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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> LDRA Ltd & Ors v Secretary of State for Communities And Local Government & Ors  EWHC 950 (Admin) (06 May 2016)
Cite as:  EWHC 950 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) LDRA LIMITED
(2) DR MICHAEL HENNELL
(3) COLIN EVANS
(4) PRIORY WHARF MANAGEMENT COMPANY LIMITED
|- and -
|(1)SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) CAMMELL LAIRD SHIPREPAIRS AND SHIPBUILDERS LIMITED
(3) WIRRAL BOROUGH COUNCIL
Stephen Whale (instructed by the Government Legal Department) for the First Defendant
The Second and Third Defendants did not appear and were not represented
Hearing date: 14 April 2016
Crown Copyright ©
Mrs Justice Lang:
i) The effect of the proposed development on the living conditions of nearby residents of Priory Wharf.
ii) The effect of the proposed development on the operation of LRDA Ltd, the occupier of the offices to the south of the site.
iii) The effect of the proposed development on nature conservation.
iv) The effect of the proposed development on heritage assets.
v) The suitability of the site for development, having regard to flood risk.
vi) The effect of other considerations in the overall planning balance.
"75. The appeal site lies within a primary industrial area on the UDP Proposals Map. Within this designation, the proposed offices and warehouse would be acceptable in principle. However the criteria in Policies EM6 and EM7 apply to new employment development and are also relevant. The development of the site at Alabama Way for a marine operations and maintenance facility would not cause unacceptable harm to the living conditions of nearby residents at Priory Wharf, nor would it result in material harm to the operations of LDRA Ltd. Insofar as nature conservation interests are concerned, there would be no significant adverse effect, and I have found no conflict with Policies EM6 and EM7.
76. The proposal would not detract from the significance of heritage assets, and there would be no conflict with Policy CH1 of the UDP which seeks to safeguard listed buildings. Policies in the UDP concerning the developed coastal zone and the inter-tidal zone are also relevant to the appeal proposal. Whilst there is compliance with most provisions of Policies CO1 and COI7, the closure of about 40m of the riverside footway would conflict with the requirement to preserve public access to the coast.
77. As a consequence of the conflict with Policy CO1 concerning public access to the coast the proposal would not be fully consistent with the Development Plan. I consider that the effect on jobs is of neutral significance in the planning balance, but the proposal would contribute to the implementation of off-shore renewable energy projects, and it would thereby accord with a core planning principle of the NPPF. This is a significant benefit of the proposal which clearly outweighs the limited harm of conflict with Policy CO1 arising from the loss of a short stretch of footway."
i) The adverse impact of vibration on the First Claimant's business;
ii) The adverse impact on disabled persons, because of loss of the car park, and access to the riverside.
iii) The loss of access to the slipway by charter-boat operators.
iv) The proposed condition excluding B2 uses in the building.
v) An alternative available site.
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision."
Ground 1: Vibration
Ground 2: Disabled persons' access to the riverside
"149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to
(a) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are
pregnancy and maternity;
religion or belief;
"65. The relevant jurisprudence is clear and not controversial.
66. As Dyson LJ said in [R (Baker) v Secretary of State for Communities and Local Government  PTSR 809] (in paragraph 31), the duty is not a duty to achieve a result, but to have due regard to the need to achieve the statutory goals. This distinction, said Dyson LJ, is "vital". The failure of a decision-maker to make explicit reference to the relevant statutory provision (in that case section 71(1) of the Race Relations Act 1976) would not determine whether the duty under the statute had been performed, for this "would be to sacrifice substance to form" (ibid., paragraph 36). Dyson LJ went on to say this:
"37 The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed. To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning.
38 Nevertheless, although a reference to section 71(1) may not be sufficient to show that the duty has been performed, in my judgment it is good practice for an inspector (and indeed any decision-maker who is subject to the duty) to make reference to the provision in all cases where section 71(1) is in play. In this way, the decision-maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced."
67. The court must consider whether due regard has been paid to the equality duty, and not simply whether the failure to have due regard to that duty was Wednesbury unreasonable (R (Child Poverty Action Group) v Secretary of State for Work and Pensions  EWHC 2616 (Admin), at paragraphs 70 to 72). "Due" regard means, as Dyson LJ said in Baker (at paragraph 31), "the regard that is appropriate in all the circumstances". The circumstances include "the importance of the areas of life of the members of the disadvantaged group that are affected by the inequality of opportunity and the extent of the inequality" and "such countervailing factors as are relevant to the function which the decision-maker is performing" (ibid.).
68. As Aikens LJ said in [R (Brown) v Secretary of State for Work and Pensions  PTSR 1506] (at paragraph 35), "the general duty [in section 49A(1) of the Disability Discrimination Act 1995] is expressed in broad and wide-ranging terms of the needs or targets to bring about a change of climate, but the section is silent as to how it should be done". He emphasized (at paragraph 82) the need for the decision-maker to "pay regard to any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider". What these factors are in a particular case will depend on the function being exercised and all the circumstances that bear upon it. Aikens LJ added:
" Clearly, economic and practical factors will often be important be important. Moreover, the weight to be given to the countervailing factors is a matter for the public authority concerned, rather then the court, unless the assessment by the public authority is unreasonable or irrational "
70. Performance of the due regard duty must be an integral part of the formation of the decision, not merely the justification for the making of that decision (see R (Kaur) v Ealing LBC  EWHC 2062 (Admin), at paragraph 24). Because the performance of the duty is a matter of substance, to be judged according to the facts of the case in hand, there must be enough information to enable the necessary balancing exercise to be carried out, and that information must be before the decision-maker (see Child Poverty Action Group, at paragraphs 70 to 76). In Brown it was held that the underlying objective of the general duty under section 49A(1) of the 1995 Act was "to create a greater awareness on the part of public authorities of the need to take account of disability in all its forms and to ensure that it is brought into "the mix" as a relevant factor when decisions are taken that may affect disabled people" (paragraph 30).
71. The decision under challenge in this case is a planning decision, the decision of a local planning authority to approve a scheme of development. It is not a decision of a public body to withdraw or reduce a particular service, such as the court had to consider, for example, in the Birmingham case, which concerned the provision made for disabilities in the then current budget of Birmingham City Council. Much of the case law is concerned with decisions of that kind. This is not to say that the public sector equality duty is less onerous in a planning case than it is in others. It is not. But in such a case the circumstances in which the authority's performance of the duty has to be scrutinized will inevitably be different."
"109. In Bracking v Secretary of State for Work and Pensions  EWCA Civ 1345, para 26 McCombe LJ summarised the principles to be derived from the authorities on s 149 , as follows:
"(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence  EWCA Civ 1293 at 274,  IRLR 934,  1 WLR 3213, equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.
(2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department  EWCA Civ 1293,  IRLR 934,  1 WLR 3213 (Stanley Burnton J (as he then was)).
(3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health  EWCA Civ 154 at 2627] per Sedley LJ.
(4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing  EWHC 2062 (Admin) at 2324.
(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin),  PTSR 1506 , as follows:
i) The public authority decision maker must be aware of the duty to have "due regard" to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) 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 for argument;
iv) The duty is non-delegable; and
v) Is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.
(6) [G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria." (per Davis J (as he then was) in R (Meany) v Harlow DC  EWHC 559 (Admin) at 84, approved in this court in R (Bailey) v Brent LBC  EWCA Civ 1586 at 7475.)
(7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be "rigorous in both enquiring and reporting to them": R (Domb) v Hammersmith & Fulham LBC  EWCA Civ 941 at 79 per Sedley LJ."
110. McCombe LJ went on to identify three further principles, which may be summarised as follows:
(8) It is for the Court to decide for itself if due regard has been had, but providing this is done it is for the decision maker to decide what weight to give to the equality implications of the decision (following R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin), per Elias LJ @ -).
(9) "[T]he duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consideration with appropriate groups is required" (R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin), per Elias LJ @ ).
(10) The duty to have due regard concerns the impact of the proposal on all persons with the protected characteristic and also, specifically, upon any particular class of persons within a protected category who might most obviously be adversely affected by the proposal (Bracking, per McCombe LJ @ ).
111. As to the importance of the second principle, McCombe LJ stated @ -:
"it seems to me that the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude" and "In the absence of evidence of a 'structured attempt to focus upon the details of equality issues' (per my Lord, Elias LJ in Hurley & Moore) a decision maker is likely to be in difficulties if his or her subsequent decision is challenged"."
"59. Policy CO1 expects that public access to the coast will be at least preserved, and Policy CO7 requires that public access should be preserved unless this would be impractical. The greater part of the appeal site comprises a public car park, and a riverside footway from the north continues across the site to its southern boundary. Plan AL16 identifies these areas as highway, which it is proposed would be stopped up. The justification to Policy CO1 refers to an objective of the Council to complete a continuous coastal route for pedestrians and cyclists. The proposal would not sever the riverside route, since a gate prevents access to the south beyond the appeal site. The footway between Priory Wharf and the appeal site would continue to provide public access from the surrounding area to the riverside and the route to the north to Woodside. Only a short stretch of footway would be excluded from public use by virtue of the proposal, and there would still be the opportunity to reach the riverside immediately to the north of the existing slipway. Nevertheless there would be a loss of public access across the site, a distance of about 40m, contrary to the requirement of Policy CO1 to preserve public access to the coast. I appreciate that it would be impractical to permit public access on foot within the operational site, and for this reason I find no conflict with Policy CO7.
60. There is disagreement between the parties concerning the usage of the public car park at Alabama Way. The car park is a pay and display facility, and the Council's evidence, endorsed by the Appellant, is that it is little used. Information from ticket sales for the period from January 2011 to April 2014 indicates that on average only 2-4 vehicles a day are parked on the site. Local residents reported that at times there could be up to 30 cars present, and it was suggested that the discrepancy with ticket sales could be due to use of the car park by disabled persons who are exempt from charges, and the non-purchase of tickets for some short stays. I note that photographs 9 and 10 in the Appellant's LVIA show use of the car park by at least 6 and 8 cars respectively, in excess of the Council's evidence but markedly less than the number suggested by local residents. There are opportunities to park on nearby streets, and the Council is satisfied that space here would accommodate parking displaced from Alabama Way. No parking survey of the locality has been submitted, but I anticipate that in the evening and at weekends, when there may be more people wishing to reach the riverside by car, competition for on-street spaces with vehicles associated with the industrial and commercial premises in the locality would be less than during the normal working day. That said, the off-street spaces are further from the riverside and less convenient to use, particularly for disabled persons.
61. As a consequence of redevelopment of the appeal site, there would be no direct access to a short stretch of riverside footway, and the loss of the car park would make it less convenient for those travelling to this part of the riverside by car to reach their destination. I conclude that the proposal would not preserve public access to the coast, and that it would conflict with Policy CO1 of the UDP. This is a matter to which I give limited weight, bearing in mind the short length of footway affected and the continuing opportunity to reach the riverside in the vicinity of Monks Ferry."
"My husband unfortunately suffered a stroke two years ago so obviously he has restricted movement. We use that car park regularly, it is so convenient for me to run him round in the car . I push him along the promenade because it is nice and flat. I could not do this otherwise because I am no longer young myself. The steep slope down to the car park on foot and with a wheelchair is out of the question for me. I am at a loss to understand the thinking on these plans because that area is used by many, it is the only open space left here that is not taken up by industry."
Ground 3: Loss of access to the slipway by charter-boat operators
"64. I have also considered the implications of the proposal for charter boat operators who use the slipway to collect and disembark customers. Representatives of the Mersey Charter Boats Association explained that the slipway is used by about 11 local boats and 5/6 Welsh boats, principally in connection with fishing trips. The three operators who appeared at the hearing explained that there is no place other than the Monks Ferry slipway where they are able to gain 24 hours access to the Mersey. This is important since fishing trips do not typically last from one high tide to another, and each considered that inability to use the slipway would threaten the future of his business. However no detailed assessments have been submitted to demonstrate that the operation of these businesses cannot be adjusted to withstand the loss of access to the Monks Ferry slipway. Another operator, although objecting to the proposal, has stated that he uses the slipway on rare occasions and works out of Liverpool Marina during the winter months.
65. Although the charter boat operators make use of the slipway, their right to do so has been questioned by the Appellant. The slipway is owned by the Council, which has explained that the slipway is not open to the public, that there are no recorded permit holders, and that it is intended for use by the Council, emergency services and Government agencies. At the hearing the legal representatives of the Appellant and LDRA/ Dr Hennell agreed that private rights of way could be established if there was evidence of uninterrupted use over a period of 20 years. That is not a matter for consideration as part of this appeal. However, if a private right to access the slipway by the charter boat operators were established they should be able to continue using it irrespective of the development. On the other hand, if no such right were found to exist, there would appear to be no basis for their use of the slipway.
66. The proposal would create up to 65 new jobs, but there is a possibility that jobs at LDRA would be moved out of the area if redevelopment went ahead. The number of jobs created by Cammell Laird would be less than the number potentially affected at LDRA; however in my judgement there would be greater certainty attached to job creation by the development on the appeal site, and I consider that these factors carry equivalent weight. From what I have heard, the ability of the charter boat operators to continue to use the slipway by is not dependent on the outcome of this appeal. Overall, the implications of the proposal for jobs are a neutral factor in the planning balance."
Ground 4: B2 use
"74. The Appellant has put forward the proposal as a blend of B1, B2 and B8 uses. A condition restricting the use of the site to B1 and B8 uses would therefore be unreasonable. In any event conditions requiring a construction management plan and noise mitigation measures should protect the amenities of adjacent occupiers, and they would also render a condition concerning loud individual noises unnecessary."
Ground 5: An alternative available site
"Dr Hennell has pointed to unused land and foreshore between Pacific Road at Woodside and Seacombe, and has also made reference to the Liverpool side of the river. However there are no details of specific locations in these extensive areas. The information before me does not indicate that any of the alternative locations put forward would be more appropriate for the proposed marine operation and maintenance facility than the appeal site."
i) The appeal statement of Dr Hennell referred to "extensive unused land and foreshore area between Pacific Road, Birkenhead and the Seacombe Ferry, Wallasey. This is already an area for deep-water operations, such as ferries to Ireland."
ii) Dr Hennell's written presentation to the WBC Planning Committee stated "there is an extensive unused land and foreshore area between Pacific Road and the Seacombe ferry. This is already an area for deep water operations (ferries to Ireland, etc). This land may also be in the possession of another company related to Cammell Laird."
"the boat travelled across the river from Liverpool Marina towards the appeal site and it then went upstream to Rock Ferry to enable views of possible alternative sites to the south of the appeal site. Seacombe Ferry is, by contrast, downstream and to the north of the appeal site. After Rock Ferry, the boat followed the same course in reverse back to Liverpool Marina. I have no recollection of a site at Seacombe Ferry being pointed out during the site visit."
"I refer to the witness statement of Dr Hennell in relation to the alternative facility at Seacombe Ferry, which is before the Council at the date of this witness statement. The leader of Wirral Borough Council, Cllr Phillip Davies, has confirmed to me personally that the Council supports the Dong Energy facility so as to avoid the adverse residential amenity impacts the development at Alabama Way would give rise to. "