Judge quashes permission for estate redevelopment over breach of equality duty

A High Court judge has quashed a council’s grant of planning permission for the demolition of up to 542 dwellings on a housing estate in Bath and their replacement with up to 700 dwellings, concluding that the local authority had breached the public sector equality duty.

The case of Buckley, R (on the application of) v Bath and North East Somerset Council & Anor [2018] EWHC 1551 (Admin) involved a claim for judicial review of a decision of the defendant council, taken on 30 November 2017, in relation to part of the Foxhill Estate.

The claimant, Peter Buckley, was a long-term resident of the estate and also acted on behalf of the Foxhill Estates Residents Association.

In March this year the housing association behind the scheme, Curo, said it would no longer pursue plans for the large-scale regeneration of the estate.

However, the claimant went on to seek a ruling from the High Court. There were four grounds of challenge:

1. The defendant failed to have due regard to the public sector equality duty, as required by section 149 of the Equality Act 2010.
2. The committee which resolved to grant planning permission were misdirected in that they were told that all existing residents of the estate would be accommodated on the estate after the development was completed when that was not necessarily the case.
3. The council failed to have regard to what was alleged to be a material consideration, namely the fact that affordable housing provided under the grant of planning permission for an adjacent area, Mulberry Park, was intended to be used for additional housing but would, under the proposals be used to accommodate tenants from existing affordable housing on the estate.
4. The council misinterpreted the phrase "viability considerations" in one of the relevant planning policies.

Mr Justice Lewis upheld the first ground of challenge, concluding that the grant of outline planning permission was unlawful and should be quashed.

In particular he found that:

• As a matter of statutory language, the duty in section 149 of the 2010 Act did apply to the function of granting outline planning permission pursuant to section 70 of the Town & Country Planning Act 1990. The fact that the application was for outline planning permission and that certain reserved matters were to be considered at a later stage in the process might affect the content or scope of the duty in particular cases but that did not prevent the duty applying. The fact that the grant of outline planning permission was one stage in a process which had a number of different stages before the development was finally completed might affect the scope of the duty.
• On balance the defendant council 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 was, very properly, concerned to ensure that all those affected would be provided with information to allay concerns about displacement, that is the fact that they would have to leave their existing homes and where they would live afterwards. The defendant, and Curo, has given considerable attention to ensuring that persons can remain within the estate. As Mr Wald [counsel for the local authority] emphasised, the officers' report noted the potential of the loss of affordable housing to result in significant disadvantages through the dispersion of residents and that that could, uniquely, be mitigated by the development, in parallel, of Mulberry Park. Ultimately, however, 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 might well have been that not a great deal would have needed to be said on that matter. It might 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.”

Mr Justice Lewis said that the three other grounds of challenge failed.

A spokesman for Bath and North East Somerset Council said: "We are disappointed that the decision went against the Council and we will be carefully considering the judgement before taking any further action."

Francis Taylor Building, whose barristers Sarah Sackman and Katherine Barnes appeared for the claimant, said the judge’s ruling was “an important example of the application of the PSED to the planning and housing context and in multi-stage decision making".

The set added: “It is also authority for the proposition (which had been disputed by the council in this case) that the PSED applies to the grant of outline planning permission, although the scope of the duty will depend on the circumstances.”