R (on the application of Clarke-Holland) v Secretary of State for the Home Department and another and related applications

Town and country planning – Permitted development – Claimants seeking judicial review of decision to decommission Ministry of Defence sites to accommodate asylum seekers – Whether defendant misinterpreting definition of “emergency” in Class Q in part 19 of schedule 2 to Town and Country Planning (General Permitted Development) (England) Order 2015 – Whether defendant’s assessment of environmental effects of development unlawful – Whether defendant discharging public sector equality duty – Applications dismissed The claimants applied for judicial review of the decision to decommission two former RAF airfields to be used to accommodate asylum seekers. Both sites were Crown land in which there was a Crown interest, which included an interest belonging to a government department. The three claims were brought by C (a local resident of Wethersfield), Braintree District Council, as the local planning authority for RAF Wethersfield and West Lindsey District Council, as the local planning authority for RAF Scampton. The first defendant secretary of state, who had statutory responsibility for destitute asylum seekers, was the defendant in all three claims. The secretary of state for levelling up, who issued the screening directions, was the second defendant in C’s claim. The secretary of state for defence was an interested party in all three claims as the Ministry of Defence owned both sites. The defendant had relied on Class Q in part 19 of schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 which permitted, subject to conditions, development by or on behalf of the Crown on Crown land for the purposes of: (i) preventing an emergency; (ii) reducing, controlling or mitigating the effects of an emergency; or (iii) taking other action in connection with an emergency. Development was conditional, amongst other things, upon it ceasing and being reversed within 12 months. Issues arose as to whether the defendant had misinterpreted the definition of “emergency”; whether her assessment of the environmental effects of the development based on 12 months’ use was unlawful; and whether she had discharged her public sector equality duty (PSED). Held: The applications were dismissed. (1) The definition of “emergency” in paragraph Q.2(1) was intended to be comprehensive, so far as it related to the application of Class Q. The term had to be understood in its stipulated sense and the court had to take care not to apply a judicial paraphrase or other gloss on a statutory definition. Lawful reliance on the Class Q permitted development right depended on the defendant’s ability to demonstrate an event or situation which threatened serious damage to human welfare in the UK by virtue of homelessness. In the present case that related to asylum seekers. It was primarily a matter for the defendant who had statutory responsibility for accommodating destitute asylum seekers and consequential institutional knowledge and experience. However, for present purposes, the outcome was the same whether the court applied the law to the facts itself or reviewed the judgment of the defendant in this regard. In either case the defendant’s reliance on Class Q was lawful.  (2) The decision on the “project”, including its length, was a matter of judgment for the decision maker, subject to judicial review on the usual public law grounds. The formal planning document might not necessarily circumscribe the project: R (Ashchurch Rural Parish Council) v Tewkesbury Borough Council [2023] EWCA Civ 101; [2023] PLSCS 30; [2023] PTSR 1377 considered. On the facts of the present case, the Class Q route was a stand-alone or discrete solution to the urgent difficulties faced by the Home Office in light of the defendant’s statutory duty to accommodate asylum seekers. The defendant was willing to take the risk that it might be necessary to decommission the sites at the end of the 12-month period, if planning permission had not been obtained by then, for the benefits afforded by the 12-month permission. Where a development was justified on its own merits, and would be pursued independently of another development, that might indicate that it constituted a single individual project that was not an integral part of a more substantial scheme: R (Wingfield) v Canterbury County Council [2020] EWCA Civ 1588; [2020] PLSCS 215; [2020] JPL 154 considered. The discussions about the future were at such an early stage that there was no reliable information available to officials to undertake a satisfactory cumulative assessment of any potential development beyond the proposed development. In all the circumstances, the assessment of the project on the basis of 12 months’ use was not unlawful: R (Littlewood) v Bassetlaw District Council [2008] EWHC 1812 (Admin); [2008] PLSCS 179; [2009] Env LR 21 and R (Substation Action Ltd) v Secretary of State [2023] PTSR 975 considered. (3) As regards the PSED, it was not irrational for the defendant to rely on her department’s understanding of the likely community tensions from previous experience gained from housing asylum seekers in other parts of the country. The claimants had not identified any particular characteristics of the sites under scrutiny that set them apart from sites in other areas of the country. Subject to a Wednesbury challenge, it was for the public body and not the court to decide upon the manner and intensity of inquiry to be undertaken. The court should intervene only if no reasonable authority could have been satisfied based on the inquiries made that it possessed the information necessary for its decision: R (Sheakh) v Lambeth London Borough Council [2022] EWCA Civ 457; [2022] PLSCS 59; [2022] PTSR 1315 considered. Ministers acknowledged the significant risk of community tensions, based on previous experience of housing asylum seekers on other sites. The equality impact assessment proceeded on the basis that the sites would be used for as long as was expedient. On the evidence, there was no certainty about the duration of the use of the sites after the 12-month period afforded by the Class Q permitted development right.   (4) Given the context of the decision-making, value for money was not so obviously material that it was irrational for the defendant to rely on the submission that her permanent secretary was content with the value for money analysis without inquiring into the details of the underlying analysis. Other obvious motivating factors for decision making included the defendant’s statutory responsibility to accommodate asylum seekers and the difficulties with current arrangements with hotels, which extended beyond cost to legal action by local authorities to prevent the use of hotels. Moreover, there was nothing in the decision-making material to indicate that the defendant was operating under a mistaken understanding that value for money was satisfied however long the sites were used for.   Alex Goodman KC and Barney McCay (instructed by (instructed by Deighton Pierce Glynn) appeared for the claimant in the first appeal; Richard Wald KC and Jake Thorold (instructed by West Lindsey District Council) appeared for the claimant in the second appeal; Wayne Beglan and Jack Barber (instructed by Braintree District Council) appeared for the claimant in the third appeal; Paul Brown KC, Nicholas Grant and Harley Ronan (instructed by the Government Legal Department) appeared for the first defendant; Richard Honey KC and Michael Rhimes (instructed by the Government Legal Department) appeared for the second defendant; Charles Streeten (instructed by the Government Legal Department) appeared for the interested party. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Clarke-Holland) v Secretary of State for the Home Department and another and related applications