Harris, R (on the application of) v Haringey

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.

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.

The proposal the Council approved is described in its decision notice in this way:

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.

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.

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.

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:

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.

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:

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:

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

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

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

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.

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:

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."

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:

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 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.

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.

I shall take these three occasions in chronological order.

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 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:

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.

As to the meeting of the forum on 6 July 2003 Councillor Peacock says this (in paragraph 11 of her witness statement):

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".

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:

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:

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

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

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

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:

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.

Councillor Peacock's response to what Ms Alvarez says appears in paragraphs 26 to 30 of her witness statement:

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 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:

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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:

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.

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.

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.

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.

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.

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.

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:

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.

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.

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.

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.

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.

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.

Turning to the factors of relevance in the present case, I believe the following matters are clear, and important.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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".

I therefore conclude that the claim cannot succeed on this, the first of the two grounds advanced.

Section 71 of the Race Relations Act 1976 provides:

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

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:

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).

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.

One aspect of the WCCC's objection, as summarized in the committee report, was this:

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:

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:

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:

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

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.

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).

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":

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 ActionLimited [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.

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.

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:

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.

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.

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.

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.

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:

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.

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.

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.

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:

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 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.

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.

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.

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.

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.

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.

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.

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".

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.

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)).

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.

Again, I prefer the argument advanced by Mr Milner and Mr Corner to that of Mr Wolfe.

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.

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.

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.

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.

On this point too I find the submissions made by Mr Milner and Mr Corner realistic and convincing.

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.

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.

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.

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.

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.

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.

I conclude, therefore, that the second ground of the claim is not well-founded.

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.

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.

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.

MR BOOTH: My Lord, yes.

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?

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.

THE DEPUTY JUDGE: Which you do not resist?

MR WOLFE: Exactly.

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.

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.

THE DEPUTY JUDGE: I assume he is not.

MR TABACHNIK: I am not.

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.

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.

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.

THE DEPUTY JUDGE: Yes.

MR WOLFE: This is the paragraph at which Scott Baker LJ summarises the position from the authorities. He says this:

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.

THE DEPUTY JUDGE: All right. Yes. Is that everything you have to say?

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.

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?

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.

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.

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.

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.

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.

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.

MR TABACHNIK: That is an objective I would submit your Lordship achieved. Unless I can assist any further.

THE DEPUTY JUDGE: That is very helpful.

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.

THE DEPUTY JUDGE: You have made that submission already.

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.

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.

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.

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?

MR WOLFE: That would further take the pressure off.

THE DEPUTY JUDGE: That would take the pressure off.

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.

THE DEPUTY JUDGE: If I said 21 days from the receipt by the parties of the expedited transcript.

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.

THE DEPUTY JUDGE: I think 14 days is probably realistic.

MR WOLFE: We are then in the hands of the LSC.

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.

MR WOLFE: Thank you.

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.