High Court Judgment Template

Neutral Citation Number: [2023] EWHC 3140 (Admin)

Case No:

CO/1539/2023,

AC-2023-LON-001312;

CO/1577/2023,

AC-2023-LON-001346;

CO/1673/2023,

AC-2023-LON-001419

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Wednesday 6

December 2023

Before :

THE HONOURABLE MRS JUSTICE THORNTON DBE

- - - - - - - - - - - - - - - - - - - - -

Between :

THE KING (on the application of GABRIEL

CLARKE-HOLLAND)

Claimant

- and -

(1) SECRETARY OF STATE FOR THE HOME

DEPARTMENT

(2) SECRETARY OF STATE FOR LEVELLING

UP, HOUSING AND COMMUNITIES

Defendants

- and -

(1) BRAINTREE DISTRICT COUNCIL

(2) SECRETARY OF STATE FOR DEFENCE

Interested

Parties

And Between :

- - - - - - - - - - - - - - - - - - - - -

Mr Goodman KC and Mr McCay appeared on behalf of the Claimant (Mr Clarke-Holland)

Mr Wald KC and Mr Thorold appeared on behalf of the Claimant (West Lindsey District Council)

Mr Beglan and Mr Barber appeared on behalf of the Claimant (Braintree District Council)

Mr Brown KC, Mr Grant and Mr Ronan (instructed by Government Legal Department)

appeared on behalf of the First Defendant (Secretary of State for the Home Department)

Mr Honey KC and Mr Rhimes (instructed by Government Legal Department) appeared on behalf

of the Second Defendant (Secretary of State for Levelling Up, Housing and Communities)

Mr Streeten (instructed by Government Legal Department) appeared on behalf of the Interested

Party (Secretary of State for Defence)

THE KING (on the application of WEST LINDSEY

DISTRICT COUNCIL)

Claimant

- and-

SECRETARY OF STATE FOR THE HOME

DEPARTMENT

Defendant

-and-

(1) SCAMPTON HOLDINGS LIMITED

(2) SECRETARY OF STATE FOR DEFENCE

Interested

Parties

And Between :

THE KING (on the application of BRAINTREE

DISTRICT COUNCIL)

Claimant

- and -

SECRETARY OF STATE FOR THE HOME

DEPARTMENT

- and -

Defendant

SECRETARY STATE FOR DEFENCE

Interested

Party

Hearing dates: 31

October – 1

November 2023

- - - - - - - - - - - - - - - - - - - - -

Approved Judgment

This judgment was handed down remotely at 14:15 on Wednesday 6

December 2023 by

circulation to the parties or their representatives by e-mail and by release to the National

Archives.

.............................

Judgment Approved by the court for handing down.

CLARKE-HOLLAND, WLDC & BDC V SSHD & Anr

The Hon. Mrs Justice Thornton :

Introduction

1. The Claimants seek judicial review in relation to the announcement in Parliament on

29 March 2023, by the Minister for Immigration, that the decommissioned Ministry of

Defence sites at Wethersfield and Scampton are to be used to accommodate asylum

seekers.

2. Particular aspects of the decision making under challenge include as follows:

(i) An (undated) statement outlining "the emergency" which is said to thereby

permit lawful reliance on a deemed grant of planning permission under the

Town and Country Planning (General Permitted Development) (England)

Order 2015.

(ii) The direction(s) and/or reliance on the direction(s) issued by the Secretary

of State for Levelling Up, Housing and Communities, pursuant to the

Infrastructure Planning (Environmental Impact Assessment) Regulations

2017 directing that the use of the site in question is not likely to have

significant environmental effects.

(iii) The discharge of the public sector equality duty by the Secretary of State

and the content of an Equalities Impact Assessment.

(iv) The approach taken by the Secretary of State to value for money

considerations.

3. The three claims are brought by Braintree District Council, as the local planning

authority for RAF Wethersfield, West Lindsey District Council, as the local planning

authority for RAF Scampton, and Mr Clarke-Holland, a local resident of Wethersfield.

4. The Secretary of State for the Home Department, who has statutory responsibility for

destitute asylum seekers, is the defendant in all three claims. The Secretary of State for

Levelling Up, Housing and Communities who issued the screening directions is the

second defendant in the claim brought by Mr Clarke-Holland. The Secretary of State

for Defence is an Interested Party in all three claims as the Ministry of Defence owns

both sites.

Factual background

5. The factual background has been outlined in the decisions of the Court of Appeal in

Braintree District Council v Secretary of State for the Home Department [2023] 1 WLR

3087 and by Waksman J in Braintree District Council v Secretary of State for the Home

Department [2023] EWHC 1076 (KB). The following summary focuses on the facts of

particular relevance to the issues which arise in the present case.

The sites

6. Both sites are Crown land, defined as land in which there is a Crown interest, which

includes an interest belonging to a government department (s293 Town and Country

Planning Act 1990).

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CLARKE-HOLLAND, WLDC & BDC V SSHD & Anr

7. RAF Wethersfield covers approximately 828 acres. It contains runways and taxiways,

as well as a number of above ground structures. It is 1.7 miles from the village of

Wethersfield, 2.1 miles from the village of Finchingfield and approximately nine miles

from Braintree and from the nearest A class road. It is accessed via a network of rural

roads, most of which do not have footways.

8. RAF Scampton is located in Lincolnshire. It is 800 acres in size with 280 buildings and

10,000 feet of serviceable runway. The majority of the site is an airfield. RAF

Scampton village is approximately 6 miles from Lincoln and there is a primary school

within walking distance of the site. The site’s history dates back to 1916 and it is

particularly famous for its use during World War II. It is commonly known as the home

of the ‘Dambusters’. In recognition of the site’s historic importance a number of the

structures on site are listed buildings. It was, until recently, an active RAF base and was

decommissioned on 1 April 2023.

The asylum system under strain

9. The Secretary of State for the Home Department has statutory responsibility to provide

accommodation and other support to asylum seekers and their dependants who would

otherwise be destitute. As the Court of Appeal explained in its judgment in Braintree

District Council v Secretary of State for the Home Department [2023] EWCA Civ 727,

the asylum system has, for several reasons, been under increasing strain in recent years.

10. Since the Covid-19 pandemic, the number of asylum seekers requiring accommodation

has reached unprecedented levels. The time taken by the Home Office to process

asylum applications has slowed. The Home Office had for some time been “block

booking” hotel accommodation for use by asylum seekers, a system by which hotel

rooms are booked and paid for, usually at preferential rates, whether or not the rooms

are in fact used. In October and November 2022, a “processing facility” at Manston

became overcrowded. After the overcrowding at Manston, and in light of the increasing

pressure on accommodation, the Home Office started to “spot book” hotels to

accommodate the overflow. Spot bookings can be released without payment if they are

not needed. This approach was controversial with the local authorities in whose areas

the hotels were being booked and, in some cases, they sought injunctions to prevent the

use of hotels for that purpose. Spot booking was intended as a short-term solution, but

the absence of suitable alternative accommodation has led to the continued use of hotels

booked in that way.

The decision making in relation to the use of Wethersfield and Scampton

11. As a result of the strains on the asylum system, in January 2023, the Home Office

approached the Ministry of Defence and other government departments enquiring about

availability of Crown Estate assets which could be made suitable in the short term to

assist with accommodating asylum seekers.

12. A submission to the Minister for Immigration, dated 27 January 2023, sought a decision

to explore the use of RAF Wethersfield and RAF Scampton to accommodate single

adult male asylum seekers. Timing was said to be “immediate”.

13. Initial engagement was undertaken with the two local authorities in question. It revealed

that West Lindsey District Council had plans in relation to the redevelopment of RAF

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CLARKE-HOLLAND, WLDC & BDC V SSHD & Anr

Scampton. In response, Home Office officials initially recommended that the site be

removed from the project. Further investigation into the redevelopment plans led to the

recommendation to Ministers that proposals for the site should continue on the basis

the “Home Office has an urgent operational need to create additional asylum

accommodation, the potential use of RAF Scampton would support this. At present

there are more than 48,000 asylum seekers in hotels and the predicted small boats intake

for 2023 is c.56,000 asylum seekers. The potential use of the site could also provide an

option to mitigate some of the challenges seen at Manston in 2022.”

14. A Ministerial Submission dated 3 March 2023 stated as follows:

“9. To progress rapid development of the Pathfinders and

comply with planning law, we intend to use permitted

development rights for Crown emergency situations (Class Q).

Class Q of Part 19 of Schedule 2 to the Town & Country

Planning (General Permitted Development) (England) Order

2015, will grant us 12 months permission for non-detained use

and related physical works. During this period, we will seek to

ensure that planning permission on a longer-term basis under a

Special Development Order is obtained.

10. To rely on Class Q, we will:

a. prepare a statement outlining the “emergency” which

requires immediate use of the site. We will issue further

advice to you on the Emergency Statement shortly;

b. comply with procedures relating to Environmental Impact

Assessments (EnvIA)

c. comply with procedures relating to Habitats Regulation

Assessments and

d. as soon as is practicable after commencing development,

notify the local planning authority of the development.”

……

39. Given the requirement to expedite delivery for 31 March

2023 there will only be limited engagement with local partners,

and we will not be seeking a local consent decision from

authorities….

40. As part of the engagement on previous sites for asylum

accommodation we have engaged key local partners and

stakeholders including the local MP, leaders and Chief

Executives of the county and district councils and blue light

services. Key themes from this engagement which we expect to

be replicated at the Pathfinder sites include:

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a. A lack of engagement with the relevant stakeholders / local

community prior to a decision being made to use the sites;

b. anti-social behaviour and Home Office plans to manage this

including keeping local people safe through an increased

police presence in the village;

c. the scale of the site and the impact on local community and

services;

d. remoteness of site – how will voluntary and legal services

support the site; and,

e. the relationship between RAF Sites and Rwanda.

…..

Public sector equality duty and vulnerable individuals

….

53. As outlined above there is a significant risk of community

tensions which may impact on the Home Office’s consideration

of limb 3: foster good relations. On the commencement of

engagement with the local community and statutory partners

(including police, fire and health), we will further assess the

impact of the Home Office’s plans. In addition, we will establish

multi-Agency Forums which bring together statutory and other

agencies on a regular basis, both in the implementation stage and

when the site is operational. This will allow the Home Office to

review and update the Equality Impact Assessment. These points

are set out in more detail in the Equality Impact Assessments

(Annex A and Annex B).”

15. A Ministerial Submission dated 23 March 2023 said as follows in relation to duration

of use of Scampton:

“Duration of Use…

11. A decision on duration of use will have an impact on the

value for money case, HOAI Analysis shows that, based on

current cost estimates the Home Office’s use of RAF Scampton

for 2 years is considered value for money – this assumes utilities

are in place. If connection to mains utilities is not possible, then

the proposal would not represent value for money. VfM is more

certain in the short term with high volumes and use of hotel

accommodation, in the longer term there are risks as other factors

impact on demand for accommodation….

12. The Home Office has a statutory duty to accommodate

asylum seekers who would otherwise be destitute and the

number of asylum seekers requiring accommodation has reached

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record levels. These strategic considerations plus significant

other pressures on the system, such as changing intake patterns,

means that we are of the view that the use of RAF Scampton for

a minimum of 3 years will allow time for other mitigations such

as dispersal to local authorities and case-working transformation

to have a greater effect on the accommodated asylum population.

As above, assuming connection to utilities is possible, HOAI

analysis suggests that the use of the site for longer than 2 years

increases the potential value for money due to longer return on

the initial investment but reduces the certainty as the long-term

position on use of hotels is subject to a number of factors

including the impact of other proposals to reduce demand for

accommodation. Flexibility therefore becomes important with a

longer-term proposal.”

(underlining is the original emphasis).

16. As regards financial and accounting implications, it was said that:

“25. Finance are engaged with the Programme and assessing

proposals for budgetary impacts and affordability on an ongoing

basis, as well as wider AO implications. Comprehensive AO

advice will be provided imminently and this must be agreed

including by HMT before the sites can be announced/progressed.

A brief summary of early assessments can be found below:

……

c) Value for Money – short-term, this proposal may provide

value-for-money under certain conditions, reliant upon the

counterfactual being the use of more costly accommodation.

Longer term forecasts of supply and demand for asylum

accommodation are changeable and could alter the VFM

assessment of this proposal. More detailed costings will be

required to inform this assessment.”

17. The same point about the significant risk of community tensions was made as in the

previous submission. The timing was said to be “Immediate – to inform the

Government’s announcement on Illegal Migration, the decision is urgently required.”

18. An email exchange between officials on 24 March 2023 observed that the Second

Permanent Secretary was content with the value for money analysis, noting the need

for Scampton to have a three year rather than two year economic life to offer positive

value for money. The email went on to state that the Second Permanent Secretary “…

notes that across the set of decisions there remains a high level of risk, in particular

associated with legal challenge, planning controls, volumes of inflow, hotel costs,

dispersal costs and volumes, overall volumes arrivals and the levels of utilisation across

the different sites”.

19. An earlier email that day recorded that “Tricia is satisfied with VfM on Bexhill,

Wethersfield & Scampton – on the former two we are saying there is VfM across the 5

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CLARKE-HOLLAND, WLDC & BDC V SSHD & Anr

years planned for the sites...this assumes we are in hotels for that period. If we are not

and/or if our costs are higher than we have estimated, there could be issues on VfM. On

Scampton, our recommendation (with HS) is to use the site for 3 years rather than 2.

VfM for 2 years is currently -£2m, i.e. not VfM (marginal). 3 years is VfM. There are

significant variables here so Tricia should be content with those risks – we are not

saying VfM fails. HMT had raised concerns about this but we have provided additional

analysis and talked them through it and we think they are content.”

20. On the same day, the Secretary of State for Levelling Up, Housing and Communities

issued a direction that the proposed use of the site at Wethersfield was not likely to have

significant effects on the environment.

21. An email dated 27 March 2023 from the director of the project for the provision of

asylum accommodation (Mr Banner) indicated that the duration of use of the Scampton

site was still under consideration. Relevant extracts from the email are as follows:

“Further that the HS and Minister Immigration’s positions

regards during of use of Scampton is to consider the site for 2

years. The figures continue to move and latest cost estimates for

the site suggest that the current VfM for 2 years is currently -

£2m i.e. not VfM (marginal), which is an update on the position

in the submission where it states 2 yrs is VfM. Our latest analysis

indicates that 3 years is VfM and is therefore the safest

assessment at present – however this could change as we learn

more about the site. The Programme will continue to provide AO

advice as costs iterate.

…

In our external communication we remain silent on the duration

and suggest we remain silent with MP and partner engagement

as we continue to review our AO position and therefore the

length of time we occupy the site.

In response to handling duration questions I recommend that we

indicate the temporary nature of use i.e. ‘The Home Office will

use RAF Scampton on a temporary basis.’ Or ‘The Home Office

will only use the site for a limited period of time.’”

22. On the same day, Natural England confirmed that there would be no likely significant

effects from the proposed use of the sites on any nearby nature conservation sites.

23. On 28 March 2023, the Secretary of State for Levelling Up, Housing and Communities

issued a direction that the proposed use of the site at Scampton was not likely to have

significant effects on the environment.

24. Still on the same day, the Minister for Immigration was asked to note the Emergency

Statement and agree to the use of Class Q regulations to progress development of both

sites for asylum accommodation. Timing was said to be “Immediate – to ensure the

programme can progress following the Home Secretary’s decision to proceed with the

sites, the decision is urgently required.” The point made in the submission of 3 March

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2023 that Class Q was to be used “to progress rapid development of the sites and comply

with planning law” was repeated. The submission did not make reference to a settled

position on the duration of use at the sites.

25. The day after, on 29 March 2023, the Minister for Immigration told the House of

Commons that the sites would be used to accommodate asylum seekers. The Minister

opened his statement by setting out various measures that were being introduced to

tackle illegal migration. These included increased enforcement and removals of people

with no right to remain; Anglo-French co-operation and a partnership with Rwanda to

process claims. The Minister explained that the Home Office was on track to process

the backlog of initial asylum decisions by the end of the year and explained the expected

impact of the Illegal Migration Bill, once adopted. The Statement continues “The

enduring solution to stop the boats is to take the actions outlined in our [Illegal

Migration] Bill but in the meantime, it is right that we act to correct the injustice of the

current situation.”

The decision making documents under challenge

The Emergency Statement

26. The statement identifies the statutory duty on the Secretary of State for the Home

Department to accommodate destitute asylum seekers. It explains the record levels in

the numbers of asylum seekers requiring accommodation. It notes that “obtaining

planning permission for new accommodation takes time, and as a consequence, the

Home Office is unable to meet the immediate need for sufficient, adequate

accommodation for asylum seekers”. The statement explains that “As of March 2023,

the Home Office is currently accommodating over 48,000 asylum seekers and over

8,000 Afghan refugees in temporary hotel accommodation at a total cost of over £7.2

million per day”. The statement goes on to explain the proposal to use the sites pursuant

to Class Q and explains the nature of the emergency namely the record levels of asylum

seekers which is not thought to have reached its peak; the statutory responsibility on

the Home Secretary; the use of block booked hotels as a short term contingency when

demand for accommodation temporarily exceeds capacity at existing sites in the UK,

which is significantly more expensive and increasingly difficult to source; and the

impacts of Covid on decision making. Reference is also made to the situation at

Manston in October/November 2022 when the Home Office processing centre became

significantly overcrowded which was contributed to by a terrorist attack at another

Home Office site, exacerbated by a significant power outage at Harmondsworth. This

led to spot booking of hotels which was contentious. The development of the sites at

Scampton and Wethersfield will provide additional asylum accommodation.

The screening directions

27. The screening directions for both sites are the same in material respects and conclude

that the proposals for the sites are not likely to have significant effects on the

environment and the development is not therefore EIA Development. In the

accompanying analysis the project is described as the refurbishment of existing

buildings and the construction of new modular buildings to provide residential

accommodation and communal services for non-detained asylum seekers. The project

is said to be for a 12-month period. Pre-fabricated modular units, to provide beds, will

be situated on existing hardstanding and minor groundworks will be required.

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CLARKE-HOLLAND, WLDC & BDC V SSHD & Anr

Renovation of the existing barrack blocks is said to require minimal superficial work.

There will be no construction, engineering works or vegetation clearance and no

demolition. During the decommissioning phase modular units will be removed from

existing hardstanding and transported off site.

28. A number of conclusions reached on the environmental impacts of the project reference

the temporary nature of the project and its 12 month duration. Examples from the

Wethersfield analysis include as follows:

“i) The proposal to accommodate up to a total of up to 1700

people on the Site for a period of 12 months would increase the

demand in the area on water supply and foul water drainage…

Consultation has … confirmed…. that there is sufficient capacity

for the provision of water and waste water services for the

Proposed Development.

ii) A total of 204 one way trips each day are estimated over the

temporary 12 month period. This will result in a temporary

impact on the local highway network but the number of vehicle

trips are not considered to be significant in volume.”

The Equality Impact Assessments

29. An Equality Impact Assessment was prepared for both sites and the documents are the

same in material respects. The documents explain that the intention is to use the sites

for asylum accommodation for as long as it remains expedient to do so. The equalities

impact assessment are said to be a living document. Equalities impacts will be kept

under review as proposals develop for the site and as the sites start and continue to be

used. The assessment goes on to explain that the sites are situated in areas that have

not previously been used to house significant numbers of asylum seekers and there may

be impacts on community relations that need to be carefully managed in partnership

with the police, local authorities and others. Reference is made in each assessment to

a nearby primary school which will be discussed as part of local community

engagement. The provision of on-site food, faith, and recreational facilities will

minimise the impact on local communities. The Home Office will work with the

accommodation service provider, police, health and other key stakeholders, including

the community, in order to establish procedures which will manage associated risks in

respect of community relations and to address unease, conflict and a division between

the asylum seekers and the community at large. The Home Office will engage and

consult through scheduled meetings and forums. Once the site is announced, the Home

Office will establish a Multi-Agency Forum, bringing together statutory and other

agencies on a regular basis, both in the implementation stage and when the site is

operational. By working with local police liaison and the local council, the Home Office

will address anti-social behaviour where it may occur through the established support

from the voluntary sector. The site induction pack will include information on the local

environment and ways to avoid anti-social behaviour.

The legal framework

The Secretary of State’s duties in relation to asylum seekers

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CLARKE-HOLLAND, WLDC & BDC V SSHD & Anr

30. Pursuant to sections 95 and 98 of the Immigration and Asylum Act 1999 and regulation

5 of the Asylum Seekers (Reception Conditions) Regulations 2005 (SI 2005/7), if an

asylum seeker or their dependant appears to be destitute or likely to be so while their

application for support under section 95 is being considered, the Secretary of State for

the Home Department must provide them with temporary support which includes

accommodation. The statutory definition of “destitute” includes circumstances in which

a person does not have adequate accommodation or any means of obtaining it.

The need for planning permission and permitted development rights

31. Section 55 of the Town & Country Planning Act 1990 (“TCPA 1990”) provides that

“development” means “the carrying out of building, engineering, mining or other

operations in, on, over or under land, or the making of any material change in the use

of any buildings or other land”. Section 57 of the Act provides that planning permission

is required for “development”. Section 58(1) of the Act provides that: “(1) Planning

permission may be granted— (a) by a development order …”.

Permitted Development

32. The Town and Country Planning (General Permitted Development) (England) Order

2015 SI/2015/596 is a development order made pursuant to section 59 TCPA 1990.

Article 3(1) grants planning permission for the classes of development described as

permitted development in Schedule 2. Article 3 provides in relevant parts:

“(1) Subject to the provisions of this Order…planning

permission is hereby granted for the classes of development

described as permitted development in Schedule 2.

(2) Any permission granted by paragraph (1) is subject to any

relevant exception, limitation or condition specified in Schedule

...

(10) Subject to paragraph (12), Schedule 1 development or

Schedule 2 development within the meaning of the Town and

Country Planning (Environmental Impact Assessment)

Regulations 2017 (“the EIA Regulations”) is not permitted by

this Order unless—

...

(b) the Secretary of State has made a screening direction under

regulation 5(3) of those Regulations that the development is

not EIA development within the meaning of those

Regulations...

(11) Where—

(b) the Secretary of State has directed that development is EIA

development within the meaning of those Regulations that

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development is treated, for the purposes of paragraph (10), as

development which is not permitted by this Order.”

33. Schedule 2, Part 19 is entitled “Development by the Crown or for national security

purposes”. Class Q provides:

“Q. Permitted development

Development by or on behalf of the Crown on Crown land for

the purposes of—

(a) preventing an emergency;

(b) reducing, controlling or mitigating the effects of an

emergency; or

34. Q.1 Conditions:

“Development is permitted by Class Q subject to the following

conditions—

(a) the developer must, as soon as practicable after

commencing development, notify the local planning authority

of that development; and

(b) on or before the expiry of the period of 12 months

beginning with the date on which the development began—

(i) any use of that land for a purpose of Class Q ceases

and any buildings, plant, machinery, structures and

erections permitted by Class Q is removed; and

(ii) the land is restored to its condition before the

development took place, or to such other state as may

be agreed in writing between the local planning

authority and the developer, unless permission for the

development has been granted by virtue of any

provision of this Schedule or on an application under

Part 3 of the Act.”

Q.2 Interpretation of Class Q:

“(1) For the purposes of Class Q, “emergency” means an event

or situation which threatens serious damage to —

(a) human welfare in a place in the United Kingdom;

(b) the environment of a place in the United Kingdom; or

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(2) For the purposes of sub-paragraph (1)(a), an event or

situation threatens damage to human welfare only if it involves,

causes or may cause —

(a) loss of human life;

(b) human illness or injury;

(d) damage to property;

(e) disruption of a supply of money, food, water, energy or

fuel;

(f) disruption of a system of communication;

(g) disruption of facilities for transport; or

(h) disruption of services relating to health.

(3) For the purposes of sub-paragraph (1)(b), an event or

situation threatens damage to the environment only if it involves,

causes or may cause—

(a) contamination of land, water or air with biological,

chemical or radioactive matter; or

(b) disruption or destruction of plant life or animal life.”

Environmental Impact Assessment

35. Regulation 5(3) of the Town and Country Planning (Environmental Impact

Assessment) Regulations 2017 (SI 2017/571) provides in material part:

“5. – General provisions relating to screening …

(3) A direction of the Secretary of State shall determine for

the purpose of these Regulations whether development is or is

not EIA development.

(4) Where ….. the Secretary of State has to decide under these

Regulations whether Schedule 2 development is EIA

development, the …. Secretary of State must take into account

in making that decision—

……

are relevant to the development.”

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36. Schedule 3 is titled “Selection Criteria for Screening”. The criteria include: the

characteristics of the development (including size, design and cumulation with other

existing and/or approved development); the location of the development (including

existing and approved land use, relative abundance of natural resources); as well as the

types and characteristics of the potential impact (including the magnitude and spatial

extent of the impact).

The Public Sector Equality Duty

37. Section 149 of the Equality Act 2010 requires a public authority in the exercise of its

functions, to have due regard to the need to:

“(1)…

protected characteristic and persons who do not share it.

……

(5) Having due regard to the need to foster good relations

between persons who share a relevant protected characteristic

and persons who do not share it involves having due regard, in

particular, to the need to—

(a) tackle prejudice, and

(b) promote understanding.”

Grounds of challenge

38. Four grounds of challenge are advanced by the Claimants:

i) Reliance on Class Q permitted development right: All three Claimants challenge

the reliance by the Secretary of State on Class Q permitted development rights

in the General Permitted Development Order. It is said that the Secretary of

State misinterpreted the definition of ‘emergency’ in Part 19, Class Q in the

adoption of her “Emergency Statement”, or alternatively reached an irrational

conclusion under it.

ii) EIA screening directions: Mr Clarke Holland challenges the Screening

Direction issued in relation to Wethersfield as unlawful because it determines

whether there are likely significant effects from the development on the premise

that the development will subsist for a period of only 12 months, which is (a) an

incorrect understanding of the “project” to be assessed, since the project is to

last for longer than 12 months; and/or (b) a failure to consider the cumulative

impacts of the project. Braintree District Council and West Lindsey District

Council challenge the reliance by the Secretary of State for the Home

Department on the screening directions, on the basis that the “project” is in fact

something different and the Secretary of State for the Home Department acted

to frustrate the statutory purpose of the EIA Regulations.

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iii) Public Sector Equality Duty: Braintree District Council and West Lindsey

District Council contend that the Secretary of State was in breach of her duty

under section 149(1)(c) of the Equality Act to have due regard to the need to

foster good relations between persons who share a relevant protected

characteristic and those that do not. The assessment of community relations in

the Equalities Impact Assessments identifies that the proposal will lead to

asylum seekers being placed in areas of the country not previously used to

accommodating asylum seekers, and that there may be impacts on community

relations. The need for local consultation is identified in the assessment but this

did not, as a matter of fact, take place before the decision to use the site, contrary

to Bridges v Chief Constable of South Wales Police [2020] 1 WLR 5037 at

§175.

iv) Value for money: Braintree District Council contends that in failing to acquire

information available and relied upon within the Home Office about the

necessary operational appraisal period of the Wethersfield Site being (at least)

5 years in order to establish value for money, the Secretary of State for the Home

Department either failed in her duty to acquire information that was necessary

to making a lawful decision; or alternatively left out of account a mandatory

consideration which was bound to have relevance to her decision. As a further

alternative, the Secretary of State proceeded on a mistaken basis, sufficient to

amount to an error of law, that the accounting officer tests were satisfied without

a specific operational period being identified.

Applications before the Court

39. At the hearing, there were two applications before the Court:

i) West Lindsey District Council applied to amend its grounds of claim to refer to

events on the Scampton site postdating the decision under scrutiny which are

said to demonstrate that the Home Office was planning to, or had, undertaken

development at Scampton which had not been screened for its environmental

impacts. The Secretary of State objected to the amendment.

ii) Braintree District Council sought permission to introduce a new ground, namely

the value for money ground set out above. No objection was taken by the

Secretary of State for the Home Department to the introduction of the ground

but it was said to be without merit.

The witness evidence

40. The witness evidence before the Court included as follows:

Evidence adduced by the Claimants

i) An expert report by Dr Darling, an associate professor in human geography at

Durham University produced on behalf of the Claimants. His report addresses

current and previous arrangements for relevant housing provision under sections

95 and 98 of the Immigration and Asylum Act 1999; comparative statistics for

the number of asylum seekers presently and previously; and causes of pressure

on the asylum system and alternatives.

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ii) A statement from Ms Willman, solicitor and senior consultant at Deighton

Pierce Glynn Solicitors, exhibiting contracts entered into for the provision of

services at the sites.

iii) A statement from Mr Banner, senior civil servant and project director for the

Home Office’s Accommodation Centres Project.

iv) A statement from Mr Burns, senior civil servant and project director for the

Home Office’s Accommodation Centres Project.

v) A statement from Mr Salmon, the head of the Planning Response Unit in the

Department for Levelling Up, Housing and Communities, and who took the

screening decisions.

Discussion

Reliance on Class Q permitted development rights

The decision of Waksman J

41. Waksman J addressed the interpretation of ‘emergency’ for the purposes of Class Q

permitted development rights in Braintree District Council v Secretary of State for the

Home Department & Anor [2023] EWHC 1076 (KB). He treated the question as a

matter of law for the Court to determine. In doing so, he observed that he was not

dealing with a judicial review of the Secretary of State’s decision to adopt the

Emergency Statement (§34). He concluded that ‘emergency’ is exhaustively defined

within paragraph Q2 of Part 19 (§71). A ‘situation’ which threatens serious damage to

human welfare in a place in the United Kingdom contemplates something which may

occur over a period of time and/or which is of a continuing nature (§71). Class Q uses

clear and precise language and whether it applies to any particular case will depend on

the facts of that case (§80). Part Q is concerned only with Crown land. The twelve

month period emphasises the temporary nature of the Class Q right. Originally it was

for six months only (§31).

42. Waksman J rejected the submission by Braintree District Council that he should be

guided by dictionary definitions of “emergency”, which include words like sudden,

unexpected, or unforeseen. He said this would amount to a gloss on the statute where

the statute has provided its own discrete definition (§72). He also rejected the

submission that the obligation on a developer to notify the local planning authority after

commencing the development is an indicator that the right must contemplate some

unforeseen event (§73). Nor did he accept any kind of ranking between Class Q and

section 293A of the Town and Country Planning Act (applications for urgent planning

permission) such that if the event or situation in question truly falls under section 293A,

it cannot also fall within Class Q (§ 76). He rejected the submission that any serious

situation of national significance which government policy seeks to address could, in

theory, allow the government to disregard the planning regime by claiming a Class Q

right (§79).

43. Waksman J applied the law as he considered it to be, to the facts. He concluded that the

unprecedented number of asylum seekers constituted a situation which had emerged

over time (§81). The real prospect of homelessness of asylum seekers in significant

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CLARKE-HOLLAND, WLDC & BDC V SSHD & Anr

numbers absent some further accommodation being found constitutes the threat of

serious damage to human welfare, as defined (§83). He cited the numbers of asylum

seekers as between 120,000 – 140,000 this year in circumstances when the continued

use of hotels was not sustainable not simply because of cost but because of the issues

with local authorities and the approaching summer months and the award on one

occasion of injunctive relief (§84). The duties of the Secretary of State for the Home

Department mean the reliance on Class Q could not be viewed as a policy question of

how to provide more homes nationwide.

44. The Court of Appeal declined to determine the local authority’s appeal from the

judgment of Waksman J so far as it related to the ambit of Class Q explaining that:

“In our judgment it is neither necessary nor desirable to

determine the Class Q point on this appeal. It is not necessary

because our decision on the Jurisdiction Point is determinative

of the appeal. It is not desirable because anything that we say on

this matter would necessarily be obiter dicta and would not bind

the Courts below. Worse, anything we say might put the judge

in another case in which the Class Q point arises at first instance

in a difficult position. At the moment that other judge will have

the benefit of the approach to Class Q set out by Waksman J.

That approach would not bind the other judge, both because

Waksman J’s findings on Class Q were obiter, and because the

other judge would be of co-ordinate jurisdiction. The other judge

would of course be expected to follow Waksman J’s approach

unless that judge considered it to be wrong.” (§64)

45. Turning then to the present case. On behalf of the Secretary of State for the Home

Department it was said that the vast majority of the arguments advanced by the

Claimants in relation to the Class Q issue were addressed in the judgment of Waksman

J. The Court of Appeal has indicated that this Court should only decline to follow

Waksman J’s judgment if convinced it was wrong. Waksman J’s analysis is thorough,

considered, and clearly right.

46. On behalf of the Claimants, it was said that the present claim is a judicial review of the

Secretary of State’s adoption of the “Emergency Statement” with public and planning

law consequences, which were not the subject of Braintree’s application for an

injunction before Waksman J. To the extent there is an overlap with Waksman J’s

decision and the present claim, the judge’s consideration of the Class Q issue was

strictly obiter, as recognised by the Court of Appeal, and the court in fact had no

jurisdiction through those proceedings to determine the issue. The remarks of Waksman

J on the “emergency” point were not informed by a full and frank evidential picture

from the Secretary of State, were wrong in law and ought not to be followed.

The correct approach to interpretation and the role of the Court

47. Waksman J dealt with the question of emergency as a matter of law, observing that he

was not dealing with a judicial review of the Secretary of State’s decision to adopt the

Emergency Statement (§34). It appears from a reading of his judgment that the

Secretary of State had sought to argue before him that the approach to Class Q

encompassed elements of judgement which were matters for the Secretary of State and

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ought to be afforded deference by the Court (§8). That submission was not however

pursued in the present case. In writing before the hearing, it was said that, on the

particular facts of this case, the Secretary of State was content to proceed on the basis

that the question of emergency is a matter of law, particularly where the vast majority

of arguments raised by the Claimants relate to the interpretation of Class Q rather than

its application. The Secretary of State’s position is reserved on whether the same would

be true of the other categories of “emergency” under Class Q, in particular, national

security. For present purposes, the case advanced was not therefore dependent upon

any argument that there should be any deference to the Secretary of State’s view.

Nonetheless, the submission was made that the claim before this court is a claim for

judicial review, amongst other things, of the Secretary of State’s decision to adopt the

Emergency Statement. To the extent that the Court concludes there are matters of

judgement involved in whether an emergency exists, deference should be given to the

Secretary of State’s administrative judgement in this regard.

48. On behalf of the Claimants, it was said in writing before the hearing that the court

should approach the question of emergency as a matter of law for the court to determine,

at least as it relates to the present case. The question of whether there is, or might be,

an emergency within the meaning of Class Q is a question of law, potentially mixed

with questions of fact. Questions of deference should not be imported into the approach

to Class Q. However, if the court considers that any relevant questions are ones that

can only be challenged by way of Wednesbury review, then, the Claimants also

maintain that the conclusions in the Emergency Statement were not reasonably open to

the Secretary of State and are irrational.

49. The claim before Waksman J concerned an application for an injunction by Braintree

District Council, as local planning authority, pursuant to section 187B TCPA 1990 to

address what it considered to be a breach of planning control. In contrast, the present

claim concerns a judicial review of the decision by the Secretary of State for the Home

Department to adopt the Emergency Statement. The case of R (Mawbey) v Lewisham

London Borough Council [2020] P.T.S.R. 164 concerned a judicial review challenge to

the decision of the local planning authority that electronic communications apparatus

installed on the roof of a house was permitted development under Class A of Part 16 of

the GDPO. The particular issue before the Court was the meaning of the term ‘mast’

used in Class A of Part 16. Lindblom LJ said as follows in relation to the requisite

approach:

“19. … The meaning of the term “mast” in paragraph A.1(2)(c)

is a matter of law. Before a local planning authority can

determine whether a particular structure is a “mast”, it must

adopt the legally correct meaning. In this case, as Lang J. held,

the council did not do that, and thus it erred in law. Its

understanding of the provision was wrong.”

50. Shortly before the hearing, I asked my clerk to email the parties the relevant paragraph

of the decision in R (Mawbey) v Lewisham suggesting that the same approach may be

said to be apt for the present case which also concerns a judicial review of a decision to

rely on permitted development rights. The parties were asked to make any submissions

on the point before the end of the hearing. Nothing was said in response in oral

submissions.

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CLARKE-HOLLAND, WLDC & BDC V SSHD & Anr

51. Accordingly, I propose to start by considering the legally correct meaning of

‘emergency’ on the basis that before the Secretary of State could determine whether the

situation in the present case is an emergency, she must have adopted the legally correct

meaning of the term.

The principles of construction

52. Construing elements of the legislation for planning is not, in essence, a different

exercise from the interpretation of other statutes and statutory instruments. The court’s

essential function is to ascertain the meaning of the words in the legislation having

regard to the purpose of the provisions in question (CAB Housing Ltd v SSLUHC

[2023] EWCA Civ 194 at §22 per Sir Keith Lindblom). The court routinely carries out

the task of interpreting the General Permitted Development Order as an ordinary task

of statutory interpretation, which reflects that the Order is legislation. The ordinary

meaning of the language used is to be ascertained when construing the Order in a broad

or common sense manner. It is to be expected that common words are to be given their

common meaning unless there is something which clearly indicates to the contrary (R

(Mawbey) v Lewisham at §19 and §20).

The interpretation of ‘emergency’

53. Part Q of the General Permitted Development Order opens with paragraph Q, which is

titled “Permitted Development”. It sets out the scope of the right. Permitted

development is “Development by or on behalf of the Crown on Crown land for the

purposes of (a) preventing an emergency; (b) reducing controlling or mitigating the

effects of an emergency; or (c) taking other action in connection with an emergency.

Paragraph Q.1 states that development is permitted by Class Q subject to two

conditions. The first is that the developer must notify the local planning authority of the

development as soon as practicable after commencing it and the second is that any use

must cease on or before the expiry of 12 months unless permission for the development

has been granted. Paragraph Q.2 is headed “the interpretation of Class Q” and sets

down a definition of ‘emergency’.

54. Two arguments are advanced by the Claimants which, it is said, were either not

advanced before Waksman J or were not articulated in the way now put to the Court.

The first concerns the principle of statutory interpretation that, in the case of a statutory

definition, the defined term may itself colour the meaning of the definition. The

principle is sometimes referred to as ‘the potency of the term defined.’ When the

definition is read as a whole, the ordinary meaning of the word or phrase being defined

forms part of the material which might potentially be used to throw light on the meaning

of the definition. Whether and to what extent it does so depends on the circumstances

and in particular on the terms of the legislation and the nature of the concept referred

to by the word or phrase being defined (see Bennion, Bailey and Norbury on Statutory

Interpretation (8

edition) at §18.6 and the Supreme Court decision in R (PACCAR

Inc) v Road Haulage Association [2023] 1 WLR 2594 at §48 (Lord Sales)).

55. Thus, it is said on a proper construction of paragraph Q.2, the definitional paragraph

does not expand the scope of an “emergency” but further defines it. In construing the

individual limbs of the definition, regard must be had to the natural and ordinary

meaning of the word, which, it is apparent from dictionary definitions, includes the

concepts of sudden, unforeseen and unexpected. The absence of a temporal limit to the

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scope of the right in paragraph Q gives the right a potentially unreasonably broad scope

unless the ordinary meaning of the term emergency is utilised. It is, for example, unclear

at what point it could be said that pressures on the asylum accommodation estate shaded

into an “emergency” on the Secretary of State’s interpretation and development to

mitigate the effects of an emergency could legitimately take place years after the event

or situation giving rise to the alleged emergency.

56. Further, it is said that there is a core meaning to the term “emergency” in the context of

powers afforded to government which imports a restrictive approach. The concept of

“emergency powers” is one that carries a special connotation within constitutional

theory. It is a principle of the rule of law – which is manifest in the common law through

the principle of statutory interpretation, that emergency powers, because of their severe

impact and notable departure from ordinary legal norms, are intended to be used

restrictively (Nottingham City Council v Infolines Public Networks Ltd [2010] P.T.S.R.

594 at §9). The effect of Class Q is to disapply the usual rules of planning law,

governing all citizens and it should be interpreted restrictively. Emergency

development under Class Q could plausibly interfere with somebody else’s enjoyment

of their property even if that interference does not amount to a breach of their

proprietary rights. Class Q is not like other permitted development rights in that it is of

such breadth that it can plausibly be used to justify almost any type of development

unless constrained by the core meaning of the term emergency. The Secretary of State’s

conceptualisation of Class Q appears to allow for a “rolling” or “permanent” emergency

which will continue for as long as policies are maintained which engender a population

of asylum seekers and which impose destitution on that population.

57. The second argument which it is said was not articulated before Waksman J in the way

it now is, is that it must be presumed, absent positive evidence to the contrary, that the

Secretary of State for the Home Department will fulfil the statutory duties under

sections 95 and 98 of the Immigration and Asylum Act 1999. There is no evidence

before the Court that it is physically impossible for the duties to be fulfilled absent the

development on the two sites. The expert report of Dr Darling explains the lack of

housing to service the demand faced by those owed the duty is due to a number of

different causes. The increase in demand is only one such factor. The increase in that

demand is, in part, caused by the Secretary of State’s own policy choices inter alia in

allowing a backlog of asylum claimants due to a slowdown in decision-making. The

Secretary of State has a number of available policy levers to reduce the number of

asylum seekers needing accommodation which are not limited to providing more

accommodation. One measure addressed by Dr Darling would be to resume the former

pace and volume at which the Home Office determined asylum applications. There has

already been ample time (whether since the purported emergency began three years

ago, or even in the past three months) for planning applications to have been made

under section 293A TCPA 1990. If the Secretary of State’s interpretation is right, the

approach taken could seemingly be applied to justify “emergency” development to

address the whole gamut of policy problems facing the government. That is entirely

inconsistent with the purpose of the Order and of the removal of Crown immunity

following the coming into force of Part 7 of the Planning and Compulsory Purchase

Act 2004.

58. Other arguments advanced by the Claimants repeat those advanced before Waksman J.

The condition in Q.1 that a developer need only notify the local planning authority of

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the development as soon as practicable after commencing development indicates that

the event or situation must be unexpected or unforeseen. Finally, the Court’s attention

was drawn to the explanatory notes to the Civil Contingencies Act 2004 which contains

materially similar wording. The examples given of emergencies encompass a sudden,

unexpected, unforeseen event or situation such as a terrorist attack, disruption of fuel

supplies, contamination of land with a chemical matter and an epidemic.

59. Whilst the Claimants’ submissions were cogently expressed, they are, in my view,

defeated by the ordinary meaning of the words used in Part Q. Paragraph Q.2 is headed

“Interpretation of Class Q”. Q.2(1) starts by saying that “for the purposes of Class Q

‘emergency’ means”. The underlined words indicate the definition that then follows is

intended to be comprehensive, so far as it relates to the application of Class Q. If so,

the term must therefore be understood in its stipulated sense and the Court must take

care not to apply a judicial paraphrase or other gloss on a statutory definition.

60. ‘Emergency’ is said to mean ‘an event or situation’ which ‘threatens serious damage’

to human welfare, the environment or national security. I agree with Waksman J that

‘situation’ contemplates something which may have occurred over a period of time and

which is of a continuing nature. In this regard it may be said that there is an inherent

tension between the reference to ‘situation’ in the definition and the interpretation

proposed by the Claimants which requires the emergency to be sudden, unexpected or

unforeseen. The reference to ‘threatens serious damage’ sets the threshold for an event

or situation to become an emergency for the purposes of Class Q. The threat of serious

damage must relate to one (or more) of three specified categories of harm (human

welfare in a place in the UK, the environment of a place in the UK and the security of

the UK). Serious damage to human welfare is defined by a list in Q .2 (2) which includes

homelessness. The reference to “only if” in the paragraph indicates the list is to be

treated as exhaustive. The same reference to “only if” appears in sub paragraph 3 in

relation to the environment. There is no qualification in relation to serious damage to

the security of the United Kingdom.

61. Turning to the principle of the ‘potency of the term defined’, the Supreme Court in

PACCAR expressed the view that no significant potency can be attached to the term so

as to colour or qualify the meaning of the definition in the absence of general consensus

as to the limits of the term, as here (§49). In any event, the threat of serious damage to

human welfare, the environment or national security accords, in my view, with an

ordinary understanding of the term ‘emergency’. Some of these emergencies could be

sudden, unexpected or unforeseen, but others that are not will still satisfy the threshold

test for the applicability of Class Q if they give rise to the threat of serious damage. I

accept that there is no temporal limit on the scope of the right in paragraph Q. There

are however other limitations to its scope. In addition to the requirement for a threat of

serious damage the development must be on Crown land. It must be development by,

or on behalf of, the Crown. The development is time limited. On or before the expiry

of 12 months the permission ceases and the use/development must be reversed unless

planning permission has been granted (the time limit used to be 6 months but was

extended during Covid).

62. The condition in paragraph Q1 that the developer need only notify the local planning

authority after the development has commenced cannot alter the scope of the right. The

grant of planning permission derives from article 3(1) and the provisions for “permitted

development” in that class not through the specific provisions for “conditions” in a

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particular class. To be “permitted development” in the first place, the development in

question has to come fully within the relevant description of the “permitted

development” provided for within each class. If it does not, the provisions for

“conditions” applicable specifically and only to “permitted development” as thus

defined could not relate to it. In other words, the conditions imposed on a class of right

cannot have the effect of enlarging the class (Keenan v Woking BC [2018] P.T.S.R.

697 at §33).

63. The decision in Nottingham City Council v Infolines relied on by the Claimants may

be distinguished legally and factually from the present case. It concerned the

interpretation of ‘emergency works’ in an Act of Parliament (The New Roads and Street

Works Act 1991) and the disposal of property belonging to the defendant in the claim.

In any event, however, the scope of emergency in Class Q is restricted. It is restricted

by the requirement for a threat of serious damage in relation to three specified categories

of harm. As for section 293A of the Town & Country Planning Act, there is no

definition in the section as to when it is necessary to carry out development ‘as a matter

of urgency’, which might assist the Claimants in their submission that there ought to be

a ranking as between section 293A and Class Q. Moreover, there is an obvious

distinction with Class Q which only permits development for up to a year. The concept

of ‘ranking’ the applicability of the two provisions suggested by the Claimants is not

therefore apt.

The interpretation of emergency in the Emergency Statement

64. Accordingly, on the interpretation arrived at above, for the Secretary of State to lawfully

rely on the Class Q permitted development right, she must have been able to

demonstrate the existence of an event or situation which threatens serious damage to

human welfare in the UK by virtue of homelessness, which in the present case, relates

to asylum seekers.

65. The Emergency Statement defines the emergency at paragraph 19:

“It is considered that an emergency exists falling within the

definition above since there currently exists in the United

Kingdom a situation which threatens serious damage to human

welfare because there was and remains an immediate need to

provide accommodation for destitute asylum seekers which if

not met would result in homelessness. Whilst a proportion of this

need is currently being met through the use of hotels, this was

(and still is) only intended as a short-term or stop-gap solution

pending provision of more suitable alternatives.

The proposed development would therefore be undertaken:

i) For the purposes of preventing an emergency;

ii) for the purposes of reducing and mitigate the effects of that

emergency; and/or

iii) as “other action” taken in connection with that

emergency.”

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66. On the construction of emergency the Court has arrived at above, the Secretary of State

used the legally correct construction of emergency in the Emergency Statement.

Application to the facts of the present case

67. Applying the approach of the Court of Appeal in R (Mawbey) v Lewisham, I incline to

the view that the question of whether there is a threat of serious damage by way of

homelessness of asylum seekers requires the application of judgement, which ought,

primarily, to be a matter for the Secretary of State for the Home Department. The Home

Office has statutory responsibility for accommodating destitute asylum seekers and

consequential institutional knowledge and experience in this regard. The exercise of

judgement is subject to review on the usual public law principles.

68. For present purposes, however, it is unnecessary to form a concluded view on the issue

because I am satisfied that the outcome is the same whether the Court applies the law

to the facts itself or reviews the judgement of the Secretary of State in this regard. On

either case the Secretary of State’s reliance on Class Q was, in my view, lawful.

69. The development proposed is development by or on behalf of the Crown, on Crown

Land. It is not disputed that the numbers of asylum seekers are at record levels or that

the Secretary of State has a legal duty to accommodate them. In October/November

2020 a particular crisis point was reached when the processing facility at Manston

became dangerously overcrowded. There can be no serious dispute that ‘spot booking’

or ‘block booking’ hotels is not suitable accommodation or a sustainable longer term

solution. This is due not only to the cost or to the obvious point that hotels are

ordinarily intended for very different purposes. It is also due to the hostile reaction of

local authorities to the practice which resulted in a spate of litigation (Great Yarmouth

v Al-Abdin [2022] EWHC 3476). The numbers of asylum seekers involved are

significant. The Emergency Statement explains that the total number of asylum seekers

receiving support on 31 December 2020 was 110,171 which reflects a 72% increase on

the numbers in December 2020. As of March 2023, the Home Office was

accommodating over 48,000 asylum seekers and over 8000 Afghan refugees in

temporary hotel accommodation. This is a “situation” which “may cause” (Q.2(2)) the

homelessness (Q.2(2)(c)) of large numbers of asylum seekers (which could in turn lead

to “human illness or injury” (2(2)(b)). Given the number of asylum seekers concerned,

and the vulnerability of that cohort, the scale of damage is potentially significant, i.e.

the situation “threatens serious damage” to human welfare (Q.2(1)(a)). This serious

damage will arise “in a place” in the United Kingdom. That being the case, the proposed

developments are action taken to “reduce, control, or mitigate” the effects of the

existing emergency, or are “other action taken in connection with” that emergency (Q).

70. The Claimants submit that the Secretary of State is impermissibly using Class Q as a

policy lever. It is said that there is no connection between section 95 and 98 of the

Immigration and Asylum Act and Class Q. There is a presumption that the Secretary of

State will comply with her statutory duties unless that presumption is specifically

displaced which it has not been. Attention was drawn to the expert report of Dr Darling

which explains that the current crisis has various causes including that Home Office

decision making has slowed down. Having decided it is expensive to accommodate

asylum seekers in hotels, Class Q is being used as a policy lever.

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71. In my judgment, these submissions to do not assist the Claimants. On the interpretation

of Class Q reached above, the Secretary of State is entitled to rely on Class Q, once

there is a threat of serious damage to human welfare by virtue of homelessness. Its

application does not require an investigation into the causes of the emergency (unless

the reasons for relying on Class Q reach levels of irrationality which entitles a court to

intervene).

Environmental Impact Assessment

Legal principles

72. The relevant legal principles were not in dispute. The following are of particular

relevance to the present case:

a) A screening direction is designed to identify those cases in which the development (i.e.

the project which EU Directive 2011/92/EU requires to be assessed) is likely to have

significant effects on the environment. That assessment is necessarily based on less

than complete information. It is not intended to involve a detailed assessment of factors

relevant to the grant of planning permission, nor a full assessment of any identifiable

environmental effects. There has to be a sensible limit to what a screening decision

maker is expected to do (R (Ashchurch RPC) v Tewkesbury BC (CA) [2023] P.T.S.R.

1377 at §77 and Kenyon v Secretary of State for Housing Communities and Local

Government [2021] Env LR 8 at §15).

b) The question of what may be said to be the project that requires screening, whether

there is sufficient information to issue a screening direction, and whether a proposed

development is likely to have significant effects on the environment, are fact specific

questions of judgement for the primary decision maker, subject to challenge on grounds

of Wednesbury rationality or other public law error (Ashchurch at §81 and Kenyon at

§10 and §12).

c) Relevant factors which may assist in determining the scope of a project include the

following (R (Wingﬁeld) v Canterbury City Council [2020] JPL 154 at §64):

• Common ownership: Where two sites are owned or promoted by the same

person, this may indicate that they constitute a single project.

• Simultaneous determinations: Where two applications are considered and

determined by the same committee on the same day and subject to reports which

cross refer to one another, this may indicate that they constitute a single project.

• Functional interdependence: Where one part of a development could not

function without another, this may indicate that they constitute a single project.

• Stand-alone projects: Where a development is justified on its own merits and

would be pursued independently of another development, this may indicate that

it constitutes a single individual project that is not an integral part of a more

substantial scheme.

d) The identity of the project is not necessarily circumscribed by the ambit of the specific

application for planning permission which is under consideration (Ashchurch at §78).

e) The objectives of the Directive and the Regulations cannot be circumvented

(deliberately or otherwise) by dividing what is in reality a single project into separate

parts and treating each of them as a “project”—a process referred to in shorthand as

“salami-slicing” (Ashchurch at §78).

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f) Other cases, decided on diﬀerent facts, are only relevant to the limited extent that they

indicate the type of factors which might assist in determining whether or not the

proposed development is an integral part of a wider project (Ashchurch at §80).

g) The existence and nature of cumulative environmental effects will be a question of fact

and judgment in each case (Brown v Carlisle City Council [2011] Env L.R. 5 §21;

Bowen-West v Secretary of State [2012] Env. L.R. 22 at §28; R (Finch) v Surrey County

Council [2022] P.T.S.R. 958 at §15(5)).

h) A decision-maker may rationally reach the conclusion that the consideration of

cumulative impacts from a subsequent development which is inchoate may be deferred

to a later consent stage (analysis of Holgate J in R (Pearce) v Secretary of State [2022]

Env LR 4 at §117 citing R (Littlewood) v Bassetlaw DC [2009] Env. L.R. 21 at pp. 413-

415, particularly §32 and R (Substation Action Ltd v Secretary of State [2023] P.T.S.R.

975 at §198).

Assessing the evidence

73. There can be no doubt that the Planning Response Unit in the Department for Levelling

Up, Housing and Communities proceeded on the basis the development it was required

to screen on each site was a 12 month project. The conclusion reached was that there

would be no likely significant environmental effects from the use of the site as

proposed. Thus, the analysis accompanying the Screening Direction for Wethersfield

states that “The Project is for a 12 month period”. References to the 12 month duration

of the project appear at a number of points in the screening analysis. An example is

“Any resulting social changes would therefore be limited due to the potential

geographical spread and limited numbers passing through the project site over the

temporary 12 month period”. There was no material dispute between the parties in this

regard.

74. Similarly, the environmental consultants instructed on behalf of the Home Office

proceeded on the basis that the development was a 12 month, temporary, project. The

letter dated 17

March 2023 from AECOM Ltd to the Planning Response Unit in

relation to Wethersfield states that “The Proposed Development is expected to be

operational for a temporary period of 12 months in total”.

75. The Claimants submit that the Screening Direction failed to assess the likely significant

effects of the project because the evidence shows that the development is likely to last

for longer than 12 months and, as a consequence, its likely significant effects will

endure beyond 12 months. In particular, the Claimants contrast the references in the

Screening Requests and Screening Directions (to the temporary nature (12 month) of

the projects) with internal Home Office decision making documents disclosed in these

proceedings. These documents were not disclosed to the Department for Levelling Up

(responsible for the screening directions). The Claimants point to the stated intention in

ministerial submissions to obtain planning permission on a longer term basis (via a

Special Development Order). They also pointed to a procurement timeline from

December 2022 indicating Home Office plans to contract for the provision of asylum

services with a contract end date of 13 July 2025. As to the latter, it was said on behalf

of the Secretary of State, that the timeline was not specific to the two sites. The

Claimants drew the Court’s attention to emails between officials about external

communications to emphasise what was said to be a ‘disconnect’ between the 12 month

project which was screened and the public and private facing aspects of the project. In

particular:

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“……In our external communication we remain silent on the

duration and suggest we remain silent with MP and partner

engagement as we continue to review our AO position and

therefore the length of time we occupy the site.

In response to handling duration questions I recommend that we

indicate the temporary nature of use i.e. ‘The Home Office will

use RAF Scampton on a temporary basis.’ Or ‘The Home Office

will only use the site for a limited period of time.’”

(email of 27 March from the civil servant leading the project)

76. The Court was referred to contracts for the provision of services on sites for longer than

12 months (typically 2 years or longer) which were not disclosed in these proceedings

but were obtained by Mr Clarke-Holland’s legal representatives following requests

made under the freedom of information legislation.

77. I start by considering the contemporaneous decision making material generated

between January to March 2023 up to, and including, the announcement in Parliament

on 29 March 2023 about the use of the sites to accommodate asylum seekers.

78. The following extract from the Ministerial submission of 3 March 2023, repeated in

later submissions, is apt to describe the development and the rationale for it:

“To progress rapid development of the Pathfinders and comply

with planning law, we intend to use permitted development

rights for Crown emergency situations (Class Q). Class Q…will

grant us 12 months permission for non-detained use and related

physical works. During this period, we will seek to ensure that

planning permission on a longer-term basis under a Special

Development Order is obtained.”

79. It is apparent from the extract above that Class Q is viewed as a specific and discrete

solution to the need for accommodation. It is said to enable “rapid development of the

Pathfinders” and “will grant us 12 months permission for … use and related physical

works.” There was a strong imperative for the 12 month period of permission for the

reasons explained in the Emergency Statement. The statement identifies the statutory

duty on the Secretary of State to accommodate asylum seekers and explains the record

levels in the number of asylum seekers requiring accommodation. The statement goes

on to make the point that “obtaining planning permission for new accommodation takes

time”, and “as a consequence, the Home Office is unable to meet the immediate need

for sufficient, adequate accommodation for asylum seekers”. Physical indications of

the temporary nature of the project are the pre-fabricated modular buildings to be

brought onto site and placed on the existing hardstanding, as well as the proposals for

decommissioning by removal of the facilities.

80. It is apparent that the longer term use of the sites, beyond 12 months, was envisaged.

The ministerial submission referred to above states that “we will seek to ensure that

planning permission on a longer-term basis under a Special Development Order is

obtained.” Discussions amongst officials within the Home Office in and around March

2023 were canvassing various different time periods for the use of the sites, often in

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general terms and by refence to value for money. There was a particular focus on when

to offer West Lindsey District Council an option to purchase the Scampton site.

However, no decision or settled position on the longer term duration of the sites had

been arrived at by the time the Screening Directions were issued. The Equalities Impact

Assessments were based on the assumption that the sites will be used for as long as

expedient, without specifying a precise time period for either site. As is apparent from

the chronology, the decision making was taking place at speed. There are repeated

references in the ministerial submissions to the timing being “Immediate” or decisions

being “urgently required.” The decision making was focussed, primarily, on the use of

the Class Q permitted development right because it offered a quick solution. Counsel

for the Secretary of State summarised the position by explaining that the Secretary of

State was aware that it might be necessary to decommission the sites at the end of the

12 month period if planning permission had not been obtained but that was a risk she

was willing to take for the benefit of the 12 month breathing space offered by Class Q.

81. Aside from the discussions around possible duration of the use of the sites, there is no

contemporaneous evidence before the Court of discussions about the type of any future

development or of the land it would occupy. It is, moreover, apparent that there was

considerable uncertainty about the future, both as to the shape of the development as

well as its duration. The uncertainty stemmed from other efforts underway to reduce

the numbers of asylum seekers requiring accommodation:

“12. …HOAI analysis suggests that the use of the site for longer

than 2 years increases the potential value for money due to longer

return on the initial investment but reduces the certainty as the

long-term position on use of hotels is subject to a number of

factors including the impact of other proposals to reduce demand

for accommodation. Flexibility therefore becomes important

with a longer-term proposal.”

(extract from emails between officials dated 22/23 March 2023)

“Value for Money – short-term, this proposal may provide value-

for-money under certain conditions, reliant upon the

counterfactual being the use of more costly accommodation.

Longer term forecasts of supply and demand for asylum

accommodation are changeable and could alter the VFM

assessment of this proposal.”

“ …our recommendation (with HS) is to use the site for 3 years

rather than 2. VfM for 2 years is currently -£2m, i.e. not VfM

(marginal). 3 years is VfM. There are significant variables here

...”

(email of 24

March 2023 amongst officials)

“Further that the HS and Minister Immigration’s positions

regards during of use of Scampton is to consider the site for 2

years. The figures continue to move and latest cost estimates for

the site suggest that the current VfM for 2 years is currently -

£2m i.e. not VfM (marginal), which is an update on the position

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in the submission where it states 2 yrs is VfM. Our latest analysis

indicates that 3 years is VfM and is therefore the safest

assessment at present – however this could change as we could

learn more about the site. The Programme will continue to

provide AO advice as costs iterate.”

(email of 27

March from the senior civil servant and project

leader)

(underlining in the extracts above is the Court’s emphasis).

82. Further explanation as to the efforts underway to reduce demand for accommodation is

given in the statement by the Minister for Immigration to the House of Commons on

29 March 2023, announcing the use of the sites. The Minister begins his statement by

setting out various measures that are being introduced to tackle illegal migration. The

measures included increased enforcement and removals of people with no right to

remain; Anglo-French co-operation and a partnership with Rwanda to process claims.

The Minister explains that the Home Office was on track to process the backlog of

initial asylum decisions by the end of the year as well as the expected impact of the

Illegal Migration Bill, once adopted. The statement continues “The enduring solution

to stop the boats is to take the actions outlined in our [Illegal Migration] Bill but in the

meantime, it is right that we act to correct the injustice of the current situation.”

83. The Defendants relied on a witness statement, dated 30 August 2023, by Mr Burns, a

project director for the Home Office’s asylum accommodation project. The statement

was accompanied by a statement of truth. Mr Burns explains that there was a general

understanding in the Home Department that the sites were likely to be used beyond the

12 months permitted by Class Q. However, there was no settled intention as to the

duration of any use beyond 12 months or what a “longer-term basis” meant in practice

as this was dependent on a range of factors. Those factors included how the sites operate

in practice; the projected demand for asylum seeker accommodation which in turn was

likely to be affected by a range of other factors, including an increase in the number of

caseworkers to handle asylum claims, improvements in technology and the Illegal

Migration Act 2023, (which received Royal Assent on 20 July 2023). The variable

nature of those factors meant that, while the potential to use the sites for longer than 12

months was a consideration at the time of the decisions in March 2023, whether there

would actually be any longer use, the term of that use and the form of that use were all

necessarily inchoate. At the date of making this statement, no decision to use the sites

beyond 12 months had been taken by the Secretary of State.

84. A witness statement from Mr Banner, another project director, dated 4 April 2023,

explained that “the numbers of future asylum seekers are difficult to predict and the

impact of the Home Office’s other strategies to address the current emergency will

become clearer in the next 12 months. The use of the site under Class Q is not dependent

on the outcome of that process as there is an urgent need for additional accommodation

now.”

85. In addition, evidence from Mr Salmon from the Planning Response Unit, who

conducted the Screening Decision, explains the use of prefabricated modular units,

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temporary fencing and generators meant he thought it was unlikely that the

development on the project site would be continued beyond the 12 months in the same

form. He judged it likely that the Secretary of State would either stop at that point or

would have decided by then to make a more significant use of the land. He had been

given no clarity about what that more significant use/development would be in terms

of its location, nature, type, and scale. Accordingly, he had no material on which he

could base any assessment of the likely significant effects of future plans.

86. It is well established that a Court will always be cautious in exercising its discretion to

admit evidence that has come into existence after the decision under review was made

as a means of elucidating, correcting or adding to the contemporaneous reasons for it

(R (United Trade Action Group Ltd) v Transport for London & Anor [2022] 1 WLR

367 at §125 (Bean LJ)). The court must avoid being influenced by evidence that has

emerged after the decision. The need for caution is plain. A claim for judicial review

must focus on the reasons given at the time of the decision. Subsequent second attempts

at the reasoning are inherently likely to be viewed as self-serving. Sometimes

elucidatory evidence will be appropriate and necessary, sometimes not. But even where

the evidence in question is merely explanatory, the court will have to ask itself whether

it would be legitimate to admit the explanation given. The Court of Appeal observed

that judges will usually be able to distinguish between genuine elucidation of a decision

and impermissible justification or contradiction after the event.

87. In the circumstances of the present case, I exercise my discretion to permit the

introduction of the evidence of the witnesses for the following reasons. The evidence

of Mr Burns that the use of the sites beyond 12 months was ‘likely’ was relied upon by

the Claimants in their challenge to the nature of the project. All three witnesses are

responding to a challenge about what was not, but should have been, assessed, from

which it follows that the contemporaneous documentation does not address specifically

the points raised by the challenge. However, the explanations provided by Mr Burns

and Mr Banner as to why the future was uncertain is foreshadowed in the

contemporaneous material (set out above). Those references are, however, in shorthand

as the documents are internal and directed to a knowledgeable audience. The witness

evidence assists the Court in understanding the contemporaneous references.

88. The Claimants placed heavy reliance on evidence post dating the screening direction.

This included the award of contracts for the provision of services on the sites. The

earliest contract relied on is one between NHS Mid and South Essex ICB and

Commisceo Primary Care Solutions for the provision of healthcare at Wethersfield for

a period of 18 months which was signed on 21 June 2023. A contract with Clearsprings

Ready Homes Ltd to provide services at Wethersfield for 24 months with a further 12

month extension was signed on 11 July 2023. A 2 year contract was signed with

Portakabin on 11 October 2023.

89. West Lindsey District Council made an application to amend its Statement of Facts and

Grounds to include events post dating the grant of permission for judicial review. The

Council sought to rely, in particular, on the findings of a site visit carried out on 14

September 2023 which were said to indicate that the works being carried out at RAF

Scampton go considerably beyond those in respect of which the EIA Screening

Direction was issued.

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90. Particular reliance was placed at the start of the hearing on letters dated 27 and 30

October 2023 from the Minister for Immigration to the constituency MPs for the two

sites (Priti Patel MP and Edward Leigh MP) the effect of which, it was submitted,

renders the development retrospectively unlawful. The letters state in material part:

“We have always been clear that we would stand up the site in

this initial period using emergency Class Q Permitted

Development Rights while we consider both longer term needs

and the potential to secure ongoing planning permission.

I am therefore writing to inform you that we intend to seek this

further permission via a Special Development Order (SDO) for

a duration of three years.”

91. In the particular context of a challenge to an EIA screening direction, the Court of

Appeal has addressed reliance by parties on documents which were not available to the

decision-maker as follows:

“28 In judicial review proceedings it is generally inappropriate

for parties to seek to rely on documents (and to advance

arguments based on those documents) which were not available

to the decision-maker. Taken at its highest, such an approach

undermines the entire process of judicial review. It runs the risk

that the court will be asked to conduct a kind of rolling review,

in which nothing is ever finalised or settled, and it does not

matter what information was available at the time the decision

was taken. This serves only to encourage the all-too-prevalent

attitude that, in judicial review applications, it is always possible

to “have another go”.

….

30 For these reasons, therefore, I have not had any regard to the

documents that were not in existence or available at the time of

the screening direction.” (Kenyon v SSCLG [2021] Env LR 8 at

§27 – 30)

92. I accept the Claimants’ submission that evidence post dating a decision may be capable

of throwing light on the contemporaneous decision making. However, in the

circumstances of the present case, evidence post dating the screening direction is, in my

view, an unreliable guide. This is because it is apparent that the decision making was

urgent, conducted at speed and focussed on using Class Q. The future use of the sites

would depend on the outcome of efforts to reduce the demand for asylum seekers and

was to be grappled with once the sites were up and running under the Class Q right.

Accordingly, I discount the evidence relied on by the Claimants that post dates the

screening direction.

93. Accordingly, at the time of the Screening Directions, use of the sites beyond the 12

month period was envisaged. However, no settled plans for the duration or type of use

beyond the 12 month period had been formulated because the future depended, in

material part, on the outcome of efforts to reduce the numbers of asylum seekers

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requiring accommodation. Future plans for the sites were, as at March 2023, inchoate.

Moreover, it was envisaged that the future plans would be subject to a separate planning

consent process. The references relied on by the Claimants in the emails of officials to

‘handling’ questions about the duration of the use of the sites reflected the, then,

uncertainty as to the future.

Application of legal principles to the evidence

94. Turning then to apply the legal principles to the assessment of the evidence.

95. Both the environmental consultants instructed on behalf of the Home Office and the

Planning Response Unit at the Department for Levelling Up, Housing and Communities

proceeded on the basis the proposed development was a temporary 12 month project.

The decision on the project, including its length, is a matter of judgement for the

decision maker, subject to judicial review on the usual public law grounds (Ashchurch).

96. The formal planning document may not necessarily circumscribe the project

(Ashchurch). However, on the facts of the present case, the Class Q route was seen as

a ‘stand-alone’ or discrete solution to the urgent difficulties faced by the Home Office

in light of the Secretary of State’s statutory duty to accommodate asylum seekers. It

was being pursued by the Home Office independent of any prospect of it continuing

beyond 12 months, albeit it was considered likely that longer use of the sites would be

required. The Secretary of State was aware that it might be necessary to decommission

the sites at the end of the 12 month period if planning permission had not been obtained

by then but this was a risk she was willing to take for the benefits afforded by the 12

month permission. Where a development is justified on its own merits and would be

pursued independently of another development, this may indicate that it constitutes a

single individual project that is not an integral part of a more substantial scheme (R

(Wingfield) v Canterbury County Council at §64).

97. The EIA Directive and the jurisprudence of the European Court of Justice recognise

that it is legitimate for different development proposals to be brought forward at

different times, even though they may have a degree of interaction, if they are different

“projects” (R (Larkfleet) v South Kesteven DC [2016] Env LR 4 at §37). The threshold

for irrationality in the making of such a judgement is a difficult obstacle to surmount

(see e.g. Newsmith Stainless Ltd v Secretary of State for the Environment, Transport

and the Regions [2017] P.T.S.R. 1126).

98. I accept the submission on behalf of the Claimants that the duration of use of the site is

relevant for EIA screening and there is evidence to indicate that the use was likely to

continue beyond 12 months. It is one of the criteria for screening set down in Schedule

3 of the EIA Regulations. However, it is also apparent from the evidence that no

decision about the duration of use of the sites had been made by late March 2023.

Moreover, Schedule 3 of the Regulations refers not only to the duration of the

development but to other factors relevant to screening about which there is no

discussion in the contemporaneous Home Office decision making material. These other

factors include the size and design of any future development; the intensity and

complexity of the development; the magnitude and spatial extent of the impact. The

precise location, nature, type, and scale of any potential future use had not been

discussed. It could involve a different type of development (e.g. involving the

construction of permanent buildings, rather than temporary) and/or a different nature of

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accommodation (e.g. including some detained accommodation or different types of

non-detained accommodation sites, e.g. a main site and a feeder site). Future plans

might take up more or different land at the sites.

99. The Claimants sought to rely on the decision in R v Rochdale Metropolitan Borough

Council (2001) 81 P&CR 27 §389 and the analysis that where the detail of the future is

uncertain then it is permissible for a screening to proceed on the basis of assessing the

environmental impact understood at the time providing the development is tied into this

envelope, as in the case of Rochdale, by a condition. It was said, by contrast, that the

development permitted under Class Q is in all practical respects an unconditioned one.

I do not accept the submission. Development under Class Q is subject to the paragraph

Q(1)(b) condition that it ceases and is reversed within 12 months. The development

would only continue to operate beyond 12 months if there is further EIA screening and

planning permission granted for the operation beyond 12 months. This is relevant to the

assessment of whether the procedure being followed would have the effect of avoiding

the requirements for the legislation, as in a salami slicing case (R (Together against

Sizewell C) v SS [2023] Env LR 29 at §84).

100. The Claimants sought to characterise the project in the present case as similar to the

bridge, colloquially referred to as the ‘bridge to nowhere' in Ashchurch (§82),

describing the reliance on Class Q as ‘a bridge to the next stage of the project’.

However, the context in Ashchurch is distinguishable. In Ashchurch the bridge was

only ever going to be constructed in order to serve the wider development in the

Masterplan area. It had no purpose of its own. As Andrews LJ said in that case, it was

difficult to see how the bridge could not be treated as an integral part of the wider

project, which was a real proposal (§100). In the present case the use of the site for 12

months provides the Secretary of State with some (temporary) relief from the acute

accommodation difficulties presented by the numbers of asylum seekers for whom

accommodation must be found.

101. Accordingly, the judgement by the Home Office and the Department for Levelling Up,

that, as at March 2023, for the purposes of the environmental screening, the project was

a 12 month project, cannot be said to be Wednesbury irrational.

102. For similar evidential reasons, I conclude that at the time of the Screening Directions,

there was no obligation to consider the cumulative effects of the proposed development

with any other (or future) use of land at the sites for asylum accommodation. The future

of the sites was too inchoate. Beyond an understanding that it was likely that the sites

would continue in use (if further planning permission was obtained) the discussions

about the future were at such an early stage that there was no reliable information

available to officials to undertake a satisfactory cumulative assessment of any potential

Home Office development beyond the proposed development (R (Littlewood) v

Bassetlaw DC [2009] Env. L.R. 21 at pp. 413-415 and R (Substation Action Ltd v

Secretary of State [2023] P.T.S.R. 975 at §198).

Public Sector Equality Duty

103. Two criticisms were advanced of the Equality Impact Assessments by Braintree and

West Lindsey District Councils. Firstly, it was said that despite recognising the

significant risk of community tensions, the Secretary of State undertook very limited

engagement and consultation with the local authorities and local providers like the

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police, fire or health services. Instead, she took the ‘in principle’ decision to use the

sites first and proposed to carry out engagement and consultation afterwards. If the

relevant material is not available to fulfil the duty before and at the time when the

decision is being considered, there will be a duty to acquire it, and this will frequently

mean that some further consultation with appropriate groups is required (R (Bridges) v

Chief Constable of South Wales Police at §175).

104. Secondly, by analogy with the decision in R (Hough) v Secretary of State for the Home

Department [2022] EWHC 1635 (Admin) the assessment was not based on a prolonged

period of use of the site and was in the circumstances generalised without site specific

assessment of impacts on local services and the local road network.

105. I am not persuaded by these submissions.

106. What is required of the Court when a breach of the public sector equality duty is claimed

is a realistic and proportionate approach to evidence of compliance with the duty, not

micro-management or a detailed forensic analysis by the Court. The duty, despite its

importance, is concerned with process, not outcome, and the court should only interfere

in circumstances where the approach adopted by the relevant public authority is

unreasonable or perverse. (R (SG) v SSHD [2016] EWHC 2639 (Admin) §329).

107. It is apparent from the disclosed decision making documents that Ministers had taken a

deliberate decision not to undertake formal engagement with local communities about

plans for the sites prior to the announcement in Parliament in late March 2023, save for

limited communication with the local authorities concerned. However, the Home

Office had previous experience with the accommodation of asylum seekers on other

sites. Its experience meant the department was aware, before it took the final decision

to use Wethersfield and Scampton of the potential for community tensions and anti

social behaviour and the need for plans to manage both. The Ministerial submission of

3 March 2023 includes the following analysis:

“38. ……We know from our experience at Linton-on-Ouse that

the lack of any community / local authority engagement ahead

of an announcement negatively impacted public perception of

the project.

……

40. As part of the engagement on previous sites for asylum

accommodation we have engaged key local partners and

stakeholders including the local MP, leaders and Chief

Executives of the county and district councils and blue light

services. Key themes from this engagement which we expect to

be replicated at the Pathfinder sites include:

….

b. anti-social behaviour and Home Office plans to manage this

including keeping local people safe through an increased police

presence in the village;

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c. the scale of the site and the impact on local community and

services;

d. remoteness of site – how will voluntary and legal services

support the site; …”

108. The Department also had experience of dealing with events at Manston in October and

November 2022.

109. Ministers understood that the sites are situated in areas that have not previously been

used to house significant numbers of asylum seekers. Internally, it was acknowledged

that the risk of community tension was significant:

“Public sector equality duty and vulnerable individuals

53. As outlined above there is a significant risk of community

tensions which may impact on the Home Office’s consideration

of limb 3: foster good relations…..”

(underlining is the Court’s emphasis)

110. In turn, the equalities impact assessment recognised the importance of minimising the

impacts on local resources. Provision was made for onsite facilities for asylum seekers,

including food, leisure, faith and health facilities so as to reduce the need to rely on

local resources. The need to carefully manage community relations in partnership with

the police, local authorities was acknowledged. It was said that the Home Office will

work with the relevant providers once the site is announced, including establishing a

multi-agency forum bringing together statutory and other agencies on a regular basis.

The assessment describes itself as a living document and references are made to further

review as proposals develop. Specific reference is made for each site to the nearby

primary school which it is said will be discussed as part of the local community

engagement.

111. It was not irrational for the Secretary of State to rely on her department’s understanding

of the likely community tensions from previous experience gained from housing asylum

seekers in other parts of the country. The Claimants have not identified any particular

characteristics of the sites under scrutiny that set them apart from sites in other areas of

the country. The duty of consultation said to be inherent in the duty is the conventional

Tameside duty of inquiry. The obligation on the decision-maker is only to take such

steps to inform himself as are reasonable. Secondly, subject to a Wednesbury challenge,

it is for the public body and not the court to decide upon the manner and intensity of

inquiry to be undertaken. The court should not intervene merely because it considers

that further inquiries would have been sensible or desirable. It should intervene only if

no reasonable authority could have been satisfied on the basis of the inquiries made that

it possessed the information necessary for its decision. (R (Sheakh) v London Borough

of Lambeth [2022] P.T.S.R. 1315 at §73; R (Campaign Against Arms Trade) v

Secretary of State for International Trade [2019] 1 W.L.R. 5765 at §59).

112. There is nothing in section 149 of the 2010 Act which prevents, in an appropriate case,

performance of the duty by means of a conscious decision to undertake equality

assessment on a “rolling” basis. A decision to do that is not, as a matter of law, contrary

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to the pre-requisites of performance identified in McCombe LJ’s judgment in Bracking

at §26, albeit that a decision maker who decides to proceed on a rolling basis, does so

at their peril (R (Sheakh) v London Borough of Lambeth [2021] EWHC 1745 (Admin)

at §164) (confirmed on appeal). Ministers acknowledged the significant risk of

community tensions, based on its previous experience of housing asylum seekers on

other sites. The parameters of a response to manage the risk were outlined but the

detailed practicalities were left to be determined after the public announcement. The

impact assessment made provision for a further review in this regard. In my judgment,

the Secretary of State had not deferred discharge of her duty, only the detail of the

implementation, which her department had previous experience of managing.

113. In addition, the present case is distinguishable from the case of Hough. Hough

concerned a special development order for 5 years and an equalities assessment which

proceeded on the basis of use of the site for two months. The Court in Hough concluded

that there was a significant difference between a development proposed to continue for

two months and one for five years particularly in respect of the development of

community relations. Pressure on community services would be much greater over a

prolonged period than for only two months.

114. In the present case the Equality Impact Assessments proceeded on the basis that the

length of accommodation on site was for as long as is expedient. On behalf of Braintree

it was said that the assessment should have proceeded on the basis of prolonged use but

for the reasons explained above (in the ground on environmental impact assessment)

the evidence demonstrates that there was no certainty about the duration of the use of

the sites after the 12 month period afforded by the Class Q permitted development right.

Value for Money

115. Braintree District Council sought permission to introduce the ground after permission

had been granted by the Court. The Secretary of State did not object to its introduction

but submitted the ground had no merit.

116. The ground was only dealt with briefly in oral submissions on behalf of by the Council.

In essence, it was submitted that the costs of accommodating asylum seekers in hotels

was a key motivating aspect of the decision making under challenge. The value for

money of the proposed use of the sites was referred to repeatedly in Ministerial

submissions as one of four Accounting Office tests. The Home Secretary was informed

of the need to satisfy the tests and that advice was under preparation by the Accounting

Officer. The advice was finalised on 24 March 2023 and concluded that use of the site

at Wethersfield was cheaper than hotels on the assumption that hotel use will persist in

the short and medium term up to a 5 year period that Wethersfield was expected to be

used for. There was said to be a risk to value for money if hotel use runs for significantly

less than the 5 year period. The advice on this aspect concludes that the Accounting

Officer will need to accept that there is a risk the site could not meet value for money

test. The advice was not shown to the Secretary of State. Instead in the final submission

before decisions were taken, the Secretary of State was told that the Second Permanent

Secretary was content with the value for money analysis. In failing to acquire the

(readily available) information herself, the Secretary of State either failed in the

Tameside duty to acquire information that was necessary to making a lawful decision

or alternatively left out of account a mandatory factor, which was bound to have

relevance to the decisions. It was an obvious enquiry for the Secretary of State to make

Judgment Approved by the court for handing down.

CLARKE-HOLLAND, WLDC & BDC V SSHD & Anr

and the material was readily available within the Home Department and known to

senior officials. In the further alternative, the Secretary of State proceeded on a

mistaken basis, sufficient to amount to an error of law, that the Accounting Officer tests

were satisfied without a specific operational period being identified.

117. I am not persuaded by the submissions, as briefly advanced.

118. The fact that a Minister did not know about, or have their attention drawn to, a relevant

consideration is insuﬃcient by itself to vitiate the decision. A claimant needs to go

further and demonstrate that the consideration was so “obviously material” that a failure

to take it into account would be irrational (R (National Association of Health Stores) v

Secretary of State for Health [2005] EWCA Civ 154 at §62–63 and §73–75).

119. As Counsel for Braintree Council accepted, the Secretary of State was informed about

value for money considerations in relation to RAF Scampton, because there was a

debate about an option to purchase to be offered to the local authority. Officials

repeatedly informed ministers that the site would need to be used for 3 years to provide

value for money but Ministers indicated their preference for offering the option to the

local authority at 2 years. It is apparent from this debate that the Secretary of State was

prepared to take decisions which she understood did not amount to value for money.

Whilst there is no specific debate about value for money in relation to Wethersfield, the

decision-making context was the same. Given the context of the decision making

(explored in detail in the ground on environmental impact assessment), value for money

was not so obviously material that it was irrational for the Secretary of State to rely on

the submission that her permanent secretary was content with the value for money

analysis without inquiring into the details of the underlying analysis. Other obvious

motivating factors for the decision making included the Secretary of State’s statutory

responsibility to accommodate asylum seekers and the difficulties with current

arrangements with hotels, which extended beyond cost to legal action by local

authorities to prevent the use of hotels. Moreover, Accounting Officers are personally

responsible to Parliament for the stewardship of its resources, not to the Secretary of

State. Nor am I persuaded that the Secretary of State was operating under a mistaken

understanding that value for money was satisfied however long the sites were used for.

There is nothing in the decision making material to indicate an error of this sort.

Conclusion

120. For the reasons given above, the claims for judicial review are dismissed.