Category: Public Sector Equality Duty

Permission Quashed Due To PSED Failure

This year has seen a few cases that will have made developers and decision makers somewhat nervous as to the sheer variety of matters which may give objectors a basis for judicial review, depending of course on the facts in each situation and the reasoning set out for the relevant decision. After, for instance Rainbird (my 12 May 2018 blog post) and People Over Wind (my 20 April 2018 blog post) we now have what I think is the second example of a planning permission being quashed as a result of a local planning authority failing to comply with the Public Sector Equality Duty (“PSED”) within section 149 of the Equality Act 2010.

Section 149 provides as follows:

“(1) 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;
…..


(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.
…..


(7) The relevant protected characteristics are—
age;

1. disability;

2. gender reassignment;

3. pregnancy and maternity;

4. race;

5. religion or belief;

6. sex.”

In R (Buckley) v Bath and North East Somerset Council (Lewis J, 20 June 2018) the High Court quashed, on the basis that the PSED in section 149 had not been complied with, an outline planning permission which the local authority had granted for the development of part of the Foxhill Estate by the demolition of up to 542 dwellings and the provision of up to 700 dwellings.

Most of the properties on the estate are owned by a social housing provider, Curo Places Limited, with some properties being leased from other registered social housing providers and others being privately owned. There are currently 414 affordable homes on the site and these would be replaced by 210 affordable homes as part of the redevelopment.

The estate sits alongside the Mulberry Park development, for which planning permission had already been granted for up to 700 homes, including 210 affordable homes. Defined categories of tenants on the Foxhill Estate would be given priority for homes within Mulberry Park.

Whilst the environmental statement and other documents supporting the planning application dealt with socio-economic matters, and the officer’s report to committee also addressed the relevant development plan policy (H8, “affordable housing regeneration schemes”), there was no specific consideration of the PSED in relation to the impact on the elderly and the disabled of losing of their homes. In the circumstances, the relevant questions for the court to grapple with were

⁃ does the PSED apply at outline planning permission stage?

⁃ were PSED issues dealt with in applying policy H8, which had itself been the subject of an equality impact assessment?

⁃ were the issues considered in sufficient detail in any event to comply with the PSED?

⁃ even if there had been a breach, was it highly likely that the outcome would have been the same even without the breach?

The judge held that the duty does apply at outline planning permission stage. The fact that detailed issues, also raising equality considerations, would arise at reserved matters stage did not prevent the duty from arising.

It was not enough that policy H8 was “designed to address issues of equality in the context of affordable housing regeneration schemes which, necessarily, would or might include demolition of properties as part of the process of regeneration“. H8 was too general as a policy automatically to ensure that an application complying with policy H8 met the PSED.

In order to comply with the PSED, it was not essential for the report to committee to refer to it expressly:

“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.”

The judge found that on balance “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…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.”

As to whether it was highly likely that the decision would have been the same even if the duty had been complied with, the judge did not feel able to reach that conclusion. He noted that the proposal was controversial. “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 re-furbishment rather than demolition. In all the circumstance, it cannot be said that it is highly likely that the outline planning permission would have been granted in this particular case if the breach of section 149 of the 2010 Act had not occurred.”

As it happens, once the judicial review had been brought, Curo abandoned its demolition plans in favour of refurbishment of the estate and so the purpose of the proceedings was only to seek to ensure, as far as residents were concerned, that that the permission did not remain on the record and capable of implementation at a later stage. However, it still seems to me that the decision to quash was by no means inevitable on the facts. The case is certainly a warning to developers and local planning authorities to be scrupulous in taking into account the implications of proposals for those with section 149 protected characteristics.

The duty of course also applies equally to Inspectors and the Secretary of State in their decision making, as is demonstrated by what I suspect is the only other example of a planning permission being quashed due to breach of the PSED, namely LDRA Limited and others v Secretary of State (Lang J, 6 May 2016). In that case, a planning permission granted on appeal by an inspector for development on the banks of the River Mersey which would restrict access to the river side.

The judge noted that the site was “the only place in the area where public parking next to the river is readily available. The large car park is immediately beside the River Mersey, thus enabling disabled people and their carers to enjoy the river and the fine views across it, and to watch the activities of ships and smaller boats. Disabled people can remain in the car park area (which is built on two levels) or if they are sufficiently mobile, they can proceed a short distance to the riverside promenade (which forms part of the Wirral Circular Trail) either in a wheelchair or on foot. There was clear evidence before the Inspector from several sources that this car park, and the access which it gave to the river, was an amenity which was both regularly used and valued by disabled people (both adults and children with special needs).” She found that “there was a strong argument, based on the written and photographic evidence, that disabled people with impaired mobility would find it very difficult or impossible to go down to the riverside if the development is built because (a) they would be parked too far away; and (b) the footpath down to the riverside, and back up, would be too steep for disabled people and their carers to manage.”

She concluded:

” Applying the legal principles set out above, I have concluded that the Inspector did not have due regard to the duty under section 149 in this case. In particular, because of the lack of any detailed consideration of the value of the existing amenity to disabled persons (including, for the immobile, being able to sit in the car and look at the river); the lack of any other comparable amenity in the Birkenhead area; the practical difficulties which would be experienced by persons with restricted mobility and their carers in descending and climbing the steep footpath to the riverside; and the apparent failure to consider whether the loss of the car park would not be merely “less convenient” for disabled persons but might well mean that they would be unable to access the riverside at all. If the Inspector was not fully appraised of the relevant information, he was under an obligation to seek the information required. The statutory equality duty was not mentioned in the planning officers’ report, nor in the Inspector’s decision. Of course, the Inspector could comply with the duty without specifically referring to it. But there is no indication in the decision that the Inspector considered the factors set out in section 149, and tellingly there is 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. I consider it is likely that the Inspector overlooked section 149 in reaching his decision, and thus made an error of law”.

The permission was quashed.

Of course the PSED does not just arise in the context of the determination of planning applications and appeals but generally in the exercise of functions by public authorities (as well as in the exercise of public functions by non-public bodies).

It will be recalled that at first instance (albeit overturned on appeal in Secretary of State v West Berkshire District Council (Court of Appeal, 11 May 2016), Holgate J had quashed the written ministerial statement on minimum affordable housing contribution thresholds and the vacant building credit, partly on the basis of breach of the PSED, given that a disproportionate number of those with protected characteristics were in need of affordable housing, which he did not find had been sufficiently taken into account in the Government’s decision. The Court of Appeal disagreed, holding that a “relatively broad brush approach” in the equality statement accompanying the WMS was sufficient.

Breach of PSED was also an unsuccessful ground of challenge in the recent judicial review of the Mayor of London’s affordable housing and viability SPG, brought by a group of retirement housing companies (McCarthy & Stone Limited and others v Mayor of London (Ouseley J, 23 May 2018). The judge gave the complaint short shrift:

“Mr Warren’s attack is only on one narrow aspect of s149, where he raises a very particular point about the effect of the SPG on the provision by the Claimants of specialist accommodation for the elderly to buy, and hence on those whose protected characteristics could be affected. That point is not actually grappled with in any of the equalities assessments. But the basis for that in Mr Burgess’ evidence ultimately concerns the financing arrangements of the Claimants. “Due regard” for s149 purposes, does not require all possible ways in which someone may be affected, including in this indirect way, to be considered. Still less does it do so when it has not been raised and explained to the degree necessary. It is a very indirect consequence, and not something which one would expect a planning authority to be aware of unless specifically told. “Due regard” does not require an encyclopaedic examination of all the ways, not by any means obvious, in which an equality effect might be argued to arise.

Ms Peters has also explained that she did not accept that the sort of problems which Mr Burgess described were soundly based or significant for the sector. She was entitled to come to that view, and in so doing to conclude that there was no impact of significance to be considered or which had been omitted.

Even if criticism can be made of the form in which the fulfilment of the PSED duty is recorded, and even if there was a point which could have been considered in the course of having “due regard”, I find it impossible to consider that the outcome of its consideration could have been different in view of the rejection by the GLA of the factual basis upon which the Claimants’ rely. It is not for me to resolve that issue. The GLA view is not unreasonable.”

Whilst all cases of course turn on their facts, the Buckley judgment (which incidentally does not cite West Berkshire, McCarthy & Stone or indeed LRDA) does appear to take a tougher stance in relation to the need for proper compliance with the PSED (the facts in LRDA are certainly more stark). The lessons must surely be to ensure that developers and decision makers give specific, careful, consideration as to the potential implications of any project for those with section 149 protected characteristics, implications which may not be immediately obvious, and to ensure that the implications are expressly taken into account in decision making.

Simon Ricketts, 22 June 2018

Personal views, et cetera

Photo credit Bath Newseum

Regeneration X: Failed CPOs

The Secretary of State’s decision letter  dated 16 September 2016 in relation to the Aylesbury Estate CPO has major implications for all regeneration schemes, including the approach that LPAs should take to planning applications. However, in my view it was not unsurprising in the light of other recent decisions. 

The whole of the decision letter is worth reading but I quote the most relevant passages below. It will be seen that the critical failings of the proposals in the eyes of the Secretary of State were (1) the impacts on displaced leaseholders who might not be able to remain in the area and (2) the potentially disproportionate or at least unassessed effects of the proposals on specific protected groups under the Equality Act 2010. 
 “20. the options for most leaseholders are either to leave the area, or to invest the majority of their savings in a new property. Article 8(1) [of the European Convention on Human Rights – right to respect for private and family life] is therefore clearly engaged. In relation to Article 8(2) (which permits interference which is proportionate when balanced against the protection of the rights and freedoms of others), the Secretary of State finds that the interference with residents’ (in particular leaseholders’) Article 8 rights is not demonstrably necessary or proportionate, taking into account the likelihood that if the scheme is approved, it will probably force many of those concerned to move from this area.

21. For elderly residents, who are of an age where they would probably be unable to obtain a mortgage to make up any shortfall and their future earning potential is likely to be limited, using their savings and other investments would severely limit their ability to choose how they spend their retirement and the use to which they put their savings and investments. The leaseholders are not obliged to accept either of the options to them (shared ownership or shared equity) to stay on the Estate, and could potentially purchase a property on the open market. However, many of the leaseholders will probably be unable to afford these options and will have to move away from the area. The likelihood that leaseholders will have to move away from the area will result in consequential impacts to family life and, for example, the dislocation from local family, the education of affected children and, potentially, dislocation from their cultural heritage for some residents.

22. Article 1 of the First Protocol of the ECHR entitles a person to peaceful enjoyment of their property, but also stipulates that this provision does not impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest. As mentioned below, the Inspector in this case found that the interference with residents’ peaceful enjoyment of their property was not necessary to control the use of property in accordance with the general interest, and accordingly that the interference with Article 1 of the First Protocol was not proportionate (IR422). The Secretary of State agrees that interference with the residents’ human rights is not proportionate in all the circumstances.

23. In making this decision, the Secretary of State must give due regard to the need to (a) eliminate unlawful discrimination, harassment, victimisation; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. Protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. This arises from the Public Sector Equality Duty, under section 149 of the Equality Act 2010.

26. The negative impacts on protected groups would include the effect of the impact on elderly leaseholders currently resident on the Estate, as identified at IR 372 to 373 and IR 401 and 402, namely the fact that many of the leaseholders (who will have no right to be accommodated in the scheme) are of an age where they would probably be unable to obtain a mortgage to make up any shortfall and their future earning potential is likely to be limited. Using their savings and other investments would severely limit their ability to choose how they spend their retirement and the use to which they put their savings and investments. The leaseholders are not obliged to accept either of the options open to them (shared ownership or shared equity) to stay on the Estate, and could potentially purchase a property on the open market. However, many of the leaseholders will probably be unable to afford these options and have to move away from the area. This is likely to impact particularly on those with the protected characteristic of age, including in relation to the care of older relatives and children’s education (as people have to move out of the area, this will mean that the elderly are deprived of having a local family to care for them, and the children of those parents affected are likely to have to move schools when their family moves to a different area).

27. This impact on the care of older relatives may adversely affect their ability to see and be cared for by their family and potentially to integrate with the rest of society (for instance, without a family member to accompany them in a car or on public transport it may be harder for them to access the shops and public facilities like the GP surgery or local library as they will lack the freely offered assistance to do so) and therefore breaches the PSED requirement to have due regard to the need to foster good relations between persons who share a relevant protected characteristic (the elderly) and persons who do not share it (the rest of the population).

28. The impact on children’s schooling may result in adverse impact on the child’s exam performance and their school reports. This is in turn likely to result in a lower level of achievement than otherwise might have been the case, which is likely to result in a lower level of opportunity for the affected child in terms of their ability to apply successfully for jobs (thus adversely affecting equality of opportunity) and – in terms of uprooting them at a vulnerable stage in their development – a negative impact on the affected child’s good relations with their family and extended social contacts (they are likely to go through a period of isolation as a result of being uprooted from the social networks they had established at their previous home).

29. Given the lack of clear evidence regarding the ethnic and/or age make-up of those who now remain resident at the Estate and who are therefore actually affected by any decision to reject or confirm the Order, it is not possible to clearly identify BME groups (either of the elderly or children) as disproportionately impacted by the proposal. However, given that 67% of the population living on the Estate were of BME origin (see IR 394), it is highly likely that there is a potential disproportionate impact on the elderly and children from these groups, who are likely to dominate the profile of those remaining on the Estate and who are therefore likely to have to move out of the area if the Order is confirmed.

32..there is a shortage of evidence concerning the precise ethnic make-up of those remaining resident at the Estate, who would be affected by a decision to confirm the Order (see above). If, in practice, the cultural and/or ethnic make-up of those resident at the Estate, who are unlikely to be able to remain there, is pre-dominantly those of one or more particular ethnic/ cultural origins, then their cultural life is likely to be disproportionately affected by a decision to confirm the Order. There is also likely to be a negative impact on their ability to retain their cultural ties, undermining their equality of opportunity with other ethnic groups (such as white British) who may not be so disproportionately affected. This is particularly so, in that white British culture is more widely-established across the UK, including at housing sites to which residents may be moved, whereas minority cultural centres are often less widespread, which is likely to make cultural integration harder for those of BME origin who are forced to move than those of a white British origin.” 
For more detailed background London Borough of Southwark’s statement of case  and the leaseholders group’s statement of case  may be of interest. 

In my view, the decision by the Secretary of State, whether justified on the evidence or not (Southwark are reportedly challenging it) is not unexpected following Horada (on behalf of the Shepherds Bush Market Tenants Association) and others v Secretary of State  (Court of Appeal, 18 March 2016) where the Secretary of State’s approach to the Shepherds Bush market CPO was struck down on similar issues. 

The Inspector hearing the Shepherds Bush market CPO inquiry concluded: “the current Orion proposal [which was the basis for the CPO] lacks the mechanisms to be assured of retaining the number, mix and diversity of traders in the way explained above. They are vital to the distinctiveness of the market and the Goldhawk Road shops. Therefore, insofar as it would facilitate delivery of the redevelopment scheme promoted, the CPO would not fully achieve the social, economical and environmental well-being sought”.
The Secretary of State disagreed and confirmed the CPO. The Court of Appeal held that the Secretary of State had acted unlawfully as his reasoning for reaching a different conclusion had been inadequate (shades of the Dover reasoning flaws covered in my last blog post  ):
“In short, although it is clear that the Secretary of State disagreed with the inspector’s view that the guarantees and safeguards were inadequate he does not explain why he came to that conclusion. I do not consider that requiring a fuller explanation of his reasoning either amounts to requiring reasons for reasons, or that it requires a paragraph by paragraph rebuttal of the inspector’s views. But it does require the Secretary of State to explain why he disagreed with the inspector, beyond merely stating his conclusion that he did. The two critical sentences in the decision letter are, in my judgment, little more than “bald assertions”. The Secretary of State may have had perfectly good reasons for concluding that the guarantees and safeguards were adequate. The problem is that we do not know what they were. In those circumstances I consider that the traders have been substantially prejudiced by a failure to comply with a relevant requirement.”

As regards Southwark’s failure to comply with the Public Sector Equality Duty, there are certainly echoes of the ruling by the Court of Appeal in one of the rounds of the Wards Corner saga in R (Harris) v London Borough of Haringey  (Court of Appeal, 5 May 2010) where the court held that the council, when granting permission, failed to discharge its duties under section 71(1) of the Race Relations Act 1976 (now replaced by the Equality Act 2020 Public Sector Equality Duty) in terms of the potential effects of the scheme on Latin American traders or loss of housing by ethnic minorities.

To add a further Court of Appeal ruling into the blog, Grafton Group (UK) plc v Secretary of State  (Court of Appeal, 21 June 2016) is another recent example of a CPO (in this case to seek to protect Orchard Wharf in London’s docklands for operational purposes) being struck down. In this instance, the Secretary of State’s reasoning for confirmation the CPO was held to be inadequate given that the basis for the CPO was a development proposal, planning permission for which had been refused. 
For any of these schemes to fall over at the last hurdle may be seen as a victory to some but is often a tragedy to others who have spent years seeking to secure outcomes that have previously been accepted as being in the public interest. The main lesson for all of us is surely that we need to go the extra mile (or more) to seek to ensure that the likely effects of the scheme and/or dispossession on all of those likely to be affected are properly analysed, that the analysis takes full account of the Public Sector Equality Duty and that any material effects are explained and justified. 
Simon Ricketts 22.9.16
Personal views, et cetera