The Judge dismissed the first seven of eight grounds of challenge, but held that there had been a breach of the public sector equality duty in s149 of the Equality Act 2010 concerning community relations, which, in short, had been considered in too general terms.  

The issues, and the Judge’s conclusions, can be summarised as follows.

(1) It was argued by the claimant that there had been a breach of Regulation 64 of the Environmental Impact Assessment Regulations, which requires functional separation between the promoter and decision-maker of a proposal, relying on paragraph 126 of the decision in London Historic Parks and Gardens Trust v SSHCLG [2020] EWHC 2580 (Admin).  The key complaint was that the handling arrangements which had been followed to ensure functional separation when performing duties under the EIA Regulations had not been set out in writing and published.  The Judge accepted the defendant’s submission that there was a fundamental distinction between the two cases, given that this case concerned only EIA screening in relation to which there is no public participation.  The London Historic Parks and Gardens Trust case could therefore be distinguished.

(2) It was argued that the SDO effected a change to a wider residential redevelopment, which included the SDO site, and which was EIA development which already had planning permission, so that the SDO development had to be treated as a change to a development project and therefore screened for EIA purposes under paragraph 13(b) of Schedule 2 to the EIA Regulations.  Lieven J accepted the defendant’s submissions that the SDO did not effect a change to the residential redevelopment.  

(3) The claimant argued that the EIA screening was unlawful as it failed to consider certain matters, in particular the in-combination effects of the asylum accommodation use and the residential redevelopment.  The Judge accepted the defendant’s case that the EIA screening did sufficiently consider the Schedule 3 selection criteria and in-combination effects.  

(4) It was argued that the SDO was unlawful because it offended the Pilkington principle because it rendered impossible the carrying out of part of the residential redevelopment under the earlier planning permission.  Again, the Judge accepted the defendant’s submission that there was no incompatibility between the SDO and the residential planning permission which included the SDO site.  

(5) The claimant argued that the SDO was unlawful under the Padfield principle because it frustrated the requirements of the condition in paragraph Q.1(b) of the General Permitted Development Order 2015 to cease the use of the land, and restore it, at the end of the 12 month period allowed by Class Q.  The Judge accepted the defendant’s case that the specific SDO could lawfully take precedence over the general condition in the GPDO.  

(6) It was argued that there was a duty to consult before making the SDO based on the conspicuous unfairness said to arise from statements that the use would not continue beyond the initial 12 month period running to September 2021.  Lieven J accepted the defendant’s case that there was not conspicuous unfairness or an abuse of power in not consulting before making the SDO.  

(7) The claimant argued that there had been a breach of the Tameside duty to make inquiries to inform the decision on the SDO in relation to various matters, including the impact on local health infrastructure and the co-location of the asylum accommodation within a housing redevelopment.  The Judge accepted that the defendant had carried out considerable investigations which were adequate, and held that there was no obligation on a decision-maker to have full knowledge of every matter that could be relevant.

(8) The claimant argued that there had been a failure to comply with the public sector equality duty in s149 of the Equality Act 2010 in relation to community relations impacts in the context of the co-location of the asylum accommodation and the housing development.  Whilst the Judge accepted that the Minister would have been aware of the general issue, and that some consideration had been given to the issue, Lieven J concluded that there had not been proper consideration of the potential for impacts over the five year period of operation provided for by the SDO and what steps could be taken to mitigate any such impacts.

Richard Honey QC, Mark Westmoreland Smith and Charles Streeten appeared for the Secretary of State, instructed by the Government Legal Department.