ON APPEAL FROM QBD, ADMINISTRATIVE COURT
KEITH LINDBLOM QC (sitting as a deputy High Court judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE SULLIVAN
| The Queen on the Application of Janet Harris
|- and -
|The London Borough of Haringey
|- and -
|(1) Grainger Seven Sisters Ltd
(2) Northumberland And Durham Property Trust Ltd
|- and -
|The Equality and Human Rights Commission
Mr Peter Harrison QC (instructed by The London Borough of Haringey) for the Respondent
Ms Helen Mountfield QC (instructed by The Equality and Human Rights Commission) for the Intervener
Hearing date : 5 May 2010
Crown Copyright ©
Lord Justice Pill :
"Demolition of existing buildings and erection of mixed use developments comprising Class C3 residential and Class A1/A2/A3/A4 with access, parking and associated landscape and public realm improvements."
"(1) Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need—
(a) to eliminate unlawful racial discrimination; and
(b) to promote equality of opportunity and good relations between persons of different racial groups."
The council accept that it was required to discharge the section 71 duty when making the decision challenged. The breach alleged is of section 71(1)(b).
"[The site] is in the West Green Road/Seven Sisters District Centre. The area is predominantly made up of local independent traders with a mix of Turkish, Cypriot, Colombian and Afro Caribbean influences. The site incorporates an indoor market comprising 36 units of which 64 per cent of traders are from Latin America or are Spanish speaking. The total retail floor space on the site is 3,182 square metres and the site includes 33 residential units along Suffield Road as well as first floor accommodation above the retail units on Tottenham High Road, Seven Sisters Road and West Green Road. At present, those business units and homes are predominantly occupied by members of BME [black and minority ethnic] communities . . . During the consultation process and subsequently, a great many people have expressed their concern that the level of business rents that would be charged in a redeveloped site (the Council itself anticipates these increasing threefold . . .) and the fact that the Grainger scheme makes no provision at all for affordable housing, will bring about a significant shift in the commercial and residential make up of the area . . ."
The resolution to grant planning permission was passed by 5 votes to 4.
(a) The need to eliminate unlawful racial discrimination,
(b) The need to promote equality of opportunity between persons of different racial groups,
(c) The need to promote good relations between persons of different racial groups.
The appellant relies on the second and third of those duties.
"It is the clear purpose of s.71 to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. It is not possible to take the view that the Secretary of State's non-compliance with that provision was not a very important matter. In the context of the wider objectives of anti-discrimination legislation, s.71 has a significant role to play. I express the hope that those in government will note this point for the future."
Evidence before the council
"May I kindly request you and all decision makers to carefully consider the Human suffering the loss of achievement, of the Ethnic Minority Businesses in West Green Road, Seven Sisters Road and the High Road, known as the Wards Corner.
I live above my Business with by family, and it is a live and work business concept … I am part of this Diverse local Ethnic minority Community who I serve and depend on my Shop for their unique and specialist Food products that is non available in National Supermarkets.
Demolition will destroy the existing Ethnic Minority Business, the Owners, their families, employees and their suppliers. The owners and their families have built up their existing businesses with many years of hard work and determination, in some cases hard work of three generations of the family. There are a number of traders who live above their businesses and in this case they will be forced out of their homes. The traders will not be able to relocate their business to a new location and be successful due to the poor state of the world economy … The customers and residents will lose their choice of shopping and the specialist shops."
"Local planning processes are required to demonstrate that meaningful community engagement and equalities issues have been accounted for and that diverse groups are not systematically disadvantaged by public authority processes. There is no reference in this planning application to the impact on diverse communities and the needs of diverse local communities, including ethnic minority communities. Members of particular minority ethnic communities are being disproportionately disadvantaged by these proposals. Virtually all the businesses that will be ended by the proposals are from ethnic minority communities that provide some ethnically distinct and important services and goods. The Coalition contends that the needs of the growing Latin American community are being explicitly negated in these proposals."
"Public authorities should support the social and business networks in an area. These plans from Grainger represent the destruction of existing community and replacement by an alternative, selected community. This is Council-backed, unethical social engineering which WCC rejects."
"This is of great importance for Seven Sisters as it contains, within the proposed development, businesses that provide "essential convenience and specialist" shops which provide for, and add to, the cultural diversity of Tottenham. These shops would be lost forever if the demolition goes ahead and the local community would be bereft. Several long-established businesses will lose their livelihood and in some cases, their homes. Local authorities are supposed to support SMEs [small and medium enterprises], not eradicate them in favour of units designed to appeal to high street multiples."
"The Wards Corner Community Coalition takes the view that the Grainger scheme for the site will not deliver regeneration for the people of Tottenham and will damage the material, social and economic fabric of this diverse community. Further, the Wards Corner Community Coalition believes the Grainger proposals to be based upon questionable premises and have put forward an alternative vision for the site."
The council's decision
". . . the proportion of small retailers can also assist the needs of local business, small and medium sized enterprises (SMEs) and black and minority ethnic businesses which in turn can support the needs of the local community."
"The Report concludes that it would not be sensible or economically viable to relocate the market in the proposed development. However the report also states that, most if not all of the traders could be of interest to other market operators as potential tenants and that there is an option of integrating the non Spanish speaking traders into alternative locations independently while trying to keep the Latin American traders together to move as a group at the right time."
"The Committee was informed that the proposed development was unpopular and would not be considered a landmark development. It would have extremely negative impacts on existing local businesses, homes, social amenity and community cohesion. Objections related specifically to loss of longstanding, diverse and viable businesses and jobs, detriment to community cohesion in Tottenham through targeted harm to ethnic minority communities. . ."
". . . the local traders reflected the rich cosmopolitan mixture of the local community and their businesses responded to the special needs of those communities…these would not be accommodated within the proposed development."
"Could the policy or the way the function is carried out have an adverse impact on an equality of opportunity for some racial groups? In other words, does it put some racial groups at a disadvantage?"
The fourth question is:
"Could the adverse impact be reduced by taking particular measures?"
". . . a large proportion of minority ethnic communities are concentrated in those parts of the borough where the greatest concentrations of disadvantage are found. Therefore the regeneration initiatives will be targeted at the centre and the east to narrow the gap between the east and west of the borough."
"In my judgment, it is important to emphasise that the section 71(1) duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. Thus the Inspector did not have a duty to promote equality of opportunity between the appellants and persons who were members of different racial groups; her duty was to have due regard to the need to promote such equality of opportunity."
"I do not accept that the failure of an inspector to make explicit reference to section 71(1) is determinative of the question whether he has performed his duty under the statute. So to hold would be to sacrifice substance to form."
That is not disputed. Dyson LJ added, at paragraph 37:
"The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. . . To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning."
"But where a policy has been adopted whose very purpose is designed to address these problems, compliance with section 71 is, in my judgment, in general automatically achieved by the application or implementation of the very policies which are adopted to achieve that purpose."
Mr Harrison submitted that, on a parity of reasoning, consideration of planning polices in the UDP was equivalent to a specific consideration of section 71(1).
Judgment of Mr Lindblom QC
"In the present case the statutory needs were in the very focus of the Council's own policies dedicated to the regeneration of Wards Corner. In the UDP there is both a general impetus for regeneration and the specific aim of promoting the welfare of the communities, including the racial minority communities, which are principally concentrated in the most deprived parts of the borough. This is the background to policies AC3 and AC4. The Bridge NDC initiative also sprang from a recognition of the problems afflicting the ethnic minority communities in these areas. The development brief for Wards Corner had its genesis in those issues too. I am satisfied that the authors of the UDP believed they must reflect in its provisions for the Wards Corner area the imperatives of advancing the interests of diversity and racial equality, and recognized that securing social, economic and physical regeneration in this area would advance those interests."
"This, in my view, is a case in which the achievement of such benefits was in compliance with the statutory goals in section 71. And I believe it is right to discern a parallel in the present case with the circumstances in Isaacs. This too is a case in which the considerations arising under section 71 effectively merge with the matters to which the Council had to have regard by virtue of its fundamental duties under the planning legislation to make decisions on applications for planning permission having regard to all material considerations, including the development plan, and in accordance with the plan unless material considerations indicate otherwise. It is to be noted that no failure to go through that statutory exercise in a legally satisfactory way has been alleged by the Claimant. To my mind, this is significant in itself."
"In my judgment, therefore, the Council did at least as much as it had in substance to do to comply with its duties under section 71. It did so in the pragmatic fashion endorsed by the Court of Appeal in Baker . . . Viewing the whole of the Council's conduct in this case, I am satisfied that it met the substance of the statutory requirements, and thus had regard to the section 71 needs in a way that was appropriate in all the circumstances. I conclude that although the Council did not at any stage articulate the fact that it was going about the discharge of its section 71 duties as they bore on the traders in the Latin American market and on the BME communities, it achieved this end and it did so fully."
Lady Justice Arden :
Lord Justice Sullivan :