“a. that the small scale housing industry makes an important national contribution to the provision of new housing; b. that the industry has steadily declined (from providing nearly two thirds of new homes registered in 1989 to just over one third in 2010) c. that disproportionate, and generally up-front, charges imposed on this sector have contributed significantly to this decline; d. that small scale sites with planning permission are stalled because of this; and e. that national measures are required to reverse this decline, free up stalled sites and increase land availability to ensure this important sector then contributes effectively to meeting national housing need.”
“Many local authorities referred to the differences between land values and development costs both nationally and from site to site; arguing that these considerations should remain part of the locally led approach to plan-making and, where necessary, on a site-by-site basis.”
“(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence[2006] 1 WLR 3213 ;[2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. (2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department[2007] EWHC 199 (QB) (Stanley Burnton J as he then was)). (3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health[2005] EWCA Civ 154 at [26–27] per Sedley LJ. (4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a ‘rearguard action’, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing[2008] EWHC 2062 (Admin) at [23–24]. (5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions[2008] EWHC 3158 (Admin) , as follows: i) The public authority decision maker must be aware of the duty to have ‘due regard’ to the relevant matters; ii) The duty must be fulfilled before and at the time when a particular policy is being considered; iii) The duty must be ‘exercised in substance, with rigour, and with an open mind’. It is not a question of ‘ticking boxes’; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument; iv) The duty is non-delegable; and v) Is a continuing one. vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty. (6) ‘[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.’ (per Davis J (as he then was) in R (Meany) v Harlow DC[2009] EWHC 559 (Admin) at [84], approved in this court in R (Bailey) v Brent LBC[2011] EWCA Civ 1586 at [74–75].) (7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be ‘rigorous in both enquiring and reporting to them’: R (Domb) v Hammersmith & Fulham LBC[2009] EWCA Civ 941 at [79] per Sedley LJ. (8) Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills[2012] EWHC 201 (Admin) (Divisional Court) as follows: (i) At paragraphs [77–78] ‘[77] Contrary to a submission advanced by Ms. Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear it is for the decision maker to decide how much weight should be given to the various factors informing the decision. [78] The concept of “due regard” requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms. Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.’ (ii) At paragraphs [89–90] ‘[89] It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council[1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required. Ms. Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para [85]): “… the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.” [90] I respectfully agree ……’” i) The public authority decision maker must be aware of the duty to have ‘due regard’ to the relevant matters; ii) The duty must be fulfilled before and at the time when a particular policy is being considered; iii) The duty must be ‘exercised in substance, with rigour, and with an open mind’. It is not a question of ‘ticking boxes’; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument; vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty. “… the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.”