PSED and Planning

June 25th, 2018

R (Buckley) v Bath and North East Somerset Council (2018) EWHC 1551 (Admin) was a claim for judicial review of a decision by the LPA to grant outline planning permission for a residential development comprising the demolition of up to 542 dwellings and the provision of up to 700 dwellings. One of the grounds of challenge was alleged breach of the PSED. Did the PSED apply to the grant of outline planning permission.  Lewis J said as to the applicability of the PSED:-

  1. Section 149 of the 2010 Act provides that a public authority must have due regard to certain matters “in the exercise of its functions”. The grant of outline planning permission involves the exercise of a statutory function by the defendant. It is the exercise of the function conferred by section 70 of the 1990 Act. As a matter of statutory language, therefore, the duty in section 149 of the 2010 does apply to the function of granting outline planning permission pursuant to section 70 of the 1990 Act.
  2. The fact that the application is for outline planning permission and that certain reserved matters are to be considered at a later stage in the process may affect the content or scope of the duty in particular cases but that does not prevent the duty applying. By way of example, approval of reserved matters such as layout and access may, depending on the circumstances, raise specific equality considerations. Those matters may require little or no consideration at the outline stage but may need to be considered carefully at the stage when those matters come to be considered for approval. Similarly, the fact that the grant of outline planning permission is one stage in a process which has a number of different stages before the development is finally completed may affect the scope of the duty. Again, by way of example, demolition of a dwelling adapted for use and occupied by a disabled person may result in the need to have due regard to the possibility of providing suitable alternative accommodation for that person. The suitability of the actual provision for particular tenants may be better assessed at a later stage in the overall process of development. The impact of demolition of existing homes and adapted dwellings on elderly and disabled persons who occupy them may, however, need to be considered at the time when outline permission is granted.”

As to whether the Council complied with the PSED, Lewis J said:-

“35.    The general approach to whether the public sector equality duty has been complied with is set out in the decision of the Court of Appeal in R (Bracking) v Secretary of State for Work and Pensions [2013] EWC Civ 1345. There, the relevant government department decided to close a fund operated by an independent non-government body which, broadly, provided funding to assist disabled persons to lead independent lives. On the facts, the Court of Appeal concluded that the information provided to the relevant minister did not give her an adequate awareness that the proposals would place independent living in serious peril for a large number of people. The Court concluded that the minister had not complied with the public sector equality duty and quashed the decision.

  1. As Lord Neuberger observed at paragraph 74 of his judgment in Hotak v London Borough of Southwark [2016] A A.C. 811 “the weight and extent of the duty are highly fact-sensitive and dependant on individual judgment”. The Court of Appeal in R (Barker) v Secretary of State for Communities and Local Government [2008] 2 P. & C. R. 6 has also given valuable guidance on assessing whether there had been compliance with section 71 of the 1996 Act. Similar principles apply to the equivalent duty in section 149 of the 2010 Act: see Hotak v London Borough of Southwark [2016] 1 A.C. 811 at paragraphs 73 to 74. In broad terms, the duty is a duty to have due regard to the specified matters not a duty to achieve a specific result. 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 (see, e.g., Baker at paragraphs 36 to 37, and Bracking at paragraph 26).”

Lewis J concluded:-

 “40.               On balance, … in my judgment, the defendant did not in fact have due regard to the impact on the elderly and disabled persons of granting an application which might lead to the demolition of their existing homes. …Ultimately, … the focus was on the impact of displacement, or moving, 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 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.”

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