Planning and the Public Sector Equality Duty: A reminder

Local planning authorities, like other public bodies, are subject to the Public Sector Equality Duty (PSED) duty in section 149 of the Equality Act 2010. Section 149 states, among other things, that

(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 the 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.

….

(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 -

• remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

• 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;

• encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

….

(5) Having due regard to the need to foster good relations 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) tackle prejudice, and

(b) promote understanding.

The protected characteristics referred to in the Act are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Planning decisions are primarily about the development and use of land, not about who is using it. Planning permissions bind and pass on with the land. Within the planning statutory code, the protected characteristics may not be directly relevant but may be indirectly relevant as part of personal circumstances. However, the PSED applies directly to all planning functions and decisions.

As can be seen by the wording of section 149, the PSED is a duty to have ‘due regard’ to the various needs/goals in section 149 – to eliminate discrimination, advance equality of opportunity, foster good relations between groups and so on. Due regard has been defined by various judgements and commentators as giving proper and conscientious focus to those equality goals. The duty does not require the public authority decision maker to achieve any particular outcome. The authority has to be properly informed about the equality implications about a decision and much like planning decisions, as long as the decision maker has considered the relevant aspects of the PSED, they can decide what weight to give each of the various relevant factors of the decision including the equality implications without the court’s interference.

The principles in the decision of R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) have become defining guidelines for the exercise of the PSED. They state that the PSED:

• must be appreciated by the policy or decision-maker and all relevant material must be analysed;
• must be taken into account consciously, before and at the time a particular policy is considered, as well as at the time a decision is taken;
• cannot by satisfied by justifying a decision after it has been taken;
• should be exercised in substance, with rigour and an open mind in such a way that it influences the final decision—it should be integrated into the decision-making process rather than merely serving as a box-ticking exercise. However, the fact that Section 149 has not been specifically mentioned in carrying out the particular function where it is to have due regard is not determinative of whether the duty has been performed;
• is non-delegable—it will always remain the responsibility of the body subject to the duty;
• In practice, if a third party is carrying out the practical steps to fulfil a policy of the body subject to the duty, then the body can satisfy the duty if:
  • the third party is capable and willing to fulfil the duty, and;
  • the decision-maker properly supervises the third party to ensure it carries out the duty
• is a continuing duty;
• should be reconsidered if new information comes to light—adequate records should be kept of the consideration and the decision-making processes undertaken to demonstrate that the equality duties have been undertaken conscientiously.
• It is good practice to refer to the duty and any considerations (to include any non-statutory guidance) in the decision making process to avoid future legal challenge.

The Equality and Human Rights Commission (EHRC) has produced guidance on the PSED, dealing with such issues as deciding whether PSED applies, considering potential impacts and liaising with impacted groups.

A failure by a local public authority to comply with its PSED is a legal error and the resulting planning decision can be judicially reviewed. As with many public functions, there is no private cause of action for failure of an authority to comply with its PSED.

The enforcement powers of the EHRC apply to enforcement of the PSED. By virtue of section 31 and Schedule 2 of the Equalities Act 2006, the EHRC has powers to assess compliance of a public sector’s compliance with section 149. Where the EHRC identifies non-compliance with equality obligations, it can issue a compliance notice requiring compliance with the relevant duty, and information to be provided on the steps that need to be, or have been, taken to ensure compliance. The EHRC can then apply to the courts for an order requiring the public authority to comply with the notice.

After some (modest) research, I have been unable to identify an example of the use of the EHRC’s in relation to a planning matter. There are however many examples of planning decisions being judicially reviewed on grounds of failures relating to an authority’s PSED. Recently, in June 2022, the judgement in of R (Hough) v Secretary of State for the Home Department [2022] EWHC 1635 provided a useful summary of the rules surrounding this duty and a practical example of how that duty should be exercised.

The judgement relates to the judicial review of the Secretary of State’s decision to extend the use of a Ministry of Defence (MOD) property, Napier Barracks in Kent, to house asylum seekers. The facts of the case and the grounds of judicial review are fairly complex. The barracks are part of a former military camp and the camp is subject to an agreement with a national housebuilder and planning permission for a phased development for housing, the effect of which is that Napier Baracks would be developed at a later stage and the MOD would retain ownership over the barracks until 2026.

Since September 2020, by virtue of the permission under part Q of Part 19 of the permitted development order (development by or on behalf of the Crown for various purposes relating to an emergency), Napier Barracks had been used as accommodation to house asylum seekers for a temporary period of 12 months. An Equality Impact Assessment (EqIA) was produced on 20 September 2020 for use of the barracks as asylum seeker accommodation until September 2021. In August 2021, the MOD agreed to extend the use of the barracks for this purpose until March 2025 and planning permission for this was granted via a special development order (SDO) – the Town and Country Planning (Napier Barracks) Special Development Order 2021/962.

A claim for judicial review was issued by a person who had been running a drop-in centre at the barracks on a number of grounds relating to the environmental assessment for the SDO, procedural requirements and failure of the Secretary of State to comply with its PSED. One of the underlying reasons for the PSED grounds was that the claimant felt that a EqIA which was produced for the temporary permission was for inadequate for the longer term SDO.

The caselaw highlighted by the judgement (and reproduced in the Encyclopaedia of Planning Law bulletin) gives a good indication of what the courts expect in the exercise of authority’s PSED:

The court quoted from the case of R (Bridges) v Chief Constable of South Wales Police [2020] 1 WLR 5037:

“‘We acknowledge that what is required by the PSED is dependent on the context and does not require the impossible. It requires the taking of reasonable steps to make enquiries about what may not yet be known to a public authority about the potential impact of a proposed decision or policy on people with the relevant characteristics, in particular for present purposes race and sex.”

The focus is on making a concerted effort to understand the impact of a decision. This will involve authorities being alert to objections which raise the issue of its PSED and also being alert to the need to seek more information in appropriate circumstances – all of which involve the open mind as stated in the next part of the quote from Bridges.

“(1) The PSED must be fulfilled before and at the time when a particular policy is being considered. 

(2) The duty must be exercised in substance, with rigour, and with an open mind. It is not a question of ticking boxes. 

(3) The duty is non-delegable. 

(4) The duty is a continuing one. 

(5) 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. 

(6) Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision-maker to decide how much weight should be given to the various factors informing the decision.”

The absence of the court’s power to interfere in the weight which the public authority gives to the PSED considerations is dealt with again in R (Hurley) v Secretary State for Business Innovation and Skills [2012] EWHC 201 where the court states:

“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.”

The court also refers to the case of R (End Violence Against Women) v Director of Public Prosecutions [2021] 1 WLR 5829 where it states that the PSED “does not dictate a particular result”, “does not require an elaborate structure of secondary decision” every time the PSED is engaged, “however remotely” and it is a question of “whether in substance” section 149 has been complied with.

Caselaw examples of when the PSED is relevant in planning matters include redevelopment of facilities used by elderly or disabled people. In one case (R. (Coleman) v Barnet LBC [2013] Eq. L.R. 223), the court held that the Council had due regard to its PSED as the officer’s report to planning committee demonstrated that Council officers and members were aware of the duty under section 149. The PSED was identified as a key issue and the report contained all the relevant information and correctly advised members as to the PSED.

Conversely, in another case (LDRA Ltd v Secretary of State for Communities and Local Government [2016] EWHC 950 (Admin), an inspector’s appeal decision was quashed as his decision letter gave no indication that they had considered the factors in section 149. The decision related to the grant of planning permission for an office and warehouse building on a car park owned by the Council next to the River Mersey. The equalities issue was the car park and the access it gave to the river, which was used and valued by disabled people.

In (R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, a group of Irish travellers challenged a decision by the planning inspector to refuse planning permission to pitch caravans in the Green Belt. Although the planning inspector made no explicit reference to the Act, it was determined that they had shown due regard to PSED through their consideration of the duty to promote equality of opportunity between the settled and travelling communities. Accordingly, the challenge failed. However, the Court judged that it was good practice to make such reference to the Act and to all other relevant material including the Code of Practice, observing: "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."

Similarly, in R (Danning) v Sedgemoor [2021] EWHC 1649 (Admin), the court decided that the Council had failed to consider the impact of a proposal to convert a pub into residential development on groups with protected characteristics. The judgement did not identify a particular protected characteristic but focused on the lack of community consultation, the lack of consideration regarding equalities and the assumption that there would be no equalities impact because the pub had been closed for some time.

Going back to the Hough decision, the court accepted that the PSED was clearly engaged and that the Secretary of State had failed to comply with it. As the claimant put it, housing of a large number of asylum seekers separately from the local population created obvious and significant equalities issues like the capacity to attract potential victimisation and harassment as well as create tensions with the local community. The court decided that the EqIA which had had been carried out in relation to the 12-month permission was insufficient for the longer 5-year permission. The court also stated that the lack of assessment of PSED impacts for the longer term permission meant that there was no consideration of steps which could be taken to mitigate such impacts.

Whether it is a planning permission which effectively removes a facility or amenity used by people with protected characteristic, a refusal of planning permission which will affect efforts to remove or alleviate barriers connected to a protected characteristic or a formulaic approach by a planning decision in respect of equalities, the PSED is often scrutinised in planning decisions. We deal with PSED and the issue of protected characteristics in a range of planning and CPO cases and can, together with our public law, team provide advice and help in this area.