British Blind And Shutter Association, R (On the Application Of) v Secretary of State for Housing Communities And Local Government

A statutory consultation duty owed to representative bodies is distinct from a general public consultation. The decision-maker must identify the relevant representative bodies and take positive steps to communicate a genuine invitation to respond. Whether direct notification is required depends on the statutory context.

Consultation is unlawful where the proposal is not described clearly enough to enable an affected body to make an intelligent response, particularly where the measure removes an existing commercial opportunity. A precautionary policy may nevertheless be rational where it is supported by technical advice and evidence of a possible risk. An unfair consultation may justify quashing only the severable provision affected by the failure.

The claimant trade association sought judicial review of regulation 2(2) of the Building (Amendment) Regulations 2018, insofar as it introduced regulation 2(6)(b)(ii) into the Building Regulations 2010. That provision brought devices attached to external walls for reducing heat gain, including external shutters, blinds and awnings, within a ban on combustible materials in relevant high-rise buildings.

The claimant alleged breach of the statutory duty to consult under section 14(3) of the Building Act 1984, inadequate consultation, failure to consider material matters and irrationality. The central issues were whether the public consultation fulfilled the statutory duty and whether it fairly disclosed the proposed extension of the ban.

1. Claim allowed. Regulation 2(2) of the Building (Amendment) Regulations 2018 was quashed insofar as it introduced regulation 2(6)(b)(ii) of the Building Regulations 2010.
2. Section 14(3) of the Building Act 1984 imposed a mandatory duty to consult the Building Regulations Advisory Committee and bodies appearing to represent the interests concerned. The public at large was not a representative body within that provision. A general public consultation could supplement, but could not diminish, the statutory duty.
3. The essence of consultation was the communication of a genuine invitation, extended with a receptive mind, to give advice. The Secretary of State therefore had to take positive steps to identify relevant representative bodies, notify those identified, and otherwise publicise the consultation adequately among bodies representing the affected interests. The principles in Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 WLR 191 remained applicable.
4. The consultation was unlawful in relation to external shutters, blinds and awnings. Its title, stated scope and background focused on combustible cladding and external wall construction. Paragraph 24 and question 6 referred to balconies, window spandrels, brise soleil and similar attachments, but did not make clear that shading products were included. The affected trade association was therefore not given sufficient information to make an intelligent response. The higher demands of fairness applied because the measure removed an existing commercial opportunity.
5. The alleged failure to consider the financial effects and benefits of shading products was not established as an independent ground. Those matters had not been raised in the consultation. The decision to include the products was not irrational. The Secretary of State was entitled, on technical advice and the information then available, to adopt a precautionary approach based on the location, arrangement and materials of attachments rather than their intended function.
6. The procedural failure was not cured by the promised review. The provision was severable and quashing it did not require removal of the wider regulatory scheme.

First-instance judicial review in the Administrative Court. The claim was allowed and the affected provision was quashed.