Clarke-Holland, WLDC & BDC v SSHD and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thornton |
| Judgment Date | 06 December 2023 |
| Neutral Citation | [2023] EWHC 3140 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1539/2023, AC-2023-LON-001312; CO/1577/2023, AC-2023-LON-001346; CO/1673/2023, AC-2023-LON-001419 |
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[2023] EWHC 3140 (Admin)
THE HONOURABLE Mrs Justice Thornton DBE
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
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)
Hearing dates: 31 st October – 1 st November 2023
Approved Judgment
This judgment was handed down remotely at 14:15 on Wednesday 6 th December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The Hon.
Introduction
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.
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.
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.
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
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
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).
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.
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
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.
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
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.
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”.
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 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.”
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...
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