Redevelopment – Local planning authority – Racial equality – Planning committee taking account of effect of proposed development on different racial groups without direct reference to statutory duty — Whether respondents discharging duty under Race Relations Act 1976 — Appeal allowed
The respondent local planning authority granted planning permission to the interested parties to demolish existing buildings and erect mixed-use developments comprising Class C3 residential and Class A1/A2/A3/A4 uses. The area in which the site was located was predominantly comprised of local independent traders with a mix of Turkish, Cypriot, Colombian and Afro-Caribbean influences. The proposed development was substantial and constituted an important part of the regeneration of the area.
The appellant local resident applied for judicial review of the grant of permission on the ground, inter alia, that, when granting permission, the respondents had failed to discharge their duties under section 71(1)(b) of the Race Relations Act 1976, as amended by the Race Relations (Amendment) Act 2000, which provided that bodies such as the respondents, should, in carrying out their functions, have due regard to the need to promote equality of opportunity and good relations between persons of different racial groups.
The High Court held that the respondents had complied with their duties under section 71. It was satisfied that the respondents’ conduct met the substance of the statutory requirements in a way that was appropriate in the circumstances, even though they had not articulated the fact that they were carrying out their section 71 duties.
The appellant appealed, contending that the presence before the decision maker of documents referring to equality issues did not sufficiently comply with the section 71 duty. There had to be a demonstrable application of the statutory duty to the particular facts. It was necessary to focus on the needs of minority groups.
Held: The appeal was allowed.
The section 71 duty had not been discharged by the respondents when granting planning permission. It could be assumed that the council policies to which reference had been made in the instant case might be admirable in terms of proposing assistance for ethnic minority communities, but they did not specifically address the requirements imposed on the respondents by section 71: R (on the application of Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141; [2008] 2 P&CR 6 and R (on the application of Isaacs) v Secretary of State for Communities and Local Government [2009] EWHC 557 (Admin) distinguished.
There was a sufficient potential effect on equality of opportunity between persons of different racial groups, and on good relations between those groups, to require that the effect of the decision on aspects of social and economic life should be considered. This was not a planning application in which the effect of the decision on section 71 considerations was so remote that the substance of the duty could be ignored.
Not only did report to the planning committee and its deliberations fail to refer to section 71 but 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. Due regard need not require the promotion of equality of opportunity, but it did require an analysis of that material with the specific statutory considerations in mind.
It did not follow that considerations raised by section 71 would be decisive in a particular case. The weight to be given to the requirements of the section was for the decision maker, but it was necessary to have due regard to the needs specified in section 71(1). The respondents had not analysed the material before them in the context of that duty. It was necessary for the requirements of section 71 to form in substance an integral part of decision-making process. The court was unable to hold that they did and, accordingly, the permission had to be quashed.
David Wolfe (instructed by Bindmans Solicitors LLP) appeared for the appellant; Peter Harrison QC (instructed by the legal department of the London Borough of Haringey) appeared for the respondents; Helen Mountfield QC (instructed by the Equality and Human Rights Commission) appeared for the intervener; the interested parties did not appear and were not represented.
Eileen O’Grady, barrister
