London Borough of Tower Hamlets has issued a landmark planning decision, in which it is a condition of the planning approval that redevelopment should include a pub which must be leased to an LGBT+ operator for 15 years. It’s being billed by some as a victory for equality.
Developers will be (1) interested to note how the Council performed its public sector equality duties and (2) prompted to think laterally and be innovative about suggesting solutions to objections to applications.
Service providers will be (1) interested to note the imposition of the condition and (2) prompted to consider how they could implement it without infringing equality legislation.
The decision is believed to be the first time a planning authority has made sexual orientation of a venue’s customers a condition of planning approval. The case provides a fascinating insight into the interface between planning law and equality legislation and gives rise to interesting questions about how practically the planning condition can be fulfilled and enforced.
The Equality Act 2010 imposes requirements relating to non-discrimination on grounds that a person possesses one or more characteristics protected by the legislation, which include gender reassignment and sexual orientation. The legislation imposes equality duties on the public authorities: to eliminate discrimination and to advance equality of opportunity and foster good relations between those who possess one of the protected characteristics with those who do not share it.
Fulfilling the duty involves performing an equality impact assessment in relation to decisions that affect the public and taking steps to remove disadvantage and to meet the needs of people with protected characteristics, encouraging them to participate.
In conducting the equality impact assessment, the Council noted that the current pub on the site, the Joiners Arms, was an asset of community value that served the LGBT+ community. It considered a report published by University College London on LGBT+ cultural infrastructure in London and noted that since 2006 the number of LGBT+ venues in London had fallen by 58% and that LGBT+ nightlife spaces were considered to be important spaces in which to express rights and for education and intergenerational exchange. It also noted from the report that according to the Metropolitan Police homophobic hate crime in London had risen by over 12% over the year to March 2017. It also considered evidence from local pressure groups. The assessment concluded that the planning application would have a negative impact on people possessing the protected characteristics of gender reassignment and sexual orientation, but that the negative impact could be mitigated by a legal agreement giving a right of first refusal on the pub to be run by a LGBT+ operator to serve the LGBT+ community and by the developer making a substantial contribution to the fit-out costs.
Some of those who objected to the planning application have expressed grave doubts about whether the conditions imposed offer any real protection to the venue or the wider LGBT+ community, writing to The Guardian that they fear that the proposal to attach conditions was a “Trojan Horse draped in a rainbow flag” in which community concerns appear to have been addressed on the surface to get the application approved. They point out that, given that the development incorporates residential flats above the proposed pub, it is unlikely that the venue will be granted a late night licence such as that enjoyed by the Joiners Arms. Others wonder how enforceable the agreement to lease the pub to a LGBT+ operator is and how the Council could test whether the operator was LGBT+ friendly enough. There has been a small amount of media coverage expressing concern that implementing the condition might amount to unlawful discrimination against heterosexual people.
The operator of the venue will have to consider all of these issues in light of two further aspects of the Equality Act:
First, the Act prohibits service providers discriminating on grounds of sexual orientation, so adopting an LGBT+ only ‘door policy’, or refusing entry to non-LGBT+ customers, may well amount to unlawful discrimination unless it can be objectively justified. The operator will not be able to rely on the planning condition as a defence to any discrimination claim by a heterosexual person. It will have to undertake its own investigation into whether how it intends to operate is justifiable. For example, a softer door policy may have to be implemented in the absence of persuasive evidence that the venue should be exclusively LGBT+.
Secondly, employers must not discriminate against job applicants on the grounds of sexual orientation. Again, while there are limited exceptions to this rule (including genuine occupational requirements), it is unlikely that an operator of an LGBT+ venue could ever justify the recruitment of exclusively LGBT bar staff. One well-known LGBT+ bar itself fell foul of the law when it decided to become more focused as a venue for gay men. An employment tribunal took a very dim view of the bar’s decision to make its non-gay and female staff redundant to implement its new business strategy: the tribunal was satisfied that this was unfair dismissal and discrimination on the grounds of sex and sexual orientation.
It remains to be seen how the Council and any operator will implement this planning condition but the case offers an interesting insight into how councils exercise their public sector equality duty and offers a lesson to developers to think laterally about how they might help councils fulfil their duties by thinking laterally and offering innovative solutions.