Carallyn Parkes, R (on the application of) v Secretary of State for the Home Department

Carrying out development without planning permission, where permission is required, does not itself constitute a public-law error by the Crown or another body amenable to judicial review. It may constitute a breach of planning control, but enforcement is discretionary and lies primarily with the local planning authority.

A claimant cannot use judicial review against the developer to usurp that discretion. Challenges concerning whether activity amounts to development, whether planning permission is required, and whether enforcement should be taken ordinarily belong against the relevant planning authority. Equality-impact assessments are unlawful only if the decision-maker’s treatment of the relevant equality considerations is irrational.

The claimant, the Mayor of Portland and a local resident, sought permission to bring judicial review proceedings concerning the Secretary of State’s proposal to accommodate destitute asylum seekers on the Bibby Stockholm, moored in Portland Harbour.

The proposed grounds concerned planning control, the geographical jurisdiction of Dorset Council, environmental impact assessment duties, and the public sector equality duty. The claim sought declarations rather than a quashing order. The central issues were whether the Secretary of State had acted unlawfully by proceeding without planning permission and whether the equality assessment was arguably irrational.

1. Permission refused and claim ended. The proposed claim was brought against the wrong defendant. The court refused permission to proceed against the Secretary of State and rejected the proposed amendment to add Dorset Council.
2. Carrying out development without obtaining planning permission required under the Town and Country Planning Act 1990 does not, without more, amount to an error of public law in the exercise of a power to undertake that development. The activity may constitute a breach of planning control, but enforcement under Part VII is discretionary. The local planning authority is not obliged to enforce.
3. Judicial review cannot be used to usurp the local planning authority’s discretionary decision whether enforcement is expedient. Any relevant planning error would be attributable to the authority exercising, or declining to exercise, its planning jurisdiction, rather than to the Secretary of State merely using or proposing to use the barge.
4. Ground 1 was also not arguable because the Secretary of State accepted that the mooring and use of the barge were legally capable of amounting to a material change of use and therefore development requiring planning permission. Whether development actually occurred was for Dorset Council to determine.
5. The court declined to decide at length whether the site fell within planning jurisdiction. The claimant’s arguments concerning the sea shore, accretion, the territorial sea and the Marleasing principle were insufficiently pleaded and lacked a clear legal basis. Any renewed challenge would require a fresh, properly pleaded and argued claim.
6. Ground 3 was parasitic on the jurisdiction challenge and therefore failed with it. Ground 4 was free-standing, but the equality assessments had considered the relevant segregation-related impacts. The claimant had not shown an arguable case of irrationality under sections 149 and 13(5) of the Equality Act 2010.

First-instance judicial review claim. Permission to proceed was refused; the claim was at an end.