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

The duty under Race Relations Act 1976, section 71(1), is a duty to have due regard to the need to promote equality of opportunity, not a duty to achieve that outcome. Whether it has been performed depends on the substance of the decision-maker’s reasoning, rather than on an express reference to the statutory duty. Due regard is that appropriate in all the circumstances, including the seriousness of the inequality and relevant countervailing factors.

In planning cases affecting gypsies and travellers, the need for housing that enables access to education, healthcare and social needs must be considered. It may nevertheless be outweighed by the strong public interest in Green Belt protection. The relative weight is a matter for lawful planning judgment.

Three Irish Traveller families occupied plots at Waldens Farm, Green Belt land in Bromley, after personal temporary permissions granted to earlier occupiers had expired. Bromley refused retrospective planning permission for the retention of their caravans and mobile homes. The Secretary of State’s Inspector dismissed their planning appeals, finding that the considerations favouring the families did not clearly outweigh harm to the Green Belt and its openness.

HHJ Mole QC, sitting in the Administrative Court, dismissed the families’ applications under section 288 of the Town and Country Planning Act 1990 to quash the Inspector’s decision. The families appealed, contending that the Inspector had breached the race-equality duty, failed properly to assess disruption to the Baker children’s education, and wrongly required a special need to occupy Waldens Farm.

1. The appeals were unanimously dismissed. Dyson LJ gave the judgment, with May LJ and Sir Robin Auld agreeing.

2. Section 71(1) of the Race Relations Act 1976 imposed a duty to have due regard to the need to promote equality of opportunity; it did not require the Inspector to secure equality as a result. Due regard meant regard appropriate in all the circumstances. It required attention both to the importance and extent of the disadvantage experienced by the racial group concerned and to countervailing considerations relevant to the function being exercised.

3. Compliance was a question of substance, not form. An express reference to section 71(1) was neither necessary nor sufficient. The Inspector’s decision showed that she had taken account of the appellants’ gypsy status, their need for sites, their restricted alternative accommodation, and the resulting disadvantages in education, healthcare and social needs. She was also entitled to give substantial weight to the Green Belt policies in PPG2.

4. The Inspector was not required to grant temporary permission. She was entitled to conclude that there was no reasonable certainty that the relevant planning circumstances would change, or that suitable alternative sites would become available, by the end of a temporary period.

5. The Inspector had not made proof of a special need to live at Waldens Farm a precondition of establishing very special circumstances. The appellants bore the burden of demonstrating very special circumstances to justify inappropriate Green Belt development. A special need to be on or near a particular site could assist, but its absence did not impose an additional legal requirement. The approach was consistent with The First Secretary of State v Simmons, [2005] EWCA Civ 1295.

6. The Inspector had considered the likely educational disruption to the Baker children. Her assessment of its degree, and of the weight to give it in the overall balance, was neither perverse nor inadequately reasoned.

• Court of Appeal (Civil Division): Appeals dismissed unanimously.
• High Court, Administrative Court: HHJ Mole QC dismissed the appellants’ section 288 applications on 26 September 2007, refusing to quash the Inspector’s decision.