Re Toner [2017] - Section 75 and developing a public realm scheme in Lisburn
Case Summary
2008 – 2010
1. The Council received a report proposing the regeneration of Lisburn City’s central area via a Public Realm Scheme. The report recommended that the area be pedestrianised using a “shared space” concept under which the roads and adjacent pavements would be “flush” i.e. on the same level without kerbs.
2. The Council appointed an external consultant to prepare concept design work of the plan for the purposes of an economic appraisal. As part of this work, disabled peoples’ representative organisations, including those representing visually impaired people were consulted.
3. The consultant noted their concerns that: “The key issue…was that in public spaces blind users require navigational aids and that, for those who use a stick, kerbs were important for this purpose”, and took the view that in Lisburn the pavements and adjacent roads should not be flush, as initially anticipated, but that they should be separated by kerbs of 30mm in height.
4. The initial feedback received by the consultant from the disabled peoples’ representatives indicated that all but one of them would be fairly satisfied with a kerb height of 30mm. One objector, however, supplied the consultant with a research report published in 2009 by University College London. It was based on experiments conducted with 36 blind and partially sighted persons at London’s Pedestrian Accessibility Movement and Environment Laboratory.
5. The findings of this report indicated that “a kerb height of 30mm height was not sufficient to be reliably detected by blind and partially sighted people.” Its main recommendation was in favour of kerb heights of 60mm and above because that “induced the greatest confidence in what they were and what they signalled” for users. It also recommended that consideration should be given to avoiding kerb heights of less than 40mm.
6. The consultant told the court that he reviewed the research report but that he did not agree with its findings or recommendations and had concerns about its methodology, amongst other things. For example, the consultant noted that it was an examination of the interests and needs of blind and partially sighted people only and not of those of any other group of disabled people. The consultant also felt that the reported difficulties experienced by the study’s participants were exacerbated by the “indoor” conditions of the test and felt that in a real world test those difficulties would be reduced or eliminated by the presence of other navigational aids present in a normal streetscape; e.g. shop fronts, street furniture, other pedestrians, coloured and tactile paving.
7. Significantly, the consultant did not inform the Council or its officers about the research report or his opinion of it at this time or thereafter. (The Council’s officers received a copy of the report in May 2014 (see below), but by that stage the Council had already made the decision to proceed with the Public Realm Scheme plan as proposed by the consultant and the work to build it had already begun).
2010 – 2011
8. The consultant submitted his report to the Council who approved the plans for the Public Realm Scheme. The consultant was appointed as the lead consultant for the Scheme.
2012 – October 2013
9. Between March and May 2012 the Council ran a public consultation on its Public Realm Scheme Plans. The Court accepted that consultees, including the Applicant, Ms. Toner, and other disabled peoples’ representatives, were informed both verbally and in writing that the new kerbs would be at a height of 30mm. The consultees did not respond unfavourably to the proposal at this time.
10. In July 2012 the Council applied for planning permission. One of the consultees to that process, the Road Service (now Transport NI) considered that the kerb height of 30mm was acceptable. With no objections, planning permission for the Scheme was granted in January 2013 and the building work commenced in June 2013.
11. The Court noted that the Council conducted a Section 75 screening exercise on the Public Realm Scheme Plans and decided to “screen out” the proposal, and not conduct a full equality impact assessment (EIA). The Court was informed that “the need for EIA was screened out because of the absence of material from the consultation exercise which highlighted any significant impact of the scheme on the position of the disabled.”
12. The Court criticised the screening exercise as being “not worthy of the name”. The court noted that if the right question had been asked “in relation to the impact of the proposals on the position of the blind and partially sighted, it is difficult to see how this would not have led to a consideration by the Council of the UCL research – which [..] had been aware of since at least 2010.”
13. The Court noted, however, that it would not have been enough simply to pass the University’s Research Report to the Councillors. There would also have been an onus on Council officers to analyse the findings in the context of the Section 75 duty and to advise the Councillors accordingly. As the Court noted, the matter did not end there – the duty is also a continuing one.
October 2013
14. In October 2013 a seminar on the subject of urban regeneration and accessibility was held in Lisburn, at which the Council’s consultant attended and gave a presentation on the Lisburn Public Realm Scheme, noting the proposal to have kerb heights of 30mm.
15. The Applicant and other representatives of visually impaired persons also attended this event and a debate ensued about the implications of the kerb proposal. One representative specifically referred to the University College London’s research paper and sought further discussions with the consultant and the Council.
January to May 2014
16. In this period the disabled peoples’ representatives succeeded in raising awareness of the Research Report with some elected representatives and Council officers. The latter received a copy of the report on 9 May and concluded that any change to the Scheme would have to be authorised by the Councillors and hence, referred the matter to them.
16 June 2014
17. The matter was brought to a Sub-Committee of the Council and representatives of two disability organisations spoke to the Committee raising points about the Research Report. Council officers also reported to the meeting and noted that a public consultation on the proposals had occurred and that views were taken from disabled peoples’ representatives. They noted that the building work was substantially completed and that there would be financial costs to changing the plans now. The Court found that “it is clear from the tenor of the report overall that officials did not favour change in relation to the kerb height.”
18. The Sub-Committee decided to recommend continuing with the original Scheme and to keep the kerbs at the 30mm height.
25 June 2014
19. The full Council met and considered the Committee’s recommendation and decided to adopt it.
22 October 2014
20. The Sub-Committee considered the matter again in October 2014, specifically with a view to deciding whether to conduct another public consultation exercise about the Scheme. The reports from Council officers highlighted the considerable amount of work and funds that would be needed to redesign and rebuild the kerbs. While the officers made no specific recommendation, the Court found that it was an “unmistakably negative report from the point of view of those who sought to have a further consultation exercise commenced.”
21. The Committee affirmed its original decision to maintain the kerb heights at 30mm and rejected the proposal to have another consultation exercise.
28 October 2014
22. The full Council met to consider the Sub-Committee’s recommendation. It decided to adopt it.
23. The Court gave credit to the Council for reacting to the information and views of the disabled persons’ representatives by being open to referring the matter to the Councillors for further consideration. However, the Court criticised the Council for not seeming “to have been alive to [the] continuing duty under section 75. At this stage…there is no evidence of substance to suggest that the problem was being identified as related to the performance of the public sector equality duty.”
The Court noted:
“The matter should have been revisited with the public sector equality duty in mind and Council officials should have prepared for councillors advice in relation to the performance by it of its duties in this regard. A conscious approach to section 75 was required at this stage and officials should have appreciated the need for councillors to receive advice on the equality aspect of the matter now before them, which would have included or be likely to include an analysis of the UCL research and an assessment of the impact of the 30mm kerbs on the position of blind or partially sighted persons.”
Remedy and Aftermath
24. Having found that the Council was in breach of its duty under Section 75, the Court exercised its discretion to quash the decisions taken by the Council in June and October 2014 to continue with the Public Realm Scheme with kerb heights of 30mm. In the Courts view this would “open the way for the matter to be reconsidered, in the manner already described, with full compliance with the section 75 duty.”
The court further noted:
“[The duty] still can be performed. If the duty was properly performed, it is conceivable that it may make a difference to the outcome, though equally the [Council and its committee] may ultimately reach the same decision as before. It is a matter for them, subject to the lawful performance of the duty.”
25. The Council did not appeal the judgment of the court. Instead, it decided to carry-out an independent investigation of the entire scheme and its procedures. An independent consultant has also been appointed to carry-out a separate equality impact assessment into the scheme. At the time of writing these exercises have not concluded.