R (Mulvenna and Smith) – v – Secretary of State for Communities and Local Government and Equality and Human Rights Commission  EWHC 3494 (Admin), 4th December 2015
This case followed on from the case of R (Moore and Coates) – v – SSCLG (see the CLP website at:- (https://www.communitylawpartnership.co.uk/traveller-planning).
Readers may recall that, in the case of (Moore and Coates), the High Court had concluded that the Secretary of State’s recovery of all Green Belt Gypsy and Traveller planning appeals was unlawful and discriminatory and quashed that recovery. However, in that case, the Secretary of State had not yet made a decision on the appeals. The question remained, therefore:- what about those cases where the Secretary of State had recovered the appeal and had already made the decision on the appeal? This is was what had happened in the cases of Ms Mulvenna and Mr Smith and, unfortunately, their application for judicial review was dismissed. Mr Justice Cranston, in dismissing the judicial review applications which were challenging the recovery process, concluded that:-
(1) The judicial review applications of the Secretary of State’s decisions failed because they were too late and there was no basis to extend time;
(2) The Secretary of State did not have power to revoke the decisions that he had already made on these appeals;
(3) The decisions on the appeals were not a nullity;
(4) Mr Smith’s appeal under Section 288 of the Town and Country Planning Act 1990 failed in terms of its challenge to the Secretary of State’s decision.
On the question of delay, Cranston J stated as follows:-
For the purposes of the hearing, the Secretary of State accepted (subject to the delay issue) that his recovery of their appeals was unlawful…Here, the Secretary of State’s recovery of Ms Mulvenna’s appeal occurred on 4 July 2013, yet it was twenty months later, 4 March 2015, that her judicial review was issued. Mr Smith was almost fifteen months late, with the recovery occurring on 23 January 2014 and his judicial review being issued on 13 April 2015. So Ms Mulvenna’s and Mr Smith’s applications are well and truly out of time (para 46).
Anyone objecting to a decision of a public authority by way of judicial review must challenge it without delay; they cannot wait until others show that the way is clear. The time limits in planning judicial reviews are especially tight. Once launched, however, a claim can be stayed until a test case is decided. It may be as well that claimants can amend their claim in the light of another’s case. But for reasons of good administration our system of public law cannot work on the basis of persons holding back from legal challenges until another claimant in a similar position has a success in court. Those unhappy with a public authority’s decision must take the initiative and promptly challenge it.
By contrast, the Claimants in Moore and Coates did not hold back. (Their claims were slightly late owing to delays with legal Aid funding problems but no objection was taken on timing…). Like Ms Heine[ the planning consultant for Ms Mulvenna], their advisors no doubt saw the pattern of recovery decisions with Gypsy and Traveller appeals and decided to advance an Equality Act 2010 claim.
The comparison with Moore and Coates brings out another point: by contrast with the present claims the Secretary of State has made no decision on the Moore and Coates’ appeals. He had recovered those appeals but was still sitting on them when Gilbart J handed down his judgment in January 2015. In the present claims, however, the Secretary of State made decisions on both appeals, in Ms Mulvenna’s case in the decision letter of 5 August 2014, in Mr Smith’s case, in the decision letter of 15 July 2014. If an extension of time were to be granted, it could hardly be said that no detriment to good administration would be involved when, at the very least, public resources have gone into the preparation of these decision letters. Certainly in these cases, good administration is not some empty rhetorical device (paras 49-51).
…Article 19 of the Treaty on European Union now states that Member States should provide remedies sufficient to ensure effective legal protection in the fields covered by EU law, and Article 47 of the Charter of Fundamental Rights of the European Union provides for a right to an effective remedy and a fair trial. Directive 2000/43/EC, the Race Directive, requires Member States to ensure that judicial and administrative procedures for the enforcement of obligations under the Directive are available to persons who consider themselves wronged by the failure to apply the principle of equal treatment to them (para 53).
The EU principle of effectiveness does not mandate that domestic remedies cannot be subject to appropriate time and other procedural limits (para 55).
On the question of the Secretary of State’s failure to review or revoke his decision following the Moore and Coates Judgment, Cranston J stated:-
In my judgment it is not arguable that the Secretary of State has power to revoke his decision letters on these appeals. It is hornbook law that planning law is the creature of statute and that the legislation offers a comprehensive code on the subject….The Secretary of State has no power to review a decision already taken on an appeal under section 78, or a prior recovery direction in the event of a decision on a section 78 appeal. Nor does the legislation afford him a power to revoke a decision to dismiss an appeal under section 78. This conclusion follows whether the Secretary of State’s prior recovery direction is lawful or not. Under the legislation, his determination on these appeals remains lawful and valid unless set aside by the Court (para 59).
On the question of whether the Secretary of State’s decision might be seen to be a nullity, Cranston J stated:-
In my view, the Secretary of State’s decision on the planning appeals, including the issue of nullity, can only be challenged by means of an application made under section 288 of the 1990 Act, not through judicial review. That is made clear by section 284 of the 1990 Act. Mr Buttler’s analysis [Mr Buttler was Counsel for the ECHR] in this regard was correct. A person aggrieved by what is said to be an ultra vires appeal decision of the Secretary of State under section 78 can challenge it through the section 288 procedure. An error of law renders a decision ultra vires, and any ultra vires decision is ‘not within the powers of the Act’: section 288 (1) (b) (i). Under the statutory code this is the exclusive procedure for challenging a section 78 decision (para 63).
There then followed a very complex discussion of previous case law regarding whether or not a previous act may be void or not. On this point, Cranston J concluded:-
Thus even if the Secretary of State’s recovery decisions were a nullity because of Moore and Coates, it does not follow that his determination of the appeals are also a nullity. That is because the statutory framework conferred jurisdiction on him to determine the appeals, whatever the lawfulness of his decisions, to recover them for his own determination (para 76).
By the time of the judicial review hearing, Ms Mulvenna had already withdrawn her appeals under sections 288 and 289 of the 1990 Act. However, Mr Smith’s appeal under section 288 remained extant. Marc Willers QC (Counsel for Mr Smith) sought to amend Mr Smith’s section 288 application to incorporate the challenges advanced in the judicial review. This application was dismissed. Cranston J concluded on this point:-
In short, the Secretary of State’s reasons were adequate and intelligible and his decision to dismiss Mr Smith’s application cannot be said to be in error (para 79).
It is believed that Ms Mulvenna and Mr Smith are considering the possibility of an appeal to the Court of Appeal. CLP have two cases that were waiting in the wings for the judgment in this case. We are now considering our position on those two cases.
The solicitors for Ms Mulvenna and Mr Smith were Lester Morrill of Leeds and the solicitor for the EHRC was Rosemary Lloyd. As stated above, counsel for Ms Mulvenna and Mr Smith was Marc Willers QC of Garden Court Chambers and counsel for the EHRC who intervened in the matter was Chris Buttler of Matrix Chambers.
Mulvenna & Smith v SSCLG & EHRC  EWHC 3494 (Admin): http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2015/3494.html&query=mulvenna+and+smith+and+v+and+secretary+and+of+and+state&method=boolean