The public sector equality duty under Section 149 of the
Equality Act 2010 (PSED) is playing an increasing role in planning
decisions. In LDRA LTD & ORS v Secretary of State for
Communities and Local Government & ORS  EWHC 950
the High Court quashed an Inspector's decision to grant
permission on appeal for an onshore office and warehouse facility
to serve offshore wind farm installations. The authority had
refused permission on the grounds of unacceptable amenity harm to
adjacent residential occupiers. The Inspector considered the
proposals at an Inquiry and attended an accompanied site visit,
during which access to the riverside for local people and the
existence of alternative sites with lesser potential impacts were
pointed out. The claimants challenged under Section 288 of the TCPA
The High Court agreed that the Inspector had failed to give
effect to the PSED when considering effects on access to the
riverside area for disabled people.
Section 149 requires authorities to have "due regard to the
need" to "eliminate discrimination [...] [and] advance
equality of opportunity between persons who share a relevant
protected characteristic and persons who do not [...]" when
exercising functions. Disability is a relevant "protected
characteristic". The key principles are that:
The duty is not a duty to achieve a
result but to have due regard to the need to achieve the statutory
goals in a way that is integral to the decision making process
(R (Baker) v Secretary of State for Communities and Local
Government  PTSR 809).
Decision makers must be properly
informed and are under an inquisitorial duty, requiring rigorous
enquiry and reporting (applying R (Hurley & Moore) v
Secretary of State for Business, Innovation and Skills 
EWHC 201 (Admin) and R (Domb) v Hammersmith & Fulham LBC
 EWCA Civ 94).
Having concluded that only able-bodied people would have the
"continuing opportunity to reach the riverside" near the
development, the Inspector was held to have failed to discharge the
PSED in the absence of: detailed consideration of the value of the
existing amenity to disabled people, comparable alternatives,
practical difficulties which disabled people and carers would
experience and the loss of a resource (access to a car park) would
not merely be less convenient, but may result in an inability to
access the riverside at all. The fact that the PSED issues had not
been identified as a "main issue" in the appeal was
irrelevant to the decision to quash.
The Judge held that Section 31 Senior Courts Act 1981 –
preventing a quashing order where it is "highly likely"
the outcome would not have been substantially different had the
PSED been applied – did not apply given that the PSED is
concerned with process, not simply outcomes. This is presumably
based on the public interest exception to Section 31(1) under
Section 31(2B). Contrast this with the Court of Appeal's
approach in West Berks accepting a retrospective
Equalities Impact Assessment as 'adequate and in good
faith' to be able to discharge the PSED because a different
process "would not have led to a different
The Judge also held that the claimants had been substantially
prejudiced by the Inspector's failure to address an alternative
site which may well have influenced the outcome. She rejected the
suggestion that the Inspector was not required to absorb evidence
during the site visit, holding that the purpose of the visit was to
identify and view possible alternative sites. Failing to take into
account the identification of the alternative made during the site
visit was a breach of natural justice/procedural fairness.
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