The judgement notes that the relevant decision was passed by a committee of the Council on a democratic vote by a majority of 5 to 4 following a meeting that lasted 3 hours – the judgement also noted that a “very full record of proceedings was kept”.
The judgement noted that the councillors considered the following three sources of information:
(a) Responses to the public consultation exercise that had been conducted in relation to the plan. Some of these were supportive of the need to develop and upgrade the area, but most seem to have been objections. For example, one local trader said this:
“May I kindly request you and all decision makers to carefully consider the Human suffering the loss of achievement, of the Ethnic Minority Businesses in [the area]. I live above my Business with by family, and it is a live and work business concept…I am part of this Diverse local Ethnic minority Community who I serve and depend on my Shop for their unique and specialist Food products that is non available in National Supermarkets.
Demolition will destroy the existing Ethnic Minority Business, the Owners, their families, employees and their suppliers. The owners and their families have built up their existing businesses with many years of hard work and determination, in some cases hard work of three generations of the family. There are a number of traders who live above their businesses and in this case they will be forced out of their homes. The traders will not be able to relocate their business to a new location and be successful due to the poor state of the world economy … The customers and residents will lose their choice of shopping and the specialist shops.”
And, a local community group said this:
“There is no reference in this planning application to the impact on diverse communities and the needs of diverse local communities, including ethnic minority communities. Members of particular minority ethnic communities are being disproportionately disadvantaged by these proposals. Virtually all the businesses that will be ended by the proposals are from ethnic minority communities that provide some ethnically distinct and important services and goods.”
Although none of the consultation responses made express references to Section 71(1) or its goals, in some, like those cited, there was information from which potential race equality and good relations impacts could be inferred. This was a significant point because the council’s barrister accepted in court that this evidence was sufficient to trigger Section 71(1) and, thus, the need to consider the statutory goals.
(b) The Planning Officer’s report – this made reference to the general planning principles applicable to developments of this kind. It referred to the aims outlined in associated urban planning and regeneration policies and plans, but, it made no reference to Section 71(1) or its goals. Despite that omission, the Council’s argument before the court was that its consideration of the associated policies and plans was all that was needed to enable it to comply with the Section 71(1) duty in substance, if not in form. The Council argued that the associated policies and plans incorporated adequate racial equality considerations and that by considering them before granting the planning permission application it was coincidentally and simultaneously considering the substance of the Section 71(1) goals.
For example, one of the associated regeneration plans outlined this aim:
“…a large proportion of minority ethnic communities are concentrated in those parts of the borough where the greatest concentrations of disadvantage are found. Therefore the regeneration initiatives will be targeted at the centre [where Wards Corner is located] and the east to narrow the gap between the east and west of the borough.”
The Council argued before the Court that as the purpose of the associated policies and plans was “to promote acceptable regeneration with the express objective of narrowing the gap between the east and west of the Borough and as a consequence to reduce inequalities experienced by ethnic minority communities. Section 71 considerations effectively merged with the planning considerations…”
(c) The views expressed at the committee meeting – the judgment noted that the following was recorded in the minutes:
“The Committee was informed that the proposed development was unpopular and would not be considered a landmark development. It would have extremely negative impacts on existing local businesses, homes, social amenity and community cohesion. Objections related specifically to loss of longstanding, diverse and viable businesses and jobs, detriment to community cohesion in Tottenham through targeted harm to ethnic minority communities…”
And, the views of one particular councillor, who opposed the plan, were noted:
“…the local traders reflected the rich cosmopolitan mixture of the local community and their businesses responded to the special needs of those communities…these would not be accommodated within the proposed development.”
But, again, no reference to Section 71(1) or its goals was recorded in the minutes.
The application for judicial review was initially considered by a Deputy High Court Judge in July 2009. He rejected the application. He accepted the Council’s argument, noted above, that it had complied with the Section 71(1) indirectly by way of its consideration of and adherence to the associated urban planning and regeneration policies and plans.
The applicant then appealed and the Court of Appeal issued its judgement in June 2010. This note relates only to the latter. The Court of Appeal unanimously reversed the deputy judge’s decision and held that, on the facts, the Council had not discharged the Section 71(1) duty.
In terms of general legal principles, the Court applied those deriving from the Baker case, which was also a case about planning permission. Thus, the Court noted the main Baker principles that (a) the PSED does not impose a duty to achieve a particular outcome, such as the actual promotion of equality of opportunity or good relations, and (b) substance trumps form – “the question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need”.
In relation to the Council’s argument that it could comply with Section 71 indirectly by considering and adhering to other associated policies or plans which coincidentally addressed the same or similar concerns, the Court accepted that this could sometimes be sufficient, at least in principle – although, it rejected the Council’s argument on the specific facts of this case. In doing so it followed principles outlined in Baker and in a similar case, Isaacs.
The facts in Baker and Isaacs were similar - in both it was alleged that two councils had failed to comply with Section 71(1) when refusing to grant planning permission to groups of Irish Traveller/Gypsy families to develop certain “green field” sites into permanent caravan sites. In both cases, the relevant decision-makers had omitted to include any express references to Section 71(1) and its goals in their decision-making processes. Yet they did consider and adhere to the Government’s national guidance on Gypsy and Traveller sites, Circular 01/2006. Its purpose was to achieve a significant increase in the number of such sites in appropriate locations. It included a procedure designed to achieve this. It envisaged that local authorities would first assess gypsy accommodation needs through the Gypsy and Traveller Accommodation Assessment (GTAA). From that assessment they would determine the number of pitches that were required and feed that into a Regional Spatial Strategy. Modified pitch numbers would then be notified to each local authority who would then be required to identify a specific site to match the numbers.
In both cases the relevant paragraphs of the Circular were analysed by the courts with a view to considering whether complying with them in substance discharged the duties in section 71(1). It was held in each case that the duty had been discharged. Elias J stated, at paragraph 53 in Isaacs:
“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.”
When applying these principles to the facts of the Harris case, the Court of Appeal was not convinced that the Council had done enough.
The decision of the Court was given by Lord Justice Pill – his conclusion was as follows:
37. I am satisfied that, on the material before the council, there was sufficient potential impact on equality of opportunity between persons of different racial groups, and on good relations between such groups, to require that the impact of the decision on those aspects of social and economic life be considered. This was not a planning application, as [the Council] accepted, in which the impact of the decision on section 71 considerations was so remote or peripheral that the substance of the duty could be ignored. I have referred to the representations made to the council during the decision making process. They do raise issues to which the section is capable of applying. Concerns about Latin American traders or loss of housing by ethnic minorities, for example, were expressed though the representations were not put in the context of the specific statutory criteria.
38. The lack of focus in this case has to some extent affected all parties. Neither the objectors nor the council focused on the specific statutory considerations. The council argued that because the development would, as required by [the associated urban regeneration] policies, assist that part of the Borough where a large proportion of minority ethnic communities are concentrated, the duty is discharged. Some of the contrary submissions appear to me to be based on the premise that the section requires promotion of the interests of a racial minority or racial minorities. It does not; the requirements are of a specific nature; due regard to the need to promote equality of opportunity and good relations between persons of different racial groups. Neither aim is necessarily achieved by a proposal which may promote the economic interests of a particular racial group, even a deprived group. The subsection operates in a more nuanced way than has at times been advocated. The promotion of equality of opportunity and good relations between persons of different racial groups [my emphasis] is not the same as the promotion of the interests of a particular racial group or particular racial groups, though the two will usually be interrelated.
39. I have come to the conclusion that the section 71(1) duty was not discharged by the council when granting this planning permission. The case is distinguishable from Baker and Isaacs where policies had been adopted in a Circular whose very purpose was to address the issues addressed in section 71(1). It cannot be said that the policies cited in this case were focused on specific considerations raised by section 71. The council policies to which reference has been made may be admirable in terms of proposing assistance for ethnic minority communities, and it can be assumed that they are, but they do not address specifically the requirements imposed upon the council by section 71(1).
40. Not only is there no reference to section 71 in the report to committee, or in the deliberations of the committee, but the required ‘due regard’ for the need to “promote equality of opportunity and good relations between persons of different racial groups” is not demonstrated in the decision making process. “Due regard” need not require the promotion of equality of opportunity but, on the material available to the council in this case, it did require an analysis of that material with the specific statutory considerations in mind. It does not, of course, follow that considerations raised by section 71(1) will be decisive in a particular case. The weight to be given to the requirements of the section is for the decision maker but it is necessary to have due regard to the needs specified in section 71(1). There was no analysis of the material before the council in the context of the duty.
41. I would allow the appeal and quash the permission.
42. I reach that conclusion with some regret because of the general desire in the Borough for regeneration of this area, because of the amount of public and private resources expended on this proposal and, because the council, subject to section 71 considerations, followed a thorough and fair procedure which led, albeit by a bare majority, to a democratic decision. Though I hope it does not, the quashing of the permission may lead to a long delay in the regenerative process in the Borough. The issues which arose on this planning application were, however, such that it was necessary for the requirements of section 71 to form in substance an integral part of the decision making process and I am unable to hold that they did.