Buckley, R (on the application of) v Bath and North East Somerset Council & Anor, Court of Appeal - Administrative Court, June 20, 2018, [2018] EWHC 1551 (Admin)

Resolution Date:June 20, 2018
Issuing Organization:Administrative Court
Actores:Buckley, R (on the application of) v Bath and North East Somerset Council & Anor
 
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Case No: CO/162/2018

Neutral Citation Number: [2018] EWHC 1551 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 20/06/2018

Before :

THE HONOURABLE MR JUSTICE LEWIS

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Between :

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Sarah Sackman and Katherine Barnes (instructed by Leigh Day) for the Claimant

Richard Wald (instructed by Sharpe Pritchard) for the Defendant

The Interested Party did not appear and was not represented

Hearing dates: 16 and 17 May 2018

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JudgmentTHE HONOURABLE MR JUSTICE LEWIS :

INTRODUCTION

  1. This is a claim for judicial review of a decision of the defendant, Bath and North East Somerset Council, dated 30 November 2017 granting outline planning permission for the development of part of an estate known as the Foxhill Estate (``the estate'') by the demolition of up to 542 dwellings and the provision of up to 700 dwellings. The claimant, Peter Buckley, is a long-term resident of the estate and also acts on behalf of the Foxhill Estates Residents Association, an unincorporated association comprised of people who live on the estate.

  2. There are four grounds of challenge. First, is said that the defendant failed to have due regard to certain matters as required by section 149 of the Equality Act 2010 (``the 2010 Act'') which is known as the public sector equality duty. Secondly, it is said that the committee of the defendant which resolved to grant planning permission were misdirected in that they were told that all existing residents of the estate would be accommodated on the estate after the development was completed when that was not necessarily the case. Thirdly, it is said that the defendant failed to have regard to what was alleged to be a material consideration, namely the fact that affordable housing provided under the grant of planning permission for an adjacent area, Mulberry Park, was intended to be used for additional housing but would, under the proposals be used to accommodate tenants from existing affordable housing on the estate. Fourthly, it is said that the defendant misinterpreted the phrase ``viability considerations'' in one of the relevant planning policies.

    THE STATUTORY FRAMEWORK

    The 2010 Act

  3. Section 149 of the 2010 Act provides, so far as material, that:

    ``149 Public sector equality duty

    (1) A public authority must, in the exercise of its functions, have due regard to the need to--

    (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

    (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

    (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.''

    (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

    (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to--

    (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

    (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

    .....

    (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.

    .....

    (7) The relevant protected characteristics are--

    age;

    disability;

    gender reassignment;

    pregnancy and maternity;

    race;

    religion or belief;

    sex.''

    The Planning Acts

  4. It is unlawful, in the sense that it is a breach of planning control, to undertake development without planning permission: see section 55 of the Town and Country Planning Act 1990 (``the 1990 Act''). A person wishing to develop land may apply to the local planning authority for planning permission.

  5. Section 70 of the 1990 Act provides, so far as material, as follows:

    ``70.-- Determination of applications: general considerations.

    (1) Where an application is made to a local planning authority for planning permission--

    (a) subject to section 62D(5) and sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or

    (b) they may refuse planning permission.

    (1A) Where an application is made to a local planning authority for permission in principle--

    (a) they may grant permission in principle; or

    (b) they may refuse permission in principle.

    (2) In dealing with an application for planning permission or permission in principle the authority shall have regard to--

    (a) the provisions of the development plan, so far as material to the application,

    (aza) a post-examination draft neighbourhood development plan, so far as material to the application,

    .....

    (b) any local finance considerations, so far as material to the application, and

    (c) any other material considerations.''

  6. Outline planning permission may be granted that is, permission may be granted for the development but conditional upon the development not being commenced until reserved matters (that is, matters not specified in the application for planning permission) have been approved: see section 92 of the 1990 Act.

  7. Applications for planning permission must be determined in accordance with the relevant development plan adopted by the local planning authority unless material considerations indicate otherwise: see section 38(6) of the Planning and Compulsory Purchase Act 2006.

    THE FACTUAL BACKGROUND

    The estate

  8. The estate is located to the south of Bath. It comprises a large number of flats and terraced and semi-detached houses. The majority of the properties are owned by a registered social housing provider, Curo Places Limited (``Curo''). Some properties are leased from other registered social housing providers. Some homes are privately owned.

  9. The estate is directly adjacent to a former Ministry of Defence site now known as Mulberry Park. Permission for development on that adjacent site, comprising up to 700 new homes including 210 affordable homes, has already been granted.

    The Application for Planning Permission

  10. Curo applied for outline planning permission to develop part of the estate (``the application site''). The application was for permission to demolish up to 542 homes and the provision of up to 700 new homes. There are currently 414 affordable homes within the application site and these would be replaced by 210 homes, resulting in a loss of 204 affordable homes.

  11. The application was accompanied by a number of documents. These included a planning statement. That document stated that the estate experienced significant levels of social and economic deprivation and was an area of poor quality, predominantly social housing. The document noted that the estate contained many properties that were not suitable for disabled occupants. The planning statement noted that the estate was one of the 11% most deprived areas in England. It noted that there were a number of lone parent households (21.5% of the total). It noted that 8.2% of residents were economically inactive due to long term illness. The planning statement further noted that the building stock was old and grouped in clusters in a way which limited social interaction between different groups. It noted that the application proposed the demolition of up to 542 dwellings and replacing them with up to 700 dwellings of different types, sizes and tenures, with a dedicated, older persons living complex and dedicated wheelchair accessible and adaptable apartments.

  12. The planning statement also explained how the re-housing process would work. The options would be to move to a new home on the adjacent Mulberry Park development or on the application site, move to an affordable rented home elsewhere, move to a specialised property such as a property for older people or for those with specialised needs or into some form of low cost home ownership. The phasing arrangements proposed for the development were intended to enable occupants to move directly into a new home (rather than being moved from their existing home to a temporary home and then being moved to a new home). Discussions were being undertaken with those who needed to be rehoused who were being given the option of expressing a preference as to whether they wished to move to Mulberry Park or move into redeveloped homes on the application site. The interviews included consideration of whether a tenant needed ground floor accommodation or modifications to improve mobility around the home. Paragraph 9.6 of the planning statement set out the specific benefits intended to be secured through the proposed development.

  13. An environmental statement also accompanied the application. Chapter 11A of that document dealt with what were described as socio-economic matters. It noted that unemployment on the estate, at 6.9% of residents, was more than double the average within the defendant authority's area and that a high proportion of the population (8.2%) had been classified as long term sick or disabled. That document also noted at paragraph 11.65 that the proposed redevelopment had the potential to raise concerns among residents in relation to displacement of existing residents and noted that an extensive programme of consultation had been undertaken with residents and information provided. It was proposed that existing tenants who wished to remain within the application site or the adjacent Mulberry Park site would be...

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