In R (o.a.o Peter Buckley (on behalf of Foxhill Residents’ Association)) v Bath and North East Somerset Council and Curo Places Ltd [2018] EWHC 1551 (Admin) Lewis J quashed the decision by BANES to grant outline planning permission to demolish and redevelop part of a residential estate because due regard had not been given to the impact on elderly or disabled persons of the loss of their existing home pursuant to the public sector equality duty under the Equality Act 2010 section 149.

The Claimant was a resident of the existing estate. The Interested Party developer applied for outline permission to develop part of the estate by demolishing 542 homes (414 of which were affordable) and building 700 new homes (of which 210 would be affordable).

The planning application included a statement that noted significant levels of deprivation on the estate and that the existing housing was of poor quality. It detailed a re-housing process: residents could choose to move to (1) a new home on an adjacent development or (2) on the new estate, (3) to an affordable rented home elsewhere, (4) to a specialised property such as a property for older people or those with specialised needs, or (5) into low-cost home ownership.

Local plan Policy H8 made a presumption (a) in favour of the redevelopment of social housing where the condition of the housing stock was poor and/or there was socio-economic justification for redevelopment; and (b) against a net loss of affordable housing, subject to viability considerations and social balance considerations.

The council’s officers advised that (i) the development would provide additional, improved, dwellings; and (ii) the loss of affordable housing complied with Policy H8 as the development would not be viable with a higher level of affordable housing.

The council granted outline planning permission. 

The claim

The claimant argued that the grant of outline permission breached the local authority’s public sector equality duty under the Equality Act 2010 s.149 because due regard had not been given to the impact on elderly or disabled persons of the loss of their existing home if permission were granted. 

The judgment

The Court determined that grant of outline planning permission involved the exercise of a statutory function by the local authority. Accordingly, the section 149 duty applied to the granting of outline permission. The fact that certain reserved matters would be considered at a later stage could affect the content or scope of the duty, but did not prevent the duty applying. The fact that the application for outline permission complied with Policy H8 did not automatically involve compliance with the local authority’s section 149 duty. Policy H8 did not involve an assessment of the needs of particular groups or the impact of the demolition of dwellings of persons with protected characteristics. Hence, the policy in question was not one whose very purpose was designed to address the kind of equality considerations that might arise in relation to a proposed development.

The council had to have regard to the impact on the elderly and the disabled of losing their existing homes. That loss could give rise to considerations of impact on those persons which was different from, and greater than, the impact on other persons.

Perhaps unusually, no equality impact assessment had been carried out and there had been no reference in the material before the decision-maker to the public sector equality duty or the matters that that duty required the decision-maker to consider. The council’s focus had been on the impact of displacement on residents. It had not specifically had regard to the impact on groups with protected characteristics of the loss of their existing home. As a result there had been a failure to discharge the section149 duty.

Although it was possible that the council might still have concluded that the benefits of the development outweighed the disadvantages, the proposal had been controversial and there had been other options open for addressing the problems of the estate. As a result the Court was not convinced that it was highly likely that the outcome for the claimant would have been substantially the same, even if the section 149 duty had been complied with and the permission was quashed.

Peter Goatley
Planning and Environment Group
3rd July 2018