R (on the application of Janet Harris) v Haringey London Borough Council & Grainger Seven Sisters LTD (2) Northumberland & Durham Property Trust LTD (Interested Parties) & Equality & Human Rights Commission (Intervener) [2010] EWCA Civ 703

Ms Harris, a local community activist who help set up the Tottenham Civic society, sought to challenge the refusal of her application for judicial review of a decision by the local authority to grant planning permission to re-develop a site. The main proposal was the demolition of an existing site comprising of an indoor market where 64% of traders were Latin American or Spanish speaking and the residential accommodation above which were predominantly occupied by members of the black and ethnic minority communities. The proposals were subject to a consultation during which it was suggested that the new development would be for mixed use (Classes C3, A1, A2, A3 and A4) and it was envisaged that the business rents could increase threefold. There was also no provision for social or affordable housing. Following the consultation a report on the representations made was provided to the decision makers within the local authority, who also took into consideration the development brief, its unitary development plan to regenerate the area and the specific aim of promoting the welfare of ethnic minority communities and local planning policies.
Ms Harris contended however that the decision to grant planning permission was unlawful because the authority had not complied with the requirements of s.71(1)(b) of the Race Relations Act 1976. Ms Harris argued because of  “the mixed racial influences, the large percentage of Latin American traders in the existing indoor market and the predominant occupation of homes and business units by members of the BME communities [t]he council was under a duty before granting permission to have due regard to the needs specified in the section”. The local authority accepted that the threshold for requiring adherence to this duty had been passed but argued that the local authority had complied with the obligation because the development would improve an area where a large proportion of ethnic minority communities were concentrated.
The Equality and Human Rights Commission submitted that the presence before the decision maker of documents making reference to equality issues was not a sufficient compliance with the s71 duty; there must be a demonstrable application of the statutory duty to the particular facts and a focus on the needs of minority groups was required.

The Court, quashing the decision to refuse permission and granting the appeal considered the nature of the duty to have “due regard”  and confirmed that what was required was a “conscious approach and state of mind” ( following Scott Baker LJ in Brown v Secretary of State for Work & Pensions [2008] ). Distinguishing this case from those of R (on the application of Baker) v Secretary of State for Communities and Local Government (2008)  and R (on the application of Isaacs) v Secretary of State for Communities and Local Government (2009) because in both those cases the authorities had adopted policies detailed within a circular intended to address the duty set out in s71. In this instance case the Court of Appeal determined that “this was not a planning application in which the impact of the decision on s71 considerations was so remote or peripheral that the substance of the duty could be ignored…  Concerns about Latin American traders or loss of housing by ethnic minorities, for example, were expressed though the representations were not put in the context of the specific statutory criteria. “Due regard” need not require the promotion of equality of opportunity but, on the material available to the council in this case, it did require an analysis of that material with the specific statutory considerations in mind.  It does not, of course, follow that considerations raised by section 71(1) will be decisive in a particular case.  The weight to be given to the requirements of the section is for the decision maker but it is necessary to have due regard to the needs specified in section 71(1).  There was no analysis of the material before the council in the context of the duty.” The Judge did go on to comment that he hoped this would not hold up any regeneration of the area given the fact that, subject to the s71 requirement, the local authority had “followed a thorough and fair procedure which led, albeit by a bare majority, to a democratic decision”, but concluded that the nature of the planning application was such that the s71 duty had to have formed in substance an integral part of the planning process and it had not done so.

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