Buckley, R (on the application of) v Bath and North East Somerset Council & Anor

The public sector equality duty applies when a local planning authority grants outline planning permission. The outline stage may affect the content and scope of the duty, but does not remove it. Applying a policy designed to support housing regeneration does not automatically discharge the duty unless the policy itself addresses the relevant equality considerations. The authority must have due regard to the impact of the proposed demolition on persons with protected characteristics, including elderly and disabled residents whose homes may have particular significance or adaptations. A failure to identify those matters may render the permission unlawful. The statutory remedy restriction applies only where it is highly likely that the outcome would not have been substantially different. A planning authority may rely on viability considerations to justify a net loss of affordable housing where the evidence demonstrates that greater provision is not viable.

The claimant challenged the Council’s grant of outline planning permission for the demolition of up to 542 dwellings on the Foxhill Estate and construction of up to 700 dwellings. Four grounds were advanced: breach of the public sector equality duty; alleged misdirection about rehousing existing residents; failure to consider the purpose of affordable housing at the adjoining Mulberry Park development; and misinterpretation of viability considerations in Policy H8.

The claim continued after the interested party decided not to pursue demolition. The central issues were whether the Council had lawfully considered equality impacts at the outline stage, and whether its planning assessment was legally flawed on the remaining grounds.

1. Public sector equality duty. The grant of outline planning permission is the exercise of a statutory function under Town and Country Planning Act 1990, section 70, so section 149 of the Equality Act 2010 applies. The fact that reserved matters will be considered later may affect the scope or detail of the duty, but does not disapply it.
2. Policy H8 did not itself address the needs of persons with protected characteristics or the impact of demolishing their homes. Compliance with that policy therefore did not automatically discharge the section 149 duty. The Council had considered displacement generally, but had not specifically drawn to the committee’s attention the particular impact on elderly and disabled residents of losing existing homes, including adapted homes.
3. The breach was material. It could not be said that it was highly likely that the outcome would not have been substantially different if the relevant matters had been considered. The permission was therefore unlawful and was quashed.
4. The remaining grounds failed. Read fairly and as a whole, the officers’ report did not mislead the committee about rehousing. The Council was not required to consider the reasons underlying the grant of permission for the separate Mulberry Park development. In any event, the use of affordable housing there to rehouse displaced residents was obvious and had been considered.
5. The Council was entitled to treat viability considerations as outweighing the presumption against a net loss of affordable housing. The evidence showed that the proposed development was financially unviable and could not provide more affordable housing, except through cross-subsidy from Mulberry Park.