The High Court in Buckley, R (on the application of) v Bath and North East Somerset Council & Anor [2018] EWHC 1551 (Admin) has recently considered the relevance of the public sector equality duty when local authorities determine planning applications. Of particular interest was the application and extent of the duty for outline applications, given that reserved matters are unknown and undecided at such time.
Legislation
The public sector equality duty arises from section 149 of the Equality Act 2010 (PSED) which provides:
- A public authority must, in the exercise of its functions, have due regard to the need to:
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
3. Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to:
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
7. The relevant protected characteristics are: age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex.
The facts
The case concerned an outline planning permission granted by the council to Curo Places Limited (a housing association) for the redevelopment of part of a housing estate known as the Foxhill Estate by the demolition of up to 542 dwellings and the provision of up to 700 dwellings.
The claimant, on behalf of a residents’ association for the estate, accepted that the needs of existing social housing tenants, in terms of the allocation to suitable new housing, would be dealt with by the arrangements put in place for allocating housing as the development is carried out, and the PSED would be complied with at that stage.
However, the claimant contended that at the outline application stage there was still a need to have due regard to the impact on the elderly and the disabled. In particular, due regard should be given to the loss of their existing home if permission for the proposed development, including demolition of their homes, were granted. By example, the claimant cited that such event may be particularly traumatic for elderly persons who may have lived in their home for many years and hope to remain there until the end of their lives. In the case of disabled persons, the home may have been adapted and the need was to have due regard to the impact on them of losing the security of a home which met their needs.
The council argued that the PSED did not apply to outline planning applications as it was not possible to do any meaningful equality impact assessment at such stage, given the lack of information about the scope of any actual demolition and the identity and characteristics of the persons affected. Alternatively, they submitted that the decision was an application of local plan housing policy and the likely adverse impacts of demolition had necessarily been contemplated in the course of developing that policy.
The decision
The High Court found that the PSED applied to planning decisions, including those for outline planning applications. In terms of applying and discharging the duty, the court gave the following advice:
“The duty is one of substance, not form, and the real issue is whether the relevant public authority has, in substance, 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 will not, of itself, necessarily mean that the decision-maker failed to have regard to the relevant matters although it is good practice to make reference to the duty, and evidentially useful in demonstrating discharge of the duty.”
The High Court further found that the council had failed in this case to give due regard to the PSED in their decision to grant outline planning permission. It found that the council’s planning officer’s report failed as follows:
“the focus was on the impact of displacement, or moving, of residents. [It] 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 may well be that not a great deal would have needed to be said on this matter. It may have been sufficient to draw that matter to the decision-maker's attention and then the decision-maker could have decided whether the contemplated benefits of the proposed development did outweigh any negative impacts. Ultimately, however, I am persuaded 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 the decision-maker's attention. In the circumstances, there was a failure to discharge the duty imposed by section 149 of the 2010 Act.”
In accordance with section 31(2A) of the Senior Courts Act 1981, the court has discretion as to the remedy of quashing a planning decision where it is highly likely the outcome would not have been substantially different. However, in quashing the outline planning permission, in this case the development was a contentious proposal voted 5 to 4 in favour by the council’s planning committee. Therefore, the court was not satisfied that it was highly likely the outcome will be the same.
Lesson: Local planning authorities need to give due regard to the PSED in their planning judgement of planning applications. Most of the time this is likely not to be an extensive or involved analysis, given the specifics of the proposed development (including whether it is an outline permission, permission in principle or detailed permission). Good practice would be for planning officers to include as standard a section on PSED in all their officer reports.
