Urban Update 21 August 2015

Download Urban Update 21 August 2015


On the importance of making reasonable and rational decisions

The news a fortnight ago that an English minister for planning had had his policy on affordable housing declared unlawful is a reminder to anyone involved in the built environment of the importance of making considered and balanced decisions. The minister's policy, the court held,

  • breached the Public Sector Equality Duty under the Equality Act 2010
  • failed to take into account material considerations
  • failed to take the product of the public consultation on the policy conscientiously into account, and
  • was irrational.

Full judgement: 

Other examples  have included Newham Council which had its streetscene guidance declared unlawful (Ali vs Newham 2012) for a failure to discharge its duties under the Equality Act.  The case provides a precedent for the meaning of “Due Regard”   - “The test whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking, and the duty must be performed with "vigour and an open mind” ; an "essential preliminary" to any important policy decision, not a "rear-guard action following a concluded decision; if a risk of adverse impact is identified, consideration should be given to measures to avoid that impact before fixing on a particular solution”.

Full Judgement

And there is of course the old favourite test for reasonableness, the “Wednesbury Unreasonableness” test, that asks whether an authority has:

  • taken into account factors that ought not to have been taken into account, or
  • failed to take into account factors that ought to have been taken into account, or
  • made a decision so unreasonable that no reasonable authority would ever consider imposing it.

Further information on evidence based design and balanced decision making is available in the UK Guide on Highway Risk and Liability Claims 2009 – free to download: