Public sector equality duty – planning permission for school

January 15th, 2013 by Rachel Kamm

In R. (on the application of Coleman) v Barnet LBC [2012] EWHC 3725 (Admin) , the High Court has held that the local authority had discharged its public sector equality duty (under section 149 of the Equality Act 2010) when granting planning permission for the development of a school on land on which a garden centre had been situated.

The interested party, the Trustees and Governors of Etz Chaim Primary School, had proposed the development and planning permission was granted by the local authority. The claimant, a child, opposed the development because he (and many others) wanted the garden centre to continue to  provide a recreational and educational facility for the local community, which was of particular benefit to people with disabilities and the elderly.

Mr Justice Lindblom held a ‘rolled up’ judicial review hearing to consider the claimant’s seven grounds of challenge. It is outside the scope of this blog to cover in any detail the planning law grounds, but the public sector equality duty challenge is of more general education law interest.

The parties (not surprisingly) agreed that the public sector equality duty was engaged by the local authority’s determination of the planning application. The local authority was therefore required to have due regard to specified equality matters. Mr Justice Lindblom found that the local authority had discharged this obligation. Importantly, the garden centre had closed before (and not because of) the local authority’s grant of planning permission. Mr Justice Lindblom held at paragraph 74 that:

In paragraph 2.3 of their report the officers acknowledged that the implications of the Trust’s proposal for the Equality Act 2010 represented one of the main planning issues on which the members had to concentrate in making their decision. The relevant statutory provisions were not only brought to the committee’s attention, they were set out in full in paragraph 7.1.1 of the report. Thus the members were made conscious of the task they faced, and this was done in the precise terms in which that task was set for them by statute.

At paragraph 77, he rejected the claimant’s submissions that more was required than the local authority had done:

I do not believe it was necessary here for the Council, when having regard to the statutory needs, to go beyond the relevant categories of “protected characteristics” in section 4 of the 2010 Act – namely “age” and “disability” – and to disaggregate the several types of disability by giving separate treatment to physical, mental and learning disabilities, or to complicate the exercise further by dividing one type of physical disability from another, and so on. So – to give two examples – the Council was not, in my view, obliged to consider how restricted in their mobility individual objectors were, or the different types of autism represented among those who had opposed the development. That would have been be unduly onerous, and far more than section 149 required in this particular case. No support for such an approach in the making of a planning decision of this kind is to be found in the authorities, and no good purpose would have been served by it.

Instead, the local authority was required to do the following:

In this case the Council had to comprehend the entire range of disabilities, of various kinds, represented among those affected by the loss of the garden centre and by the development now proposed. It had to heed what was said in the representations made by – and for – those with a disability, whatever that disability might be, and the elderly. And it had to bring that understanding into a conscious assessment of the likely consequences of the development for people with protected characteristics, having regard to the statutory needs. It knew that the main concern of those with the relevant protected characteristics was the loss of the garden centre, a loss that will no doubt have affected some people more seriously than others, some with protected characteristics more seriously than others with such characteristics, and some of those with such characteristics more seriously than those without them. But, when performing its duty under section 149, the Council did not have to consider the impact of that loss on each individual with a protected characteristic, or on everyone with a particular form of disability. It had to grasp the full scale and significance of the objections related to that duty, and the likely consequences of the decision it was taking for all those with protected characteristics. In my view, it did that.

Mr Justice Lindblom also rejected a challenge to the consultation exercise undertaken by the local authority in relation to a second application for planning permission. The local authority had discharged its public sector equality duty in relation to this second application:

In my view the officers’ report displays a coherent approach to the requirements of the due regard duty in this case. When the committee resolved to grant planning permission the officers, and in their turn the members themselves, were conscious of the equality duty under section 149 , conscious of the particular effects the development was likely to have on those with protected characteristics, and conscious that due weight should be given to those effects in the decision that had to be made. The officers marshalled all the material relevant to the equality duty. They collected the facts relating to the use of the garden centre and the representations made about the impact of its loss on those who had used it, including, specifically, the elderly and the disabled. In their advice to the members they placed these facts and these representations within their planning analysis, having taken care to distinguish the material relating to those with protected characteristics from that relating to the local populace as a whole. They expressed their conclusions, which were conclusions on balance. Guided in this way, the committee accepted the officers’ advice and recommendation. And the Council stated the result of this process, in concise terms, in its decision notice. All of this, I believe, shows a conscientious approach to the imperatives of the equality duty.” (paragraph 91).

Mr Justice Lindblom granted the claimant permission to apply for judicial review, but went on to dismiss the claim on all grounds.

Rachel Kamm