Planning Court judge rejects challenge over application of public sector equality duty in enforcement dispute

His Honour Judge Jarman KC, sitting as a judge of the High Court, ruled against developer Quarry Mews on both grounds argued.

Quarry Mews brought the case against Oxford City Council, which issued the notice, and the Secretary of State for Housing Communities and Local Government, whose inspector confirmed it.

Oxford’s notice required the demolition of the Mews Building, which comprises six one-bedroom dwellings in a three-storey terrace, as it did not comply with planning permission.

The council said the development, as built, had significantly higher eaves than as approved and a notably higher total height., giving a bulkier appearance, and sat proud of the consistent roofline of the street.

The building was also 11.3 square metres larger than approved, reducing adjacent green spaces

Quarry Mews argued the inspector erred in law in failing to comply with section 149 of the Equality Act 2010 and in failing to have regard to the need to safeguard and promote the welfare of children.

It also said the inspector erred in reducing the weight given to the environmental benefit of not demolishing the development.

The inspector had concluded that the development has a harmful effect on the character and appearance of the area, including a conservation area, to which harm he attached considerable importance and weight.

HHJ Jarman said the inspector had noted the environmental benefit of not demolishing the building - with consequent disruption, pollution and waste of resources and energy - but said this argument could defeat the whole point of enforcement notices and encourage unauthorised development. The inspector accordingly gave it little weight.

The judge said the inspector did not need express regard to the public sector equality duty or to the best interests of the child being a primary consideration, pursuant to Article 3.1 of the United Nations Convention on the Rights of the Child (UNCRC).

This was because an enquiry by the inspector to occupants generated only one response that referred to a child living there.

“Given that the dwellings had only one bedroom, it is not surprising that there was no further evidence of children occupying them,” the judge said.

The inspector had said all of the tenants were on relatively short term contracts and moved into the Mews when already aware of the enforcement notice, although the inspector allowed occupants more time to find alternative accommodation before the enforcement notice took effect.

HHJ Jarman dismissed the first ground argued. He said: “The context in which he was making [decisions] includes…that the dwellings were all one-bedroom dwellings and not family dwellings.

“In my judgment, within that context there is sufficient indication that he had proper regard so as to comply with the PSED when considering the planning balance, when the decisions letter is read fairly as a whole.”

Dismissing the second ground, HHJ Jarman said the inspector had given limited weight to the environmental benefits of not demolishing the scheme and “it is clear in that…he carried out the required balancing exercise and came to the conclusion that the benefits did not outweigh the identified harm. That was a conclusion to which he was entitled to come to”.

Mark Smulian