AC-2025-LON-000362 - [2025] EWHC 1968 (Admin)

The legal principles regarding PSED were not in dispute before me and may be shortly summarised. It is accepted that the inspector was under such a duty so that in the course of his function, he must have regard to the need to (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the 2010 Act; (b) advance equality of opportunity between persons who share a relevant protected characteristics and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

The main principles were summarised in R (Bridges) v Chief Constable of South Wales Police [2020] 1 WLR 5037, in which reference was made to R (Bracking) v Secretary of State for Work and Pensions [2014] EqLR 60, [25] approved by the Supreme Court in Hotak v Southwark London Borough Council [2015] UKSC 30 at [73]) as follows:

“(1)

The PSED must be fulfilled before and at the time when a particular policy is being considered.

(2)

The duty must be exercised in substance, with rigour, and with an open mind. It is not a question of ticking boxes.

(3)

The duty is non-delegable.

(4)

The duty is a continuing one.

(5)

If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required.

(6)

Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision-maker to decide how much weight should be given to the various factors informing the decision..”

The PSED requires a highly fact sensitive inquiry (R ( Hough) v SSHD [2022] EWHC 1635 (Admin), [106]) and a rigorous consideration which requires the decision maker to have a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them (R (Hurley & Moore) v SSBIS [2012] EWHC 201 (Admin), [77]). Steyn J in R (Devonhurst Investments Ltd) v Luton BC [2023] EWHC 978 (Admin) held that the PSED implies a duty of reasonable enquiry with a view to understanding the potential impact of a proposed decision on people with the protected characteristics. She accepted at [55] that the nature of the function being exercised, and the context, may have an important impact on what is required to fulfil the duty of enquiry. How the duty is complied with is subject to challenge only on Wednesbury grounds.

In the context of planning decisions, Lindblom J, as he then was, in R (Coleman) v London Borough of Barnet[2012]EWHC 3725 (Admin) when holding that a local planning authority had due regard to the PSED which had been fully set out in the planning officers' report, said this:

“66.

As Dyson LJ said in [ R (Baker) v Secretary of State for Communities and Local G overnment [2009]PTSR809] (in paragraph 31), the duty is not a duty to achieve a result, but to have due regard to the need to achieve the statutory goals. This distinction, said Dyson LJ, is “vital”. The failure of a decision-maker to make explicit reference to the relevant statutory provision...) would not determine whether the duty under the statute had been performed, for this “would be to sacrifice substance to form.”

However, where it is found that a planning decision discloses that the PSED duty has not been complied with, the decision will be quashed (see, for example Ladr Limited & Others v Secretary of State for Communities and Local Government & Anor [2016] EWHC 950).

The principles applicable to challenges to the decisions of planning inspectors were also agreed. These were conveniently summarised by Lindblom J in Bloor Homes East Midlands Ltd v [2014] EWHC 754 (Admin) at [19]. Such decisions must be construed in a reasonably flexible way and need not rehearse every argument in every paragraph. The reasons need refer only to the main issues in the dispute, not every material consideration. The weight to be attached to such considerations and planning judgment are a matter for the inspector with which the court should only interfere on grounds of Wednesbury unreasonableness.