“Further to the meeting about parking controls on 2 April I wonder whether a colleague and I might come to visit you at the Gurdwara at your earliest convenience? We would like to discuss some possible next steps with you, and it would be helpful to us to do that on-site. We have pretty good availability next week, after the Bank Holiday, and hope to be able to meet sometime that week…”
“Let me reach out to the other faith leaders and find out what days and times they could look to join us for a meeting with you at the Gurdwara.”
“Many thanks for your reply, and for your kind offer to reach out to the other faith leaders. I will wait to hear when might be convenient for them, and of course understand that it will take a little while to find a date that works for all. In the meantime I wonder whether it would be possible to catch up with you at the Gurdwara to have a look in more detail at your specific local parking situation, particularly the idea of a dropped kerb?”
“…I am writing to make you aware, in case you are not already, that Cllr Will Pascall, whom you met earlier this year, is no longer the Council’s lead member for Streets, Planning and Transport. He is now the Council’s Mayor). The Council has recently appointed two new lead members to cover Cllr Will Pascall’s old portfolio: Cllr Cem Kemahli is lead member for the Environment (including parking policy and operations) and Cllr Johnny Thalassites is lead member for Planning and Transport”
“Please see below an email sent to Gurpreet at the Gurdwara last week, regarding the possibility of a meeting with the new Lead Member with responsibility for parking, Cllr Cem Kemahli.”
“It has been difficult to try to get everyone together on a mutually convenient date, however 6 pm on Monday 24th June seems to be the best date where most of the faith groups can attend and we would be happy to host the meeting at the Gurdwara….”
“Thank you for your email and for agreeing to meet with us. As you know we are keen to meet you but I’m afraid that Cllr Kemahli has a prior engagement next Monday evening. He offers that he could meet earlier in the day on the 24th, and also has good availability on the 25th. Would either of these suit? You should also be aware that, as I indicated would happen in my earlier email, the Council has made its decision on the question of the hours of control on residents’ bay. Having taken account of the original consultation responses, the representations received during the February consultation on the traffic orders, and also having conducted an Equality Impact Assessment, the Council has decided to extend the hours of control on residents’ bays in the area indicated in the February consultation…. ….. Whilst I appreciate that this will be disappointing news, please note that there will still be 134 pay and display and single yellow line spaces which will be available for general visitor parking. We are still keen to meet with you to discuss the opportunities we believe exist to increase the number of blue badge bays in the immediate vicinity of buildings used by the faith groups in the affected area and I hope you will be able to meet us on the 24th or 25th June.”
“We are extremely disappointed that the decision has been taken without any regard to the objections made. Can you share a copy of the Equality Impact Assessment? I will check with the other faith leaders on their availability for the suggested dates and times however this would be without prejudice to our objections to the extended hours and that we reserve our rights to challenge this as appropriate.”
“4.1 I am mindful of the objections raised by worshippers who travel into the area and appreciate that this will affect their ability to park close to their places of worship during some of their services. I accept that some worshippers may travel some distance across London in order to worship, but the area is well-served by public transport with an Underground station and National Rail station close by at Shepherd’s Bush and several bus routes passing along Holland Park Avenue and St Ann’s Villas. There are 134 available spaces for general visitor parking in pay and display bays and single yellow line and four existing blue badge bays which will still be available for worshippers to park on …. 4.2 I appreciate that some worshippers are disabled and unable to walk long distances, so I propose that we meet and discuss with each of the faith groups in the proposed area, the opportunities we believe exist to increase the number of blue badge bays in the immediate vicinities of their buildings. 4.3 The full consideration of the faith groups’ objections is contained in the Council’s Equality Impact Analysis attached as Appendix D. 4.4 There are older and disabled residents who may have to walk large distances from their parking location to their property outside the current hours of parking control on residents’ bays. These older and disabled residents must take priority over older and disabled non-residents, who are likely to be impacted by this proposal for only a small proportion of their regular journeys…. …… 4.8 Whilst demand for parking from people shopping at Westfield may diminish over time as a result of a decline in retail shopping, this would take many years to have a significant impact on demand. 4.9 I agree that the extended hours of control on residents’ bays will apply equally to visitors to residents as well as to visitors to other attractions in the area. However, it is clear from the response to the July 2018 consultation that the majority of residents in the area were in favour of the extended hours of control and I cannot ignore their wishes.”
“If any person desires to question the validity of, or of any provision contained in, an order to which this Part of this Schedule applies, on the grounds – (a)that it is not within the relevant powers, or (b)that any of the relevant requirements has not been complied with in relation to the order, he may, within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court ….”
“…I am aware of no authority for the proposition that, where Parliament has prescribed the nature and extent of consultation, a wider duty of consultation may exist at common law (in the absence of a clear promise or an established practice of wider consultation by the decision maker).”
“62….. Even a consultation exercise which is flawed in a number of respects is not necessarily so procedurally unfair as to be unlawful. With the benefit of hindsight, it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test. It must also be recognised that a decision-maker will usually have a broad discretion as to how a consultation exercise should be carried out…. 63. In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went “clearly and radically” wrong.”
“37. The initial burden lies on an applicant to prove the legitimacy of his expectation. This means that in a claim based on a promise, the applicant must prove the promise and that it was clear and unambiguous and devoid of relevant qualification. If he wishes to reinforce his case by saying that he relied on the promise to his detriment, then obviously he must prove that too. Once these elements have been proved by the applicant, however, the onus shifts to the authority to justify the frustration of the legitimate expectation. It is for the authority to identify any overriding interest on which it relies to justify the frustration of the expectation. It will then be a matter for the court to weigh the requirements of fairness against that interest. 38. …… The Board agrees with the observation of Laws LJ in Nadarajah v Secretary of State for the Home Department[2005] EWCA Civ 1363 at para 68: “The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.”
“2. Legitimate expectation Did the letter of29 April 1998 give rise to a legitimate expectation of consultation? This category of case I identified as follows in R v Devon County Council, Exp Baker[1995] 1 All ER 73 , 89: “(4) The final category of legitimate expectation encompasses those cases in which it is held that a particular procedure, not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice. Fairness requires that the public authority be held to it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by way of established practice. R v Liverpool Corpn Ex p Liverpool Taxi Fleet Operators’ Association[1972] 2 QB 299 and Attorney General of Hong Kong v Ng Yuen Shiu[1983] 2 AC 629 are illustrations of the court giving effect to legitimate expectations based upon express promises; Council of Civil Service Unions v Minister for the Civil Service[1985] AC 374 an illustration of a legitimate expectation founded upon practice albeit one denied on the facts by virtue of the national security implications.”
“The justification for [the principle that a public authority is bound by its undertakings] is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty.”
“At that meeting Mr Pascall informed me that in view of the concerns we had made, he would be directing a “moratorium” (his words) in respect to the New Restrictions until the position had been considered further and there had been further consultation with us (and other members of the W11 group). As far as we were concerned the matter was on hold until RBKC came forward with a compromise solution. We did not appreciate that it was prepared to put in place the New Restrictions despite our objections nor that there was any deadline by which this consultation had to be concluded. I have attached at pages 49 to 50 an email from Mr Jagdev which confirms my recollection of the words used by Mr Pascall.”
“At the end of the meeting Councillor Pascal assures is [us?] that he would impose a moratorium on the proposed extension of controlled hours and that nothing would happen until the council had considered the proposed extension further. He assured us that we would remain informed at all stages. I was shocked and surprised to learn that the Council has decided to press ahead with the extension of the controlled hours. Although the timeframe of the moratorium was not set out, I would not have expected a moratorium to end within two months of it beginning. There was no indication whatever to the Gurdwara … that the Council had made this decision.”
“My recollection of the meeting on 2 April with the council is that no decisions would be made about the proposed parking restrictions in Norlands Ward in a hurry. The chairman was emphatic on this point. The impression I took away was that there would be a further period of reflection and – we hoped – transparent consultation.”
“Councillor Pascall may have suggested that there should be a future meeting on site but he did not make a clear and explicit promise to take no further action absent such a meeting. He simply said that RBKC would consider the matter further. That is what happened.”
“1. Members stressed that no firm decision had been made yet regarding how to apply parking charges on Queensdale Rd. It was stressed that officers and Members were keen to look for compromise between the Council and faith groups to ensure fairness.”
“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.”
“82…….There must be a proper regard for all the goals that are set out in [the statute], in the context of the function that is being exercised at the time by the public authority. At the same time, the public authority must pay regard to any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider. What the relevant countervailing factors are will depend on the function being exercised and all the circumstances that impinge upon it. Clearly, economic and practical factors will often be important be important. Moreover, the weight to be given to the countervailing factors is a matter for the public authority concerned, rather then the court, unless the assessment by the public authority is unreasonable or irrational: see Dyson LJ’s judgment in Baker’s case para 34.”
“109. In Bracking v Secretary of State for Work and Pensions[2013] EWCA Civ 1345 , para 26 McCombe LJ summarised the principles to be derived from the authorities on s.149, as follows: “(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence[2006] EWCA Civ 1293 at 274,[2006] IRLR 934 ,[2006] 1 WLR 3213 , 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] EWCA Civ 1293 ,[2006] IRLR 934 ,[2006] 1 WLR 3213 (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) ,[2009] PTSR 1506 , 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 seems to me that the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude” and “In the absence of evidence of a ‘structured attempt to focus upon the details of equality issues’ (per my Lord, Elias LJ in Hurley & Moore) a decision maker is likely to be in difficulties if his or her subsequent decision is challenged”.” “(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence[2006] EWCA Civ 1293 at 274,[2006] IRLR 934 ,[2006] 1 WLR 3213 , 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] EWCA Civ 1293 ,[2006] IRLR 934 ,[2006] 1 WLR 3213 (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) ,[2009] PTSR 1506 , 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”
“There are older and disabled residents who may have to walk long distances from their parking location to their property outside the current hours of parking control on residents’ bays. These older and disabled residents must take priority over older and disabled non-residents because: 1) Residents have to make more trips to and from the Proposed Area than visitors, on average. 2) Older and disabled residents are less likely to be able to deal with a shortage of parking by being dropped off close to their home by a third party than disabled and older visitors. 3) Older and disabled residents who have difficult making car trips because of parking problems will find that all of their car trips outside the hours of control will be affected whereas for visitors its likely to be only a proportion of all their car trips.”
“67. There is no doubting the importance of the public sector equality duty. It was originally enacted in part as Parliament's response to the sort of concerns that had been highlighted by the Stephen Lawrence Inquiry, in theRace Relations (Amendment) Act 2000 . Subsequently the concept was extended to other contexts such as sex discrimination and disability discrimination. Now it applies more generally in the scheme of the Equality Act. 68. However, important as the duty is, it also needs to be recalled that it is a procedural duty and does not control the substance of a public authority's decisions. At times it appeared to me that Mr Hogan's submissions on behalf of the Claimant risked straying into the area of substantive decision-making. For example he eloquently submitted that, although the Defendant had rightly decided to provide more designated parking spaces for disabled people, it had put them in the wrong place. He submitted that the Defendant had simply not asked itself whether the alternative provision could in practice be used by people such as the Claimant. 69. I do not accept those submissions. In my judgment, the Defendant did, in conjunction with Colchester Borough Council, have due regard to the various matters required of it in section 149 of the Equality Act. 70. The Defendant carried out two equality impact assessments, the first in September 2011 and the second in July 2012. Although strictly speaking a public authority is not required to carry one out, the fact that it was provides some support for the view that the public sector equality duty was taken seriously and was performed. Clearly this was no cosmetic exercise, since changes were made by the Defendant in its proposals between the two assessments. … … 76. This was classically a polycentric decision-making context. It was one for the public authority to which Parliament has entrusted such functions, provided of course that it complied with its legal duties. Although the outcome was no doubt disappointing to the Claimant and to others who support the campaign which she chairs, it is important to recall that the public sector equality duty does not require any particular outcome to be achieved by a public authority; rather it imposes a procedural duty (and an important one) to have due regard to various matters in the process by which an outcome is reached.”