was unlawful. The court held that (i) the WMS did not unlawfully seek to countermand or frustrate the statutory planning regime embodied in s.38(6) of the Planning and Compulsory Purchase Act 2004 and s.70(2) of the Town and Country Planning Act 1990; (ii) the Secretary of State, exercising a common law prerogative power to make national planning policy, was not obliged to take into account further detailed material considerations beyond those addressed and did not err in the formulation of the policy; (iii) the consultation process was not so unfair as to be unlawful because the consultation material and question were broad enough to enable intelligent responses and the Secretary of State conscientiously considered the responses; and (iv) the post-decision Equality Statement satisfied the Public Sector Equality Duty (Equality Act 2010 s.149) and quashing the decision was not required as a disciplinary remedy.

Background and parties: This was an appeal by the Secretary of State against a High Court (Holgate J) declaration that a Written Ministerial Statement (WMS) of 28 November 2014 announcing national planning policy changes was unlawful. The claimants at first instance were West Berkshire District Council and Reading Borough Council. Permission to appeal was granted by Lewison LJ.

Nature of the claim / relief sought: The respondents sought judicial review of the WMS. Holgate J granted declaratory relief on four grounds: inconsistency with the statutory planning regime, failure to take into account material considerations, inadequate consultation, and breach of the Public Sector Equality Duty (Equality Act 2010 s.149).

Procedural posture: The appeal came from the Administrative Court decision reported at [2015] EWHC Admin 2222 and was heard in the Court of Appeal on 15–16 March 2016, resulting in this judgment of 11 May 2016.

Issues framed:

• Whether the WMS unlawfully overrode development plan policies and thereby conflicted with s.38(6) PCPA 2004 and s.70(2) TCPA 1990;
• Whether the Secretary of State failed to take into account material considerations in formulating the policy;
• Whether the consultation process satisfied the relevant requirements of fairness (the Sedley criteria) and enabled intelligent responses;
• Whether the Secretary of State complied with the Public Sector Equality Duty under Equality Act 2010 s.149.

Court’s reasoning and outcome on each issue:

• On inconsistency with the statutory scheme the Court emphasised the distinction between the rule against fettering discretion (which requires decision-makers to consider individual cases) and the ability of a policy-maker to state policy in unqualified terms. The WMS did not, on its face, purport to frustrate s.38(6) or s.70(2) and was not unlawful for stating firm policy objectives. The Court held Holgate J had conflated how policy was expressed with how it must lawfully be applied.
• On material considerations the Court accepted that the Secretary of State’s power to make national policy arose from the common law prerogative and, although constrained by the statutory planning context, was not subject to the same statutory obligations as a statutory discretionary power. The Secretary of State was not obliged to go into the detailed matters the judge had identified.
• On consultation the Court found the consultation document, viewed as a whole with its broad question, was sufficient to enable consultees to make intelligent responses; the alleged failure to explain the term "disproportionate burden" narrowly as relating only to viability was not established, and the Secretary of State was entitled to weigh consultation responses and form his own judgment.
• On PSED the Court held the subsequent Equality Statement of February 2015 addressed the statutory duty with sufficient rigour and, having regard to context and absence of bad faith, quashing the decision was not warranted; declaratory relief was unnecessary where the later assessment was adequate.

Remedy: The Court allowed the appeal and overturned Holgate J’s declarations.

Appeal allowed. The Court of Appeal concluded that the WMS did not unlawfully override or frustrate the statutory planning regime (notably s.38(6) PCPA 2004 and s.70(2) TCPA 1990); the Secretary of State was not required, when exercising the Crown’s common law power to make policy, to undertake the detailed inquiries the judge identified; the consultation process was not unlawfully deficient; and the subsequently produced Equality Statement complied with the Public Sector Equality Duty such that quashing the policy was not required.

Appeal from the Administrative Court (Holgate J) at first instance, judgment given 31 July 2015 (reported at [2015] EWHC Admin 2222). Permission to appeal was granted by Lewison LJ on 22 September 2015. The Court of Appeal delivered judgment allowing the appeal on 11 May 2016 ([2016] EWCA Civ 441).