Connors & ors v Secretary of State for Communities and Local Government (SSCLG); Mulvenna & Smith v SSCLG  EWCA Civ 1850, 17 November 2017.
The case of Mulvenna and Smith concerned the discriminatory decision by Eric Pickles, back in 2014 when he was SSCLG, to recover their respective planning appeals for his own determination. Having done so Mr Pickles rejected his Planning Inspector’s recommendation in each case that planning permission be granted and he dismissed both appeals.
Some months after the appeals had been dismissed, in January 2015, Mr Justice Gilbart gave judgment in the case of Moore and Coates v SSCLG – see the report on the Community Law Partnership website at https://www.communitylawpartnership.co.uk/gypsy-and-traveller-cases/traveller-planning/moore-a-coates-v-ssclg. You may remember that Ms Moore and Ms Coates challenged Mr Pickles’ decision to recover their planning appeals by way of judicial review before he had the opportunity to determine their appeals and argued that his recovery policy was unlawful. During the course of those proceedings the SSCLG filed evidence from a senior civil servant, Mr Richard Watson, which made it quite clear that Mr Pickles was applying the criteria for the recovery of planning appeals brought by Gypsies and Travellers in respect of Green Belt sites in a way that had a discriminatory impact on ethnic Gypsies and Travellers and the Judge quashed the decisions on that basis.
When those representing Ms Mulvenna and Mr Smith read the Moore and Coates judgment and the Judge’s references to the evidence given by Mr Watson they understood for the first time what had been happening behind the scenes at Department for Communities and Local Government (DCLG) and how the recovery policy had been applied in a discriminatory way by Mr Pickles and that their clients had also been the victims of discrimination. However, their position was clearly different in that their appeal decisions had already been determined.
In the event it was considered that there were grounds to:
- challenge the original recovery decisions in both their cases – out of time – on the basis that they could not have known of the SSCLG’s discriminatory recovery practice before the disclosure of Mr Watson’s evidence in the Moore and Coates judgment (as an aside it should be noted that Mr Watson’s evidence had been privileged up to the point it was used in the trial of the Moore and Coates case);
- and on the basis that his subsequent determination of their appeals was null and void – applying what is known as the ‘domino effect’.
At first instance the case came before Mr Justice Cranston and he decided that he would not exercise his discretion to extend time to allow Ms Mulvenna and Mr Smith to challenge the recovery decisions and subsequent appeal decisions out of time. He also decided that in any event the unlawful recovery decisions did not make the subsequent appeal decisions a nullity.
The Court of Appeal reviewed Mr Justice Cranston’s decision and concluded that it was lawful. In what many would consider a harsh decision, given the fact that the appellants could not possibly have known what was going on behind the scenes at the DCLG, the three Judges decided that it was far too late to allow the appellants to challenge the recovery decisions. In addition the Court of Appeal held that even if the appellants’ challenges to the recovery decisions were successful that would not undermine the appeal decisions made by Mr Pickles, because, in their view: challenges to appeal decisions could only be made by way of claims brought under section 288 of the Town and Country Planning Act 1990 within 6 weeks of the decision made; and the jurisdiction to determine appeals always vested in the SSCLG and therefore an unlawful recovery decision made no difference.
It is important to note that the judgment in Moore & Coates remains intact.
Marc Willers QC and Tessa Buchanan of Garden Court Chambers represented the appellants and they were instructed by Keith Coughtrie of Minton Morrill solicitors.
The case was heard with a case for other Travellers (Connors & ors v SSCLG) and that case was also dismissed by the Court of Appeal. It is understood that some of the Travellers are seeking leave to appeal to the Supreme Court.
You can find the judgment here: