Legitimate Expectation

January 15th, 2018

In Richborough Estates Ltd v SoS for CLG (2018) EWHC 33 (Admin) the Claimants challenged the Defendant’s decision to issue a Written Ministerial Statement (“WMS”) in relation to national planning policy concerned with housing and neighbourhood planning, together with a subsequent associated change to the National Planning Practice Guidance (“the PPG”).

In the Localism Act 2011 a new tier of the Development Plan was created by the extensive amendment of the Town and Country Planning Act 1990. Once made, a Neighbourhood Development Plan (“NDP”) forms part of the Development Plan for the purposes of Section 38(6) of the Planning and Compulsory Purchase Act 2004, which provides that determinations shall be “in accordance with the plan unless material considerations indicate otherwise”. The neighbourhood area, for which the plan is made, will be far smaller than the administrative area of the relevant local planning authority (“LPA”), and therefore the plan will be more locally focussed. Two features should be noted. Firstly, it is now well settled that the NDP can allocate land for development including housing and contain a policy determining a volume of development (such as houses) to be developed during the plan period. Secondly, specific provision is made for NDPs within the National Planning Policy Framework (“the Framework”).

Dove J observed that since the introduction of NDPs it is clear from the evidence before the Court that there are differing opinions as to whether they are a constructive part of the planning system. It is also clear that in introducing them the SoS has been of the view that they enable local communities to have a stronger and more effective say in the future development of their areas. A significant number of communities have taken the opportunity to make a NDP for the area in which they live and work. By contrast the extensive evidence from members of the housebuilding industry and their planning advisors which is before the Court contends that NDPs are being used to frustrate development and are not an effective mechanism for planning to meet housing requirements. That is not a debate which the Court can resolve. It is, however, the backdrop to the disputed policy which is the subject of the case.

One of the grounds of challenge was a contention that on the basis of regular past practice, there was a legitimate expectation that the SoS would consult the house building industry in relation to:

“a. any change to National Planning Policy for housing, or alternatively,

  1. any major change for National Policy for housing or, alternatively,
  2. any major change to the policy pertaining to five year housing supply in national policy.”

It was common ground that there was no statutory basis for any requirement that consultation should occur in relation to national planning policy for housing of the kind that, for instance, underpinned the decision of the Supreme Court in R (Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3947. As Lord Wilson JSC observed at paragraph 23 of his judgment a duty to consult can arise in a variety of ways including where it is generated by statute. In the present case it was contended by the Claimants that the duty to be consulted arises specifically as a consequence of the doctrine of legitimate expectation. This was a case in which the Claimants did not contend that the duty to consult arose on the freestanding basis of the requirements of fairness divorced from the operation of the doctrine of legitimate expectation. The Claimants’ argument was firmly pinned to a requirement for consultation based upon legitimate expectation derived from prior practice. The question of whether the requirements of fairness might be infringed by a change to national planning policy without public consultation does not arise for decision in the present case.

Dove J observed, at paragraph 64, that the starting point for considering this ground must be the requirements necessary to establish whether or not a legitimate expectation arises. The nature of a legitimate expectation was set out by Lord Fraser of Tullybelton in the case of CCSU v Minister for Civil Service [1985] 1 AC 374 at page 401A-F.  The principles which govern the doctrine of legitimate expectation were further considered by the Court of Appeal in the case of Bhatt Murphy v Independent Assessor [2008] EWCA Civ 755. Following the decision in CCSU the Court of Appeal had given further consideration to the principles of legitimate expectation in other cases, and these authorities were referred to by Laws LJ in setting out the principles pertaining to legitimate expectation in his judgment in Bhatt Murphy, where he distilled the legal principles.

Dove J continued:-

“66.      As is evident from Laws LJ’s decision it is necessary for there to be “an unequivocal assurance” either expressly or implicitly from practice upon which the legitimate expectation is then grounded. …

  1. It is the claimants’ contention that on every occasion when there have been changes to national planning policy in relation to housing in the past there has been consultation with the house building industry before that policy has been confirmed. Thus, they contend that as a consequence of that practice there was a legitimate expectation that they would be consulted about the written ministerial statement before it was issued by the defendant. They draw attention to the fact that the defendant was warned of a risk of legal action if he failed to consult, and further rely upon the discussions evidenced in the recent disclosure suggesting that there would be consultation on this policy change through the White Paper.
  2. The starting point for evaluating the claimants’ submissions must be the observation that the legitimate expectation which they rely upon and seek to frame is narrow in its scope. Firstly, as pleaded, it is restricted to consultation with the house building industry. It is in my view important to observe that the house building industry are not the only parties with an interest in the content of national planning policy for housing. LPAs, amenity groups and the public at large will all have a potential interest or concern in relation to any change in national planning policy for housing. In some respects they may have a different perspective from the house building industry, but that is no reason to exclude them from an entitlement to be consulted in relation to a change to national planning policy for housing. This observation is by no means fatal to the claimants’ case. Perhaps more felicitously expressed the legitimate expectation for which they might contend would be for public consultation in relation to changes to national planning policy for housing which would include, amongst others interests, the house building industry. Alternatively, the legitimate expectation claimed might be formulated as a requirement for consultation with the public at large in relation to any change to national planning policy for housing.
  3. The second observation in respect of the narrowness of the pleaded legitimate expectation is that it is limited to changes (or major changes) to national planning policy for housing. It is necessary for the claimants to limit the legitimate expectation in this way if they are to succeed. The necessity for that limitation arises because there is factual evidence before the court that there have been several occasions where national planning policy has been changed by the issuing of a WMS without there having been any consultation, whether with the house building industry or the public at large, at all. Instances of this include a WMS in respect of national retail planning policy related to the demonstration of need which was made on 11th February 1999. In more recent times, on 15th September 2015, a WMS adjusting national planning policy in relation to the approach to be taken to applications for exploratory apparatus for hydraulic fracturing was issued without any prior public consultation. Thus, there is no basis for the claimants to contend for a legitimate expectation that changes to national planning policy would not occur without prior consultation. There is a history (including two further episodes which are particularly pertinent to the claimants’ claim) of national policy being changed in specific respects from time to time though the issuing of a WMS.
  4. This creates in my view further troubling consequences for the legitimate expectation for which the claimants contend. The question which the claimants’ contention begs is why would a legitimate expectation of the kind they claim apply to national policy pertaining to housing but not to national policy pertaining to retail development or exploration for minerals and energy. The claimants’ response was to point to the specific importance of housing development in terms of providing people with a home (including an affordable home for those who required one), together with the importance to the national economy of the house building industry. Whilst those points are undoubtedly correct, they do not in my view coherently distinguish housing development from other forms of developments of undoubted significance to the economy and national wellbeing, such as developments concerned with retail or mineral exploration. I can see little if any basis to distinguish housing from any other national planning policy so as to contend, against the backdrop that the claimants cannot sustain a legitimate expectation in respect of national policy as a whole, that there may be a legitimate expectation in relation to planning policy for housing.
  5. However, it is not necessary to decide the case on this basis, albeit that it throws up significant evidential fragilities in relation to the claimants’ pleaded legitimate expectation. The defendant’s response to this part of the case draws attention to occasions when the defendant has issued a WMS concerning national housing policy without any prior consultation. The defendant thus contends that there is no evidential basis for the legitimate expectation contended for by the claimants.”

“75.      … on the facts, even confining the enquiry to national planning policy in relation to housing (and ignoring the difficulty of justifying why housing should be isolated from other forms of development in this respect), in my view the evidence does not establish that there has been an unequivocal assurance on the basis of practice that a WMS in relation to national planning policy for housing would not be issued without prior consultation. It is clear that on at least two occasions the defendant has issued WMS without consultation affecting national planning policy for housing. Thus I am unconvinced on the evidence that the claimants have established a legitimate expectation that they would be consulted on the WMS. …”

Comments are closed.