AC-2024-LON-0001595 - [2025] EWHC 2182 (Admin)

In the absence of any express or implied statutory prescription of matters to be taken into account (as is the case here) the question is whether there are some matters that are “so obviously material to a decision … that anything short of direct consideration of them by [the public authority] … would not be in accordance with the Act”: per Cooke J in CREEDNZ Inc v Governor General [1981] NZLR 172, 183 (cited in R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] PTSR 190 at [117]). It was confirmed in Friends of the Earth (at [119]) that “the test whether a consideration is “so obviously material” that it must be taken into account is the familiar Wednesbury irrationality test …”.

Applying that test to the matters relied upon by the Claimant, it is plain, in my judgment, that to the extent that any of them were not considered by the SoS, it was not irrational to take that approach.

The first matter relied upon, namely that the remediation works would be undertaken by a company other than Rydon Maintenance, was taken into account: that fact is expressly mentioned at [3(g)] of Annex C to the First Submission. The same applies to the second matter, namely the fact that Rydon had remediated or was in the process of remediating other buildings: see [16] to [19] of the First Submission, where the SoS is provided with details as to the precise number of buildings for which Rydon had responsibility and as to the stage remediation had reached for them. There was, however, a difficulty as at the date of the First Submission in assessing whether such remediation works met the required standard, as the relevant information in that regard was not provided to the Department until 30 May 2024.

Mr Litton’s point appears to be not so much that these matters were not included in the First Submission (since they clearly were), but more that Rydon’s successful remediation of other buildings could not possibly have been taken into account because if it had been then the SoS could not rationally have considered Rydon unfit. This was a recurring theme in Mr Litton’s submissions under various of the Grounds. In my judgment, the point lacks merit for the simple reason that it is based on a very narrow reading of “unfitness” within the meaning of the SRTs. Clearly, the fact that Rydon had successfully remediated other buildings was a relevant consideration, but it was far from the only one and might arguably even be said not to be the principal one for the purposes of the Designation Decision. The question was whether Rydon (or any of its group companies) “is currently a person whose conduct is under consideration by a public inquiry regarding their performance or behaviour in connection with building safety matters such that the PD is reasonably considered by DLUHC to be unfit to carry out or procure …” the remediation works. The question of ‘unfitness’ here clearly connotes factors over and above competence and could include things such as trust and confidence in Rydon, the wider public interest or other matters relating to conduct arising in the course of the Inquiry. Rydon may well have successfully remediated other buildings but that would not necessarily mean that, in light of the evidence presented to the Inquiry (which could, for example, have had the effect of badly eroding trust and confidence), it would be considered ‘fit’ to remediate the Cable Street Buildings having regard to all relevant considerations.

There is no contradiction in designating Rydon in respect of some buildings and not others. That is consistent with fitness not being a binary matter based on competence alone and is an outcome contemplated by Clause 7.7 of the SRTs: (“…either in relation to all relevant Buildings Requiring Work or such Buildings Requiring Work as it may determine…”). There may be a host of reasons – including timing, locality and local sensitivities or the history associated with particular buildings – why it might be appropriate to designate only in respect of specific buildings.

The final matter relied upon under Ground 3 is what Mr Litton described as a “very significant disconnect” between the views of two senior civil servants as set out in the Dossier and the information which was included in the First Submission. The point, in short, is that their view that the “buildings should be transferred” and that they had “no specific concerns about Rydon taking over the buildings” ought to have been made known to the SoS by way of inclusion in the First Submission.

Whilst senior civil servants might in some cases make a recommendation to the relevant Minister (as was the case here in respect of some of the matters to be decided) or express a view for the Minister to consider, they will not invariably do so. There will be circumstances where it will be considered appropriate merely to set out the evidence and the options and leave the decision to the Minister. It cannot be said that the views of senior civil servants, who do not have the responsibility for making the decision, were so obviously material that it would be irrational to leave them out of account. These were not for example the views of expert witnesses on a technical or specialist matter on which the SoS would need assistance; they were views on an issue that would require the SoS to make a value judgment in due course. The Claimant does not suggest that the evidence presented to the SoS in the First Submission is otherwise biased or unfairly summarised. As such, it can be said the SoS had all the information required to make the relevant decisions and nothing obviously material was left out of account. The SoS could have sought the views of the senior civil servants in making his decision, but whether or not he did so was a matter that fell within the “margin of appreciation within which [he] may decide just what considerations should play a part in his reasoning process”: Friends of the Earth at [116] citing from R v Somerset County Council, Ex p Fewings [1995] 1 WLR 1037, at 1049.

Accordingly, Ground 3 fails and is dismissed.