Mulvenna and Smith v Secretary of State for Communities and Local Government Equality and Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 04 December 2015 |
| Neutral Citation | [2015] EWHC 3494 (Admin) |
| Docket Number | Case Numbers: CO/1061/2015 CO/3939/2014, CO/1705/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 December 2015 |
[2015] EWHC 3494 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Cranston
Case Numbers: CO/1061/2015 CO/3939/2014, CO/1705/2015
and
Marc Willers QC and Tessa Buchanan (instructed by Lester Morrill Solicitors) for the Claimants
Paul Brown QC and Stephen Whale (instructed by the Government Legal Department) for the Defendant
Chris Buttler (instructed by Rosemary Lloyd) for the Intervener
Hearing Date: 20/ 10/ 2015
Introduction
These cases raise, as a central issue, a matter which extends well beyond the realm of planning law: what are the consequences for a decision which has been made on the back of an unlawful decision? In the case of these claimants from the Traveller and Gypsy community, the Secretary of State for Communities and Local Government ("the Secretary of State") made directions to recover (or call in) their planning appeals so that he could determine them himself. Their local planning authorities had refused to grant them planning permission to live on green belt land. The Secretary of State then made determinations in the case of both claimants, Ms Bernadette Mulvenna and Mr Elias Smith, dismissing their appeals.
However, the Secretary of State's recovery decisions are accepted as being unlawful in light of a decision of this court, Moore and Coates v. Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin) (" Moore and Coates"), which held that comparable recovery directions were discriminatory and also in breach of the public sector equality duty in the Equality Act 2010. Both Ms Mulvenna and Mr Smith contend that given that the Secretary of State's recovery decisions were unlawful, he had no jurisdiction to issue the planning appeal decisions in either case and they should be treated as nullities. The Equality and Human Rights Commission ("the EHRC") supports this argument.
Ms Mulvenna and Mr Smith also seek to quash the recovery directions themselves against the background of the decision in Moore and Coates. Their applications for permission to apply for judicial review in this regard are well out of time but they seek to extend time and also argue that a time bar would be in breach of the EU doctrine of effectiveness, which is said to confer on them an effective remedy for the right recognised in EU law not to be discriminated against. Moreover, they challenge the refusal of the Secretary of State to review and revoke his decisions on the appeals in light of Moore and Coates. Mr Smith has a separate claim to be considered brought under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") that the Secretary of State's decision to dismiss his appeal is, for various reasons, flawed.
The recovery decisions and Moore and Coates
On 30 June 2008 the Secretary of State set out his policy for the recovery of planning appeals so he could determine them himself in the form of a Written Ministerial Statement to the House of Commons. Under it the Secretary of State would consider the recovery of a number of types of appeal. These included proposals for significant development in the green belt. The policy added that there might on occasion be other cases which merited recovery because of the particular circumstances.
There was a further Written Ministerial Statement regarding the policy for recovering planning appeals on 1 July 2013 ("WMS1"). It stated:
"Protecting the green belt
The Secretary of State wishes to make clear that… he considers that the single issue of unmet demand, whether for traveller sites or for conventional housing, is unlikely to outweigh harm to the green belt and other harm to constitute the 'very special circumstances' justifying inappropriate development in the green belt.
The Secretary of State wishes to give particular scrutiny to traveller site appeals in the green belt, so that he can consider the extent to which Planning policy for traveller sites is meeting this government's clear policy intentions. To this end he is hereby revising the appeals recovery criteria issued on 30 June 2008 and will consider for recovery appeals involving traveller sites in the green belt.
For the avoidance of doubt, this does not mean that all such appeals will be recovered, but that the Secretary of State will likely recover a number of appeals in order to test the relevant policies at national level. The Secretary of State will apply this criteria for a period of 6 months, after which it will be reviewed."
WMS1 was published against the background of the National Planning Policy Framework ("NPPF") of March 2012, which sets out the government's planning policies for England and how these are expected to be applied. Green belt policy is contained in particular at paragraphs [87]–[88] of the NPPF:
"[87] As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
[88] When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
"Inappropriate development" includes the construction of new buildings: [89].
The "Planning Policy for Traveller Sites" ("PPTS") was also published in March 2012, and sets out the government's planning policy for Traveller sites. Policy E, Traveller sites in green belt, states that inappropriate development is, by definition, harmful to the green belt and should not be approved except in very special circumstances. "Traveller sites (temporary or permanent) in the green belt are inappropriate development": [14] Policy H of PPTS, Determining applications for Traveller sites, states:
"[24] Local planning authorities should consider the following issues amongst other relevant matters when considering planning applications for traveller sites:
a) the existing level of local provision and need for sites
b) the availability (or lack) of alternative accommodation for the applicants
c) other personal circumstances of the applicant
d) that the locally specific criteria used to guide the allocation of sites in plans or which form the policy where there is no identified need for pitches/plots should be used to assess applications that may come forward on unallocated sites
e) that they should determine applications for sites from any travellers and not just those with local connections."
The policy framework governing the grant of planning permission for Traveller sites in the green belt is dealt with at greater length by Lewis J in Connors v. Secretary of State for Communities and Local Government [2014] EWHC 2358 (Admin), [15]–[24].
In January 2014 there was a further Written Ministerial Statement of the Secretary of State's policy on recovering planning appeals ("WMS2"). In part it said:
"That statement [of July 2013] revised the appeals recovery criteria by stating that, for a period of 6 months, the Secretary of State would consider for recovery appeals involving traveller sites in the green belt, after which the position would be reviewed… [H]e intends to continue to consider for recovery appeals involving traveller sites in the green belt."
In Moore and Coates, the claimants were Romany Gypsies. Their claims challenged by way of judicial review in June 2014 the decisions of the Secretary of State to recover their planning appeals. His decisions to do this were on the basis that they were appeals involving Traveller sites in the green belt. As at the date of the judgment in January 2015 the Secretary of State had not made decisions on the appeals themselves.
Richard Watson, head of planning casework in the Department of Communities and Local Government, prepared a witness statement for the purposes of the litigation dated 9 September 2014. His evidence was that from September 2013, the Secretary of State had recovered all appeals for Traveller sites in the green belt, despite the stated policy in the Written Ministerial Statement of 1 July 2013 that not all such appeals would be recovered. After the judicial review in Moore and Coates had been launched, the planning inspectorate was instructed not to recover 100 per cent of appeals, but instead to recover 75 per cent. The evidence was that the policy of considering all appeals for recovery, including those for single pitches, had not been applied in the case of other kinds of residential development in the green belt.
Against that factual background, Gilbart J in Moore and Coates held that the recoveries constituted indirect discrimination under section 19 of the Equality Act 2010 and a breach of the public sector equality duty in section 149 of that Act. He said:
"179. I think it important to identify what was unlawful. I have determined that what was unlawful was the practice of recovering all appeals, and the unreasonable delay caused to Mrs Moore's and Ms Coates' appeals. I have not determined that WMS 1 as drafted and published was unlawful, but I have found that its application was. In the case of WMS 2, its terms do not reflect the reasons for its being made nor its application.
180. What was unlawful was the application of the policies in WMS 1 and WMS 2 in such a way as to recover all traveller's pitch appeals, which, due to the way the practice was approached, amounts to a breach of sections 19 and 149 of the 2010 Act. I have also found that the practice of recovering all appeals, or an...
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