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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Harris, R (on the application of) v Haringey [2009] EWHC 2329 (Admin) (14 July 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2329.html Cite as: [2009] EWHC 2329 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		14 July 2009

THE DEPUTY JUDGE:

Introduction

The application

1. This case comes before the court, following the order of Sir Thayne Forbes made on 11 May 2009, as an expedited hearing of the claimant's application for permission to apply for judicial review, rolled up with the hearing of the substantive application in the event that permission is granted.
2. The claimant challenges a planning permission granted by the defendant, the London Borough of Haringey Council ("the Council") as local planning authority, on 24 December 2008, for the development of a site known as Wards Corner on High Road in Tottenham. The application for planning permission had been made on 6 February 2008 on behalf of the first interested party, Grainger (Seven Sisters) Limited ("Grainger"). The second interested party, Northumberland and Durham Property Trust Limited, holds a relevant interest in the land on which Grainger's development is proposed.
3. The proposal the Council approved is described in its decision notice in this way:

"Demolition of existing buildings and erection of mixed use development comprising Class C3 residential and Class A1/A2/A3/A4 with access, parking and associated landscaping and public realm improvements"

Under the heading "Reasons for Approval" the decision notice sets out a long list of policies of the development plan -- the Mayor of London's London Plan and the adopted Unitary Development Plan for Haringey ("the UDP") -- and various pieces of supplementary planning guidance and other planning policy documents. It states that the objections did not justify refusal of the application and outlines the reasons why.

The claimant

4. The claimant has lived in Tottenham for about 21 years. She has become known in the area as a local historian. Over the past 15 years she has been actively involved in several of Tottenham's historical and civic groups. She took part in the re-launching of the Haringey Local History Forum in 2003. She later edited the forum's newsletter, which has reported on events concerning Wards Corner. In 2006 she helped to set up the Tottenham Civic Society. She contributed to the society's formal response to consultation on Grainger's application for planning permission. She wrote about the proposals to the local newspaper, to ward councillors and to the local Member of Parliament. She is a member of the Wards Corner Community Coalition ("the WCCC"), a campaigning organisation opposed to the demolition of the buildings Grainger intends to remove, which has promoted its own alternative concept for the site.
5. The claimant's standing in bringing the claim was originally contested, both by the Council and by the interested parties. In the end this point was not pressed. Had it been pursued I would have rejected it. Although the claimant did not herself respond to the Council when consultation took place, she helped others to do so. The WCCC is not a formal group with its own officers, and is not therefore able to bring proceedings in its own name. As a resident in Tottenham, an active local campaigner of long standing and a member of the WCCC, the claimant plainly has an interest in the outcome of the challenge she has brought. This is no less so than it would have been if she herself had raised an objection to Grainger's application for planning permission. In my judgment, she comes well within the ambit of standing in the modern jurisprudence.

The timing of the claim

6. Both the Council and Grainger originally contended there had been a lack of promptness in the bringing of the claim. They said the claimant should have brought her challenge to the Council's formal support for the proposal before planning permission was eventually issued. This point was not maintained before me. The answer to it is to be found in the decision of the House of Lords in Burkett v London Borough of Hammersmith and Fulham Council [2002] UKHL 23. The claimant was entitled to wait, before launching her claim, until the Council had actually issued the permission; she did not have to go against the Council's resolution to grant.

The factual background

7. I can set the scene for what follows by quoting the helpful summary in paragraphs 3, 4 and 5 of Mr Wolfe's skeleton argument:

"3. The claimant challenges the legality of Haringey's grant of planning permission on 24th December 2008 to the interested parties for redevelopment of the site known as 'Wards Corner' (after the department store, Wards, which used to trade there) . . . Central to the Grainger scheme is that it involves total demolition of the existing buildings on Wards Corner.

4. The resolution to grant planning permission was approved by just 5 votes to 4.

5. [The site] is in the West Green Road/Seven Sisters District Centre. The area is predominantly made up of local independent traders with a mix of Turkish, Cypriot, Colombian and Afro-Caribbean influences. The site incorporates an indoor market comprising 36 units of which 64 per cent of traders are from Latin America or are Spanish speaking. The total retail floor space on the site is 3,182 square metres and the site includes 33 residential units along Suffield Road as well as first floor accommodation above the retail units on Tottenham High Road, Seven Sisters Road and West Green Road. At present, those business units and homes are predominantly occupied by members of BME communities . . . During the consultation process and subsequently, a great many people have expressed their concern that the level of business rents that would be charged in a redeveloped site (the Council itself anticipates these increasing threefold . . .) and the fact that the Grainger scheme makes no provision at all for affordable housing, will bring about a significant shift in the commercial and residential make up of the area . . . ".

The grounds of challenge

8. There were originally three grounds of challenge. Only the first two are now live. These allege, first, that the Council's decision is vitiated by an appearance of bias on the part of the Chair of the Council's Planning Committee, Councillor Peacock, whose vote was critical to the decision to approve the development; and secondly, that the Council failed to discharge its duties under section 71 of the Race Relations Act. The third ground originally advanced, which related to the manner in which the Council dealt with the issue of affordable housing, has not been pursued, though it has been argued that the lack of affordable housing in the development arises as an aspect of the second ground.

The first ground: the appearance of bias

The law

9. In Georgiou v London Borough of Enfield and Another [2004] EWHC 779 (Admin), Richards J (as he then was) said, in paragraph 31 of his judgment:

"I therefore take the view that in considering the question of apparent bias in accordance with the test in Porter v Magill, it is necessary to look beyond pecuniary or personal interests and to consider in addition whether, from the point of view of the fair-minded and informed observer, there was a real possibility that the planning committee or some of its members were biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues. That is a question to be approached with appropriate caution, since it is important not to apply the test in a way that will render local authority decision-making impossible or unduly difficult. I do not consider, however, that the circumstances of local authority decision-making are such as to exclude the broader application of the test altogether."

10. In National Assembly for Wales v Elizabeth Condron and Another [2006] EWCA Civ 1573, Richards LJ dealt with the issue of whether the judge had been right to find an appearance of bias in that case in this way:

"37. That brings me to what I regard as the central issue in this appeal, namely whether the judge was right to find an appearance of bias on the basis that Carwyn Jones did say the words attributed to him.

38. Neither before the judge nor before us was there any disagreement as to the correct legal test; and I have referred already to what the judge said about that test. Nevertheless I think it important to look in a little more detail at what the test involves. It is helpful to start with a passage from Flaherty v National Greyhound Racing Club Ltd . . . Having referred to the basic test stated by Lord Hope in Porter v Magill . . . Scott Baker LJ continued, at para 27:

'The test for apparent bias involves a two stage process. First, the Court must ascertain all the circumstances which have a bearing on the suggestion that the tribunal was biased. Secondly, it must ask itself whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased . . . An allegation of apparent bias must be decided on the facts and circumstances of the individual case . . . The relevant circumstances are those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing . . . '

39. That emphasis on the circumstances as they appear to the court after investigation finds expression in various ways in the judgment of Lord Hope in Porter v Magill . . . "

11. In R (on the application of Kevin Paul Lewis) v Redcar & Cleveland Borough Council [2008] EWCA Civ 746, Pill LJ said this:

"48. In R (on the Application of Cummins) v London Borough of Camden & Anr [2001] EWHC Admin 1116, Ouseley J stated, at paragraph 254:

'The decision-making structure, the nature of the functions and the democratic political accountability of councillors permit, indeed must recognise, the legitimate potential for predisposition towards a particular decision…'

54. [In Georgiou] Richards J held that the decisions were vitiated by the appearance of bias. Having referred to Kirkstall Valley, Richards J stated:

'30. It seems to me, however, that a different approach is required in the light of Porter v Magill. The relevant question in that case was whether what had been said and done by the district auditor in relation to the publication of his provisional conclusions suggested that he had a closed mind and would not act impartially in reaching his final decision . . . '

In paragraphs 59 and 60 of his judgment, Pill LJ said this:

59. In R (on the application of Island Farm Development Ltd & Anr) v Bridgend County Borough Council [2006] EWHC Admin 2189 a claim that a local authority's planning decision was vitiated by pre-determination was based on members having a known attitude to the development and one Councillor having participated in a protest group. Having set out the relevant paragraphs from the judgment of Richards J in Georgiou, Collins J stated:

'30. I confess to some doubt as to this approach … Councillors will inevitably be bound to have views on and may well have expressed them about issues of public interest locally. Such may, as here, have been raised as election issues. It would be quite impossible for decisions to be made by the elected members whom the law requires to make them if their observations could disqualify them because it might appear that they had formed a view in advance . . .

31. The reality is that councillors must be trusted to abide by the rules which the law lays down, namely that, whatever their views, they must approach their decision-making with an open mind in the sense that they must have regard to all material considerations and be prepared to change their views if persuaded that they should . . . So it is with councillors and, unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision.'

60. Collins J concluded, at paragraph 32:

"It may be that, assuming the Porter v Magill test is applicable, the fair-minded and informed observer must be taken to appreciate that predisposition is not predetermination and that councillors can be assumed to be aware of their obligations…"

Pill LJ went on to say this:

"62. The difference may, however, arise from a more fundamental difference about the role of elected councillors in the planning process...No question of personal interest arises in this case. The Committee which granted planning permission consisted of elected members who would be entitled, and indeed expected, to have, and to have expressed, views on planning issues. When taking a decision councillors must have regard to material considerations and only to material considerations, and to give fair consideration to points raised, whether in an officer's report to them or in representations made to them at a meeting of the Planning Committee. Sufficient attention to the contents of the proposal, which on occasions will involve consideration of detail, must be given. They are not, however, required to cast aside views on planning policy they will have formed when seeking election or when acting as councillors. The test is a very different one from that to be applied to those in a judicial or quasi-judicial position.

63. Councillors are elected to implement, amongst other things, planning policies. They can properly take part in the debates which lead to planning applications made by the Council itself. It is common ground that in the case of some applications they are likely to have, and are entitled to have, a disposition in favour of granting permission. It is possible to infer a closed mind, or the real risk a mind was closed, from the circumstances and evidence. Given the role of councillors, clear pointers are, in my view, required if that state of mind is to be held to have become a closed, or apparently closed, mind at the time of decision . . .

66. As to the test to be applied, I respectfully share Collins J's concerns about the test as expressed by Richards J (as he then was) in Georgiou . . . " [emphasis added].

In paragraph 71 of his Judgment Pill LJ concluded:

"It is for the court to assess whether Committee members did make the decision with closed minds or that the circumstances give rise to such a real risk of closed minds that the decision ought not in the public interest be upheld. The importance of appearances is, in my judgment, generally more limited in this context than in a judicial context. . . [The] appearance created by a Councillor voting for a planning project he has long supported is, on analysis, to be viewed in a very different way."

12. Rix LJ agreed with and adopted Pill LJ's exposition of the relevant jurisprudence. In paragraph 89 of his judgment Rix LJ said this:

"It is common ground that in the present planning context a distinction has to be made between mere predisposition, which is legitimate, and the predetermination which comes with a closed mind, which is illegitimate . . . ";

and in paragraph 94:

"Thus, there is no escaping the fact that a decision-maker in the planning context is not acting in a judicial or quasi-judicial role but in a situation of democratic accountability. He or she will be subject to the full range of judicial review, but in terms of the concepts of independence and impartiality, which are at the root of the constitutional doctrine of bias, whether under the European Convention of Human Rights or at common law, there can be no pretence that such democratically accountable decision-makers are intended to be independent and impartial just as if they were judges or quasi-judges . . . "

Rix LJ went on to indicate that he did not intend to suggest the decision in Georgiou was wrong, and he noted that the common ground adoption of the Porter v Magill test in Condron would not prevent the Court of Appeal reversing the judge on the facts and finding no appearance of predetermination. Then, in paragraphs 96 to 98 of his judgment, Rix LJ said this:

"96. So the test would be whether there is an appearance of predetermination, in the sense of a mind closed to the planning merits of the decision in question. Evidence of political affiliation or of the adoption of policies towards a planning proposal will not for these purposes by itself amount to an appearance of the real possibility of predetermination, or what counts as bias for these purposes. Something more is required, something which goes to the appearance of a predetermined, closed mind in the decision-making itself. I think that Collins J put it well in R (on the application of Island Farm Development Ltd) v Bridgend County Borough Council . . .

97. In context I interpret Collins J's reference to 'positive evidence to show that there was indeed a closed mind' as referring to such evidence as would suggest to the fair-minded and informed observer the real possibility that the councillor in question had abandoned his obligations, as so understood. . .

98. I think that Lord Justice Pill's conclusion at para 71 above is to similar effect and also puts it well . . . when he says that the importance of appearances is generally more limited in this context than in a judicial context. I also agree with Lord Justice Longmore's observations about the jurisprudence." [Emphasis added].

13. In his judgment, Longmore LJ said, in paragraph 102:

"The fundamental rule of natural justice that no one should be a judge in his own course has been the subject of considerable elaboration over the years. It is axiomatic that no person making a decision which is subject to judicial review should in fact be biased; in most cases it is axiomatic that there should also be no appearance of bias in the sense that a decision will be liable to be quashed if a fair-minded observer, knowing all the relevant facts, would think that there was a real possibility that the decision-maker would be biased. . ."

The principle of demolition

14. Mr Wolfe said that the question whether the Wards Corner building should be demolished had remained controversial from the moment when the Council published for consultation a draft development brief for the site in July 2003, until the meeting of the Council's Planning Committee on 17 November 2008. It is common ground that demolition was a controversial matter. What is in dispute is the contention made by Mr Wolfe that Councillor Peacock approached the decision-making process on Grainger's proposals with a closed mind.
15. The draft development brief for the Wards Corner site emerged for consultation in July 2003. It plainly contemplated the demolition of buildings on the site. Mr Wolfe referred to section 5 of the document, entitled "Development Principles", contrasting what was said there with the adopted version of the brief which emerged in January 2004. The adopted brief states:

"On Wards Corner a development of 5-6 storeys in height may be appropriate stepping down to three storeys on Suffield Road . . .

• New development should regenerate and improve the living and working environment and make best use of the opportunities presented by the site.

The area is run-down and the buildings on the Wards Corner site in particular, are in need of physical renewal. However, the former Wards department store building itself is considered to have some architectural merit and any development scheme should reflect, and retain, the architectural features of the store, if at all possible . . .

The buildings at Wards Corner make only a neutral contribution to the character and appearance of the conservation area, (although the Wards store itself has some merit). In these circumstances, national policy PPG15 ('Planning & the Historic Environment') sees such sites as a spur to high quality, imaginative development."

Mr Wolfe said that it was thus plain that the final version of the brief kept open the question of demolition.

16. In December 2003 the report of the Council's Assistant Director, Planning and Development Control to the Planning Applications Sub-Committee on the public consultation on the draft development brief had drawn to the members' attention the two main issues raised in the course of the consultation exercise:

"Two Fundamental Issues

1. Retention of the former Wards Department Store building.

2. Future of the market . . .

Dealing with the two issues raised that, at this stage, are fundamental in terms of the potential impact that they could have on the scope of development here --

Retention of the Wards Department Store Building

A number of comments have been made that the buildings on the site, and in particular the former Wards Department Store itself, at the junction of High Road and Seven Sisters Road, should be retained. Whilst it is acknowledged that the structure is not without some merit, in architectural terms, the Council do not consider it sufficiently special to insist on its retention and this view is shared by English Heritage. English Heritage have re-confirmed that they do not consider that the former department store is worthy of listing. It has been vacant for approximately 30 years and, in many ways, its continued presence, certainly in its current derelict state, serves to emphasise the perception of the area been [sic] 'run-down'. For the avoidance of doubt, given the fact that the frontage buildings are in a Conservation Area, they could only be demolished if their replacement was considered to either preserve, or enhance, the character of that area. The current process to prepare the brief is the first step towards eventual development of the site, but further consultation with English Heritage will take place in the future on the merits of the replacement buildings, as part of the statutory Development Control process."

Policies AC3 and AC4 of the UDP

17. In July 2006 the Council adopted the UDP. It contains two policies of relevance to development at Wards Corner. These are policies AC3 and AC4. Policy AC3 states:

"TOTTENHAM HIGH ROAD REGENERATION CORRIDOR

In order to promote regeneration, proposals for development along Tottenham High Road, as identified on Map 1.1, will be permitted where the following can be demonstrated:

(a) that it is sustainable and will positively contribute to the regeneration of the High Road;

(b) that it will involve no significant adverse impact on neighbouring residential amenity, and provides a safe and secure environment that combats crime and the fear of crime;

(c) it will not result in any loss of public open space;

(d) it will not significantly increase the vehicular traffic flow on the High Road;

(e) it will not detract from the vitality and viability of the town centres, which should be the focal point for new travel intensive uses;

(f) that new housing should promote a more balanced, mixed, sustainable and less transient community, and the proportion of affordable housing should not exceed 50 per cent, the majority of which should be for intermediate forms of housing (shared ownership, key worker and sub market schemes); and

(g) change of use to residential will be encouraged outside the defined retail centres, subject to other policies in this plan."

The text supporting policy AC3, in paragraphs 1.12 and 1.13 of the UDP, states:

"1.12. The Tottenham High Road Regeneration Strategy (2002) encompasses the entire length of the High Road. It links the borough boundary with Enfield to the north and Hackney to the south, and incorporates Northumberland Park, Bruce Grove and Seven Sisters. The Strategy area is shown on Map 1.1. Tottenham High Road and the buildings, shopping centres and open spaces along it will be improved as an historic North/South corridor.

1.13. The area has severe environmental, economic and social problems and is in need of regeneration. The core town centres along the road are at Seven Sisters, Bruce Grove and Northumberland Park where new intensive development should be focused. Major sites for potential redevelopment will act as catalysts for prime regeneration of the High Road and include . . .

• Seven Sisters underground station (Wards Corner) - to redevelop as a landmark mixed use development;

. . .

Planning briefs have been drawn up for Seven Sisters (Wards Corner) and the former Baths and Depot sites which specify the mix, quantity and quality of uses."

Policy AC4 states:

"THE BRIDGE - NEW DEAL FOR COMMUNITIES.

In order to promote regeneration, tackle poverty and social exclusion and achieve more sustainable communities, proposals for development in The Bridge will be permitted where the following can be demonstrated --

(a) it is sustainable and positively contributes to the regeneration of Seven Sisters;

(b) provides a safe and secure environment, and combats crime and the fear of crime;

(c) improves access to and the quality of open space;

(d) provides a choice of good quality housing that meets the needs of all in the community and the proportion of affordable housing should not exceed 50 per cent, the majority of which should be for intermediate forms of housing;

(e) promotes an environment and conditions where opportunities for enterprise are open to all; and

(f) protects the integrity of the Vale Road/Tewkesbury Road Designated Employment Area."

The supporting text, in paragraphs 1.14 and 1.15, states:

"1.14. The Bridge New Deal for Communities aims to improve the quality of life for residents. It seeks to change the area so that it becomes a better place to live, has more sustainable communities, tackles social exclusion and reduces the long-term impact of poverty. It seeks to integrate and reshape local service delivery through effective partnership, community involvement and multi-agency working, all contributing to strong and proactive neighbourhood management.

1.15. Important development sites in the area are . . .

• Seven Sisters underground station (Wards Corner) - a planning brief has been prepared which advocates mixed use."

18. A point Mr Wolfe was at pains to stress was that either development which did involve demolition of the buildings at Wards Corner or development which did not would have been consistent both with policies AC3 and AC4 of the UDP and with the development brief in its finally adopted form.

The conservation balance

Mr Wolfe observed that neither policy AC3 nor policy AC4 of the UDP says anything definite one way or the other about the demolition of the buildings at Wards Corner. As he put it, the policies do not express a "closed view" on this question. Therefore, said Mr Wolfe, it could not be assumed that demolition was the better option. Responding to consultation by the Council on Grainger's proposal, on 10 April 2008, English Heritage had stated:

" . . . English Heritage does not support the view that none of the buildings identified make a positive contribution to the conservation area. In accordance with the criteria for demolition set out in PPG 15 to 3.16-3.19 English Heritage does not consider that the replacement buildings offer sufficient merit to justify demolition and considers that a scheme which takes a conservation led approach to regeneration should be pursued."

English Heritage recommended that:

". . . a more sensitive scheme which addresses the conservation area and retains those buildings identified as making a positive contribution to the conservation area is pursued."

Thus, said Mr Wolfe, English Heritage were, in effect, recommending refusal. Some officers of the Council also appear to have had reservations about the removal of historic fabric which would result from the implementation of the Grainger scheme. An e-mail of 5 June 2008 from one officer (Ms Cooke) to another (Mr Smith), attaching comments on the design issues from a third (referred to only as "Nat"), included these observations:

"The core issue to determine here in terms of design is whether the current scheme, predicated on the demolition of buildings of merit within a Conservation Area, represents design of a high quality and design that reflects and strengthens the unique character of Tottenham [High] Road."

and:

"In summary, given that the proposal is to demolish a substantial amount of historic fabric on Tottenham High Road in a prominent location I think it is reasonable to expect a replacement scheme of distinctive architectural quality that provides a positive contribution to the unique character of the site, surrounding streets and the local Conservation Area. However, the scheme proposed, although positive [in] some respects fails to provide a positive enough enhancement of the local built environment due to the standard architectural solution provided which results in large, bland elevations facing onto the High Road and Seven Sisters Road."

The two schemes

19. The Grainger scheme was submitted for both planning permission and conservation area consent. It involved the proposed demolition of all the buildings at Wards Corner. The alternative proposal would entail the refurbishment of the existing buildings on the site and the retention and expansion of the Latin American market. These were viewed by the Council as alternative projects, and this was plainly acknowledged by members of the Council in internal memoranda and in correspondence with the interested parties.

Councillor Peacock's views

20. Mr Wolfe said there were three occasions on which Councillor Peacock made her views clear on the "key question of demolition (rather than development without demolition)", in such a way as to stray beyond the bounds of predisposition into the predetermination of Grainger's proposal.
21. I shall take these three occasions in chronological order.

The meeting of the Haringey Local History Forum on 6 July 2003

22. The first occasion on which Councillor Peacock was said by Mr Wolfe to have demonstrated a closed mind was at a meeting of the Haringey Local History Forum, of which Councillor Peacock was a member, on 6 July 2003. The claimant describes what took place in her witness statement of 6 March 2009 (in paragraph 13):

"The first time I heard about the Wards Corner development was by talking to people at the Museum at which point the details were very limited. However, the first time I and others heard about it officially was at a Forum meeting on 6th July 2003. At this meeting Councillor Peacock announced that Wards Corner 'will be going'. The Forum Secretary Val noted this in the minutes under Planning and Conservation . . . Councillor Peacock also said that photos should be taken of the site before it is demolished (this too is noted in the minutes). As Councillor Peacock is on the Planning Committee I took her statement at face value: that these proposals were definitely going ahead . . . "

23. The minutes of the forum meeting record that it was chaired by Councillor Peacock and that the claimant was present (in the office of Treasurer and Membership Secretary). Under the heading "Planning and Conservation" the minutes state:

"The Wards Store building at Seven Sisters will be going. As this was the first steel-framed building in Tottenham it was suggested that photographs should be taken before it is demolished . . . "

On the copy of the minutes produced to the court there is a handwritten note against the first of these two sentences -- added, I was told, by the claimant -- which says:

"Statement made by Chair Sheila Peacock."

This, said Mr Wolfe, was the view Councillor Peacock had been prepared to state explicitly even before the development brief was consulted upon, and it was a view from which she never subsequently departed.

24. In her witness statement of 26 May 2009 Councillor Peacock describes her involvement in local affairs in Tottenham over many years, serving latterly as a councillor and -- save for two breaks when she was Mayor in 1998-1999 and 2004-2005 -- as a member of the Council's Planning Committee since 1994, and also participating in other activities, which include her being now a trustee and Chairman of the Haringey Buildings Preservation Trust. She refers also to the regular training she has undergone since 2002 on a range of matters relating to her role as a member of the Council's Planning Committee. She was a member of the Council's Planning Applications Sub-Committee in 2003-2004 when the draft development brief for Wards Corner was approved and adopted. She also says she was regularly elected unopposed to the Haringey Local History Forum despite seeking other candidates for the chair.
25. As to the meeting of the forum on 6 July 2003 Councillor Peacock says this (in paragraph 11 of her witness statement):

"I do not recall the meeting on 6 July 2003 but this was at a time when the Draft Development Brief was a public document in the published agenda for the Planning Applications Sub-Committee. It was at a time when I was setting up my web site on Historic Tottenham and while I have a photograph of the Tottenham Broadway (as it was then called) in 1913, which shows the parade with a different roof line to that of the present, I did not have photographs of the interior. I do not understand how Janet Harris had the impression that the proposals in the Draft Development Brief were definitely going ahead when she went to one of the exhibitions which was part of the consultation."

In her witness statement Councillor Peacock goes on to say this:

"14. There were no development plans for Wards Corner in July 2003 other than the draft development brief and I would not have described the draft development brief as 'fantastic'.

15. Any mention I made of Wards Corner in early July 2003 was a reference to the Draft Development Brief which was on the public agenda of the Planning Sub-Committee on 7 July 2003. It is not a discovery of Janet Harris when she had the benefit at the time of me recounting what the planning sub-committee would be considering."

Councillor Peacock's e-mail of 16 September 2007 to Ruth Allen

26. The second event on which Mr Wolfe relied occurred on 16 September 2007. On that day Councillor Peacock sent an e-mail to Ruth Allen, the Co-Chair of the Clyde Area Residents' Association ("CARA") after what Mr Wolfe described as "a chance conversation between them about both the Grainger scheme and the alternative plan".
27. In her first witness statement (dated 13 March 2009) Ms Allen says that on 8 September 2007 she had been at the CARA stall at the Lordship Recreation Ground Fair. She had a petition "drawn up by the Tottenham Civic Society to protest against the demolition of the old Wards department store at Seven Sisters Station" after Grainger had "revealed the initial plans for the site and their intention to demolish the entire block which included locally listed buildings". Ms Allen goes on in her witness statement to say this:

"3. I was approached by a woman with short grey hair. I started an informal conversation with her about CARA and I asked her if she would be interested in signing the petition to save the Wards building. At that point she said she would not sign the petition as she was the Chair of the Planning Committee, Councillor Sheila Peacock.

4. I then spoke to her about whether she thought it was right that a locally listed building was going to be demolished, the indoor market destroyed and whether she had seen the Grainger plans which were already proving unpopular with local people. She said that she had seen the plans and that she wanted the plans to include a 'plaza' like that on the South Bank near County Hall. She then proceeded to tell me that the whole site needed to be rebuilt and redeveloped and, therefore, that she did not support the petition for restoration of the building. She also said that the area was dangerous and specifically that the market was 'full of drugs' and that it needed to go. Further, she stated that the local shop keepers around the building had not been there very long and that the site was a mess.

5. I remember the exchange very clearly because I remember how forcefully she put her case that the Wards Corner site must be completely changed. As a public servant myself, I remember feeling affronted and perplexed that someone with civic authority and Chair of the Planning Committee was openly expressing her specific position in favour of demolition. I was also shocked by her prejudiced and inaccurate views about the businesses on the site.

6. I challenged her with regard to the market and her allegations of criminal activity, and stated that I knew the market was a safe place with little or no crime. I also told her that there were shops on the site that had been there a very long time and that they were stable businesses. I also said that a lot of people wanted to preserve the Wards building which was in good condition and that is important to Tottenham's heritage.

7. After the conversation ended I spoke to several other people shortly afterwards, including people at the next stall such as Roy Jose, Candy Amsden and also members of the Tottenham Civic Society including Joseph Nicholas and Matthew Bradby at a nearby stall. I remember saying that I could not believe that she was willing to express such a fixed view even after she told me that she was Chair of the Planning Committee.

8. At this point, we had no idea that the Planning Committee decision would not be made until 14 months later. We had assumed that the Planning Committee would be in a few months and that Councillor Peacock would sit as Chair.

9. Some days after this conversation, Candy Amsden, a CARA member, ascertained from the local police station that they have received virtually no calls about incidents in or around the market. I then wrote to Councillor Peacock to confirm the content of our conversation and to specifically challenge her inaccurate view about crime at the indoor market. She quickly responded . . . "

28. An exchange of e-mails between Ms Allen and Councillor Peacock took place about a week after they had met at the fair. It was initiated by Ms Allen. Her e-mail to Councillor Peacock, sent at 5.22 pm on 15 September 2007, said this:

"Dear Councillor Peacock

Thank you for stopping at the Clyde Area Residents' Association (CARA) stall at the Lordship Recreation Ground event last Saturday.

During our conversation you expressed your views about the need to demolish all the existing buildings at Wards Corner in order to develop a new centre of commercial activity and a landmark design. Whilst we were pleased that you consider the existing plans inadequate, CARA's view is that, in addition to better design and sustainability standards, we support conservation of the best of the existing buildings, including some historic interiors. (We also draw your attention to the response of the Tottenham Civic Society to the plans which eloquently put the case for both conservation and high quality).

CARA also strongly supports the existing market at Wards Corner which has grown spontaneously out of the . . . local community into a vibrant local resource. Whilst its potential is clearly under-realised, we strongly want to retain a market function at Wards Corner. We would like particularly to challenge the view you expressed last Saturday that the market, mainly but not exclusively run by members of the Columbian community, is a source of crime, particularly drug related crime. We have contacted our local neighbourhood police who have informed us in writing that:

'We have never received information that drugs are a problem there nor have we ever raided premises in connection with supply. In fact we rarely get called there for anything.'

CARA intends, with other residents' associations, to work closely with market traders who are concerned to continue to build their businesses at Wards Corner.

Kind regards

Ruth Allen

Co-Chair, CARA".

It should be noted that the "existing plans" referred to by Ms Allen in her e-mail were not those forming part of the proposals Grainger subsequently submitted in their application of 6 February 2008, but an earlier scheme for the demolition of the existing buildings and the redevelopment of the site.

29. Councillor Peacock's response, sent at 11.14 am the next day, was this:

"We will not agree on the future of this area, which I would like to see . . . completely changed. Visitors when coming to Tottenham need to be impressed by the new build and not depressed by seeing the old just tarted up.

This should be a landmark area. I am sure that those in Regeneration will ensure that we get the best possible result.

Sheila"

30. Councillor Peacock's evidence about these e-mails is set out in her witness statement, where she says this:

"36. In September 2003 [sic] I visited the Lordship Recreation Ground Fair in the company of my granddaughter and visited among other stalls the CARA stall and the Tottenham Civic Society stall. A woman I now know to be Ruth Allen was at the CARA stall and Matthew Bradby was at the Civic Society stall. Ruth Allen's statement makes no mention of my granddaughter and while she claims to remember my words very clearly and claims to have been affronted and perplexed, the e-mail she sent me does not reflect any affront or perplexity and I simply do not believe that I could have caused affront with my thirteen year old granddaughter who Ruth Allen leaves out of her account. I do wish to see the area of Wards Corner regenerated and landmark buildings constructed both on Wards Corner and on the Apex Road site in accordance with the adopted planning development brief. I am aware of our Unitary Development Plan policies particularly AC3 in the Section Areas for Change. The e-mail exchange that I had with Ruth Allen was publicly raised by the Leader of the Liberal Democrats on Haringey Council and I have been advised not to participate in the application made by Mrs Alvarez for the restoration of the market building. I attach the advice of the Monitoring Officer. I assume that Ruth Allen was made aware by Councillor Williams of the Monitoring Officer's advice as my e-mail to Ruth Allen had been passed to the Liberal Democrat leader at a time when I had forgotten about it.

37. The matter was not raised again in relation to the Planning Committee meeting in July which was cancelled at the last minute but there was correspondence again in October and November between Ruth Allen and the Monitoring Officer.

38. It is true that I expressed criticism of the consultation drawings by Graingers which I did not think were appropriate to replace several buildings in the Conservation Area at that time.

39. I held and communicated no fixed view about any application. I expressed criticism of Grainger's consultation drawings but I did wish to see the site regenerated with the adjoining site of Apex House. Before the Planning Committee meeting in November I read the officer report and was aware of the position of the Mayor of London and the Greater London Authority. I read the papers carefully as the Chair must be able to follow the debate and questions. Demolition of buildings in a Conservation Area requires special consideration and is by no means a fait accompli in a designated development site. I do understand that aspect of the procedure. However, the adopted development brief sets out the Regeneration Context and the application report had significant regeneration benefits as well as reporting on viability. I cannot speak for other members of the Committee but for myself the session of looking at the plans and then having final questions is the real business end of the decision. I rather agree with Councillor Bob Hare on the approach. We have been on training courses together."

31. Ms Allen responded to that evidence in her second witness statement, dated 2 June 2009, in which she says:

"2. Turning to Councillor Peacock's witness statement, I am unclear as to the significance of her granddaughter's presence given that she was not introduced to me or otherwise involved in the conversation that Councillor Peacock and I had. I was not suggesting in my first statement that how she spoke to me would be inappropriate in front of children, just that she was very clear, indeed emphatic, about her position. My sense of affront and perplexity was related to her clarity that the Wards Stores building would have to go and be replaced with a very specific type of redevelopment at [a] time when she, as a potential decision-maker, ought to have been open minded. As indicated in my first statement, our conversation was about both the community plan for the building's renovation and the alternative which she favoured. My e-mail was also about both. I read her reply as being about both too as, I think, would anyone else. She contrasts the two alternatives: on the one hand there is 'the new build' following demolition; on the other 'the old tarted up'.

3. Councillor Peacock says that my e-mail did not reflect perplexity or affront. I am not in the habit of writing intemperate e-mails. Besides, when I wrote it I was pressing for clarification of an expressed position which had taken me aback. An aggressive or hurt tone was not appropriate.

4. I now see from her evidence that the concerns I had about Councillor Peacock's firm views were shared by a Councillor, Neil Williams, and were put to the Monitoring Officer (I was unaware of this exchange previously contrary to Councillor Peacock's assumption). I cannot understand, however, why the firm views being expressed ruled Councillor Peacock out of a decision to preserve Wards Corner but not from a decision to demolish it: they are simply the two sides of the same coin.

5. I have taken my complaint about Councillor Peacock further and I believe it is currently in the hands of a Monitoring Officer from another local authority."

The conversation between Councillor Peacock and Ms Alvarez on 8 October 2007

32. Mr Wolfe relied, thirdly, on an encounter which took place in the market at Wards Corner on 8 October 2007 between Councillors Peacock and Patel and Vicky Alvarez, who owns a money transfer unit in the market and is a member of the WCCC. In her witness statement of 6 February 2009, Ms Alvarez describes the incident in this way:

"7. I asked them if they knew that the Council were trying to destroy the market and asked them for their support and help. Councillor Peacock replied 'it doesn't matter what you do, this place is going to be knocked down anyway'. I tried to reason with her and explained that we wanted to restore the building to its former glory. I gave her our campaign postcard . . . and asked her to read it but she refused to take it because she said that it would compromise her position as Chair of the Planning Committee. At the time I did not understand what this meant as we had only just started the campaign. Councillor Peacock then explained that she had previously had to stand down from the Planning Committee because she had been compromised in similar circumstances. Councillor Patel did not speak once but nodded at everything she said. However, he did take a postcard. I believe he was scared of her.

8. Councillor Peacock then stated that a lot of people had been complaining about the market. I remember saying that I understood that the market needed to be improved but that the building was beautiful and that the market was a nice place which had improved since the Latin American market had been there.

9. I also stated that it was not true that the market was full of crime. I do not remember everything she said to me but I do remember that we ended up shouting at each other and that I accused her of being racist. She kept repeating that it was not a nice place and she said at least three times that 'no matter what, the market was going to be knocked down'. I was very upset by this and asked her to consider how many people worked in the market. I told her I was a single parent mum and asked her to consider the impact on people like myself and our children if the market were destroyed. She said that she did not want to make any further comments because she would compromise herself as Chair of the Planning Committee.

10. Throughout our conversation Councillor Peacock kept repeating 'no matter what, this place is going to be knocked down'.

34. Mr Wolfe said there was no evidence that Councillor Peacock ever changed this fixed view on the need for the buildings at Wards Corner to be demolished.
35. Councillor Peacock's response to what Ms Alvarez says appears in paragraphs 26 to 30 of her witness statement:

"26. I do recollect meeting a woman at the market on the 8 October 2007 but until reading this statement I did not know who she was. I had thought it was the Manageress of the market. There was no mention of the Wards Corner coalition: had there been I would have left immediately. The reason for my visit was in connection with a Licensing Sub-Committee meeting. There were complaints about activities and Licensing is a separate statutory responsibility. Councillor Patel was with me and he is also an experienced Councillor. Neither of us would involve ourselves in discussing Planning responsibilities at a Licensing site visit.

27. I did not say 'it doesn't matter what you do' nor did I say I had previously had to stand down from the Planning Committee. There was discussion about what permission had been obtained under licensing but no discussion about Planning matters.

28. It is true that following the representations of the Leader of the Liberal Democrat Group in April 2008 using the e-mail that I had sent to Ruth Allen in September 2007, I was advised by John Suddaby that I should not take part in the decision of planning application HGY/2008/0177. But in October 2007 that application had not been made and the advice of the Monitoring Officer had not been tended [sic].

29. I do not recall being called a racist. I am a British Jewess and proud of the fact and I would have remembered and reacted if I had been called a racist. Mrs Alvarez does not remember correctly and it is not true either that I stated at all 'no matter what' this place/market is going to be knocked down. I have checked the Licensing agenda papers and see that a resident of Suffield Road had written and complained about anti-social behaviour and refers to the property being demolished but I do not recall if that was discussed with Mrs Alvarez. There was no mention of the coalition or the campaign or the alternative application or any views about the alternative application."

36. The fact that Councillor Peacock had disputed saying "It doesn't matter what you do" and "No matter what" did not, said Mr Wolfe, remove, or reduce, the significance of what she had not denied saying. She had taken issue with the detail of what she had said as it was recalled by Ms Alvarez, but not with the essential point.

The Monitoring Officer's advice

37. The Council's Monitoring Officer, Mr Suddaby, considered Councillor Peacock's involvement in the determination of the two planning applications. On 31 March 2008 Councillor Williams, the Liberal Democrat leader of the opposition on the Council, sent to the Monitoring Officer Councillor Peacock's e-mail of 16 September 2007 to Ms Allen. Councillor Williams' e-mail to Mr Suddaby stated:

"Dear John

I attach below an e-mail from Cllr Peacock to a resident expressing a view on the Wards Corner planning application. Could you rule please on whether or not she should sit on the committee as a result.

Best

Neil."

38. Mr Suddaby responded by e-mail on 1 April 2008:

"Dear Councillor Williams,

Thank you for your e-mail bringing this to my attention. I have advised Councillor Peacock that she should take no further part in the consideration of the Community based planning application for Wards Corner having expressed a firm view on what appears to be an essential aspect of that proposal. I have also advised Councillor Peacock that she is not, however, debarred from taking part in the consideration of the Grainger planning application.

Regards

John Suddaby

Head of Legal & Monitoring Officer".

Submissions for the claimant

The Monitoring Officer's error

39. Mr Wolfe said the "essential aspect" to which the Monitoring Officer had referred was the question whether the buildings at Wards Corner were to be demolished or not. If Councillor Peacock's position on the principle of demolition had led to her being debarred from involvement in the decision on the application which did not involve demolition, it should also have led to her being debarred from the making of the decision on the application which did. The logic of the Monitoring Officer's view was unclear. The distinction he had sought to make was not a sound one. Predetermination cuts both ways. The advice the Monitoring Officer had given Councillor Peacock was right on the WCCC application but wrong on Grainger's. Councillor Peacock ought to have been advised that she should not be involved in the determination of either application.

Approach

40. Mr Wolfe submitted that in a case such as this the court has to take upon itself the task of deciding whether there was a real possibility that the decision-maker's mind was closed on all issues to be determined. The court has to do this, by considering what the fair-minded and informed observer would have concluded. As had been accepted by the court in Georgiou, Mr Wolfe submitted, there does not have to be a real possibility that the decision-maker's mind was closed on all the issues to be determined. The essential question is one of appearance, on the particular facts of the case. So, in the present case, the court has to look at all the circumstances and conclude for itself whether there is here an appearance of Councillor Peacock's mind being closed, at least on the important issue of demolition.

Indications of predetermination

41. Mr Wolfe's submitted that the Council's resolution, by a vote of five votes to four, to grant planning permission for the Grainger scheme was clearly vitiated by Councillor Peacock's involvement in that decision when she chaired the meeting of the Council's Planning Committee on 17 November 2008. The councillor should have taken no part at all in that meeting.
42. On the evidence before the court, said Mr Wolfe, this is indeed a case in which there is a real possibility that one of the members of the Council's Planning Committee was biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues. In support of this submission Mr Wolfe cited paragraph 31 of Richards J's judgment in Georgiou. The decision of the Court of Appeal in Lewis v Redcar had not, he said, modified that basic test. It simply made the uncontroversial point that councillors dealing with planning applications can legitimately have a predisposition towards the local planning authority's established planning policy. Pointing to what was said by Rix LJ in paragraphs 96 and 97 of his judgment, Mr Wolfe submitted that the essential test remains whether there is an appearance of predetermination, in the sense of a mind closed on the planning merits of the decision in question. The crux of the issue was to be seen in what had been said by Rix LJ in paragraph 97 of his judgment.
43. Mr Wolfe submitted that if one has to look for clear pointers to predetermination, as Pill LJ had said in Lewis v Redcar, one has here what Councillor Peacock had said at the forum meeting in July 2003, in the e-mail she sent to Ms Allen on 16 September 2007, and in her remarks to Ms Alvarez when they met at Wards Corner on 8 October 2007. The Council's response to this basic allegation was not cogent. Although the Council had contested certain matters of fact, it had not disputed the essential fact that Councillor Peacock had made very clear her position on the need for the buildings at Wards Corner to be demolished, and it was for this reason that she had been advised to take no part in the consideration of the alternative proposal, which did not involve demolition. The Council's insistence that Councillor Peacock was simply stating established planning policy in favour of demolition did not withstand scrutiny. Policies AC3 and AC4 of the UDP and the adopted development brief left open the question of whether the Wards Corner buildings should be demolished. If anything, the brief favoured the retention of the buildings. It was wrong, Mr Wolfe submitted, to read those policies as pointing to demolition rather than the retention of the existing buildings simply because they committed the Council to the principle of "redevelopment". Although the word "redevelopment" appears in the explanatory text, the policies themselves were framed in terms of simply "development", a broader concept which did not necessarily involve demolition. The evidence presented by the Council recognized that the question of demolition was open to be decided. This would not have been so had the point been settled in the brief.
44. Thus, submitted Mr Wolfe, the remarks made by Councillor Peacock, which she had not denied having made, gave the appearance of a real risk of bias in the sense of predetermination, and not merely a predisposition, on the crucial question: whether the Wards Corner site should be entirely cleared of its buildings or whether some of those buildings should be retained. Councillor Peacock had displayed her support for demolition rather than for development retaining the corner building. It was no answer to say that she had an open mind on the wider merits of the Grainger scheme. This, said Mr Wolfe, was to miss the point. Councillor Peacock had given the appearance of having predetermined the question of demolition, which was, as the Monitoring Officer had described it, an "essential" issue.

Submissions for the Council

The distinction between predisposition and predetermination

45. For the Council, Mr Milner submitted that predisposition and predetermination are firmly to be distinguished. Predisposition is entirely legitimate; predetermination clearly is not. At the root of the appearance of bias is not "prior predisposition" -- predisposition in advance of the decision process itself -- but rather the failure to exercise a proper discretion by approaching the making of the decision with a closed mind. In practice, this would entail a failure properly to consider the matters in issue and an unwillingness to change one's mind at the time of the decision in the light of any substantial point made at that stage.
46. Mr Milner submitted that if, as here, a local planning authority has a policy which admits two possible outcomes and a member espouses one rather than the other, this amounts to no more than a legitimate predisposition and is not an indication of predetermination. About this there could be no complaint. For a member to reveal, in principle, which outcome he or she favours is perfectly acceptable. Such predisposition has consistently been accepted by the courts -- for example in Lewis v Redcar -- as being an inevitable part of the democratic process. Mr Milner cited paragraphs 94 and 96 of Rix LJ's judgment in Lewis v Redcar, approving the way in which Collins J had encapsulated the point in the Island Farm Development Ltd case.
47. As Pill LJ had said in paragraphs 62 and 63 of his judgment in Lewis v Redcar, if the court is to find predetermination there must be "clear pointers" indicating that a councillor's mind had become a closed at the time of the decision itself. Generalized statements of predisposition made well before the decision are nothing more than -- as Mr Milner put it -- "normal democratic expressions of view, which do not, without more, amount to clear pointers of a closed mind at the time of the later decision". In truth, the claimant had not alleged anything more than this. But more is required. For the claimant to succeed on this ground there would have to be some indication that predisposition had metamorphosed into predetermination. Here, said Mr Milner, there is none. Even if Councillor Peacock had carried her view about the principle of demolition into the committee meeting, the facts of the present case do not sustain the conclusion that she had let it prevent her from approaching the decision on Grainger's proposals with an open mind, or had abandoned her obligation to do so. To suggest that the Council's decision on the Grainger application was infected by any predetermination was therefore wrong.

The sequence of events

48. Mr Milner submitted that it is important to regard with caution a recollection, long after the event, of the words used in a passing conversation. To read more into such words than they might truly have meant was dangerous. When the comments relied upon as betraying an appearance of bias were spoken months or even years before the application was made, or before it was considered, one should be more careful still.
49. Councillor Peacock's remarks at the forum meeting on 6 July 2003 were made more than five years before the impugned decision. The draft development brief contemplated demolition. The councillor's remarks were consistent with that version of the document. The brief crystallized only at the beginning of 2004. In its adopted form it still contemplated demolition. Policies AC3 and AC4 of the UDP effectively incorporated the provisions of the brief. The comments made by Councillor Peacock in September and October 2007 came after the adoption of the brief and after the adoption of the UDP. They preceded the submission of Grainger's application for planning permission by several months, and the committee meeting at which the application was considered by more than a year. It is also significant, said Mr Milner, that in September 2007 Councillor Peacock had expressed her confidence that "those in Regeneration will ensure that we get the best possible result". This should be seen for what it was: a demonstration of the councillor's faith in the Council officers' ability to secure a meritorious scheme in due course.

The consistency of Councillor Peacock's views with Council policy

50. Whilst noting that Councillor Peacock had denied using the expressions "it doesn't matter what you do" and "no matter what . . . " in her conversation with Ms Alvarez, Mr Milner stressed that the statements made by and attributed to the councillor were all consistent with the Council's adopted policy. Such statements, he said, were perfectly acceptable in the context of a councillor's role to encourage and support proposals consistent with its stated position. It had not been suggested that Grainger's proposal was other than in accordance with policies AC3 and AC4 of the UDP and the adopted development brief. Those policies clearly indicate a preference for "redevelopment" and provide a justification for the demolition and replacement of the existing buildings.
51. Mr Milner submitted that Councillor Peacock's comments evinced no more than a desire to achieve a result consistent with, and amply justified, by the Council's policies. He mentioned eight specific aspects of the policy background:

(i) the inclusion of Wards Corner in the Bridge NDC area, as a key strategic site within a core town centre, where development will have a beneficial effect on the Seven Sisters area;

(ii) the policy, in both the UDP and the development brief, to achieve a "landmark" at Wards Corner in the form of a new development of mixed uses;

(iii) the wide recognition, to which the brief refers, that Wards Corner is a "gateway" into the borough of Haringey in a very prominent location, within an area currently dominated by a number of vacant and derelict buildings;

(iv) the fact, as the Council acknowledges in the brief, that the NDC seeks to "facilitate a high quality redevelopment and the regeneration of this key site";

(v) the theme of "regeneration" in the brief and the statement that "the Wards Corner site should be the focus for redevelopment";

(vi) the reference in the brief to the appropriateness on Wards Corner of "a development of 5-6 storeys . . . " and the statement that "the buildings on the Wards Corner site in particular are in need of physical renewal";

(vii) the statement in the brief that "the former Wards department store building itself is considered to have some architectural merit and any development scheme should reflect, and retain, the architectural features of the store, if at all possible", which did not mean that the building should itself be physically preserved but that the design of a new landmark building should incorporate some architectural features redolent of the store; and

(viii) the statement in the brief that the buildings at Wards Corner "make only a neutral contribution to the character and appearance of the conservation area".

52. Therefore, Mr Milner submitted, Councillor Peacock's view that the Wards Corner area should be "completely changed", that visitors to Tottenham needed to be "impressed by the new build" rather than the "old just tarted up", and that the buildings at Wards Corner "will be going" and "knocked down" was entirely congruent with the Council's policy. English Heritage had refused to support the listing of the Wards Corner building as a building of sufficient merit to warrant protection from demolition. And the justification for demolition set out in the relevant policies had been reinforced by the analysis of economic viability.

The range of matters bearing on the Council's decision

53. This was a case in which, said Mr Milner, a large number of material considerations had to be put into the balance. The conclusions the officers reached and the recommendation they made to the members were based on that balance. English Heritage and the Commission for Architecture and the Built Environment ("CABE") had differed in their judgments on the merits of the design. English Heritage took the view that, applying the criteria set out in paragraphs 3.16 to 3.19 of PPG15, the proposed replacement buildings were not of sufficient merit to justify demolition. CABE favoured the scheme as one capable of changing perceptions and transforming the area around Wards Corner. A lengthy assessment was provided, over four pages of the officers' report, on the topics of "Conservation" and "Design". The "Summary and Conclusion", in section 8.0 of the report, set out a clear analysis and a clear conclusion on the merits of the Grainger scheme and the justification for demolition. Ultimately, submitted Mr Milner, this was a balancing exercise. The balance was struck. And the assessment was supported by the strategic planning authority. This is clear from the GLA's Stage 1 report, in which the topic of "Urban Design" had received from the GLA's officers similarly careful treatment to that given to it by the officers of the Council.

The Monitoring Officer's advice

54. Mr Milner submitted, finally, that the Council's Monitoring Officer had properly concluded that Councillor Peacock had done no more than express a view consistent with Council policy, and that this could not give rise to any impediment to her being involved in the determination of Grainger's application.

Submissions for the interested parties

The issue for the court

55. For the interested parties, Mr Corner QC said that the central question for the court is whether Councillor Peacock came to the making of the decision on Grainger's application with a closed mind or whether the circumstances gave rise to a real risk of this being so.

The views of elected politicians

56. Mr Corner submitted, first, that it is clear from the Court of Appeal's consideration of the relevant legal principles in Lewis v Redcar that elected politicians must be allowed considerable latitude in expressing their views on planning issues relating to decisions in which they might later participate. After all, as Pill LJ had observed, councillors are, amongst other things, elected to implement planning policies.
57. Secondly, submitted Mr Corner, none of the remarks either allegedly or admittedly made by Councillor Peacock came anywhere near amounting to the clear pointers Pill LJ had said were required if it was to be held that a member's mind had become closed, or apparently closed, at the time of decision. None were even made during the life of the application for planning permission.

The planning context in the present case

58. Thirdly, said Mr Corner, the remarks attributed to Councillor Peacock on the three occasions relied on by Mr Wolfe must be seen in the relevant planning context. As Pill LJ had acknowledged in Lewis v Redcar, councillors are not required to cast aside their long-held views on planning policy as they approach a planning decision calling for that policy to be applied. Mr Corner made four points in particular:

(i) The specific policy framework within which Grainger's application had to be appraised was made up of policies with which the proposals were fully consistent, which the claimant had never denied.

(ii) Neither the policies in the UDP nor the development brief presume against a development involving either partial or complete demolition of the existing buildings. So, in expressing her support for demolition, Councillor Peacock was expressing a view in favour of an outcome within the scope of the relevant policies.

(iii) The mere fact that there was an alternative scheme which might be another means of delivering suitable development at Wards Corner was not a reason for turning Grainger's proposal away.

(iv) When the development brief is read fairly as a whole, one can see that its indication that any scheme "should reflect, and retain, the architectural features of the store, if at all possible" would be satisfied by a development whose architecture was reminiscent of certain features of the existing buildings while physically keeping none of them. The overriding requirement of the brief is for a "landmark" scheme bringing regeneration to the area, whether or not it retains any of the present buildings.

The planning issues

59. Mr Corner's fourth submission was this. The decision under challenge was one by which planning permission for development was given; it was not merely a consent for demolition. The issue of demolition was but one of several the Council had to consider. Applying the Government's policy guidance in paragraphs 4.27 and 3.16 to 3.19 of PPG15, the Council had to confront this question: do the regeneration benefits of Grainger's proposals and the quality of the proposed replacement buildings outweigh the loss of these buildings in the conservation area? A member's views about the merits of the existing buildings and the desirability, in principle, of their being removed and replaced could not betray a predetermination of the question whether planning permission for a particular development ought to be granted. As Councillor Peacock says in her witness statement, she had criticized the design of an earlier version of the Grainger scheme. This shows that, far from having made up her mind on the essential exercise of balance, she had an open mind on this question and, therefore, on the wider merits of the Grainger scheme.

Viability

60. Fifthly, Mr Corner submitted, the significance of demolition as a matter of controversy was reduced by the demonstrable unviability of a scheme in which the former department store building would be retained. This was not merely Grainger's view. It was a proposition endorsed by the GLA officers in the Stage 1 report. It was also accepted by the Council's officers. By the time the Council's committee came to consider the Grainger scheme demolition was seen as inevitable if a "landmark" development was to be secured at Wards Corner. Once the application got to the committee, demolition was no longer a central controversial issue.

Conclusion on the first ground of the claim

61. In my judgment, the submissions made by Mr Milner and Mr Corner on this ground of the claim are correct. I accept their submissions and I reject those of Mr Wolfe.
62. The jurisprudence on apparent bias, in the sense of predetermination, in the planning decision-making context is mature and uncontroversial. It recognizes the clear and crucial distinction between predisposition and predetermination. Predisposition is normal and acceptable. Predetermination, when it occurs, is unacceptable. What distinguishes one from the other is that in the case of the former, at the time when the decision in question is made, the decision-maker's mind is open; in the case of the latter, that mind is closed. Each case will turn on its own facts.
63. Where the allegation is apparent rather than actual bias, the facts are liable to vary widely from one case to the next. In every case, however, the court, when asking itself what the fair-minded and informed observer would conclude, will consider the full picture of fact. The exercise is an objective, not a subjective one.
64. Determining whether there are clear pointers to predetermination will therefore necessarily involve the court in looking at the facts of the case in hand. It would, I think, be futile to attempt to compose some sort of checklist of the relevant questions. These will inevitably be different from one case to the next. But they will generally include what was said; when and to whom and in what circumstances it was said; its timing in relation to both the submission and the determination of the application for planning permission; its significance, if any, to the issues falling to be considered; the relationship of what was said to the settled policy matrix; and the behaviour, in the forum of decision, of the member whose remarks are said to betray a mind made up.
65. Turning to the factors of relevance in the present case, I believe the following matters are clear, and important.
66. The comments made by Councillor Peacock in July 2003 were made more than five years before the Council's decision to grant planning permission at a time when the draft development brief, which contemplated demolition, was extant; and they were consistent with the emerging policy in that document.
67. Councillor Peacock's comments in the e-mail she sent to Ms Allen in September 2007 were made more than a year before the Grainger application came to be determined. On their face, they represent no more than a general view, consistent with policies AC3 and AC4 of the UDP and the thrust of the development brief. And they were tempered in any event by Councillor Peacock's expression of confidence that "those in Regeneration will ensure that we get the best possible result", which, in my judgment, demonstrates that her mind was open on the question whether any particular scheme would merit approval.
68. The allegations made by Ms Alvarez about what Councillor Peacock said to her in October 2007 should, I believe, be treated with considerable caution, the events having occurred about 16 months before Ms Alvarez signed her witness statement, there being, apparently, no contemporaneous note of the conversation, and the conversation having become -- on Ms Alvarez's own account of it -- acrimonious when she accused Councillor Peacock of being racist. In any event, the remarks made by Councillor Peacock appear to have related, at least in part, to the future of the Latin American market rather than to the good sense or otherwise of removing the buildings on the site; the remarks attributed to her were consistent with the Council's policies for Wards Corner in the UDP and in the development brief; and they were made more than a year before Grainger's application for planning permission came before the Council for decision in November 2008.
69. Without more, I would not regard any of those three incidents as being a source of clear pointers to predetermination on the part of Councillor Peacock. This would have been my conclusion even if there had not been several factors in this case which point clearly the other way. There are, however, five such factors.
70. The first point to keep in mind is that, throughout the whole of this saga, demolition remained an outcome contemplated by the Council's policies at different stages of their gestation. In the sense of there being a consistent policy thread to sustain her own thinking on the subject of demolition, Councillor Peacock could therefore have said that her view was one she shared with the Council of which she was a member. She was perfectly entitled to that view. Indeed, Mr Wolfe has not submitted that she was not. And, in my judgment, she was also entitled to express honestly the view she held, rather than remain silent about it when it came to be questioned or criticized, provided that she remained receptive to the arguments of those whose opinions differed from hers.
71. Secondly, and in any event, Councillor Peacock made no comment on this matter after the Grainger application was submitted. Nor has there been any complaint about her conduct at the committee meeting or at any stage of the process of decision-making on the Grainger application. The minutes of the committee meeting do not show any hint of predetermination. Councillor Peacock did not apparently contribute to the discussion of the merits of the proposals or seek to influence the outcome by expressing her own opinion. Her interventions were merely of a procedural kind.
72. Thirdly, Councillor Peacock had been critical of certain aspects of the design of the Grainger development. In my judgment, this was a clear enough indication of her having an open mind on the merits of proposals involving demolition of the buildings at Wards Corner. That Councillor Peacock's mind was open on the wider merits of the Grainger scheme has not been contested. Indeed, this was effectively conceded on behalf of the claimant by Mr Wolfe in his skeleton argument. The significance of this point should not, in my view, be downplayed. It means that, notwithstanding Councillor Peacock's opinion on the principle of demolition, her mind was open on both potential outcomes for Grainger's application: permission and refusal. The fact that, in principle, she favoured demolition did not make it certain, or even likely, that she would support the approval of Grainger's proposals. She left herself at liberty to oppose the proposals on, for example, design or other planning grounds. Nothing she is said to have said goes against this logic.
73. Fourthly, as Mr Milner submitted, when Grainger's application came to be considered, demolition was but one of a host of material planning considerations. It was far from being the only matter to be considered, even within the scope of the issues relating to design and conservation. Judgments fell to be made about community and regeneration benefits, and about the quality of the design, before any scheme of redevelopment could be approved.
74. Fifthly, it should be remembered -- and I have kept in mind -- that Councillor Peacock was, evidently, a very experienced member of the Council. She had given long service as a councillor and she had undertaken relevant training, a factor which the court recognized as being relevant in Georgiou.
75. All of these points, in my judgment, serve to support the conclusion that Councillor Peacock was a very long way from having a closed mind on the decision the Council eventually had to make on the merits of Grainger's proposals for the Wards Corner site. Certainly, in my view, she did not at any stage trespass beyond the boundaries of predisposition into the forbidden territory of predetermination. The facts of this case fall well short of the circumstances the claimant would have had to show to make good the allegation which Mr Wolfe has-albeit powerfully and eloquently - put forward on her behalf. There are simply no "clear pointers" to the conclusion that Councillor Peacock's mind was closed "at the time of decision".
76. I therefore conclude that the claim cannot succeed on this, the first of the two grounds advanced.

The second ground: the race equality duties

The law

77. Section 71 of the Race Relations Act 1976 provides:

"71. Specified authorities: general statutory duty

(1) Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need --

(a)to eliminate unlawful racial discrimination; and

(b)to promote equality of opportunity and good relations between persons of different racial groups.

(2) The Secretary of State may by order impose, on such persons falling within Schedule 1A as he considers appropriate, such duties as he considers appropriate for the purpose of ensuring the better performance by those persons of their duties under subsection (1) . . . "

78. In Baker v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, Dyson LJ said this:

"29 . . . [If] the Inspector did not discharge the section 71(1) duty, it would be no answer that her attention was not drawn to section 71 and no arguments were based on it. I accept the submission of Mr Allen that, as a matter of law, an Inspector is under the duty to have due regard to the relevant needs whether or not the section 71(1) point is raised by a party. The obligation to perform the statutory duty is not dependent on the issue being raised by one of the parties to the appeal (who may or may not have the benefit of professional representation or even advice) . . .

30. We had detailed submissions . . . as to the meaning of section 71(1) and in particular the promotion of equal opportunity limb of section 71(1)(b) . . .

31. 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 .

…

36. I do not accept that the failure of an Inspector to make explicit reference to section 71(1) is determinative of the question whether he has performed his duty under the statute. So to hold would be to sacrifice substance to form. I agree with what Ouseley J said in The Queen (on the application of Lisa Smith) v South Norfolk Council [2006] EWHC 2772 (Admin)

37. 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 . . . To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning.

38. Nevertheless, although a reference to section 71(1) may not be sufficient to show that the duty has been performed, in my judgment it is good practice for an Inspector (and indeed any decision-maker who is subject to the duty) to make reference to the provision (and any relevant material, including the relevant parts of the Code of Practice and Circular) in all cases where section 71(1) is in play. In this way, the decision-maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced.

. . .

40. Largely for the reasons given by Mr Coppel, I am in no doubt that there was no breach of the section 71 duty in this case. The Inspector was alive to the plight of gypsies and travellers and the disadvantages under which they labour as compared with the general settled community. The first of the "other considerations" which she addressed in her decision was what she referred to as 'gypsy status'. It is clear from para 32 that she considered this to be a factor which weighed in the balance in the appellants' favour. The only reason that there could rationally have been for this view was that gypsies suffer from inequality of opportunity as compared with persons of different racial groups, i.e. the general community. The Inspector took full account of this and, by treating it as a factor which weighed in the appellants' favour, she showed that she was having due regard to the need to promote equality of opportunity between them (as persons of gypsy status) and persons of different racial groups. There is no other explanation of why she identified gypsy status as a factor weighing in favour of the appellants. It is immaterial whether she was aware of the existence of the section 71(1) duty." [emphasis added]

79. In the case of R (on the application of Isaacs) v Secretary of State for Communities and Local Government [2009] EWHC 557 (Admin), Elias J (as he then was) said this:

"46. The Inspector did not specifically refer to this duty. However as the Court of Appeal noted in R (on the application of Baker and others) v Secretary of State for Communities and Local Government EWCA 141, that does not mean that he did not take it into account. As Lord Justice Dyson observed at paragraph 37, the question in every case is whether the decision maker has in substance had due regard to the statutory obligation.

47. The Baker case is in my judgment highly material to this submission . . .

48. An important element in the court's reasoning was that the Inspector had taken into consideration Circular 01/2006 . . .

49 . . . Lord Justice Dyson identified other indications which showed that the inspector had been fully alive to the factors which adversely impacted on the claimants' lack of opportunities."

In paragraph 53 of his judgment, Elias J said:

"I would put this point on a more general basis. The classic situation where the section 71 obligation bites is where some policy is in the course of being considered. The duty, to put it loosely, to have regard to race relations implications is very important. But where a policy has been adopted whose very purpose is designed to address these problems, compliance with section 71 is, in my judgment, in general automatically achieved by the application or implementation of the very policies which are adopted to achieve that purpose."

Then in paragraph 54 he said:

"Of course, there may in some cases be additional problems over and above those which the policy is directed to ameliorate, and which will need specific consideration. Perhaps, for example, there is evidence of special tensions over and above those which might naturally be expected to arise from the fact that the claimant is a gypsy who will have to relocate to an unauthorised site. But that is not this case. In my judgment the Inspector was having regard to the requirements of section 71 by seeking properly to apply the policies which had those very considerations in mind."

80. In the course of argument reference was made to numerous other cases from which I do not believe it is necessary to quote in this summary of the relevant law. These included Elias v Secretary of State for Defence [2005] EWHC 1435 (Admin), Brown v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), Kaur v London Borough of Ealing [2008] EWHC 2062 (Admin), BAPIO v Secretary of State for the Home Department [2007] EWCA Civ 1139, Chavda v Harrow LBC [2007] EWHC 3064, E v Jews Free School [2008] EWHC 1535, R (Eisai) v National Institute for Clinical Excellence (NICE) & Others [2007] EWHC (Admin) 1941, Domb v Hammersmith and Fulham [2008] EWHC 3277, and Meany & Others v Harlow District [2009] EWHC 559 (Admin).

The objections to Grainger's proposals on race-related grounds

81. Mr Wolfe observed that the Grainger scheme was controversial partly because in the eyes of some objectors, including the WCCC, it would be likely to have a disproportionate impact on members of the BME communities. This would happen, said Mr Wolfe, through the loss of homes occupied by BME families, including homes above shops, and commercial accommodation most of which was occupied by businesses operated by members of the BME communities. Contrary to the normal presumption, the homes lost were not going to be replaced, in part, by affordable housing.
82. One aspect of the WCCC's objection, as summarized in the committee report, was this:

"4. Negative impact on issues of diversity and equality of Grainger proposals

Local planning processes are required to demonstrate that meaningful community engagement and equalities issues have been accounted for and the diverse groups are not systematically disadvantaged by public authority processes. There is no reference in this planning application to the impact on diverse communities and the needs of diverse local communities, including ethnic minority communities. Members of particular minority ethnic communities are being disproportionately disadvantaged by these proposals. Virtually all the businesses that will be ended by the proposals are from ethnic minority communities that provide some ethnically distinct and important services and goods. The Coalition contends that the needs of the growing Latin American community are being explicitly negated in these proposals."

83. Other objections were in a similar vein. For example, Mr Lagu Sukumaran of the Fair Deal Cash and Carry in West Green Road had said this in his letter to the Council dated 12 November 2008:

"I live above my business with my family . . . I am part of this diverse local ethnic minority community who I serve and depend on my shop for their unique and specialist food products that is non available in national supermarkets.

Demolition will destroy the existing ethnic minority business, the owners, their families, employees and their suppliers. The owners and their families have built up their existing businesses with many years of hard work and determination, in some cases hard work of three generations of family.

There are traders who live above their businesses and in this case they will be forced out of their homes. The traders will not be able to relocate their business to a new location and be successful due to the poor state of the world economy, and will be impossible to get any financial credit due to worsening credit crunch. The traders will lose their place of living, their businesses, and will be forced to accept below market value for their hard earned small businesses, and the result will be mass unemployment, loss of talents, possibility of depression, mental health problems and suffering in this small but vibrant and united diverse community. The customers and residents will lose their choice of shopping and specialist shops."

84. Ms Allen, in paragraph 16 of her witness statement, refers to the deputation statement submitted by the WCCC to the Council on 31 March 2008:

"The need for an equalities impact assessment was specifically raised by me on behalf of the coalition when I presented a deputation . . . to a meeting of the full Council of Haringey, at Haringey Civic Centre Council Chamber on 31st March 2008. I directly asked for an 'equalities assessment' of the development brief for the site which the Council were relying on as the policy context and justification for Grainger's approach to the site."

The deputation statement included this paragraph:

"The Government's 2005 guidance on Equalities and Diversity in Planning makes it clear that 'Consideration of diversity should be at the heart of planning activities' and planning staff should understand mixed people . . . Wards Corner is a living, breathing, changing place. The market has reduced crime, the resident population around the site is changing. New communities have come into the area. The development brief should have been subject to an equalities impact assessment and amended in the light of this."

85. At the meeting of the Council's Planning Committee on 17 November 2008 oral representations were made on the same theme. The minutes record this:

"The Committee allowed four interested parties to address the Committee and outline their objections, who represented the Wards Corner Community Coalition, Tottenham Traders Association, local small business owners and local residents. The Committee was informed that the proposed development was unpopular and would not be considered a landmark development. It would have extremely negative impacts on existing local businesses, homes, social amenity and community cohesion. Objections related specifically to loss of longstanding, diverse and viable businesses and jobs; detriment to community cohesion in Tottenham through targeted harm to ethnic minority communities, poor quality, monumental design out of keeping with the location, destruction of a well regarded heritage building."

A little later in the minutes this is recorded:

"It was considered that [the] two public authorities had no regard for social housing, family homes, a locally listed building lost forever and a thriving community destroyed. An alternative could be considered, a new scheme which incorporated part restoration and part new build so that existing businesses could remain on the site. The Prince's Regeneration Trust were prepared to broker a fresh approach in cooperation with all parties involved. The Wards Corner site was important for the local community and represented mixed nationalities in one centre. A collaboration of all interested parties of Wards Corner was what was required."

86. Councillor Diakides addressed the committee, opposing the proposals. The second of the points he made is recorded in the minutes in this way:

"2. The local traders reflected the rich cosmopolitan mixture of the local community and their businesses responded to the special needs of those communities. These would not be accommodated within the proposed development."

87. In the light of such representations the Council was, as Mr Wolfe put it, plainly on notice, though section 71 of the 1976 Act did not require such notice, that its section 71 obligations were "engaged here on a wide basis by a range of factors". And it was not right, said Mr Wolfe, to contend, as the Council had in its summary grounds of defence, that no request for an equality impact statement grappling with the consequences of the development for the Council's section 71 obligations was made until the pre-action protocol letter.

The Council's Equality Public Duties Scheme

88. Regulation 2(1) of the Race Relations Act (Statutory Duties) Order, made under section 71(2) of the 1976 Act, required the Council to publish a Race Equality Scheme showing how it intended to fulfil its duties under section 71(1) and the Order. Equivalent provisions were imposed for gender (by the Sex Discrimination Act 1975) and for disability (by the Disability Discrimination Act 1995).
89. The Council's "Equality Public Duties Scheme (2007-2010)", published by the Council in December 2006 in compliance with those obligations, states in section 5, which is entitled "Our Methods and Tools":

"This section of the Equality Scheme sets out how we will ensure that we carry out the equalities public duties set out in this Scheme, and the tools that we will use to do so.

5.1 Mainstreaming of Equalities

At the heart of our approach to this work is mainstreaming of equal opportunities.

Mainstreaming is an approach whereby we endeavour to ensure that equalities considerations covering age, disability, gender, race, religion or belief and sexual orientation, are integral to everything we do as a Council.

This is especially so where they relate to or impact on service provision, employment, community involvement and the need to promote community cohesion.

5.2 Carrying out Equalities Impact Assessment

We will continue to make equal opportunity a prime consideration when formulating strategies, policies and plans that govern operations in the Council. That is why we shall carry out an equalities impact assessment of key strategies, policies, plans etc, when they are being developed. Equalities Impact Assessment will be an integral part of the process of formulating strategies, policies and plans relating to our work as a Council. Our purpose will be to carry out and in-depth analysis of key proposals from equalities perspectives in order to identify if, where and how they might adversely affect any of the groups. Where potential significant disproportionate adverse impacts are identified, then authors of the proposals would have a duty to address these before the proposals are finalised and submitted for consideration for a formal decision. In this way, the Council will ensure that equalities issues are routinely incorporated into policy analysis but action taken to address any significant potential adverse effects on any group before a proposal is formally adopted . . . "

Mr Wolfe did not say that the Council's equalities scheme itself was deficient in any way. He contended, however, that sections 2 and 3 of the scheme specifically commit the Council to undertaking an equality impact assessment before significant decisions are taken. The Council's objectives, stated in section 4 of the scheme, included the commitment to ensure that in carrying out its functions it would give "due regard" to several principles, including:

"(i) Promote equality of opportunity for disabled people, men and women, people of different racial and ethnic backgrounds, around age, sexual orientation, religions and faith.

(ii) Eliminate discrimination that is unlawful . . . "

The scheme identifies planning as a function which engages the section 71 duties. Advice on how these duties should be discharged by planning authorities was issued by the Mayor of London in supplementary guidance he published in October 2007:

"Equality Impact Assessments (EqIAs) offer a more detailed look at the implications of local development plans and policies on diversity and gender impact assessments . . . EqIAs should be carried out alongside the development of the document or project being assessed."

Submissions for the claimant

Approach

90. Mr Wolfe submitted that, in considering the operation of the statutory equality obligations applying in the present case, the courts have stressed three things. First, there is a distinction between the negative and the positive obligations; the decision-maker must have both clearly in mind. Secondly, the decision-maker must take into account the need for a rigorous evaluation of the proposed course of action. Thirdly, when adverse consequences are identified by the decision-maker in having "due regard" to the need to eliminate unlawful discrimination and to promote equality of opportunity for, and good relations between, persons of different racial groups, it must give thought to whether those adverse consequences can be mitigated and how. To these three principles Mr Wolfe added a fourth. He said the decision-maker must record the process by which it had discharged the "due regard" duty. This was, he said, implicit in the requirement that the decision-maker should be able to show that it had been aware of its duties under section 71; that it had approached its decision with this as part of its overall evaluation; and that it had had regard to the relevant needs. Only then, said Mr Wolfe, could the decision-maker demonstrate that it had gone through the intellectual exercise it had to perform.
91. In seeking to distil those four propositions from the authorities, Mr Wolfe drew on observations made by judges in considering the section 71 duties as they arose in various factual contexts. He referred to the cases of Elias, BAPIO, Chadva and Baker, and to the judgments of Munby J in E v Jews Free School, of Moses LJ in Kaur, of Scott Baker LJ in Brown, and of Dobbs J in R (Eisai). As was acknowledged by the court in Brown, Mr Wolfe accepted, the obligation to have due regard to the need to achieve the specified goal does not prevent other factors being taken into account in the making of the decision. Section 71 constrains the decision-making process, but does not necessarily affect the result. However, the section 71 duties must be discharged in substance, and this must be seen to be so.

The Council's decision-making process

92. Noting that neither the Council nor Grainger had sought to suggest that the issues bearing on racial equality which had been raised by objectors did not engage the section 71 duties, Mr Wolfe submitted that the Council's contention that it had discharged those obligations did not withstand scrutiny. In the Council's officers' analysis of the Grainger proposal - an assessment of no fewer than 24 topics in their report - there had been no mention at all of the section 71 duties, let alone any treatment of them in substance. Only one of the issues those duties required to be addressed, namely the interests of the Latin American market, had been faced. Even this had been only partially dealt with. No consideration had been given by the Council to its duty to have regard to the need to promote equality of opportunity. Only at the insistence of the Mayor of London had the initial idea of losing the indoor market been abandoned and provision made in the proposed development for a market to continue.

The officer's report to committee

93. Mr Wolfe's main criticism of the officers' report and of the Council's assessment of Grainger's proposals in the light of it was that nowhere in the report was there any evaluation of the likely impact of the development on members of the BME communities, their businesses and their housing, despite this being a matter specifically raised in objections. This was the cohort on which Mr Wolfe's submissions were principally focused. Mr Wolfe argued that the Council had not considered whether and how the development would contribute to the promotion of equality and good race relations. One could tell this from the minutes of the committee meeting and from the statutory "reasons for approval" in the decision notice.
94. It was not a sufficient answer, Mr Wolfe submitted, to say that the future of the Latin American market had been considered, or to assert that the three studies commissioned by the Bridge NDC, which were referred to by the officers in their report, covered the ground that had to be covered if the section 71 duties were to be discharged. Whilst the officers had mentioned and summarized the three studies -- the Cushman and Wakefield report of March 2006, the Shared Intelligence report of March 2008 and the Urban Space Management report of May 2008 -- the studies themselves had not come to grips with the matters raised in objections which went to the section 71 duties, save for the issues relating to the Latin American market. And the studies were not presented to the members; it was not enough for them to be available for perusal in the room where the committee met. Relying on what was said by Sir Michael Harrison in paragraph 83 of his judgment in Domb, Mr Wolfe submitted that, beyond the summary of them contained in the officers' report, the three studies could not assist the Council in arguing it had discharged its duties under section 71.

The alleged consequences

95. Thus, Mr Wolfe submitted, the Council had failed to perform its duties under section 71. It had failed to have "due regard" to both of the needs identified in subsection (1) of that section. It had failed to honour the first two objectives in section 4 of its own equalities scheme. And it had also omitted to consider whether there was indirect discrimination, against members of the BME communities.
96. Giving decisive weight in the planning balance to the benefits of the proposals as countervailing factors might be permissible in the exercise of a decision-maker's discretion. But this could not relieve the Council of its responsibilities under section 71. Had the Council discharged those responsibilities, it could not be said this would have made no difference. The decision was finely balanced; it turned on a majority of one. The issues were complex and controversial.
97. Mr Wolfe said the Council had not had regard to the matters raised by Councillor Hare in his witness statement, including the aim of the policies: the creation of a mixed and balanced community, not ghettos which happened to be geographically proximate. Housing in Haringey could reflect what was worst about London. There were developments which concentrated high deprivation scores. Too often the disparities in housing also reflected the social, economic and opportunity differences, leading to social fragmentation and racial divisions. Frustrated aspirations and prospects in one community could contrast with those of another, producing tension and even violence. None of those matters had been grappled with by the Council, said Mr Wolfe. Mitigation for the displacement of the market had been sought once the GLA had insisted upon it, but none had been thought about for the BME communities. The contrast between the way in which the Council handled the concerns of the market traders and its having omitted to think about the wider equality issues was stark.

The Council's response

98. Mr Wolfe criticized the Council's response to this part of the claim as inadequate and unpersuasive. He referred to an e-mail exchange between Mr Cunliffe Jones on behalf of the Council and Mital Patel, shortly after the committee had resolved to approve the Grainger proposals. Ms Patel had complained that no thought had been given by the Council to the devastating impact there would be on her family's businesses at Wards Corner, a small business built up over 25 years, and others like it. Mr Cunliffe Jones had said in his response that these were "private" or "personal" interests and not matters for the Council's committee.
99. Mr Wolfe said the Council had put together what he described as a "raft of fragments". Indeed, the amount of material put in front of the committee only increased the need for the officers to help the members focus sharply on the performance of their section 71 duties. Having "due regard" to the matters enshrined in section 71 could not be achieved inadvertently. Awareness of the fact that issues relating to diversity and racial equality had been ventilated in objections was not enough. Mr Wolfe referred here to the observations of Wilkie J in paragraph 40 of his judgment in Chadva, Stanley Burnton J's in paragraph 69 of his judgment in BAPIO Action Limited [2007] EWHC 199 (Admin) and Davis J's in paragraphs 72 and 76 to 79 of his judgment in Meany. In the present case there was no record of the statutory imperatives being brought to the attention of the members. Familiar though they might be with the local area and its demographic characteristics, no advice had been given to them on how they were going to go about complying with their statutory duties. None appears in the Council's equalities scheme. Relevant guidance is given in the Mayor's supplementary guidance, "Planning for Equality and Diversity in London" of October 2007. But the committee was not directed to that document.

Baker and Isaacs

100. Mr Wolfe sought to refute the submission, made for the Council and the interested parties, that the application of the Council's policies was, in the present case, tantamount to compliance with section 71. For such a submission to succeed, he said, the policies had to engage with the section 71 duties as they applied specifically to the cohort in question. This was not so here. Baker and Isaacs could be distinguished on the facts. Here the policies were in very general terms.

What the Council ought to have done

101. In response to my invitation to explain what, in his submission, the Council ought to have done, as a minimum, to comply with section 71 in this case, Mr Wolfe produced a note in which he stated:

"1. Whether as part of a formal Equality Impact Assessment or otherwise, [the Council] should have --

(a) obtained information and data in relation to the people directly and indirectly affected by the Grainger scheme (including thus occupants/residents of the site and others who use its facilities) sufficient to enable it to assess whether the decision to grant planning permission (and the linked matters) might amount to unlawful race discrimination and/or might impact on the promotion of equality of opportunity between persons of different racial groups and/or might impact on the promotion of good relations between persons of different racial groups, and if so the extent and nature and duration of those impacts;

(b) assessed that information and data to establish their impact on the need to eliminate unlawful discrimination, the need to promote equality of opportunity and the need to promote good relations between persons of different racial groups.

2. That process could have been undertaken by officers or others provided that the councillors on the Planning Committee were then properly aware of and took into account its results as below.

3. As part of the decision whether to grant planning permission (etc) and as a rigorous conscious exercise (and mindful of the statutory needs themselves) the members of the Planning Committee needed to give due regard to the statutory needs on the basis of the information, data and assessment. That would include them thus considering whether to refuse permission, amend the proposal or impose conditions or other requirements with a view to avoiding or mitigating any unlawful discrimination and better promoting equality of opportunity and good relations between persons of different racial groups."

Submissions for the Council

The section 71 duties

102. In the light of the Court of Appeal's decision in Baker, Mr Milner submitted that it was necessary for a local planning authority, in the exercise of its functions, to have such regard to the twin statutory goals of good race relations as was appropriate in all the circumstances of the case. This had to be achieved in substance. It was not necessary for explicit reference to be made to the statute.

The Council's Equality Public Duties Scheme

103. Mr Milner underscored his submissions by stressing the Council's strategy in its Equality Public Duties Scheme (2007-2010), in which the equalities duties are "mainstreamed". He laid particular emphasis on paragraphs 5.1 and 5.2 of the Scheme.

Policy relevant to development at Wards Corner

104. Central to Mr Milner's argument was his submission that the whole purpose of the Council's policies and the development brief for Wards Corner was to meet the needs of the diverse communities of this part of the borough. No complaint had been made about those policies. They were the product of a process which had included extensive public consultation in this strongly multi-cultural area. They fell within a wider strategy, which identified and responded to the social needs of the area. The Bridge NDC, a regeneration programme run by a Communities Partnership Board, funded by the Government and targeted on the areas of greatest deprivation in Haringey, had been established with this strategy in mind. Such was the nature of the area in which Wards Corner lies that the specific duties in section 71 did not need to be spelt out in the course of the decision-making on Grainger's application.
105. Mr Milner stressed the role and focus of the Bridge NDC. Its policies were directed to assisting areas of deprivation, largely inhabited by the BME communities, with a view to improving the lot of those communities. These were the people who were especially the victims of crime, in particular drug-related crime. And these were the people whom Grainger's development would help.
106. The object of regeneration at Wards Corner with a development which would serve to reduce the severe environmental, economic and social problems of the area, was underwritten by policies AC3 and AC4 of the UDP. In introducing those policies, paragraphs 1.1 to 1.5 of the UDP acknowledge that a large proportion of minority ethnic communities are concentrated in those parts of the borough where the greatest concentrations of disadvantage are found. Paragraphs 1.1 and 1.2 of the UDP state:

"1.1. Haringey is often described as an outer London borough with inner city problems. Almost 40% of Haringey's population live in wards that are amongst the most deprived 10% in England.

1.2 The borough is economically and socially polarised, a consequence of an extensive area of deprivation in the centre and the eastern part of the borough, with the more affluent areas in the west. Tottenham is generally the poorest area of Haringey. Another characteristic of Haringey is the transience of a significant proportion of the population, again largely concentrated in the areas of deprivation to the east. Also, a large proportion of minority ethnic communities are concentrated in those parts of the borough where the greatest concentrations of disadvantage are found. Therefore regeneration initiatives will be targeted at the centre and the east to narrow the gap between the east and the west of the borough."

Thus, as the policies of the UDP specifically relevant to the Wards Corner site, policies AC3 and AC4 are explicitly informed by aims bearing on the Council's section 71 duties. In paragraph 1.14 of the UDP where the Council announces its determination, through the Bridge NDC, to:

" . . . improve the quality of life for residents . . . to change the area so that it becomes a better place to live, has more sustainable communities, tackles social exclusion and reduces the long-term impact of poverty. It seeks to integrate and reshape local service delivery through effective partnership, community involvement and multi-agency working, all contributing to strong and proactive neighbourhood management."

Policy AC4 itself includes the requirement that development, including development at Wards Corner, "promotes an environment and conditions where opportunities for enterprise are open to all".

107. One can therefore tell from the Council's policies, said Mr Milner, that far from ignoring its race duties the Council is doing what it can to strengthen the diverse communities in this part of Haringey, to invest in them, and to improve their quality of life. Such an approach, Mr Milner submitted, is integral in the Council's thinking. It is seen by the Council as an essential part of its responsibilities. To eliminate discrimination and to promote racial equality are the focus of the whole exercise.

The Council's decision-making process: (i) context

108. Mr Milner submitted that it was clear that, in substance, the Council did have due regard to the two needs referred to in section 71. It would have been odd indeed, he said, if the interests of cultural diversity and of the BME community had been ignored by the Council. Councillors were familiar, in their day-to-day decision-making, with the needs of diverse communities. Haringey is an exceptionally diverse borough, in which about half of the population and three quarters of the young people are from ethnic minority backgrounds. In the Tottenham Green Ward, where Wards Corner is situated, the portion of the population that is of white ethnic origin is a minority. The members of the Council's Planning Committee were well acquainted both with the area around Wards Corner and its community.

The Council's decision-making process: (ii) consultation

109. Extensive consultation was undertaken by the Council on the Grainger application. Various representations were made in response, some specifically urging on the Council the importance of the Wards Corner site for the local, very cosmopolitan community, for people in the ethnic minorities and for local traders. Others praised the virtues of Grainger's proposed development: in the investment it would bring, in its regenerative qualities, in the jobs it would create and in its potential to reduce crime and to improve the safety and well-being of local people. The NDC believed that the majority of residents in its area were in support of the application. On this range of views the members on the Council's committee had, said Mr Milner, an informed perspective.

The Council's decision-making process: (iii) the committee report

110. Mr Milner explored the relevant contents of the committee report. He drew attention to a large number considerations which had contributed to the officers' conclusions and recommendation:

(i) the Council's consultation exercise, the separate consultation of some 12,000 households undertaken by the NDC, and Grainger's own consultations;

(ii) the petitions presented to the Council by local residents;

(iii) the letters and e-mails received from local residents, including those concerning the impact on the local community and businesses;

(iv) the poll conducted by ICM;

(v) the representations submitted by the WCCC, including its letter of 8 July 2008, which specifically drew attention to the impact on the "Latino market" and upon small businesses and "the material, social and economic fabric of this diverse community";

(vi) the several policies of the development plan promoting social inclusion, including policies AC3 and AC4 of the UDP and London Plan policies 3A.17 ("Addressing the needs of London's diverse population") 3A.28 ("Social and Economic Assessment"), and 4B.5 ("Creating an Inclusive Environment");

(vii) the Mayor of London's supplementary planning guidance "Planning for Equality and Diversity in Meeting the Spacial Needs of London's Diverse Communities";

(viii) national policy in the ODPM's good practice guide "Diversity and Equality in Planning";

(ix) the specific attention given in the GLA reports on the application to the issue of "Equal Opportunities", including consideration of the cultural diversity of the area, and the likely impact on the Latin American market, which was judged by the GLA officers to be acceptable;

(x) the improved terms for traders set out in a letter from the GLA dated 8 October 2008 to the Council;

(xi) the three substantial reports produced for the NDC, which between them considered not merely the Latin American market but also, the demographic and cultural profile of the area, including the fact that 35 per cent of the residents in the Wards Corner LSOA area belonged to the "Black/Black British" group, the fact that half of the population of the Bridge area was in the BME groups, the fact that in 2004 the Wards Corner output area was among the 5 to 10 per cent of most deprived neighbourhoods in England and Wales, and the likely implications of the proposals for housing, crime, public services, public realm, training and employment;

(xii) the likely effects on retail uses and users, including the relocation of the market within the development itself, the provision of compensation for, and advice and assistance to, existing traders, and the relevant safeguards in the section 106 agreement; and

(xiii) the clear conclusions in the officers' report that the development would "represent investment in the area which would lead to further physical and social economic regeneration in line with Council Planning Policy" and "the promotion of small retailers can also assist the needs of local businesses, small and medium sized enterprises and black and minority ethnic businesses which in turn can support the needs of the local community".

111. The officers concluded that the project would result in "significant community benefits". This conclusion, said Mr Milner, flowed from an analysis to which express consideration had been given to the cultural, racial and social characteristics of the area and the impacts the development was likely to have.

The Council's decision-making process: (iv) the committee meeting

112. The minutes of the Council's committee meeting record a long list of local representations, and the fact that the committee allowed four interested parties to address it to outline their objections: the WCCC, the Tottenham Traders Association, owners of small businesses in the locality of the application site and local residents. The committee was told that some objectors had said the development would have "extremely negative" effects, including harm to "social amenity and community cohesion", and specifically, to the ethnic minority communities, to long established, diverse and viable businesses, and to employment. The minutes refer to the committee having queried whether the market traders had been involved in the proposals for the site. Members were told that consultation had begun in 2003 and had continued throughout that year and in 2005 and 2007; that in July 2005 newsletters had been sent to 10,000 homes; that in July 2007 an exhibition had been held; that "stakeholder meetings" had taken place; and that Grainger had invested in their own consultation process. The committee meeting, which dealt only with Grainger's proposal, had lasted more than three hours.

The GLA's position

113. Mr Milner also pointed to the view the GLA had independently reached, not only on the implications for the market but also more generally for the local community. The GLA's Stage 2 report, which reviewed the Grainger proposal on 3 December 2008, mentioned changes that had been made since the Stage 1 report had been prepared. These included the improved terms for the market and local traders and the consideration of objections raised by the WCCC at a meeting with the GLA on 26 November 2008.

The Government Office for London

114. On 16 December 2008 the Government Office informed the Council that, having considered the relevant policies at national, regional and local level and the representations submitted, and having concluded that the Council had taken account of the relevant policies in reaching its decision to approve the proposal, the Secretary of State did not intend to intervene.

Submissions for the interested parties

The correct approach

115. Mr Corner said that the decisions of the Court of Appeal in Baker and Elias J in Isaacs indicated the right approach. He submitted that in the light of the principles Dyson LJ had expressed in paragraphs 30 to 43 of his judgment in Baker, and the application of those principles in the subsequent decisions of the Court of Appeal in O'Brien v South Cambridgeshire District Council [2008] EWCA Civ 1159 and Basildon District Council v McCarthy [2009] EWCA Civ 13, the general approach the court should adopt in considering whether an authority had properly discharged its section 71 duties was clearly established. The crucial question is not whether the decision-maker has referred specifically to section 71, but -- irrespective of any overt consciousness and application of that provision -- whether its requirements have in substance been met.

The Council's decision-making process

116. It is clear on the facts, Mr Corner submitted, that, in substance, the Council did discharge its duties under section 71. The Council understood and grappled with the problems encountered by the ethnic minorities in the area where the development was proposed, with the scale and nature of the disadvantage suffered in those parts of the area where members of the ethnic minority groups were concentrated, the particular situation of people in those groups who were on the application site itself, and the implications of the proposed development for them.
117. Secondly, said Mr Corner, the circumstances here are analogous to those in Isaacs. Mr Corner relied in particular on paragraph 53 of the judgment of Elias J. In this case, the application of the UDP policies germane to Grainger's proposed was sufficient to discharge the Council's section 71 duties. In fact, the Council had gone further. It had considered the people directly affected by the proposal, which was more than it had to do to comply with section 71. Crucially, however, the Council's committee had drawn to its attention by its officers, and had applied, development plan policies -- both in the UDP and in the London Plan -- directed to promoting equality and diversity. Such policies, said Mr Corner, could be seen as the kind of active steps to which Munby J referred in paragraph 213 of his judgment in E v Jews Free School.
118. Thirdly, as had been accepted on behalf of the claimant, the Council clearly came to grips with the issues relating to the Latin American market. The re-provision of the market was dealt with by the officers in the committee report in the light of the Urban Space Management report. The commitment to accommodating the market traders within the scheme was underpinned by the section 106 obligation.
119. Mr Corner submitted, fourthly, that Grainger's scheme had been conceived in the knowledge that members of the BME communities comprised a substantial proportion of the local population. As the minutes of the committee meeting record, the members were well aware that the Wards Corner site "represented mixed nationalities in one centre".
120. Fifthly, Mr Corner submitted, the officers' report had made the members aware of both sides of the relevant arguments relating to the concerns of, and for, the traders in the Latin American market.
121. Sixthly, this was clearly not a case of indirect racial discrimination. In any event, planning considerations can outweigh such discrimination (see, for example, the decision of Collins J in McCarthy & Others v Basildon District Council [2008] EWHC 987 (Admin), at paragraph 48)).
122. For all those reasons, submitted Mr Corner, the court should conclude that in the present case the Council had properly discharged its duties under section 71 of the 1976 Act. There was no warrant for defining the scope of the Council's duties as widely as Mr Wolfe had done. In particular, there was no duty to conduct a formal equalities impact assessment for the proposed development in this case. One wondered where the whole exercise would end if Mr Wolfe were right.

Conclusion on the second ground of the claim

123. Again, I prefer the argument advanced by Mr Milner and Mr Corner to that of Mr Wolfe.
124. On this second ground of the claim, as on the first, the relevant jurisprudence is far from embryonic; I am not faced with the prospect of having to make the law, only with the task of applying it.
125. There is, I think, a danger in adopting too formulaic an approach to the performance by a local authority of its section 71 duties. How those duties are to be performed in any particular case will always depend on the factual and policy context. Certainly in a case where the duties arise in the field of land use planning, and in particular when they arise in development control decision-making, the policy context is likely always to be important. As Mr Milner and Mr Corner submitted, having "due regard" to the needs to which section 71 refers is not an absolute and immutable concept. What amounts to "due regard" will vary according to the circumstances. It will depend on the factual situation in which the obligations fall to be discharged. A decision-maker -- and this includes a planning decision-maker -- can achieve what is required even if not conscious of its duties under section 71.
126. What, then, is the policy context here? In the present case the statutory needs were in the very focus of the Council's own policies dedicated to the regeneration of Wards Corner. In the UDP there is both a general impetus for regeneration and the specific aim of promoting the welfare of the communities, including the racial minority communities, which are principally concentrated in the most deprived parts of the borough. This is the background to policies AC3 and AC4. The Bridge NDC initiative also sprang from a recognition of the problems afflicting the ethnic minority communities in these areas. The development brief for Wards Corner had its genesis in those issues too. I am satisfied that the authors of the UDP believed they must reflect in its provisions for the Wards Corner area the imperatives of advancing the interests of diversity and racial equality, and recognized that securing social, economic and physical regeneration in this area would advance those interests. I accept the submissions made on this theme by Mr Milner and Mr Corner.
127. Within that policy context I am of the view that the Council's officers, and in turn its members, reached a balanced judgment on the Grainger application, in which the Council explicitly and carefully took into account the racial, cultural and social characteristics of the Wards Corner area and the wider Bridge NDC area, and the needs of the communities of, and the implications of the development for, those areas of importance. The result of this consideration was the clear conclusion that the development proposed would result not only in physical regeneration but also in social and economic regeneration, including benefits for businesses owned by members of black and minority ethnic groups.
128. On this point too I find the submissions made by Mr Milner and Mr Corner realistic and convincing.
129. In my judgment, it is clear that the Council performed its development control functions in this case within the framework provided for it by policies and initiatives which had been designed to secure not only the objectives of section 71 of the Race Relations Act 1976 but also the wider community benefits to which the scheme of regeneration was judged to be likely to lead.
130. This, in my view, is a case in which the achievement of such benefits was in compliance with the statutory goals in section 71. And I believe it is right to discern a parallel in the present case with the circumstances in Isaacs. This too is a case in which the considerations arising under section 71 effectively merge with the matters to which the Council had to have regard by virtue of its fundamental duties under the planning legislation to make decisions on applications for planning permission having regard to all material considerations, including the development plan, and in accordance with the plan unless material considerations indicate otherwise. It is to be noted that no failure to go through that statutory exercise in a legally satisfactory way has been alleged by the claimant. To my mind, this is significant in itself.
131. Thus, in substance – and this is after all the critical issue - it is my judgment that both the Council and the GLA had regard, and properly had regard, to the racial, social and cultural effects of the development proposed. This did not depend on a formal equalities impact assessment being undertaken. None was required. And that is not fatal, or even necessarily a shortcoming of the Council's process of decision-making. As the Council's Equality Public Duties Scheme makes clear, such assessments are usually carried out for policies and plans. The GLA did not seek such an assessment here. In substance, however, the material before the Council covered all the matters that would have gone into a formal assessment if one had been undertaken.
132. Embraced in that material were the wider factors relating to deprivation and the general needs of the ethnic minorities in the relevant parts of the borough, and the specific factors relating to the needs of the ethnic groups directly affected by the proposal and the people with businesses on or near the application site. The evidence before the court, including the material to which Mr Wolfe - as well as Mr Milner and Mr Corner - referred in detail and on which I have touched, makes this clear.
133. In my judgment, therefore, the Council did at least as much as it had in substance to do to comply with its duties under section 71. It did so in the pragmatic fashion endorsed by the Court of Appeal in Baker (see paragraphs 31, 36, 37 and 40 in the judgment of Dyson LJ). Viewing the whole of the Council's conduct in this case, I am satisfied that it met the substance of the statutory requirements, and thus had regard to the section 71 needs in a way that was appropriate in all the circumstances. I conclude that although the Council did not at any stage articulate the fact that it was going about the discharge of its section 71 duties as they bore on the traders in the Latin American market and on the BME communities, it achieved this end and it did so fully.
134. I am grateful to Mr Wolfe for the note he provided at my request, setting out what he submitted the Council ought to have done to discharge its section 71 duties in this case. I have quoted that note earlier in this judgment. It will be apparent from what I have now said that in my view the suggested stipulations are largely supererogatory. I do not accept that the Council's duties were as onerous as Mr Wolfe submitted or as specific in terms of the particular tasks he identified. Those tasks seem to me to exceed the essentially pragmatic approach to the discharge of the section 71 duties to which the court gave its blessing in Baker and Isaacs.
135. I conclude, therefore, that the second ground of the claim is not well-founded.

Conclusion

136. Having heard this case argued over the course of two days, and for all the reasons I have given, I am satisfied that it is right to grant permission the claim for judicial review for to be argued, but that the claim itself must fail.
137. MR BOOTH: My Lord, in relation to your finding in relation to the substance of the claim I only ask you order that the claim be dismissed. Other than I need to touch on the matter of costs. My Lord, as I understand matters the claimants are legally aided so in these circumstances, and I am afraid I have not applied my memory to the standard order which the court would make in these circumstances.
138. THE DEPUTY JUDGE: It would be detailed assessment of the claimant's costs. You are asking for an order for costs not to be enforced without the court's permission.
139. MR BOOTH: My Lord, yes.
140. THE DEPUTY JUDGE: There is no summary assessment in this case. The case lasted two full days and I have given judgment on a third. Mr Wolfe, what do you say about this?
141. MR WOLFE: I do not think I can resist the principle of costs. My Lord is right to say that I need detailed assessment of the claimant's costs. As for the defendant's costs, no issue could arise in any event because there is no possibility of summary assessment and my Lord is right in saying it is a two day case in any event. In terms of the form of the order, I think my learned friend is unnecessarily over-complicating the order when he says that I need the "not to be enforced" proviso because that comes from the statute. In fact, my Lord can make an order simply saying that the claimant pays the defendant's costs to be assessed if not agreed.
142. THE DEPUTY JUDGE: Which you do not resist?
143. MR WOLFE: Exactly.
144. THE DEPUTY JUDGE: I make that order which is that the claimant will pay the defendant's costs to be assessed if not agreed. I do not think I need to make any further order or qualification to that order. I should say too that the claim is dismissed.
145. MR WOLFE: My Lord, Mr Tabachnik is staying very still. I assume he is making no application. I would resist an application from his client.
146. THE DEPUTY JUDGE: I assume he is not.
147. MR TABACHNIK: I am not.
148. MR WOLFE: My Lord, can I deal with a further question which is a question of application for permission to appeal. Although obviously I hear my Lords words, and you have said very clearly on more than one occasion that your decision is on the facts of the case, but, in my submission, actually on analysis they are not quite as easy to deal with as that might suggest. Obviously my Lord has listed the facts, but in terms of ground one, my Lord's short reasons clearly relied on consistency with the policies. My Lord rightly said demolition was consistent with policies AC3 and AC4, but, in my submission, that is not enough. That is an erroneous approach when those policies -- and my Lord I think indicated -- are themselves open minded on the key question. It is not the same as a situation where a councillor is reciting something settled by a policy. Although what you said is consistent with the policy, that is to beg the real question, which is: is it the only answer which I think my Lord would accept.
149. My Lord, the other aspect of my Lord's analysis on that ground was to focus on the wider open mindedness my Lord found in relation to the merits of the greater scheme. That is to miss the narrow point which is that bias on a particular issue is sufficient. One can be open minded on 9 out of 10 issues, but if one has the requisite predetermination of one, that is enough to vitiate the decision. An apparent open mindedness on the rest of the scheme is not sufficient. In my submission, my Lord went wrong in that respect. Georgiou was an example of this. It was not said that the Council was biased on the whole merits of the whole scheme. They were sufficiently closed minded in relation to a key aspect. My Lord, in my submission, my Lord's analysis of the point in the end was very short. Those two aspects were essential to the case. In my submission there is at least an arguable claim to say my Lord departed from the proper approach in that regard.
150. In relation to ground two, my Lord was specific in saying, which is to go beyond the authorities, that the Council's decision can achieve compliance without being conscious of its duty. My Lord, the reason I say that goes beyond authority -- if I can ask my Lord to pull up the authorities bundle at tab 13, it is the case of Brown. Paragraph 90.
151. THE DEPUTY JUDGE: Yes.
152. MR WOLFE: This is the paragraph at which Scott Baker LJ summarises the position from the authorities. He says this:

"An examination of the cases to which we were referred suggests that the following general principles can be tentatively put forward. First, those in the public authority who have to take decisions that do or might affect disabled people must be made aware of their duty to have 'due regard' to the identified goals . . . "

Then at the foot of the page:

"Thus, an incomplete or erroneous appreciation of the duties will mean that 'due regard' has not been given to them: see, in a race relations case, the remarks of Moses LJ in R (Kaur and Shah) v London Borough of Ealing [2008] EWHC 2062 (Admin) at paragraph 45."

At paragraph 91:

"Secondly, the 'due regard' duty must be fulfilled before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question. It involves a conscious approach and state of mind."

153. My Lord, in my submission, that is not consistent with the way my Lord approached it, which was to erect the opposite proposition. I say Isaacs and Baker do not depart from that. What I say Isaacs and Baker are simply saying is where you have a policy, the application of which as properly understood gives rise to an approach of state of mind, is sufficient. If you have a substitute test, that is sufficient. My Lord, in my submission, there is nothing that my Lord has identified -- AC3 and AC4 and so on -- which could be said to be a substitute test in comparison with the way the court has looked at the gypsy policy. In my submission, Isaacs and Baker do not depart from the conscious state of mind. They illustrate how that can be done.
154. THE DEPUTY JUDGE: All right. Yes. Is that everything you have to say?
155. MR WOLFE: My Lord, it is. That is why I say there is a very clear error on my Lord's part. My Lord said in terms the decision-maker does not need to do it in a conscious state of mind. That is a point for the Court of Appeal.
156. THE DEPUTY JUDGE: You need to see what I said in the context in which I said it. Mr Booth, do you want to say anything?
157. MR BOOTH: Just to come back briefly on what my learned friend said in relation to ground one. So far as your Lordship did make a precise findings in relation to that ground, in my submission, the key thing to bear in mind and hear in my learned friend's application for permission to appeal was that your Lordship was applying, as your Lordship has accepted, law with which your Lordship is very familiar. And in so far as that ground is concerned, your Lordship did say that, actually irrespective of matters that were pointed in favour of the Council, the key consideration was that the claimant did not clear the first hurdle because there were not clear pointers that the claimant could draw attention to which were indicative of apparent bias on the part of Councillor Peacock. On that basis, in my submission, counsel for the appellant's application in relation to ground one should fail. As far as ground two, I am not familiar with those authorities.
158. MR TABACHNIK: My Lord, I endorse those submissions of Mr Booth in respect of ground one. The point I would make is that you determined and rejected both grounds on the facts. As your Lordship said in respect of both matters, without seeking to or in fact taking boundaries of the law any further, it is simply a question of the application of the facts of this case in the context of this case against well established legal principles.
159. So far as ground one is concerned, with all due deference to Mr Wolfe, he did not really begin to dismantle, in his request for permission to appeal, either your Lordship's analysis that three instances that he had prayed in aid did not constitute a basis for predetermination and nor can did he really seek to take issue with most of the pointers your Lordship referred to as having indicated otherwise. For those reasons, I would invite your Lordship to conclude that there is no real prospect of success in respect of ground one.
160. Similarly in respect of ground two, your Lordship comments that the judgment you have made needs to be seen in the whole context of which counsel addressed matters and all the relevant factors which your Lordship set out in his judgment.
161. On the specific point that Mr Wolfe makes about the judgment in the Brown case, with great respect to him, he confuses consciously having in mind the relevant factors which go to make up the matters that section 71 requires to be considered and expressly stated that one is applying section 71, as your Lordship said on a number of occasions in this judgment, picking up on the Court of Appeal's decision in Baker. The matter is to be tested by reference to the substance of the specific case. The council did apply its mind through the policies inter alia to the matters which section 71 requires it to address. For those reasons, the point Mr Wolfe makes is not a good point. Your Lordship should refuse permission to appeal.
162. THE DEPUTY JUDGE: Certainly on the first ground, that is my impression. So far as the second ground is concerned, what was I was doing was applying the approach of Dyson LJ in Baker. I did not seek to go beyond that in anything that I said. I made it absolutely clear that I was not seeking to advance the law beyond present boundaries but to apply it.
163. MR TABACHNIK: That is an objective I would submit your Lordship achieved. Unless I can assist any further.
164. THE DEPUTY JUDGE: That is very helpful.
165. MR WOLFE: My Lord, can I raise, if I may, a challenge on this clear point of challenge from the Council. My Lord looked at three instances -- the e-mail, the comments and so on -- and in relation to the e-mail my Lord simply said that it was five years old and before the decision application was made and was related to AC3 and AC4. That is not an answer.
166. THE DEPUTY JUDGE: You have made that submission already.
167. MR WOLFE: Simply because it is old, it was never departed from. My Lord has not dealt with that. You said in relation to Mrs Alvarez's evidence that it was 18 months older, but you did not make a factual finding that Mrs Alvarez was wrong. My Lord has identified qualifications on that evidence but not qualifications which led my Lord to make a factual finding that that was not what Councillor Peacock said. My Lord said it was consistent with AC3 and AC4.
168. THE DEPUTY JUDGE: Mr Wolfe, I said what I said and you need to see all those individual points in the total context of what I said. On both grounds, if I may say so, my judgment turned -- and deliberately and explicitly turned -- on the factual matrix and on the submissions made to me. If you do not like that then you must ask the Court of Appeal for permission to appeal. I do not give you permission.
169. MR WOLFE: My Lord, can I deal with one ancillary matter. If I can ask that the transcript be expedited. I am concerned if we do not expedite it, it will slip to October.
170. THE DEPUTY JUDGE: They are under pressure at this time of year particularly, I would suggest. Certainly I will ask for the transcript to be expedited. What that will mean in practice I am not entirely sure. If you wanted time to run from the date of receipt of the expedited transcript?
171. MR WOLFE: That would further take the pressure off.
172. THE DEPUTY JUDGE: That would take the pressure off.
173. MR WOLFE: It assists to some extent. I am grateful for the twin aspects of that. The slight further complication is that the LSC cannot obtain an application for further funding until they have the transcript. That may yet cause a wrinkle but my Lord's indication of expedition plus time not running till receipt mitigates that.
174. THE DEPUTY JUDGE: If I said 21 days from the receipt by the parties of the expedited transcript.
175. MR TABACHNIK: I wonder if my Lord would reduce that to 14. As my Lord will appreciate, this is an expedited hearing. One does not know quite when the transcript will emerge.
176. THE DEPUTY JUDGE: I think 14 days is probably realistic.
177. MR WOLFE: We are then in the hands of the LSC.
178. THE DEPUTY JUDGE: I will do what I can to ensure that the transcript is speeded up. I think 14 days is right. I order that time for submitting an application for permission to appeal is limited to 14 days from receipt by the parties of the transcript as approved by me, which I will order to be expedited.
179. MR WOLFE: Thank you.
180. THE DEPUTY JUDGE: You have received this judgment sooner than you would have done had I had to hand it down rather than read it out.