Social Welfare Lawyers in the Centre of Birmingham

Connors & Others -v- SSCLG & Others

Connors, Connors, Doran, Sines and Lee v Secretary of State for Communities and Local Government and others [2014] EWHC 2358 (Admin) 11 July 2014

This case involved 5 High Court planning appeals and applications under either Section 288 or Section 289 of the Town and Country Planning Act 1990 that were all heard together. All of these cases had been recovered by the SSCLG under his powers to do so and in line with the Written Ministerial Statements of 1st July 2013 and 17th January 2014.

 The latter statement included the following:-

The Government’s planning policy is clear that both temporary and permanent traveller sites are inappropriate development in the green belt and that planning decisions should protect green-belt land from such inappropriate development. I also noted the Secretary of State’s policy position that unmet need, whether for traveller sites or for conventional housing, is unlikely to outweigh harm to the green band other harm to constitute the “very special circumstances” justifying inappropriate development in the green belt.

The Secretary of State wishes to re-emphasise this policy point to both local planning authorities and planning inspectors as a material consideration in their planning decisions.

That statement [the 1st July 2013 statement] 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.

The Secretary of State remains concerned about the extent to which planning appeal decisions and meeting the Government’s clear policy intentions, particularly 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.

In one of the five cases, the Planning Inspector recommended permanent permission. In two of the five cases, the Inspector recommended permanent or, in the alternative, temporary permission. In the final two of the five cases, the Inspector recommended temporary permission. In all of the five cases, upon recovery, the Secretary of State refused planning permission whether permanent or temporary. The cases involved four different local authorities. None of the local authorities had complied with the Government’s policy Planning for traveller sites in that none of them had a five year supply of deliverable sites. It must be said that the judgment in this case hardly encourages local authorities to ensure that they do have that supply in place, which supply ought to have been in place (according to the Government) by March 2013.

In all five cases, the individual decisions of the Secretary of State were challenged but the appeals were unsuccessful.

In four of the cases, a challenge was made to the powers of the Secretary of State to recover such appeals (see above). However, in only one of the cases was that challenge really effective since in the other cases the appeals had been recovered under the system prior to the Written Ministerial Statements. In the case where the challenge was effective, it was dismissed because the Judge, Mr Justice Lewis, concluded that the challenge was being taken in the wrong form and should have been taken by way of judicial review. He stated:-

….I was informed during the hearing that legal aid has been given to another individual to enable that individual to bring judicial review proceedings in relation to the direction that her appeal be determined by the Secretary of State. The wider issues surrounding the lawfulness of the Secretary of State’s approach would, in my judgment, be better considered in proceedings brought for that purpose (para 140).

It should be noted that CLP are taking forward the case that is mentioned and that another case has also been taken forward now by CLP by way of judicial review.

In terms of a challenge brought in some of the cases on the basis of Article 14 of the European Convention on Human Rights (the discrimination article), Mr Justice Lewis stated:-

….In my judgment, the evidence produced in these cases does not establish any differential treatment in terms of the decisions on appeals by Travellers and Gypsies in relation to sites in the Green Belt as compared with non-Gypsy and Traveller appeals in such cases (para 150).

See: Connors & Others -v- SSCLG & Others Judgment