Lisa Smith v Secretary of State for Levelling Up, Housing & Communities
| Jurisdiction | England & Wales |
| Judge | Sir Keith Lindblom,Lord Justice Holroyde,Lord Justice Coulson |
| Judgment Date | 31 October 2022 |
| Neutral Citation | [2022] EWCA Civ 1391 |
| Docket Number | Case No: CA-2021-001741 |
| Court | Court of Appeal (Civil Division) |
| Year | 2022 |
and
and
[2022] EWCA Civ 1391
Sir Keith Lindblom
(SENIOR PRESIDENT OF TRIBUNALS)
Lord Justice Holroyde
and
Lord Justice Coulson
Case No: CA-2021-001741
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Mr Justice Pepperall
Royal Courts of Justice
Strand, London, WC2A 2LL
Marc Willers KC and Tessa Buchanan (instructed by Deighton Pierce Glynn) for the Appellant
Timothy Mould KC (instructed by Treasury Solicitor) for the First Respondent
David Wolfe KC, Owen Greenhall and Tim Jones (instructed by Community Law Partnership) for the Interveners (Written Submissions Only)
Hearing Dates: 29 and 30 June 2022
Approved Judgment
This judgment was handed down remotely at not before 3.45pm on 31 October 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives
Sir Keith Lindblom (SENIOR PRESIDENT OF TRIBUNALS), Lord Justice Holroyde AND
INTRODUCTION
This is the judgment of the court, to which we have all contributed.
The appellant, Lisa Smith, appeals against the order of Pepperall J dated 28 June 2021, by which he refused her application for an order to quash the decision of the inspector appointed by the first respondent, the Secretary of State, dated 23 November 2018, dismissing her appeal against a decision by the second respondent, North West Leicestershire District Council (“the local planning authority”), to refuse an application for planning permission for a permanent site for Gypsies and Travellers at Coalville in Leicestershire. The principal issue concerns the August 2015 amendment by the Secretary of State of the definition of “Gypsies and Travellers”, set out in the policy document “Planning Policy for Traveller Sites” (“PPTS 2015”). Prior to that date, the definition expressly included those who had permanently ceased travelling as a result of, inter alia, disability or old age. The amendment excluded that group of Gypsies and Travellers from the definition (“the relevant exclusion”).
It was accepted on behalf of the Secretary of State, both before this court and below, that the relevant exclusion indirectly discriminated against elderly and disabled Gypsies and Travellers. In his judgment at [2021] EWHC 1650 (Admin), the judge concluded that the discrimination was not unlawful because he found that it was justified. He therefore rejected the challenge brought by Ms Smith against the inspector's decision, under s.288 of the Town and Country Planning Act 1990 (“the 1990 Act”).
The appellant appeals with permission granted by William Davis LJ. There are four grounds of appeal:
(1) Ground 1: The judge applied the wrong test and/or reversed the burden of proof;
(2) Ground 2: The judge erred in concluding that there was no race discrimination claim;
(3) Ground 3: The judge erred in his reasoning and conclusions as to the legitimate aim or objective of the relevant exclusion;
(4) Ground 4: The judge erred in his reasoning and conclusions to the effect that the relevant exclusion was proportionate.
The issues arising from these four grounds fall to be decided in accordance with legal principles already well established at the highest level. It will be noted that grounds 3 and 4 are closely linked because they consider the two elements of justification – legitimate aim and proportionality.
We set out a brief factual background in section 2 below. We address the salient features of the judge's judgment in section 3. We set out the applicable law and legal framework in section 4. Thereafter, in sections 5, 6 and 7, we deal with the four grounds of appeal, taking grounds 3 and 4 together. We consider the questions of remedy and disposal in section 8. We should at the outset of our judgment pay tribute to the clarity of the written and oral submissions of Mr Marc Willers KC for Ms Smith and Mr Tim Mould KC for the Secretary of State.
Mr Mould expressly accepted that Ms Smith was entitled in these proceedings to challenge the legitimacy of the relevant exclusion specifically in its application to her appeal against the local planning authority's refusal of planning permission. We are, however, conscious that there is an element of discordance between that challenge on the one hand and the necessarily limited nature of the application made by Ms Smith under s.288 of the 1990 Act on the other. We must emphasise at the outset that the only relief Ms Smith can seek in these proceedings is the quashing of the inspector's decision in her own particular case. She has not sought, and could not seek, any declarations from the court as to the legitimacy or otherwise of the relevant exclusion. We are also conscious of the time that has elapsed between the publication of PPTS 2015 and these proceedings, including this appeal. We have borne these matters in mind throughout our consideration of the issues raised by this appeal.
THE FACTUAL BACKGROUND
Ms Smith rents a site at Coalville from Mr Willshore, who is an interested party in the proceedings below. She has lived there with her family in their caravans since 2011. Currently the site is occupied by Ms Smith, her husband, their children and grandchildren. Two of Ms Smith's adult sons, Isaac and Tony, are severely disabled and cannot travel for work.
In April 2013, planning permission was granted for a period of four years for the siting of up to six touring caravans on the land. It was a requirement that the site could not be occupied by any persons other than Gypsies and Travellers as defined in the then current planning policy. That permission was subsequently varied on 31 March 2015. At all material times prior to PPTS 2015, Ms Smith and her family were within the planning policy definition of “Gypsies and Travellers”.
On 8 March 2016, Mr Willshore applied to the local planning authority to vary the permission to allow the permanent residential use of the site as a Gypsy site and to permit the construction of a large dayroom. Although the officers supported that application, on 22 December 2016 the local planning authority refused it. Mr Willshore appealed. In her decision letter of 23 November 2018, the inspector dismissed the appeal. By then, the existing temporary planning permission in respect of the site had expired.
The inspector first considered the relevant development plan policy and the character and appearance of the site. She said:
“18. I acknowledge that the PPTS does not rule out Traveller sites in rural settings although it requires that the scale of such sites does not dominate the nearest settled community. Given the size and scale of the neighbouring villages there is no suggestion that the development dominates those communities in visual terms or places an undue pressure on the local infrastructure.
19. However, whilst the PPTS is a material consideration, the proposal would neither safeguard nor enhance the character or appearance of the area and would undermine the physical and perceived separation and open undeveloped character between the two settlements. As such the proposal is contrary to Policies S3 and H7 of the Local Plan as set out above.”
In paragraphs 20 to 23 of the decision letter, the inspector considered accessibility and concluded that while the proposal was not consistent with Policy H7, “any harm that would arise as a result of this would be limited”. In paragraphs 24 to 32, she considered the need for and provision of Gypsy and Traveller sites in the district. She said that she shared Ms Smith's concern that the local plan underestimated the true need for additional pitches for Gypsies and Travellers (paragraph 29). She was also concerned that the local plan policies were outdated (paragraphs 31 and 32). She reiterated in paragraph 32 that the proposal did not meet policy requirements as to compatibility with landscape, environment and the physical and visual character of the area.
The inspector then turned to what she called “the Gypsy Status of the Current Occupiers” (paragraphs 33 to 39 of the decision letter). She began this section of her decision letter by stating the terms of the definition in PPTS 2015 and noting the local planning authority's assessment that Ms Smith and her family did not fall within that definition. She found that any travelling had to have an economic purpose (paragraph 33). She noted the “considerable economic, social and emotional inter-dependence between family members given the significant health and social needs” of the disabled adult sons and the three grandchildren (paragraph 37). But she said that she was unable to conclude that the Smith family had Traveller status for planning purposes (paragraph 39).
In paragraphs 40 to 43 of the decision letter, she considered the personal circumstances of the Smith family, and the possibility of alternative accommodation. She said:
“42. I acknowledge the difficulties the family faces in caring for both adult children with severe disabilities and young children. Their desire to stay together to support one another is understandable. The Council can demonstrate a five year supply of housing land, which is not disputed by the appellant. However, I acknowledge the family's cultural aversion to bricks and mortar accommodation and the difficulties of finding appropriate accommodation to meet the complex needs of all of the family members.
43. The GTAA identifies a need for 6 pitches for gypsy and travellers who do...
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