Why planners need to take notice of duties under equality laws

A key court judgement overturning permission for a regeneration scheme reminds planners to ensure they clearly outline any issues that could impact on groups protected under equality legislation when determining such projects.

The Foxhill estate in Bath (pic: Curo)
The Foxhill estate in Bath (pic: Curo)

Last month, the High Court quashed an outline planning permission granted for an estate regeneration project issued last year on the grounds that Bath and North East Somerset Council had failed to discharge its duty under the Equality Act 2010. The proposed regeneration of the city’s Foxhill estate would have seen 542 homes demolished to make way for a redevelopment including 700 new homes, but with a net loss of 204 affordable homes.

Following an estate resident’s legal challenge to the decision, the judge found that the council "did not have due regard to the impact on the elderly and disabled persons in granting an application which might lead to the demolition of their existing homes", in breach of the public sector equality duty (PSED) set out in the 2010 act. Under section 149 of the act, all public bodies are required in exercising their functions to eliminate discrimination, advance equality of opportunity and foster good relations. The "protected characteristics" to which the act applies include age, race, religion, sexual orientation, disability and pregnancy.

Sarah Sackman, a barrister at Francis Taylor Building who represented the Foxhill Residents Association in the case, said Mrs Justice Lang’s ruling has "several implications" for planning authorities. "The PSED applies to all planning decisions, and particularly in those cases involving the loss of homes or public amenities," said Sackman. "A local planning authority needs to ask itself whether it has discharged the PSED and whether it can show evidence that it has done so. In cases such as this – which involved the demolition of hundreds of homes – the duty requires a thorough analysis of equalities impacts."

Sackman said the judgment shows that the duty applies to all planning decisions, including those for outline planning applications, but added that discharging the PSED does not necessarily determine the outcome of those decisions. "Having ‘due regard’ to the equality impact doesn’t mean you can’t grant planning permission. But if a decision-making body is minded to grant consent, it is vital that it confronts what the equality impacts of its decision are going to be," she said.

Simon Ricketts, a partner at law firm Town Legal, said the ruling shows that developers and decision-makers should "give specific, careful consideration as to the potential implications of any project for those with protected characteristics - implications which may not be immediately obvious". He said such considerations should be "expressly taken into account in decision-making".

The PSED issue was given prominence in another major regeneration scheme decision when Southwark Council granted permission for the controversial demolition and redevelopment of the Elephant and Castle shopping centre in south London. In an officer's report, planners warned that the proposal "could result in adverse equality impacts in relation to age and race, arising from the loss of the existing buildings on the site and impacts upon the businesses therein, together with their customers".

However, the report advised that mitigation proposals, including the provision of affordable retail units for displaced tenants, meant the proposal would "safeguard and promote" the objectives of the Equality Act "as far as reasonably possible, given the nature of this major regeneration proposal, which would undoubtedly bring about significant change".

In addition to regeneration schemes, equality issues can also be a factor in other types of planning decisions, including Gypsy and traveller cases and those involving educational needs and access requirements. A search of DCS Ltd’s COMPASS planning appeals database shows that the Equality Act and the duty have featured in appeal decisions with increasing frequency in recent years, with 11 mentioning the PSED in 2017 compared with three in 2016 and one in 2015.

Equality duty in planning: three key decisions

 

May 2018: Retirement housing developers' challenge to mayor of London's affordable housing supplementary planning guidance (SPG).

In their challenge, the claimants cited the Equality Act, claiming that the SPG discriminated against older people and women. However, the High Court judge dismissed this as a ground of challenge, before finding the SPG unlawful on another ground.

May 2016: Challenge to appeal allowing offices, warehouses and a wind farm servicing facility in a car park next to the River Mersey in Birkenhead.

The High Court overturned the appeal decision after the judge found the car park was "regularly used and valued by disabled people" and that those with impaired mobility would find it "very difficult or impossible" to enjoy the site’s proximity to the riverside if the development went ahead. The judge found it "likely" that the inspector had "overlooked section 149 of the act in reaching his decision, and thus made an error of law".

January 2015: Challenge to ministerial policy for recovering appeals involving traveller pitches in the green belt.

The High Court ruled that former communities secretary Eric Pickles breached the Equality Act and the European Convention on Human Rights over his intervention in planning appeals relating to traveller pitches in the green belt. The judge found that Pickles' actions had caused "considerable delay in the hearing and determination of those appeals", the "great majority" of which involve "pitches used by particular ethnic communities".


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