A local planning authority (LPA) is one of the many bodies subject to the duty imposed by section 71(1) of the Race Relations Act 1976, as amended, in carrying out its functions. That duty is to have due regard to the need to: (i) to eliminate unlawful racial discrimination; and (ii) promote equality of opportunity and good relations between persons of different racial groups. However, what exactly must an LPA do, in determining a planning application, to demonstrate that it has had “due regard”?
In R (on the application of Harris) v Haringey London Borough Council [2010] EWCA Civ 703; [2010] PLSCS 170, the LPA had granted planning permission – as an important part of the regeneration of an area – for a substantial mixed-use development. The area predominantly comprised local independent traders with a mix of Turkish, Cypriot, Colombian and Afro-Caribbean influences, and the LPA acknowledged that it was bound to discharge the section 71(1) duty.
The appellant sought unsuccessfully to quash the decision to grant planning permission, by means of a claim for judicial review, and subsequently appealed to the Court of Appeal. She contended that the LPA had not complied with the second limb of the section 71(1) duty. Specifically, she argued that the presence before the LPA of documents referring to equality issues did not sufficiently comply with that duty. It was necessary to show a demonstrable application of the duty to the particular facts.
The Court of Appeal allowed the appeal and quashed the planning permission. Pill LJ concluded that the second limb of the section 71(1) duty had not been discharged. Although the LPA’s policies that had been referred to might be admirable in terms of assisting ethnic minorities, they did not specifically address the requirements of section 71. The report to the planning committee, and its deliberations, did not refer to section 71. Furthermore, the required “due regard” for the need to “promote equality of opportunity and good relations between persons of different racial groups” had not been demonstrated in the decision-making process.
What this decision makes clear is that particularly in a case where policies have not been adopted the purpose of which was to address the issues in section 71(1), an argument that there has been compliance in substance – despite a failure to explicitly refer to section 71(1) – will not succeed.
John Martin is a freelance writer
