Baker & Ors, R (on the application of) v Secretary of State for Communities & Local Government& Ors [2008] EWCA Civ 141. A Court of Appeal judgment on appeals of refusal for planning permission for the retention of mobile homes on green belt land by Irish traveller families. The appeal failed, but what is particularly interesting is the examination of section 71(1)(b) of the Race Relations Act 1976. The EHRC intervened in this appeal, so the issue of ‘due regard’ to s71 “the need to promote equality of opportunity between persons of different racial groups”, in public authority decision-making got a good hearing.
In the only judgment, Lord Justice Dyson rejects the need for an explicit reference to s.71(1), or required form of words, instead following R (on the application of Lisa Smith) v South Norfolk Council [2006] EWHC 2772 (Admin). At 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.
That said, a reference to the requirements of s.71(1) and associated codes and guidance would be good practice.
In this case, the decision-maker had clearly had regard to and balanced the relevant issues.