Devonhurst Investments Limited, R (on the application of) v Luton Borough Council

The claimant sought judicial review of Luton Borough Council’s decision to issue an enforcement notice under s.172 of the Town and Country Planning Act 1990 in respect of a change of use and building works at Shire House, Dallow Road. The challenged grounds were (i) failure to have due regard to the Public Sector Equality Duty under s.149 of the Equality Act 2010, the best interests of children under s.11 of the Children Act 2004, and article 8 ECHR; and (ii) failure to apply properly the statutory expediency test in s.172(1)(b) TCPA.

The court held that the council had carried out a rational, context-sensitive assessment of equality implications, including obtaining an occupancy schedule, recognising likely harms to vulnerable occupiers and children, and weighing those harms against the public interest in remedying substandard accommodation and protecting employment land. The court applied the established Wednesbury standard to the implied duty of reasonable enquiry under the PSED and found no unlawful failure. The claimant had no standing under s.7 HRA to advance occupiers’ article 8 rights and, on the evidence, no breach of article 8 was shown. The council had also lawfully considered relevant matters when assessing expediency and was not obliged to treat earlier informal officer comments as mandatory relevant considerations. The claim was dismissed.

Background and parties: Devonhurst Investments Ltd (landowner) challenged Luton Borough Council’s enforcement notice (ref: 21/00045/UBC) alleging unauthorised change of use to residential (c.109 units) and erection of structures. The council issued the notice on 25 February 2022 (to take effect 8 April 2022), with six months for compliance. The claimant appealed the notice to the planning appeal process and brought this judicial review, with permission limited by HHJ Jarman KC on 6 October 2022 to specified grounds.

Nature of the claim / relief sought:

• Quashing of the enforcement notice on grounds that the decision-maker failed to comply with the Public Sector Equality Duty (s.149 EA 2010), failed to treat the best interests of children properly (s.11 Children Act 2004) and failed to have regard to article 8 ECHR; and
• Failing to apply the statutory expediency test in s.172(1)(b) TCPA (that it was expedient to issue the notice having regard to the development plan and other material considerations).

Issues framed by the court:

• Whether the council complied with the PSED and its implied duty of reasonable enquiry;
• Whether the council gave appropriate regard to the best interests of children;
• Whether the claimant had standing to advance occupiers’ article 8 rights and, if so, whether article 8 was breached;
• Whether the council lawfully applied the expediency test and whether it failed to take into account material considerations (including earlier informal officer communications).

Court’s reasoning and conclusions:

• PSED (s.149 EA 2010): the court reiterated applicable authorities and principles (including that the duty implies a reasonable enquiry akin to Tameside but subject to Wednesbury scrutiny). The council had obtained an occupancy schedule, appreciated that occupiers included vulnerable people and children, and expressly weighed harms to occupiers (housing, health, schooling, financial wellbeing) against the public interest in remedying substandard accommodation and protecting an employment site. Given the context and transient nature of occupiers, the inquiries undertaken were rational and lawful; no material failure of the PSED was made out.
• Article 8 ECHR: the claimant, a commercial landlord, lacked victim status under s.7 of the Human Rights Act to litigate alleged breaches of occupiers’ article 8 rights. Even if standing were assumed, no established violation of article 8 was shown on the evidence and the council’s proportionality assessment was adequate.
• Best interests of the child (s.11 Children Act 2004 / UNCRC): the court clarified that the UNCRC is not directly incorporated; s.11 requires decisions to be taken having regard to safeguarding and promoting children's welfare. The council had regard to children’s interests and the decision did not require individualized inquiries into each child; the council’s approach sufficed in context.
• Expediency (s.172(1)(b) TCPA): the council’s officer report addressed expediency and balanced the public interest and harms. Informal earlier officer emails were not so obviously material as to require mandatory consideration; there was no legal obligation to treat them as decisive. The claimant’s contention that the council failed to take material considerations into account was rejected.

Outcome: The claim was dismissed. The court noted that further challenge to the enforcement notice on statutory appeal grounds under s.174 TCPA remained available to the claimant.

The claim for judicial review is dismissed. The court held that the council lawfully discharged its Public Sector Equality Duty (s.149 EA 2010) by making reasonable enquiries and by considering and weighing the likely impacts on protected groups and children; the claimant lacked standing under s.7 HRA to pursue occupiers’ article 8 rights and no article 8 breach was made out; and the council lawfully applied the expediency test in s.172(1)(b) TCPA, such that no material omission or illegality in its reasoning was established.

Permission to bring the judicial review was granted by HHJ Jarman KC on 6 October 2022 in respect of Ground 2 (PSED, best interests of children, article 8) and Ground 3 (expediency). No appellate history beyond the planning appeal against the Enforcement Notice under s.174 TCPA is recorded in this judgment.