Peat & Ors, R (on the application of) v Hyndburn Borough Council [2011] EWHC 1739 (Admin)

“Stakeholder consultation: a copy of the consultation document, a summary of the responses received (ie those within the proposed area and also those in the area surrounding proposed designation), and demonstrate how these have either been acted on or not, giving reasons. The consultation should inform local residents, landlords, letting agents and other businesses about the proposed designation, giving the reasons for proposing it, why alternative remedies are insufficient, demonstrating how it will tackle specific problems, and describing the potential benefits.”

“9. ...The underlying principles are not in dispute. They were identified by Mr Stephen Sedley QC in argument in R v Brent LBC ex p Gunning (1985) 84 LGR 168 and were adopted by Hodgson J in his judgment in that case at p 189. They are: ‘First, that the consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, that adequate time must be given for consideration and response, and finally, fourth that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.’ 10. Those principles were elaborated in this way by McCullough J in ex pCran at p 38 as follows: ‘What kind and amount of consultation is required in a particular case must depend on the circumstances. A few general principles can however, be stated. The process of consultation must be effective; looked at as a whole, it must be fair. This requires that: consultation must take place while the proposals are still at a formative stage; those consulted must be provided with information which is accurate and sufficient to enable them to make a meaningful response; they must be given adequate time in which to do so; there must be adequate time for their responses to be considered; the consulting party must consider responses with a receptive mind and a conscientious manner when reaching its decision.’ So far as they go, those passages in my judgment correctly state the relevant principles. 11. They do not, however, provide a complete answer to the question which arises for decision in this case. Thus, they do not address the question what is the necessary extent of the notification or consultation required in order to discharge the duty. As McCullough J pointed out, all will depend upon the circumstances. For example, a national project with wide implications for society as a whole will require far more extensive consultation than the installation of a pedestrian and cycle crossing [which was the issue in that case] Provided that the notification and consultation satisfy the principles set out above, it appears to me that council must have a comparatively wide discretion as to how the process is carried out. The council cannot be in breach of duty unless the extent of the consultation process was such as to be outside the ordinary ambit of its discretion. In short, in order to be unlawful the nature and extent of the process must be so narrow that no reasonable council, complying with the principles set out above, would have adopted it.”

“116. ... The purpose of the 2006 Consultation Document as part of the process of ‘the fullest public consultation’ was unclear. It gave every appearance of being an issues paper, which was to be followed by a consultation paper containing proposals on which the public would be able to make informed comment. As an issues paper it was perfectly adequate. As the consultation paper on an issue of such importance and complexity it was manifestly inadequate. It contained no proposals as such, and even if it had, the information given to consultees was wholly insufficient to enable them to make "an intelligent response". The 2006 Consultation Document contained no information of any substance on the two issues which had been identified in the 2003 White Paper as being of critical importance: the economics of new nuclear build and the disposal of nuclear waste. When dealing with the issue of waste, the information given in the 2006 Consultation Document was not merely wholly inadequate, it was also seriously misleading as to CoRWM's position on new nuclear waste. 117. On both the economics and the waste issues all, or virtually all, the information of any substance (the cost-benefit analysis and supporting reports, and CoRWM's draft and then final recommendations) emerged only after the consultation period had concluded. Elementary fairness required that consultees, who had been given so little information hitherto, should be given a proper opportunity to respond to the substantial amount of new material before any ‘in principle’ decision as to the role of new nuclear build was taken. There could be no proper consultation, let alone ‘the fullest public consultation’ as promised in the 2003 White Paper, if the substance of these two issues was not consulted upon before a decision was made. There was therefore procedural unfairness, and a breach of the claimant's legitimate expectation that there would be ‘the fullest public consultation’ before a decision was taken to support new nuclear build.”

“The Court of Appeal said in para 76 of its judgment that the Code is something that those to whom it is addressed are expected to follow unless they have good reason for not doing so: see R v Islington London Borough Council, ex p Rixon (1996) 1 CCLR 119, per Sedley J at p 123. Like my noble and learned friend Lord Bingham of Cornhill I would go further. They must give cogent reasons if in any respect they decide not to follow it. These reasons must be spelled out clearly, logically and convincingly. I would emphatically reject any suggestion that they have a discretion to depart from the Code as they see fit. Parliament by enacting section 118(1) has made it clear that it expects that the persons to whom the Code is addressed will follow it, unless they can demonstrate that they have a cogent reasons for not doing so. This expectation extends to the Code as a whole, from its statement of the guiding principles to all the detail that it gives with regard to admission and to treatment and care in hospital, except for those parts of it which specify forms of medical treatment requiring consent falling within section 118(2)... 70. If good reasons are required for departing from the system that the Code sets out for the monitoring and review of the use of seclusion, there are ample grounds for thinking that they have been well demonstrated...”

“...the respondent should be permitted to recanvass, by way of undue delay, an issue of promptness which has been decided at the leave stage in the applicant's favour only (i) if the judge hearing the initial application has expressly so indicated, (ii) if new and relevant material is introduced on the substantive hearing, (iii) if, exceptionally, the issues as they have developed at the full hearing put a different aspect on the question of promptness, or (iv) if the first judge has plainly overlooked some relevant matter or otherwise reached a decision per incuriam.”

“Secondly, I am satisfied that no real prejudice will be caused to the defendant by permitting the application to proceed. The only argument advanced on behalf of the defendant by Mr Halliwell was that it would be administratively inconvenient, an assertion to which he was unable to attach any substance when pressed. If it should transpire that there was any substance to the argument, that is a matter that could be considered when considering the appropriate remedy should the claimant’s [claim] succeed.”

“Such delay has caused the defendant considerable prejudice as set out in Helen Graham’s Statement of 16 May 2011 at paragraphs 29 to 31. The designation came into force on 1 October 2010. Some landlords have accordingly applied and paid for the cost of the requisite licence and incurred costs in ensuring that properties will meet the necessary standards and in obtaining the necessary certification. Many other landlords have made applications for licences which are not yet complete, but nonetheless have incurred costs of ensuring their properties meet the requisite standards and in obtaining the necessary certification. As the designation is in force, landlords who have not obtained a licence are not able to evict tenants on the basis of 2 months notice. Currently, both landlords and tenants are in a state of confusion as to whether or not that will be enforced by the Courts (in proceedings to which the Defendant would not be a Party) if a landlord seeks to evict a tenant on that ground. That confusion exists in relation to all the other consequences of an area being designated.”