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Troubled waters – Equalities Duty and Alternative Sites Failings Fatal

bridgeThe public sector equality duty under Section 149 of the Equality Act 2010 (PSED) is playing an increasing role in planning decisions. In LDRA LTD & ORS v Secretary of State for Communities and Local Government & ORS [2016] EWHC 950 the High Court quashed an Inspector’s decision to grant permission on appeal for an onshore office and warehouse facility to serve offshore wind farm installations.  The authority had refused permission on the grounds of unacceptable amenity harm to adjacent residential occupiers.  The Inspector considered the proposals at an Inquiry and attended an accompanied site visit, during which access to the riverside for local people and the existence of alternative sites with lesser potential impacts were pointed out.  The claimants challenged under Section 288 of the TCPA 1990.

The High Court agreed that the Inspector had failed to give effect to the PSED when considering effects on access to the riverside area for disabled people.

Equalities duties

Section 149 requires authorities to have “due regard to the need” to “eliminate discrimination […] [and] advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not […]” when exercising functions. Disability is a relevant “protected characteristic”.  The key principles are that:

  • The duty is not a duty to achieve a result but to have due regard to the need to achieve the statutory goals in a way that is integral to the decision making process (R (Baker) v Secretary of State for Communities and Local Government [2009] PTSR 809).
  • Decision makers must be properly informed and are under an inquisitorial duty, requiring rigorous enquiry and reporting (applying R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) and R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 94).

Process matters

Having concluded that only able-bodied people would have the “continuing opportunity to reach the riverside” near the development, the Inspector was held to have failed to discharge the PSED in the absence of: detailed consideration of the value of the existing amenity to disabled people, comparable alternatives, practical difficulties which disabled people and carers would experience and the loss of a resource (access to a car park) would not merely be less convenient, but may result in an inability to access the riverside at all.  The fact that the PSED issues had not been identified as a “main issue” in the appeal was irrelevant to the decision to quash.

Conflicting approaches

The Judge held that Section 31 Senior Courts Act 1981 – preventing a quashing order where it is “highly likely” the outcome would not have been substantially different had the PSED been applied – did not apply given that the PSED is concerned with process, not simply outcomes. This is presumably based on the public interest exception to Section 31(1) under Section 31(2B).  Contrast this with the Court of Appeal’s approach in West Berks accepting a retrospective Equalities Impact Assessment as ‘adequate and in good faith’ to be able to discharge the PSED because a different process “would not have led to a different conclusion“.

Alternative solutions

The Judge also held that the claimants had been substantially prejudiced by the Inspector’s failure to address an alternative site which may well have influenced the outcome. She rejected the suggestion that the Inspector was not required to absorb evidence during the site visit, holding that the purpose of the visit was to identify and view possible alternative sites.  Failing to take into account the identification of the alternative made during the site visit was a breach of natural justice/procedural fairness.