Kara Tobin v Welsh Ministers: public sector equality duty in planning enforcement

The Planning Court has dismissed an appeal by Kara Tobin against an enforcement notice requiring the demolition of a porch she constructed at her home in Bridgend to accommodate her substantial disabilities. The case centred on whether the inspector properly considered the public sector equality duty when refusing planning permission.

Ms Tobin, who has two rare neurological conditions causing paralysis, is deaf, and registered as Significantly Sight Impaired, constructed a replacement porch at her property in 2021. The new porch differed from the previous structure in having a pitched rather than flat roof, and the external door at the front rather than the side. These changes were designed to enable wheelchair access via a ramp, which Ms Tobin said was essential for safe and convenient access to her home.

Bridgend County Borough Council determined that planning permission was required due to the porch's height exceeding three metres, and issued an enforcement notice in March 2023 requiring its removal. Ms Tobin appealed, arguing principally that planning permission should be granted given her disability-related needs, and that the Council and inspector had failed to comply with their public sector equality duty under section 149 of the Equality Act 2010.

The inspector's decision

The inspector dismissed the appeal, finding that the porch caused material harm to the character and appearance of the area. He noted that whilst the porch was relatively similar in size to others locally, its pitched roof 'jarred against the roof of the main dwelling' and was 'out of character with the surrounding area'. The inspector expressly considered Ms Tobin's protected characteristics and personal circumstances, including health and financial implications, but concluded these did not outweigh the planning harm identified.

Critically, the inspector found that he had 'not seen anything to lead me to believe that the porch subject of the enforcement action is the only way of achieving a safe access to the property'. He considered that refusing planning permission would be proportionate and in pursuit of a legitimate planning aim, and would not represent an unjustified interference with the occupants' rights under Article 8 of the Human Rights Act 1998.

The statutory appeal

HHJ Jarman KC granted permission to appeal on one ground only: that the inspector breached his public sector equality duty and/or failed to give adequate reasons. The other three grounds advanced were refused permission. Judge Jarman considered it arguable that the inspector demonstrated insufficient rigorous consideration of the precise equality implications by focusing on whether the porch was the only way of achieving 'safe' access, rather than considering what was convenient taking account of Ms Tobin's disabilities.

Analysis of the equality duty

HHJ Keyser KC comprehensively reviewed the authorities on the public sector equality duty, noting that whilst it requires 'rigorous' consideration exercised 'in substance, with rigour, and with an open mind', it does not mandate any particular outcome. The duty is context-specific, and what constitutes due regard depends on the particular circumstances. The court is concerned with substance, not formulaic box-ticking, and a decision-maker can comply with section 149 even without express reference to it.

Applying these principles, the judge found that the inspector properly discharged the equality duty. He had expressly referred to it, correctly identified the issues for determination, and clearly understood Ms Tobin's protected characteristics and personal circumstances, which had been squarely raised before him. The inspector identified the planning harm and explained why this was not outweighed by personal circumstances, including protected characteristics.

The 'safe access' point

Addressing the specific concern raised when granting permission, HHJ Keyser KC held there were several answers to the complaint that the inspector focused only on safety rather than convenience of access. First, Ms Tobin herself had advanced the appeal on the basis of safe access, not convenience. The duty to have 'due regard' did not require consideration of potential equality impacts not raised unless reasonably apparent, which convenience (as distinct from safety) was not.

Second, reading the decision fairly and as a whole, it was clear the inspector was aware of and had regard to all material implications of removing the porch. Third, neither the evidence nor the inspector's reasoning suggested that convenience raised different issues from safety. The inspector had noted that a porch compliant with permitted development rights could potentially be erected, and there was nothing to suggest this would be less safe or convenient than the existing structure.

The enquiry argument

Ms Tobin contended that the inspector should have sought further information about alternatives to complete demolition, relying on the duty of enquiry identified in cases such as Bracking. However, this argument had effectively been pursued (and refused permission) as Ground 2 of the original appeal, based on alleged breach of the Tameside duty and procedural unfairness. It could not be repackaged as an aspect of Ground 1.

In any event, the judge held that the inspector was entitled to proceed as he did. Following Tapecrown Ltd v First Secretary of State, whilst an inspector may consider alternatives if they appear obvious, it is not his duty to search around for solutions or make the appellant's case for him. The inspector had turned his mind to less extreme solutions but had not been provided with firm proposals and clearly thought any alternative would involve major reconstruction. Fairness did not require him to explore the matter further.

Other matters

The court rejected various other points raised by Ms Tobin, including complaints about the inspector's site visit lasting only ten minutes, the absence of contemporaneous notes, and alleged failures to follow the Inspector Training Manual. Such matters did not establish any error of law. The manual was not itself a source of legal obligation, and matters such as the inspection procedure and note-taking did not support the permitted ground of appeal.

Similarly, the court found that the inspector was not required to make express mention of every matter raised, including issues around harassment and vulnerability, provided he had (as here) taken account of personal circumstances including health implications.

The appeal was therefore dismissed. The decision confirms that whilst the public sector equality duty requires substantive and rigorous consideration of equality impacts, inspectors properly discharge that duty when they correctly identify the issues, demonstrate awareness of protected characteristics and their implications, and explain their balancing of competing factors. The weight given to those factors remains a matter of planning judgement, not for the court.

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