Town and country planning – Enforcement notice – Validity – Claimant challenging decision of defendant local authority to issue enforcement notice in respect of change of use of land from employment to residential units – Whether defendant having proper regard to public sector equality duty – Whether defendant failing to consider properly effect of enforcement notice on residents – Whether defendant having proper regard to statutory test of expediency – Whether scrutiny of planning officer’s report different where decision-maker was delegated officer – Claim dismissed
The claimant sought to challenge a decision made by the defendant local authority to issue an enforcement notice pursuant to the Town and Country Planning Act 1990, relating to land at Shire House, 400 Dallow Road, Luton, Bedfordshire, formerly the site of an office block, located within a functioning industrial estate. The breach of planning control identified in the notice was, without permission, the change of use of the land from an employment use to a residential use comprising of approximately 109 self-contained residential units, and the erection of three two-storey structures used to accommodate multiple self-contained residential units on the land.
Section 5 of the notice set out the remedial action required. By section 6, a time-period of six months from 8 April 2022 was given for compliance with the requirements of the notice. However, the claimant appealed against the notice pursuant to section 174 of the 1990 Act and, in the meantime, was not required to take the action required by section 5 of the notice.
The claimant contended that the decision was taken without any, or any proper, regard to the defendant’s public sector equality duty (PSED) arising under section 149 of the Equality Act 2010 or to the best interests of children residing on the site, and without any, or any proper, regard to the statutory test of expediency under section 172(1)(b) of the 1990 Act.
Held: The claim was dismissed.
(1) The principles that the planning court always had to be vigilant against excessive legalism infecting the planning system and should not adopt a hypercritical approach to a planning officer’s report, interfering only where defects were material rather than minor or inconsequential, applied with no less force where the planning committee had delegated certain decisions to the professional officer who, in common with councillors who regularly sat on the planning committee, might be expected to have substantial local knowledge, including of local development plans. Accordingly, there was no requirement for a greater level of scrutiny by the court of the report of the professional officer where the decision had been delegated than there was of the report of such an officer which had been prepared for a committee: R (Hayes) v Wychavon District Council [2019] PTSR 1163, R (Mansell) v Tonbridge and Malling Borough Council [2019] PTSR 1452 and R (Noble) v Cornwall County Council [2022] EWHC 2402 (Admin) considered.
(2) Equality duties were an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. An important evidential element in the demonstration of the discharge of the duty was the recording of the steps taken by the decision-maker in seeking to meet the statutory requirements. The relevant duty was upon the minister or other decision-maker personally. What mattered was what he or she took into account and what he or she knew. Thus, the minister or decision-maker could not be taken to know what his or her officials knew or what might have been in the minds of officials in proffering their advice. A minister had to assess the risk and extent of any adverse impact and the ways in which such risk might be eliminated before the adoption of a proposed policy and not merely as a “rear-guard action” following a concluded decision: Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; [2014] EqLR 60 considered.
Although the duty of reasonable enquiry was not an express statutory duty under section 149, like other public law duties, the PSED implied a duty of reasonable enquiry. It was for the decision-maker to decide on the manner and intensity of enquiry. It was not for the court to step into the shoes of the primary decision-maker. Therefore, the duty of enquiry in the context of the PSED was subject to challenge only on irrationality grounds.
(3) In the present case, it was evident from the officer’s report that the defendant had consciously considered the impact of the proposed enforcement action on the needs of those with protected characteristics before issuing the notice. The defendant also had a proper appreciation of the desirability of promoting the equality objectives. The nature and context of the proposed decision was such that the defendant was not required to identify, on an individual basis, the protected characteristics of the occupiers or to ascertain their individual circumstances. The defendant’s assessment of what was required by way of enquiry to enable it to assess the impact on people with the relevant characteristics of taking enforcement action was rational and lawful: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 and R (Sheakh) v Lambeth London Borough Council [2022] EWCA Civ 457; [2022] PLSCS 59; [2022] PTSR 1315 applied.
(4) In public law, in assessing whether it was expedient to take enforcement action, a distinction was drawn between (i) considerations that a decision-maker was required to take into account (mandatory relevant considerations); (ii) matters that were not to be taken into account (mandatory irrelevant considerations); and (iii) those considerations which the decision-maker might choose whether or not to take into account. Where, as here, it was alleged that a decision-maker had failed to take into account a material consideration, it was axiomatic that such an omission would only vitiate a public law decision if the consideration fell into category (i).
In determining whether a matter was a mandatory relevant consideration, the question was whether it had been expressly or impliedly identified by statute or policy as being required, as a matter of legal obligation, to be taken into account by the decision-maker, or whether, on the facts, it was so obviously material as to require consideration. In the present case, the approach taken in the officer’s report to the question whether it would be expedient to issue an enforcement notice was lawful: R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3; [2020] EGLR 13 applied.
Scott Stemp (instructed by Town Legal LLP) appeared for the claimant; Wayne Beglan (instructed by Luton Borough Council Legal Services) appeared for the defendant.
Eileen O’Grady, barrister
