Baker & Ors, R (on the application of) v Secretary of State for Communities & Local Government & Ors

The duty under section 71(1) of the Race Relations Act 1976 requires due regard to equality needs, rather than achievement of a particular outcome. Due regard depends on the importance and extent of racial disadvantage and the countervailing considerations relevant to the decision-maker’s function. Compliance is assessed through the substance of the decision and its reasoning. Express reference to the duty is good practice, but neither necessary nor sufficient for compliance. The duty applies whether or not a party raises it.

In planning decisions, equality needs must be weighed alongside Green Belt policy. Establishing very special circumstances does not invariably require a special need to occupy the particular site. Educational disruption and personal ties are considerations whose weight falls within lawful planning judgement.

The appellants, whose gypsy status was accepted, occupied three plots at Waldens Farm within the Green Belt. They sought permission to retain touring caravans and mobile homes after earlier permissions, personal to previous occupiers, had expired. The London Borough of Bromley refused permission. An inspector appointed by the Secretary of State dismissed their planning appeals after balancing Green Belt harm against accommodation needs, personal circumstances and other considerations.

HHJ Mole QC, sitting in the Administrative Court, dismissed their statutory challenges under section 288 of the Town and Country Planning Act 1990. They appealed on educational disruption and the inspector’s treatment of location needs. They also advanced a new ground alleging failure to discharge the racial equality duty. The Equality and Human Rights Commission intervened. The central issue was whether the inspector had substantively discharged that duty despite making no express reference to it.

The appeals were dismissed unanimously. Dyson LJ’s reasons were adopted by Sir Robin Auld and May LJ.

1. The duty under section 71(1) of the Race Relations Act 1976 applied independently of whether a party invoked it. Promotion of equality of opportunity concerned substantive disadvantage and required consideration extending beyond the absence of unlawful discrimination. The statutory obligation was to have due regard to the need to achieve the specified goals. It did not require a particular outcome.

2. Due regard meant regard appropriate to all the circumstances. Relevant considerations included the importance of the affected areas of life, the extent of inequality and countervailing factors relevant to the decision-maker’s function. The appellants’ housing, educational and healthcare disadvantages were substantial. Green Belt protection was nevertheless a powerful countervailing consideration. The weight accorded to these matters was for the inspector’s planning judgement.

3. Compliance depended on the substance of the decision and its reasoning. Express statutory language was neither necessary nor sufficient. The approach stated in The Queen (on the application of Lisa Smith) v South Norfolk Council was accepted and applied. The inspector’s favourable treatment of gypsy status, unmet site needs and unavailable accommodation demonstrated substantive compliance. Awareness of the statutory provision itself was immaterial. Express reference to the duty and relevant guidance was, however, good practice.

4. The Code of Practice did not materially amplify the duty for these appeals. Its guiding principles had been respected in substance. Its suggested assessment questions were permissive, and the inspector’s approach addressed their substance. The equality duty did not require temporary permission. The refusal of temporary permissions was lawful, having regard to uncertainty over future site provision and the other planning considerations identified.

5. The inspector had recognised possible disruption to the Baker children’s education. Earlier interrupted schooling did not compel a finding that the same pattern would recur. Her assessment and the weight she gave educational disruption were neither perverse nor inadequately reasoned.

6. The applicants had to establish very special circumstances sufficient to justify inappropriate Green Belt development. A special need to occupy the particular plots was not a prerequisite. Particular ties could contribute to satisfying that burden. Where a special need for a particular area was relied upon, reasonably nearby alternatives could be relevant. This approach was consistent with The First Secretary of State v Simmons. Strong personal need and an absence of viable alternatives did not compel permission.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 141 , unanimously dismissed the appeals and upheld the dismissal of the statutory challenges.
• High Court, Queen’s Bench Division, Administrative Court: HHJ Mole QC, sitting as a deputy High Court judge, dismissed the applications under section 288 of the Town and Country Planning Act 1990 on 26 September 2007. No citation was supplied.
• Secretary of State’s inspector: On 8 November 2006, dismissed three appeals against Bromley’s refusal of planning permission, including the proposals for temporary permission.
• London Borough of Bromley: Refused the applications for planning permission on 24 October 2005.