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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 >> Coleman, R (on the application of) v The London Borough of Barnet Council & Ors  EWHC 3725 (Admin) (21 December 2012)
Cite as:  EWHC 3725 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of)
|- and -
The London Borough of Barnet Council
|- and -
The Trustees and Governors of Etz Chaim
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Alexander Booth (instructed by London Borough of Barnet) for the Defendant
Paul Brown QC (instructed by Berwin Leighton Paisner) for the Interested Party
Hearing dates: 24 October and 5 November 2012
Crown Copyright ©
Mr Justice Lindblom:
1. I live within walking distance of land that was formally known as the Wyevale Garden Centre .
4. Up until the closure of the centre I had been a frequent visitor to the Garden Centre, sometimes visiting as often as 3 times a week, for in excess of 24 years.
5. I am a 33 year old Jewish sufferer of Prader-Willi Syndrome , a rare genetic disorder arising from chromosome abnormality, the symptoms of which include cardiac deficiency, fatigue and learning disabilities and which, at a progressive stage, is life-threatening.
11. I was able to walk to the Garden Centre and would spend considerable time there partially because it had multiple uses, had plenty of open space, was a truly accessible meeting place for myself and my neighbours and it was under cover and heated in the winter which is important because I cannot control my body temperature.
12. Ever since the Garden Centre opened, when I was 10 years old, it has always been used by people like me so I never felt uncomfortable. I was then at [a] special school for people with learning disabilities as well as for the elderly and the staff taught me to garden because it was something that many people with learning disabilities could do on an equal level with people who do not have problems with learning. At the Garden Centre, I could chat to those with or without disabilities on an equal footing and my neighbours and I became friends.
13. I am fully aware that the breadth of the facility offered at the Garden Centre for the disabled and elderly is unequalled within Mill Hill (including the town centre). No other facility within the local area comes even close to the nature of the facility provided at the Garden Centre. The Garden Centre incorporated many green spaces, indoor and outdoor horticultural areas, an aquatic centre and all-day café, all within an environment which proved fully accessible to the disabled and elderly. The openness of the Site enabled the accommodation of sizeable groups of disabled and elderly users. Prior to the closure of the Garden Centre, I regularly saw groups of 80+ disabled and elderly users and their carers for dedicated exercises, events and activities. Sometimes Jewish Care used to book out the whole café for the afternoon leaving the outside area for other visitors. Everyone was happy and it is not nice to now be at home with nowhere to go.
14. There are many other charities and Social Service groups, nearing 15 in number I would estimate, who regularly used the Garden Centre that I would see and others have written in support[,] including Barnet Adult Social Services, Barnet College and Flower Lane Autism (catering for adults). I exhibit some of these letters as Exhibit DC/1.
19. There are housing estates within walking distance[,] for example where 76 people with an average age of 85 [are] located[,] with a further estate housing many more elderly and disabled residents also within less than a mile of the site.
20. The Garden Centre was not just 'useful', but vital for the disabled and elderly. Certainly I and many other disabled friends simply have nowhere else to go and are left isolated. I no longer see my neighbours except those immediately either side of me and they don't know me.
28. [The garden centre] was not just a place for individuals. [It] served as an educational resource for disabled and elderly users, offering bespoke services and activities not accessible to these groups elsewhere and which include restorative visual and tactile services, water-life experiences, lessons in horticulture and flower and vegetable cultivation.
30. I have tried to explain why this is a unique site due to its association with the community for over 80 years. Therefore, it is not the case that any and all Garden Centres or other large open space, multiple occupancy businesses [require] protection from the court. However, this specific Garden Centre in this specific location is unusually rare.
37. No comparable facility is located within reasonable walking or public transport distance of the homes of a high proportion of the disabled and elderly visitors to the Garden Centre.
53. I am bringing this action because someone has to stand up for more than 1,000 elderly and disabled residents who are being told by [the] Council that their views are less important than a Policy on Free Schools. I don't understand this and nor do almost 1,000 elderly and disabled people in our area and I am asking the court to assist and give me justice on behalf of all the elderly and disabled.
54. I wish to emphasise that this is not about a 'much loved facility' but a place that was essential to my quality of life. ".
"The November 2011 report provides a strategy that will address the 60 expanding to 90 child shortfall of school places . The strategy does not include Free Schools as they do not come under the Council's authority . Therefore, the shortfall is satisfied by other school place provision. In other words, there was no necessity for the School to fill the shortfall as plans were already in place in November 2011 to permanently resolve any shortfall which excluded the School [.]".
The proposed development
The objections to the Trust's proposed development
"This response has been put together by individuals in the Action Mill Hill who have no experience or qualifications in any of the matters stated. However, we have managed to identify serious flaws within the application. Any failure by Barnet's Planning team to address these issues, even should they disagree, demonstrates clearly their failure to properly assess the application from an independent stance. They are after all the experts.
The application documents demonstrate that the application fails on air quality, traffic generation and community use. The application also fails to demonstrate why the balance should be in favour of the increased school, that doesn't exist yet ([i.e.] No children suffer) compared to the impact we have demonstrated providing around 1,000 letters from members of the elderly and disabled many of whom can't move elsewhere as they are in protected housing.
A number of elderly and disabled residents either didn't compose objection letters for fear of the intimidation and misinformation from the applicants and the school's Governors or failed to understand the complex consultation process undertaken.
The balance is clearly in favour of rejecting this application and any finding that the application value outweighs the harm caused to the elderly and disabled is demonstrably unreasonable.
Please consider our detailed remarks within the planning assessment by Barnett's Planning Team as we are certain that they are at least worthy of consideration."
The planning officers' report
"The proposal is considered to be acceptable with regard to development plan policies subject to appropriate planning conditions. It would introduce valuable education accommodation in the borough, having an acceptable impact on the character and appearance of the site, wider locality and its Green Belt location. The proposal would have no significant impact on the amenities of neighbouring occupiers and can be accommodated on this site without significant adverse impact on local roads and the highway network. Having taken all material planning matters into consideration and having paid due regard to the need to eliminate discrimination and promote equality with regard to those with protected characteristics, officers conclude that the benefits to the wider community of the provision of new educational facilities outweighs [sic] the adverse impact on those with protected characteristics."
"a) Loss of valuable community use meeting local needsUntil recently, the site was functioning as a garden centre, a community use. Such a use could easily be reinstated if this application were refused. The specific characteristics of the site enable such unique community uses to thrive, [i.e.] the footprint and openness of the site, its location and incorporation of a number of green spaces alongside buildings that may house sizeable groups make this site key for community use. The site catered regularly for large groups of disabled and elderly users and their carers for dedicated activities. High number of former users have no viable alternative to the use of the site. No other site in and around Mill Hill provides any like amenity for daytime use for disabled and elderly users. (1612 responses in total).
e) Discriminatory policies and breaching the Equalities Act 2010 [sic]Section 149 subsection 5 of the Equalities Act 2010 [sic] requires a public authority to exercise its functions with due regard to fostering of good relations between persons who share a relevant protected characteristic and persons who do not share it. Recent court judgements indicate that the elderly and disabled should be given priority. Garden centre site is a primary centre for interaction between the mentally and physically disabled and able-bodied members of the community. Barnet's LDF Statement of Community Involvement states 'We are also committed to making Barnet a place where disabled people can lead fulfilling lives and play a full part in society.' Any rhetoric and statements made by government ministers and CLG statements cannot possibly match legislation enacted by Parliament.As landowner the Council has a duty to pay due regard (interpreted as giving a 'priority') to those with protected characteristics. This is enhanced by the special and unique circumstances in this location [i.e.] surrounded by housing restricted to the elderly and disabled, always had a community asset in this location, focus of support and visitation by large number of mental health charities many of whom receive funding from Barnet Council, is a residential area 'fenced' off from The Broadway and many residents will not and cannot use the underpass because of safety concerns, the Council own the land which has a 103 year restricted lease, purchased originally by the Council and protected by positive covenant by use by community 'for ever' and is protected as green belt land. (1283 responses in total).
g) Alternative sitesAlternative sites are not true alternatives and demonstrate a complete disregard for this significant material planning consideration. Other sites rejected because too far away (10 sites over 7 miles away so clearly not relevant), 7 rejected because 'unavailable['] (including one which has been a school for 70 years), 2 require renovation (appear arbitrary as construction costs for Wyevale site are over £2.4 million), 4 allegedly 'not value for money'. Unreasonable to make such an uninformed assessment as Wyevale site costs public approx. £5 million. Alternative sites within 2 miles of Daws Lane demonstrate there are no 'exceptional circumstances' requiring use of this site for a brand new school. Department of Education have failed to indicate why other sites considered were rejected save for two criteria cost and timeliness. By the end of the project the cost of the site will far exceed the £7 million originally estimated and the site will be unlikely, considering legal challenges, to move ahead for many years. (491 responses in total).
i) Inadequacy of the applicant's proposals as to community useProposed community use doesn't provide a replacement for what is lost. No significant interaction capability for elderly and disabled. Basically what is proposed is a kosher venue for hire on some evenings and weekends. It does not secure any 'community use' but supports a potential aspiration. Four of the seven facilities to be made available would only be available when not used by the school. In reality because of security issues any community use likely to be used outside school hours, no independent community use of 'school vegetable plots' is envisaged and no certainty that the 'community café' will be delivered and even if it were, it cannot replace the facilities lost. Pricing policy would not allow free use of the building independently. (469 responses in total).
j) Breaching equal access policiesThe elderly, a growing section of the community, rely on the facility the garden centre provides. Barnet's Equality Policy, Putting the Community First, states 'Every resident and service user has equal access to high quality services that meet their needs. We recognise that there are some people who may need support in receiving this entitlement'. The Core Strategy emphasises the importance of 'integrated community facilities'. It is the Council's responsibility to not grant planning permission or assign a lease which does not preserve residents' entitlement to a community focal point that has been there over 80 years. (462 responses in total).".
"1.20. Additional Consultation
1.20.1. Nine replies were received from residents. One lives near Poets Corner, two live in the Marshall Estate, Hammers Lane, three elsewhere in Mill Hill, one in Edgware and one in Burnt Oak. Some residents visited a couple or up to five (one resident) times a week, others a number of times a month. Some visited to shop and all mentioned visiting to meet friends, for social interaction and some with a care worker. Some walked and others got the bus.
1.20.2. Twelve replies were received from groups, either submitted proactively or in response to the Council's letter
- The Good Neighbour Scheme received a number of comments from their clients, mainly single men and women in their 80's and 90's for whom the closure of the centre has greatly reduced their choice of day to day activities. Some of the clients drove to the garden centre, others got the bus and others walked or were pushed in wheelchairs.
- A particular Darby and Joan Club from Burnt Oak with 25 members visited twice a year.
- 2 local primary schools used the centre and considered it a valuable resource. Children walked to the centre from one school to buy seeds and plants and the staff were open to questions.
- The Rainbow [Brownie] pack used the facility regularly to buy plants and see how things grow, the families of all the girls used the garden centre.
- The Friends of 'The Willows' organised monthly trips to venues within 10 miles of Kingsbury and greatly enjoyed this garden centre.
- Severely disabled and elderly residents from Henry Nihill House were taken on frequent visits. Had easy wheelchair access.
- Winterstoke Gardens Freeholders Society specially concerned with withdrawal of community use for the 11 of the residents who are elderly and disabled.
- Lawrence Street Allotments No longer have a trading hut and many members used Wyevale, it was only 5 minutes away. The Finchley Nursery is not so convenient or well-stocked. Also concerned about ability to assign a long lease to the garden centre, now the school, as Federation of Barnet Allotments is struggling to get a 38 years lease.
- SENSE worker regularly took deafblind people to Wyevale as they could enjoy the touch, feel and smell of the flowers and the café was quieter than the one in the park.
- Organiser of local club affiliated to Mencap considers garden centres and cafes a lifeline to mentally and physically disabled people.
- Director of Disability Action in Barnet supports retention of its amenity and states that the access and transfer infrastructure make the garden centre an ideal location for enhancement of clients' quality of life.
1.20.3. One reply was received from a service provider for people with autism. The letter stated that they visited the garden centre with users because it was a quiet environment where users could enjoy the sensory aspects of the centre. It was a stop-off point for a drink when walking to and from the park, the café in the park being frequented by young children and babies and hence too noisy. Also had a good disabled toilet and staff were very welcoming. Plants and gardening products were purchased for the garden of the day centre which users tended. They had hoped to look at work opportunity experiences for certain users. Although nothing compares with Wyevale for the sensory/therapeutic/calming and supportive aspects all a short walk away, the users did visit other local places [e.g.] coffee shops in Mill Hill and larger pubs in the area for meals.
1.20.4. A response was received from a manager in Barnet's Adult Social Care and Health Service, confirming that service users of some of Barnet's day centres visit garden centres to purchase plants etc. for gardening projects. The Flower Lane Autism Service used the Wyevale centre, either travelling on foot or by minibus. The author of the response stated that since there are other gardening facilities in the Borough within easy reach of all the Learning Disability services, she considers that there will not be a major impact on the lives of people supported."
"Given that the Council has identified [a] need for additional primary school places in this part of the borough and the Department for Education has accepted the proposal for a Jewish Free School in Mill Hill, officers consider that the principle of a new school is acceptable. Officers consider that the proposal complies with Barnet UDP policy CS4 concerning the development of new educational facilities and emerging Development Management policy DM13."
"6.12.6 [The] proposed school does not result in an overall intensification of traffic movement compared to the previous use of the site. Officers therefore consider that, whilst there will be peaks of traffic activity, the proposed school would not result in unacceptable levels of congestion on the local highway network.
6.12.7 As with all schools it is recognised that there is an impact on-street during school drop-off and collection times. On balance, in light of the planned changes to the council car park and in conjunction with the [School Travel Plan] and other mitigation measures, which will need careful and thorough monitoring by the school and the council it is considered that the traffic impact for this one-form entry proposal can be accommodated on the existing highway network."
"Following concerns raised during the consultation process in relation to the previous application on this site, it became clear that for many residents the loss of the garden centre represented the loss of a local facility that they used socially to meet friends and interact with the local community as well as for shopping."
"7.4.4 Clearly a significantly greater number of residents have concerns about the loss of the garden centre on groups with protected characteristics.
- Notwithstanding the views expressed by those objecting to the proposals, officers consider that although the garden centre provided a much-loved local facility for a very large number of local residents, there are other places in the local area that can provide similar services and meet some of the same needs[.]
- Whilst recognising that it does not have the same café or toilet facilities as the former Wyevale centre, officers not that there is another garden centre in Mill Hill which sells plants, garden and aquatic products. It is accessible by bus from Daws Lane along The Ridgeway[. However,] officers accept there is a 5-10 minute walk from the bus stop and the Council accepts that it is not as accessible on foot as the Wyevale garden centre. The access road to the garden centre itself is via a rough surfaced highway without a pavement.
- The Wyevale Site is within a 5 minute walk of Mill Hill town centre which is one of the borough's thriving town centres providing a variety of shops, cafes and restaurants. There are approximately 7 cafes, various shops selling cards and gifts as well as numerous other retail outlets. Officers recognise that some of these premises may not be as independently accessible to those with mobility problems, particularly wheelchair users, but there are a range of premises available.
- The Wyevale Site is adjacent to Mill Hill park, one of the borough's premier parks. The park itself has an indoor café, toilets and [children's] play area as well as sporting facilities. Again, it is recognised that the park does not provide an all-weather facility on the same scale as the former garden centre and that the café may not be as appropriate for certain users as the garden centre. However, in terms of accessibility the Park is located next to the same car park customers of the former garden centre would have used. There is a second car park within the park itself.
7.4.5 In this case, officers accept that there has been impact from closure of the garden centre on particular individuals, particularly those elderly people or disabled people who cannot use public transport or who made use of the garden centre socially as a place to meet friends or interact with the wider community. Accordingly significant weight must be placed on those impacts when considering the merits of the planning application.
7.4.6 However, set against the identified impacts on groups with protected characteristics are the facts that:i) the site was run prior to its closure in September 2011 as a commercial shop and the leasehold is privately owned[;]ii) there are positive benefits of the proposal in terms of the provision of a school which meets the identified needs of children as set out elsewhere in this report[; and]iii) [the] government has stated a policy presumption in favour of the provision of state-funded schools and for which there is strong policy support. The draft National Planning Policy Framework requires LPAs to attach very significant weight to the desirability of establishing new schools and to enabling local people to do so.
7.4.7 In making this recommendation in respect of the planning application, officers have given weight to the impact that the proposal would have on the identified protected groups. However the harm is considered to be outweighed by other considerations. The Council is required to give consideration to the mitigation of the impact. In this case the garden centre has closed. It is a commercial site and the Council has no planning control over the closure of the garden centre. Further it is considered that many of the activities that people carried out in the garden centre can and will be carried out in the other local facilities identified above. As such, officers consider that the change of use to a school will have adverse impacts but these will not be as significant as local people fear, given that the activities carried on at the centre by the identified groups can be carried on elsewhere in nearby locations. Having regard to these matters and, importantly given the identified and compelling need for the school and the positive outcomes through providing more school places in an area of need for the children whom the School would accommodate, it is officers' recommendation that permission be granted."
The section 106 obligation
" A report detailing the following information:(a) How the school will ensure that the site is available for community use.(b) Details of the facilities that will be available, pricing policy, hours of use, access by non-school users, management responsibilities, timetable for implementation of the Community Access Plan.(c) The Plan shall set out how members of the wider community have been involved in the drafting of the Plan and how they will continue to be involved in the management and adaptation of the Plan.(d) Details for a mechanism for review.(e) Details of the timetable for review."
The Council's decision notice
"The premises shall be used only by the Etz Chaim Mill Hill Jewish Free School and associated community uses as set out in the Community Access Plan and for no other purpose (including any other purpose in Classes D1 or D2 ) ".
Condition 4 states:
"The use of the premises for the purposes hereby permitted shall only take place between the hours of 7.00 [a.m.] and 9.00 [p.m.] on weekdays, and between 9.00 [a.m.] and 7.00 [p.m.] on Saturdays and Sundays or as agreed in the Community Access Plan."
Condition 9 states:
"Two months prior to the school opening a School Travel Plan that the meets the current Transport for London criteria as detailed in the document 'What a School Travel Plan should contain' shall be submitted to and approved in writing by the Local Planning Authority. The documents shall set out the school's transport policy to incorporate measures to reduce trips to school by the private car and encourage non car modes such as walking, cycling and public transport. Details of the start and finish times for pupils shall also be incorporated in order to minimise conflict on the local highways network. The scheme as submitted shall be approved in writing by the local planning authority and the use shall be carried out in accordance with the School Travel Plan as approved.
The School Travel Plan should include the appointment of a School Travel Plan Champion, measurable targets and a clear action plan for implementing the measures. The School Travel Plan should be reviewed annually in accordance with the targets set out in the Plan."
The deed of variation
" 3.7 At least three months prior to the date of first Occupation of the Development the Owners covenant to submit for approval by the Council the Owners' proposed draft of the Community Access Plan and to revise the draft Community Access Plan to incorporate any reasonable comments made by the Council within four weeks of receipt of the Council's comments prior to the date of first Occupation of the Development and for the avoidance of doubt the community uses to be developed in the Community Access Plan may include any or all of the following:
3.7.1 the establishment of a social community centred around the Development (which may include the setting up of [a] University of the Third Age group);
3.7.2 the creation of the Josiah Wedgewood garden on the Land (with full disabled access and therapeutic space); and
3.7.3 the use of the Development as a venue for local groups and events.
3.8 The Owners further covenant that they shall:
3.8.1 at all times implement the terms in which the Community Access Plan is approved by the Council by the dates or within the time limits set out within such plan pursuant to clause 3.7 in connection with the carrying out completion bringing [into] use and occupation of the Development.
3.8.2 on every anniversary of the date on which the Development is first brought into use disclose to the Council the following information in order that the Council may review the implementation and content of the Community Access Plan:-(i) facilities that have been made available for use by the local community in the preceding 12 months and the hours of such use and any consideration charged in relation thereto
3.8.3 In the event that the Council approves any proposed amendment or modification to the Community Action Plan by the Owners the Owners shall:
184.108.40.206 At all times implement the terms in which the Community Access Plan is so amended or modified in connection with the ongoing use and occupation of the Development.".
The issues in the claim
(1) whether the Council lawfully discharged its duty under section 149 of the Equality Act 2010;
(2) whether the section 106 obligation entered into by the Trust on 29 March 2012 was adequate to achieve what the Council sought from it;
(3) whether conditions 3 and 4 of the planning permission are unlawful;
(4) whether the extant temporary planning permission for school use on the site was an irrelevant consideration for the Council to take into account when making its decision, and whether the Council erred in failing properly to consider alternative sites for the development;
(5) whether the Council failed to consult as it ought to have done on the application for planning permission;
(6) whether the Council failed to consider the likely effects of the development on car parking and traffic; and
(7) whether the Council failed to provide adequate reasons for granting planning permission.
Issue (1): section 149 of the Equality Act 2010
The statutory provisions
"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 isprohibited by or under this Act;(b) advance equality of opportunity between persons who share a relevant protectedcharacteristic and persons who do not share it;(c) foster good relations between persons who share a relevant protected characteristic andpersons who do not share it."
"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."
"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."
" [There] is a notable distinction between disability and other targets of equality legislation such as race or sex, because disability can be in numerous different forms. Different steps are needed to have regard to the needs of the mentally disabled from those of the physically disabled. The needs of a blind man are different from one who is deaf. Furthermore, disability comes in varying degrees."
To similar effect, Mr Lopez suggested, were observations made by Dyson LJ in his judgment in R (Baker) v Secretary of State for Communities and Local Government  PTSR 809, the rationale of the Court of Appeal's decision in R (Harris) v Haringey London Borough Council  EWCA Civ 703, and several passages in the decision of Walker J in the Birmingham case (in particular at paragraphs 151 and 172 to 176), the decision of Moses LJ in R (Kaur) v Ealing London Borough Council  EWHC 2062 (Admin) (in particular at paragraph 23) and the decision of HHJ Milwyn Jarman QC, sitting as a deputy judge of the High Court, in R (Boyejo) v Barnet London Borough Council  EWHC 3261 (Admin) (in particular at paragraphs 15, 59 and 63).
"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."
" 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 ... ."
"Not only is there no reference to section 71 in the report to committee, or in the deliberations of the committee, but the required "due regard" for the need to "promote equality of opportunity and good relations between persons of different racial groups" is not demonstrated in the decision making process. "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."
v. The duty requires the circumstances of the full range of disabled people to be taken into account and may require certain groups of disabled people to be prioritised, for example on the basis that they experience the greatest degree of exclusion;
vii. "Due regard" means specific regard by way of conscious approach to the specified needs;
x. In a case where the decision may affect large numbers of vulnerable people, many of whom fall within one or more of the protected groups, the due regard necessary is very high.
"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
Issue (2): the section 106 obligation
Issue (3): conditions 3 and 4
Issue (4): the temporary planning permission and alternative sites
Issue (5): consultation
Issue (6): car parking and traffic
Issue (7): reasons