Mr Edward Connors and Others (Claimants/Appellants) v The Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 11 July 2014 |
| Neutral Citation | [2014] EWHC 2358 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 July 2014 |
| Docket Number | Case No: (1) CO/17384/2013; (3) CO/1481/2014; CO1483/2014 (4) CO/402/2014 (5) CO/1445/2014; CO/1215/2014 |
[2014] EWHC 2358 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lewis
Case No: (1) CO/17384/2013;
(2) CO/17386/2013;
(3) CO/1481/2014; CO1483/2014
(4) CO/402/2014
(5) CO/1445/2014; CO/1215/2014
Mr Masters (instructed by Lester Morrill inc Davies Gore Lomax LLP) for the 1 st– 4 th Claimants
Mr Willers QC and Maria Moodie (instructed by South West Law) for the 5 th Claimant
Mr Stephen Whale (instructed by Treasury Solicitor) for the 1 st Defendant
The 2 nd–5 th Defendants did not appear and were not represented
Hearing dates: 10 th, 11 th, 12 th June 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
These are applications made by five Claimants pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash decisions of the Secretary of State for Communities and Local Government dismissing an appeal against a refusal of planning permission. Two of the Claimants, Mrs Doran and Mrs Lee, also apply for permission to appeal under section 289 of the 1990 Act against a decision of the Secretary of State dismissing an appeal against an enforcement notice.
In brief, three of the Claimants are Irish Travellers. They are Mr Edward Connors, Mr Miley Connors (who is not related to Mr Edward Connors) and Mrs Doran. Two of the Claimants are Romany Gypsies. They are Mr Sines and Mrs Lee. They all sought planning permission to make a material change in the use of land to enable them to station caravans or mobile homes on various sites. The sites were all in the Green Belt. The Secretary of State decided to dismiss all of the appeals.
Four of the Claimants, those represented by Mr Masters, seek to challenge a policy adopted by the Secretary of State that he would consider directing that all appeals involving Traveller sites in the Green Belt be decided by him rather than by an inspector appointed on his behalf. Mr Masters submits that that policy is unlawful in that it involves discrimination contrary to Article 14 of European Convention on Human Rights ("the ECHR") or a breach of the public sector equality duty set out in section 149 of the Equality Act 2010. All five Claimants contend that the individual decisions taken by the Defendant to dismiss their individual appeals were unlawful.
The judgment is lengthy. First, this is in part because the judgment involves five different claims. The facts in relation to each Claimant, and his or her family, are different. It is necessary to set out the facts of the individual cases in order to determine whether or not each individual Claimant has been treated lawfully. Secondly, the length of the judgment reflects in part the very large number of points taken by the Claimants in their claim forms, skeleton arguments and oral submissions. Even then, this judgment focuses on the principal claims advanced to determine whether the decisions are lawful or not. The judgment does not seek to deal with each and every point raised although all the matters raised by the Claimants have been carefully considered.
THE LEGAL FRAMEWORK
Planning Permissions and Enforcement Notices
Planning permission is required for development including the carrying on of building or other works or, as here, the making of a material change of use of land: see sections 55 and 57 of the 1990 Act. A local planning authority may grant planning permission, either unconditionally or subject to such conditions as they think fit or refuse permission: see section 71 of the 1990 Act. Planning applications must be determined in accordance with the development plan unless material considerations indicate otherwise: see section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act").
In addition, a local planning authority may serve an enforcement notice where it appears to them that there has been a breach of planning control, for example the carrying on of building works or the making of a material change of use of land without permission: see section 172 of the 1990 Act. The enforcement notice may, amongst other things, require the person concerned to cease an unauthorised use or take steps to remedy any breach of planning control.
Appeals to the Secretary of State
An applicant who is refused planning permission may appeal to the Secretary of State for Communities and Local Government under section 78 of the 1990 Act. In addition, an individual may also appeal against that enforcement notice to the Secretary of State under section 174 of the 1990 Act. One of the grounds of appeal is that planning permission should be granted for the material change of use. Another is that any period for complying with the enforcement notice falls short of what should reasonably be allowed.
The Secretary of State may, by regulation, prescribe classes of appeals which are to be determined by an appointed person, that is an inspector, rather than by the Secretary of State: see paragraph 1 of Schedule 6 to the 1990 Act. Paragraph 3(1) of that Schedule provides, however, that:
"3(1) The Secretary of State may, if he thinks fit, direct that an appeal which would otherwise fall to be decided by an appointed person be determined instead by the Secretary of State"
Where the Secretary of State gives a direction in relation to a particular appeal, the inspector will hold an inquiry, hear evidence and make a report and recommendations to the Secretary of State but the Secretary of State will decide whether or not the appeal will be allowed.
Further Challenges in the High Court
There are further avenues of challenge to the High Court. Section 288(1) of the 1990 Act provides that:
(1) If any person—
(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds—
(i) that the order is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that order; or
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds—
(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section.
Section 288(4) of the 1990 Act provides that:
"(4) This section applies to any such order as in mentioned in subsection (2) of section 284 and to any such action on the part of the Secretary of State as is mentioned in subsection (3) of that section."
Those orders and actions include, amongst other things, a decision of the Secretary of State dismissing an appeal under section 78: see section 284(3)(b) of the 1990 Act. The powers of the High Court are set out in subsection 288(5) of the 1990 Act which provides that:
"(5) On any application under this section the High Court—
(a) may, subject to subsection (6), by interim order suspend the operation of the order or action, the validity of which is questioned by the application, until the final determination of the proceedings;
(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action."
There is also the possibility of appealing against a decision given in enforcement proceedings. Section 289(1) of the 1990 Act provides that:
"(1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against a decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court."
Permission is required to appeal: see section 289(6) of the 1990 Act.
THE FACTUAL BACKGROUND
The Policy Framework
The claims relate to sites in four different local authority areas. Each of the local planning authorities have development plans for their area. In addition, there is relevant guidance contained in the National Planning Policy Framework ("the Framework") and the Planning Policy for Traveller Sites ("the Traveller Sites Policy"), both of which are material considerations in the determination of planning applications and appeals.
The Framework
Section 9 of the Framework deals with protecting Green Belt Land. Paragraphs 79 and 80 provide as follows:
"79. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.
"80. Green Belt serves five purposes:
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