The PSED and planning

Alex Round examines the importance of the Public Sector Equality Duty in planning decision making.

Under section 149 Equality Act 2010, a public authority must in the exercise of its functions have due regard to the interests and needs of those sharing the protected characteristics under the Act, such as age, gender, disability and race (the Public Sector Equality Duty – PSED).

This is relevant in a planning context and a claim that the PSED has not been discharged in reaching a relevant decision can be cited in a challenge seeking, for example, to quash a planning permission or a declaration that a certain policy is unlawful. Two recent and contrasting cases demonstrate nicely how such a challenge might succeed.

In LDRA Ltd & ors v SSCLG & ors [1] the claimant sought to quash a permission for development at the site of a car-park immediately adjacent to the River Mersey for an on-shore office and warehouse building to serve as a marine operations and maintenance facility for windfarms in Liverpool Bay and the Irish Sea. The permission was granted by an Inspector on appeal after the permission was initially refused.

The claimants successfully argued that the Inspector had failed to discharge the PSED as he had erred in his approach to the adverse impact on disabled persons and their access to the riverside due to the loss of the car park.

Neither the planning officer’s report nor the Inspector’s later decision made reference to the PSED (though it was held that the duty could still be complied with without specifically referring to it). The court held that the Inspector did not have due regard to the duty, particularly because of the failure to consider whether the loss of the car park would not be merely “less convenient” for disabled people, but might in fact mean they would be unable to access the riverside at all. There was also a failure to consider the amenity value to disabled persons in the context of a lack of comparable amenity in the local area. If the Inspector was not fully appraised of the relevant information, he was under an obligation to seek it out.

The respondent councils in the Court of Appeal hearing of SSCLG v West Berkshire & ors [2] had no such luck. This widely reported case concerned the lawfulness of national planning policy, specifically a new threshold for affordable housing contributions by small-scale developers and the mechanics of a new vacant building credit, in relation to whether the government had failed to discharge its PSED in forming the policy.

It was argued by the claimant authorities in a claim for judicial review, and indeed accepted by the Government, that the proposed change to national planning policy could have an adverse impact on the provision of affordable housing and therefore on groups with relevant characteristics under the Equality Act, such groups having been shown to have a disproportionate reliance on affordable housing.

The Written Ministerial Statement setting out the new policy was not originally accompanied by an Equality Impact Assessment though one was later produced following suggestions of judicial review (by a different authority not party to the proceedings in question). The EIA acknowledged the impact of new policy on those groups relevant to the equality legislation but pointed to other relevant policies that it was felt would mitigate these impacts.

After considering much evidence, the High Court held that the EIA failed to comply with the s.149 duty, in part due to the EIA’s downplaying of the effect of the policies on affordable housing as “minor”, though this was overturned by the Court of Appeal. The Court of Appeal found that the EIA demonstrated a consideration of the potential for adverse impacts on protected groups and the requirement to pay due regard to equality impact is simply that. It does not require a precise mathematical exercise to be carried out in relation to particular affected groups. It was sufficient to acknowledge the effect of the proposals in placing them in context by reference to other policies impacting affordable housing. The judge’s approach in the lower court had wrongly amounted to an ‘impermissible trespass’ into the territory of the substantive merits.

The above examples show that in cases concerning the PSED, the job of the court is simply to assess whether a decision maker has had due regard to the issues, including having sufficient knowledge and evidence to make a decision, and not acted irrationally or unreasonably.

Alex Round is a trainee solicitor at Mills & Reeve. He can be contacted on 01223 222352 or This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on the firm's Plan-it Law Blog.

[1] LDRA Limited (1), Dr Michael Hennell (2), Colin Evans (3) and Priory Wharf Management Company Limited (4) v Secretary of State for Communities and Local Government (1), Cammell Laird Shiprepairs and Shipbuilders Limited (2) and Wirral Borough Council (3) [2016] EWHC 950 (Admin)

[2] Secretary of State for Communities and Local Government v West Berkshire District council (1) and Reading Borough Council (2) [2016] EWCA Civ 441