Town and country planning – Caravan site – Planning appeal – Defendant secretary of state recovering appeals relating to travellers’ pitches in green belt – Claimant Romany gypsies applying for judicial review – Whether defendant’s acts amounting to unlawful discrimination – Whether defendant breaching equality duty in public sector – Whether defendant breaching claimants’ right to fair trial and to private and family life – Whether defendant acting in abuse of power, irrationally and showing bias – Whether defendant acting contrary to declared policy – Applications granted.
From the latter part of 2013, the defendant secretary of state had taken steps to recover planning appeals for determination by himself where they related to proposals for pitches, occupied by one or more caravans, within the green belt. In September 2014, he reduced the percentage recovered to 75%. Those steps caused considerable delay in the hearing and determination of those appeals. The majority of appeals related to pitches used by Romany gypsies and Irish travellers and the claimant Romany gypsies issued judicial review proceedings, challenging the defendant’s decisions to recover their appeals.
The court was asked to determine whether the defendant had: (i) acted in a way which had led to unlawful indirect discrimination, contrary to section 19 of the Equality Act 2010; (ii) acted in a way which had led to a breach of the public sector equality duty imposed on him by section 149 of the 2010 Act; (iii) acted in breach of articles 6 and 8 of the European Convention on Human Rights; (iv) acted in abuse of power, irrationally and had shown bias towards the claimants on the basis that they were travellers; and (v) adopted a policy which was undisclosed and conflicted with his declared policy in written ministerial statements of July 2013 (WMS1) and January 2014 (WMS2).
Held: The applications were granted.
(1) The real issue at play was one of proportionality. The defendant had to demonstrate that: (i) the objective was sufficiently important to justify limiting a fundamental right; (ii) the measure was rationally connected to the objective; and (iii) the means chosen were no more than were necessary to accomplish the objective. Proportionality in the context of section 19 of the 2010 Act had to be measured in the specific context of the objectives set out in section 149 and the clear guidance of the Court of Appeal in relation to the public sector equality duty. In the context of a policy, if a choice existed between a method which discriminated against an ethnic group and one which did not, or one which advanced the specified objectives in section 149 and one which did not, there had to be a good proportionate reason advanced by the policymaker to choose the former pair and not the latter: Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 applied.
It was clear that the effect of the policy or practice to recover all appeals relating to traveller’s pitches had put ethnic gypsies and travellers at a disadvantage because their appeals would take far longer to determine. The defendant had real difficulty in meeting the first or third criteria for recovery and had fallen far short of showing that the recovery of all such appeals had been a proportionate way of achieving his objective. WMS1 had only sought to consider relevant appeals for recovery and could be taken on its face as a proportionate way of achieving the legitimate objective and so was not itself discriminatory within section 19(1) of the 2010 Act. However, the application of WMS1 had, in fact, been a practice whereby all appeals had been recovered so that the practice adopted after its publication had been discriminatory, within the meaning of section 19. The reduction in the percentage recovered to 75% had been an entirely arbitrary figure and the defendant had failed to show that it was a proportionate way of achieving a legitimate objective. Accordingly, the practice adopted since September 2014 remained discriminatory within the meaning of section 19: De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing [1999] 1 AC 69 applied.
(2) It was not for the court to reach a view on the decision it would have reached had it been making the decision under section 149. It was for the court to decide for itself if due regard had been had, but providing that that was done, it was for the decision-maker to decide what weight to give the equality implications of the decision. The duty to have due regard concerned the impact of the proposal on all persons with the protected characteristic and, specifically, upon any particular class of persons who might most obviously be adversely affected by the proposal. Gypsies and travellers were affected by a policy which affected the way in which the procedure for determining their appeals was to be conducted, especially where the effect was to cause considerable delays in determination. There had been a failure to comply with the public sector equality duty in this case where it had not been addressed it at all, notably on either occasion when changes in policy had been considered.
(3) Article 6 of the ECHR did not relate only to the fairness and impartiality of the tribunal, but also to having the hearing within a reasonable time. The defendant had failed to show that the delays caused to the determination of the appeals had been a proportionate response to the issue of giving the policy “steer”. It followed that the appeals had not been determined within a reasonable time and the challenge under article 6 succeeded because substantial delays had occurred. Article 8 of the ECHR served only to confirm that the effect on the home lives of the claimants was part of the context for giving weight to the importance of determining appeals promptly: R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 PLR 76 applied.
(4) On the question of bias, there was nothing beyond arguments that there had been breaches of the 2010 Act. There was no evidence of bias by the defendant against either claimant and the arguments as to abuse of power and irrationality were without merit. The defendant had been entitled, if he had followed the appropriate route, to decide that he had wanted all or most cases recovered. His discretion as to recover under paragraph 3 of Schedule 6 to the Town and Country Planning Act 1990 was a broad one. The tests of proportionality and rationality were neither the same nor coterminous.
(5) The practice of recovering all the appeals as a matter of course from September 2013 to January 2014 had been in conflict with WMS1 until it was replaced by WMS2. Thereafter the practice had not been in conflict with WMS2 even though it had been derived from an internally adopted but unpublished policy. The position after January 2014 was less clear because it would have been possible to recover all cases under WMS2 without any inconsistency with its terms. Moreover, the defendant was not bound to invite representations before making the decision to recover a case and he had a wide discretion. Therefore, when the claimants’ appeals had been recovered, both after January 2014, the defendant had been entitled to act on the undisclosed policy. The relief would be limited to the quashing of the two recoveries in the claimants’ cases.
Timothy Jones (instructed by Community Law Partnership Ltd, of Birmingham) appeared for the first claimant; Stephen Cottle (instructed by Community Law Partnership Ltd, of Birmingham) appeared for the second claimant; Rupert Warren QC and David Blundell (instructed by the Treasury Solicitor) appeared for the defendant; Christopher Butler (instructed by the Equality and Human Rights Commission) appeared for the intervener.
Eileen O’Grady, barrister
Click here to read transcript: R (on the application of Moore and another) v Secretary of State for Communities and Local Government (Equality and Human Rights Commission intervening)
