Kara Tobin v The Welsh Ministers & Anor

The public sector equality duty requires a decision-maker to give conscientious and context-sensitive consideration to the statutory equality needs. The required rigour depends on the nature of the decision. In a focused planning appeal concerning a particular property, it does not necessarily require inquiry, consultation, detailed analysis or express reference to every equality impact. The duty is one of process and does not dictate the result. The decision-maker determines the weight given to equality considerations and competing planning factors, subject to legality and rationality. An inspector deciding an enforcement appeal is ordinarily required to address the proposals advanced, not to search for alternative schemes. Fairness may nevertheless require further consideration where an obvious, less intrusive alternative emerges from the material before the inspector.

The appellant challenged an inspector’s decision dismissing her appeal against an enforcement notice requiring removal of an unauthorised porch at her home. The porch had replaced an earlier structure and had been designed to provide wheelchair access for the appellant, who is disabled and has significant sensory and neurological impairments.

The inspector refused deemed planning permission under section 177(5) of the Town and Country Planning Act 1990, dismissed the appeal on ground (f), and extended the compliance period under ground (g). Permission to appeal under section 289 was granted on one ground only: alleged breach of the public sector equality duty under section 149 of the Equality Act 2010 and/or inadequate reasons. The central issue was whether the inspector had properly considered the appellant’s disability and the consequences of removing the porch.

1. Appeal dismissed. The inspector had properly discharged the public sector equality duty. He knew of the appellant’s disabilities and personal circumstances, identified the correct planning and equality issue, identified the material planning harm, and explained why the harm was not outweighed by the occupants’ personal circumstances and protected characteristics.
2. The duty under section 149 is substantive but contextual. The rigour required depends on the decision and its factual setting. This was a focused decision concerning a particular porch, not the adoption of a policy with wide equality implications. The inspector was not required to undertake consultation, economic or demographic analysis, or any other elaborate process.
3. The duty is a duty of process rather than outcome. The inspector was required to understand the equality implications and recognise the desirability of advancing equality, but the weight given to those matters was for him. He was not required to explain analytically how the competing factors had been weighed.
4. The inspector was not required to consider convenience of access, as distinct from safety of access, because that issue had not been raised and was not reasonably apparent as a separate equality impact. Read fairly and as a whole, the decision showed that he had considered the material implications of removing the porch.
5. The complaint that the inspector should have sought further information about alternatives was outside the permitted ground of appeal because it repackaged the refused ground concerning inquiry and procedural fairness. In any event, an inspector’s primary task is to consider proposals put forward. He is not required to search for solutions. Fairness may require consideration of an obvious alternative, but no firm alternative had been advanced and the inspector was entitled to conclude that any alternative would require major reconstruction.
6. Departure from non-statutory inspectorate guidance is not itself an error of law. It matters only if it produces irrationality or an independently identifiable legal error. The appeal was dismissed, with consequential orders to be agreed or considered at a short further hearing.

• Inspector appointed by the Welsh Ministers—decision dated 13 March 2024: dismissed the planning appeal, subject to extending the compliance period from two to nine months and correcting the enforcement notice.
• High Court (Planning Court)—permission to appeal granted on one ground only; appeal dismissed.