R (Buckley) v Bath and North East Somerset Council

The claimant sought judicial review of the defendant council's grant of outline planning permission for regeneration of part of the Foxhill Estate involving demolition of up to 542 dwellings and provision of up to 700 dwellings. The principal legal issue was whether the council had complied with the public sector equality duty in section 149 of the Equality Act 2010 when granting outline planning permission. The court held that section 149 applied to the grant of outline permission, and although many equality-related matters (including demographic and socio-economic information, an equalities impact assessment of the Homesearch allocation scheme and a local lettings plan) were before the decision-maker, the council had not in substance had due regard to the particular impact on elderly and disabled residents of losing homes adapted to their needs. The court therefore found a breach of section 149 and quashed the outline planning permission. The court rejected the other grounds of challenge: it found the officers' report did not mislead committee members about who could be re-housed; the council was not required to treat the reasons for a separate Mulberry Park permission as a material consideration beyond recognising that timing allowed rehousing on Mulberry Park; and the council permissibly treated "viability considerations" in Policy H8 as allowing a net loss of affordable housing where independent viability evidence showed a deficit.

This is a first-instance judicial review challenge to an outline planning permission granted by Bath and North East Somerset Council on 30 November 2017 for part of the Foxhill Estate. The application (submitted by Curo) sought demolition of up to 542 dwellings and replacement with up to 700 dwellings, resulting in a net loss of 204 affordable homes (414 existing affordable homes replaced by 210 proposed affordable homes).

Parties and procedural posture:

• Claimant: Peter Buckley (on behalf of Foxhill Residents Association).
• Defendant: Bath and North East Somerset Council; Interested party: Curo Places Limited (did not appear).
• Permission to apply for judicial review was granted on 16 February 2018; the claim form was issued on 10 January 2018; the hearing took place on 16–17 May 2018; judgment dated 20 June 2018.

Relief sought: The claimant sought to quash the council's grant of outline planning permission.

Issues framed by the court:

1. Whether the public sector equality duty (section 149 Equality Act 2010) applied and, if so, whether it was complied with in granting outline permission (with sub-issues on applicability at outline stage, reliance on Policy H8, substantive compliance and the appropriate remedy if breached).
2. Whether the council was misdirected in believing all existing residents would be re-housed on Mulberry Park or the application site.
3. Whether the council failed to have regard to the purpose underlying the Mulberry Park permission (that affordable housing there was intended as additional supply) when those units would be used to rehouse displaced residents.
4. Whether the council misinterpreted or misapplied "viability considerations" in Policy H8.

Court's reasoning and decision:

• The court held that the public sector equality duty applies to the exercise of the statutory function of granting outline planning permission under section 70 of the Town and Country Planning Act 1990. The outline nature of the permission may affect the content of the duty but does not negate it.
• The court distinguished cases where a policy's adoption itself addresses equality concerns (R (Isaacs)) from the present case: Policy H8 did not on its face perform the function of addressing specific protected-group disadvantages so compliance with Policy H8 did not automatically discharge section 149.
• On the facts, although the planning application materials and officers' report contained demographic and socio-economic information and described rehousing arrangements (Homesearch and a local lettings plan), the council did not, in substance, have due regard to the particular consequences for elderly and disabled residents of losing homes adapted to their needs. No specific equality impact assessment or explicit consideration of section 149 was put before members and the decision-maker was not drawn to these specific equality implications.
• Because the decision was close (committee vote five to four) and alternative options existed, the court could not conclude that compliance with the duty would have been highly unlikely to lead to a different outcome; accordingly the appropriate remedy was to quash the outline planning permission for breach of section 149.
• The court rejected the remaining grounds: the officers' report read as a whole was not misleading about rehousing; the council was not required to treat the reasoning behind the separate Mulberry Park permission as an independent material consideration beyond recognising the practical rehousing opportunity; and the council reasonably treated independent viability evidence as displacing the presumption against net loss of affordable housing in Policy H8.

Remedy: The grant of outline planning permission dated 30 November 2017 was quashed for failure to comply with section 149 Equality Act 2010.

The court quashed the outline planning permission dated 30 November 2017. Rationale: the public sector equality duty in section 149 of the Equality Act 2010 applies to the grant of outline planning permission and, on the evidence before the decision-maker, the council failed to have due regard to the particular impact on elderly and disabled residents of losing homes adapted to their needs. Other grounds (alleged misdirection regarding rehousing, failure to have regard to Mulberry Park's purpose, and misinterpretation of "viability considerations" in Policy H8) were rejected.

First-instance judicial review. Claim form issued 10 January 2018; permission to apply for judicial review granted 16 February 2018. Hearing before Lewis J on 16–17 May 2018. Judgment ([2018] EWHC 1551 (Admin)) delivered 20 June 2018. Not an appeal from a lower court decision.