Race Equality and Planning Decisions
September 2nd, 2010 by Louise Humphreys
The first case to decide that local authorities must assess the likely impact of planning proposals in race equality terms may have gone relatively unnoticed, with people's focus firmly on the changes to the planning system coming from central government. However, local authorities should ignore R (on the application of Harris) v Haringey LBC [2010] EWCA Civ 703 at their peril.
The Council granted planning permission for the demolition of the existing buildings and the erection of mixed use development with access, parking and associated landscaping and public realm improvements. The proposed development site was in an area made up of local independent traders with a mix of Turkish, Cypriot, Colombian and Afro Caribbean influences and included an indoor market of which 64% of traders were from Latin America or were Spanish speaking.
Many residents and others had expressed concerns that the development would increase business rents (up to three fold) and because there was no affordable housing in the scheme it would bring about a significant shift in the commercial and residential make-up of the area.
The grant of the permission was challenged by a local resident on the grounds that the Council had failed to comply with Section 71 of the Race Relations Act, in that it did not have 'due regard to the need to promote equality of opportunity and good relations between persons of different racial groups'.
The Court of Appeal was satisfied that on the material before the council, there was sufficient potential impact on equality of opportunity between persons of different racial groups, and on good relations between such groups, to require that the impact of the decision on those aspects of social and economic life be considered. It was not a planning application in which the impact of the decision on section 71 considerations was so remote or peripheral that the substance of the duty could be ignored.
In neither the committee report nor the minutes of the committee meeting was there any specific reference to section 71(1) or the duties it imposed. Nor was there any specific reference to the substance of the duties, even if that reference did not specifically refer to section 71(1).
The Council sought to argue that as the proposed development would regenerate the site, where a large proportion of minority ethnic communities are concentrated, and would promote the interests of a particular racial group, the duty had been discharged.
The Court of Appeal held that the promotion of a particular racial group is not the same as the specific requirement of the Act to have due regard to the need to promote equality of opportunity and good relations between persons of different racial groups. Therefore, the Council had not discharged its duty when granting the planning permission and the permission was quashed.
Section 71 considerations clearly need to be considered where the appropriate threshold is engaged. Whether they will ever be decisive is another matter as that the weight to be given to is, as with all material planning considerations, for the decision maker.
What is abundantly clear is that the requirements of Section 71 should now form an integral part of the Council decision making processes.
