Fraser, R (On the Application Of) v Shropshire Council

The claimant challenged two grants of planning permission for an extra care residential development at Pauls Moss, Whitchurch, principally on grounds about alleged insufficient open space and alleged failures under the Equality Act 2010 (direct/indirect discrimination and the public sector equality duty). The court held that Policy MD2 (SAMDev) requires a planning judgment on both quantity and quality of open space rather than a rigid, purely quantitative rule; where a quantitative shortfall exists the decision-maker may lawfully balance that shortfall against qualitative merits and wider material considerations under section 38(6) of the Planning and Compulsory Purchase Act 2004. The court found no material legal error, irrationality or material factual mistake in the decision on the Third Application, and concluded the public sector equality duty (section 149 EA 2010) and discrimination principles had been considered and were not breached. The JR2 claim was dismissed and JR1 was rendered academic for relief purposes.

Background and relief sought:

• The claimant sought judicial review of two planning permissions granted by Shropshire Council to The Wrekin Housing Trust for an extra care development at Pauls Moss. The central complaint was that the permitted scheme did not provide adequate open space for the intended residents. The claimant advanced five grounds: (1) misinterpretation of Policy MD2 (open space requirement), (2) inconsistency with the council's earlier refusal, (3) failure to have regard to material considerations / material error of fact / irrationality, (4) direct or indirect discrimination on grounds of age or disability, and (5) breach of the public sector equality duty under section 149 of the Equality Act 2010.

Procedural posture:

• JR1 challenged the decision dated 18 October 2019 (second application). Permission on two grounds was granted to continue JR1; a materially identical later permission (the Third Application, decision dated 28 May 2020) was granted and challenged in JR2. The two claims were heard together on a rolled-up basis; the hearing determined JR2 and the consequences for JR1.

Issues framed by the court:

1. Whether Policy MD2 of the adopted SAMDev plan must be interpreted as imposing a mandatory minimum of 30 sqm per person that cannot be offset by qualitative considerations.
2. Whether the council acted inconsistently between its treatment of the refused First Application and the later approvals.
3. Whether the decision contained material factual errors, omitted material considerations, or was irrational in its assessment of open space quality and usability.
4. Whether the grant of permission amounted to direct or indirect discrimination on grounds of age or disability contrary to the Equality Act 2010.
5. Whether the public sector equality duty (section 149 EA 2010) had been lawfully discharged.

Court's reasoning and conclusion:

• The court held that paragraph 5 of Policy MD2 requires a planning judgment considering quantity and quality of open space holistically; the policy does include a quantitative benchmark (30 sqm per person) but its application requires assessment of what areas properly count as open space and the qualitative function of the spaces provided. The policy and its explanatory text are to be read sensibly and not as imposing an inflexible rule that precludes weighing quality and other planning considerations.
• Differences in the schemes (notably retention of Pauls Moss House and creation of an enlarged public plaza) meant the First Application and the later applications were materially different; the council was entitled to reach a different planning judgment on the redesigned proposals. Alleged inconsistencies did not demonstrate unlawfulness.
• No material factual error was shown that vitiated the decision. Minor descriptive imprecisions in the officer reports did not mislead members in a material way. The officers and members had sufficient materials to assess open space usability and quality and to exercise planning judgment.
• The council expressly considered whether the open space was acceptable irrespective of the intended occupants and concluded it was; on the evidence the decision was not motivated by impermissible age or disability-based less favourable treatment. Indirect discrimination was not established because the decision was not a provision, criterion or practice applied to the claimant’s detriment in the way alleged that could not be justified.
• The public sector equality duty had been considered in substance: members were directed to the duty and officers addressed relevant equality considerations and the potential benefits of the scheme for extra care residents. No failure to have due regard was demonstrated.

Result: permission granted to proceed on JR2 but the substantive JR2 claim was dismissed; JR1 was, in practical terms, academic given the lawful fresh decision on the Third Application.

The claims are dismissed. The court dismissed the judicial review claim against the Defendant’s grant of planning permission for the Third Application (JR2) on all five grounds because the planning authority lawfully exercised planning judgment under Policy MD2 (balancing quantitative shortfall against qualitative merits and other material considerations), did not commit a material factual error or irrationality, and properly considered equality and discrimination issues under the Equality Act 2010. In light of JR2’s outcome, quashing relief in JR1 was not appropriate and JR1 was rendered largely academic under section 31(2A) Senior Courts Act 1981.