R (Hough) v Secretary of State for the Home Department

The claimant brought judicial review challenges to the making of the Town and Country Planning (Napier Barracks) Special Development Order 2021/962. The key legal issues were whether the decision-making and screening under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 were lawful (including alleged breach of regulation 64 and errors in applying Schedule 2 paragraphs 10(b) and 13(b) and Schedule 3), whether the SDO unlawfully impeded implementation of the Taylor Wimpey permissions (Pilkington principle), whether the SDO was ultra vires or procedurally unfair (including alleged failures to consult and to carry out relevant inquiries under Tameside), and whether the Secretary of State complied with the Public Sector Equality Duty in section 149 of the Equality Act 2010.

The court rejected the EIA Grounds, holding that the screening opinion was within the scope of permissible planning judgment, that regulation 64 did not require publication of handling arrangements for a screening opinion, and that the SDO did not change or frustrate the Taylor Wimpey permissions so as to engage paragraph 13(b) or the Pilkington principle. The court also rejected the complaints about ultra vires operation of the GPDO, about conspicuous unfairness in consultation, and about inadequate inquiries under Tameside. The court found, however, that the Secretary of State failed to have proper regard to the Public Sector Equality Duty because the Equality Impact Assessment before the Minister covered only use up to 21 September 2021 and did not assess the different and material equality impacts of permitting the use for five years nor identify or consider appropriate mitigation.

This is a first instance judicial review of the Town and Country Planning (Napier Barracks) Special Development Order 2021/962 which granted planning permission to continue use of Napier Barracks for asylum accommodation for five years from 21 September 2021. The claimant is a local resident operating a drop-in centre at the Barracks and challenged the SDO on multiple grounds. The factual background included an existing Taylor Wimpey planning permission for redevelopment of Shorncliffe Garrison (with Napier Barracks forming Phase 4), the prior use of Napier as asylum accommodation under Class Q permitted development during 2020-21, and the making of the SDO following the NB judgment that had required improvements to the accommodation.

The claim sought declaratory and/or quashing relief in relation to the SDO. The court framed and decided the following issues: (i) whether the screening opinion and related procedure complied with the EIA Regulations 2017 (including regulation 64 and the application of Schedule 2 paragraphs 10(b) and 13(b) and Schedule 3 selection criteria); (ii) whether the SDO frustrated the implementation of the earlier Taylor Wimpey permission (Pilkington); (iii) whether the SDO was ultra vires or procedurally unfair by avoiding requirements of the GPDO Class Q, by failure to consult or to make adequate Tameside inquiries; (iv) whether the Secretary of State complied with the Public Sector Equality Duty (PSED) in section 149 of the Equality Act 2010; and (v) whether any procedural failing should be remedied by applying the no‑difference principle (Simplex / section 31(2A) Senior Courts Act 1981).

On the EIA points the court stressed the limited and preliminary nature of a screening opinion and accepted the defendant's evidence that the SDO did not alter the Taylor Wimpey permission or require assessment under paragraph 13(b). The court held that regulation 64 does not impose publication or transparency obligations for screening opinions and that the administrative arrangements deployed did not breach regulation 64. On Pilkington and the alleged impediment to implementation, the court accepted that the SDO did not physically or legally prevent the reserved matters from being implemented in the timeframes provided. On procedural fairness and Tameside inquiries the court held there was no conspicuous unfairness or abuse of power in the consultation approach and that the investigations undertaken (by Cushman & Wakefield and others) met the required standard for the decision-maker's inquiries.

On the PSED the court concluded there was a material failure. The Equality Impact Assessment before the deciding minister addressed only the limited period to 21 September 2021 and did not analyse the differing and potentially greater equality impacts of allowing the use to continue for five years, nor did it consider mitigation or co‑ordinated measures with local services. That absence of proper regard to section 149 rendered the decision unlawful on that ground. The court also declined to apply the no‑difference / s.31(2A) principle because it could not be satisfied the outcome would necessarily have been the same or that quashing would be futile given the possibility that further assessment might lead to mitigation measures.

The claim is allowed in part. The court rejected the claimant's challenges based on the EIA Regulations (including regulation 64, Schedule 2 paragraph 10(b)/13(b) and Schedule 3), the Pilkington principle, ultra vires/substantive GPDO complaints, failures of consultation and alleged insufficiency of Tameside inquiries; but the court found that the Secretary of State failed to have proper regard to the Public Sector Equality Duty under section 149 of the Equality Act 2010 because the Equality Impact Assessment only addressed the short-term use to 21 September 2021 and did not assess or identify mitigation for the material, longer-term equality impacts of the five-year permission. The court declined to withhold relief under the no-difference principle.