Planning enforcement and equalities duties

A recent High Court ruling shows that equalities duties must be treated differently, writes Roderick Morton.

Article 8 of the ECHR (right to family life) and the public sector equality duty (PSED) are commonly used to attack council decision making in planning enforcement. To be fair, some council enforcement reports still don’t explicitly consider them which, for 2023, is untenable. Others contain pages of boilerplate wording, which is equally inadequate. Some reports demonstrate a good understanding of the duties but a potentially inadequate level of investigation of the fact which go to exercising the duties. In R oao Devonhurst Investments Ltd v Luton Borough Council [2023] EWHC 978 (Admin) the High Court was recently called upon to assess whether Luton BC’s approach was adequate.

The site was a former office block. Prior approval was sought for conversion to 130 residential flats under Class O of Schedule 3 of the GPDO; prior approval was confirmed not to be required. In the event, the block was demolished and rebuilt as 109 flats. While the council’s housing team initially expressed an interest in renting some of the flats to house the temporarily homeless, on inspection the flats were “too awful” even for that. 

In 2021, the council took the view that the demolition and rebuild took the development outside the boundaries of Class O. A delegated report was signed, authorising an operational development enforcement notice requiring demolition. The delegated report included consideration of the planning merits, enforcement options, article 1 and article 8 rights and the PSED under s149 of the Equalities Act 2010.

The notice is under appeal and the appeal has yet to be determined. In the meantime, Devonhurst brought judicial review proceedings against the council alleging that its decision making was not adequate. As the quality of decision making is not a statutory ground of appeal, a challenge is determined at court by judicial review rather than by appeal to a planning inspector.

PSED

S149 of the Equalities Act 2010 requires public authority decision makers to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between those with a protected characteristic and other parts of the community. This is commonly called the “public sector equality duty”.

The PSED is a duty of process and not outcome. Provided that the duty is properly understood and considered, it is (said the court) for the decision maker to decide what weight to give the various factors that go into it. The decision maker can, for instance, decide to prefer the public interest in upholding the planning system.

There is a duty of inquiry inherent in the PSED. Decision makers cannot simply ignore information which they do not possess; they must take reasonable steps to acquire that information. Devonhurst suggested that the court should decide whether Luton’s officer had satisfied that duty. The court decided that it was for the council to decide the parameters of the information gathering exercise and, provided it was not Wednesbury unreasonable, it could not be challenged in court. 

Luton BC knew that the appeal site would house around 200 people, some of them children, in 109 flats. It had a list of the names of tenants at a particular date but there was a high turnover. It had no information on protected characteristics or the needs of those occupying the appeal site. No welfare forms appear to have been sent out and no door knocking took place. Devonhurst said that the council had not approached its information duty adequately.

The judge accepted that, though it would ordinarily have been better to obtain information on individual protected characteristics and needs, the failure to do so here was not fatal. She held that

• the council was entitled to take into account that accommodation was temporary and that there was likely to be a high turnover of occupiers such that information would become outdated;
• the council was entitled simply to assume that some occupiers were probably children, or vulnerable, or protected without knowing the details;
• the council had taken adequate account of educational needs simply by accepting in general terms that children would “most likely” have to move schools and that this would have an impact on their educational needs and social bonds;
• the council had also recognised that all occupiers would have to vacate, that some would be homeless and that this would cause disruption and distress;
• it was reasonably open to the council to find that the accommodation was so poor that it was positively in the interests of those living there that they were moved to alternative accommodation and that this outweighed the other factors.

As the council had properly addressed all of these factors and had demonstrated a proper appreciation of its duty, its decision to take enforcement action could not be challenged on PSED grounds.

Every case is different. But it is common for councils to have to take decisions based on incomplete information. The judicial support for the way in which Luton addressed these factors is welcome. 

An interesting point here was that the council officer who took the decision was allowed to submit a witness statement explaining the decision. Often such post-rationalisation is frowned on with the decision maker expected to set out the factors on the face of the report.

Article 8

The second ground of challenge was based on Article 8 of the ECHR which protects the right to family life. Devonhurst suggested that the council had failed to make proper inquiry into the impacts of enforcement action on the occupiers. This ground was dismissed for two reasons.

Both under the ECHR and the UK’s Human Rights Act 1998, only a “victim” of behaviour alleged to be contrary to Article 8 can challenge it. Here, Devonhurst was a commercial landlord and a limited company. It did not speak for the occupiers, their article 8 rights could not be extended to Devonhurst, and it did not have its own right to family life. Hence, the court decided, it was not a victim and could not bring an Article 8 claim. 

Unlike the PSED duty, which focuses on the procedural quality of the decision making, the Article 8 claim focuses entirely on the outcome ie whether rights are actually violated. As Devonhurst focused only on the council’s lack of enquiry into impacts, there was no evidence before the court that any occupier’s Article 8 rights had in fact been impacted. Even had Devonhurst been a victim, the Article 8 appeal would have been rejected for lack of evidence.

Councils must, of course, continue to have regard to Article 8 when taking enforcement decisions. This judgment simply makes it less likely that developers will be able to make use of it when challenging those decisions.

Interests of the child

The third ground of challenge was the council’s alleged failure to treat the best interests of the child as a primary consideration. The delegated report said only that “special regard” was had to the interests of children, not that these were a primary consideration. The judge noted that since the requirement under the Children Act 2004 was to have “regard to the need to safeguard and promote the welfare of children”, there was no need to investigate the individual needs of the children; it was adequate that the positive and negative impacts of the enforcement decision on children were considered in general terms and the council was entitled to decide that the positive impact of stopping use of such poor accommodation outweighed the disruption to children.

Some doubt was cast on whether the interests of children should be treated as a “primary consideration” rather than just a “relevant consideration”. The recent Supreme Court case of R (SC) v SSSWP [2022] AC 223 could favour the latter interpretation. Ultimately, the point was not decided here.

Conclusion

The case has other interesting aspects; there was a challenge to expediency and a suggestion that delegated reports deserve more scrutiny than committee reports, both rejected by the court. 

The support for the council’s decision-making process is encouraging but the fact remains that a robust investigation and a well written report is the best defence against PSED and Article 8 challenges. 

Roderick Morton is a partner at Ivy Legal. This article first appeared in Ivy Legal's monthly column for the Royal Town Planning Institute's Network for Planning Enforcement (NAPE) newsletter.