Mon, 28 Jun 2021
This analysis was first published on Lexis®PSL on 23 June 2021 and can be found here (subscription required):
Planning analysis: The continued loss of rural pubs to alternative, higher value uses (particularly residential conversions) is controversial and commonplace. Public houses enjoy protection in terms of national planning policy and (almost always) the policies of local development plans. The starting point is generally one of ‘resistance’ to such proposals. In considering a planning application for such a proposal Sedgemoor District Council both failed to discharge (or even consider) its duty under section 149 of the Equality Act 2010 (EA 2010) and failed to proceed upon a proper interpretation of its own development plan policy. The case is an important reminder of the duty imposed by EA 2010 upon public authorities when exercising their planning functions and that a decision- maker must proceed upon a proper understanding of the development plan. Written by Christian Hawley, barrister at No5 Chambers specialising in planning and environmental law. Written by Christian Hawley, a Barrister at No5 specialising in planning and environmental law.
R (on the application of Danning) v Sedgemoor District Council [2021] EWHC 1649 (Admin)
What are the practical implications of this case?
EA 2010, s 149(1)—the Public Sector Equality Duty (PSED) is engaged whenever planning decisions are being made and that duty lies with the decision-maker. The duty cannot be delegated, it must be undertaken in substance and not simply in form. Mrs Justice Steyn noted in particular that ‘it is not a question of ticking boxes’ (at para [46]). While the absence of any reference to EA 2010 is not determinative the question for the court was whether the council had ‘…in substance, had regard to the relevant matters’.
That said, Steyn J observed that on the facts of the case, and in particular the ‘striking’ absence of objections, the court would likely have withheld relief but for the success of the second ground of challenge.
The development plan—when determining a planning application the decision maker must proceed upon a proper understanding of the relevant policies. In this case the critical policies for consideration were set out in full in the Report to Committee (RTC).
However, the RTC then went on to analyse the proposal almost exclusively in terms of the question of the viability and market demand for the pub which was an important part of the relevant policy but, ultimately, only one part of it. While the court held that the question of viability could be (and was) determinative of other aspects of the policy it was not determinative of all of them.
Given the RTC’s failure to consider, analyse or discuss all the relevant criteria of the relevant policy it materially misled the Planning Committee such as to render their decision unlawful. This aspect of the case supports the important point that simple recitation of the terms of a development plan policy in a RTC will not save a decision based upon a flawed or misleading analysis of it.
What was the background?
The Panborough Inn is a rural pub located in the hamlet of Panborough in Somerset. Like many such pubs it was successful in the 1980s and 1990s but, as trends in the hospitality industry changed, business began to decline thereafter. Closed in 2014 it sat empty for two years before being sold to new owners in 2016. Those new owners set about reopening the pub and it traded for the next three years before closing again in 2019.
That is not an uncommon tale for rural pubs. Nor was the planning application seeking permission for a change of use allowing it to be used instead as a residential dwelling. If granted and implemented the use of The Panborough Inn as a public house would be extinguished.
That application was reported to Sedgemoor District Council’s Planning Committee on 10 November 2020 whereupon it was resolved to grant planning permission following which a decision notice was duly issued. The claimant challenged that decision on the basis of the council’s failure to discharge its duty under EA 2010, s 149 of the (Ground 1) and that the Planning Committee were materially misled as to the relevant development plan policies (Grounds 2 and 3).
What did the court decide?
Ground 1 - PSED
EA 2010, s 149(1) requires a public authority to have regard to the need to inter alia ‘advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it’. Those ‘protected characteristics’ are set out at EA 2010, s 149(7).
The claimant argued that at no point had any consideration been given to the implications of a decision to grant planning permission in terms of the matters provided in EA 2010, s 149(1). Given the existing use of The Panborough Inn (a public house), and that its loss would fall upon the wider community, the claimant contended that there was the potential for those with protected characteristics to be disadvantaged by the decision. That was a matter which the council was required to consider (as the PSED is a statutory duty not simply a material consideration) and it failed to do so.
In defending the claim the council submitted (i) that the recording of an express consideration of the PSED was not required (Foxhill Resident’s Association v BANES and another [2018] EWHC 1551 (Admin) [at §36]), (ii) that it had considered the implications of the proposal and that as the public house was already closed there could be no impact in PSED terms as there was no access for the public (it simply being a private premises), (iii) that the application of the policies in the development plan, without more, discharged the duty.
The council submitted a witness statement which ‘explained’ how it had approached the issue. The court agreed with the claimantTimmins v Gedling Borough Council [2014] EWHC 654 (Admin) (at para [110]) and Flaxby v Harrogate Borough Council [2020] EWHC 3204 (Admin), (at paras [12]–[19]) that it was, insofar as the PSED issue was concerned, ‘clearly…an attempt to fill the gap in the documents which were before the Planning Committee’ (§55).
While the witness statement of the case officer confirmed that they had considered the duty imposed upon the council by the Equality Act it was not a duty which lay with him, it lay with the decision-maker—the planning committee (§55). The duty is non delegable and ‘must be fulfilled at the time when a particular decision is being considered’ (§46).
The court held that the Planning Committee had failed to ask itself whether the decision it was being asked to make could have any implications in terms of EA 2010, s 149(1) and there was ‘…a complete absence of evidence to the contrary’ (§56). The council had therefore failed to comply with its duty and its decision to grant planning permission was unlawful.
Grounds 2 & 3 – the development plan
The claimant contended that the Planning Committee had been materially misled by the RTC as to the proper meaning of the relevant development plan policies. It was argued that the relevant policies only permitted the ‘loss’ of community facilities where certain criteria were fulfilled. The RTC’s focus upon only some of those criteria (principally viability and marketing) led the Planning Committee to a conclusion that the loss of the The Panborough Inn could not be ‘resisted’.
That conclusion materially misled the Planning Committee as it excluded any consideration at all of other aspects of the relevant policy including the need to demonstrate consultation with the community and consideration of alternative means of delivering the service. The court held that ‘the Planning Committee might well have taken the view that evidence of such community consultation had not been demonstrated and, on that basis, refused planning permission’ (at para [63]). Accordingly, having failed to proceed upon a ‘proper understanding’ of the development plan the decision to grant planning permission was held to be unlawful.
Discretion
As required by section 31(2A) of the Senior Courts Act 1981 it was necessary for the judge to consider whether, despite the conclusion that the council had acted unlawfully, it was ‘highly likely’ that the outcome for the applicant would not have been substantially different. As regards Ground 1, in the particular circumstances of the case (firstly, the pub was already closed and would be unlikely to re-open (at para [62]) and secondly, the ‘striking’ absence of any evidence that the decision would have had any implications for those with protected characteristics (at para [61])) Steyn J observed that on this ground alone relief would have been withheld.
However, given that the council had also been found to have acted unlawfully as regards its understanding of Policy D35 (which if properly understood could have led to a different outcome) the claim was allowed on Grounds 1 and 2 (in so far as the failure related only to one discrete criteria of Policy D35 and not other criteria which it was also submitted the council failed to understand) and the decision to grant planning permission quashed.
Case details:
- Court: High Court, Administrative Court, Planning Court
- Judge: The Honourable Mrs Justice Steyn
- Date of judgment: 17 June 2021
Christian Hawley acted for the successful claimant.
