The Secretary of State was successful in Islington LBC v Secretary of State for Communities and Local Government [2013] EWHC 4009 (Admin) in what was a much anticipated challenge by a number of local authorities to set aside the Secretary of State’s previous refusal of their claims for exemption of certain areas within their boroughs from the permitted development regime following last year’s amendments made to the Town  and Country Planning (General Permitted Development) Order 1995 following the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013. The background and the material impact of such changes are discussed in a number of recent newsletter and seminar articles written by members of chambers.2

The Islington case focused on the consultation process held prior to the changes being made. As part of a lengthy process of announcements and ministerial statements, the aims of the proposed Order were published and, in January 2013, local planning authorities were advised of their entitlement to apply for a particular area to be exempted from the amendment if necessary to avoid adverse economic impact. Such applications required supporting evidence and the threshold for exemption was high. The claimant local authorities challenged the Secretary of State’s decision not to grant them the relevant exemptions. The authorities contended that they had not been informed that marks would be awarded for robustness of evidence separately from the strength of the application itself; and that there had been no reference in the letter of January 2013 to the need to cross-refer to planning policies in their supporting evidence.

Mr Justice Collins held that sufficient information to enable all applicants to appreciate what had to be established in order to obtain an exemption and the need to provide clear and cogent evidence to support their applications had been given in the consultation process and relevant statements. Whilst it “would have been sensible” for the defendant to have worked out in advance how applications were to be assessed and to have given that information to the local planning authorities, “failure to do what is best is not to be equated to unfairness justifying a decision that what was done was unlawful” (see paragraph [29]).