“Is discrimination a consideration for planning permission and how does this affect affordable housing?”

In the recent case of R (on the application of Peter Buckley (on behalf of Foxhill Residents’ Association)) v Bath & North East Somerset Council (and Curo Places Limited (interested party)) (2018), the High Court quashed an outline planning permission as it was held that Bath & North East Somerset Council (the “Council”) had not considered the impact on groups with protected characteristics of the loss of their existing home as the planning permission resulted in the reduction of the number of affordable homes in the area.

The Facts
Foxhill Residents’ Association (“FRA”) were the residents of an existing estate. Curo Places Limited (the “RP”) applied for outline permission from the Council to develop part of the Foxhill estate by demolishing 542 homes, 414 of them being affordable housing and to building 700 new homes, with only 210 being affordable.

The planning application included a statement regarding the significant levels of deprivation on the estate and that the existing housing was of poor quality. It also detailed a re-housing method in which residents could choose to move to either:

  1. A new home on an adjacent development; or
  2. A new home on the new estate; or
  3. To an affordable rented home elsewhere; or
  4. To a specialised property such as a property for older people or those with specialised needs; or
  5. Into low-cost home ownership.

The Council’s developments plan, Policy H8, made the following presumption in favour of the redevelopment of social housing where:

  1. The condition of the housing stock was poor and/or there was socio-economic justification for redevelopment; and
  2. Against a net loss of affordable housing, subject to viability considerations and social balance considerations.

The Council’s officers advised that the development would provide additional, improved, dwellings, and they advised the loss of affordable housing complied with Policy H8 as the development would not be viable with a higher level of affordable housing. On this basis the Council’s planning committee granted the outline planning permission.

The Case
FRA applied for judicial review of the Council’s decision to grant outline planning permission in relation to part of the Foxhill Estate. In March 2018 the RP behind the scheme said it would no longer pursue plans for the large-scale regeneration of the estate. However, FRA went on to seek a ruling from the High Court. There were four grounds of challenge as follows:

  1. The Council failed to have due regard to the public sector equality duty, as required by s149 of the Equality Act 2010 (the “Act”), as the Council did not regard the impact on elderly or disabled persons on the loss of their existing home if the outline planning permission was granted.
  2. The committee which decided to grant the 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 this was not necessarily the case.
  3. The Council failed to have regard to what was alleged to be a material consideration, being the fact that affordable housing provided under the planning permission for an adjacent area (Mulberry Park) was intended to be used for additional housing but under the proposals would be used to accommodate tenants from existing affordable housing on the estate.
  4. The Council misinterpreted the phrase “viability considerations” in one of the relevant planning policies.


The Decision

The Court held that FRA was successful on the first ground of the challenge only, as the duty under s149 of the Act applied to the granting of outline planning permission. In particular, Mr Justice Lewis found that:

  • The duty in s149 of Act did apply to the function of granting outline planning permission. The fact that the application was for outline planning permission only and that certain reserved matters were to be considered at a later stage in the process which might have affected the content or scope did not prevent the duty applying.
  • On balance the Council did not in fact have due regard to the impact on the elderly and disabled persons of granting an application. “The defendant was, very properly, concerned to ensure that all those affected would be provided with information to allay concerns about displacement, that is the fact that they would have to leave their existing homes and where they would live afterwards. The defendant, and Curo, has given considerable attention to ensuring that persons can remain within the estate. As Mr Wald [counsel for the local authority] emphasised, the officers’ report noted the potential of the loss of affordable housing to result in significant disadvantages through the dispersion of residents and that that could, uniquely, be mitigated by the development, in parallel, of Mulberry Park. Ultimately, however, the focus was on the impact of displacement, or moving, of residents. The defendant did not specifically address or have regard to the impact on groups with protected characteristics, in particular the elderly and the disabled, of the loss of their existing home.”
  • No equality impact assessment had been carried out. It might have been that not a great deal would have needed to be said on that matter, it might have been sufficient to make a note that the matter had been brought to the decision-maker’s attention and then they could have decided whether the benefit of the proposed redevelopment did outweigh any negative impacts. “Ultimately, however, I am persuaded there were matters relevant to the discharge of the public sector equality duty which the relevant decision-maker needed to have due regard to but which were not drawn to the decision-maker’s attention. In the circumstances, there was a failure to discharge the duty imposed by section 149 of the 2010 Act.” The Council’s focus had been on the impact of displacement on residents and not specifically had regard to the impact on groups with protected characteristics of the loss of their existing home.


The Remedy
Although it was certainly possible that the Council might still have concluded that the benefits of the development outweighed the disadvantages, the proposal had been controversial and there had been other options open for addressing the problems of the estate. As a result, the Court was not convinced that it was not highly likely that the outcome for FRA would have been substantially the same, even if the s149 duty had been complied with. The outline planning permission was unlawful and would be quashed.

If you are looking for any more information with regards to our services view our Housing & Regeneration section. You can also contact Jennifer Hankinson or Lyndsay Baxter in our Housing & Regeneration department on 01772 220022. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Lyndsay Baxter

About Lyndsay Baxter

Lyndsay is a Trainee Solicitor in the Housing and Regeneration (Property) Department. She primarily assists with a wide variety of property work including site acquisitions, development agreements (including turn-key and golden brick agreements), property sales and purchases, s106 agreements (and variations), bulk securitisation/disposal/acquisition and construction elements such as easements, utility agreements (including s104, s185, s38, s278 and s102). Lyndsay also has assisted a number of clients by providing reviews of their lease portfolios and boundary responsibilities.
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