Public Sector Equality Duty (PSED): why both developers and those seeking to bring judicial review challenges need to be aware of this

With increasing numbers of judicial review challenges nearly year on year for the last five years related to the PSED in planning decision making, both developers and third party challengers ignore this issue at their peril.

What is the PSED?

This is the duty placed on public bodies (s149 Equality Act 2010) to have due regard to three aims when exercising their respective functions. Most typically in the planning sphere those public bodies are local planning authorities (LPAs). 

In the context of planning decision making, the second of these aims is the most relevant:

The need to “advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it."

Why as a developer should you care if the duty is only one on the LPA?

Even though the PSED is a duty only on public bodies, if a project does not address equality issues satisfactorily planning permission may be refused.

Even if planning permission is granted, if an LPA fails to comply with the PSED, a developer’s planning permission can be quashed. Developers can make the planning permission less likely to be challenged by ensuring they have also covered all grounds in respect of equality in their application documents which the officer can easily refer to when considering the overall merits and preparing their officer’s report.

In a recent case (R(Danning) v Sedgemoor DC) planning permission for a change of use from a pub to a residential dwelling was quashed on the grounds of non-compliance with the PSED because there was failure to consider whether the proposed change would have any impact on members of the community who had a protected characteristic. Ex post facto statements from the officer were not sufficient to save the permission.

In the case of Buckley v Bath, a planning permission for redevelopment of a residential estate was also quashed on the basis that due regard had not been given to the impact on elderly or disabled persons of the loss of their existing home; that impact was different from and greater than the impact on other persons. The LPA’s focus had been on the displacement of residents and had not specifically considered the impacts on the groups with protected characteristics.

How should public bodies exercise their duty?

Neither the act nor the duty requires a specific result but does require a public body to have consideration of the three aims when carrying out its duties on an ongoing basis. As good practice, it is always advisable for public bodies to make a note of their consideration of the three aims and any action they may want to take (if any) to ensure they mitigate any effects that may occur as a result of a decision, and to discharge their duties under the act. This may even involve  treating some persons more favourably than others, but does not allow a public body to breach other obligations under the act.

The case of R (Brown) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) mentioned three important aspects in relation to how a public body can carry out its duty.

  1. The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters;
  2. The duty must be fulfilled before and at the time when a particular policy is being considered; and
  3. The duty must be “exercised in substance, with rigour and with an open mind”. It is not a question of “ticking boxes”; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope of the argument.

Is PSED a panacea for third party challengers?

Hardly but definitely always worth considering!

In a recent case (R (Sheakh) v Lambeth) a disabled person challenged the creation of a low traffic neighbourhood as it disproportionally affected those reliant on their cars. The challenge was unsuccessful because the order was experimental only and it was lawful for the council to decide to discharge the PSED on a rolling basis.

In the case of R(Gathercole) v Suffolk, the grant of a planning permission for a school close to a military airfield was challenged on the grounds that there had been failure to have regard to the impact of noise on children with protected characteristics (special needs including those with hearing impediments) in the outdoor areas. While a failure to comply with the PSED was found, the permission was not quashed as the court found that it was highly likely the same decision would have been taken if due regard had been paid to the PSED.