Appeal court quashes planning permission because council did not discharge race relations duties

The Court of Appeal has quashed planning permission for a development in Haringey after ruling that the London borough had failed to discharge its duties under the Race Relations Act 1976.

In Harris, R (on the application of) v The London Borough of Haringey [2010] EWCA Civ 703, planning permission had been granted to demolish the existing buildings on a site known as Wards Corner on the High Road in Tottenham and erect a mixed use development in their place.

The site was in an area predominantly made up of local independent traders with a mix of Turkish, Cypriot, Colombian and Afro-Caribbean influences. It also incorporated an indoor market comprising 36 units of which 64% were from Latin America or were Spanish speaking.

During the consultation process, a number of individuals expressed concern at the increase to business rents that would have been charged following the redevelopment. The council itself estimated they would have risen threefold. There were also concerns about the cost of the residential part of the development.

Janet Harris, who helped set up the Tottenham Civic Society in 2006, challenged the grant of planning permission. However, Deputy High Court Judge Keith Lindblom QC refused an application for judicial review in July 2009.

Giving the lead judgement in the Court of Appeal, Lord Justice Pill ruled that the council, when granting permission, had not met its duties under s. 71 of the RRA 1976, as amended by the Race Relations (Amendment) Act 2000.

The Act required the council, in taking its decision, to have due regard to the need to eliminate unlawful racial discrimination, and – of particular importance to this case – to promote quality of opportunity and good relations between persons of different racial groups.

Haringey had conducted an appropriate consultation exercise, with a very full report to the appropriate committee containing references to the representations made. The report referred to the positive aspects of the proposed development, the need for environmental improvement in the area, and the fact that Wards Corner was acknowledged to be a deprived area.

However, it did not make specific reference to s. 71 or the duties it imposes, or indeed the substance of those duties.

Counsel for Haringey, Peter Harrison QC, argued that the granting of  permission was an attempt to regenerate the area and was of overall benefit to the community, including ethnic minorities.

But Lord Justice Pill said: “I say at this stage that I can only commend the thoroughness of the report, its focus on regeneration and its expression of concern for the future of displaced market traders. I find it impossible, however, to find any focus on the substance of the section 71 duty when the complex issues to be decided by the council’s committee are set out and debated.”

The judge distinguished the cases of Baker v Secretary of State for Communities and Local Government [2008] EWCA Civ1 141 and R (on the application of Isaacs) v Secretary of State [2009] EWHC 557 (Admin). He said council policies did not specifically address the requirements imposed upon the council under s. 71.

He added: “Not only is there no reference to section 71 in the report to the committee, or in the deliberations of the committee, but the required ‘due regard’ for the need to ‘promote equality of opportunity and good relations between persons of different racial groups’ is not demonstrated in the decision-making process.

“Due regard need not require the promotion of equality of opportunity but, on the material available to the council in this case, it did require an analysis of that material with the specific statutory considerations in mind…..There was no analysis of the material before the council in the context of the duty.”

Lord Justice Pill expressed “some regret” at his conclusion because of the general desire in the borough for regeneration of the area in question, the amount of public and private resources spent on the proposal, and the council had – subject to its s. 71 considerations – followed a thorough and fair procedure which led to a democratic decision.

But he concluded: “The issues which arose on this planning application were, however, such that it was necessary for the requirements of section 71 to form in substance an integral part of the decision-making process and I am unable to hold that they did.”

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