Gabriel Clarke-Holland, R (on the application of) v Secretary of State for the Home Department & Anor

Class Q permitted development rights are governed by the exhaustive statutory definition of “emergency” in paragraph Q.2 of Part 19 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. An emergency may be a continuing situation; suddenness, unexpectedness and unforeseeability are not additional requirements. The court must adopt the legally correct construction, but the application of that construction to whether serious harm is threatened may involve administrative judgment subject to ordinary public-law review.

For environmental-impact screening, the “project” is identified by the evidence and circumstances at the decision date. A temporary, stand-alone development may be screened separately from uncertain future development where later use remains inchoate and subject to further consent. Equality duties may be discharged on a rolling basis where the authority has identified relevant risks and planned further practical measures. Value-for-money information is not automatically an obviously material consideration.

Three judicial-review claims concerned the Home Secretary’s decision to use decommissioned Ministry of Defence sites at Wethersfield and Scampton to accommodate asylum seekers. The challenges concerned reliance on Class Q permitted development rights, environmental-impact screening directions, the public sector equality duty and value-for-money considerations.

The claims followed earlier proceedings concerning the use of Class Q at the same sites. The present court addressed the legality of the Home Secretary’s own decision-making and the screening decisions made in March 2023. The central questions were whether the statutory emergency definition was satisfied, whether the screened development was properly characterised as a 12-month project, whether equality assessment could remain rolling, and whether the value-for-money material had been lawfully considered.

1. Class Q. The definition of “emergency” in paragraph Q.2 is comprehensive for Class Q. It covers an event or situation threatening serious damage to human welfare, including homelessness. “Situation” may describe a continuing condition. The court declined to add a requirement that the emergency be sudden, unexpected or unforeseen. Conditions attached to permitted development cannot enlarge the class of development permitted.
2. The Home Secretary had adopted the legally correct construction. The record showed record asylum numbers, a statutory accommodation duty, the unsuitability and unsustainability of hotel accommodation, and a real risk of homelessness. The proposed works were therefore capable of reducing or mitigating the emergency. Whether the facts established the necessary threat involved judgment for the Home Secretary, subject to ordinary public-law review; on either a judicial or deferential approach, reliance on Class Q was lawful.
3. Environmental impact assessment. The relevant project was the temporary 12-month Class Q development. Although longer use was contemplated, its duration, form, location and scale remained unsettled and depended on future circumstances and further planning consent. The project was a stand-alone solution capable of providing temporary relief independently of later development. Treating it as a 12-month project was not irrational, and no cumulative-impact assessment of uncertain future development was required.
4. Equality duty. The Home Office had identified the significant risk of community tensions, relied on relevant operational experience, proposed on-site facilities and multi-agency engagement, and treated the assessment as a living document. The duty concerned process, not outcome. Deferring detailed implementation measures did not amount to deferring the duty itself.
5. Value for money. The Home Secretary’s failure to examine the underlying analysis did not establish unlawfulness. Value for money was not shown to be so obviously material that reliance on the Permanent Secretary’s assurance was irrational, particularly given the statutory accommodation duty and wider operational considerations. The claims were dismissed.

The judgment describes earlier proceedings concerning the same sites, including a decision of the High Court and an appeal to the Court of Appeal. Those proceedings did not determine the present judicial-review challenges.

• High Court: Waksman J addressed the interpretation of Class Q in [2023] EWHC 1076 (KB).
• Court of Appeal: The appeal was determined on a jurisdictional issue and the Class Q issue was not decided: [2023] EWCA Civ 727.
• High Court (Administrative Court): The three present claims were dismissed.