Partner Karen Jones, in our Planning & Environmental Law team, looks at the recent High Court case of R (Devonhurst Investments Ltd) v Luton Borough Council [2023] EWHC 978 (Admin).
In the High Court case of R (Devonhurst Investments Ltd) v Luton Borough Council [2023] EWHC 978 (Admin), the judge considered whether a local planning authority had regard to its public sector equality duty (PSED) and the best interests of children when issuing an enforcement notice that required 200 residents to move out of a residential building. The High Court dismissed the claim and held that the local planning authority did not fail to have regard to its PSED and the best interest of the children residing in the residential building, when issuing the enforcement notice.
Facts of the case
In April 2016, Devonhurst Investments Limited (the claimant) applied for prior approval to Luton Borough Council (the Council) for change of the use of the building from offices (Class B1) to 130 one-bedroom flats (Class C3). In June 2016, the Council determined that prior approval was not required for the specified works and the conversion had to be carried out in accordance with the details provided, and no consent was granted for “external works” around the building.
The claimant demolished the office block and rebuilt it with an extension, with 109 residential units rather than 130 units. The Council invited the claimant to apply for a certificate of lawful use on several occasions during 2017 and 2018 and the client chose not to pursue a certificate of lawfulness. In 2019, an employee of the Council stated in correspondence that there were no issues with the prior approval for change of use. In 2021, the claimant applied for planning permission for additional residential development and a community centre. A neighbouring employment site owner questioned the site’s change of use to residential use.
After a site visit by the planning officer and reviewing the aerial photographs, the Council concluded that the existing site was entirely unsuitable for residential use. Based on aerial photographs, the Council concluded that the office block had been partially demolished and rebuilt with extensions and that the works did not conform to the original proposal and had not been completed within the required three years. As a result, the change of use and construction works were unauthorised and required planning permission.
An enforcement report was prepared for a delegated decision-maker, recommending formal enforcement action. The report stated that the development contradicted local planning policy and offered inadequate living standards for the occupiers. The report also noted that 200 residents lived on site and that an enforcement notice would result in them having to move, which risked some people becoming homeless. However, the report concluded that the harm caused was outweighed by the public interest for the appropriate use of the land and by the substandard living conditions.
The enforcement report also referred to PSED as required by s149 of the Equality Act 2010 and stated that several residents were vulnerable people with protected characteristics. The enforcement report stated that the unauthorised accommodation is highly deficient in amenities, standards and quality. The units are small in size, do not meet the Nationally Described Space Standards and some of them have no windows on the external building envelope. The report considered that the continued provision of this type of accommodation is contrary to the aims of the Equality Act 2010. The enforcement report further stated that providing this type of accommodation is injurious to the health and well-being of vulnerable groups.
In February 2022, the Council issued an enforcement notice, which gave the claimant six months to cease the residential use of the land and demolish three two-storey structures. The obligation to comply with the remedial steps required by the enforcement notice is suspended pending the outcome of an enforcement appeal.
The claimant applied for judicial review of the Council’s decision to issue an enforcement notice in relation to a residential building on the grounds:
- That the decision to take enforcement action had been taken without proper regard to PSED under s149 of the Equality Act 2010.
- The best interests of children on the site and/or Article 8 (rights of occupiers) of the European Convention on Human Rights; and
- Whether the decision was taken without any proper regard to the statutory test of expediency under section 172(1)(b) of the Town and Country Planning Act 1990 (as amended).
The dispute between the claimant and the Council was regarding duty of enquiry in the context of PSED. The Council contended that in the absence of a statutory duty of enquiry, it is for a local authority to decide the parameters of information gatherings, subject to the test of rationality. The claimant on the other hand contended that it’s for the court to determine whether the duty of enquiry has been complied with and the irrationality threshold is inapplicable.
Judgement
PSED
Mrs Justice Steyn in her judgement held that the enforcement report written for the delegated decision maker did not require a higher level of scrutiny than one intended for a full planning committee (R (Hayes) v Wychavon DC [2014] EWHC 1987 (Admin)) considered. Mrs Justice Steyn held that “…it remains the case that it is not for the court to step into the shoes of the primary decision-maker and that the duty of enquiry in the context of the PSED, as in other context where it is implied in accordance with Tameside, is subject to challenge only on Wednesbury grounds” (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014) considered (paragraph 55 of the judgement).
Mrs Justice Steyn further stated that it was clear from the officer’s report that the Council had consciously considered the proposed enforcement notice’s impact on the needs of those with protected characteristics and had concluded that the flats were used as a temporary accommodation and the occupiers included families with children and low income occupants. The court further held that the Council was not required to individually identify the protected characteristics of the occupiers and that its decision was lawful and rational.
Mrs Justice Steyn concluded that “Although I accept that the Council has not teased out the potential impacts by reference to each of the relevant protected characteristics, and ordinarily it would be better to do so, ultimately, in the circumstances of this case, and for the reasons I have given, I consider that the Council has clearly shown a proper appreciation of the potential impact of the decision on equality objectives and of the desirability of promoting those objectives. Accordingly, I reject this ground” (para 79 of judgement).
Best interest of children
The claimant relied on the UN Convention on the Rights of the Child, which hadn’t been incorporated into English and Welsh law by s11(1), Part 2 of the Children Act 2004 (CA 2004). However, the Council accepted that under s11(2) of the CA 2004, the welfare of children was engaged in the context of planning decisions, and that it had been informed that some site residents were children whose welfare it had to safeguard and promote. However, the court held that s11 did not impose a duty to investigate the individual needs of each child and that, as concluded under the PSED grounds, Mrs Justice Steyn held that it was sufficient that the Council had regard of the impacts of its proposed decision on children and determined that the positive impact of stopping the use of poor accommodation outweighed the potential disruption and distress to them of moving.
Expediency
Mrs Justice Steyn held that the Council had not failed to consider material matters and that the officer’s approach to whether it was expedient to issue an enforcement notice, was lawful.
Article 8 challenge
Under section 7 of the Human Rights Act 1998, proceedings can only be brought by a victim or potential victim of unlaw act. The claimant did not allege that its own Article 8 had been breached and the claimant was not representing the site residents and therefore the claimant could not rely on Article 8.
Comment
The High Court judgement confirms that the courts are unlikely to interfere, with the decision maker judgement in discharge of its PSED duty and can only be challenged if the decision is Wednesbury unreasonableness.
Should you require advice and assistance, please do get in touch with our Planning & Environmental Law team.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
