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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Harris, R (on the application of) v The London Borough of Haringey [2010] EWCA Civ 703 (22 June 2010) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2010/703.html Cite as: [2011] PTSR 931, [2010] JPL 1635, [2010] BLGR 713, [2010] EWCA Civ 703 |
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C1/2009/2198 |
OF
APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, ADMINISTRATIVE COURT
KEITH LINDBLOM QC (sitting as a deputy High Court judge)
Royal Courts ![]() ![]() Strand, ![]() ![]() |
||
B e f o r e :
LADY JUSTICE ARDEN
and
LORD JUSTICE SULLIVAN
____________________
The Queen on the Application ![]() ![]() ![]() ![]() |
Appellant |
|
- and - |
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The ![]() ![]() |
Respondent |
|
- and - |
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(1) Grainger Seven Sisters Ltd (2) Northumberland And Durham Property Trust Ltd |
Interested Parties |
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- and - |
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The Equality and Human Rights Commission |
Intervener |
____________________
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
____________________
OF
JUDGMENT
Crown Copyright ©
Lord Justice Pill :
"Demolitionof
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 orof
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 equalityof
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 upof
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 equalityof
opportunity between persons
of
different racial groups,
(c) The need to promote good relations between personsof
different racial groups.
The appellant relies on the second and third of
those duties.
"It is the clear purposeof
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 lossof
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 partof
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 yearsof
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 needsof
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."
They added:
"Public authorities should support the social and business networks in an area. These plans from Grainger represent the destructionof
existing community and replacement by an alternative, selected community. This is Council-backed, unethical social engineering which WCC rejects."
"This isof
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 peopleof
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 proportionof
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 allof
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 lossof
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 mixtureof
the local community and their businesses responded to the special needs
of
those communities…these would not be accommodated within the proposed development."
Submissions
"Could the policy or the way the function is carried out have an adverse impact on an equalityof
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 proportionof
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 equalityof
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 failureof
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 substanceof
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 implementationof
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 focusof
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 achievementof
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 Courtof
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."
Conclusions
Lady Justice Arden :
Lord Justice Sullivan :