Judge dismisses claim of breach of public sector equality duty when inspector upheld planning enforcement notice

The case was brought against Welsh Ministers and Bridgend County Borough Council.

His Honour Judge Keyser KC, sitting as a judge of the High Court, heard that the appeal was brought under section 289 of the Town and Country Planning Act 1990 challenging a planning inspector’s decision to reject her appeal against an enforcement notice imposed by Bridgend.

The appellant has two rare neurological conditions, is both significantly deaf and significantly sight impaired and uses a wheelchair.

In 2021 she began to have a new porch built that would be more suitable for wheelchair access.

It had a pitched roof rather than the previous flat one and the external door was now at the front instead of the right.

Bridgend planners in April 2022 said planning permission was required due to the porch’s height and: “I must advise that there is some concern in respect of the pitched roof of the porch and it may need to be amended to be acceptable.

“As such, you are advised to cease works on the porch until you have planning permission and Building Regulation approval.”

In February 2023 planners again wrote to say no application had been received and the new porch “is not in keeping with the street scene [so] I confirm that an Enforcement Notice is now being prepared for the removal of the porch”. This required the porch to be demolished and waste materials removed.

The appellant asked the council to withdraw the enforcement notice partly because “you have failed to consider your obligations under s. 149 of the Equality Act which requires…due regard to the need to eliminate discrimination against disabled persons which include taking steps to take account of disabled persons' disabilities”.

She said the current access was inadequate and she had fallen on a number of occasions, and submitted the requirement to demolish the porch would be discriminatory, because it would prevent her gaining access to her home.

The inspector dismissed this, finding the new porch was of a materially different design from the old one and exceeded three metres from ground level and so was not permitted within Class D of Part 1 of Schedule 2 to the GPDO.

“I have not seen anything to lead me to believe that the porch subject of the enforcement action is the only way of achieving a safe access to the property and, in this respect, I consider that the refusal of planning permission would be both proportionate and in pursuit of a legitimate planning aim,” the inspector said.

“It would not therefore represent an unjustified interference with the occupants' rights. Moreover, whilst I have sympathy with the financial implications for the appellant, I have not seen anything to lead me to believe that such personal interests justify the identified public harm.”

HHJ Keyser said the inspector properly discharged the public sector equality duty, and the challenge to his decision must fail.

He noted the inspector expressly identified the correct issue and the planning harm and the weight to be given to the competing factors was for the inspector to decide. His conclusion had been that the harm caused by the unauthorised development was not outweighed by the personal circumstances of the occupants.

HHJ Keyser said the appellant argued that although the inspector referred to her protected characteristics, he had not had “due regard" for the purposes of section 149(1) because he had not considered the issue with "rigour" as required by the authorities.

The judge said: “I regard the complaint as unjustified and as resting at the level of mere assertion.”

He explained: “What is required by rigorous consideration in any given case is dependent on the factual context. In the present case, the question was in truth a simple one, whatever its answer might have been.

“There is no basis for saying that the inspector failed to give conscientious consideration to the public sector equality duty in the light of the factors that he accurately identified.”

The appellant also argued the inspector made only "generic" references to planning harm and impacts on her of the porch’s removal, without identifying the level of harm, leaving it unclear how the balancing exercise had been performed.

HHJ Keyser said: “I do not consider that there is anything in this point. To speak of weighing competing considerations in the balance is to use metaphorical, or at least extended, language. The exercise is one of judgement, not scientific measurement.”

Mark Smulian