Gypsy site – Green belt – Irish travellers – Inspector upholding refusal of planning permission – Legislation promoting equality of opportunity between persons of different racial groups – Whether inspector having due regard to need to promote equality – Appeal dismissed
The appellants were Irish travellers who had applied for planning permission to retain a number of touring caravans and mobile homes on three green-belt plots. Each of the three plots had two-year planning permissions for residential use as gypsy sites that were personal to the occupiers to whom the permissions had been granted. Those occupiers had since left, the appellants had settled on the sites and the planning permissions had expired.
Following the refusal of planning permission, the appellants appealed to the respondent under section 78 of the Town and Country Planning Act 1990. The latter appointed an inspector who held an inquiry and made a site visit. By her decision letter, she dismissed the appeals. She held that she was required to undertake a balancing exercise, weighing the harm to the green belt in the light of relevant policies should the appellants be allowed to remain on the sites, against various other considerations that favoured the appellants’ cases. She concluded that the balance came down against the appellants.
The judge dismissed the appellants’ application, under section 288 of the 1990 Act, to quash the inspector’s decision. In the Court of Appeal, the appellants advanced a new ground that had not been raised before the judge, namely that, in breach of section 71(1)(b) of the Race Relations Act 1976, the inspector had failed to have due regard to the requirement “to promote equality of opportunity… between persons of different racial groups”. The court gave permission to the Equality and Human Rights Commission to intervene, since the issues arising under section 71(1) were being considered for the first time by the Court of Appeal in a planning context.
Held: The appeal was dismissed.
The section 71 duty had not been breached. The inspector was been aware of the plight of gypsies and travellers and their disadvantages as compared with the general settled community. It was immaterial whether she had known of the existence of the section 71(1) duty.
Section 71(1) imposed a duty to have due regard to the need to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups, namely regard appropriate in all the circumstances. Those included, on the one hand, the importance of the areas of life of the members of the disadvantaged racial group that were affected by the inequality of opportunity and the extent of the inequality; and, on the other hand, such countervailing factors as were relevant to the function that the decision maker was performing.
In the present case, in discharging that duty, the inspector had been required to take into account the need to promote equality of opportunity for the appellants to have access to housing that would enable them to benefit from education, health care and other social needs. She also had to take into account the powerful countervailing imperative of PPG 2 that the residential use of the three appeal sites constituted inappropriate development in the green belt. Ultimately, how much weight she gave to the various factors was a matter for her planning judgment.
The failure of an inspector to make explicit reference to section 71(1) was not determinative of whether he or she had performed his or her duty under the statute. So to hold would be to sacrifice substance to form. The question in every case was whether the decision maker had in substance had due regard to the relevant statutory requirement: R (on the application of Smith) v South Norfolk Council: [2006] EWHC 2772 (Admin); [2006] PLSCS 232 applied.
Although a reference to section 71(1) might not be sufficient to show that the duty had been performed, it was good practice for an inspector to refer to the provision and any relevant material in cases where section 71(1) was in play. By doing so, the decision maker was more likely to ensure that the relevant factors had been taken into account, thus reducing the scope for argument as to whether the duty had been performed.
Richard Drabble QC and Stephen Cottle (instructed by South West Law Ltd, of Bristol) appeared for the appellants; Philip Coppel (instructed by the Treasury Solicitor) appeared for the respondent; Robin Allen QC and Catherine Casserley (instructed by the Equality and Human Rights Commission, of Manchester) appeared for the intervenor.
Eileen O’Grady, barrister
