High Court rules Home Office’s Special Development Order granting itself permission for asylum accommodation unlawful

Prison 4712885 1920

On 27 August 2021, the Home Secretary laid before Parliament the Town and Country Planning (Napier Barracks) Special Development Order 2021, the effect of which was to grant planning permission for a change of use for asylum accommodation at the disused Napier Barracks, Folkestone. The site had been used as asylum accommodation reliant on permitted development rights from September 2020 to September 2021. The Order utilised a rarely used power under section 59 of the Town and Country Planning Act 1990 to grant planning permission outright by way of statutory instrument, rather than making any application for planning permission.

The use of the site has been highly controversial in the local community and beyond, and there was evidence that its use had resulted in potential victimisation and harassment of camp residents and heightened racial tensions in the local community. Further, the Napier Barracks forms part of the wider Shorncliffe Garrison, which is subject to a major housing redevelopment scheme.

Sally Hough, a local resident and volunteer at a drop-in centre for the camp, brought a claim for judicial review of the Order. She argued: (1) that the Order was made in breach of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017; (2) that the planning permission granted by the Order was inconsistent with the existing planning permission for the housing redevelopment, analogous to the Pilkington line of cases; and (3) that the decision was unlawful as it was ultra vires the Town and Country Planning (General Permitted Development) (England) Order 2015, was made in breach of the requirements to undertake proper consultation and undertake due inquiries, and had failed to take into account obviously material considerations, including the Public Sector Equality Duty under section 149 of the Equality Act 2010.

On 24 June 2022, Lieven J upheld the claim on the ground that there had been a “failure to have proper regard” to the Public Sector Equality Duty:

“The nature of the development here is one that raises very obvious issues under s.149, in particular relating to potential victimisation and harassment under s.149(1)(a), and the fostering of good relations under s.149(c). The provision of a large amount of segregated accommodation for male asylum seekers on the edge of the town has the obvious potential to create tensions within the local community” (§106).

While an equality impact assessment had been prepared in respect of the site in July 2021, it had only been premised on the continued use of the site for a further two months, rather than for the five years being granted by the Order. Accordingly, Lieven J went on to find:

“there is a very significant difference between a development which is proposed to continue for two months and one for five years. This must especially be the case where the issue is developing community relations, as opposed to some physical impact which will vary little over time. Pressure on community services, for example on the local GP and community health services and possibly on the police, will be very much greater over a prolonged period than only two months. The potential for impact on community relations are wholly different over the much longer period. In the documentation before the Minister, there is no consideration of those longer-term impacts on the community relations. There is no consideration of the ability of local health services to manage this population over the much longer period, and how that situation might impact on issues relevant to s.149” (§107).

The Defendant had argued that the court should exercise its discretion to refuse relief under section 31(2A) Senior Courts Act 1981 as, she submitted, the decision was highly likely not to be substantially different. Lieven J rejected this argument, finding that this was not “a case where a fresh decision is highly likely to be the same and that quashing the decision would merely lead to a waste of time and money” (§113).

A hearing has been listed to determine the form of final order that will be granted.

Alex Goodman, Alex Shattock and Charles Bishop appeared for the Claimant, Sally Hough, instructed by Deighton Pierce Glynn. The case has been reported widely in the media, including on the front page of the Sunday Mirror, in The Guardian and on Planning Resource.

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