D gave planning permission for the construction of a school upon land that had been used for a garden
centre. The garden centre was an important local amenity for local people with disabilities and the elderly.
C was one of the disabled users and sought judicial review of the planning decision.
The C was disabled and used the garden centre as a recreational and educational hub. He wished to
continue to use it. A previous grant of planning permission in respect of the same land had been
successfully challenged on the grounds that D had failed to discharge its obligation under s.149 EA 2010. As
a result, during the process of the grant that was the subject of this challenge, there had been extensive
consultation and one of the main sections of the D’s report was aimed specifically at discharging D’s duties
under the EA 2010.
The Judge found that D had discharged its duty under s.149 EA 2010. The Judge emphasised that the duty
imposed by s.149 was not a duty to achieve a result but rather to have regard to the need to achieve the
goals set out in the statute. The duty encompassed the need to have due regard to the need to gather
relevant information so that the public authority can properly take steps to take into account the disabled
persons’ disabilities in the context of the function under consideration. The underlying objective of the duty
is to ensure that the impact upon those with disabilities is brought into ‘the mix’ as a relevant factor when
decisions are taken that may affect disabled people.
D was not required to go beyond the relevant categories of “protected characteristics” in s.4 of the 2010
Act, namely ”age” and ’’disability’’ and consider the impact upon people with different types of disability,
such as physical, mental and learning disabilities, separately. The court held that it would be unduly
onerous to do so and was far more than s.149 required. To discharge its duty D had to comprehend the
entire range of disabilities represented by those affected by the decision and heed what was said in the
representations made by them or on their behalf. It had then to bring that understanding into a conscious
assessment of the likely consequence of the decision for people with the protected characteristics.
The most interesting part of this decision concerns the requirement to consider individual disabilities. A
public body is required to consider how its decision will impact upon the full range of disabilities exhibited
by those affected by its decision. However, although a public body is required to consider the impact on the
entire range of disabilities this does not mean that it has to consider the impact upon each individual
disabled person who is affected.