EHRC Legal interventions and planning permission

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EHRC Legal interventions and planning permission *

The case concerned a decision of the Secretary of State's Inspector to dismiss appeals against the refusal by the London Borough of Bromley to grant applications for planning permission for the retention of a number of touring caravans and mobile homes on a site near Orpington.  The appellants appeal points included that the Inspector failed to have due regard to the need "to promote equality of opportunity......between persons of different racial groups".

While the Appellant relied on a breach of the race equality duty, the Commission submitted that the full range of the equality duties should be considered, where relevant, on the basis that they provide a framework within which Parliament intends public authorities to ensure that equality has substantive, not merely formal, effect.   The Commission assisted the Court by informing it not only of the statutory requirements in relation to the equality duties, but also the relevant best practice which the legacy Commissions developed in relation to these requirements. The Court was taken through the relevant parts of the various Codes of Practice and other guidance and reports published by the former Commissions.

The Court made specific mention of the Commission's role as intervener and said, at the outset of its judgment, that it had been assisted by the intervention.  The Court found that the failure by the planning inspector to make explicit reference to section 71(1) of the RRA was not determinative of the question whether she had performed her duty under the Act.  However, the Court judged that it was good practice to make such reference to the Act and to all other relevant material including the Code of Practice, observing:  "In this way, the decision maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced."   It found that there had been no breach of the duty as the inspector had had due regard to the need to promote equality of opportunity.  It was "immaterial" whether or not she was aware of the existence of the s71(1) duty.   The Court of Appeal dismissed the appeal and leave to appeal to House of Lord was refused.


* Source: EHRC website, R (Baker and ors) v Secretary of State for Communities and Local Government and London Borough of Bromley Court of Appeal, 13 & 14 February 2008.  Judgment, 28 February 2008