Toner, Re Judicial Review

Factual and Procedural Background

The case concerns a dispute over the design and construction of a public realm scheme ("PRS") in a city centre, specifically regarding the height of kerbs installed as part of the scheme. The design included 30mm kerbs, which were approved by the Planning Service and Road Service. Consultation was conducted in 2012, during which the kerb height was disclosed and no formal objections were raised. Construction began, and only after significant work had been completed did concerns arise about the suitability of the 30mm kerbs, particularly from representatives of blind and partially sighted persons relying on research from University College London (UCL) indicating that 30mm kerbs may not be reliably detectable by such persons.

The matter was considered by the Environmental Development Committee ("EDC") in June 2014 and again in October 2014, with the Council ultimately ratifying the decision to maintain the 30mm kerb height and reject further consultation or redesign. The applicant challenged these decisions by way of judicial review in April 2015, after prior correspondence and a pre-action protocol letter to the Council. Leave to apply for judicial review was granted in May 2015.

Legal Issues Presented

1. Whether the consultation process regarding the 30mm kerb height was flawed or inadequate.
2. Whether the decisions of the EDC and Council complied with procedural fairness.
3. Whether the Acting Chief Executive demonstrated actual or apparent bias affecting the decisions.
4. Whether the Committee fettered its discretion by refusing to consider increasing the kerb height or re-consulting.
5. Whether the Council breached its public sector equality duty under section 75 of the Northern Ireland Act 1998 by failing to carry out an Equality Impact Assessment.
6. Whether the decisions breached the applicant’s human rights under Articles 8, 11, and 14 of the European Convention on Human Rights.
7. Whether the decisions breached provisions of the Disability Discrimination Act 1995.
8. Whether the decisions were Wednesbury unreasonable or took into account irrelevant considerations.
9. Whether the Council failed to provide adequate reasons for its decisions.

Arguments of the Parties

Appellant's Arguments

• The consultation was flawed because the 30mm kerb height was not adequately disclosed or explained at the formative stage.
• The decision-making process lacked procedural fairness, including inadequate opportunity for input from blind persons and unfair presentation of evidence.
• The Acting Chief Executive’s statements at a meeting evidenced bias, which should invalidate the decisions.
• The Committee fettered its discretion by refusing to consider alternative kerb heights or further consultation.
• The Council breached its statutory public sector equality duty by failing to conduct a proper Equality Impact Assessment.
• The decisions infringe the applicant’s human rights, particularly under Articles 8 (private and family life), 11 (freedom of assembly), and 14 (non-discrimination) of the ECHR.
• The Council’s actions breached provisions of the Disability Discrimination Act 1995 by failing to make reasonable adjustments.
• The decisions were unreasonable and lacked adequate reasoning.

Respondent's Arguments

• The consultation was adequate and the kerb height was disclosed with no opposition at the time.
• The decision-making process was fair, with appropriate presentations and opportunities for input.
• The Acting Chief Executive’s remarks did not amount to bias affecting the decision makers (the elected councillors).
• The Committee and Council properly exercised their discretion considering costs, delay, and competing interests.
• The Council complied with its public sector equality duty to the extent required and any enforcement of section 75 is primarily via the Equality Commission rather than judicial review.
• The human rights claims lack merit as the kerb height does not engage or breach the relevant rights.
• The Disability Discrimination Act claims are factually and legally complex and not suited to resolution by judicial review.
• The decisions were rational, proportionate, and supported by reasons documented in committee minutes and correspondence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed factual and legal analysis of the issues raised. It found that the consultation process had adequately disclosed the 30mm kerb height, and no opposition was raised during that time. Subsequent objections arose only after construction had begun, limiting grounds for judicial intervention on consultation.

Regarding procedural fairness, the court held that the decision-making process by the EDC and Council was fair when considered in context. The meetings allowed presentations from interested parties, including representatives of blind and partially sighted persons. While some procedural complaints were made, including the late use of an email by a Council official without prior notice, these did not amount to unfairness sufficient to invalidate the decisions.

The alleged bias of the Acting Chief Executive was dismissed as the comments were factual predictions rather than evidence of closed mind, and the decision makers were the elected councillors, who showed no sign of bias.

On the public sector equality duty under section 75, the court found a clear failure by the Council to comply. The Council had not properly considered the duty throughout the project and did not conduct a proper Equality Impact Assessment despite the relevance of the issue to disabled persons, especially the blind and partially sighted. The failure was longstanding and compounded by lack of documented consideration at the key decision points in 2014. The court emphasized that the duty is non-delegable and requires rigour and openness. Although the Council had received the UCL research, it did not use it properly to inform its decisions. The court accepted that judicial review is not generally the primary enforcement mechanism for section 75 but concluded that the exceptional circumstances of this case justified judicial review.

The allegations of fettering discretion by the Committee and refusal to consider re-consultation were rejected due to lack of evidence that the councillors had a closed mind or failed to exercise discretion.

Human rights claims under Articles 8, 11, and 14 were analyzed carefully. The court held that Article 8 was not engaged as the kerb height did not substantially affect private or family life. Even if engaged, any interference was proportionate and justified by the legitimate aims of the PRS. Article 11 was similarly not engaged or breached. Article 14 claims failed as the kerb height did not amount to unlawful discrimination; the impact was not disproportionate and the Council had legitimate reasons for its decisions.

The Disability Discrimination Act claims were found unsuitable for resolution by judicial review due to factual complexity, need for detailed evidence, and the civil trial nature of such claims. The court noted that judicial review is not the appropriate forum for determining these issues.

The court found no basis to hold the decisions unreasonable under Wednesbury principles or for lack of reasons, noting that minutes and correspondence provided sufficient insight into the decision-making.

Finally, the court considered other issues such as alleged misdirection and failure to consider relevant evidence, concluding that these did not undermine the lawfulness of the decisions.

Holding and Implications

The court QUASHED the decisions of the Environmental Development Committee dated 22 October 2014 and the Council’s ratification on 28 October 2014 due to the Council’s failure to comply with its public sector equality duty under section 75 of the Northern Ireland Act 1998.

This remedy opens the way for the Council to reconsider the matter with full compliance with its equality obligations. The court emphasized that the duty remains continuing and must be conscientiously performed in any reconsideration. The Council’s reconsideration should take into account developments since the decisions, including updated guidance from Transport NI and relevant evidence on urban landscape adjustments.

No other grounds of challenge succeeded, and no new legal precedent was established beyond the application of existing principles to the facts. The direct effect is to require the Council to reassess its decisions with proper regard to equality considerations, potentially influencing the kerb height or related design features in the PRS.