Charmaine Moore and Sarah Coates v Secretary of State for Communities and Local Government London Borough of Bromley and Dartford Borough Council (Interested Parties) Equality and Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gilbart |
| Judgment Date | 21 January 2015 |
| Neutral Citation | [2015] EWHC 44 (Admin) |
| Docket Number | Cases No: CO/2812/2014 and CO/2914/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 January 2015 |
and
and
[2015] EWHC 44 (Admin)
Mr Justice Gilbart
Cases No: CO/2812/2014 and CO/2914/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Timothy Jones (instructed by Community Law Partnership Ltd, Birmingham) for the Claimant Charmaine Moore
Stephen Cottle (instructed by Community Law Partnership Ltd, Birmingham) for the Claimant Sarah Coates
Christopher Buttler (instructed by Rosemary Lloyd, Equality and Human Rights Commission) for the Intervener
Rupert Warren QC and David Blundell (instructed by Treasury Solicitor) for the Defendant Secretary of State
The interested parties were not represented and did not appear
| Topic | Paragraphs |
| 1. Introduction | 1–4 |
| 2. Determination of planning appeals — the legal and policy framework | 5–12 |
| 3. Short history of WMS setting out recovery criteria | 13–16 |
| i) WMS 30 th June 2008 | |
| ii) WMS 1 1 st July 2013 | |
| iii) WMS 2 17 th January 2014 | |
| 4. Substantive Policies i) NPPF | 17–30 |
| ii) PTTS | |
| iii) Green Belt policy | |
| iv) Methods of giving policy guidance | |
| 5. SSCLG's approaches to recovery of appeals in 2013–4, including publication of WMS 1 and WMS 2 | 31–42 |
| 6. The Claimants and their planning appeals | 43–57 |
| 7. Position of Romany Gypsies and Irish Travellers, and effects of the changes in recovery practice | 58–78 |
| 8. Overview of the cases for the Claimants, the EHRC and the Defendant SSCLG | 79–84 |
| 85 | |
| i) Role of EHRC | 86 |
| ii) Direct and indirect discrimination | 87–88 |
| iii) Interpretation of section 19 (1) and (2)(a) and (b) | 89–98 |
| iv) Arguments relating to claim of indirect discrimination under section 19 | 99–105 |
| v) Arguments relating to Public Sector Equality Duty in section 149 | 106–115 |
| vi) Court's discussion and conclusions on section 19 arguments | 116–129 |
| vii) Court's discussion and conclusions on section 149 arguments | 130–138 |
| 10. Articles 6 and 8 of ECHR: arguments, discussion and conclusions | 139–151 |
| 11. Allegations of bias: arguments discussions and conclusions | 152–154 |
| 12. Allegations of abuse of power and irrationality | 155–158 |
| 13. Allegations that Defendant SSCLG acted in accordance with an undeclared policy, and contrary to his declared policy: | |
| i) arguments | 159–160 |
| ii) discussion and conclusions | 161–170 |
| 14. Conclusions on the merits | 171–174 |
| 15. Delay | 175 |
| 16. Orders and the exercise of the Court's discretion | 176–187 |
1 Introduction
In this case the Court is required to consider the approach of the Defendant Secretary of State for Communities and Local Government ("SSCLG") to the consideration and determination of planning appeals which relate to the provision of pitches for use by travellers within the Green Belt. Such pitches are used to station caravans in which travellers live.
In broad terms, the SSCLG has taken steps to recover planning appeals for determination by himself where they relate to proposals for pitches, whether occupied by one or more caravans, within the Green Belt. Although at first he did not seek to recover all such appeals, he was doing so from the latter part of 2013, and did so until September 2014, when he reduced the percentage recovered to 75%. That has had the effect of causing considerable delay in the hearing and determination of those appeals, and because the great majority of such appeals relate to pitches used by particular ethnic communities (Romany gypsies and Irish Travellers), the effect of the practice (to use a neutral term) has led to this challenge. For it is contended by the Claimants and by the Intervener Equality and Human Rights Commission ("EHRC") that he has acted in breach of the provisions of the Equality Act 2010 (" EA 2010"), in a way which has led to unlawful indirect discrimination contrary to s 19 of the Act, and to a breach of the Public Sector Equality Duty ("PSED") imposed on him by s 149 of the Act. The EHRC also contend that the Defendant has acted contrary to his declared policy on the recovery of jurisdiction of appeals without giving reasons for doing so, or has adopted a policy which is undisclosed and conflicts with his declared policy. The Claimants also contend that he has acted in breach of Articles 6 and 8 of the European Convention of Human Rights ("ECHR"), and has acted in abuse of power, irrationally and has shown bias towards the claimants on the basis that they are travellers.
The Defendant SSCLG denies that he has acted in breach of either s 19 or s 149 of the EA 2010, and denies that the other claims are established. His contention is that he was entitled to recover the appeals in the way and to the extent that he did, as an exercise of his powers and discretion as Secretary of State.
Understanding the background to the claim requires some understanding of the system of appeals within the town and country planning system of England and Wales, as well as some understanding of the policies of the SSCLG as they affect the Green Belt, and the provision of pitches for travellers. I shall therefore start this judgment by a short description of the appeal system, followed by an analysis of relevant planning policies, before turning to the recovery of appeals for determination by him, which is the main area of dispute.
2 Determination of planning appeals — the legal and policy framework
In broad terms, building operations, or material changes of use involve acts of development under s 55 of the Town and Country Planning Act 1990 (as amended) " TCPA 1990", which then (s 57) require planning permission from the local planning authority, unless planning permission is granted by a development order (s 59). An applicant for permission who is refused planning permission, or whose application is undetermined within the prescribed period may appeal against the actual or (in the latter case) deemed refusal — see s78 (1) and (2) TCPA 1990. The appeal is to the SSCLG (s 78). His powers on appeal appear in s 79:
(1) On an appeal under section 78 the Secretary of State may—
(a) allow or dismiss the appeal, or
(b) reverse or vary any part of the decision of the local planning authority (whether the appeal relates to that part of it or not),
and may deal with the application as if it had been made to him in the first instance.
(2) Before determining an appeal under section 78 the Secretary of State shall, if either the appellant or the local planning authority so wish, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.
(3)-(6)………………………………………………………
(7) Schedule 6 applies to appeals under section 78, including appeals under that section as applied by or under any other provision of this Act.
By Schedule 6 paragraph 1 of the Act, the SSCLG may:
"by regulations prescribe classes of appeals under sections 78 …………which are to be determined by a person appointed by the Secretary of State for the purpose instead of by the Secretary of State.
(2) Those classes of appeals shall be so determined except in such classes of case—
(a) as may for the time being be prescribed, or
(b) as may be specified in directions given by the Secretary of State."
Such persons are of course the Inspectors employed by the Planning Inspectorate. Paragraph 2 provides that a decision by an Inspector has the same authority in law as one of the SSCLG:
2(1) An appointed person shall have the same powers and duties—
(a) in relation to an appeal under section 78, as the Secretary of State has under subsections (1), (4) and (6A) of section 79;
(aa)-(e)……………………………
(2) Sections 79(2)………………..shall not apply to an appeal which falls to be determined by an appointed person, but before it is determined the Secretary of State shall ask the appellant and the local planning authority whether they wish to appear before and be heard by the appointed person.
(3) If both the parties express a wish not to appear and be heard the appeal may be determined without their being heard.
(4) If either of the parties expresses a wish to appear and be heard, the appointed person shall give them both an opportunity of doing so.
(5) ………………
(6) Where an appeal has been determined by an appointed person, his decision shall be treated as that of the Secretary of State.
(7) Except as provided by Part XII, the validity of that decision shall not be questioned in any proceedings whatsoever.
(8) It shall not be a ground of application to the High Court under section 288, or of appeal to the High Court under section…, that an appeal ought to have been determined by the Secretary of State and not by an appointed person, unless the appellant or the local planning authority challenge the appointed person's power to determine the appeal before his decision on the appeal is given.
(9) Where in any enactment (including this Act) there is a reference to the Secretary of State in a context relating or capable of relating to an appeal to which this Schedule applies or to anything done or authorised or required to be done by, to or before the Secretary of State on or in connection with any such appeal, then so far as the context permits it shall be construed, in relation to an appeal determined or falling to be determined by an appointed person, as a...
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