Town and country planning – Planning permission – Public sector equality duty – Claimants applying to quash decision of planning inspector to allowing appeal against refusal of planning permission for on-shore office and warehousing building – Whether inspector failing to discharge public sector equality duty take account of likely impact of development on disabled persons having no access to riverside – Whether inspector erring in approach to potential alternative site – Application granted
The second defendant developer applied for planning permission for an on-shore office and warehouse building at the car park, Alabama Way, Birkenhead, Merseyside, to serve as a marine operations and maintenance facility for windfarms in Liverpool Bay and the Irish Sea. A marine licence had been granted for the proposed floating pontoon and linkspan structure. The site was immediately adjacent to the River Mersey. Once the site of a railway, the car park and the adjacent Monks Ferry slipway were now owned by the third defendant local authority. The public enjoyed access to the car park. Charter boat companies used the slipway with the knowledge of the third defendants which resolved that its freehold interest in the site could be sold to the second defendant. However, planning permission for the development was refused by third defendants on the grounds that it would result in an unacceptable loss of amenity for the occupiers at the adjacent residential development at Priory Wharf by virtue of increased noise, general disturbance and poor outlook.
An appeal against that refusal was opposed by the claimants, who were adversely affected by the proposal, and had previously objected to the proposed development. However, an inspector appointed by the first defendant decided that the appeal should be allowed and planning permission should be granted, subject to conditions.
The claimants applied to quash the decision under section 288 of the Town and Country Planning Act 1990. The claimants contended, among other things, that inspector had (i) failed to appreciate and/or take into account that the likely impact of the development was that disabled persons would no longer be able to access the riverside, thereby failing to discharge the public sector equality duty under section 149 of the Equality Act 2010; and (ii) erred in
Held: The application was granted.
(1) The public sector equality duty under section 149 was to have due regard to the need to achieve the statutory goals. The court had to consider whether “due regard” had been paid to that duty which was appropriate in all the circumstances, including the importance to members of disadvantaged groups affected by the inequality of opportunity and the extent of the inequality and countervailing factors relevant to the function which the decision-maker was performing. Performance of the due regard duty had to be an integral part of the formation of the decision. That was a matter of substance, to be judged according to the facts and there had to be enough information before the decision-maker to enable the necessary balancing exercise to be carried out. The decision under challenge in this case was a planning decision of a local planning authority to approve a scheme of development, not a decision of a public body to withdraw or reduce a particular service. However, the public sector equality duty was no less onerous in a planning case than others but the circumstances in which the authority’s performance of the duty had to be scrutinized would inevitably be different: R (Coleman) v London Borough of Barnet [2012] EWHC 3725 (Admin), R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2011] EWHC 2616 (Admin), R (Brown) v Secretary of State for Work and Pensions [2009] PTSR 1506 R (Kaur) v Ealing LBC [2008] EWHC 2062 (Admin) applied.
(2) The public authority decision maker had to be aware of the duty to have due regard to the relevant matters to be fulfilled before and at the time when a particular policy was being considered and had to be exercised in substance, with rigour, and with an open mind. While there was no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduced the scope for argument. The duty was non-delegable and continuing. It was good practice for a decision maker to keep records demonstrating consideration of the duty. Officials reporting to or advising ministers or other public authority decision makers, on matters material to the discharge of the duty had to be rigorous in both enquiring and reporting to them. It was for the court to decide for itself if due regard had been had but it was for the decision maker to decide what weight to give to the equality implications of the decision. Public authorities had to be properly informed before taking a decision. If the relevant material was not available, there was a duty to acquire it by further consideration with appropriate groups. The duty to have due regard concerned the impact of the proposal on all persons with the protected characteristic and specifically upon any particular class of persons within a protected category obviously adversely affected by the proposal: R (Kaur) v Ealing LBC [2008] EWHC 2062 (Admin) and Moore and Coates v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin) applied.
In this case, there was no indication in the decision that the inspector had considered the factors set out in section 149, and tellingly there was no reference, express or implied, to the statutory considerations of removing or minimising disadvantages suffered by disabled persons, and taking steps to meet the needs of disabled persons. It was likely that the inspector overlooked section 149 in reaching his decision, and thus made an error of law. The section 149 duty was concerned with the manner in which decisions were made, not merely outcomes.
(3) It was common ground at the appeal that it was appropriate for possible alternative sites to be considered and the developer presented a report considering six alternative locations. The inspector had erred in his approach to a particular potential alternative site. The purpose of the site visit was to identify and view possible alternative sites. Those accompanying the inspector were permitted to point out the sites and identify features. There had been a breach of natural justice/procedural fairness in that the inspector did not take into account the identification of the alternative site. If due consideration had been given to that alternative site, the outcome might have been different, and the claimants had been substantially prejudiced. If the alternative site had been found to be suitable and did not have the adverse impacts of the appeal site, planning permission might not have been given.
Timothy Jones (instructed by Richard Buxton Solicitors) appeared for the claimants; Stephen Whale (instructed by the Government Legal Department) appeared for the first defendant; The second and third defendants did not appear and were not represented
Eileen O’Grady, barrister
