Baker and Others, Regina (on the Application of) v Secretary of State for Communities and Local Government and Others: CA 28 Feb 2008

Dyson LJ considered the interaction between race relations law and planning permission in the context of gypsy encampments. He looked at section 71 of the 1976 Act and said: ‘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. She had to take that need into account, and in deciding how much weight to accord to the need, she had to have due regard to it. What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing.’
‘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. The form of words suggested by Mr Drabble to which I have referred above may not of itself be sufficient to show that the duty has been performed. To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning.’

Dyson LJ, May LJ, Sir Robin Auld
[2008] EWCA Civ 141, [2008] ACD 62, [2008] 2 P and CR 6, [2009] PTSR 809, [2008] BLGR 239
Town and Country Planning Act 1990, Race Relations Act 1976 71
England and Wales
Cited by:
CitedWatkins-Singh, Regina (on the Application of) v The Governing Body of Aberdare Girls’ High School and Another Admn 29-Jul-2008
Miss Singh challenged her school’s policy which operated to prevent her wearing while at school a steel bangle, a Kara. She said this was part of her religion as a Sikh.
Held: Earlier comparable applications had been made under human rights . .
CitedAC v Berkshire West Primary Care Trust, Equality and Human Rights Commissions intervening Admn 25-May-2010
The claimant, a male to female transsexual, challenged a decision by the respondent to refuse breast augmentation treatment. The Trust had a policy ‘GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not . .
CitedBroxbourne Borough Council v Robb and Others QBD 27-Jun-2011
The Council applied for the committal of the defendant for an alleged breach of a without notice injunction. Notice of the injunction had been placed at the site, requiring nobody to move caravans onto the land.
Held: The application . .
CitedHotak and Others v London Borough of Southwark and Another SC 13-May-2015
The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those . .

Lists of cited by and citing cases may be incomplete.

Planning, Administrative, Discrimination

Leading Case

Updated: 31 October 2021; Ref: scu.266003