In recent years the importance of paying ‘due regard’ to the Public Sector Equality Duty (PSED)1 when it comes to decisions to reduce or withdraw local authority services in response to the austerity agenda has been underlined by a series of court decisions. However, the duty can also be engaged in the context of other more ‘positive’ decision making, including planning decisions. The consequences of failing to adequately discharge the duty in this context has been highlighted in a recent High Court judgment. LDRA Ltd and Others v Secretary of State for Communities and Local Government and others 2 involved a challenge to an Inspector’s decision to grant planning permission for an on-shore facility in Birkenhead required to support off-shore windfarms in Liverpool Bay and the Irish Sea. Wirral Borough Council had earlier refused planning permission, citing the adverse effect that the proposals would have on an adjacent residential development. That decision was appealed and after a two day hearing the Inspector decided that planning permission should be granted. This decision to grant permission was challenged in the High Court on five separate grounds, including an argument that the Inspector had failed to take into account the adverse consequences for disabled persons arising from the loss of a public car park and the associated impact on access to the riverside.
In reaching her decision on the PSED ground of challenge, Lang J referred to principles that had been articulated in another High Court case involving planning and equality 3. These include the need to consider the substance of the decision and its reasoning when ascertaining whether the duty has been applied correctly and the importance of ensuring that the application of the duty is integral to the formulation of the decision. Applying these principles, Lang J was of the view that the Inspector had not done enough to demonstrate compliance. Particular failings she identified were the lack of any detailed consideration of the value of the existing amenity to disabled persons; the absence of any other comparable amenity in the area; the practical difficulties which would be experienced by persons with restricted mobility and their carers in accessing the riverside; and the apparent failure to consider whether the loss of the car park would not be merely "less convenient" for disabled persons but might well mean that they would be unable to access the riverside at all. In refusing to accept a submission by the Secretary of State that PSED was essentially a ‘sub-issue’ that should not result in the quashing of the decision, Lang J concluded that the evidence of disadvantage to disabled persons was significant, and the Inspector had been in error in failing to acknowledge its importance.
The case confirms that where the PSED is engaged but a planning decision maker is not fully appraised of the relevant information, then he/she is under an obligation to seek the information required – illustrating the need to take a pro-active rather than a ‘tick box’ approach to the duty. The case also highlights the need to consider the full range of ‘protected characteristics’ that may be impacted by a particular planning decision4
So what are the key messages for decision makers? First of all they need to be alert to the possibility of PSED issues being engaged in the planning context. In the event that the duty is engaged they should then ensure that the decision is properly and conscientiously informed by the application of the duty – and that they are able to clearly evidence compliance.