SALLY HOUGH (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

An environmental impact assessment screening opinion is a limited and provisional decision. It does not ordinarily require publication of administrative arrangements or public consultation where no public participation rights arise.

A special development order may take precedence over conditions in a general development order. However, the Public Sector Equality Duty requires substantive and conscientious consideration of equality impacts over the full duration of a proposed use. A short-term equality assessment cannot discharge that duty for a materially longer use where long-term community effects, service pressures and mitigation are not considered.

The claimant brought two linked judicial review claims challenging the making of the Town and Country Planning (Napier Barracks) Special Development Order 2021/962, which granted temporary permission for Napier Barracks to be used as asylum accommodation for five years. She alleged breaches of the environmental impact assessment regime, conflict with an existing housing permission, unlawful avoidance of the general permitted development regime, procedural unfairness, inadequate inquiry and breach of the Public Sector Equality Duty.

The central issues were whether the order changed the authorised housing development, whether consultation or further inquiry was required, and whether the equality assessment addressed the full period and consequences of the proposed use.

The claim succeeded on Ground 3(iii), concerning the Public Sector Equality Duty. The remaining grounds failed, and the court declined to apply the no-difference principle.

1. Functional separation and screening. Regulation 64 required objective decision-making and appropriate administrative arrangements securing functional separation. At the screening stage it did not require those arrangements to be written down or published, or require public consultation or notification. London Historic Parks and Gardens Trust v Secretary of State for Communities and Local Government [2021] JPL 580 was distinguishable because it concerned a full environmental impact assessment involving public participation rights.
2. Environmental impact assessment. The special order did not change the authorised Taylor Wimpey development. The relevant phases remained legally and practically separable, and the existing permissions did not require them to be built together. The court therefore found no need to assess the order under Schedule 2 paragraph 13(b). The screening materials had considered the adjoining development and Schedule 3 matters. The limited and provisional nature of screening, explained in R (Kenyon) v SSHCLG [2020] EWCA Civ 302, R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157 and Hockley v Essex County Council & Anr [2013] EWHC 4051 (Admin), meant that the court should not interfere absent obvious overlooked effects and objective evidence of material error.
3. Incompatible permissions. The principle in Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527 did not apply because the order did not prevent implementation of the existing permission in its permitted terms.
4. General and special development orders. Under section 59 of the Town and Country Planning Act 1990, the specific special development order took precedence over the general permitted development regime. Article 1(2) of the GPDO and article 3 of the special order meant that the later order could supersede the Class Q condition without an express discharge.
5. Consultation and inquiry. There was no general duty to consult. The threshold of conspicuous unfairness required unfairness amounting to an abuse of process. R (Article 39) v Secretary of State for Education [2021] PTSR 696 was distinguishable. The inquiries undertaken were adequate under the high threshold in Secretary of State for Education v Tameside MBC and explained in R (Plantagenet Alliance) v Secretary of State for Justice [2015] 3 All ER 261.
6. Equality duty and remedy. The Minister had an assessment dealing with continuation only until September 2021, not the five-year period authorised by the order. There was no proper consideration of longer-term community relations, pressure on local services or possible mitigation. The individual 90-day limit on residents did not address impacts arising from the duration of the use. Although a formal equality impact assessment was not mandatory, the substantive duty had not been fulfilled. It was not highly likely that a lawful reconsideration would produce no substantial difference, so section 31(2A) of the Senior Courts Act 1981 and Simplex GE (Holdings) v Secretary of State for Trade [1989] 3 PLR 25 were not applied.