Edward Connors and Others v Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Treacy,Lord Justice McFarlane |
| Judgment Date | 17 November 2017 |
| Neutral Citation | [2017] EWCA Civ 1850 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2014/2651 and C1/2016/0374 |
| Date | 17 November 2017 |
[2017] EWCA Civ 1850
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE LEWIS
MR JUSTICE CRANSTON
Royal Courts of Justice Strand, London, WC2A 2LL
Lord Justice McFarlane
Lord Justice Treacy
and
Lord Justice Lindblom
Case No: C1/2014/2651 and C1/2016/0374
and
Mr Alan Masters (instructed by Minton Morrill Solicitors) for the Appellants
Mr Rupert Warren Q.C. and Mr Stephen Whale (instructed by the Government Legal Department) for the First Respondent
The second, third and fourth respondents did not appear and were not represented
Mr Marc Willers Q.C. and Ms Tessa Buchanan (instructed by Minton Morrill Solicitors) for the Appellants
Mr Rupert Warren Q.C. and Mr Stephen Whale (instructed by the Government Legal Department) for the First Respondent
Mr Christopher Buttler (instructed by the Equality and Human Rights Commission) for the Intervener
The second respondent did not appear and was not represented
Hearing dates: 17 and 18 May 2017
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
Each of the appellants in these two appeals is either a Gypsy or a Traveller. The underlying grievance is the same: that a statutory appeal against the decision of a local planning authority to refuse, or for its failure to determine, an application for planning permission for a material change of use of land in the Green Belt to enable a caravan or mobile home to be stationed upon it, or against enforcement action taken by the authority, was unlawfully recovered for his own determination by the Secretary of State for Communities and Local Government under a discriminatory policy or practice for recovery, and that his decision to dismiss the appeal was therefore itself invalid. The judges in the court below upheld the Secretary of State's decisions as lawful. Were they right to do so?
The Secretary of State is the first respondent in both appeals. The appellants in the first appeal are Mr Edward Connors, Mr Miley Connors, Mrs Bridget Doran and Mr Fred Sines. Mr Edward Connors and Mr Miley Connors – who are not related to each other – are both Irish Travellers, as is Mrs Doran. Mr Sines is a Romany Gypsy. They appeal against the order of Lewis J., dated 11 July 2014, dismissing their applications and appeals under sections 288 and 289 of the Town and Country Planning Act 1990. By those proceedings they had challenged decisions of the Secretary of State to dismiss appeals against refusals of planning permission – and also, in Mrs Doran's case and Mr Sines', enforcement notices issued – by three local planning authorities. In the case of Mr Edward Connors and in that of Mr Miley Connors, the local planning authority was Reigate and Banstead Borough Council, the second respondent in the appeal; in the case of Mrs Doran, Tonbridge and Malling Borough Council, the third respondent; and in the case of Mr Sines, the Royal Borough of Windsor and Maidenhead Council, the fourth respondent. The Secretary of State's decision letters are dated, respectively, 30 October 2013, 30 October 2013, 5 March 2014 and 19 December 2013. Another appeal against Lewis J.'s order was made by a fifth claimant in the same proceedings, Mrs Jane Lee. That appeal has already been heard and dismissed by this court ( Lee v Secretary of State for Communities and Local Government [2016] EWCA Civ 558).
The appellants in the second appeal are Ms Bernadette Mulvenna, an Irish Traveller, and Mr Elias Smith, a Romany Gypsy. They appeal against the order of Cranston J., dated 4 December 2015. The judge dismissed Mr Smith's application under section 288 of the 1990 Act, by which he had challenged the decision of the Secretary of State, in a decision letter dated 15 July 2014, dismissing his appeals against a refusal of planning permission by the second respondent, Hyndburn Borough Council. Ms Mulvenna had in the meantime abandoned her own application under section 288 challenging the Secretary of State's decision, in a decision letter dated 5 August 2014, dismissing her appeals against the refusal of planning permission by West Lancashire Borough Council and an enforcement notice. The judge also refused applications for permission to apply for judicial review of the Secretary of State's decisions to recover the appeals, on 4 July 2013 in Ms Mulvenna's case, on 23 January 2014 in Mr Smith's. The Equality and Human Rights Commission, as intervener, supported those applications to the court, and has done so again before us.
A complete account of the facts in each appeal is to be found in the judgments below – in paragraphs 29 to 107 of Lewis J.'s, and in paragraphs 16 to 38 of Cranston J.'s. I gratefully adopt their narrative, none of which is in dispute, and I shall refer only to the salient events.
The issues in the appeals
As I have said, the main issues in the two appeals are, in large part, concerned with a shared grievance – essentially that the Secretary of State's decisions were made outside his powers because, it is said, he recovered the appellants' statutory appeals unlawfully.
In the first appeal the grounds of appeal present us with five issues to decide:
(1) whether, in determining the appeals before him, the Secretary of State acted contrary to the provisions on indirect discrimination in section 19 of the Equality Act 2010, and in breach of the public sector equality duty in section 149 (ground 1);
(2) whether the Secretary of State's decisions breached the appellants' human rights under the European Convention on Human Rights, including, in particular, article 6 and article 8, and whether Lewis J. failed properly to undertake his own human rights assessment (ground 2);
(3) whether the judge failed to have regard to article 14 of the Human Rights Convention (ground 3);
(4) whether the judge failed to recognize the adverse differential treatment of Gypsies and Travellers by comparison with the settled population, which the appellants say was inherent in the Government's "Planning policy for traveller sites" issued in 2012 and its successor policy issued in 2015 (ground 4); and
(5) whether the Secretary of State's decisions are otherwise flawed by public law error – including perversity, a failure to have regard to material considerations, and a failure to provide clear and adequate reasons (grounds 5 and 6).
In the second appeal there are four issues:
(1) whether the judge was wrong to refuse to extend time for the proceedings to be brought before the court (ground 1);
(2) whether the judge was wrong to hold that the Secretary of State, having recovered and determined the appeals, was now "functus officio", and therefore unable to revisit and revoke his decisions (ground 2);
(3) whether, in each case, the Secretary of State's decision is in any event a nullity and of no legal effect, because, in the absence of a lawful recovery direction, he lacked the power to make them (ground 3); and
(4) whether the judge was wrong to refuse Mr Smith's application to amend his application under section 288 of the 1990 Act (grounds 4 and 5).
The statutory scheme for the determination of planning appeals
The statutory regime for the determination by the Secretary of State of appeals against a decision of a local planning authority to refuse planning permission or for its failure to determine such an application is contained in sections 78 and 79, in Part III of the 1990 Act. Section 79(1)(b) provides that, on an appeal under section 78, the Secretary of State "… may deal with the application as if it had been made to him in the first instance"; section 79(2), that "[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"; section 79(5), that the decision of the Secretary of State on the appeal "shall be final"; and section 79(7), that Schedule 6 to the 1990 Act applies to such appeals. The regime for the determination of appeals against enforcement notices is in sections 174, 175, 176 and 177, in Part VII of the 1990 Act. The specific grounds on which such an appeal may be brought are in section 174(2).
Schedule 6 to the 1990 Act, under the heading "Determination of Certain Appeals by Person Appointed by Secretary of State", provides, in paragraph 1, for the determination of appeals by appointed persons:
"1. – (1) The Secretary of State may by regulations prescribe classes of appeals under sections 78, … [and] 174 … of this Act … 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.
… ."
The relevant regulations under paragraph 1(1) are the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997. Regulation 3 provides that appeals under sections 78 and 174 are "prescribed … as appeals to be determined by a...
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