Buckley, R (on the application of) v Bath and North East Somerset Council & Anor [2018] EWHC 1551 (Admin)

Case No CO/162/2018

[2018] EWHC 1551 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20/06/2018

Before

THE HONOURABLE MR JUSTICE LEWIS

Between

The Queen on the application of Peter Buckley (on behalf of Foxhill Resident's Association)Claimant

Sarah Sackman and Katherine Barnes (instructed by Leigh Day) for Claimant

Richard Wald (instructed by Sharpe Pritchard) for Defendant

for The Interested Party did not appear and was not represented

Hearing Hearing dates: 16 and 17 May 2018

Judgment

THE HONOURABLE MR JUSTICE LEWIS :

INTRODUCTION

[1]This is a claim for judicial review of a decision of the defendant, Bath and North East Somerset Council, dated 30 November 2017 granting outline planning permission for the development of part of an estate known as the Foxhill Estate (“the estate”) by the demolition of up to 542 dwellings and the provision of up to 700 dwellings. The claimant, Peter Buckley, is a long-term resident of the estate and also acts on behalf of the Foxhill Estates Residents Association, an unincorporated association comprised of people who live on the estate.

[2]There are four grounds of challenge. First, is said that the defendant failed to have due regard to certain matters as required by section 149 of the Equality Act 2010 (“the 2010 Act”) which is known as the public sector equality duty. Secondly, it is said that the committee of the defendant which resolved to grant planning permission were misdirected in that they were told that all existing residents of the estate would be accommodated on the estate after the development was completed when that was not necessarily the case. Thirdly, it is said that the defendant failed to have regard to what was alleged to be a material consideration, namely the fact that affordable housing provided under the grant of planning permission for an adjacent area, Mulberry Park, was intended to be used for additional housing but would, under the proposals be used to accommodate tenants from existing affordable housing on the estate. Fourthly, it is said that the defendant misinterpreted the phrase “viability considerations” in one of the relevant planning policies. THE STATUTORY FRAMEWORK The 2010 Act

THE STATUTORY FRAMEWORK

[3]Section 149 of the 2010 Act provides, so far as material, that:

“149 Public sector equality duty (1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.” (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1). (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; ….. (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities. ….. (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.” (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; ….. (7) The relevant protected characteristics are— age;disability;gender reassignment;pregnancy and maternity;race;religion or belief;sex.”

The Planning Acts

[4]It is unlawful, in the sense that it is a breach of planning control, to undertake development without planning permission: see section 55 of the Town and Country Planning Act 1990 (“the 1990 Act”). A person wishing to develop land may apply to the local planning authority for planning permission.

[5]Section 70 of the 1990 Act provides, so far as material, as follows:

“70.— Determination of applications: general considerations. (1) Where an application is made to a local planning authority for planning permission— (a) subject to section 62D(5) and sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or (b) they may refuse planning permission. (1A) Where an application is made to a local planning authority for permission in principle— (a) they may grant permission in principle; or (b) they may refuse permission in principle. (2) In dealing with an application for planning permission or permission in principle the authority shall have regard to— (a) the provisions of the development plan, so far as material to the application, (aza) a post-examination draft neighbourhood development plan, so far as material to the application, ….. (b) any local finance considerations, so far as material to the application, and (c) any other material considerations.” (a) subject to section 62D(5) and sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or (a) they may grant permission in principle; or (b) they may refuse permission in principle. (a) the provisions of the development plan, so far as material to the application, (aza) a post-examination draft neighbourhood development plan, so far as material to the application, ….. (b) any local finance considerations, so far as material to the application, and (c) any other material considerations.”

[6]Outline planning permission may be granted that is, permission may be granted for the development but conditional upon the development not being commenced until reserved matters (that is, matters not specified in the application for planning permission) have been approved: see section 92 of the 1990 Act.

[7]Applications for planning permission must be determined in accordance with the relevant development plan adopted by the local planning authority unless material considerations indicate otherwise: see section 38(6) of the Planning and Compulsory Purchase Act 2006. THE FACTUAL BACKGROUND The estate

THE FACTUAL BACKGROUND

[8]The estate is located to the south of Bath. It comprises a large number of flats and terraced and semi-detached houses. The majority of the properties are owned by a registered social housing provider, Curo Places Limited (“Curo”). Some properties are leased from other registered social housing providers. Some homes are privately owned.

[9]The estate is directly adjacent to a former Ministry of Defence site now known as Mulberry Park. Permission for development on that adjacent site, comprising up to 700 new homes including 210 affordable homes, has already been granted.

The Application for Planning Permission

[10]Curo applied for outline planning permission to develop part of the estate (“the application site”). The application was for permission to demolish up to 542 homes and the provision of up to 700 new homes. There are currently 414 affordable homes within the application site and these would be replaced by 210 homes, resulting in a loss of 204 affordable homes.

[11]The application was accompanied by a number of documents. These included a planning statement. That document stated that the estate experienced significant levels of social and economic deprivation and was an area of poor quality, predominantly social housing. The document noted that the estate contained many properties that were not suitable for disabled occupants. The planning statement noted that the estate was one of the 11% most deprived areas in England. It noted that there were a number of lone parent households (21.5% of the total). It noted that 8.2% of residents were economically inactive due to long term illness. The planning statement further noted that the building stock was old and grouped in clusters in a way which limited social interaction between different groups. It noted that the application proposed the demolition of up to 542 dwellings and replacing them with up to 700 dwellings of different types, sizes and tenures, with a dedicated, older persons living complex and dedicated wheelchair accessible and adaptable apartments.

[12]The planning statement also explained how the re-housing process would work. The options would be to move to a new home on the adjacent Mulberry Park development or on the application site, move to an affordable rented home elsewhere, move to a specialised property such as a property for older people or for those with specialised needs or into some form of low cost home ownership. The phasing arrangements proposed for the development were intended to enable occupants to move directly into a new home (rather than being moved from their existing home to a temporary home and then being moved to a new home). Discussions were being undertaken with those who needed to be rehoused who were being given the option of expressing a preference as to whether they wished to move to Mulberry Park or move into redeveloped homes on the application site. The interviews included consideration of whether a tenant needed ground floor accommodation or modifications to improve mobility around the home. Paragraph 9.6 of the planning statement set out the specific benefits intended to be secured through the proposed development.

[13]An environmental statement also accompanied the application. Chapter 11A of that document dealt with what were described as socio-economic matters. It noted that unemployment on the estate, at 6.9% of residents, was more than double the average within the defendant authority’s area and that a high proportion of the population (8.2%) had been classified as long term sick or disabled. That document also noted at paragraph 11.65 that the proposed redevelopment had the potential to raise concerns among residents in relation to displacement of existing residents and noted that an extensive programme of consultation had been undertaken with residents and information provided. It was proposed that existing tenants who wished to remain within the application site or the adjacent Mulberry Park site would be accommodated through Homesearch (the local authority’s allocation scheme) and a local lettings plan (“the LLP”).

[14]The Homesearch housing allocation scheme sets out the criteria for allocating housing and provides that a local letting policy is an agreement between the local authority and registered provider which includes further letting criteria. An equality impact assessment of Homesearch had been carried out to assess the likely impact on particular groups including those with protected characteristics as defined by the 2010 Act.

[15]The LLP agreed between the defendant and Curo provided for priority on the Mulberry Park site and the application site to be given to people referred to as Curo Foxhill tenants. They were defined as tenants with an assured (non-shorthold) tenancy, tenants with a fixed term tenancy-Affordable Rent Tenancy (where the fixed term was 5 years or more) and tenants with an assured shorthold tenancy living in a property with two or more bedrooms. Tenants occupying a one bedroom home and tenants on an assured shorthold tenancy would not be given priority. The LLP also provided that where it was reasonable applications for accommodation on the proposed development may be refused to ensure that a mixed and sustainable community was created and gave, as an example, applicants with a history of anti-social behaviour who may be refused accommodation at the proposed development.

The Relevant Planning Policy

[16]The planning policy in the development plan which was primarily relevant to the application for outline planning permission was Policy H8. That policy has been subjected to an equalities impact assessment. That policy, together with two others, was considered to support the provision of a variety of homes and to have a positive impact. Policy H8 provides: “ Policy H8: Affordable Housing Regeneration Schemes There is a general presumption to support the redevelopment of social housing where the following criteria can be demonstrated to be met: i The physical condition of the housing stock is poor (i.e. the dwellings are substandard or demonstrably not fit for purpose in the short-medium term or similar) and/or ii There is a site specific socio-economic justification of re-development led regeneration, considered alongside alternative options for re-modelling or refurbishment. iii There is a loss of amenity space, Policy LCR5 should be met. Where the principle of development is accepted, there is a presumption against the net loss of affordable housing, subject to viability considerations and other social balance considerations.” i The physical condition of the housing stock is poor (i.e. the dwellings are substandard or demonstrably not fit for purpose in the short-medium term or similar) and/or ii There is a site specific socio-economic justification of re-development led regeneration, considered alongside alternative options for re-modelling or refurbishment. iii There is a loss of amenity space, Policy LCR5 should be met.

The Officers’ Report

[17]Officers from the defendant authority prepared a detailed and lengthy report on the application for the relevant committee to consider. The report should be read in its entirety. Among the salient points are the following. The report described the application site and its planning history. It explained the proposal and described the supporting documentation. It summarised the comments of relevant bodies and the local residents. These included objections from residents who, amongst other things, expressed concern that the proposal would result in a loss of community, that many residents did not want to move or lose their current homes and gardens, and that there was huge uncertainty. The report then provided an assessment of the application by officers. It noted that the application was ambitious and complex and raised a number of issues requiring careful consideration. It noted that the application covered a large part, but not all, of the estate and included properties within Curo’s ownership and properties owned by other registered social landlords and privately owned homes. It noted that third parties (i.e. those with properties not owned by Curo) would not be obliged to take part in the development if planning permission were granted.

[18]The report considered the principle of residential development. It noted that the proposals would result in 158 additional dwellings and would result in the provision of modern, better quality housing and physical improvement of the estate. The report noted that it was the second criterion in Policy H8 that was being relied upon, namely that there was a site-specific socio-economic justification for redevelopment. The report considered socio-economic factors relevant to the estate, including unemployment levels at more than double the average in the defendant’s area, 8.2% of residents being long-term sick or disabled and the fact that the estate was one of the most deprived areas in England. The officers concluded that a socio-economic case had been made for regeneration of the application site.

[19]The report specifically noted that the proposal would result in the loss of 204 affordable homes: there were currently 414 affordable homes and the proposal contemplated that the development would have 210 affordable homes. The report noted that viability considerations were relevant when assessing whether a net loss of affordable housing could be accepted. The report noted that viability information had been provided by Curo and independently reviewed by a consultant appointed by the Council. The report said this:

“ Looking firstly at viability, information has been provided by the applicant and has been independently reviewed by a consultant appointed by the Council. The viability case presented by the applicant demonstrates that the development of the application site as proposed results in a significant deficit and, as such, is not viable. This deficit assumes the provision of affordable housing (30%) but no other S106 contributions. The applicant has identified that they are proposing to provide a minimum of 30% affordable housing when considered in conjunction with Mulberry Park; a scheme which delivers 210 affordable homes. This aligns with the aspirations of the Charter and Housing Zone submission where the ability to rehome existing residents of the Foxhill Estate in the immediate area is identified as a priority. The rehoming of existing social tenants in the immediate area is facilitated by the local lettings plan agreed with the Council. In addition the applicant is offering a shared equity opportunity on new dwellings on Mulberry Park or Foxhill to existing owner occupiers. This would ensure that they can remain in the area and that their existing housing costs would be no greater than they currently are. E.g. they would not need to pay any ‘rent’ on the equity element retained by Curo. The viability assessment demonstrates that the development cannot deliver a greater level of affordable housing. Indeed, the 30% proposed by the applicant can only be delivered through cross subsidy from the adjacent Mulberry Park development. Notwithstanding that het viability assessment demonstrates a significant deficit, the applicant is content to commit to delivering at minimum 30% of affordable housing through a S106 agreement. The significant viability deficit of the project alone is assessed to be sufficient to justify the net loss of affordable housing having regard to Policy H8 of the emerging Placemaking Plan. ”

[20]The report went on to note that the timing of the application was important. It noted that the same applicant had received planning permission for up to 700 dwellings on the adjacent Mulberry Park development. That would provide an opportunity to rehouse tenants currently residing on the estate near their current homes if that was what they wished. The report noted that the timing of the Mulberry Park development offered a genuine opportunity to limit the potential adverse social impacts of regeneration of the estate. The report expressed the matter in the following way:

“ The timing of this application is important and relevant in considering the proposal. The same applicant has received the planning permission for delivery of up to 700 dwellings on the adjoining Mulberry Park development. The applicant has suggested as part of their submission that this adjacent development does offer the opportunity to ‘rehome’ residents (regardless of their tenure) currently residing on the Foxhill Estate near their current homes where this reflects their desires. This is a time limited opportunity. Should regeneration of the Estate be proposed once Mulberry Park is partially or fully occupied, the ability to ‘rehome’ residents of the Foxhill Estate on Mulberry Park would not exist, or would be far more compromised. At that point, if residents cannot be accommodated within a regenerated Foxhill Estate, the potential negative social effects of regeneration of the Foxhill Estate are assessed to be significantly greater as the opportunity for residents to stay in the immediate locale would be significantly reduced. Such a scenario would almost certainly result in the displacement of residents, which would have a greater negative impact on aspects of day-to-day lives including access to and continuity of employment, education and healthcare. The inability to cater for residents’ preferences in the locale would also be likely to affect friendship and community groups resulting in further social dis-benefits. The timing of the delivery of Mulberry Park offers a genuine opportunity to limit the potential adverse social impacts of comprehensive regeneration of the area and one officers believe should be taken. Furthermore, progressing development of Mulberry Park and regeneration of Foxhill Estate in parallel provides the best opportunity for the two areas to develop together rather than in isolation. As such, development now is assessed to offer the best opportunity to limit and mitigate the potential for negative social impacts of regeneration of the Foxhill Estate. This factor should not be underestimated.”

The Grant of Outline Planning Permission

[21]The application was considered at a committee meeting on 26 July 2017. The officers answered questions put at the meeting. The evidence of Mark Reynolds, a development manager of the defendant, is that members were told that any tenant with an assured shorthold tenancy who had moved onto the estate after 2013 (there were approximately 114 such tenants) would not have priority for housing on the estate but that they had been told that when they entered into their tenancy. Not all tenants of Curo would, therefore, have priority. The minutes record that one councillor commented that not all residents could be accommodated and that some people would find themselves worse off and there would be a significant impact on those displaced. Another councillor is recorded as acknowledging that the loss of a home was a traumatic experience. The committee resolved to grant outline planning permission, subject to conditions and a suitable agreement under section 106 of the 1990 Act, by five votes to four.

[22]A section 106 agreement was entered into on 30 November 2017 between Curo and the Council. That agreement provided, amongst other things, that Curo covenanted not to allow any individual affordable hosing unit to be occupied except by an individual residential purchaser or tenant who satisfied the requirement of the Homesearch allocation scheme (or by certain other groups).

[23]On 30 November 2017, outline planning permission was granted for the redevelopment of the estate comprising the demolition of up to 542 dwellings and the re-provision of up to 700 dwellings and other works. The outline planning permission was subject to conditions. Condition one provided that no development could begin until the Council had approved reserved matters relating to access, layout, scale, appearance and landscaping. Condition 3 required any application for approval of reserved matters to be accompanied by a statement describing how they would contribute to achieving the specific benefits set out in paragraph 9.6 of the planning statement.

Subsequent Events

[24]A claim form seeking to challenge the grant of permission on four grounds was issued on 10 January 2018. Permission to apply for judicial review was granted on all four grounds by an order made on 16 February 2018.

[25]By a letter dated 28th February 2018 from the chief executive of Curo to each resident, Curo stated that they had decided to change their approach to the regeneration of the estate and they would no longer consider demolition of the homes on the estate. Instead they proposed to develop a new plan based on the refurbishment of homes. The letter explained that the regeneration of the estate would require community support, political support and government funding. The letter noted that there was community opposition to the demolition of homes and the loss of social housing involved. It noted that there had been various levels of political support but no guarantee of government funding. Further, uncertainty now arose from the claim for judicial review. While Curo no longer intends to implement the outline planning application, the outline planning permission remains in place and the Council does not accept that the decision to grant outline planning permission was flawed. In those circumstances, the challenge to the validity of the planning permission continued.

THE ISSUES

[26]Against that background, and having regard to the written and oral arguments of the claimant and defendant, the following issues arise:(1) Is the outline planning permission invalid because the defendant failed to comply with the public sector equality duty imposed by section 149 of the 2010 Act? That, in turn, involves four issues: (a) Does the section public sector equality duty apply to the grant of outline planning permission? (b) If so, was the duty complied with as the outline planning permission was granted pursuant to a policy (H8) which itself involved an assessment of the matters relevant to the section 149 duty? (c) Did the defendant in any event have due regard on the facts to the matters that section 149 of the 2010 Act requires due regard to be given, notwithstanding the absence of any reference to the public sector equality duty? (d) If there was a failure to comply with the public sector duty, should the court refuse, as a matter of discretion, to quash the planning permission?

(2) Did the defendant misdirect itself because it believed that all residents on the estate would be re-housed on the Mulberry Park site or the application site whereas in fact that was not the case?

(3) Did the defendant fail to have regard to a material consideration, namely the purpose underlying the grant of permission for development on the adjoining Mulberry Park site which was intended to provide additional affordable housing whereas that housing would be used to make up the loss of existing affordable housing in the proposed development?

(4) Did the defendant misinterpret or misapply the term “viability considerations” in Policy H8?

THE FIRST ISSUE -THE PUBLIC SECTOR EQUALITY DUTY

[27]Ms Sackman on behalf of the claimant submitted that the public sector equality duty in section 149 of the 2010 Act applies to the grant of outline planning permission. She submitted that is a decision which recognises that, in principle, development of the land is appropriate. In the present case, there is no evidence at all that the defendant did, as required by section 149(3)(a) and (b) of the 2010 Act, have due regard to the need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic or to take steps to meet the needs of such persons. The relevant characteristics were age, disability, race and pregnancy or maternity.

[28]In oral argument Ms Sackman accepted that the needs of such persons in terms of the allocation of suitable housing would be dealt with by the arrangements put in place for allocating housing as the development is carried out and the public sector equality duty would be complied with at that stage. The focus in oral argument was on the need to have due regard to the impact on the elderly and the disabled in particular of the loss of their existing home if permission for the proposed development including demolition of their homes were granted. That may well, it was submitted, be particularly traumatic for elderly persons who may have lived in their home for many years and hope to remain there until the end of their lives. In the case of disabled persons, the home may have been adapted and the need was to have due regard to the impact on them of losing the security of a home which they knew met their needs.

[29]Mr Wald for the defendant submitted that it was not possible to do any meaningful equality impact assessment at the stage of considering the grant of outline planning permission given the lack of information about the scope of any actual demolition and the identity and characteristics of the persons affected. He submitted that, for those reasons, section 149 of the 2010 Act did not apply. Alternatively, if it did, he submitted that the decision was, in effect, an application of Policy H8 and the likely adverse affects of demolition had necessarily been contemplated in the course of developing that policy. That policy had itself been the subject of an equality impact assessment and there was no challenge to Policy H8 on the grounds that its adoption involved a breach of section 149 of the 2010 Act. Thirdly, in any event, even if the duty applied, the impact of demolition had in fact been adequately considered in the course of considering the application for outline planning permission. Fourthly, Mr Wald submitted that, even if there had been a breach of section 149 of the 2010 Act, it was highly likely that the outcome for the claimant would not have been substantially different if the breach had not occurred as outline planning permission would in all probability have been granted. Discussion The Applicability of the Public Sector Equality Duty

Discussion

[30]Section 149 of the 2010 Act provides that a public authority must have due regard to certain matters “in the exercise of its functions”. The grant of outline planning permission involves the exercise of a statutory function by the defendant. It is the exercise of the function conferred by section 70 of the 1990 Act. As a matter of statutory language, therefore, the duty in section 149 of the 2010 does apply to the function of granting outline planning permission pursuant to section 70 of the 1990 Act.

[31]The fact that the application is for outline planning permission and that certain reserved matters are to be considered at a later stage in the process may affect the content or scope of the duty in particular cases but that does not prevent the duty applying. By way of example, approval of reserved matters such as layout and access may, depending on the circumstances, raise specific equality considerations. Those matters may require little or no consideration at the outline stage but may need to be considered carefully at the stage when those matters come to be considered for approval. Similarly, the fact that the grant of outline planning permission is one stage in a process which has a number of different stages before the development is finally completed may affect the scope of the duty. Again, by way of example, demolition of a dwelling adapted for use and occupied by a disabled person may result in the need to have due regard to the possibility of providing suitable alternative accommodation for that person. The suitability of the actual provision for particular tenants may be better assessed at a later stage in the overall process of development. The impact of demolition of existing homes and adapted dwellings on elderly and disabled persons who occupy them may, however, need to be considered at the time when outline permission is granted.

The Relevance of Adoption of Policy H8

[32]Mr Wald relied upon the fact that the application for planning permission was considered by reference to Policy H8 which, itself, he submitted was designed to address issues of equality in the context of affordable housing regeneration schemes which, necessarily, would or might include demolition of properties as part of the process of regeneration. He relied upon the decision in R (Isaacs) v Secretary of State for Communities and Local Government

[2009] EWHC 557 (Admin)

. That case concerned a challenge to the lawfulness of a refusal of planning permission for use of a site by a family who were gypsies. The case was concerned with section 71 of the Race Relations Act 1976 (“the 1976 Act”) and the duty, amongst other things, to have due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity. Similar principles apply to the equivalent duty in section 149 of the 2010 Act. In considering an appeal against the refusal of planning permission, the inspector had considered relevant guidance on the provision of gypsy and traveller sites. That guidance aimed at creating a sustainable and strong community for all members of society, including the gypsy and travelling community, and recognised the particular difficulties faced by those groups. Elias J. as he then was, said this at paragraphs 53 and 54 of his judgment:

“53…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. “54 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 71by seeking properly to apply the policies which had those very considerations in mind.”

[33]Policy H8 is significantly different from the guidance at issue in the Isaacs case. That guidance focussed on a particular group, gypsies and travellers, recognised the specific problems and disadvantages that that group faced and considered how to address the need to provide sites where they could live. Policy H8 is a more general policy dealing with affordable housing regeneration schemes. The specific provision relevant in this case is the second part of PolicyH8, that is where there is a site-specific socio-economic justification for redevelopment-led regeneration, considered alongside options for re-modelling or refurbishment. On its terms, it is not possible to consider that that policy, or its application, involves an assessment of the needs of particular groups or the impact of the demolition of dwellings of persons with protected characteristics. It is not, therefore, possible to consider this case as a situation involving the application of a policy whose very purpose was designed to address the kind of equality considerations that might arise in relation to a particular proposed development. It is not, therefore, possible to regard the fact that the application for outline planning permission complied with Policy H8 in the defendant’s development plan as automatically involving compliance with the defendant’s duties under section 149 of the 2010 Act.

Whether the Defendant Did Comply with the Duty?

[34]Mr Wald submitted, on behalf of the defendant, that, on careful analysis, the defendant had in fact given due regard to the matters relevant to the public sector equality duty.

[35]The general approach to whether the public sector equality duty has been complied with is set out in the decision of the Court of Appeal in R (Bracking) v Secretary of State for Work and Pensions [2013] EWC Civ 1345. There, the relevant government department decided to close a fund operated by an independent non-government body which, broadly, provided funding to assist disabled persons to lead independent lives. On the facts, the Court of Appeal concluded that the information provided to the relevant minister did not give her an adequate awareness that the proposals would place independent living in serious peril for a large number of people. The Court concluded that the minister had not complied with the public sector equality duty and quashed the decision.

[36]As Lord Neuberger observed at paragraph 74 of his judgment in Hotak v London Borough of Southwark [2016] A A.C. 811 “the weight and extent of the duty are highly fact-sensitive and dependant on individual judgment”. The Court of Appeal in R (Barker) v Secretary of State for Communities and Local Government [2008] 2 P. & C. R. 6 has also given valuable guidance on assessing whether there had been compliance with section 71 of the 1996 Act. Similar principles apply to the equivalent duty in section 149 of the 2010 Act: see Hotak v London Borough of Southwark [2016] 1 A.C. 811 at paragraphs 73 to 74. In broad terms, the duty is a duty to have due regard to the specified matters not a duty to achieve a specific result. The duty is one of substance, not form, and the real issue is whether the relevant public authority has, in substance, had regard to the relevant matters having regard to the substance of the decision and the authority’s reasoning. The absence of a reference to the public sector equality duty will not, of itself, necessarily mean that the decision-maker failed to have regard to the relevant matters although it is good practice to make reference to the duty, and evidentially useful in demonstrating discharge of the duty (see, e.g., Baker at paragraphs 36 to 37, and Bracking at paragraph 26).

[37]In the present case, on analysis, as emerged in oral argument, the real matter to which it is said that the defendant had to have due regard was the impact on the elderly and the disabled of losing their existing homes. It is clear that the proposed development was intended to enable persons to move directly from one home to another so there was no issue of the impact of temporary disturbance as that would not occur. There was no issue about accommodation of elderly persons or disabled persons. The material demonstrated that that had been considered and, in any event, the actual process of allocating new homes was itself to be done under a process that would ensure that the needs of specific tenants, and any equalities impact, would be considered. There was no real demonstration of how a decision to grant outline planning permission which included demolition of housing might be connected to the protected characteristic of pregnancy or maternity or of race or ethnic origin. There was a suggestion that certain persons, such as asylum seekers, might find the process of moving homes stressful. On analysis, the defendants were well aware of the stress involved in moving from one home to another and there was no real basis for asserting that the process otherwise aised particular issues for any ethnic group.

[38]In the circumstances, therefore, the real issues of substance was whether the defendant could demonstrate that it had had due regard to the impact on the elderly or disabled of the loss of their existing home. Elderly persons may well have lived for many years in a home and wished to spend the rest of their years in that same home. Disabled persons may well have had an existing home adapted and can be certain that they can live, and function, in that environment. To lose that environment may give rise to particular considerations as to the impact of such a loss which are different from, and greater than, the impact on other persons.

[39]Mr Wald accepted that no equality impact assessment was carried out before outline planning permission was granted and there was no reference in the material before the decision-maker to the public sector equality duty or the kinds of matters that that duty required the decision-maker to consider. Nevertheless, he submitted that, in substance, the defendant had had regard to the relevant matters. Mr Wald took me through the material before the decision-maker. He made a forceful case that, in substance, the decision-making committee would have known and thought about the particular potential impact on the elderly and the disabled. The material included with the application set out the demographic composition of the estate, including the proportion of older persons, and disabled persons, living on the estate. In particular, Mr Wald took me to paragraph 11.65 and following of chapter 11A of the assessment submitted with the application which stated that the regeneration programme has the potential to raise concerns not least in relation to displacement. That explained the steps taken to consult with residents to address the concerns about displacement. It is also right to note that the minutes of the meeting which discussed the application records one councillor as acknowledging that the loss of a home was a traumatic experience.

[40]On balance, however, in my judgment, the defendant did not in fact have due regard to the impact on the elderly and disabled persons of granting an application which might lead to the demolition of their existing homes. The defendant was, very properly, concerned to ensure that all those affected would be provided with information to allay concerns about displacement, that is the fact that they would have to leave their existing homes and where they would live afterwards. The defendant, and Curo, has given considerable attention to ensuring that persons can remain within the estate. As Mr Wald emphasised, the officers’ report noted the potential of the loss of affordable housing to result in significant disadvantages through the dispersion of residents and that that could, uniquely, be mitigated by the development, in parallel, of Mulberry Park. Ultimately, however, the focus was on the impact of displacement, or moving, of residents. The defendant did not specifically address or have regard to the impact on groups with protected characteristics, in particular the elderly and the disabled, of the loss of their existing home. It may well be that not a great deal would have needed to be said on this matter. It may have been sufficient to draw that matter to the decision-maker’s attention and then the decision-maker could have decided whether the contemplated benefits of the proposed development did outweigh any negative impacts. Ultimately, however, I am persuaded there were matters relevant to the discharge of the public sector equality duty which the relevant decision-maker needed to have due regard to but which were not drawn to the decision-maker’s attention. In the circumstances, there was a failure to discharge the duty imposed by section 149 of the 2010 Act.

Remedy

[41]Mr Wald submits that, if those matters had been drawn to the attention of the relevant decision-making committee it is highly likely that outline planning permission would have been granted and so the outcome would not have been substantially different. Consequently, he submits that the court is obliged to refuse a remedy having regard to the terms of 31(2A) of the Senior Courts Act 1981 (“the 1981 Act”).

[42]It is correct to note that McCombe L.J. observed at paragraph 69 of his judgment in Bracking that if a decision was reached without compliance with the public sector equality duty, that decision was unlawful and, subject to any discretionary features, the decision would be quashed. Remedies in judicial review are discretionary and there are well-established principles of common law indicating when a remedy may be refused even if unlawfulness has been established. Furthermore, on occasions, courts have granted a declaration that there has been a breach of section 149 of the 2010 Act (or its equivalent) without quashing the individual decision in question. In addition, section 31(2A) of the 1981 Act would now require a court to refuse a remedy if the conditions in that sub-section are satisfied.

[43]In the present case, I cannot say that it is highly likely that the outcome for the claimant would not have been substantially different if the public sector equality duty had been complied with, that is, if the matters concerning the impact of loss of existing homes on the elderly and the disabled in particular had been drawn to the decision-making committee’s attention. It is certainly possible that the committee might still have concluded that the benefits of the proposed development overall outweighed any potential disadvantages. That would have been a matter for the committee to assess. However, this was a proposal which was controversial. The ultimate vote was five in favour of the grant of outline planning permission and four against. There would be other options open for addressing the problems of the estate including re-furbishment rather than demolition. In all the circumstance, it cannot be said that it is highly likely that the outline planning permission would have been granted in this particular case if the breach of section 149 of the 2010 Act had not occurred. In those circumstances, and given the absence of any other justifiable reason for refusing a remedy, the appropriate course of action is to quash the outline planning permission granted on 30 November 2017 for the redevelopment of the application site.

THE SECOND TO FOURTH ISSUES

[44]In the light of that conclusion, is it possible to deal with the second to fourth issues relatively briefly. In relation to the second issue, the essential allegation is that the defendant mis-directed itself as it believed, erroneously, that all residents on the estate would be re-housed in the Mulberry Park development or on the application site. That submission is based on a sentence at page 31 of the officers’ report which says, in a reference to the development at Mulberry Park as well as the proposed development in this case, that:

“Whilst accepting that the applications have been submitted independently, it is of relevance in consideration of Policy H8 because the quantum of affordable homes proposed in the Housing Zone across the two sites would ensure that all existing residents of the Foxhill Estate can be accommodated in the immediate area (Foxhill and Mulberry Park).”

The groups whom it was submitted would not be assured of re-housing were owner occupiers, tenants of registered providers other than Curo, persons who had a tenancy granted by Curo after 2013 or tenants to whom it was considered reasonable to refuse accommodation in order to ensure that a mixed sustainable community was created (the example given in the lettings policy being a tenant with a history of anti-social behaviour being refused accommodation on the redeveloped estate).

[45]The essential question is whether the officers’ report, read fairly and as a whole, did or did not mislead members of the committee as to what the proposed development would involve in relation to existing residents. In my judgment, the officers’ report did not mislead members. First it is clear from the report that members were told that owner occupiers and tenants of other social registered landlords could not be required to move from their existing homes even if planning permission were granted for the development generally. There would be no question of them being moved from the estate elsewhere unless they wished to do so. Secondly, the position in relation to Curo tenants who were granted a tenancy after 2013 was specifically explained orally at the meeting. Thirdly, the fact that there might be some persons who might be refused a tenancy for reasons unconnected with the development does not begin to suggest that the sentence referring to “all existing residents” is misleading. That sentence is dealing with the generality of residents who will need to be accommodated if the development proceeded and who would be accommodated on the estate. It was not dealing with the possibility that there might be individual tenants who for reasons unconnected with the proposed development would be refused a tenancy. Fourthly, the sentence and paragraph read as a whole is dealing with the question of the loss of affordable housing on the application site. It is explaining, in context, that affordable homes within the application site would be lost but there were affordable homes on the Mulberry Park development and so that the amount of affordable housing across the two sites (Mulberry Park and the proposed development) would be sufficient so that all existing residents would be able to be accommodated. Read in context, that paragraph does not mislead the reader as to what can happen to existing residents on the estate. This ground of challenge fails.

[46]The third issue concerns the claim that the defendant did not have regard to a material consideration, namely the fact that part of the reasoning underlying the grant of planning permission for development at Mulberry Park had been that new or additional affordable housing would be made available there. The proposed development, however, involved that affordable housing being used to accommodate those whose existing affordable housing on the application site would be demolished. There is no substance in this challenge. First, the defendant was not obliged to have regard to the reasons underlying a different development from the application for development which they were considering. Secondly, and in any event, the defendant knew that there would be a loss of 204 affordable homes on the application site. Because of the timing of the proposed development, they could be accommodated within the development at Mulberry Park. It was obvious that affordable housing that would otherwise be available for new residents on Mulberry Park would be used under the proposed development to accommodate those who lost their existing affordable housing. This ground of challenge fails.

[47]The fourth issue concerns the claim that the defendant misinterpreted or misapplied the phrase “viability considerations” in Policy H8. That policy provides that “there is a presumption against the net loss of affordable housing subject to viability considerations and other social balance considerations”. In the present case, the officers’ report noted that the amount of affordable housing proposed on the application site (210 homes) would amount to 30% of the proposed housing and so would comply with a requirement in a different policy in the development plan, namely Policy CP5. However, the report also noted correctly that there would be a net loss of 204 homes and that, therefore, the latter part of Policy H8 applied. The application had provided information on the viability of the proposed development and that had been independently reviewed by a consultant appointed by the defendant. The assessment was that the proposed development would result in a significant financial deficit and was not, as such, viable. The viability assessment demonstrated that the proposed development “cannot deliver a greater level of affordable housing”. Indeed, the proposed development could only provide for 210 houses, and meet the 30% requirement, by a cross-subsidy from the Mulberry Park development. In the circumstances, the defendant was entitled to conclude that the presumption against the net loss of affordable housing was outweighed by the fact that viability considerations meant that the proposed development could not provide a greater amount of affordable housing. This ground of challenge fails.

ANCILLARY MATTERS

[48]The defendant sought to adduce a further witness statement made by Louise Davidson and dated 11 May 2018. That was said to respond to alleged misapprehensions in the claimant’s skeleton argument dated 24 April 2018. The claimant objected to the admission of the statement as he had not had adequate opportunity to consider and respond to the matter raised. I have read the statement. Nothing in it appears to me to be material to the matters that I need to decide. Given its lack of materiality, and in addition, the lateness of the service of the statement and the fact that the claimant has not had the opportunity to respond, I refuse permission to adduce this statement in evidence.

CONCLUSION

[49]The defendant failed to comply with the duty imposed by section 149 of the 2010 Act when exercising its statutory function of granting outline planning permission for the proposed development at the estate comprising the demolition of up to 542 dwellings and the provision of up to 700 dwellings. The grant of outline planning permission on 30 November 2017 was unlawful and that outline planning permission will be quashed.