Why developers should be aware of the Public Sector Equality Duty when seeking planning permission

8 minute read
10 July 2018


On 20 June, the Administrative Court quashed the grant of outline planning permission for the development of part of the Foxhill Estate by the demolition of up to 542 dwellings and the provision of up to 700 dwellings. This decision was based on the grounds that the local planning authority, Bath and North East Somerset District Council, failed to discharge its public sector equality duty in granting the permission.

There are 414 affordable homes within the site and these would have been replaced by 210 homes, meaning a loss of 204 affordable homes. The strength of opposition to the proposal made by Curo Places Limited, a registered social provider and owner of most of the estate, led Curo to abandon the project and consider alternative proposals based on refurbishing the existing estate. These new proposals are dependent on government funding. The application for judicial review by a long term resident, on behalf of himself and the Foxhill Estate residents, nonetheless proceeded to trial.

Here, our planning team examine the implications of the decision.

The Public Sector Equality Duty

The public sector equality duty (PSED) is found in s149 of the Equalities Act 2010 and provides that a public authority must, in the exercise of its functions, have due regard to the need to:

  1. eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act;
  2. advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
  3. foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

The relevant protected characteristics are "age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, and sex and sexual orientation."

The need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to:

  1. remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; and
  2. take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it.

The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.

The PSED and Planning Permission

Mr Justice Lewis had no difficulty in concluding that the PSED applied to the grant of an outline planning permission. He also took the view that the discharge of reserved matters, such as layout and access, may also raise equality issues. The PSED therefore has the potential to apply at different stages in the planning process especially where decisions affecting individuals with protected characteristics are not addressed at the outline stage - even more so where planning permission is granted in principle. The PSED is also relevant to the negotiation and completion of planning agreements; for example, in relation to the provision to be made for affordable housing or open space.

The protected characteristics in this case were age, specifically the impact of the development on older people, and disability. Other cases may engage individuals with other characteristics, such as race. As examples the housing estate to be redeveloped may be the home for individuals and families from different ethnic groups or a town centre redevelopment may affect shopkeepers and traders from different ethnic groups.

Discharging the PSED

Hotak v London Borough of Southwark [2016] A A.C. 811 is a case which came before the Supreme Court and considered the PSED within the context of local authority duties to the homeless. Lord Neuberger found that "the weight and extent of the duty are highly fact-sensitive and dependant on individual judgment".

In the Foxhill Estate case, Mr Justice Lewis concluded that:

"In broad terms, the duty is a duty to have due regard to the specified matters not a duty to achieve a specific result. The duty is one of substance, not form, and the real issue is whether the relevant public authority has, in substance, had regard to the relevant matters having regard to the substance of the decision and the authority's reasoning. The absence of a reference to the public sector equality duty will not, of itself, necessarily mean that the decision-maker failed to have regard to the relevant matters although it is good practice to make reference to the duty, and evidentially useful in demonstrating discharge of the duty."

Here, neither the local planning authority nor the applicant had undertaken an equality impact assessment. The PSED itself was not specifically mentioned in the application documents or the officer report to the planning committee. The local planning authority therefore sought to persuade the Court that other documents forming part of the planning application, namely the planning statement and the environmental impact assessment, addressed the issues sufficiently for the local planning authority to be able to discharge its duty. This approach was not rejected in principle but rather failed on the facts because:

"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 may well be that not a great deal would have needed to be said on this matter. It may 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."

Lessons for the future

Reports for planning committees will often have a standard equalities section but the applicant needs to make sure that the material to support the equalities section is readily accessible and considered in the terms in which the PSED is framed. An equalities impact assessment is an obvious way of doing this but other approaches can be considered. The planning statement for example might have an equalities section. Quotes from the leading cases can usefully help set the scene.

Since the PSED is relevant at different stages of the approval process, a member of the project team could usefully take responsibility for ensuring that the need for a PSED is considered and addressed wherever the local authority exercises a function in relation to the overall project. A simple project equalities register can map these functions to include the grant of outline planning permission, the entering into of planning agreements, the discharge of reserved matters and the approval of other matters conditioned on the grant of planning permission.

Such a register could be a valuable tool in complex projects where the local authority exercises other functions, such as land acquisition and disposal. For instance, the importance of the PSED throughout the compulsory purchase order (CPO) process is considered in the Guidance on the CPO process which was updated and reissued in February this year by MHCLG. The relevance of the PSED is specifically mentioned where CPOs are used to help regenerate run down areas, with consideration of the same becoming interlinked with consideration of the human rights of objectors and the right to respect for private and family life under Article 8 of the Convention.

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