Devonhurst Investments Limited, R (on the application of) v Luton Borough Council

A local planning authority has a broad discretion whether to take enforcement action. In deciding expediency, it must weigh the advantages and disadvantages of the available options against the public interest, including whether the gain is worth the cost.

The Public Sector Equality Duty requires a conscious, rigorous and fact-sensitive assessment of equality impacts. Its implied duty of reasonable enquiry is subject to review on Wednesbury grounds, and the authority decides the nature and intensity of the enquiry. In a delegated planning decision, an officer’s report is not subject to more exacting scrutiny than a report to a committee.

Section 11 of the Children Act 2004 requires regard to children’s welfare, but does not ordinarily require investigation of each child’s individual circumstances.

The claimant sought judicial review of Luton Borough Council’s decision to issue an enforcement notice concerning the conversion of an employment site into residential accommodation. The notice required cessation of the residential use, demolition of structures and removal of residential fixtures.

Permission was granted on grounds alleging failure to comply with the Public Sector Equality Duty, failure to have regard to children’s welfare and residents’ article 8 rights, and failure to apply the statutory expediency test under section 172(1)(b) of the Town and Country Planning Act 1990.

The central issues were whether the Council had made sufficient enquiries and properly evaluated equality, welfare and human-rights impacts, and whether it had failed to consider material matters when deciding that enforcement action was expedient.

1. Delegated officer’s report. The principles governing scrutiny of a planning officer’s report apply equally where the decision is delegated. The court should read the report with reasonable benevolence and should intervene only for a material defect which may have affected the decision. A delegated report does not require more intense scrutiny merely because the decision-maker does not bring independent committee knowledge to bear.
2. Public Sector Equality Duty. Section 149 of the Equality Act 2010 imposed a duty to have due regard to the statutory equality objectives. The duty was one of process, not outcome. Its implied duty of reasonable enquiry was an application of the Tameside duty and was reviewable only on Wednesbury grounds. The Council had sufficient information about the number and nature of the occupants, the temporary character of the accommodation, vulnerability, children, schooling, health, employment and potential homelessness. It was not required to identify the protected characteristics and individual circumstances of every resident.
3. The Council had properly appreciated both the adverse effects of displacement and the positive equality implications of ending accommodation which it reasonably regarded as highly deficient and harmful. The equality ground therefore failed.
4. Article 8 and children. Under section 7 of the Human Rights Act 1998, the claimant landlord was not a victim of any alleged breach of the residents’ article 8 rights and had no standing to advance that claim. In any event, no article 8 violation was established and the decision was necessary and proportionate on the evidence. Section 11(2) of the Children Act 2004 required regard to safeguarding and promoting children’s welfare. It did not require investigation of each child’s individual needs in this context. The Council had sufficiently considered the positive and negative effects on children.
5. Expediency and relevant considerations. Section 172(1)(b) required the Council to decide whether enforcement action was expedient, having regard to the development plan and other material considerations. Informal historic comments by a planning officer and a housing officer’s assessment of one flat were not so obviously material that they had to be considered. The Officer’s Report lawfully addressed expediency.
6. The claim was dismissed.

First-instance judicial review. The judgment states that the claimant had separately appealed against the enforcement notice under section 174 of the Town and Country Planning Act 1990; that statutory appeal was not determined in these proceedings.