Box ticking or thinking: what are the duties of planners?

30 June 2010 by Rosalind English

The Queen on the Application of Janet Harris (Appellant) v London Borough of Haringey (Respondent) and Grainger Seven Sisters Ltd (2) Northumberland And Durham Property Trust Ltd (Interested Parties) and The Equality and Human Rights Commission (Intervener) [2010] EWCA Civ 703 22 June 2010 – read judgment

In granting planning permission for redevelopment of a site in an area made up predominantly of ethnic minority communities, a local authority had failed to discharge its duties under the Race Relations Act 1976 s.71(1)(b) as the requirements of s.71 had not formed, in substance, an integral part of the decision-making process –

The appellant challenged a decision to grant planning permission to the first interested party (“Grainger”) for the development of a site in Tottenham which incorporated an indoor market. The grant permitted the demolition of all the business and residential units on the site, and erection of mixed use development with parking and “public realm improvements”.

The appellant herself had been active in local community life for many years. She challenged the lawfulness of the decision on the basis that the council, when granting permission, failed to discharge its duties under section 71 of the Race Relations Act 1976, as amended by the Race Relations (Amendment) Act 2000. Under that section it is a duty, when taking decisions, to have due regard to three specific needs:

(a) The need to eliminate unlawful racial discrimination,

(b) The need to promote equality of opportunity between persons of different racial groups,

(c) The need to promote good relations between persons of different racial groups.

The appellant relied on the second and third of these duties, pointing to the fact that sixty-four per cent of traders in the market were Latin American or Spanish-speaking and the predominant occupation of homes and business units were by members of the black and ethnic minority communities. Their business were threatened by the probability of a substantial increase in rents in the redeveloped sites, along with the lack of affordable housing as part of the new scheme.

The council accepted that the planning decision crossed the threshold which gave rise to the need to apply section 71(1).  But it contended that before taking its decision, the consultation exercise was conducted in which the council had had regard to the specific aim of promoting the welfare of ethnic minority communities and local planning policies.

The Equality and Human Rights Commission submitted that this was insufficient:

the presence before the decision maker of documents making reference to equality issues was not a sufficient compliance with the section 71 duty. There must be a demonstrable application of the statutory duty to the particular facts.

The question before the court therefore was whether the duties under Section 71 could be said to be discharged if the decision maker is conscious of these duties, even if their source is not known or referred to.

In previous cases where this issue has arisen,  the courts have taken rather more forgiving approach to the decision-making process.  In Baker v Secretary of State for Communities & Local Government [2008] EWCA Civ 141, Dyson LJ, at paragraph 31, Sir John Dyson emphasised that the section 71(1) duty was not a duty to achieve the result of eliminating racial discrimination as such, or to promote equal opportunity, but a duty to have “due regard” to the need to achieve these goals. The distinction was “vital”. However, he went on to say, crucially,

I do not accept that the failure of an inspector to make explicit reference to section 71(1) is determinative of the question whether he has performed his duty under the statute. So to hold would be to sacrifice substance to form.

It might be thought, from this, that in deciding whether the section 71(1) duty had been discharged, the court is entitled to take a general view of the impact of a generally beneficial policy and the overall policy context. It should not be necessary to consider each component of the duty on a local planning authority item by item. In any event, the council argued that irrespective of its failure to refer to Section 71(1) during the consultation, the unitary development policies would require the proposed developement to assist the area where a large proportion of ethnic minority communities were concentrated, the duty was discharged.

These arguments did not hold sway with the Court. They allowed the appeal, saying that the s.71(1) duty was not discharged by the council when granting planning permission:

It could not be said that the policies cited in the instant case were focussed on specific considerations raised by s.71. The council’s policies might have been admirable in terms of proposing assistance for ethnic minority communities, but they did not address specifically the requirements imposed upon the local authority by s.71(1).

Not only was there no reference to s.71 in the report to the committee, or in the deliberations of the committee, but the required duty in s.71 to have “due regard” for the need to “promote equality of opportunity and good relations between persons of different racial groups” was not demonstrated in the decision-making process. The weight to be given to the requirements of s.71 was for the decision maker, but it was necessary to have due regard to the needs specified in s.71(1). There was no analysis of the material before the local authority in the context of the duty. The issues that arose on the planning application were, such that it was necessary for the requirements of s.71, to form in substance an integral part of the decision-making process and in the instant case they did not.

In view  of the forthcoming implementation of the 2010 Equality Act, this ruling presents a considerable burden on public authorities to satisfy the courts not only that they have equality in mind when making decisions but that they have “due regard” to specific statutory provisions. The objection of the court to the Council’s proceedings in this case was that they assumed that section 71(1) required the promotion of racial minorities, and that by giving consideration to this laudable end, rather than the words of the legislation in specie, they had fulfilled its requirements.  They had not, apparently:

the requirements are of a specific nature; due regard to the need to promote equality of opportunity and good relations between persons of different racial groups. Neither aim is necessarily achieved by a proposal which may promote the economic interests of a particular racial group, even a deprived group. The subsection operates in a more nuanced way than has at times been advocated. The promotion of equality of opportunity and good relations between persons of different racial groups [my emphasis] is not the same as the promotion of the interests of a particular racial group or particular racial groups, though the two will usually be interrelated. (para 38)

The instant case was said to be distinguishable from Baker and others where policies had been adopted in a Circular whose very purpose was to address the issues addressed in section 71(1). It cannot be said that the policies cited in this case were focused on specific considerations raised by section 71.

But surely this is, to paraphrase Sir John Dyson, a triumph of box-ticking over thinking, the unintended consequence of which – with most box-ticking – is to do more harm than good. Pill LJ himself expresses “regret” at the outcome of this ruling for community relationships in the area –

I reach that conclusion with some regret because of the general desire in the Borough for regeneration of this area, because of the amount of public and private resources expended on this proposal and, because the council, subject to section 71 considerations, followed a thorough and fair procedure which led, albeit by a bare majority, to a democratic decision. Though I hope it does not, the quashing of the permission may lead to a long delay in the regenerative process in the Borough.” para 42