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19 MAR 2014

London Borough of Islington and others (Claimants) v Secretary of State for Communities and Local Government (Defendant) [2013] EWHC 4009

The process by which the Secretary of State for Communities and Local Government had refused applications for exemptions from an amendment to the Town and Country Planning (General Permitted Development) Order 1995 was not unfair as to be unlawful.

20 December 2013

Administrative Court, Queen's Bench Division

Collins J

(i)        This was a joint rolled up hearing of applications by three local planning authorities (LPAs) to set aside a decision of the defendant to refuse their claim for exemptions for specific areas within the respective boroughs from an amendment to the Town and Country Planning (General Permitted Development) Order 1995. This amendment adds to the list of developments which do not require a grant of planning permission (permitted developments) those which consist in a change of use of a building from office to dwelling house.

(ii)      Exemptions from this amendment would be granted in exceptional circumstances, where local authorities demonstrated clearly that the introduction of new permitted development rights would lead to, inter alia, substantial adverse economic consequences at local authority level not offset by positive benefits.

(iii)     Collins J (dismissing the applications for judicial review) held: (1) What is required for the process leading to a decision to be fair will depend on the context of the decision. (2) The appropriate threshold for deciding whether an exemption should be allowed was a matter for the judgment of the defendant and could not be challenged. (3) The failure to inform the claimants of the way in which their applications would be assessed was not so unfair as to be unlawful. It was made clear in a letter from the defendant that it was for the applicants for exemption to establish their case and that the threshold would be set at a high level. The claimants could have been expected to be aware of the relevance of planning policies or of the loss of business rates in indicating adverse economic impact. While it would have been sensible for the defendant to have worked out in advance how applications would be assessed and to have given that information to the LPAs, a failure to do this cannot be equated to unfairness resulting in a decision that what was done was unlawful. (4) The time given for the preparation of the exemption application in all the circumstances was not inadequate and certainly not unlawful. No applications for an extension were made and other LPAs were able to put forward all that they needed to put forward in the time allowed.

Claim for judicial review dismissed.

Key Paragraphs

[1] - [3] - Introduction

[4] - [23] - Factual and legal background

[24] - [32] - Discussion

[33] - Conclusion

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