PSED breach sees estate regeneration scheme quashed

22 Jun 2018

Planning and Environment

In R (Buckley) v Bath and North East Somerset Council, the High Court has quashed an outline planning permission for a regeneration scheme because of a breach of the Public Sector Equality Duty.

The case

A registered social housing provider, Curo, applied for outline planning permission to regenerate a socially-deprived housing estate to the South of Bath. While the scheme would result in a net increase of homes overall, including the provision of a dedicated older persons living complex and accessible apartments, it would also see the loss of 210 affordable homes.

The developer and the Council had agreed a local lettings plan which would ensure that the majority of tenants would have priority for homes on the site and a neighbouring site being developed simultaneously – although some tenants would be excluded.

The officers’ report to the Council’s planning committee explained how the local lettings plan would work, that the net loss of affordable homes was justified and that the simultaneous development of the neighbouring site offered a time-limited opportunity to maximise the number of existing tenants who could be re-housed on or nearby the location of their current homes. The Committee approved the scheme by 5 votes to 4.

By the time of the hearing, the developer had announced that it no longer intended to implement the scheme approved in outline. Nonetheless, the hearing proceeded because the Council did not accept that the grant of permission had been unlawful.

The claim succeeded and Lewis J quashed the permission on the basis that the Council had failed to have due regard to the impact on elderly and disabled tenants of losing their homes:

1) The grant of outline planning permission was an exercise of a statutory function and therefore the public sector equality duty applied [30]

2) The fact that the Council was satisfied that the loss of affordable homes was justified (and therefore the application complied with the relevant policy of the development plan) did not mean that the public sector equality duty had automatically been complied with [33]

3) No equality impact assessment had been carried out and the officers’ report had not referred to the public sector equality duty [39]

4) The Council had focussed its attention on ensuring that displaced tenants would have somewhere to live as close as possible to their current homes but had failed to address the issue of how being forced to move from their homes would impact on elderly and disabled tenants, protected groups under the Equality Act 2010:

    • elderly tenants may have lived in their homes for a long time and had expected to live out the rest of their lives there
    • disabled tenants may have adapted homes which gives them certainty that they can live and function in that environment

and therefore the impact of losing those homes would necessarily be different for these groups than would be the case for people who did not have those protected characteristics [38, 40].

What lessons are there for local planning authorities?

  • Proposals which involve the loss of dwellings or public amenities are likely to require consideration of the public sector equality duty – see also, for example, LDRA Ltd v SSCLG [2016] EWHC 950 (Admin).
  • This may represent a stricter approach compared with what Lindblom J said in R (Coleman) v Barnet LBC [2012] EWHC 3725 (Admin): that planning cases are different from the mainstream of PSED cases because the approval of development proposals involves different considerations to decisions to withdraw or reduce a service
  • Reports should expressly refer to the public sector equality duty and set out section 149 in full – see R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin) where a well-intentioned but incomplete gloss of the duty was found to be unlawful.
  • Ensure that the report draws the equality implications of the proposal to the decision-maker’s attention. Once that has been done, it is for the decision-maker to give those implications whatever weight she thinks appropriate.

Matt Lewin is a member of Cornerstone Barristers’ planning team and regularly advises local authorities on the application of the Equality Act 2010 to their statutory functions.