Harris, R (on the application of) v Haringey

In a planning decision, predisposition is legitimate but predetermination is not. The objective question is whether a fair-minded and informed observer, aware of the full facts, would see a real possibility that the decision-maker had a closed mind. Clear pointers are required, having regard to the timing and context of statements, their relation to policy, and the member’s conduct when the decision is made.

The duty under section 71(1) of the Race Relations Act 1976 is contextual and concerned with substance rather than formula. It may be met without an express statutory reference or a formal equality impact assessment where adopted policies and the decision-making material have properly addressed the relevant racial, social and cultural effects.

The claimant sought judicial review of Haringey’s grant of planning permission for the comprehensive mixed-use redevelopment of Wards Corner, Tottenham. The scheme involved demolition of the existing buildings and replacement residential, retail and other commercial uses.

Two grounds remained. First, the claimant alleged apparent bias through predetermination by the chair of the planning committee, whose vote was decisive. Secondly, she alleged that the Council had failed to comply with its race equality duty because the scheme could adversely affect black and minority ethnic residents, businesses and the Latin American market.

The application for permission and the substantive claim were heard together on an expedited basis.

1. Permission was granted, but the claim was dismissed. The first ground failed because the evidence did not establish clear pointers that the committee chair had a closed mind when the planning application was determined.

2. The court applied the distinction drawn in R (on the application of Kevin Paul Lewis) v Redcar & Cleveland Borough Council [2008] EWCA Civ 746. Elected councillors may hold and express views on planning policy. Apparent predetermination arises only where the fair-minded and informed observer would see a real possibility that the member’s mind was closed to the planning merits.

3. The chair’s earlier comments favouring demolition were made well before the application was determined and were consistent with a policy framework that contemplated demolition. They did not show that she had abandoned an open mind on whether a particular scheme should receive permission. Her earlier criticism of aspects of the proposed design, the breadth of planning considerations, and her procedural conduct at the committee meeting all pointed away from predetermination.

4. The second ground also failed. Under section 71(1) of the Race Relations Act 1976, due regard is the regard appropriate in the circumstances. Following Baker v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, compliance depends on the substance of the decision and its reasoning, not on an express statutory reference or a formulaic process.

5. The Council’s regeneration policies, its consideration of consultation responses, the committee material, and the treatment of the market and local businesses demonstrated that it had addressed the racial, cultural and social consequences of the proposal. A formal equality impact assessment was not required on these facts. The claimant was ordered to pay the defendant’s costs, to be assessed if not agreed.

Administrative Court: Following an order of Sir Thayne Forbes, the claimant’s application for permission and substantive judicial review claim were heard together. Permission was granted, but the claim was dismissed. The deputy judge refused permission to appeal and directed that any application be made within 14 days after receipt of the expedited approved transcript.