Harris, R (on the application of) v Haringey [2009] EWHC 2329 (Admin)

"Demolition of existing buildings and erection of mixed use development comprising Class C3 residential and Class A1/A2/A3/A4 with access, parking and associated landscaping and public realm improvements"

"3. The claimant challenges the legality of Haringey's grant of planning permission on 24th December 2008 to the interested parties for redevelopment of the site known as 'Wards Corner' (after the department store, Wards, which used to trade there) . . . Central to the Grainger scheme is that it involves total demolition of the existing buildings on Wards Corner. 4. The resolution to grant planning permission was approved by just 5 votes to 4. 5. [The site] is in the West Green Road/Seven Sisters District Centre. The area is predominantly made up of local independent traders with a mix of Turkish, Cypriot, Colombian and Afro-Caribbean influences. The site incorporates an indoor market comprising 36 units of which 64 per cent of traders are from Latin America or are Spanish speaking. The total retail floor space on the site is 3,182 square metres and the site includes 33 residential units along Suffield Road as well as first floor accommodation above the retail units on Tottenham High Road, Seven Sisters Road and West Green Road. At present, those business units and homes are predominantly occupied by members of BME communities . . . During the consultation process and subsequently, a great many people have expressed their concern that the level of business rents that would be charged in a redeveloped site (the Council itself anticipates these increasing threefold . . .) and the fact that the Grainger scheme makes no provision at all for affordable housing, will bring about a significant shift in the commercial and residential make up of the area . . . "

"I therefore take the view that in considering the question of apparent bias in accordance with the test in Porter v Magill, it is necessary to look beyond pecuniary or personal interests and to consider in addition whether, from the point of view of the fair-minded and informed observer, there was a real possibility that the planning committee or some of its members were biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues. That is a question to be approached with appropriate caution, since it is important not to apply the test in a way that will render local authority decision-making impossible or unduly difficult. I do not consider, however, that the circumstances of local authority decision-making are such as to exclude the broader application of the test altogether."

"37. That brings me to what I regard as the central issue in this appeal, namely whether the judge was right to find an appearance of bias on the basis that Carwyn Jones did say the words attributed to him. 38. Neither before the judge nor before us was there any disagreement as to the correct legal test; and I have referred already to what the judge said about that test. Nevertheless I think it important to look in a little more detail at what the test involves. It is helpful to start with a passage from Flaherty v National Greyhound Racing Club Ltd . . . Having referred to the basic test stated by Lord Hope in Porter v Magill . . . Scott Baker LJ continued, at para 27: 'The test for apparent bias involves a two stage process. First, the Court must ascertain all the circumstances which have a bearing on the suggestion that the tribunal was biased. Secondly, it must ask itself whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased . . . An allegation of apparent bias must be decided on the facts and circumstances of the individual case . . . The relevant circumstances are those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing . . . ' 39. That emphasis on the circumstances as they appear to the court after investigation finds expression in various ways in the judgment of Lord Hope in Porter v Magill . . . "

"48. In R (on the Application of Cummins) v London Borough of Camden & Anr [2001] EWHC Admin 1116, Ouseley J stated, at paragraph 254: 'The decision-making structure, the nature of the functions and the democratic political accountability of councillors permit, indeed must recognise, the legitimate potential for predisposition towards a particular decision…' 54. [In Georgiou] Richards J held that the decisions were vitiated by the appearance of bias. Having referred to Kirkstall Valley, Richards J stated: '30. It seems to me, however, that a different approach is required in the light of Porter v Magill. The relevant question in that case was whether what had been said and done by the district auditor in relation to the publication of his provisional conclusions suggested that he had a closed mind and would not act impartially in reaching his final decision . . . ' In paragraphs 59 and 60 of his judgment, Pill LJ said this: 59. In R (on the application of Island Farm Development Ltd & Anr) v Bridgend County Borough Council [2006] EWHC Admin 2189 . . . a claim that a local authority's planning decision was vitiated by pre-determination was based on members having a known attitude to the development and one Councillor having participated in a protest group. Having set out the relevant paragraphs from the judgment of Richards J in Georgiou, Collins J stated: '30. I confess to some doubt as to this approach … Councillors will inevitably be bound to have views on and may well have expressed them about issues of public interest locally. Such may, as here, have been raised as election issues. It would be quite impossible for decisions to be made by the elected members whom the law requires to make them if their observations could disqualify them because it might appear that they had formed a view in advance . . . 31. The reality is that councillors must be trusted to abide by the rules which the law lays down, namely that, whatever their views, they must approach their decision-making with an open mind in the sense that they must have regard to all material considerations and be prepared to change their views if persuaded that they should . . . So it is with councillors and, unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision.' 60. Collins J concluded, at paragraph 32: “It may be that, assuming the Porter v Magill test is applicable, the fair-minded and informed observer must be taken to appreciate that predisposition is not predetermination and that councillors can be assumed to be aware of their obligations…” Pill LJ went on to say this: "62. The difference may, however, arise from a more fundamental difference about the role of elected councillors in the planning process...No question of personal interest arises in this case. The Committee which granted planning permission consisted of elected members who would be entitled, and indeed expected, to have, and to have expressed, views on planning issues. When taking a decision councillors must have regard to material considerations and only to material considerations, and to give fair consideration to points raised, whether in an officer's report to them or in representations made to them at a meeting of the Planning Committee. Sufficient attention to the contents of the proposal, which on occasions will involve consideration of detail, must be given. They are not, however, required to cast aside views on planning policy they will have formed when seeking election or when acting as councillors. The test is a very different one from that to be applied to those in a judicial or quasi-judicial position. 63. Councillors are elected to implement, amongst other things, planning policies. They can properly take part in the debates which lead to planning applications made by the Council itself. It is common ground that in the case of some applications they are likely to have, and are entitled to have, a disposition in favour of granting permission. It is possible to infer a closed mind, or the real risk a mind was closed, from the circumstances and evidence. Given the role of councillors, clear pointers are, in my view, required if that state of mind is to be held to have become a closed, or apparently closed, mind at the time of decision . . . 66. As to the test to be applied, I respectfully share Collins J's concerns about the test as expressed by Richards J (as he then was) in Georgiou . . . “ [emphasis added]. In paragraph 71 of his Judgment Pill LJ concluded: "

"It is common ground that in the present planning context a distinction has to be made between mere predisposition, which is legitimate, and the predetermination which comes with a closed mind, which is illegitimate . . . "; and in paragraph 94: "

"96. So the test would be whether there is an appearance of predetermination, in the sense of a mind closed to the planning merits of the decision in question. Evidence of political affiliation or of the adoption of policies towards a planning proposal will not for these purposes by itself amount to an appearance of the real possibility of predetermination, or what counts as bias for these purposes. Something more is required, something which goes to the appearance of a predetermined, closed mind in the decision-making itself. I think that Collins J put it well in R (on the application of Island Farm Development Ltd) v Bridgend County Borough Council . . . 97. In context I interpret Collins J's reference to 'positive evidence to show that there was indeed a closed mind' as referring to such evidence as would suggest to the fair-minded and informed observer the real possibility that the councillor in question had abandoned his obligations, as so understood. . . 98. I think that Lord Justice Pill's conclusion at para 71 above is to similar effect and also puts it well . . . when he says that the importance of appearances is generally more limited in this context than in a judicial context. I also agree with Lord Justice Longmore's observations about the jurisprudence." [Emphasis added].

"On Wards Corner a development of 5-6 storeys in height may be appropriate stepping down to three storeys on Suffield Road . . . • New development should regenerate and improve the living and working environment and make best use of the opportunities presented by the site. The area is run-down and the buildings on the Wards Corner site in particular, are in need of physical renewal. However, the former Wards department store building itself is considered to have some architectural merit and any development scheme should reflect, and retain, the architectural features of the store, if at all possible . . . The buildings at Wards Corner make only a neutral contribution to the character and appearance of the conservation area, (although the Wards store itself has some merit). In these circumstances, national policy PPG15 ('Planning & the Historic Environment') sees such sites as a spur to high quality, imaginative development."

"TOTTENHAM HIGH ROAD REGENERATION CORRIDOR In order to promote regeneration, proposals for development along Tottenham High Road, as identified on Map 1.1, will be permitted where the following can be demonstrated: (a) that it is sustainable and will positively contribute to the regeneration of the High Road; (b) that it will involve no significant adverse impact on neighbouring residential amenity, and provides a safe and secure environment that combats crime and the fear of crime; (c) it will not result in any loss of public open space; (d) it will not significantly increase the vehicular traffic flow on the High Road; (e) it will not detract from the vitality and viability of the town centres, which should be the focal point for new travel intensive uses; (f) that new housing should promote a more balanced, mixed, sustainable and less transient community, and the proportion of affordable housing should not exceed 50 per cent, the majority of which should be for intermediate forms of housing (shared ownership, key worker and sub market schemes); and (g) change of use to residential will be encouraged outside the defined retail centres, subject to other policies in this plan."

"1.12. The Tottenham High Road Regeneration Strategy (2002) encompasses the entire length of the High Road. It links the borough boundary with Enfield to the north and Hackney to the south, and incorporates Northumberland Park, Bruce Grove and Seven Sisters. The Strategy area is shown on Map 1.1. Tottenham High Road and the buildings, shopping centres and open spaces along it will be improved as an historic North/South corridor. 1.13. The area has severe environmental, economic and social problems and is in need of regeneration. The core town centres along the road are at Seven Sisters, Bruce Grove and Northumberland Park where new intensive development should be focused. Major sites for potential redevelopment will act as catalysts for prime regeneration of the High Road and include . . . • Seven Sisters underground station (Wards Corner) - to redevelop as a landmark mixed use development; . . . Planning briefs have been drawn up for Seven Sisters (Wards Corner) and the former Baths and Depot sites which specify the mix, quantity and quality of uses."

"THE BRIDGE - NEW DEAL FOR COMMUNITIES. In order to promote regeneration, tackle poverty and social exclusion and achieve more sustainable communities, proposals for development in The Bridge will be permitted where the following can be demonstrated -- (a) it is sustainable and positively contributes to the regeneration of Seven Sisters; (b) provides a safe and secure environment, and combats crime and the fear of crime; (c) improves access to and the quality of open space; (d) provides a choice of good quality housing that meets the needs of all in the community and the proportion of affordable housing should not exceed 50 per cent, the majority of which should be for intermediate forms of housing; (e) promotes an environment and conditions where opportunities for enterprise are open to all; and (f) protects the integrity of the Vale Road/Tewkesbury Road Designated Employment Area."

"1.14. The Bridge New Deal for Communities aims to improve the quality of life for residents. It seeks to change the area so that it becomes a better place to live, has more sustainable communities, tackles social exclusion and reduces the long-term impact of poverty. It seeks to integrate and reshape local service delivery through effective partnership, community involvement and multi-agency working, all contributing to strong and proactive neighbourhood management. 1.15. Important development sites in the area are . . . • Seven Sisters underground station (Wards Corner) - a planning brief has been prepared which advocates mixed use."

" . . . English Heritage does not support the view that none of the buildings identified make a positive contribution to the conservation area. In accordance with the criteria for demolition set out in PPG 15 to 3.16-3.19 English Heritage does not consider that the replacement buildings offer sufficient merit to justify demolition and considers that a scheme which takes a conservation led approach to regeneration should be pursued."

". . . a more sensitive scheme which addresses the conservation area and retains those buildings identified as making a positive contribution to the conservation area is pursued."

"The core issue to determine here in terms of design is whether the current scheme, predicated on the demolition of buildings of merit within a Conservation Area, represents design of a high quality and design that reflects and strengthens the unique character of Tottenham [High] Road." and: "

"The first time I heard about the Wards Corner development was by talking to people at the Museum at which point the details were very limited. However, the first time I and others heard about it officially was at a Forum meeting on 6th July 2003. At this meeting Councillor Peacock announced that Wards Corner 'will be going'. The Forum Secretary Val noted this in the minutes under Planning and Conservation . . . Councillor Peacock also said that photos should be taken of the site before it is demolished (this too is noted in the minutes). As Councillor Peacock is on the Planning Committee I took her statement at face value: that these proposals were definitely going ahead . . . "

"The Wards Store building at Seven Sisters will be going. As this was the first steel-framed building in Tottenham it was suggested that photographs should be taken before it is demolished . . . "

"Statement made by Chair Sheila Peacock."

"I do not recall the meeting on 6 July 2003 but this was at a time when the Draft Development Brief was a public document in the published agenda for the Planning Applications Sub-Committee. It was at a time when I was setting up my web site on Historic Tottenham and while I have a photograph of the Tottenham Broadway (as it was then called) in 1913, which shows the parade with a different roof line to that of the present, I did not have photographs of the interior. I do not understand how Janet Harris had the impression that the proposals in the Draft Development Brief were definitely going ahead when she went to one of the exhibitions which was part of the consultation."

"14. There were no development plans for Wards Corner in July 2003 other than the draft development brief and I would not have described the draft development brief as 'fantastic'. 15. Any mention I made of Wards Corner in early July 2003 was a reference to the Draft Development Brief which was on the public agenda of the Planning Sub-Committee on 7 July 2003. It is not a discovery of Janet Harris when she had the benefit at the time of me recounting what the planning sub-committee would be considering."

"3. I was approached by a woman with short grey hair. I started an informal conversation with her about CARA and I asked her if she would be interested in signing the petition to save the Wards building. At that point she said she would not sign the petition as she was the Chair of the Planning Committee, Councillor Sheila Peacock. 4. I then spoke to her about whether she thought it was right that a locally listed building was going to be demolished, the indoor market destroyed and whether she had seen the Grainger plans which were already proving unpopular with local people. She said that she had seen the plans and that she wanted the plans to include a 'plaza' like that on the South Bank near County Hall. She then proceeded to tell me that the whole site needed to be rebuilt and redeveloped and, therefore, that she did not support the petition for restoration of the building. She also said that the area was dangerous and specifically that the market was 'full of drugs' and that it needed to go. Further, she stated that the local shop keepers around the building had not been there very long and that the site was a mess. 5. I remember the exchange very clearly because I remember how forcefully she put her case that the Wards Corner site must be completely changed. As a public servant myself, I remember feeling affronted and perplexed that someone with civic authority and Chair of the Planning Committee was openly expressing her specific position in favour of demolition. I was also shocked by her prejudiced and inaccurate views about the businesses on the site. 6. I challenged her with regard to the market and her allegations of criminal activity, and stated that I knew the market was a safe place with little or no crime. I also told her that there were shops on the site that had been there a very long time and that they were stable businesses. I also said that a lot of people wanted to preserve the Wards building which was in good condition and that is important to Tottenham's heritage. 7. After the conversation ended I spoke to several other people shortly afterwards, including people at the next stall such as Roy Jose, Candy Amsden and also members of the Tottenham Civic Society including Joseph Nicholas and Matthew Bradby at a nearby stall. I remember saying that I could not believe that she was willing to express such a fixed view even after she told me that she was Chair of the Planning Committee. 8. At this point, we had no idea that the Planning Committee decision would not be made until 14 months later. We had assumed that the Planning Committee would be in a few months and that Councillor Peacock would sit as Chair. 9. Some days after this conversation, Candy Amsden, a CARA member, ascertained from the local police station that they have received virtually no calls about incidents in or around the market. I then wrote to Councillor Peacock to confirm the content of our conversation and to specifically challenge her inaccurate view about crime at the indoor market. She quickly responded . . . "

"Dear Councillor Peacock Thank you for stopping at the Clyde Area Residents' Association (CARA) stall at the Lordship Recreation Ground event last Saturday. During our conversation you expressed your views about the need to demolish all the existing buildings at Wards Corner in order to develop a new centre of commercial activity and a landmark design. Whilst we were pleased that you consider the existing plans inadequate, CARA's view is that, in addition to better design and sustainability standards, we support conservation of the best of the existing buildings, including some historic interiors. (We also draw your attention to the response of the Tottenham Civic Society to the plans which eloquently put the case for both conservation and high quality). CARA also strongly supports the existing market at Wards Corner which has grown spontaneously out of the . . . local community into a vibrant local resource. Whilst its potential is clearly under-realised, we strongly want to retain a market function at Wards Corner. We would like particularly to challenge the view you expressed last Saturday that the market, mainly but not exclusively run by members of the Columbian community, is a source of crime, particularly drug related crime. We have contacted our local neighbourhood police who have informed us in writing that: 'We have never received information that drugs are a problem there nor have we ever raided premises in connection with supply. In fact we rarely get called there for anything.' CARA intends, with other residents' associations, to work closely with market traders who are concerned to continue to build their businesses at Wards Corner. Kind regards Ruth Allen Co-Chair, CARA"

"We will not agree on the future of this area, which I would like to see . . . completely changed. Visitors when coming to Tottenham need to be impressed by the new build and not depressed by seeing the old just tarted up. This should be a landmark area. I am sure that those in Regeneration will ensure that we get the best possible result. Sheila"

"36. In September 2003 [sic] I visited the Lordship Recreation Ground Fair in the company of my granddaughter and visited among other stalls the CARA stall and the Tottenham Civic Society stall. A woman I now know to be Ruth Allen was at the CARA stall and Matthew Bradby was at the Civic Society stall. Ruth Allen's statement makes no mention of my granddaughter and while she claims to remember my words very clearly and claims to have been affronted and perplexed, the e-mail she sent me does not reflect any affront or perplexity and I simply do not believe that I could have caused affront with my thirteen year old granddaughter who Ruth Allen leaves out of her account. I do wish to see the area of Wards Corner regenerated and landmark buildings constructed both on Wards Corner and on the Apex Road site in accordance with the adopted planning development brief. I am aware of our Unitary Development Plan policies particularly AC3 in the Section Areas for Change. The e-mail exchange that I had with Ruth Allen was publicly raised by the Leader of the Liberal Democrats on Haringey Council and I have been advised not to participate in the application made by Mrs Alvarez for the restoration of the market building. I attach the advice of the Monitoring Officer. I assume that Ruth Allen was made aware by Councillor Williams of the Monitoring Officer's advice as my e-mail to Ruth Allen had been passed to the Liberal Democrat leader at a time when I had forgotten about it. 37. The matter was not raised again in relation to the Planning Committee meeting in July which was cancelled at the last minute but there was correspondence again in October and November between Ruth Allen and the Monitoring Officer. 38. It is true that I expressed criticism of the consultation drawings by Graingers which I did not think were appropriate to replace several buildings in the Conservation Area at that time. 39. I held and communicated no fixed view about any application. I expressed criticism of Grainger's consultation drawings but I did wish to see the site regenerated with the adjoining site of Apex House. Before the Planning Committee meeting in November I read the officer report and was aware of the position of the Mayor of London and the Greater London Authority. I read the papers carefully as the Chair must be able to follow the debate and questions. Demolition of buildings in a Conservation Area requires special consideration and is by no means a fait accompli in a designated development site. I do understand that aspect of the procedure. However, the adopted development brief sets out the Regeneration Context and the application report had significant regeneration benefits as well as reporting on viability. I cannot speak for other members of the Committee but for myself the session of looking at the plans and then having final questions is the real business end of the decision. I rather agree with Councillor Bob Hare on the approach. We have been on training courses together."

"2. Turning to Councillor Peacock's witness statement, I am unclear as to the significance of her granddaughter's presence given that she was not introduced to me or otherwise involved in the conversation that Councillor Peacock and I had. I was not suggesting in my first statement that how she spoke to me would be inappropriate in front of children, just that she was very clear, indeed emphatic, about her position. My sense of affront and perplexity was related to her clarity that the Wards Stores building would have to go and be replaced with a very specific type of redevelopment at [a] time when she, as a potential decision-maker, ought to have been open minded. As indicated in my first statement, our conversation was about both the community plan for the building's renovation and the alternative which she favoured. My e-mail was also about both. I read her reply as being about both too as, I think, would anyone else. She contrasts the two alternatives: on the one hand there is 'the new build' following demolition; on the other 'the old tarted up'. 3. Councillor Peacock says that my e-mail did not reflect perplexity or affront. I am not in the habit of writing intemperate e-mails. Besides, when I wrote it I was pressing for clarification of an expressed position which had taken me aback. An aggressive or hurt tone was not appropriate. 4. I now see from her evidence that the concerns I had about Councillor Peacock's firm views were shared by a Councillor, Neil Williams, and were put to the Monitoring Officer (I was unaware of this exchange previously contrary to Councillor Peacock's assumption). I cannot understand, however, why the firm views being expressed ruled Councillor Peacock out of a decision to preserve Wards Corner but not from a decision to demolish it: they are simply the two sides of the same coin. 5. I have taken my complaint about Councillor Peacock further and I believe it is currently in the hands of a Monitoring Officer from another local authority."

"26. I do recollect meeting a woman at the market on the 8 October 2007 but until reading this statement I did not know who she was. I had thought it was the Manageress of the market. There was no mention of the Wards Corner coalition: had there been I would have left immediately. The reason for my visit was in connection with a Licensing Sub-Committee meeting. There were complaints about activities and Licensing is a separate statutory responsibility. Councillor Patel was with me and he is also an experienced Councillor. Neither of us would involve ourselves in discussing Planning responsibilities at a Licensing site visit. 27. I did not say 'it doesn't matter what you do' nor did I say I had previously had to stand down from the Planning Committee. There was discussion about what permission had been obtained under licensing but no discussion about Planning matters. 28. It is true that following the representations of the Leader of the Liberal Democrat Group in April 2008 using the e-mail that I had sent to Ruth Allen in September 2007, I was advised by John Suddaby that I should not take part in the decision of planning application HGY/2008/0177. But in October 2007 that application had not been made and the advice of the Monitoring Officer had not been tended [sic]. 29. I do not recall being called a racist. I am a British Jewess and proud of the fact and I would have remembered and reacted if I had been called a racist. Mrs Alvarez does not remember correctly and it is not true either that I stated at all 'no matter what' this place/market is going to be knocked down. I have checked the Licensing agenda papers and see that a resident of Suffield Road had written and complained about anti-social behaviour and refers to the property being demolished but I do not recall if that was discussed with Mrs Alvarez. There was no mention of the coalition or the campaign or the alternative application or any views about the alternative application."

"Dear John I attach below an e-mail from Cllr Peacock to a resident expressing a view on the Wards Corner planning application. Could you rule please on whether or not she should sit on the committee as a result. Best Neil."

"Dear Councillor Williams, Thank you for your e-mail bringing this to my attention. I have advised Councillor Peacock that she should take no further part in the consideration of the Community based planning application for Wards Corner having expressed a firm view on what appears to be an essential aspect of that proposal. I have also advised Councillor Peacock that she is not, however, debarred from taking part in the consideration of the Grainger planning application. Regards John Suddaby Head of Legal & Monitoring Officer"

"71. Specified authorities: general statutory duty (1) Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need -- (a)to eliminate unlawful racial discrimination; and (b)to promote equality of opportunity and good relations between persons of different racial groups. (2) The Secretary of State may by order impose, on such persons falling within Schedule 1A as he considers appropriate, such duties as he considers appropriate for the purpose of ensuring the better performance by those persons of their duties under subsection (1) . . . "

"29 . . . [If] the Inspector did not discharge the section 71(1) duty, it would be no answer that her attention was not drawn to section 71 and no arguments were based on it. I accept the submission of Mr Allen that, as a matter of law, an Inspector is under the duty to have due regard to the relevant needs whether or not the section 71(1) point is raised by a party. The obligation to perform the statutory duty is not dependent on the issue being raised by one of the parties to the appeal (who may or may not have the benefit of professional representation or even advice) . . . 30. We had detailed submissions . . . as to the meaning of section 71(1) and in particular the promotion of equal opportunity limb of section 71(1)(b) . . . 31. In my judgment, it is important to emphasise that the section 71(1) duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. Thus the Inspector did not have a duty to promote equality of opportunity between the appellants and persons who were members of different racial groups; her duty was to have due regard to the need to promote such equality of opportunity. She had to take that need into account, and in deciding how much weight to accord to the need, she had to have due regard to it. What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing . … 36. 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. I agree with what Ouseley J said in The Queen (on the application of Lisa Smith) v South Norfolk Council [2006] EWHC 2772 (Admin) . . . 37. The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed . . . To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning. 38. Nevertheless, although a reference to section 71(1) may not be sufficient to show that the duty has been performed, in my judgment it is good practice for an Inspector (and indeed any decision-maker who is subject to the duty) to make reference to the provision (and any relevant material, including the relevant parts of the Code of Practice and Circular) in all cases where section 71(1) is in play. In this way, the decision-maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced. . . . 40. Largely for the reasons given by Mr Coppel, I am in no doubt that there was no breach of the section 71 duty in this case. The Inspector was alive to the plight of gypsies and travellers and the disadvantages under which they labour as compared with the general settled community. The first of the "other considerations" which she addressed in her decision was what she referred to as 'gypsy status'. It is clear from para 32 that she considered this to be a factor which weighed in the balance in the appellants' favour. The only reason that there could rationally have been for this view was that gypsies suffer from inequality of opportunity as compared with persons of different racial groups, i.e. the general community. The Inspector took full account of this and, by treating it as a factor which weighed in the appellants' favour, she showed that she was having due regard to the need to promote equality of opportunity between them (as persons of gypsy status) and persons of different racial groups. There is no other explanation of why she identified gypsy status as a factor weighing in favour of the appellants. It is immaterial whether she was aware of the existence of the section 71(1) duty."

"46. The Inspector did not specifically refer to this duty. However as the Court of Appeal noted in R (on the application of Baker and others) v Secretary of State for Communities and Local Government EWCA 141, that does not mean that he did not take it into account. As Lord Justice Dyson observed at paragraph 37, the question in every case is whether the decision maker has in substance had due regard to the statutory obligation. 47. The Baker case is in my judgment highly material to this submission . . . 48. An important element in the court's reasoning was that the Inspector had taken into consideration Circular 01/2006 . . . 49 . . . Lord Justice Dyson identified other indications which showed that the inspector had been fully alive to the factors which adversely impacted on the claimants' lack of opportunities."

"I would put this point on a more general basis. The classic situation where the section 71 obligation bites is where some policy is in the course of being considered. The duty, to put it loosely, to have regard to race relations implications is very important. But where a policy has been adopted whose very purpose is designed to address these problems, compliance with section 71 is, in my judgment, in general automatically achieved by the application or implementation of the very policies which are adopted to achieve that purpose."

"Of course, there may in some cases be additional problems over and above those which the policy is directed to ameliorate, and which will need specific consideration. Perhaps, for example, there is evidence of special tensions over and above those which might naturally be expected to arise from the fact that the claimant is a gypsy who will have to relocate to an unauthorised site. But that is not this case. In my judgment the Inspector was having regard to the requirements of section 71 by seeking properly to apply the policies which had those very considerations in mind."

"4. Negative impact on issues of diversity and equality of Grainger proposals Local planning processes are required to demonstrate that meaningful community engagement and equalities issues have been accounted for and the diverse groups are not systematically disadvantaged by public authority processes. There is no reference in this planning application to the impact on diverse communities and the needs of diverse local communities, including ethnic minority communities. Members of particular minority ethnic communities are being disproportionately disadvantaged by these proposals. Virtually all the businesses that will be ended by the proposals are from ethnic minority communities that provide some ethnically distinct and important services and goods. The Coalition contends that the needs of the growing Latin American community are being explicitly negated in these proposals."

"I live above my business with my family . . . I am part of this diverse local ethnic minority community who I serve and depend on my shop for their unique and specialist food products that is non available in national supermarkets. Demolition will destroy the existing ethnic minority business, the owners, their families, employees and their suppliers. The owners and their families have built up their existing businesses with many years of hard work and determination, in some cases hard work of three generations of family. There are traders who live above their businesses and in this case they will be forced out of their homes. The traders will not be able to relocate their business to a new location and be successful due to the poor state of the world economy, and will be impossible to get any financial credit due to worsening credit crunch. The traders will lose their place of living, their businesses, and will be forced to accept below market value for their hard earned small businesses, and the result will be mass unemployment, loss of talents, possibility of depression, mental health problems and suffering in this small but vibrant and united diverse community. The customers and residents will lose their choice of shopping and specialist shops."

"The need for an equalities impact assessment was specifically raised by me on behalf of the coalition when I presented a deputation . . . to a meeting of the full Council of Haringey, at Haringey Civic Centre Council Chamber on 31st March 2008. I directly asked for an 'equalities assessment' of the development brief for the site which the Council were relying on as the policy context and justification for Grainger's approach to the site."

"The Government's 2005 guidance on Equalities and Diversity in Planning makes it clear that 'Consideration of diversity should be at the heart of planning activities' and planning staff should understand mixed people . . . Wards Corner is a living, breathing, changing place. The market has reduced crime, the resident population around the site is changing. New communities have come into the area. The development brief should have been subject to an equalities impact assessment and amended in the light of this."

"The Committee allowed four interested parties to address the Committee and outline their objections, who represented the Wards Corner Community Coalition, Tottenham Traders Association, local small business owners and local residents. The Committee was informed that the proposed development was unpopular and would not be considered a landmark development. It would have extremely negative impacts on existing local businesses, homes, social amenity and community cohesion. Objections related specifically to loss of longstanding, diverse and viable businesses and jobs; detriment to community cohesion in Tottenham through targeted harm to ethnic minority communities, poor quality, monumental design out of keeping with the location, destruction of a well regarded heritage building."

"It was considered that [the] two public authorities had no regard for social housing, family homes, a locally listed building lost forever and a thriving community destroyed. An alternative could be considered, a new scheme which incorporated part restoration and part new build so that existing businesses could remain on the site. The Prince's Regeneration Trust were prepared to broker a fresh approach in cooperation with all parties involved. The Wards Corner site was important for the local community and represented mixed nationalities in one centre. A collaboration of all interested parties of Wards Corner was what was required."

"2. The local traders reflected the rich cosmopolitan mixture of the local community and their businesses responded to the special needs of those communities. These would not be accommodated within the proposed development."

"This section of the Equality Scheme sets out how we will ensure that we carry out the equalities public duties set out in this Scheme, and the tools that we will use to do so. 5.1 Mainstreaming of Equalities At the heart of our approach to this work is mainstreaming of equal opportunities. Mainstreaming is an approach whereby we endeavour to ensure that equalities considerations covering age, disability, gender, race, religion or belief and sexual orientation, are integral to everything we do as a Council. This is especially so where they relate to or impact on service provision, employment, community involvement and the need to promote community cohesion. 5.2 Carrying out Equalities Impact Assessment We will continue to make equal opportunity a prime consideration when formulating strategies, policies and plans that govern operations in the Council. That is why we shall carry out an equalities impact assessment of key strategies, policies, plans etc, when they are being developed. Equalities Impact Assessment will be an integral part of the process of formulating strategies, policies and plans relating to our work as a Council. Our purpose will be to carry out and in-depth analysis of key proposals from equalities perspectives in order to identify if, where and how they might adversely affect any of the groups. Where potential significant disproportionate adverse impacts are identified, then authors of the proposals would have a duty to address these before the proposals are finalised and submitted for consideration for a formal decision. In this way, the Council will ensure that equalities issues are routinely incorporated into policy analysis but action taken to address any significant potential adverse effects on any group before a proposal is formally adopted . . . "

"(i) Promote equality of opportunity for disabled people, men and women, people of different racial and ethnic backgrounds, around age, sexual orientation, religions and faith. (ii) Eliminate discrimination that is unlawful . . . "

"Equality Impact Assessments (EqIAs) offer a more detailed look at the implications of local development plans and policies on diversity and gender impact assessments . . . EqIAs should be carried out alongside the development of the document or project being assessed."

"1. Whether as part of a formal Equality Impact Assessment or otherwise, [the Council] should have -- (a) obtained information and data in relation to the people directly and indirectly affected by the Grainger scheme (including thus occupants/residents of the site and others who use its facilities) sufficient to enable it to assess whether the decision to grant planning permission (and the linked matters) might amount to unlawful race discrimination and/or might impact on the promotion of equality of opportunity between persons of different racial groups and/or might impact on the promotion of good relations between persons of different racial groups, and if so the extent and nature and duration of those impacts; (b) assessed that information and data to establish their impact on the need to eliminate unlawful discrimination, the need to promote equality of opportunity and the need to promote good relations between persons of different racial groups. 2. That process could have been undertaken by officers or others provided that the councillors on the Planning Committee were then properly aware of and took into account its results as below. 3. As part of the decision whether to grant planning permission (etc) and as a rigorous conscious exercise (and mindful of the statutory needs themselves) the members of the Planning Committee needed to give due regard to the statutory needs on the basis of the information, data and assessment. That would include them thus considering whether to refuse permission, amend the proposal or impose conditions or other requirements with a view to avoiding or mitigating any unlawful discrimination and better promoting equality of opportunity and good relations between persons of different racial groups."

"1.1. Haringey is often described as an outer London borough with inner city problems. Almost 40% of Haringey's population live in wards that are amongst the most deprived 10% in England. 1.2 The borough is economically and socially polarised, a consequence of an extensive area of deprivation in the centre and the eastern part of the borough, with the more affluent areas in the west. Tottenham is generally the poorest area of Haringey. Another characteristic of Haringey is the transience of a significant proportion of the population, again largely concentrated in the areas of deprivation to the east. Also, a large proportion of minority ethnic communities are concentrated in those parts of the borough where the greatest concentrations of disadvantage are found. Therefore regeneration initiatives will be targeted at the centre and the east to narrow the gap between the east and the west of the borough."

" . . . improve the quality of life for residents . . . to change the area so that it becomes a better place to live, has more sustainable communities, tackles social exclusion and reduces the long-term impact of poverty. It seeks to integrate and reshape local service delivery through effective partnership, community involvement and multi-agency working, all contributing to strong and proactive neighbourhood management."

"An examination of the cases to which we were referred suggests that the following general principles can be tentatively put forward. First, those in the public authority who have to take decisions that do or might affect disabled people must be made aware of their duty to have 'due regard' to the identified goals . . . "

"Thus, an incomplete or erroneous appreciation of the duties will mean that 'due regard' has not been given to them: see, in a race relations case, the remarks of Moses LJ in R (Kaur and Shah) v London Borough of Ealing [2008] EWHC 2062 (Admin) at paragraph 45."

"Secondly, the 'due regard' duty must be fulfilled before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question. It involves a conscious approach and state of mind."