Moore & Coates -v- Secretary of State for Communities and Local Government & London Borough of Bromley and Dartford Borough Council and Equality and Human Rights Commission  EWHC 44 (Admin)
Ms Moore and Ms Coates are Romani Gypsies who were seeking planning permission for single pitch sites for themselves and their families (in Ms Moore’s case from London Borough of Bromley and in Ms Coates’ case from Dartford Borough Council). Ms Moore had previously been refused planning permission by a Planning Inspector but had had that decision quashed by a High Court Judge and that quashing of the decision was upheld by the Court of Appeal (see the Travellers Times blog ‘Gypsy Woman wins in Court of Appeal’ http://travellerstimes.org.uk/Blog–Comment/Gypsy-woman-wins-in-court-of-appeal.aspx.
Following the quashing of the Planning Inspector’s decision, Ms Moore’s case was returned to another Planning Inspector. Ms Coates had applied for planning permission which had been refused by the local planning authority. She had appealed to a Planning Inspector. The Secretary of State for Communities and Local Government (SSCLG), Mr Pickles, decided to recover their appeal cases to make the decisions himself.
Town and Country Planning Act 1990 Schedule 6 paragraph 3 states that:-
3(1) The Secretary of State may, if he thinks fit, direct that an appeal which would otherwise fall to be determined by an appointment person shall instead be determined by the Secretary of State.
The previous policy for recovering appeals was amended, with regard to Gypsy and Traveller planning appeals to a Planning Inspector, by a Written Ministerial Statement of 1st July 2013 (hereafter “WMS 1”) which stated that in the case of “Traveller Sites” the SSCLG was “revising the recovery criteria issued on 30th June 2008 and will consider for recovery appeals involving traveller sites in the Green Belt”.
A further Written Ministerial statement was issued on 17th January 214 (hereafter “WMS 2”) and this stated that:-
The Secretary of State remains concerned about the extent to which planning appeal decisions are meeting the Government’s clear policy intentions, particular as to whether sufficient weight is being given to the importance of green belt protection. Therefore, he intends to continue to consider for recovery appeals involving traveller sites in the green belt.
Equality Act 2010 Section 19 deals with “indirect discrimination” as follows:-
19. Indirect discrimination
(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
Equality Act Section 149 reads as follows:-
149. Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to-
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
In terms of both Section 19 and Section 149 the relevant protected characteristic in the circumstances of this matter was “race”. Romani Gypsies are recognised as “ethnic groups” under the Equality Act.
Ms Moore and Ms Coates took Judicial Review applications to challenge the decision of the SSCLG to recover their planning appeals. Their cases were heard together and Judgment was delivered by Mr Justice Gilbart on 21 January 2015. Mr Justice Gilbart quashed the decisions to recover these two appeals. It is worth quoting extensively from the Judgment of Mr Justice Gilbart.
EQUALITY ACT 2010 SECTION 19
117. …It is entirely clear that the effect of the policy or practice to recover all appeals relating to traveller’s pitches put ethnic gypsies and travellers at a disadvantage, namely that their appeals would take far longer to determine…
118. …WMS 1 gives one, and one reason alone, for the new policy on recovery
“The Secretary of State wishes to make clear that, in considering planning applications, although each case will depend on its facts, he considers that the single issue of unmet demand, whether for traveller sites or 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”.
119. This is a case where the evidence filed by the Defendant shows that officials and Ministers were not ad idem [of the same mind]. That is not a matter for criticism, but it does mean that the fact that the officials had one or some objectives or rationales in mind does not imply that the Minister did so….indeed reading the Ministerial submissions there can be no reasonable doubt that the Minister was concerned that too many appeals were being allowed, not too few.
120. At the same time, I also accept that it is quite proper for the SSCLG or his Ministers to take the view that the policy point made in WMS 1 needed making. It is a matter for the Secretary of State whether he considers that too much weight has been given in some cases to very special circumstances. That could in my judgment be a legitimate aim..
121. It is true that officials advised Ministers that there was no evidence of excess weight having been given by Inspectors, and there is actually no evidence by reference to any analysis that that was the case before WMS 1 was coined. Lists of appeals were provided to the Minister, and the issues raised in each appeal identified, but the schedules contain no suggestion that any Inspector’s decision letter had applied weight inappropriately. The only evidence there is is the fact that the Minister did not accept the officials’ advice against increasing the rate of recovery of appeals. However I am prepared to accept that the SSCLG is entitled to form the view that a clearer steer was required, as set out in WMS 1, and again in WMS 2. But it is noteworthy also that the reasons given to the two Claimants for recovery of their appeals referred to one matter only, namely that their appeal related to a travellers site in the Green Belt. It made no suggestion that either case had any particular features beyond that. As far as the Court understands, that was true in the case of all the recovered appeals.
122. In my judgment the real issue at play here is therefore one of proportionality. The test from the House of Lords authority of De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, 80 is that in order to justify the Recovery Practice, the Defendant must demonstrate:
i. that the objective is sufficiently important to justify limiting a fundamental right;
ii. that the measure is rationally connected to the objective;
iii. that the means chosen are no more than is necessary to accomplish the objective.
123. …Thus, in the context of a policy, if a choice exists between a method which discriminates against an ethnic group, and one which does not, or one which advances the specified objectives in s 149, and one which does not, there must be good proportionate reason advanced by the policy maker to choose the former pair and not the latter.
124. In my judgment the SSCLG has real difficulty in this case in meeting the first or third criteria derived from De Freitas. In the case of the first criterion, at least two fundamental rights are in play
a) The right of an appellant under Article 6 of ECHR to have a determination of his/her appeal without unreasonable delay;
b) The right of ethnic gypsies and travellers not to be treated less favourably than others.
In the case of the third criterion, there is ample evidence of other routes by which the same end could be achieved, without affecting all appeals, and therefore without affecting all appellants seeking permission for travellers’ pitches in the Green Belt. The SSCLG and his Ministers could have issued a further policy statement, or (as officials advised, and WMS 1 anticipated) recovered a representative group of appeals for determination. That is in the experience of the Court a very common way for the SSCLG to have his say on a policy issue of importance…
125. In the context of repeated advice from his officials that the approach the Minister wished to see adopted would and did cause delay, and that it could lead to unfair treatment of the particular ethnic group, by the rejection of that course, and by the adoption of one which caused very real disadvantage to those in the position of the claimants, the Secretary of State and his Minister have in my judgment fallen far short of showing that the recovery of all such appeals was a proportionate way of achieving his objective. Indeed a notable feature of the evidence for the SSCLG is that it shows that his officials repeatedly advised against the course being followed, and recommended the course of selecting a few cases so that a clear message could be given, while drawing attention to the increasing delays being caused to interested parties. Yet there is an absence of any evidence from the SSCLG in these proceedings of why the Minister or the SSCLG thought that their preferred approach was proportionate, and why none of the alternatives being suggested to them would not meet the objectives they had identified. It is also evident from the submission to Ministers of 1st May 2013 at paragraph 9 that the Minister for Local Government had originally accepted the idea of selecting a few cases so as to give a clear message. But lacking from the evidence is any understanding of why he thought that that course became unacceptable. It is after all the one which officials continued to recommend, and as already observed, it is in my judgment and experience a common way of proceeding. It was left to Mr Warren, without evidence but with forensic bravery, to assert that the Minister had good reason to do so. I should add for completeness that I have concentrated on the idea of recovering a few cases because it seems to the Court to be an obvious way of proceeding, and not least because it was what was being suggested to Ministers. But that is not to say that there were not other ways of achieving the objective, such as the issue of a further policy statement, which could give the clear steer the SSCLG and his Minister apparently thought was required. But the SSCLG has filed no evidence showing why he thought that only recovery of all appeals was the appropriate course.
126. I accept that as written, WMS 1 did not seek to recover all appeals in the category, but only to consider them for recovery….I do not therefore consider that WMS 1 is itself discriminatory within the terms of s 19 (1). But the application of WMS 1 was in fact a practice whereby all appeals were recovered, despite the clear terms of WMS 1 that it did not imply that. In my judgment, the practice therefore adopted after its publication was discriminatory within the meaning of s 19.
127. The terms of Policy WMS 2
“Therefore, he intends to continue to consider for recovery appeals involving traveller sites in the green belt”.
are also not written so as to see all appeals recovered, although the case for the SSCLG (and the evidence as to what happened) shows that that was what was meant by it. The practice existing before WMS 2 and afterwards was therefore undoubtedly discriminatory for the reasons I have already set out. So far as the change in September 2014 is concerned (to 75% recovery) I have already set out the fact that the percentage was fixed on when consideration was given to the judicial review challenge, which suggests that there must have been some appreciation of the difficulties in which the previous policy had placed the SSCLG. It is to be observed that there was nothing in the evidence before the court from the SSCLG which shows how the cases within the 75% were to be chosen, nor any justification of that choice of percentage. It was as far as the court can see, an entirely arbitrary figure, fixed on after the officials had suggested an equally arbitrary figure of 50%. That is not to say that a rounded percentage figure could not be justified by reference to some even very brief analysis of how many cases showed up the particular issue of concern. But there was no exercise or analysis of any kind put before the court in evidence…
128. It is therefore my judgment that the Defendant SSCLG has failed to show that the 75% practice was a proportionate way of achieving a legitimate objective, and I must therefore conclude that the practice adopted since September 2014 has remained and is discriminatory within the meaning of s 19 of the EA 2010.
EQUALITY ACT 2010 SECTION 149
130. …Equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation…
132. I do not accept Mr Warren’s submission that the consideration of equality at the time of PPTS in 2012 meant that there was no need for the matter to be addressed when considering whether to alter the practice of recovery in 2013-4. Gypsies and travellers were affected by a policy dealing with how the issues in their applications and appeals were to be considered (the PPTS) but they would also be affected by a policy which affected the way in which the procedure for determination of their appeals was to be conducted, and especially so as the effect was, as is common ground, to cause very considerable delays in determination. Indeed the fact that the PPTS and its Equality Assessment rightly recognised the particular disadvantages suffered by their ethnic group, was a very good reason for the SSCLG and his Ministers to recognise that care had to be taken if their position as compared to other appellants was not to be worsened.
133. …Apart from the single warning which was given by officials in March 2013 there is no mention of the issue or of the questions which statute said had to be addressed. Mr Warren says that the EHRC does not suggest that a formal Equality Impact Assessment had to be carried out in order for ‘due regard’ to be had. But even assuming that that is right, that does not mean that there was no requirement for an assessment or consideration of any kind.
134. The fact is that this [is] in truth not a case whether the regard the Secretary of State and his Ministers had was ‘due regard’. The fact is that, on the evidence filed by the SSCLG, they had no regard at all…The Court is unable to assume that due regard was had simply because Counsel for the SSCLG asserts that it was, however engagingly…
135. I am therefore in no doubt that there has been a failure to comply with the PSED [Public Sector Equality Duty]…
138. …The disadvantaging of a racial group (to take the characteristic in issue here) without having a legitimate aim or without having a proportionate approach to its achievement, or a failure to have due regard to issues of equality, is no more or less objectionable if it is occasioned by Ministerial decision making.
ARTICLE 6 AND 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR)
With regard to the allegation that the SSCLG was not an independent or fair tribunal, this allegation was not accepted by the Judge. However, he then went on to deal with the question of delay:-
149. But Article 6 does not relate only to the fairness and impartiality of the tribunal, but also to having the hearing within a reasonable time…
150. …To anyone with experience of development control and planning inquiries, it is remarkable that cases involving a modest amount of evidence, and typically taking two days at most, could then require consideration for in excess of 6 months, let alone the 10 months that has elapsed in Mrs Coates’ case. I recognised that Mrs Moore’s case has involved some complexities, but there is no evidence at all that it was anything but atypical. But as Mr Watson’s evidence [for the SSCLG] showed with clarity, it is the effect of the recovering of all cases which was expected to, and has, caused significant delays in determination. It was not the issues raised by any of the cases which caused the delays but a Ministerial decision to recover them all for determination…
The Judge did not feel that Article 8 added anything to the discussion and therefore did not make a decision on that point.
ALLEGATIONS OF BIAS
The Judge did not accept the allegations of bias with regard to SSCLG.
ALLEGATIONS OF ABUSE OF POWER AND IRRATIONALITY AND ALLEGATIONS THAT THE SSCLG ACTED IN ACCORDANCE WITH AN UNDECLARED POLICY AND CONTRARY TO HIS DECLARED POLICY
The Judge did not accept these allegations.
172. While I am satisfied that the challenges mounted on issues of bias, irrationality and abuse of power have failed, I have found that the challenges based on breaches of the Equality Act 2010 and of Article 6 of the European Convention of Human Rights have succeeded. Both are part of the law of England and Wales. These are not to be dismissed as technical breaches. Although the issue of unlawful discrimination was put before the Minister by his officials, no attempt was made by the Minister to follow the steps required of him by statute, nor was the regard required of him by s 149 of the Equality Act 2010 had to the matters set out there.
173. The Article 6 challenge has succeeded because substantial delays have occurred in dealing with the appeals of Mrs Moore and Ms Coates, and with many other cases. In the context of delay, Article 6 of the ECHR does no more than encapsulate the long standing principle of the common law that justice should not be unreasonably delayed, as it was and has been here. The Claimants were and are entitled to have their appeals determined within a reasonable time. The delays they have experienced have also affected those who oppose their appeals.
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 ss 19 and 149 of the 2010 Act. I have also found that the practice of recovering all appeals, or an arbitrary percentage thereof, was and is unlawful. The effect of the approach of the Secretary of State was also to breach Article 6 so far as Mrs Moore and Ms Coates are concerned.
182. …There are, as the figures set out above demonstrate, many others whose appeals have been recovered and who must be experiencing delays, there are, as the figures set out above demonstrate, many others whose appeals have been recovered and who must be experiencing delays, as are those who oppose their appeals. If, as appears to be the case, the appeals were recovered not because of their merits but because they were cases of travellers’ pitches in the Green Belt, then the effect of the judgment will be to call into question the legality of many other recoveries…
No doubt sorting out which should or should not be recovered will involve some time and resources being expended, although it will no doubt be less than the time and cost spent in dealing with judicial review claims by many others should a review not be conducted.
To pause there, paragraph 182 appears to invite the SSCLG to actively revisit all the recovered appeals that took place since WMS 1 was first published.
185. I am in any event not persuaded that they could not be proper cases for recovery if the criteria were lawfully applied. Mrs Moore’s case has already been to the Court of Appeal because it raises some difficult issues, and Ms Coates’ case took some 20 days at inquiry. But while I do not think it appropriate to limit the discretion of the Defendant, properly exercised, in connection with their recovery, it would in my judgment be wrong to leave untouched two unlawful recoveries of jurisdiction which were made pursuant to a practice coined and developed in breach of an express statutory duty, and which discriminated unlawfully against a racial group.
186. Therefore in the exercise of my discretion, I have concluded that I should limit the relief granted by the Court to the quashing of the two recoveries.
The implications of this Judgment are enormous. It seems to us that the vast majority of all Gypsy and Traveller planning appeals that were recovered since WMS 1 was published may now be challengeable due to the fact that the practice of the policy was unlawful and discriminates against Gypsies and Travellers, fails to have regard to the Public Sector Equality Duty and has caused unreasonable delays in terms of Article 6 of the ECHR. We would urge all Gypsies and Travellers who have had their appeals recovered since WMS 1 was published to seek urgent legal advice. The Travellers Advice Team National Helpline is, of course, available if people want to take advice from us on this issue or if people know of Gypsies and Travellers who have been affected. Our National Telephone Helpline is 0121 685 8677, Monday to Friday 9.00 am to 5.00 pm.
Well done to Parminder Sanghera of Travellers Advice Team who ran both the cases, to the Barristers involved for the two Gypsies concerned, namely Tim Jones of Number 5 Chambers and Stephen Cottle of Garden Court Chambers, and to the Planning Consultant for both appeals, Dr Angus Murdoch. Well done also to the Equality and Human Rights Commission for intervening in the case as an intervener and to their Barrister, Chris Buttler for his excellent work on the case.
See attachment: Approved Judgment.