Breach of condition notices and the public sector equality duty

A High Court judge recently dismissed a judicial review challenge over a council’s decision to issue a Breach of Condition Notice. Roderick Morton explains why.

Liquid Leisure has operated a water sports facility on a greenbelt gravel pit lake at Datchet since 2002. Its permission, in 1988, allowed use for water-skiing and windsurfing. A condition required express permission for any buildings. Permission was given for a club house and cable skiing system but several other structures were also built. An LDC for these structures was refused in November 2020 and an enforcement notice followed in December 2020 against the change of use of the land to a mixed use as an aqua theme park, caravan site, party venue and children’s play centre plus several buildings said to be “associated operational development integral to the mixed use”. The notice required the use to cease and 23 other requirements. The notice was appealed in January 2021. The inquiry is apparently scheduled for November 2022.

In October 2021, the council issued a breach of condition notice (BCN) alleging breach of the “no build” condition, repeating many of the EN requirements. There is no appeal process for a BCN but its requirements may be challenged at the Magistrates Court (if prosecution is attempted) and judicial review may also be brought. Liquid Leisure opted for review.

In Liquid Leisure Ltd, R (On the Application Of) v Royal Borough of Windsor and Maidenhead [2022] EWHC 1493 (Admin) the court confirmed that BCN and EN were not mutually exclusive remedies. This was a secondary BCN designed, amongst other things, to define a fall back and to narrow the issues between the parties. The council claimed the buildings were integral to the change of use breach and not operational development in their own right; a 10 year immunity period was therefore claimed. The appellant said 4 years as operational development. The BCN (with its 10 year immunity) sought to protect the council’s position in the event the inspector sided with the appellant. This was, said the judge, something the council was entitled to do.

There were other grounds of appeal which are not of general interest. But the last ground for the JR was that the council had failed to discharge its public sector equality duty (PSED) before deciding to issue the BCN. This is a ground of appeal which features in many challenges these days, often as the last ground of appeal, and often used as a procedural point to be pulled out if the substantive appeal fails.

The PSED duty in the Equalities Act 2010 is to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relationships between those with and without a protected characteristic (eg disability, race, age etc).

The appellant said that disabled people used its facility. It appears that the council could not point to anything in its enforcement reports which showed it had expressly and specifically considered the duty.

It is worth pausing to note that this council was not alone. Many enforcement reports have no reference to the PSED or, at most, standard form “boilerplate” paragraphs which give it a token mention. Even where enforcement reports mention it, the appellant can claim that the council failed to conduct enough research to see which protected characteristics were relevant (eg by doing welfare checks). It is easy to get the procedure wrong and one of the pillars of judicial review is that, if the procedure is wrong, the subsequent decision becomes suspect.

Section 31(2A) of the Senior Courts Act 1981 (an amendment dating from 2015) seeks to mitigate this. It protects improper decisions if, had the procedure been followed properly, it is highly likely that the same decision would have been made. The judge said that this applied here. It was highly likely that consideration of PSED would not have changed the outcome that a BCN would have been issued. The enforcement action did not seek to close the site (to the detriment of the disabled people), only to regulate its growth by reference to planning policy.

The decision is helpful. In truth, it is rare that consideration of the PSED would lead to a decision not to enforce; the need to uphold the system tends to trump it. But too often councils are advised that the procedural failure of not considering the PSED automatically requires an enforcement notice to be withdrawn. Too often, councils receive costs awards against them for doing so. This case shows that failure of procedure need not necessarily be fatal to the enforcement decision. Obviously, it would be better that all council enforcement teams adopt clear procedures for investigating and complying with their PSED duty, and recording that compliance, but the case shows that there is scope to save the enforcement if something goes wrong.

The inquiry decision will also be interesting when it comes out. Inspectors seem to have taken against allowing demolition of whole buildings as facilitating development on the basis that such buildings are usually operational development in their own right and ought to have been enforced against within 4 years. It will be interesting to see where this one comes out. And the existence of the BCN (which would seem imply there was no change of use) seems rather to muddy the MCOU enforcement notice somewhat; presumably there is more to the case than is reported in the judgment.

Roderick Morton is a partner in planning enforcement law firm Ivy Legal.