Town and country planning – Planning permission – Public sector equality duty – Claimant resident applying for judicial review of decision of defendant local authority to grant planning permission for development of housing estate – Whether defendant failing to have regard to duty under section 149 of Equality Act 2010 – Application granted
The defendant local authority granted outline planning permission for the development of part of an estate known as the Foxhill Estate, located to the south of Bath, by the demolition of up to 542 dwellings and the provision of up to 700 dwellings. It comprised a large number of flats and terraced and semi-detached houses. The majority of the properties were owned by a registered social housing provider (the interested party).
The claimant was a long-term resident of the estate. He applied for judicial review of the decision to grant planning permission contending, amongst other things, that the defendant failed to have due regard to certain matters as required by section 149 of the Equality Act 2010 (the public sector equality duty) which, in turn, involved four issues: (i) whether the public sector equality duty applied to the grant of outline planning permission; if so, (ii) whether the duty was complied with as the permission was granted pursuant to Policy H8, which itself involved an assessment of the section 149 duty; (iii) whether the defendant, on the facts, had due regard to section 149, notwithstanding the absence of any reference to the public sector equality duty; and (iv) whether, if there was a failure to comply, the court should refuse, as a matter of discretion, to quash the planning permission.
Following the grant of permission to apply for judicial review, the interested party decided not to consider demolition of the homes on the estate but to refurbish them. However, the defendant did not accept that the decision to grant permission was flawed and the challenge to its validity continued.
Held: The application was granted.
(1) (1) Section 149 of the 2010 Act provided that a public authority had to have due regard to certain matters “in the exercise of its functions”. The grant of outline planning permission involved the exercise of a statutory function by the defendant conferred by section 70 of the Town and Country Planning Act 1990. The fact that the application was for outline planning permission and that certain reserved matters were to be considered at a later stage might affect the content or scope of the duty but that did not prevent the duty applying.
(2) Policy H8 was a general policy dealing with affordable housing regeneration schemes. The specific provision relevant in the present case was the second part of the policy, where there was a site-specific socio-economic justification for redevelopment-led regeneration, considered alongside options for re-modelling or refurbishment. On its terms, it was not possible to consider that that policy, or its application, involved an assessment of the needs of particular groups or the impact of the demolition of dwellings of persons with protected characteristics. It was not possible to regard the fact that the application complied with Policy H8 in the defendant’s development plan as automatically involving compliance with the defendant’s duties under section 149 of the 2010 Act.
(3) The weight and extent of the public sector equality duty were highly fact-sensitive and dependant on individual judgment. In broad terms, it was a duty to have due regard to the specified matters not to achieve a specific result. The duty was one of substance, not form, and the real issue was whether the relevant public authority had had regard to the relevant matters having regard to the substance of the decision and the authority’s reasoning. The absence of a reference to the public sector equality duty would not itself necessarily mean that the decision-maker failed to have regard to the relevant matters although it was good practice to make reference to the duty, and evidentially useful in demonstrating discharge of the duty. In the present case, the real issue of substance was whether the defendant could demonstrate that it had had due regard to the impact on the elderly or disabled of the loss of their existing homes. On balance, it had not done so. The defendant was, very properly, concerned to ensure that the fears of all those affected about displacement were allayed. The defendant, and the interested party, had given considerable attention to ensuring that persons could remain within the estate. Ultimately, however, the focus was on the impact of displacement of residents. The defendant did not specifically address or have regard to the impact on groups with protected characteristics, in particular the elderly and the disabled, of the loss of their existing home. It might have been sufficient to draw that matter to the decision-maker’s attention to decide whether the contemplated benefits of the proposed development outweighed any negative impacts. However, there were matters relevant to the discharge of the public sector equality duty which the relevant decision-maker needed to have due regard to but which were not drawn to its attention. In the circumstances, there was a failure to discharge the duty imposed by section 149 of the 2010 Act: R (Barker) v Secretary of State for Communities and Local Government [2008] 2 P & CR 6, R (Bracking) v Secretary of State for Work and Pensions [2013] EWC Civ 1345 and Hotak v London Borough of Southwark [2016] AAC 811 considered.
(4) This was a controversial proposal. The ultimate vote was five in favour of the grant of outline planning permission and four against. There would be other options open for addressing the problems of the estate including refurbishment rather than demolition. It could not be said that it was highly likely that the outline planning permission would have been granted if the breach of section 149 had not occurred. Accordingly, given the absence of any other justifiable reason for refusing a remedy, the decision to grant outline planning permission would be quashed.
Sarah Sackman and Katherine Barnes (instructed by Leigh Day) appeared for the claimant; Richard Wald (instructed by Sharpe Pritchard) appeared for the defendant; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
